Weltner v. Producers Pipeline Company

No. 74-165-C2 (D. Kan. May 2, 1975)

ELR Digest

The court grants defendant corporation's motion to dismiss, for lack of jurisdiction, this suit attacking discharge of crude oil from defendant's pipeline onto plaintiffs' land and waterways. Section 311 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1321, ELR 41116-18, is the only provision which reaches oil discharges. But § 311 is not available to private parties because of government preemption for all discharges of oil. The plaintiffs are not, however, without a cause of action, for a savings clause preserved rights and remedies existing before enactment of § 311; plaintiffs may therefore recover for trespass and nuisance in the state court under common law and, where damages can be shown, under strict liability in tort. These causes of action cannot, however, be considered by this court because they are dependent on federal jurisdiction, which is lacking. Contrary to plaintiff's assertions, FWPCA § 505, 33 U.S.C. § 1365, ELR 41124-25, which governs citizen suits for violation of effluent standards, does not apply to discharges of oil. Oil is omitted from the list of "pollutants" in § 502(6), 33 U.S.C. § 1362(6), ELR 41123-25, which also specifically excludes water and gas used to facilitate the production of oil. Thus, oil cannot be a "pollutant" for purposes of § 1365, despite plaintiff's argument that once the discharge is in the water it becomes a pollutant. Although inapplicable in this case, § 1365 is available for citizen suits involving other substances. The defendant urges that § 1365 is designed solely to provide for abatement of existing pollution violations not eradicated by means of administrative action; because he has paid fines and cleaned up the pollution, he contends that no cause of action exists. The court rejects this argument, holding that prior administrative abatement action does not bar a citizen suit under § 1365 for a violation of an effluent standard, nor need the Act be violated on the date the suit is filed. The court also dismisses the argument that damages are not recoverable by private parties under § 1365.

Full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1010).

Counsel for Plaintiffs
David Waxse
Tower Bldg.
P.O. Box 151
Olathe, Kan. 66061

Counsel for Defendant
Barton Brown
Mark I Bldg., Suite 301
10100 Santa Fe Drive
Overland Park, Kan. 66212

Stanley E. Toland
23 1/2 E. Madison Ave.
Iola, Kan. 66749

O'Connor, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]