IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11229
D.E. RICE, Trustee for the Rice
Family Living Trust; KAREN RICE,
Trustee for the Rice Family
Living Trust,
Plaintiffs-Appellants,
versus
HARKEN EXPLORATION COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
April 25, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART,
Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants D.E. and Karen Rice
(the Rices) filed this suit against defendant-appellee Harken Exploration
Company (Harken) alleging that Harken discharged oil into or upon "navigable
waters" in violation of the Oil Pollution Act of 1990, 33 U.S.C. §§
2701-2720 (OPA), and also asserting several related state law claims. Harken
moved for summary judgment on all claims and the district court granted
its motion in part, on the ground that under the court's interpretation
of the OPA and the facts alleged plaintiffs could not sustain a cause of
action under the OPA. In the same order the district court declined to
exercise supplemental jurisdiction over the plaintiffs' state law claims
and remanded those claims to state court. The Rices now appeal the district
court's grant of summary judgment, and request that their OPA claim be
remanded for trial. We affirm.
Facts and Proceedings Below
Plaintiffs D.E. Rice and Karen Rice are trustees
for the Rice Family Living Trust. The trust owns the surface rights to
the property known as Big Creek Ranch in Hutchinson County, Texas. Harken
Exploration Company is a Delaware corporation with its principal place
of business in Irving, Texas. The Rice Family Living Trust purchased Big
Creek Ranch for $255,000 in 1995.
Harken owns and operates oil and gas properties
pursuant to leases on Big Creek Ranch. Under these leases, Harken maintains
various structures and equipment on the property for use in exploration
and pumping, processing, transporting, and drilling for oil. Harken began
its operations on Big Creek Ranch in January 1996. Prior to Harken's operations,
the Big Creek Ranch property had been used for oil and gas production for
several decades.
Big Creek is a small seasonal creek on the
Rices' property. Big Creek runs across the ranch to the Canadian River,
which is the southern boundary of Big Creek Ranch. The Canadian River is
down gradient from Harken's oil and gas flow lines, tank batteries, and
other production equipment. The Canadian River flows into the Arkansas
River, which flows into the Mississippi River, which empties into the Gulf
of Mexico. While the exact nature of Big Creek is unclear from the record,
Harken does not dispute that the Canadian River is legally a "navigable
water."
The Rices allege that Harken has discharged
and continues to discharge hydrocarbons, produced brine, and other pollutants
onto Big Creek Ranch and into "Big Creek," "unnamed tributaries of Big
Creek" and other "independent ground and surface waters." They claim that
Harken has contaminated or threatened 9,265.24 acre feet of groundwater
and over ninety noncontiguous surface areas of the ranch. The plaintiffs
do not allege that there has been any major event or events resulting in
the discharge of oil onto Big Creek Ranch. Rather, the Rices allege that
Harken damaged their land as a result of a series of smaller discharges
that occurred over a considerable period of time. They allege that the
cost to remediate the contamination of the soil and groundwater is $38,537,500.
Harken admits that there have been instances
in which oil or produced brine was spilled or leaked from their tanks and
other oil production equipment. Harken claims, however, that these discharges
were of the sort that inevitably accompany any oil production operation
and that in any case none of the discharges ever threatened "navigable
waters" within the meaning of the OPA.
Harken moved for summary judgment in the district
court, claiming, inter alia, that the OPA was not intended to cover
spills of oil onto dry land that occurred hundreds of miles from any coast
or shoreline. The district court essentially agreed, and held that the
Rices could not sustain a cause of action under the OPA on the facts shown.
The district court dismissed the Rices' related state law claims without
prejudice. This appeal followed.
Discussion
We review an order granting summary judgment
de novo. Hernandez v. Reno, 91 F.3d 776, 779 (5th
Cir. 1996). Summary judgment is proper if "there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as
a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate
in this case if the Rices have failed to produce summary judgment evidence
of facts which, if viewed in the reasonable light most favorable to the
Rices, do not suffice to establish a viable OPA claim. Where, as here,
a proper motion for summary judgment has been made, the non-movant, in
order to avoid summary judgment, must come forward with appropriate summary
judgment evidence sufficient to sustain a finding in its favor on all issues
on which it would bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir. 1994). On all material matters at issue here the
Rices would bear the burden of proof at trial.
The OPA was enacted in 1990 in response to
the Exxon Valdez oil spill in Prince William Sound, Alaska, and was intended
to streamline federal law so as to provide quick and efficient cleanup
of oil spills, compensate victims of such spills, and internalize the costs
of spills within the petroleum industry. Senate Report No. 104-94, reprinted
in 1990 U.S.C.C.A.N. 722, 723. The OPA imposes strict liability on
parties responsible for the discharge of oil: "[E]ach responsible party
for ... a facility from which oil is discharged, or which poses the substantial
threat of a discharge of oil, into or upon the navigable waters or adjoining
shorelines ... is liable for the removal costs and damages specified in
subsection (b) that result from such incident."(1)
33 U.S.C. § 2702(a). The OPA thus concerns facilities which discharge
(or pose a substantial threat to discharge) oil "into or upon . . . navigable
waters," and liability under the OPA is therefore governed by the impact
of such a discharge on "navigable waters." The OPA and its related regulations
define navigable waters to mean "the waters of the United States, including
the territorial sea." 33 U.S.C. § 2701(21); 15 C.F.R. § 990.30.
The scope of the OPA is an issue of first impression for this Court.
The Rices argue that the district court's
interpretation of the term "navigable waters" in the OPA was erroneous.
They claim the court erred by refusing to apply the OPA to inland areas.(2)
Since Congress used the same language in both the OPA and the Clean Water
Act,(3) the Rices argue, the scope of both
Acts should be similar and the OPA should apply to discharges into "waters
of the United States" regardless of the distance of those waters from an
ocean or similar body of water. The Rices also argue that the district
court improperly excluded groundwater from "waters of the United States."
Congress, the Rices claim, intended to extend its regulatory power to all
waters that could affect interstate commerce when it enacted the OPA. Accordingly,
the Rices would have this Court construe the OPA as imposing liability
on facilities that discharge oil and related wastes into groundwater (or
any other body of water) that affects interstate commerce. The Rices argue
that under the proper interpretation of "navigable waters" they have a
viable OPA claim since the groundwater under the ranch and the surface
waters on the ranch have been impacted by Harken's discharges of oil. The
Rices request that we remand this case to the district court for trial.
Although there have been few cases construing
the OPA definition of "navigable waters," there is a substantial body of
law interpreting that term as used in the Clean Water Act, 33 U.S.C. §
1251 et seq. (CWA). The CWA is also limited to "navigable waters,"
which is defined in both statutes as "waters of the United States." Compare
33 U.S.C. § 2701(21) with 33 U.S.C. § 1362(7). The House
Conference Report on the OPA reads: "The terms 'navigable waters,' 'person,'
and 'territorial seas' are re-stated verbatim from section 502 of the [CWA].
... In each case, these [CWA] definitions shall have the same meaning in
this legislation as they do under the [CWA] and shall be interpreted accordingly."
House Conference Report No. 101-653,
reprinted in 1990 U.S.C.C.A.N.
779, 779-80. The Senate Report is similar, and adds that the OPA is intended
to cover inland waters as well: "The [OPA] covers all the bodies of water
and resources covered by section 311 [of the CWA], including the inland
waters of the United States...." Senate Report No. 101-94, reprinted
in 1990 U.S.C.C.A.N. 722, 733.
The legislative history of the OPA and the
textually identical definitions of "navigable waters" in the OPA and the
CWA strongly indicate that Congress generally intended the term "navigable
waters" to have the same meaning in both the OPA and the CWA. Accordingly,
the existing case law interpreting the CWA is a significant aid in our
present task of interpreting the OPA.
The Supreme Court has endorsed an interpretation
of "navigable waters" as used in the CWA under which waters and wetlands
need not always actually be navigable in fact to be protected under that
Act. See United States v. Riverside Bayview Homes, 474 U.S. 121,
133, 106 S.Ct. 462-63 (1985) (upholding regulations that CWA restricts
discharges into non-navigable "wetlands" adjacent to an open body of navigable
water).(4) We have adopted a similarly broad
interpretation of the language of the CWA. See Avoyelles Sportsman's
League v. Marsh, 715 F.2d 897 (5th Cir. 1983). Other courts
have also adopted expansive interpretations of "navigable waters" under
the CWA. See, e.g., Quivira Mining Co. v. EPA, 765 F.2d 126,
130 (10th Cir. 1985), cert. denied, 474 U.S. 1055 (1986)(holding
that non-navigable creeks and arroyos are covered by the CWA where intense
rainfall could create surface connections with navigable streams); United
States v. Ashland Oil and Transp. Co., 504 F.2d 1317, 1329 (6th
Cir. 1974) (holding that the CWA prohibited discharges into a non-navigable
tributary three waterways removed from a navigable stream).
However, more recently, the Supreme Court
has limited the scope of the CWA. In Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers, 121 S.Ct. 675
(2001), the Court held that an Army Corps of Engineers regulation defining
"waters of the United States" to include "waters such as intrastate lakes,
rivers, streams (including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation, or destruction of which could affect interstate
or foreign commerce" exceeded the scope of the Corps' regulatory power
under the CWA as applied to the petitioner's land under a regulation known
as the "Migratory Bird Rule." See id. at 678 (quoting 33 C.F.R.
§ 328.3(a)(3)). The "Migratory Bird Rule" states that the CWA covers
any intrastate water which could be used by migrating birds that cross
state lines or which could be used to irrigate crops sold in interstate
commerce. See 51 Fed. Reg. 41217. The case involved several ponds
that had formed in pits that were originally part of a sand and gravel
mining operation. Solid Waste Agency, 121 S. Ct. at 678. The Court
refused to interpret the CWA as extending the EPA's regulatory power to
the limits of the Commerce Clause, and held that the application of the
CWA to the petitioner's land exceeded the authority granted to the Corps
under the CWA. Id. at 684. The Court distinguished Riverside
Bayview Homes on the ground that in that case the wetlands in question
were adjacent to a body of open water that was actually navigable: "We
said in Riverside Bayview Homes that the word 'navigable' in the
statute was of 'limited effect' and went on to hold that § 404(a)
extended to nonnavigable wetlands adjacent to open waters. But it is one
thing to give a word a limited meaning and quite another to give it no
effect whatever." Id. at 682-83. Under Solid Waste Agency,
it appears that a body of water is subject to regulation under the CWA
if the body of water is actually navigable or is adjacent to an open body
of navigable water. See id. at 680 ("In order to rule for respondents
here, we would have to hold that the jurisdiction of the Corps extends
to ponds that are not adjacent to open water. But we conclude that
the text of the statute will not allow this.")
Nevertheless, under this standard the term
"navigable waters" is not limited to oceans and other very large bodies
of water. If the OPA and CWA have identical regulatory scope, the district
court's conclusion that the OPA cannot apply to any inland waters
was erroneous. However, the district court's reluctance to apply an Act
targeted at disasters like the Exxon Valdez oil spill to Harken's dry land
operations in the Texas Panhandle is certainly understandable. Under any
definition of "navigable waters" there still must be a discharge of oil
into a protected body of water for liability under either statute to attach.
The Rices point to two categories of waters
which, they argue, are protected under the OPA. They claim that Harken
has discharged oil into Big Creek and other surface waters on the ranch,
and also into the groundwater underneath the ranch. The OPA provides the
Rices with a remedy only if they can demonstrate that Harken has discharged
oil into any waters that are protected by the OPA. We address groundwater
and surface water in turn.
Groundwater
The Rices urge this Court to apply the CWA
definition of "navigable waters" to the OPA. But, even that definition
is not so expansive as to include groundwater within the class of waters
protected by the CWA. The law in this Circuit is clear that ground waters
are not protected waters under the CWA.(5)
Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th Cir. 1977).
In
Exxon, we held that the legislative history of the CWA belied
any intent to impose direct federal control over any phase of pollution
of subsurface waters. Id.(6)
The Rices seek to avoid a similar construction
of the OPA by arguing that in enacting the OPA Congress intended to exert
its power under the Commerce Clause to the fullest possible degree, and
that therefore groundwater, if it affects interstate commerce, should be
protected under the Act. But, the Rices do not point to any portion of
the Act itself or to any part of the legislative history of the Act to
justify their claim that Congress intended to depart from its decision
not to regulate groundwater under the CWA. The Rices' theory would extend
coverage under the OPA to waters that we have explicitly held are not covered
by the CWA. Exxon, 554 F.2d at 1322. The Rices have presented us
with no reason to construe the term "waters of the United States" more
expansively in the OPA than in the CWA. We hold that subsurface waters
are not "waters of the United States" under the OPA. Accordingly, the Rices
have no cause of action under the OPA for discharges of oil that contaminate
the groundwater under Big Creek Ranch.
Surface Water
The Rices do not confine their claims to groundwater
contamination. They also allege that the Canadian River, Big Creek, and
other surface waters on the ranch are directly threatened by Harken's discharges
into the groundwater under Big Creek Ranch. There is substantial evidence
of a variety of leaks and minor discharges from Harken's equipment onto
the soil surrounding its Big Creek Ranch facilities. It appears from our
review of the record that Harken's various discharges were all onto dry
land. There is no evidence in the record of any discharge of oil directly
into any body of surface water. Instead, the Rices appear to claim that
Harken's discharges have seeped through the ground into groundwater which
has, in turn, contaminated several bodies of surface water.
There is arguably some evidence in the record
that some naturally occurring surface waters on Big Creek Ranch have actually
been contaminated with oil. John Drake, the Rices' expert geologist, prepared
a preliminary report on water contamination on Big Creek Ranch and was
deposed by Harken. Although the report mentions surface waters, Drake's
report focuses almost entirely on the impact of Harken's oil production
activities on the soil and on the groundwater under Big Creek Ranch. Drake's
report does state that several surface water samples were taken in which
petroleum hydrocarbons were found.(7) But,
the presence of oil does not grant jurisdiction under the Act. Instead,
a body of water is protected under the Act only if it is actually navigable
or is adjacent to an open body of navigable water.
The bodies of water the Rices seek to protect
are consistently referred to in the record as intermittent streams which
only infrequently contain running water. There is no detailed or comprehensive
description of any of these seasonal creeks available in the record. There
is also very little evidence of the nature of Big Creek itself. It is described
several times in various depositions as a "seasonal creek" that often has
no running water at all. And, apparently, some of the time that water does
flow in it, all the water is underground. There is no detailed information
about how often the creek runs, about how much water flows through it when
it runs, or about whether the creek ever flows directly (above ground)
into the Canadian River. In short, there is nothing in the record that
could convince a reasonable trier of fact that either Big Creek or any
of the unnamed other intermittent creeks on the ranch are sufficiently
linked to an open body of navigable water as to qualify for protection
under the OPA. And, as noted, there is no evidence of any oil discharge
directly into Big Creek or any other intermittent creek containing above
ground water on the ranch; only that there were oil discharges into the
ground, some part of which may have, over some undetermined period of time,
seeped through the ground into ground water and thence into Big Creek or
other intermittent creek (either as an underground or surface body of water).
Although Big Creek and the other intermittent
streams located on the ranch do not qualify as "navigable waters," the
Rices also allege that the Canadian River is directly threatened by Harken's
discharges of oil. The parties agree that the Canadian River is a "navigable
water" within the meaning of the OPA. The river is allegedly threatened
with contamination by Harken's operations through subsurface flow from
the contaminated groundwater under the ranch into the river.
This Court has not yet decided whether discharges
into groundwater that migrate into protected surface waters are covered
under either the CWA or the OPA. In Exxon, we held that the text
and legislative history of the CWA "belie[d] an intention to impose direct
federal control over any phase of pollution of subsurface waters." Exxon,
554 F.2d at 1322. But, in that case the EPA did not argue that the pollutants
at issue would migrate from ground water into surface waters and we expressed
"no opinion on what the result would be if that were the state of facts."
Id. at 1312 n. 1. We have therefore not yet addressed whether discharges
into groundwater may be actionable under the CWA or OPA if those discharges
result in the contamination of some body of protected surface water.
So far as here relevant, the "discharges"
for which the OPA imposes liability are those "into or upon the navigable
waters." As noted, "navigable waters" do not include groundwater. It would
be an unwarranted expansion of the OPA to conclude that a discharge onto
dry land, some of which eventually reaches groundwater and some of the
latter of which still later may reach navigable waters, all by gradual,
natural seepage, is the equivalent of a "discharge" "into or upon the navigable
waters."(8)
In Exxon, we noted that Congress was
aware that there was a connection between ground and surface waters but
nonetheless decided to leave groundwater unregulated by the CWA. Exxon,
554 F.2d at 1325. The issue in Exxon was whether the EPA, as an
incident to its power under the CWA to issue permits authorizing the discharge
of pollutants into protected surface waters,(9)
had the authority to place conditions in such permits that regulated the
disposal of pollutants into deep wells. We concluded that EPA did not have
that authority, basing that holding on our reading of the statute as well
as a detailed examination of the legislative history of the CWA, which
we held "demonstrat[ed] conclusively that Congress believed it was not
granting the [EPA] any power to control disposals into groundwater." Id.
at 1329.
In light of Congress's decision not to regulate
ground waters under the CWA/OPA, we are reluctant to construe the OPA in
such a way as to apply to discharges onto land, with seepage into groundwater,
that have only an indirect, remote, and attenuated connection with an identifiable
body of "navigable waters." We must construe the OPA in such a way as to
respect Congress's decision to leave the regulation of groundwater to the
States. Accordingly, we hold that a generalized assertion that covered
surface waters will eventually be affected by remote, gradual, natural
seepage from the contaminated groundwater is insufficient to establish
liability under the OPA. In this connection, we also note that such a construction
is entirely consistent with the occasion which prompted the Act's passage.
The Rices have offered significant evidence
that the groundwater under Big Creek Ranch has been contaminated by oil
discharges onto the surface of ranch land. But, the only evidence the Rices
have produced of the hydrological connection between this groundwater and
the Canadian River is a general assertion by their expert that the Canadian
River is down gradient from Big Creek Ranch. Drake's report briefly mentions
a hydrological connection between the groundwater and the Canadian River,
but there is nothing in the report or in Drake's deposition to indicate
the level of threat to, or any actual oil contamination in, the Canadian
River. There is no discussion of flow rates into the river, and no estimate
of when or to what extent the contaminants in the groundwater will affect
the Canadian River. There is also no evidence of any present or past contamination
of the Canadian River. The only evidence in the record that any protected
body of water is threatened by Harken's activities is Drake's general assertion
that eventually the groundwater under the ranch will enter the Canadian
river. The ground water under Big Creek Ranch is, as a matter of law, not
protected by the OPA. And, the Rices have failed to produce evidence of
a close, direct and proximate link between Harken's discharges of oil and
any resulting actual, identifiable oil contamination of a particular body
of natural surface water that satisfies the jurisdictional requirements
of the OPA. Summary judgment for Harken was appropriate.
Conclusion
For the foregoing reasons, the judgment of
the district court is
AFFIRMED.
1. Removal costs incurred
by an injured party are only recoverable by a private party if they are
consistent with the National Contingency Plan. 33 U.S.C. § 2702(b)(1)(B).
The "National Contingency Plan" refers to the responsibility of the President
of the United States under 33 U.S.C. § 1321 (c) and (d) to publish
a national plan for the removal of oil and hazardous substances from the
waters of the United States where "a discharge, or a substantial threat
of a discharge, of oil or a hazardous substance from a vessel, offshore
facility, or onshore facility is of such a size or character as to be a
substantial threat to the public health or welfare of the United States
(including but not limited to fish, shellfish, wildlife, other natural
resources, and the public and private beaches and shorelines of the United
States...." 33 U.S.C. § 1321(c)(2)(A). The purpose of the Plan is
to "provide for efficient, coordinated, and effective action to minimize
damage from oil and hazardous substance discharges...." Id. at §
1321(d)(2). Because of our resolution of this case, we do not reach the
question of whether the Rices' proposed remediation is consistent with
the National Contingency Plan.
2. The district court appears
to have construed the OPA as applying only to coastal or marine oil spills:
"The Panhandle of Texas is hundreds of miles from costal waters or ocean
beaches. Discharges of oil and salt water onto land in the Panhandle of
Texas are not the type of oil and waste-water spills targeted by the OPA.
...Plaintiffs have no Oil Pollution Act cause of action under the facts
of this case." Rice v. Harken Exploration Co., 89 F.Supp.2d 820,
827 (N.D. Tex. 1999).
3. 33 U.S.C. § 1251
et seq.
4. "Wetlands" as used in
Riverside Bayview Homes referred to those areas described as "wetlands"
in the Army Corps of Engineers regulations, 33 C.F.R. § 323.2 (1985).
Riverside Bayview Homes, 106 S.Ct. at 458. The current Corps regulations,
33 C.F.R. § 328.3(b) (2000), contain essentially the same definition,
viz:
"(b) The term wetlands means those
areas that are inundated or saturated by surface or ground water at a frequency
and duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life in saturated
soil conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas."
There is no evidence nor any claim that any
"wetlands" are involved in this case.
5. The Seventh Circuit
has reached a similar conclusion. Village of Oconomowoc Lake v. Dayton
Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).
6. We based our rejection
of the EPA's claim that the CWA granted it authority over discharges into
deep water wells on clear evidence that congressional intent was to the
contrary:
"...the congressional plan was to leave control
over subsurface pollution to the states until further studies, provided
for in the Act, determined the extent of the problem and possible methods
for dealing with it. In our view, the evidence is so strong that Congress
did not mean to substitute federal authority over groundwaters for state
authority that the Administrator's construction, although not unreasonable
on its face, must give way because 'it is contrary to congressional intentions.'"
Exxon, 554 F.2d at 1322 (quoting EPA
v. State Water Res. Control Bd., 426 U.S. 200, 227 (1976)).
7. Drake's report states:
"In order to more accurately characterize
the site, surface water where present was sampled and analyzed using standard
EPA protocol. In all thirteen (13) surface water samples were collected
from various surface locations across the site. These samples consisted
of four (4) spring, five (5) stock pond, one (1) stormwater, and three
(3) stream locations. Several of the surface water samples showed impact
by hydrocarbons...."
This statement appears to be consistent with
a table, attached to the Rices' motion opposing summary judgment, that
summarizes the water samples taken on Big Creek Ranch, although the information
provided in that table is somewhat cryptic. It is unclear from the report
exactly which samples were taken from naturally occurring surface waters
and which were taken from excavated trenches or wells. We are also unsure
from the record of the level of impact hydrocarbons have had on the surface
waters described in the report.
8. The Seventh Circuit
has also concluded that the CWA does not assert authority over ground water
simply because those waters may be hydrologically connected to protected
surface waters. Village of Oconomowoc Lake, 24 F.3d at 965. In Kelly
v. United States, 618 F. Supp. 1103 (W.D. Mich. 1985), the court held
that a CWA claim was not stated by a complaint which alleged "that the
pollutants released into the ground at the Air Station not only contaminated
the ground water, but are naturally discharging into the Grand Traverse
Bay-an undisputed navigable body of water." Id. at 1106. In so holding
the court relied on our opinion in Exxon as well as its own similar
reading of the CWA legislative history. Expressly addressing footnote 1
of our Exxon opinion the court stated (618 F. Supp. at 1106-07):
"The Fifth Circuit did not concede that discharges
into the soil will be subject to the regulatory provisions of CWA if the
groundwater contaminated thereby eventually migrates into navigable waters.
On the contrary, it specifically 'express[ed] no opinion on what the result
would be [under the CWA] if that were the state of facts.' Exxon,
554 F.2d at 1312 n.1. Moreover, the remainder of the Exxon opinion
and the unmistakably clear legislative history both demonstrate that Congress
did not intend the Clean Water Act to extend federal regulatory and enforcement
authority over groundwater contamination. Rather, such authority was to
be left to the states."
Kelly and Exxon are both relied
on in this respect by Village of Oconomuwoc Lake. Village of
Oconomuwoc Lake, 24 F.3d at 965.
9. See 33 U.S.C.
§ 1344(a). |