# Petition for Writ of Certiorari — McGowan v. Department of Environmental Quality of Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 822

## Text

Mathews v. Eldridge, 424 U.S. 319,335
(1976).

6 td.

LA Brock v. Roadway Express, Inc.,

107 S. Ct. 1740 (1987).

37

government's interpretation of its regula-
tions. This interpretation prevents
McGowan from producing oil and gas from
his mineral estate because he can not
produce oil without spilling oil and salt-
water on his lease during workovers.
(Supra at p.7). The enforcement of the
State's regulations as interpreted amounts
to a taking of his mineral estate without
compensation.

McGowan meets this Court's guidelines

and criteria for a taking in Pennsylvania

Coal® Hodel ? Nollan 10 and First English

8 Pennsylvania Coal Co. v. Mahon,
4200 U.S. 393 tl$972).

« wer

. October 16, 1987, “Motion and Memorandum

to Strike Supplemental Evidence. 310

. January jie 1987, Memorandum in

Opposition of Appellee's Motion to
Strike timely filed. . ae

. October 12, 1988, Judgment ‘of Court of

Appeals... 320
Petition for Rehearing filed by
Department of Environmental Quality

COBCEOE 10s s « w& * « Baa

November 10, 1988, Memorandum in
Support of Petition for Rehearing filed
on behalf of John W. McGowan .. 340

November 30, 1988, Court of Appeals
denied rehearing ..... .. 344

App. 141
APPENDIX M

In the Matter of John W. McGowan
No. 89-C-0012.

Supreme Court of Louisiana.
Feb. 17, 1989.

In re McGowan, John W.; - Plaintiff(s);
applying for writ of certiorari and/or
review; to the Court of Appeal, First
Circuit, No. CA87 0677; Department of

Environmental Quality, No. 2-86-0093.

Prior report: La.App., 533 So.2d. 999.

Denied. The result is correct.

App. 142
APPENDIX N
SELECTED REFERENCES FROM AGENCY HEARING
AND PLEADINGS
MR. MANUEL:
"...I write field notes and send them

in to Baton Rouge."
Transcript p. 172 lines 27-28

MR. MANUEL:
"If someone lodges a complaint I
investigate and write it on the complaint

form and send it in.”
Transcript p. 175 lines 12-13

MR. BOLAND:

"How does the operator know whether he
has broken the law or not? ‘i
MR. MANUEL:

"The water pollution regs, I'm sure,
state a quantity.”
MR. BOLAND"

"Where?"

MR. MANUEL:

"GE @Lit”

App. 143

MR. BOLAND:

"Water, salt water."
MR. MANUEL:

"Salt water. I'm not aware of that."
MR. BOLAND:

"No regulations.”
MR. MANUEL:

"I'm not aware of the quantity."
Transcript p. 175 lines 14-23

MR. MANUEL:
",..I just told you I wrote up all
complaints and sent them in to the

office."
Transcript p. 176 lines 14-15

MR. MANUEL:
"I am not in the enforcement section,
I do not make those decisions. I write up
my complaints and sent them in."
Transcript p. 177 lines 22-24
HEARING OFFICER:
"Mr. Boland, we're not here to

determine whether oil operators have a

App. 144
difficult time understanding the rules and
regulations. We're here, as I appreciate
it, to determine whether or not any oil or
salt water, in this case, was, in fact,
released. I don't think your questions
are relevant, but I'm not going to stop

you from asking them. You may proceed."
Transcript p. 178, lines 7-13

MR. FANNERLY:

"A ‘pollutant,’ as near as I recall, is
any substance which alters the chemical,
physical, biological, or radiological

integrity of the environment."
Transcript p. 229 lines 27-30

MR. BOLAND:

"Is control of the substance a factor?”
MR. FANNERLY:

"TI would say so, sir. If substance is
controlled, it's not discharged."

MR. BOLAND:

App. 145
“With regard to notification under
9.3.6, you said, ‘impairment of designated

uses," is that correct?”
MR. FANNERLY:

"I'm not sure of the number of it, but
I do recall talking about that."

MR. BOLAND:

"Isn't it also part of that definition,
that it is ‘significant impairment of
designated uses'?”

MR. FANNERLY:

"It may be, sir. I'm not reading it."
MR. BOLAND:

“When we go to the Louisiana Quality
Standards, which you said superseded the
Stream Control Act, isn't it a fact that
the Act specifically says, ‘significant

impairment of designated water uses'‘'?"
Transcript p. 230 lines 4-17

MR. BOLAND:
"Could you tell us how you determined

whether or not there was a significant

App. 146

impairment of designated water uses by the
water spill and would you refer us to the
proper communications from the Department,
other than the ones we've looked at, and
the evidence which leads you to believe
that.”

MR. FANNERLY:

"Well, you've got a couple of questions
there, Mr. Boland.”

MR. BOLAND:

"TIT understand that.”
MR. FANNERLY:

"In the first place, ‘a significant
impairment of the designated water uses,'
the - well, since we're talking about
chlorides, the water quality standard for
that particular stream segment is 90 parts

per million of chlorides....
Transcript p. 230 line 30
Transcript p. 231 lines 1-13

MR. FANNERLY:

App. 147

"Mr. Boland, I think it's fairly
obvious the definition says a water
course. A drainage ditch is a ditch
through which water courses, otherwise it
could not be involved in drainage. I
would also refer you to the provisions of
the Louisiana Water Quality Standards
dealing with intermittent and man-made
water courses. They specifically talk
about ditches in there."

MR. BOLAND:

"Could you give me a_-— specific
regulation that you're referring to?"
MR. FANNERLY:

"I just did. The Louisiana Water
Quality Criteria, which - as last amended
in 1984."

MR. BOLAND:
"Which section, sir?"

MR. FANNERLY:

App. 148

"I don't know the section, sir. I can
find it if you care to give me a copy of
the regulation."

MR. BOLAND:

"Would it be different from the earlier

regulations:"
MR. FANNERLY:

"Which regulations?"
MR. BOLAND:

"Well, we have referred to the Stream
Control Act as one of the violations, and
the reporting act as one of the
violations, and the definitions of waters
of the State as one of the violations."
MR. FANNERLY:

"The definition of waters of the State
is certainly not one of the violations,
sir. It relates to all of them, but the
problem with the regulations - other
regulations that you're citing is they
cover different subjects."

Transcript p. 235 lines 16-30
Transcript p. 236 lines 1-1ll

App. 149

MR. BOLAND:

"Aren't they also talking about
significantly impairing the designated
water uses?"

MR. FANNERLY:

"All of them do not, no sir. The
notification regulation, as I believe
you've pointed out, does. I don't think
you'll find that language in the other

ones."
Transcript p. 235 lines 18-23

MR. BOLAND:
"Even though you have made _ ~9no
determination whether or not there is an

impairment of the designated water uses -

MR. FANNERLY:

"As absolutely - well I take that back.
We have made - the staff has made a
determination that there probably was and

impairment of the designated water usage -

———————

App. 150

uses. The samples that Mr. Manuel
collected in that ditch by themselves
would constitute impairment of the
designated water uses. You simply can not
use water with that chloride concentration
for agricultural uses unless your uses
include weed control."
MR. BOLAND:

"Did you look at the photographs that
were introduced into the evidence?"
MR. FANNERLY:

"I have at one time, yes, sir."
MR. BOLAND:

"Isn't it a fact that there is grass
growing in that ditch?"
MR. FANNERLY:

"I'd have to see the photographs, sir.
I believe Mr. Manuel testified that there

was.
Transcript p.236 lines 1-18

MR. BOLAND:

App. 151

"Unauthorized discharge, as is used by
the Act, is referring to pollutant, isn't
that correct?"

MR. FANNERLY:

"I don't know that the Act refers to
unauthorized discharges, sir. It probably
does somewhere in it, but this particular
regulation we're talking about has a
definition in there."

MR. BOLAND:

"Isn't it a fact that an oil spill must
degrade the environment to be a
pollutant?"

MR. FANNERLY:

"I think you're confusing apples and
oranges, Mr. Boland."
MR. BOLAND:

"Would you explain that"
MR. FANNERLY:

"Oil is a pollutant, period."
MR. BOLAND:

—————————

App. 152

"In any quantity?"
MR. FANNERLY:

"Any quantity.”
MR. BOLAND:

"Whether it is contained on the lease
or not?"
MR. FANNERLY:

"tt*sa still a pollutant,.sir.”
MR. BOLAND:

"Whether it's controlled on the lease
or not?"
MR. FANNERLY:

"You're not changing the status of oil,
Sir. If you put it in the environment

it's a pollutant."
Transcript p. 243 lines 12-30

HEARING OFFICER:
"Forgive me, and again, I don't want to
prevent you from preparing your case, but

it seems to me that if you want to attack

the procedures that are used by the

App. 153
Department, this is not a proper forum to
do that."

Transcript p. 284 Lines 27-30
Transcript p. 285 Line l.

HEARING OFFICER:

"Sustained. Mr. Boland, again, if you
want to attack definitions, if you want to
attack the Statute, if you want to attack
the procedures, I don't believe this is
the right forum. If you don't like the
way they do things, that's fine. Go toa
court of law that's appropriate
jurisdiction and attack it as
unconstitutional, inefficient, whatever
you want. I don't think I'm here or do I
think that I have the authority to rule on
any procedures and law that they have, or
even on the definitions. I'm here to
determine whether or not, as I appreciate
it, some type of pollution occurred, and
if it occurred, whether a fine should be

levied, and if you could limit yourself to

trees eeneeeeemenninill

App. 154

those issues, I really would appreciate
it. I understand where you're headed, I
understand what you're trying to do, but
I don't think I'm the right forum to
attack definitions, to attack statutory
provisions, to attack the way- the
Department does things, whether - you
know, if you want to deal with the
specifics of this case, fine, but you
know, you said you're going to use - lay
a foundation and get specifics and so far,
all I've been hearing is generalities, and
I‘m sorry - -”

MR. BOLAND:

"What I'm having a problem with is you
apparently know what pollution is."
HEARING OFFICER:

"It's sort of like pornography, I know
it when I see it.”

Transcript, p.309, Lines 22-30
Transcript, p.310, Lines 1-21.

MR. BOLAND:

App. 155
"Didn't you indicate to one of Mr.
McGowan's people that a glass was a
significant quantity?”
MR. KILLEEN:
‘Tl possibly have
mentioned that, or that may have been

another individual, ..
Transcript p. 313 lines 23-26

MR. BOLAND:
"With regard to whether there was risk

to human health and the environment - -

Transcript p. 366, Lines 18-19
MR. BOLAND:

"And what is your understanding?"
MR. HERLIHY:

"That they are lake, streams, estuaries
and other water courses. The catch word
is ‘other water courses’. When we first
started reading the rules, as an engineer
or somebody that's responsible for reading
the regulations and discussing them with

field people, I have to read_ the

App. 156

regulations obviously, the key word was
‘water course’, and I've read - pulled out
Webster's Dictionary to try to figure out
what Webster's Dictionary says about it,
and I've gone to the Department of
Transportation and read their definition
of them and spoken to other’ various
experts. I've spoken to people with DEQ
prior to this hearing and asked them point
blank what waters of the State were, water
courses, and the key word is ‘water
course’. My civil engineering = and
everything I've been able to put together
is that a water course must be a stream,
a continuous stream of water. It can't be
obstructed, it can't be a ditch that's got
a puddle here, a puddle there. It must be
an uninterrupted stream, an uninterrupted
channel for the flow of water.

MR. BOLAND:

"Uninterrupted channel of water?”

App. 157

MR. HERLIHY:
“yes.”
MR. BOLAND:

"A continuous body of water?"
MR. HERLIHY:

a a

Transcript p. 404 lines 9-30

Transcript p. 405 lines 1-3
MR. RUSSELL:

"Okay. I'mtrying to. There's - there
- from available sources other than what
that spill put out there, there is a
tremendously larger amount of tending to
degrade from natural resources out there.
HEARING OFFICER:

"That is irrelevant. We're only

interested in what was released from that

pit into Gum Gully ...."
Transcript p. 502, lines 24-30

HEARING OFFICER:
"Mr. McGowan, I believe that what
you're getting into is really irrelevant

to the issue before us. I appreciate your

App. 158

concern and your feelings and again, if
you think the law is unfair, as I told
your attorney, there are certain
jurisdictions for that. I'm not here, I
have no authority to determine whether
this is fair or unfair. We're just here
to determine whether or not there was a
discharge of oil and that's the only thing
I think I can deal with. So I appreciate
your concern but I think you're getting
off the track as to what's relevant here.
You're not going to be allowed to continue
to answer the questions. Ms. Coco, ask
your next question."

Transcript, p. 392, Line 30

Transcript, p. 393, Lines 1-14.

MR. BOLAND:

"Why was there no notification to the
DEQ in January of 1986, when David Russell
told you that the pipe was leaking?"

MR. HERLIHY:

App. 159
"Well, for two reasons. One is that
you get to playing with words’~ and
definitions again, but I've got the read
the rules, too. I haven't got somebody

from the DEQ Office working for me. I

have to read them myself. I understand
the word "water course”. A ditch is not
a water courses to me. I've asked Mr.

Killeen point blank the question and he
told me that roadside ditches could
possibly be water courses, but he didn't
feel like ditches within the confines of
a lease were, and I told him that I could
live with that, and you know, maybe I
should've come down here and asked them
point blank, "what's a water course?" but
I read the definitions."

Transcript, p. 412, Lines 9-24.
HEARING OFFICER:

"Mr. Herlihy, based on your definition

of a spill, if 100,000 barrels of oil were

~—

s

App. 160
spilled on a lease, and you were able to
contain it on that lease where it couldn't
get to any state waters, then you would
consider it not a violation of the code,
would you?”
MR. HERLIHY:

"Well, once again, dealing with the
definitions, you have to pollute to
discharge, you have to get into State
waters to discharge, so I haven't really
technically violated the rules. I could
have a flat piece of land without a drop
of drainage on it, not the first ditch on
it with a dike around it and I guess that
wouldn't technically be a violation if I
had a 10,000-barrel spill. I would
obviously never have that type of property
if I had a 10,000-barrel spill. I would
certainly call the DEQ.”

HEARING OFFICER:

App. 161

"But based on your definition, if you
take your definition of what's a
violation, you could technically and
legally, based on your definition, spill
100,000 barrels of oil, as long as you
contained it on the lease, you wouldn't
have to call the DEQ?"

MR. HERLIHY:

"That's correct, I would have firewalls
that had 2000 or 3000 barrels of capacity
that I could very easily - it may only
have 2000 barrels of oil tankage, so I
could spill 2000 barrels of oil into the
firewall and it. would be contained on my
lease. I don't have any 10,000-barrel
ones, so I have a hard time relating to
that number.

HEARING OFFICER:

"So let's say 2000 barrels of oil, some

kind of way, and we know that this would

never happen on your lease, but let's, for

|

App. 162

hypothetical say this, was located outside
the containment of that wall that's
normally around because something is
wrong, the pit was too low or whatever
happened that happened, there was a
fantastic rain and the pit was full of
water and coming - the tank burst and the
water went fiowing off, as long as it
didn't leave the lease, based on your
definition, you wouldn't have to report
at.

MR. HERLIHY:

"That's correct, yes. If I - let me
give you an example of how that could
happen. If i came out there and had a
pipeline rupture and 1000 barrels of oil
waS coming out, and I had a bulldozer
right next to it, I could dig me a pit
right there on the spot, drag a suction
pump up and pump it right back into the

tank and I would not report that because

App. 163
I didn't feel like it affected waters of
the State, as long as my clean up -
subsequent clean up didn't affect them."
HEARING OFFICER:

"Yes, it would. If I had a 2000-barrel
spill that I was attempting to contain or
containing and this imminent rain would,
you know, possibly breach the containment
and the oil is going to float on top of
the water, I would consider that grounds

for notification."
Transcript, p. 459, Lines 6-30
Transcript, p. 460, Lines 1-28.

HEARING OFFICER:

"I agree with you, Ms. Coco, that it is
totally irrelevant; however, because of
the way I started the hearing in allowing
irrelevant information to get into, I
don't feel at this time it'd be
appropriate for me to exclude-= any
irrelevant information that either side
wants to introduce. I will, though, say
for the record that if we continue having
completely irrelevant information that
does not rest directly with the fines that
are involved and the - what occurred on
these particular leases in front of me,
that I reserve the right during the rest
of this hearing to prevent irrelevant
information from being entered into the

App. 164

record because I think 50 to 75 percent of
what we have so far is irrelevant and I
just think it's wasting the time of this
Hearing Officer because it's not relevant
to the issue we have here.

If Mr. McGowan wants to attack the
rules and regulations, he has the right in
another forum to do that. I've stated
that several times. I don't have the
authority to do that. We're just here to
determine whether or no a - an infraction
occurred and if an infraction occurred,
whether or not you have to pay a penalty.

Whether or not this should or should
not be an infraction is not my
jurisdiction; however, in an abundance of
caution in attempting to give’ the
respondent and the State every opportunity
to present their case, I will allow this
evidence to be introduced."

Transcript, p. 469, Lines 5-30

Transcript, p. 470, Lines 1-4.

HEARING OFFICER:
"Fine. The definitions speak for

themselves. Go ahead."
Transcript, p. 482, Lines 14-16.

MR. BOLAND:

"What are waters of the State as you
defined it as a geologist and biologist
going out in the field during that time in
January of 1986?"

MR. RUSSELL:

App. 165

"Waters of the State are very obviously
any mineral - any waters that the State
owns mineral under - minerals under. That
would classify it. I've got a definition
from the 1951 Stream Control Commission
that says that. It's also - I classify it
as any waters that could be used, in
addition to the streams, lakes, so forth,
and this catch-all, all water courses. I
interpret that - -"
MR. BOLAND:

“By reading the statute?"
MR. RUSSELL:

"By reading the statute and by meaning
this. A water course is any uninterrupted
continuous body of water. Now, it could

be standing or it could be flowing, but it

needs to be a continuous body."
Transcript p. 486 lines 19-30
Transcript p. 487 lines 1-4

App. 166
MR. BOLAND:

"With regard to those puddles, how much
quantity of solution was there?
MR. RUSSELL:

In those puddles? Less than a barrel in
those puddles, our estimation, but I did
some checking and it got’ kind of
interesting checking on what -_ what
actually - how much salt is available
every day in our environment and I checked
with - I don't — I'm not so smart to think
that I - that I could run these tests
myself but I did check with people who are
experts in their field. I did - do that
kind of research, and after reviewing what
they've written, it is my opinion that
these facts are true.

I viewed there were 40 head of cattle
out there on that piece of property. At

40 head of cattle in a day's time were put

App. 167
MS. COCO:

"I'm going to object to this. It is
patently irrelevant.”
HEARING OFFICER:

"All right. I agree with you and I'm
just tired of it. The objection's
sustained."

Transcript, p. 496, Lines 16-30

Transcript, p. 497, Lines 1-8.
HEARING OFFICER:

"Mr. Russell, again we're not here to
challenge the laws. We're here to decide
what went in this particular instance what
was spilled, if anything was spilled or
discharged, whatever word you want to use,
and whether or not you should be fined for
that discharge."

MR. RUSSELL:

. oh ee questioning that, sir,
something that went out on the ground. We
don't have any problem with that."
HEARING OFFICER:

I ———

App. 168

"Mr. Russell, I didn't come here to
argue with you. I'm not going to let you
testify about the information you want to
testify to. You may ask the next
question, Ms. Coco."

CROSS EXAMINATION of Mr. Russell
(cont'd) BY MS. COCO:

"Mr. Russell, you said you’ were
satisfied after reading Mr. Manuel's
inspection report that this discharge did
not enter waters of the State, is that
correct.”

MR. RUSSELL: =

"That's what the report told me. I
read it in plain English."

MS. COCO:

"Did you subsequently receive a
compliance order that would have cast some
doubt upon your understanding?”

MR. RUSSELL:

)

App. 169

"TI read a compliance order that listed
these things that said we broke. It kind
of surprised me. You've got a qualified
man with a couple of degrees out in the-
field in biology and wildlife management,
making the determination that no waters of
the State have been affected and then I
get this thing that says it has been and
I'm going, I don't really, you know."

MS. COCO:

"Will you acknowledge, Mr. Russell,
that there might be a difference in the
lay understanding or a_ biologist's
understanding of water and the legal
definition of waters of the State?"

MR. RUSSELL:

"I think I'm, from what the testimony
that you have put on, I think there is.
In that pretrial thing that y'all and I
went to, we went to, when I made that

reference to waters of the State, told me

App. 170
that Mr. Manuel wasn't qualified to make
that determination as the legal term.

If a biologist or a wildlife-fisheries
man or a scientist can't make - can't say
- a determination what are waters of the
State is, I think we have come to a point
where we're in a lot of trouble."

MS. COCO:

"Well, Mr. Russell, if you go in a
court of law and you have conflicting
definitions, do you think that the court
is going to look at the law or.is it going
to look at some other - -"

Transcript, p. 503, Lines 7-30

Transcript, p. 504, Lines 1-28.

MR. BOLAND:

"Thank you, sir, but with regard to the
last statement that Ms. Coco said, I do
have some exhibits, which I _ stated

earlier, which the experts have - -

HEARING OFFICER:

Apo. i71

"I think I fully understand that. We
don't need to go into that. We've already
dealt with that. Let's proceed please."

Transcript, p. 514, Lines 3-10.
MR. RUSSELL:

"Well I daresay, well, I just don't
know but I did not notice any deleterious

effects to the environment because of it."
Transcript, p. 521, Lines 17-20.

MR. BOLAND:

"TI have offered and I think Ms. Coco
has accepted that Dr. Killeen, Ph.D. in
chemistry, Professor of Organic Chemistry,
head of the department, at the University
of Southwestern Louisiana, 27 years
academic experience and consulting
experience to oil and gas industry, and to
chemical departments and chemical
companies and land reclamation analysis.
That with all of that, he would testify
that the oil spill did not get into the
waters of the State and that the salt

App. 172
discharge did not get into the waters of
the State and that neither discharge were
pollution from the standpoint of a
chemist, from his analysis of oil
pollution and the standards or that salt
water was a pollutant as it is defined

also."
Transcript p.522 lines 10-16 and 2]-27

HEARING OFFICER:

"Yes. An expert in drainage and soil
and water reclamation, but as far as an
expert in the field of the definition of
waters of the State, I don't - I'm not
going to qualify him as an expert in that
particular field."

MR. BOLAND:

"He can, of course, offer his opinion
that'll go to the weight."
HEARING OFFICER:

“oure. Any lay person can offer an
opinion."

MR. BOLAND:

App. 173

"I would like a ruling from the Hearing
Officer. Is it, as Ms. Coco contended,
only lawyers know and can read these
statutes, to know what the rules are?"
HEARING OFFICER:

"Mr. Boland, that's a frivolous - you
know. We know that other people besides
us lawyers, though we deem ourselves to be
Gods in that area at times, have the
ability to read laws and understand them."

Transcript, p. 535, Lines 12-30

Transcript, p. 536, Line l.

MR. SEGRERA:

"What I consider to be waters of the
State, Mr. Russell touched on it a while
ago and I agree with the fact that I feel
as though it should be a continuous
channel, stream or course of water,
uninterrupted, and that - that _ be
considered after rainfall water has been
drained froma field, all the water that's

intended to drain from the field has taken

App. 174
place at that point, anything that would
be an uninterrupted channel of water, I
would consider to be waters of the State."

Transcript p. 538 lines 25-30

Transcript p._539 lines 1-3
MR. BOLAND:

"...From the testimony heard this
morning of David Russell, could you
determine what the percolation rate of
salt water would be if the leak had
started approximately November Ist at the
Devilbis lease?

DR. MAHER:

"Well, percolation rate is not
dependent so much on time that it started
but on the soil type and the weather
conditions that occur while it's taking
place. So, what I have done on the basis
of Mr. Russell's report of what the rate
he saw flow from the valve, estimated the
length of the ditch and the width of the
ditch and obtained from the infiltration

App. 175

rate that would have to occur in order for
the water to reach the end of the ditch
and knowing the approximate infiltration
or percolation rates of this type of soil,
I could then render an opinion that it was
not coming out at a sufficient rate to
ever reach the end of the ditch.

Now if it occurred over a long period,
the evaporation would exceed the
percolation rate, transcapillary movement
would see to it that you would have no
great downward movement of the water.

The down flow would occur to a point
only where you would exceed or equal the
infiltration rate of the soil but the
length of the canal is too long at that
rate of flow for it to reach the end of
the canal or the ditch."

MR. BOLAND:

"Did you go out to the Devilbis lease?"

DR. MAHER:

App. 176
Te Gig
MR. BOLAND:
"Did you walk that ditch off?"

DR. MAHER:
“. (Ga,
MR. BOLAND:

"Did you look at the measurements in

the ditch?"

DR. MAHER:
"1 Sax

MR. BOLAND :

"And are these factors that you
considered in determining the percolation
rate?”

DR. MAHER:

"Yes, they are."
MR. BOLAND:

"With regard to the complaint form and
the facility inspection report made by Mr.
Manuel, do the tests that he performed

indicated or prove that a discharge

App. 177
occurred into Gum Gully, the body of water
that is at the end of that ditch?"
DR. MAHER:
"From his report, they do not."
MR. BOLAND:

"Do you have an opinion based on your
field of expertise, as to whether or not
water pollution occurred from the salt
water leak into Gum Gully?"

DR. MAHER:

"I do not feel that the rate involved
was sufficient for that to take effect.
The first time it rained, the dilution
effect would be great enough to hamper the
effect of any - any of the - the pollution
that might occur due to the salt water so
it would be insufficient to or not useful
for irrigation purposes or other purposes
that do not require extremely low parts
per million of salt."

Transcript p. 568 lines 23-30

Transcript p. 569 lines 1-30
Transcript p. 570 lines 1-14

App. 178
MR. BOLAND:

"The amount of salt water from that
drip from the point of which it was
dripping to that ditch, if it had rained,
would that cause water pollution, in your
opinion?"

DR. MAHER:

"As I understood the report, the small

standing bodies of water, in my opinion,

would not pollute the stream."
Transcript p. 571 lines 12-18

MR. BOLAND:

"...If 10 barrels had been spilled over
an acre of land, what would the diffusion
rate be? Can you calculate that or render
an opinion on it?"

DR. MAHER:

"TI can calculate it. I think I might
have done that at one time. The
thickness, if you were to spread it over
an area evenly of 10 barrels over an acre,

it would be about the thickness of a sheet

App. 179
of paper, but it was confined into puddles
evidently, otherwise they wouldn't be able
to pick any of it up."
MR. BOLAND:

"And in fact, according to the report,
they picked up all but about two barrels.
Now if we assume that two barrels were out
there at the point where you saw it, do
you have an opinion as to whether or not.
those two barrels ever reached the waters
of the State if the area between the
puddles and Gum Gully were dry?"

DR. MAHER:

"I'm not - I'm not certain about where
the break off points stopped on the spill,
but if it had to go 900' and there was
only two barrels involved, I would feel
confident in saying that one barrel did
not get into the waters of the State in 24
hours."

MR. BOLAND:

App. 180

"Do you have an opinion based upon your
field of expertise as to whether or not
those two barrels got into the waters of
the State standing where they were?"

DR. MAHER:

"I really don't believe they could have
reached that point because they would be
diffused into the soil and to the banks of
the ditch system. Also, when oil is
exposed to the sun, the lighter
hydtocacbons tend to be burned off and the
heavier ones stick a little better and the
bacteria usually break these down if you
can mix them in with the soil. This is
the usual way of doing it.”

MR. BOLAND:

"Do you have an opinion as to whether
or not those two barrels constituted water
pollution to the waters of the State?"

DR. MAHER:

App. 181

"The two barrels? I don't believe two
barrels did, based on what I was told."
MR. BOLAND:

"And that's based on the facts set
forth in the inspection - -"
DR. MAHER:

"In the inspector's report, yes."
MR. BOLAND:

" — furnished by the State?"

DR. MAHER:
"Yes."
MR. BOLAND:

"How would you define waters of the
State?"

DR. MAHER:

“My opinion of waters of the State are
pretty much the same as Mr. Sagrera's;
that is, they're waters that exist in
runoff courses after the gravitational
water has been removed from the farm; that

is, the water that you wish to remove and

App. 182

the ditch is - has - no longer has a flow

that's noninterrupted."

MR.

DR.

BOLAND:

"That's uninterrupted water body?"
MAHER:

"Right."

Transcript p. 572 lines 22-30

Transcript p. 573 lines 1-30
Transcript p. 574 lines 1-12.

The degree of culpability,

recalcitrance, defiance, and indifference

in

the regulation or order.

Response:

a. John McGowan seems totally
recalcitrant, and defiant, and
indifferent, to the rules and
regulations of the State of
Louisiana. It is obvious, even
though this is not the proper
forum to attack the Rules and
Regulations of the Department, Mr.

McGowan chose this forum to do so.
7ranscript, o.« $54, iv.

App. 183

Writ Application to Louisiana Supreme
Court pp. 192-193

When questioned by the state's attorney
regarding his definition of WATERS OF THE
STATE, manuel stated: "The term I use,
waters of the State is water” (Tr. 106, L.
16). manuel then further described WATERS
OF THE STATE as follows: "As a field
biologist, I use that term to indicate a
State conveyance which actually has HD,
water, within the conveyance and flowing"
(he. 238, tee. 4788) Manuel defined
WATERS OF THE STATE another time as: "I
used the term ‘State Waters' to denote a
flowing stream capable of supporting
aquatic habitat" (Tr. 155, L. 7-8). Under
cross examination Manuel was asked: "So,
in your March 6th report, you state that
it did not affect the waters of the State
according to your’ report, correct?”
Manuel answered "The waters - ‘waters of
the State,’ yes, sir. It did not get to
actually water, = 4 ‘ome ae ee
and Tr. 112, L. 1-2). Manuel's testimony
would lead one to believe that McGowan
should not be charged with failing -to
notify for discharging into the WATERS OF
THE STATE because none of the substances
complained of ever reached "water" or
“waters of the State" as defined in the
Statute or explained by Manuel. If the
substances did not reach water, there was
no water pollution. Recall that Manuel
was the only DEQ official who saw the
alleged incidents, although he failed to
take any photographs of the alleged
events. Additionally, the chlorides found
in the two puddles in the otherwise dry
ditch at the Devilbis lease was not "water
flowing” or "capable of supporting aquatic
habitat".

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1561%3A1. Public record. Not legal advice.