*1 392 Addingtоn v. Farm See presented. al was latitude should be Greater Co., 650 Mutual Insurance than Elevator of a bench trial er’s in the conduct lowed Cir.), denied, (5th 454 663, cert. in a trial conducted F.2d 667 permitted
would be
672,
L.Ed.2d 640
1098,
70
there is no
102 S.Ct.
In the former
U.S.
jury.
awith
do
might
(1981). Cranberg’s Lanham
claims
judge’s
that the
possibility
in
Ruiz,
completely tried
jurors.
679
issues
influence
not involve
improperly
cases,
did not
other
trial. His motion
In certain
F.2d at 1130.
course
greater
proof.
to the
may
pleadings
to assume a
judge
need
seek to conform
trial
substance,
trial.
amendment
proposed
direction of the
responsibility for the
In
his
(complex and
More
Ruiz,
at 1130
cause of action.
679 F.2d
raise a new
See
would
trial).
litigant,
over,
appears fu
pro
proposed
se
amendment
protracted
When
Cranberg, goes
requires
false state
one as skillful
tile as the Lanham
even
product.
mem
party represented
about one’s own
against
trial
ments of fact
Industries,
bar,
trial
responsibility of the
Inc. v. Diet
Bernard Food
ber
See
(7th
1279,
participation
Co.,
which dif
Cir.
415 F.2d
1282-84
judge
warrant
ene
Co.,
appro
471
1969);
Mfg.
would be
markedly from what
Markel v. Scovill
fers
mem.,
repre
1244,
(W.D.N.Y.),
F.Supp.
trial
adversaries
1253
priate to a
between
aff'd
Cir.1979).
(2d
of this trial
The court did
The record
sented
counsel.
V did not abuse its The trial court Cranberg to refusing to allow
discretion against supplemental complaint Con
file a raising-issues under the Lan
sumers Union § 1125(a).The trial Act. 15 U.S.C.
ham grant deny mo has discretion to
court pleadings. Fed.R.Civ.P.
tions to amend the 15(a). supplement Cranberg’s motion to HAMKER, ux, Anita Dale et William days the trial on the filed five after was Hamker, Plaintiffs-Appellants, exercising concluded. merits was v. discretion, may consider trial court delay, prejudice to as undue such factors CHEMICAL DIAMOND SHAMROCK futility of the oppоsing parties and CO., Defendant-Appellee. Davis, v. proposed amendment. Foman No. 84-1278. 182, 178, 371 U.S. Mitchell, (1962); Gregory v. Appeals, L.Ed.2d United States Court Cir.1981). (5th 634 F.2d Fifth Circuit. resulting from de prejudice Undue April to amend is sufficient lay seeking leave Cranberg’s motion. grounds deny the more than 18 came
post trial motion complaint, after original
months after his all evidence
discovery closed and after *2 Williams, Judge,
Jerre S. Circuit con- specially opinion.
curred Anderson, Austin, Tex.,
Bruce E. for plaintiffs-appellants.
Underwood, Wilson, Berry, Stein & John- son, Amarillo, Tex., Kelly Utsinger, de- for fendant-appellee.
Appeal from the United States District for Court the Northern District of Texas. GEE, JOLLY, Before WILLIAMS Judges. Circuit JOLLY, Judge: E. GRADY Circuit plaintiffs-appellants, William and Hamker, Anita filed suit under 33 U.S.C. § 1365(a) of the Federal Water Pollution (the Act) seeking injunction Control Act against Diamond Shamrock Chemical Co. (Diamond Shamrock) and the penalties. They civil appended also several arising claims law state authority of United Mine Workers v. Gibbs, 383 U.S. (1966).
L.Ed.2d 218 The district dis- court missed under Federal Rule Civil Proce- 12b(l) grounds dure for failure to assert subject jurisdiction. matter We affirm. subject the court lacked mat- asserting that I. jurisdiction of the case and ter 1983, pipeline January of owned upon failed to state a claim began to leak into Diamond Shamrock By granted. could be order which relief onto Hamkers’ creek flowed January the district court dated Lipscomb County, Be- Texas. property *3 the defend- stated that it intended to treat leak detected and the flow of fore the was allegations subjeсt ant’s of lack of matter down, weeks, period of about two oil shut jurisdiction as a dismiss under motion to 2,400 petro- of crude approximately barrels 12(b) parties and ordered the Fed.R.Civ.P. discharged into the creek. Dia- leum were according briefs on this issue to a submit employees made an ef- Shamrock’s mond by the court. On Jan- schedule established Hamkers, up spill. The to clean the fort 1984, uary 27, filed its brief the defendant howevеr, allege these efforts were support in of its to Dismiss for Motion inadequate perpetu- resulted in grossly and Subject Lack of Matter Jurisdiction. On alleviating the contamina- ating rather than February plaintiffs filed their the tion. opposition brief in to the motion. That injunction sought an re- The Hamkers grant- day, the court its order same issued to take reason- quiring Diamond Shamrock ing to dismiss. The the defendant’s motion including moni- precautions reasonable able order that it lacked district court’s stated insure viola- .toring pipeline (1) jurisdiction subject matter sec- because: repeated on their the not tion of was only prospective tion relief 1365 authorizes elsewhere, future. property, or the which, by implicit the of the applicability allege corporation operated They that the here; (2) action, lacking the court’s negligently and continues to do pipeline the permit citizen suits for statute They sought also the of civil so. violations, violations; (3) past only current $10,000 day provi- of recovery the does not allow for of statute § 1319(d),and award sions of 33 U.S.C. (4) the does not cre- damages; and statute litigation, including of reasonable of costs implied ate cause action. of expert un- attorney’s fees and witness fees the dismissal. We affirm § 1365(d). provisions 33 U.S.C. dеr the of state causes appended The Hamkers’ law III. by negligence Diamond action based on in the operation maintenance Shamrock does complaint Because the here not failing timely and in take “in allege Diamond is viola Shamrock spill. The up plaintiffs to clean standard, tion” effluent limitation or of an (the sought provides under law state 1365, order, required by as section $40,000 recovery damages) for dam-
no allegations fail to state sufficient Hamkers stream, life in age aquatic to fish and support jurisdiction in this case. The watering for the use the stream loss of Hamkers, must, they their as base federal livestock, and loss of the recrea- of their Act, law claims on tional, commercial, and aesthetic value of permits citizen suits where de $120,000 puni- as property, as well “alleged to is in violation ... fendant damages Diamond Shamrock’s tive an effluent standard or limitation under negligence. gross ... or ... an issued order [the Act] respect Administrator or State with limitation____”
II. such standard or § 1365(a)(1). However, for the United States Dis- rea- was filed U.S.C. Suit below, sons if the Hamkers’ for the Northern District of discussed even trict Court Division, 1, Texas, liberally interpreted alleg- as complaint Amarillo is December ing discharge defend- of oil Diamond On December 1983. continuing negative denying substantially Shamrock with effects filed its answer ant negligent operation allegations further well as continued plaintiffs’ all of the pipeline, satisfy responsibility does the Act lies under with the 1365’s that the defend- states Administrator. Section 1319(b) ant to be “in violation” of an the Administrator to im- authorizes mediately commence a civil action where he any person finds is in ef-
IV. limitation, fluent standard or order. The central role of the language Administrator to some of section 1365 and degree “supplemented by express citi- the structure of the Act us that a convince 1365(a)].” complaint brought provisions zen-suit in ... section 1365 must [section Nevertheless, the time the at occurring a violation plays is filed. We first look Administrator central role in language of apparent section 1365. enforcement of the Act is “[T]here legislative history power orders, need to refer to compliance his to issue *4 clear____ statutory language the displace completely This in enforcing the states insufficient, canon of construction has received consist- the their Act if efforts are to Parte Ex ent adherence in our decisions.” promulgate regulations standards and im- Collett, 337 U.S. 55, 69 S.Ct. 93 Act, plementing the to conduct (1949).1 1207 L.Ed. potential evaluations of or losses that costs might Act, result from enforcеment of the
A.
and even to waive certain standards or
By
ordinary meaning
language
the
limitations
certain
circumstances.
Ass’n
requires
1365
of an
Chemical
v. Natu-
an
Manufacturers
—
Council,
“any
ral Resources
ongoing
may
violation:
com
U.S.
Defense
against any person
-,
1102,
mence
civil
...
action
B. bringing citizens are limited remedy ongoing statutory scheme here also indicates violation. Section 1365(b) alleges any ongoing no forbids that where citizen action under 1365(a) given of an effluent where notice has not been order, Administrator, provides 1365 for no citi- al state and the Primary leged violator, right sixty zen’s оf action. enforcement and in many instances here, not, Collett, not, legislative legislative as in and do We note that base our on decision decision, although history supports we need materials. our 396 provision damages for
days required. is' makes no notice bill provides It the individual. therefore given responsible offi- notice be protect suit other than to incentives to highlights primary their role enforc- cials suing heаlth of those and welfare supplementary ing compared similarly It situated. will be citizen; indeed, and others where the position of the rare,1 per- ordinary, than the rather by diligently respond to the notice officials who, son, suspect, hope I with no against alleged prosecuting an action gain prospect the very real financial violator, bringing the citizen is barred loss, financial will initiate court action Moreover, it rea- separate suit. is most Cong.Rec. under this bill.” requirement that notice sonable read (1970). given alleged to the violator as also be responds violator indication Middlesex, at 2625 n. 27. by bringing himself into com- to the notice interpreted permit- If section 1365 were bring right to pliance, the citizen loses the citizen suits for civil ting 1365(a), just as he loses suit under violations, damage all claims which state right an action where to commеnce pendent jurisdiction brought under could be responds by the state dili- Administrator or forum, litigated in a thus could be federal against the gently prosecuting an action undermining congressional limit intent to Evansville; violator, City but see courts. Since the the burden the district Carey, v. 535 F.2d the Earth
Friends
attorney’s fees
provides
for awards of
Cir.1976).
(2d
*5
expenses, there would be a substantial
and
bring
to
the Act rather
incentive
suit under
Act
summary,
the
is structured to
adopt
interpre-
in state
To
than
court.
authority in the
concentrate enforcement
easily
1365
so
tation of section
which would
states,
supple-
Administrator and the
damage
brought
to be
allow state
actions
mentary power given to citizens under sec-
incen-
federal court with the additional
1365(a).
supplementary power
This
tion
attorney’s fees
undermine the
tive of
would
only
may be exercised
where neither the
design
limit
congressional
polluter
authorities nor the
acts
termi-
plaintiffs
brought
those
ongoing
nate the
violation. Both the cen-
protect
“to
solely by the desire
motivated
of
no-
tral role
the Administrator
the
suing and
health and welfare of those
the
1365(b) support
provisions
tice
of section
n others
similarly situated.”
1365(a)’s
plain meaning
re-
the
of section
quirement
the
that
defendant be
D.
limitation,
be “in
of an effluent
violation”
summarize,
mеaning of
ordinary
the
To
or
standard
statute,
the statute’s
the words
in-
prior Supreme
its
Court
structure and
C.
that
1365 does
terpretation indicate
Supreme
The
has stated that one
Court
seeking either
not authorize citizen suits
primary congressional purposes
of
be-
injunctive
relief or
of civil
limiting
preclude
hind
citizen suits was
is not al-
where the defendant
possibility that section 1365 suits would
effluent stan-
leged to be in violation
place
burdеn
the federal
an undue
on
dard,
The
“au-
limitation or order.
The
courts.
may burden the courts would V. provision argue that the citizen suit of S. A. carefully pre- has drafted to been arising. complaint here that consequence this The fails to vent all, of an effluent should noted that the First it defendant order; accordingly, This court has specifically rejected expansive affirm the district court’s dismissal of “point we definition of source.” appropriate for failure to state the action merely require Plaintiff would a show- Liberally grounds jurisdiction. inter- ing original pollu- sources alleges preted, complaint that thе dis- statutory source, tion point to find a re- charged leaking ground into oil is water gardless pollutant of how the found its damage grasslands, lasting left and has way original from that source to the that Diamond Shamrock’s waterway. According argument, to this operated negligently leaked the oil be- drainage the broad carrying of rainwater company inspect cause the did not at least oily pollutants paralleling from а road manner, in a this it reasonable waterway, pollutants or animal from a however, negligence persists; none of grazing contiguous field to the water- allegations satisfy is sufficient these way, would violate the Act. Whether or section 1365 that the defend- prohibit pollu- the law should such alleged to ant be be in violation of an tion, this Act does not. The focus of this standard, limitation, or order. “discernible, confined and correctly court therefore district dismissed conveyance discrete” pollutant, complaint. which would exclude natural rainfall allegation The Hamkers’ ef- residual drainage over a broad area. groundwater fects of the leak threaten Co., Sierra Club v. Abston Const. 620 F.2d grassland does not amount to an (5th Cir.1980). Diamond Shamrock is violation of complaint alleges constituting facts 1311(a) Act. prohib- Section the Act only' “dischargе” one of oil from the de- discharges pollutants all unlicensed pipe; fendant’s does not al- navigable waterways into and section lege continuing discharge point from a 1321(b)(3)similarly discharges restricts source. Mere residual effects substances; oil and hazardous neverthe- resulting discharge equiva- from a are not less, construed, even liberally *6 continuing lent to a discharge. alleges only single past discharge effects, continuing a continuing not dis- However,,
charge. complaint even if the is allege continuing construed to seepage B. groundwater now-dispersed into Neither the Hamkers’ assertion oil, leaked we say cannot this to a amounts that Diamond negligently Shamrock has continuing violation of section 1311because operated pipeline its nor their assertion prohibits only “discharges section corporation operate continues to pollutant,” any which turn are defined in pipeline negligently amounts to an alle 1362(12) “any section any to addition of gation presently that the defendant is vio navigable pollutant waters, to any from lating standard, an effluent limitation point “point source.” A source” is a “dis- The impose negli Act does not cernible, confined and conveyance, discrete rather, standard; gence gives it the Admin including pipe____” but not to any limited and right promul § istrator the states the to 1362(14). 33 U.S.C. continuing No addi- gate implementation standards for the ground to tion point water from a objectives by the Act’s within limits set alleged, is alleged source nor could it be Act. Unless a violation of a standard or under the facts set complaint. forth this Rather, limitation set forth in the Act or violation complaint alleges, necessarily, of an promul administrative оrder or rule only that there are effects past gated authority discharge, allegation of the Act is such alleged, is purposes may insufficient for the no suit under section 1365 section brought; 1365. empowered by the courts are not own set of en- not to their and was the Act establish not is ment that not an is maintained reasonably forcement standards.2 is in violation defendant give Admin- Act is to structured or order. regulations power promulgate to istrator purposes; if the Administra- effectuate C. regulation im- promulgate
tor chooses pipe- posing obligation to monitor their reasons, the foregoing to the addition pipe- operators of oil owners or lines on because properly dismissed lines, expressly to authorize seems which, proved, facts if it fails to such action: relief. While prospective would warrant required carry оut the Whenever by the Act “allows suits under section 1365 chapter,____ objective this only pro- citizens, authorizes private ... [it] require shall Administrator (A) the relief____” at spective point operator any owner or complaint seeks The Hamkers’ install, use and main- (iii) source to ... injunction ordering Dia- imposition of an monitoring equipment or such tain pipeline non- operate its mond Shamrock (including appropriate, methоds above, However, discussed as negligently. methods), monitoring ... biological negligence stan- impose a the Act as provide such other information (v) dard; is only the Act violation of which reasonably require— may he single discharge for is a here § added). (emphasis U.S.C. possible. The prospective relief is no which strenuously that our Hamkers assert imposi- also seeks the Hamkers’ 1365’s “in viola- interpretation of section $10,000 pеr day of penalties of tion of civil the Act tion” will undermine 1319(d) 1365(a). violation under section polluters spig- by allowing “turn off the 1365(a) section authorizes It clear that suit, brings only ot” whenever a penalties civil under argument This polluting continue later on. “Un- 1319(d) by the a citizen suit: court fails take into account the Administra- penalties, payable to [Act], civil der the ... nondiscretionary promulgate duty to tor’s Government, also be ordered rеgulations adequate § 1365(a).” Mid- U.S.C. the court ... 33 1316(b)(1)(B). express opinion as to We However, sec- dlesex 2623 n. 25. since required whether the Administrator 1365(a) authorizes civil tion 1316(b)(1)(B)or some other section relief, may prospective the Hamkers promulgate regulations Act to one impose penalties for the sue to civil require moni- would Diamond Shamrock to *7 alleged here. violation operate it non- pipeline tor its or otherwise negligently; the Hamkers have not VI. brought against suit the Administrator nor they alleged Diamond Shamrock to be have summary, allege In fails any regulation in current violation that the defendant in violation of pipeline. negligently operating its limitation, or Not standard allegation of a from Diamond leak do not Because the Hamkers pipeline, Shamrock’s nor effects any promulgated regulation under groundwater, оperation negligent nor requires monitoring or non- reasonable negligent operation pipeline, of a constitutes an be- present discharge cause there viola- the defendant is in violation of an effluent complaint’s tion of section aver- limitation, are standard or order. Neither 2. ministratively "Authority granted bring S.R. to citizens to enforce- Act." No. 92-414 (Oct. 28, 1971). this section is limited to ment actions under or established ad- еffluent standards limitations which, proved, allegations presented if war- any relief, of prospective Wayne BOUDWIN,
rant form Plaintiff-Appellant, type only of relief authorized v. Accordingly, 1365. COMPANY, GRAYSTONE INSURANCE requirements of meet the section 1365 LTD., al., Defendants-Appellees. et allege grounds jurisdiction. so fails to We therefore affirm district court’s No. 84-3836. complaint. of the dismissal Summary Calendar.
AFFIRMED. of Appeals, United States Court
Fifth Circuit. WILLIAMS, Judge, JERRE S. Circuit April specially concurring: opinion of my Jolly brother carries my I full concurrence. wish add by way
one of emphasis. observation
allegation in upon only this case is based pollution.
single event of I concur with the
interpretation of the such sin- Court that
gle not statutory event does meet the re-
quirement polluter being “in violation purposes
...” for of a citizen suit. emphasize
I write to applica- narrow
bility holding Appel- Court. urge
lants interpretation demanding
statute a current violation polluter standards would enable a spigot”
“turn off the whenever a citizen
brings likely suit. The much more situa-
tion would be episodic that of chronic happened
violator who to be precise brought time the citizen suit special polluting care then avoids pends. urge
while the suit I would that the polluter “in viola- clearly
tion” enough is broad to cover the episodic
chronic violator the violator who
intentionally spigot” “turns off the just brings
before suit. either circumstances,
these the statute should
surely interpreted cover such viola- being
tions as current. Such circumstanc-
es case, are not at all the same as this Iso emphasize
wish to under the statute the single
difference between a event and of polluting course conduct conti-
nuity happens to be broken at the time pursued. made and situation,
the latter polluter is “in viola-
tion”.