ELR Citation: ELR 20385
No(s). 84-1278 (5th Cir. Apr 1, 1985)

The court rules that a citizen complaint brought under §505 of the Federal Water Pollution Control Act (FWPCA) must allege a violation occurring at the time the complaint is filed. The court supports its conclusion first by reference to the plain language of the statute, which is worded in the present tense. Second, the court looks to the overall statutory scheme, concludin that the citizen suit provision is intended only to supplement the powers of the Administrator and may be exercised only when neither the authorities nor the polluter acts to terminate a violation. Finally, the court finds that a contrary holding would undermine the congressional intent to avoid placing an undue burden on the federal courts through FWPCA citizen suits.

The court holds that the complaint at bar was properly dismissed. Though the complaint alleged continuing effects from the oil spilled into a creek by a break in defendant's pipe, it alleged no continuing discharge. The complaint cannot be read to allege the continuing groundwater pollution emanates from a point source. Plaintiff's allegation of continuing negligent operation of defendant's pipelines does not state a claim under the FWPCA. The Act imposes not a negligence standard but effluent standards. Though the Administratory may have power to impose a duty of pipeline inspection and maintenance, plaintiffs have not alleged that he has done so. Finally, the complaint fails to allege facts that would warrant prospective relief.

One judge concurs specially to emphasize that the holding is narrowly limited to situations, like the case at bar, involving a single past violation. The present violation requirement would not preclude citizen suits against chronic episodic violators who happen not to be in violation at the time the complaint is filed or against violators who intentionally "turn off the spigot" just before a citizen brings suit.

Counsel for Appellant
Bruce E. Anderson
400 W. 15th St.
United Bank Tower, 11th Floor, Austin TX 78701
(512) 472-6248

Counsel for Appellee
Kelly Utsinger
Underwood, Wilson, Berry, Stein & Johnson
P.O. Box 9158, Amarillo TX 79105
(806) 376-5613

Before GEE, WILLIAMS, and JOLLY, Circuit Judges.