United States v. Olin Corp.

No. CV 80-M-5300 (N.D. Ala. August 14, 1981)

In a suit seeking abatement of DDT discharges from a facility in which the pesticide was formerly manufactured, the court dismisses a water pollution claim based on the federal common law of nuisance in light of two recent Supreme Court decisions. The court rejects the United States' argument that the federal common law of nuisance applies to non-point discharges which originated prior to the 1972 Federal Water Pollution Control Act Amendments or to pollution not involving water. The Supreme Court has held that the 1972 amendments established a comprehensive statutory scheme to control water pollution leaving no room for the courts to apply the federal common law of nuisance. Even in the absence of the 1972 amendments, the court would dismiss the federal common law claim since the state law of nuisance is applicable and therefore there is no need for a federal common law remedy.

[The issues raised in this opinion are analyzed at 11 ELR 10191 — Ed.]

Counsel for Plaintiffs
Elizabeth Todd Camel, U.S. Attorney
Fed. Cthse., Birmingham AL 35203
(205) 254-1701

Angus C. MacBeth, Kenneth Reich, George C. Lawrence
Landsand Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2280

Alex S. Karlin
Enforcement Division
Environmental Protection Agency, Washington DC 20460
(202) 755-8731

Counsel for Defendants
G. Lee Garrett Jr.
Hansell, Post, Brandon & Dorsey
3300 First Nat'l Bank Tower, Atlanta GA 30303
(404) 581-8000

Donald F. Pierce, W. Alexander Moseley
Hand, Arendall, Bedsole, Greaves & Johnston
P.O. Box 123, Drawer C, Mobile AL 36602
(205) 432-5511

[11 ELR 21026]

McFadden, J.:

Memorandum Opinion

United States of America, on behalf of the Environmental Protection Agency and Department of the Army bases one of its claims on the common law of nuisance.

Defendant has moved to dismiss this claim insofar as it is based on the federal common law of nuisance. While the complaint doesn't specify, apparently plaintiff seeks recovery under both the federal and State common law of nuisance. The court has held in two companion cases (Freeman and Parcus, Nos. 80-M-5057-NE and 80-M-5098-NE) that the federal common law of nuisance has been pre-empted by the 1972 amendment to the Federal Water Pollution Control Act in accordance with the holdings of the United States Supreme Court in City of Milwaukee v. Illinois and Michigan, U.S. , 101 S. Ct. 1784 [11 ELR 20406] (1981) (Milwaukee II), and Middlesex County Sewage Authority v. National Sea Clammers Association, U.S. , 101 S. Ct. 2615 [11 ELR 20684] (1981).

The United States contends that it still has a claim under the federal common law of nuisance because these two decisions apply only to point source discharges after 1972 and should not apply to non-point discharges prior to 1972. The United States also claims that this case is not solely concerned with water pollution and therefore that part which involves contamination which is neither in or under the water, but is in the overbanks of Huntsville Spring Branch or in the flora and fauna in the vicinity of the former DDT plant is not subject to the Federal Water Pollution Control Act and would give rise to a claim under the federal common law of nuisance.

The court is of the opinion that this is a water pollution case. The United States alleges in paragraph 21 of Count IV that the DDT wastes have polluted and continue to pollute navigable waters. The Court in Milwaukee I had held that in the absence of a statute covering the conduct at issue there was a federal common law which could give rise to a claim for abatement of a nuisance. The claims in this case are quite similar to the ones in Milwaukee I and II and the Court in Milwaukee II clearly held that there was no common law of nuisance to be applied. The Court stated:

We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 amendments to the Federal Water Pollution Control Act were not merely another law "touching interstate waters" of the sort surveyed in Illinois v. Milwaukee, 406 U.S., at 101-103, 92 S. Ct., at 1391-1392, and found inadequate to supplant federal common law. Rather, the amendments were viewed by Congress as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in that case. 1 LEG. HIST. 350-351 (remaks of Chairman Blatnik of the House Committee which drafted House version of the amendments); id., at 359-360 (remarks of Rep. Jones). See S. REP. No. 92-414, at 95, 2 LEG. HIST. 1511; 2 LEG. HIST. 1271 (remarks of Chairman Randolph of the Senate Committee which drafted Senate version of amendments); see also EPA v. State Water Resources Control Board, 426 U.S., at 202-203, 96 S. Ct., at 2023-24. Congress' intent in enacting the amendments was clearly to establish an allencompassing program of water pollution regulation. [11 ELR 21027] Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The "major purpose" of the amendments was "to establish a comprehensive long-range policy for the elimination of water pollution." S. REP. No. 92-414, at 95, 2 LEG. HIST. 1511 (emphasis supplied). No Congressman's remarks on the legislation were complete without reference to the "comprehensive" nature of the amendments. A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 LEG. HIST. 369 (Rep. Mizell), and Senator Randolph, Chairman of the responsible committee in the Senate, stated that "It is perhaps the most comprehensive legislation ever developed in its field. It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment." 2 LEG. HIST. 1269. This Court was obviously correct when it described the 1972 amendments as establishing "a comprehensive program for controling and abating water pollution." Train v. City of new York, 420 U.S. 35, 37, 95 S. Ct. 839, 841, 43 L. Ed. 2d 1 (1975). The establishment of such a self-consciously comprehensive program by Congress, which certainly did not exist when Illinois v. Milwaukee was decided, strongly suggests that there is no room for courts to attempt to improve on that program with federa common law. See Texas v. Pankey, 441 F.2d, at 241.

U.S. at , 101 S. Ct. at 1793 (1981).

The court is further of the opinion no federal common law of nuisance would lie here in the absence of the 1972 amendments and Milwaukee II. In order for the federal common law to apply, there must be a showing for the need of a national policy which has not been addressed by the Congress. Federal common law is to be resorted to in extraordinary circumstances: where unless it is done there is no remedy for a wrong, or where the national concern obviously prevails over State interests mandating the application of federal law. Indeed, as the Supreme Court noted in Milwaukee II:

If state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.

U.S. at , 101 S. Ct. at 1790 n.7.

Plaintiff, according to its briefs, intends to allege a nuisance under State law as well as the federal common law. Clearly the State law of nuisance is applicable. If the state law is applicable and adequate, then there is no overriding need to fashion a federal common law remedy.