ELR Citation: ELR 20142
No(s). CV 82-2228 (E.D.N.Y. Oct 8, 1985)

In a suit brought by the state of New York against the United States and the Secretaries of Defense and the Air Force alleging that defendants contaminated the groundwater under a former Air Force base by leaking jet fuel and other chemicals, the court holds that is has no subject matter jurisdiction under the Federal Tort Claims Act (FTCA), the Rivers and Harbors Act (RHA), the Federal Water Pollution Control Act (FWPCA), and pendent state-law claims, but defendants may be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(a)(4) if the chemicals constitute "hazardous substances" under CERCLA. The court first rules that the fact that plaintiff is seeking the cost of removing the pollutants as a measure of its property damages does not convery it claim for monetary damages into one for equitable relief, precluding suit under the FTCA. The court holds, however, that plaintiff's failure to file suit within six months after written denial of its administrative claim for damages bars its FTCA action. The court next rules that RHA §13 does not expressly authorize suits by states or private parties and that there is no implied private right-of-action.

The court holds that it has no jurisdiction to hear plaintiff's claims based on FWPCA §301. Initially, the court notes that since plaintiff has alleged that pollutants threaten surface waters, it need not reach the issue of whether §301 applies to discharges into groundwater. The court then holds that since FWPCA §313(a) only waives sovereign immunity from liability under state laws that contain administratively predetermined water pollution control standards, plaintiff's allegations of violations of state water quality standards are not actionable under the FWPCA. The "requirements" to which federal facilities are subject under §313 include only effluent limitations, not water quality standards. Therefore, sovereign immunity is waived only for violations of effluent limitations. It is unlikely that Congress intended to waive sovereign immunity and allow citizen suits to enforce water quality standards, a method of enforcement it found inadequate when it issued the 1972 amendments establishing enforcement based on effluent limitations. This conclusion is strengthened by consideration of §505, the citizen suit provision, which the court holds is coextensive with the waiver of sovereign immunity in §313. The court rules that the only state-law requirements enforceable under §505 are those administratively predetermined through the issuance of national pollutant discharge elimination system permits.

The court next holds that plaintiff's claims under CERCLA §07(a)(4) alleging that defendants disposed of jet fuel and other chemicals raises a genuine factual dispute as to whether these pollutants are "hazardous substances" under CERCLA. Although defendants argue that the jet fuel is a petroleum product excluded from the definition of hazardous substances under §101(14), there is a factual dispute over whether certain listed hazardous substances were constituents of other nonpetroleum products and other hazardous substances have been found in the groundwater. Finally, the court holds that it lacks jurisdiction over plaintiff's state-law claims because plaintiff has not shown any waiver of sovereign immunity that would allow these claims. Having already rejected the FTCA and the FWPCA as bases for jurisdiction, the court concludes that CERCLA's waiver of sovereign immunity does not apply to the pendent state-law claims.

Counsel for Plaintiff
Robert Abrams, Attorney General
Norman Spiegel, Nancy Stearns, Ass't Attorneys General
Dep't of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Defendants
Raymond J. Dearie, U.S. Attorney
Thomas Battistoni, Ass't U.S. Attorney
U.S. Cthse., 225 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106