UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: March 14, 1975.
STREAM POLLUTION CONTROL BOARD OF THE STATE OF INDIANA, PLAINTIFF-APPELLEE, AND ZRKO SEKEREZ, PROPOSED INTERVENOR, PLAINTIFF-APPELLANT,
UNITED STATES STEEL CORPORATION, DEFENDANT-APPELLEE.
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 73 H 190. Allen Sharp, Judge.
Before Stevens, Sprecher and Tone, Circuit Judges.
STEVENS, Circuit Judge. Appellant, a private citizen, asks us to reverse an order denying his motion to intervene in a common law public nuisance action brought by the Stream Pollution Control Board of the State of Indiana against U.S. Steel Corporation. The questions presented are (1) whether the federal district court has jurisdiction of the underlying nonstatutory claim and, if so, (2) whether appellant has a statutory right to intervene pursuant to § 505(b)(1)(B) of the Federal Water Pollution Control Act Amendments of 1972.*fn1
The Board's amended complaint invokes the district court's federal question jurisdiction pursuant to 28 U.S.C. § 1331(a).*fn2 It characterizes this case as "an action to abate pollution of the Grand Calumet River, a navigable stream and tributary of Lake Michigan, a body of interstate water." Specifically, the Board alleges that defendant's industrial plant in Gary, Indiana, has discharged cyanide and ammonia nitrogen into the river in quantities which exceed the limits specified by the Board's regulations.*fn3 In its prayer for relief, the Board asks the federal court to order defendant to abate its pollution of the Grand Calumet River, to enter judgment in the amount of $80,000 (representing penalties authorized by Indiana statute), and to grant "all other proper relief in the premises."
Appellant, a private citizen of Indiana, moved to intervene, alleging that his interests in the waters of Lake Michigan and the environment of the State of Indiana may be adversely affected by these proceedings. He adopted the Board's allegations and, in addition, alleged that defendant was causing oil to accumulate in the river and that its discharges were polluting Lake Michigan.*fn4 He claimed "an unconditional right to intervene" pursuant to § 505(b)(1)(B).
The district court denied the motion to intervene, holding that the nuisance action was not brought to require compliance with an effluent standard or limitation promulgated pursuant to the Federal Water Pollution Control Act Amendments of 1972 (hereinafter "the 1972 Act"), and therefore that § 505(b)(1)(B) of that Act did not grant appellant a right to intervene. The district court also denied U.S. Steel's motion to dismiss, holding that the jurisdictional question was answered by the unanimous opinion of the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91. We affirm.
Before reaching the question whether appellant has a statutory right to intervene we must decide whether the district court has jurisdiction of the underlying claim. For, as defendant argues, if it is apparent from the record that jurisdiction is lacking, we must order the action dismissed.*fn5 Moreover, the jurisdictional question must be answered by reference to the allegations in the amended complaint, unaided by the additional allegations in pleadings submitted in support of the motion to intervene. See Pianta v. H. M. Reich Co., Inc., 77 F.2d 888, 890 (2d Cir. 1935).
The Board's amended complaint, unlike appellant's pleadings, contains no allegation of pollution of Lake Michigan. Nor do the pleadings contain any allegation that the interests of any sovereign, or of the citizens of any state other than Indiana, have been affected by defendant's discharges. The jurisdictional question in this case is therefore not necessarily answered by the holding of the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91.
That case does, however, unequivocally confirm "that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin." Id. at 100. Moreover, that opinion expressly authorizes the federal courts to fashion a federal common law of public nuisance to resolve controversies involving the impairment of the environmental interests of one state by sources outside its domain.*fn6
Of greater relevance to this case are the repeated references to the controlling importance of federal law applicable to the pollution of" interstate or navigable waters."*fn7 Those references may well imply that the federal common law of public nuisance extends to all of our navigable waters, and perhaps to all tributaries of interstate waters. We cannot tell from the Court's opinion, however, whether, apart from statute, the federal interest in navigability would support a nuisance action without any allegation of interference with navigation, or whether the interest in the purity of interstate bodies of water is sufficient to justify nonstatutory federal protection of all tributaries. We need not, however, resolve such questions to decide the precise jurisdictional issue before us.
The question we must decide is not whether the amended complaint states a cause of action for which relief can be granted, but rather whether the complaint raises substantial questions which only a federal court may finally answer. As the Supreme Court held in Bell v. Hood:
Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. * * * The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.
327 U.S. 678, 682-683.
The amended complaint in this case purports to state both a claim under Indiana law and a claim under federal common law. We may assume, as defendant argues, that the attempt to recover statutory penalties for violation of the Board's regulations is not a "civil action" over which the federal court would have independent jurisdiction. Nevertheless, we cannot fairly conclude from the pleading itself that the federal claim is merely colorable and asserted solely for the purpose of conferring jurisdiction on the district court to decide the state law issues. Nor, in view of the broad language used by the Supreme Court in the City of Milwaukee opinion, with particular reference to its emphasis on the federal interest in uniformity in dealing with the pollution of interstate or navigable waters,*fn8 can we characterize the Board's federal claim as "wholly insubstantial and frivolous."*fn9 Surely enough has been alleged to give the district court jurisdiction to decide whether the Board is entitled to some relief as a matter of federal common law.*fn10
The district court correctly assumed jurisdiction of the controversy. Whether it correctly held the amended complaint stated a federal cause of action is a question which is not properly before us on this appeal.
Under 33 U.S.C. § 1365(b)(1)(B), appelant, as a private citizen, is entitled to intervene if, and only if, the underlying action was commenced and is being prosecuted to require compliance with a "standard limitation, or order" within the meaning of the 1972 Act. We hold that an action to abate a nuisance as a matter of federal common law is not such an action and that the motion to intervene was therefore correctly denied.
The term "effluent standard or limitation under this chapter" is defined in subsection (f) to include "an unlawful act under subsection (a) of § 1311 of this title."*fn11 That subsection (i.e., § 1311(a)) provides that:
Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.
Appellant does not argue that defendant has failed to comply with any of the enumerated sections of the Act except the remaining portion of § 1311. The other sections are plainly inapplicable.*fn12 The remainder of § 1311, in brief, provides a timetable for the promulgation of various effluent limitations to become effective, in some cases no later than July 1, 1977, and in others no later than July 1, 1983.*fn13 Appellant argues that defendant could not possibly be in compliance with any such limitation before it has been promulgated; ergo, he argues, before an applicable limitation takes effect, defendant is totally prohibited from discharging any pollutant into the river. Since the amended complaint seeks abatement, he therefore contends that it is an action to require compliance with the 1972 Act.*fn14
On its face, § 1365(f) does not support Sekerez' position. The term "effluent standard or limitation under this chapter" is defined as an unlawful act under subsection (a) of section 1311 of Title 33 only "effective July 1, 1973." See n. 11, supra. The amended complaint herein refers to discharges by the Gary facility on April 12, April 19, April 26, and May 9, 1973, all well before the crucial July 1, 1973, date. Thus, § 1365(f)(1) is not available to Sekerez. As the relevant limitations, standards of performance, prohibitions, certifications, and permits referred to in § 1365(f)(2)-(6) either had not been promulgated as of the dates of the discharges or are not applicable here (see n. 12, supra), the underlying action cannot be one to require compliance with a standard, limitation, or order, the predicate for intervention under § 1365(b)(1)(B).
Even assuming, however, that the amended complaint can be read to refer to discharges continuing beyond July 1, 1973, and therefore into the time period to which § 1365(f)(1) applies, there are at least two reasons why appellant's argument is unacceptable. First, § 1311(a) speaks in terms of compliance with sections of the statute, rather than compliance with an effluent standard or limitation. We think defendant is in compliance with the statute as long as it does not violate any of its provisions. Since its discharges cannot violate any effluent standard or limitation until after such a standard has become effective, defendant's earlier discharges are not prohibited by the Act; defendant is therefore in compliance with the statute.*fn15
Second, appellant's construction of the statute is dramatically at odds with the entire legislative scheme.*fn16 Under appellant's view, the promulgation of an effluent standard would be tantamount to a license to pollute, rather than a required curtailment of an existing industry practice. For, under his view, discharges are totally prohibited until the effluent limitation becomes effective, and thereafter permitted in amounts not exceeding the licensed level. It is manifest that Congress intended to require step-by-step improvement in the quality of discharged effluent,*fn17 rather than a zigzag course with total purity demanded forthwith only to be succeeded by varying stages of impurity.
Judge Sharp's order denying the motion to intervene is AFFIRMED.