Sierra Club v. Cedar Point Oil Co ( 1996 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    
                           FOR THE FIFTH CIRCUIT
    
                           _____________________
    
                                No. 94-20461
                           _____________________
    
              SIERRA CLUB, LONE STAR CHAPTER,
    
                                        Plaintiff-Counter
                                        Defendant-Appellee,
    
              v.
    
              CEDAR POINT OIL COMPANY INC.,
    
                                        Defendant-Counter
                                        Claimant-Appellant.
                           _____________________
    
                                No. 95-20227
                           _____________________
    
              SIERRA CLUB, LONE STAR CHAPTER,
    
                                        Plaintiff-Counter
                                        Defendant-Appellant,
    
              v.
    
              CEDAR POINT OIL COMPANY INC.,
    
                                       Defendant-Counter
                                       Claimant-Appellee.
    _________________________________________________________________
    
              Appeals from the United States District Court
                   for the Southern District of Texas
    _________________________________________________________________
    
                             January 11, 1996
    
    
    
    Before REYNALDO G. GARZA, KING and HIGGINBOTHAM, Circuit Judges.
    
    KING, Circuit Judge:
         These consolidated appeals arise from an action brought by
    
    Sierra Club, Lone Star Chapter ("Sierra Club"), against Cedar
    
    Point Oil Company ("Cedar Point") under the citizen suit
    
    provision of the Clean Water Act ("CWA"), 33 U.S.C. § 1365.
    
    Sierra Club alleged that Cedar Point was violating the CWA by
    
    discharging produced water into Galveston Bay without a permit
    
    and sought civil penalties and an order enjoining the unpermitted
    
    discharge.    Cedar Point counterclaimed for abuse of process.
    
    Before trial, the district court granted summary judgment in
    
    favor of Sierra Club on the issue of Cedar Point's liability
    
    under the CWA and dismissed Cedar Point's counterclaim.       After a
    
    bench trial, the district court assessed a civil penalty of
    
    $186,070.    Cedar Point appeals.    The district court also enjoined
    
    the discharge of produced water from Cedar Point's oil and gas
    
    production operations without a permit; however, the court later
    
    modified this injunction to allow Cedar Point to continue the
    
    unpermitted discharge.    Sierra Club appeals this modification.
    
    We affirm in all respects the judgment of the district court.
    
    
    
                                 I.   BACKGROUND
    
    A.   Facts
    
         1.   "Produced Water"
    
         This lawsuit concerns the legality of the disposal of a by-
    
    product of the oil and gas production process: "produced water."
    
    Produced water originates as source water trapped in underground
    
    geological formations with oil and gas.        When a well is drilled
    
    
                                        2
    into a formation, the extraction of oil and gas also brings the
    
    water to the surface.   During extraction, chemicals used in the
    
    drilling process become mixed with the water.   The result is
    
    produced water.1
    
         Part of the production process involves the separation of
    
    the produced water from the extracted oil and gas.   After
    
    separation, the operator must dispose of the produced water.    The
    
    available methods of disposal include reinjection into an
    
    underground reservoir, land disposal, evaporation, and discharge
    
    into surface waters.    Produced water is the highest volume waste
    
    source in offshore oil and gas production operations.2
    
    
    
        2.   Cedar Point's Operations
    
         Cedar Point is a Mississippi corporation that owns and
    
    operates an oil and gas well and associated facilities in the
    
    Cedar Point field ("the field"), which is located in Galveston
    
    
    
    
         1
           The Environmental Protection Agency has defined produced
    water as "water and particulate matter associated with oil and
    gas producing formations. Produced water includes small volumes
    of source water and treatment chemicals that return to the
    surface with the produced formation fluids and pass through the
    produced water treating systems currently used by many oil and
    gas operators." 57 Fed. Reg. 60,926, 60,951 (1992). For
    discussions of the origin and composition of produced water, see
    BP Exploration & Oil, Inc. v. U.S.E.P.A., 
    66 F.3d 784
    , 792 (6th
    Cir. 1995); Natural Resources Defense Council v. U.S.E.P.A., 
    863 F.2d 1420
    , 1425 (9th Cir. 1988); American Petroleum Inst. v.
    E.P.A., 
    661 F.2d 340
    , 343 (5th Cir. 1981).
         2
          BP Exploration & Oil, 66 F.3d at 792; Natural Resources
    Defense Council v. U.S.E.P.A., 863 F.2d at 1425.
    
                                        3
    Bay in Chambers County, Texas.3    John McGowan ("McGowan"), Cedar
    
    Point's principal shareholder, purchased the field from Chevron
    
    Corporation ("Chevron") on July 1, 1989.     At that time, the field
    
    contained twenty-two abandoned wells and three producing wells.
    
    McGowan shut down the producing wells approximately one month
    
    after he purchased the field.     On January 1, 1991, McGowan
    
    transferred the field to Cedar Point.4    Later that year, Cedar
    
    Point drilled its first well since acquiring the field: state
    
    well 1876.5   Cedar Point began producing oil and gas from this
    
    well on September 10, 1991.
    
         Cedar Point began to discharge produced water into Galveston
    
    Bay at approximately the same time that it began production from
    
    state well 1876.   This discharge continued through the trial of
    
    this action in May 1994, except that the discharge was
    
    temporarily suspended between April and August of 1992.
    
    Throughout this period, the average daily discharge ranged
    
    between 500 to 1200 barrels per day.6    Cedar Point's produced
    
         3
          The field and associated facilities are Cedar Point's only
    assets. Cedar Point itself has no regular employees, but
    contracts for necessary services with McGowan Working Partners, a
    Mississippi partnership that conducts oil and gas operations in
    Louisiana, Mississippi, and Texas. While most of the contractors
    who do work for Cedar Point hold interests in McGowan Working
    Partners, the partnership is not a party to this action.
         4
          This transfer is characterized as a "purchase" in some of
    the documents in the record on appeal; however, David Russell,
    Cedar Point's vice-president, testified that Cedar Point acquired
    the field from McGowan at no cost.
         5
          At the time this action commenced, Cedar Point had
    apparently not drilled any other wells in the field.
         6
          A barrel contains 42 gallons.
    
                                       4
    water contained, inter alia, barium, benzene, zinc, chlorides,
    
    sulfate, bicarbonate, ammonia, naphthalene, phenolic, radium, oil
    
    and grease.   Cedar Point disposed of its produced water in the
    
    following manner:   (1) the oil, gas, and water mixture produced
    
    from state well 1876 was piped to a platform in Galveston Bay for
    
    the first phase of separation; (2) after the initial separation,
    
    the remaining mixture was then piped to shore where more oil was
    
    separated in a series of tanks; (3) the produced water was then
    
    transferred to settling pits so that some constituents could
    
    settle out of the water; and (4) the remaining produced water was
    
    drained out of the pits and discharged through a pipe over the
    
    bulkhead into Galveston Bay.7
    
    
    
        3.   The Permits
    
         Between August 1971 and July 1989, Chevron discharged
    
    produced water from the onshore separating facility pursuant to a
    
    permit issued by the Texas Railroad Commission ("the Railroad
    
    Commission").   This permit set limitations only on the oil and
    
    grease content of the produced water that was being discharged.
    
    After McGowan purchased the field, the Railroad Commission
    
    transferred Chevron's Commission permit to McGowan.   The letter
    
    from the Railroad Commission authorizing this transfer stated
    
    that a permit from the Environmental Protection Agency ("EPA")
    
    may be required for the discharge of produced water under the
    
         7
          Originally, the produced water had been discharged into a
    marsh near the shore facility. In modifying the separation
    system, Cedar Point changed the discharge point to Galveston Bay.
    
                                     5
    National Pollutant Discharge Elimination System ("NPDES").      David
    
    Russell ("Russell"), who reviewed the transferred permit for
    
    McGowan, testified that he did not read this sentence in the
    
    letter; however, he did review Chevron's files, which did not
    
    reveal any NPDES permit or NPDES permit application in the
    
    twenty-year period of Chevron's ownership of the field.    Based on
    
    this review, Russell did not apply for a NPDES permit for McGowan
    
    at that time.
    
         After McGowan transferred the field to Cedar Point in 1991,
    
    Russell commenced negotiations with the Railroad Commission to
    
    transfer McGowan's Commission permit to Cedar Point.    This
    
    negotiation took several months, apparently because Cedar Point
    
    and the Railroad Commission disputed the terms of the Commission
    
    permit that Cedar Point would ultimately receive.   Cedar Point
    
    finally obtained a Commission permit in September 1992, again
    
    establishing limitations only on the oil and grease content of
    
    the produced water that was being discharged.8   According to
    
    Russell, while he was negotiating the terms of this permit,
    
    Railroad Commission employees informed him that oil and gas
    
    operators in Galveston Bay were being sued for discharging
    
    produced water into the bay without a NPDES permit.    Also, the
    
         8
          Because Cedar Point began discharging produced water into
    Galveston Bay in September 1991, it had been discharging without
    a Commission permit of its own for twelve months. Russell
    testified that he assumed that Cedar Point could discharge
    pursuant to McGowan's Commission permit pending the approval of
    Cedar Point's transfer application. Although Sierra Club
    apparently questioned the legal basis of this assumption at
    trial, the legality of Cedar Point's discharges under Texas law
    is not an issue in this lawsuit.
    
                                    6
    final Commission permit that Cedar Point received in September
    
    1992 advised that a NPDES permit may be required for the
    
    discharge of produced water and that EPA was considering
    
    prohibiting such discharges.     Accordingly, on October 15, 1992,
    
    Cedar Point applied to EPA for a NPDES permit for its produced
    
    water discharges.
    
         By letter dated November 5, 1992, EPA informed Cedar Point
    
    that its application for a NPDES permit had been reviewed and
    
    determined to be administratively complete.    Since this
    
    acknowledgment, however, EPA has failed to act on the
    
    application.     On December 30, 1992, Russell submitted a request
    
    to EPA under the Freedom of Information Act ("FOIA"),9 asking
    
    whether EPA had ever issued a permit for the discharge of
    
    produced water in Texas.     On February 4, 1993, EPA responded that
    
    it had issued two such permits.     The first permit was a general
    
    permit10 that applied to oil and gas operators in the "Offshore
    
    Subcategory" in Louisiana and Texas and established limitations
    
    on the oil and grease content of discharged produced water.11
    
         9
          5 U.S.C. § 552.
         10
          There are two types of NPDES permits: individual and
    general. Typically, EPA will promulgate a nationally uniform
    "effluent limitation" on the discharge of a particular pollutant
    and implement that limitation in the form of individual NPDES
    permits issued to entities discharging that pollutant. See 33
    U.S.C. §§ 1311, 1342. Where EPA has not yet promulgated such an
    effluent limitation, however, it may regulate the discharge of
    pollutants by issuing a general NPDES permit that applies to a
    class of similar entities located in a particular geographical
    region. See Natural Resources Defense Council v. Costle, 
    568 F.2d 1369
    , 1380-82 (D.C. Cir. 1977); 40 C.F.R. § 122.28.
         11
              46 Fed. Reg. 20,284 (1981).
    
                                       7
    The second permit was also a general permit that applied to oil
    
    and gas operators in the "Onshore Subcategory" in Louisiana, New
    
    Mexico, Oklahoma, and Texas; this permit established an absolute
    
    prohibition on the discharge of produced water by these
    
    entities.12     Neither of these permits applied to Cedar Point
    
    because Cedar Point is in the "Coastal Subcategory."13     In fact,
    
    at that time the only regulation that EPA had promulgated that
    
    applied to the discharge of produced water by Coastal Subcategory
    
    operators was an effluent limitation on the oil and grease
    
    content of discharged produced water;14 however, EPA had never
    
    implemented this limitation through a general permit or
    
    individual permits.     As a result, none of Cedar Point's produced
    
    water discharges was authorized by a NPDES permit.
    
    
    
    B.   Procedural History
    
         1.    Cedar Point's Collateral Action
    
         By letter dated December 16, 1992, Sierra Club informed Cedar
    
    Point that the discharge of produced water without a NPDES permit
    
    
         12
              56 Fed. Reg. 7698 (1991).
         13
          EPA has divided the category of "Oil and Gas Extraction
    Point Sources" into several subcategories for the purpose of
    regulating discharges: "Offshore," "Onshore," "Coastal,"
    "Stripper," and "Agricultural and Wildlife Water Use." 40 C.F.R.
    § 435. The "Coastal Subcategory" includes facilities engaged in
    oil and gas production, field exploration, drilling, and well
    completion and treatment in "any body of water landward of the
    territorial seas as defined in 40 C.F.R. 125.1(gg), or any
    wetlands adjacent to such waters." 40 C.F.R. §§ 435.31(e),
    435.40.
         14
              40 C.F.R. § 435.42.
    
                                          8
    violated the CWA and that Sierra Club planned to seek monetary
    
    penalties and an order enjoining Cedar Point's unpermitted
    
    discharges.15   In response to this letter, Cedar Point filed an
    
    action against Sierra Club and EPA in the United States District
    
    Court for the Southern District of Mississippi.     In its
    
    complaint, Cedar Point alleged, inter alia, that Sierra Club had
    
    "threatened" Cedar Point with a citizen suit and, impliedly, that
    
    EPA and Sierra Club were conspiring to deprive Cedar Point of
    
    unspecified constitutional rights.     Specifically, Cedar Point
    
    requested the district court to issue an order that: (1) required
    
    EPA to respond to Cedar Point's then-unanswered FOIA request; (2)
    
    required EPA to rule upon Cedar Point's application for a NPDES
    
    permit; and, (3) enjoined Sierra Club from filing a citizen suit
    
    against Cedar Point.    On July 12, 1993, the district court
    
    dismissed Cedar Point's claims against Sierra Club.16
    
    
    
        2.    Sierra Club's Citizen Suit
    
         Sierra Club filed the present action against Cedar Point on
    
    April 20, 1993, in the United States District Court for the
    
    Southern District of Texas.    In its complaint, Sierra Club prayed
    
         15
          The CWA requires that a person bringing an action under
    the citizen suit provision send an "intent to sue" letter to the
    EPA, the alleged violator, and the state in which the alleged
    violation occurs at least 60 days prior to the commencement of
    the action. 33 U.S.C. § 1365(b)(1).
         16
           The court apparently has not disposed of Cedar Point's
    claims against EPA. The last docket entry in the case indicates
    that the court held a hearing on EPA's motion to dismiss on
    September 19, 1994, "with written opinion to follow in about a
    week."
    
                                      9
    for:    (1) a judgment declaring that Cedar Point's unpermitted
    
    discharges of produced water into Galveston Bay violated the CWA;
    
    (2) a permanent injunction prohibiting future unpermitted
    
    discharges; and (3) penalties for past unpermitted discharges.
    
    The district court immediately entered an Order for Accelerated
    
    Discovery, requiring the parties to make certain disclosures
    
    without waiting for discovery requests.    This order directed,
    
    inter alia, that the parties disclose at least ninety days prior
    
    to trial the expert testimony that they would offer at trial.
    
           Cedar Point filed its answer and a counterclaim against
    
    Sierra Club on August 18, 1993.    The counterclaim alleged that
    
    Sierra Club's lawsuits against Cedar Point and other oil and gas
    
    operators in the bay constituted an abuse of process.    Cedar
    
    Point sought compensatory damages for the emotional distress
    
    suffered by its officers and directors and $10,000,000 in
    
    punitive damages.    Sierra Club moved to dismiss this
    
    counterclaim.    The district court ultimately entered an order
    
    granting Sierra Club's motion on the grounds that, because Sierra
    
    Club's citizen suit was not frivolous, it could not be the basis
    
    for a claim for abuse of process.
    
           Sierra Club then filed a motion for partial summary judgment
    
    on the issue of Cedar Point's liability under the CWA.    In
    
    response, Cedar Point filed a cross-motion for partial summary
    
    judgment on the issues of its liability, Sierra Club's ability to
    
    state a claim under the CWA, and Sierra Club's standing to sue.
    
    The district court entered an order granting Sierra Club's motion
    
    
                                      10
    for partial summary judgment and denying Cedar Point's similar
    
    motion on the liability issue.   Specifically, the court found as
    
    a matter of law that Cedar Point had discharged pollutants
    
    without a NPDES permit in violation of the CWA.   The court also
    
    denied Cedar Point's motion on the issue of Sierra Club's
    
    standing to sue.   In this regard, the court found that the
    
    affidavits submitted by Sierra Club established that some of its
    
    members had suffered injuries in fact that were fairly traceable
    
    to Cedar Point's discharge of produced water, and therefore were
    
    sufficient to defeat a motion for summary judgment.
    
         Sierra Club also filed a motion to strike Cedar Point's
    
    designation of experts that it would offer at trial.   In this
    
    motion, Sierra Club alleged that Cedar Point had failed to comply
    
    with that part of the district court's discovery order requiring
    
    "written report[s] prepared and signed by the witness[es] which
    
    include[] a complete statement of all opinions to be expressed
    
    and the basis and the reasons therefor."   Specifically, Sierra
    
    Club complained that the reports submitted by Cedar Point were so
    
    substantively inadequate that Sierra Club would be substantially
    
    prejudiced if the court allowed these witnesses to testify.    The
    
    court granted Sierra Club's motion to strike Cedar Point's
    
    experts, finding that Cedar Point had failed to comply with its
    
    discovery order.
    
         The issues of the penalties to be assessed against Cedar
    
    Point for its past violations and Sierra Club's request for
    
    injunctive relief were tried to the bench.   The court issued its
    
    
                                     11
    opinion and judgment on May 27, 1994.     First, the court imposed a
    
    civil penalty of $186,070 based on the economic benefit that
    
    accrued to Cedar Point because of its failure to comply with the
    
    CWA -- i.e., the money it saved by not constructing a disposal
    
    system that would have resulted in zero discharge.     Second, the
    
    court enjoined Cedar Point from discharging produced water from
    
    its operations at the field into Galveston Bay until it obtained
    
    a NPDES permit.17     Finally, the court awarded Sierra Club $60,000
    
    in attorneys' fees as the prevailing party in the litigation.18
    
    The court later increased this award to $82,956.86.     Cedar Point
    
    timely filed its notice of appeal from this judgment as well as
    
    the court's pretrial rulings, including the dismissal of Cedar
    
    Point's counterclaim and the partial summary judgment on the
    
    issue of Cedar Point's liability under the CWA.
    
    
    
        3.     Amendment of the Injunction
    
         On January 9, 1995, EPA published a final NPDES general
    
    permit covering the discharge of produced water by operators in
    
    the "Coastal Subcategory" in Louisiana and Texas, including Cedar
    
    Point.19     This permit imposed, inter alia, an absolute
    
    prohibition on the discharge of produced water, effective
    
    
         17
          The court also imposed a penalty for each day Cedar Point
    violated the injunction after August 31, 1994.
         18
              See 33 U.S.C. § 1365(d).
         19
          60 Fed. Reg. 2387 (1995). A draft version of this permit
    had been published on December 22, 1992, five months before the
    trial in this action. 57 Fed. Reg. 60,926 (1992).
    
                                         12
    February 8, 1995.     Along with the permit, however, EPA issued an
    
    administrative compliance order that qualified somewhat this
    
    effective date.20     The compliance order recognized that many
    
    operators would have to reinject their produced water in order to
    
    comply with the permit's "No Discharge" provision.     Because
    
    existing reinjection well operators, state permitting
    
    authorities, and drilling contractors would probably be unable to
    
    meet the demand for reinjection occasioned by the terms of the
    
    permit, complete compliance by all covered operators would
    
    necessarily be delayed until well after the February 8 effective
    
    date.     Accordingly, the order directed the permittees to
    
    "[c]omplete all activities necessary to attain full and
    
    continuance [sic] compliance with [the "No Discharge"
    
    requirement] as soon as possible, but in no case later than
    
    January 1, 1997;" however, this order only applied to operators
    
    covered by the permit who would be discharging produced water on
    
    the effective date of the permit, February 8, 1995.21
    
         Cedar Point could not discharge produced water on February 8
    
    because the district court's injunction order prevented it from
    
    doing so without penalty.     Accordingly, on January 30, 1995,
    
    Cedar Point filed a motion to amend or supplement the court's
    
    final judgment to allow it to discharge produced water without
    
         20
              60 Fed. Reg. at 2393.
         21
          The order also required covered operators to prepare a
    Compliance Plan. The order states that "[a] Compliance Plan
    shall include a description of the measures to be taken, along
    with a schedule, to cease discharge of produced water to waters
    of the United States as expeditiously as possible."
    
                                       13
    penalty on the effective date of the permit and thereafter so
    
    that it could take advantage of the two-year "grace period."        The
    
    district court granted this motion and amended its May 27, 1994
    
    opinion to allow the requested discharge.      Sierra Club timely
    
    filed a notice of appeal from the court's order amending the
    
    injunction.
    
    
    
                                II.   DISCUSSION
    
    A.   Cedar Point's Appeal
    
         In its appeal from the judgment of the district court, Cedar
    
    Point raises the following points of error: (1) Sierra Club lacks
    
    standing to bring this action; (2) Sierra Club has failed to
    
    state a claim under the citizen suit provision of the CWA; (3)
    
    Cedar Point's discharges of produced water into Galveston Bay do
    
    not violate the CWA; (4) the district court erred in striking
    
    Cedar Point's designation of experts and excluding their
    
    testimony; (5) the district court erred in calculating the amount
    
    of the penalty imposed and in awarding attorneys' fees to Sierra
    
    Club; and (6) the district court erred in dismissing Cedar
    
    Point's counterclaim for abuse of process.      We address each of
    
    these arguments in turn.
    
    
    
         1.   Standing
    
         Cedar Point's first argument on appeal is that Sierra Club
    
    lacks standing to bring this citizen suit.      Specifically, Cedar
    
    Point argues that Sierra Club members have not shown the
    
    
                                       14
    requisite "injury in fact" nor have they demonstrated that the
    
    alleged injury is "fairly traceable" to Cedar Point's discharge.
    
    Rather, Cedar Point claims that the affidavits submitted by
    
    Sierra Club members showed only a concern over produced water
    
    discharges into Galveston Bay, but not an injury from those
    
    discharges, much less an injury traceable to Cedar Point's
    
    discharges in particular.   We review a district court's holding
    
    on the issue of standing de novo.22   MD II Entertainment, Inc. v.
    
    City of Dallas, 
    28 F.3d 492
    , 497 (5th Cir. 1994); United States
    
    v. $38,570 U.S. Currency, 
    950 F.2d 1108
    , 1111 (5th Cir. 1992).
    
         An organization such as Sierra Club has standing to bring an
    
    action on behalf of its members where:   (1) the organization's
    
    members would have standing to sue individually; (2) the
    
    organization is seeking to protect interests that are germane to
    
    its purpose; and (3) neither the claim asserted nor the relief
    
         22
          It is unclear what the district court's rulings on Sierra
    Club's standing were, or indeed, whether the court held anything
    at all on this issue. Cedar Point had moved for partial summary
    judgment on the issues of statutory and constitutional standing.
    In denying this motion, the court did not comment on the
    statutory standing issue and stated only that the affidavits
    submitted by Sierra Club's members were sufficient to defeat
    summary judgment as to constitutional standing. The effect of
    this ruling was to leave the standing issues to be tried, and
    indeed, one of Sierra Club's affiants did testify at trial as a
    fact witness on the issue of constitutional standing. In its
    Memorandum Opinion, however, the court stated that it had
    "specifically held that Sierra Club had standing to pursue
    enforcement of this Clean Water Act claim" in its Partial Summary
    Judgment Order. Therefore, it is questionable whether the
    district court ever actually ruled on the standing issues.
    Nevertheless, because our review is de novo, this discrepancy
    does not affect our treatment of the issues. In addition,
    standing is a jurisdictional requirement, and may always be
    addressed for the first time on appeal. In re Taxable Mun. Bond
    Sec. Litig., 
    51 F.3d 518
    , 521 (5th Cir. 1995).
    
                                    15
    requested requires the organization's members to participate in
    
    the lawsuit.   Hunt v. Washington State Apple Advertising Comm'n,
    
    
    432 U.S. 333
    , 343 (1977); National Treasury Employees Union v.
    
    U.S. Dep't of Treasury, 
    25 F.3d 237
    , 241 (5th Cir. 1994); Save
    
    Our Community v. U.S.E.P.A., 
    971 F.2d 1155
    , 1160 (5th Cir. 1992).
    
    The parties do not dispute that Sierra Club satisfies the second
    
    and third prongs of this test.   Rather, it is the standing of
    
    individual members of Sierra Club that is at issue.
    
         In order to establish individual standing, a person must
    
    show that:   (1) he has suffered an actual or threatened injury as
    
    a result of the actions of the defendant; (2) the injury is
    
    "fairly traceable" to the defendant's actions; and (3) the injury
    
    will likely be redressed if he prevails in his lawsuit.      Save Our
    
    Community, 971 F.2d at 1160 (quoting Valley Forge Christian
    
    College v. Americans United for Separation of Church and State,
    
    Inc., 
    454 U.S. 464
    , 472 (1982)).      There is no question that an
    
    injunction would redress the injuries allegedly suffered by
    
    Sierra Club members who visit and recreate in Galveston Bay.
    
    Therefore, we focus on the "injury in fact" and "fairly
    
    traceable" requirements.
    
    
    
        a.   "Injury in Fact"
    
         Sierra Club submitted affidavits from three of its members
    
    in response to Cedar Point's standing challenge.      These affiants
    
    described how they use Galveston Bay for various recreational
    
    activities, including swimming, canoeing, and bird watching.
    
    
                                     16
    Also, two of the affiants commented that they live near the Bay.
    
    With respect to produced water, each affiant made the following
    
    statement:
    
              I am familiar with "produced water" that is
              being discharged into Galveston Bay by oil
              and gas production facilities located on the
              Bay. I am concerned that the discharge of
              produced water adversely affects the water
              quality and the wildlife of the Bay.
              Therefore, I am concerned that the continued
              discharge of produced water will impair my
              ability to enjoy the activities in which I
              participate.
    
    Only one of the affiants, Tommy Douglas ("Douglas"), indicated
    
    that he had participated in activities in the vicinity of Cedar
    
    Point's discharge.   None of the affiants stated that Cedar
    
    Point's produced water in particular had impaired or threatened
    
    to impair his use of the Bay.
    
         Cedar Point makes much of the fact that the affiants
    
    expressed "concern" that the discharge of produced water will
    
    impair their ability to engage in recreational activities.    Such
    
    language, Cedar Point argues, stated only an interest in
    
    eliminating produced water discharges into Galveston Bay, and not
    
    an injury in fact.   We find no merit in this contention.   Whether
    
    the affiants were "concerned" or "believed" or "knew to a moral
    
    certainty" that produced water would adversely affect their
    
    activities on the Bay is a semantic distinction that makes little
    
    difference in the standing analysis.   The requirement that a
    
    party demonstrate an injury in fact is designed to limit access
    
    to the courts to those "who have a direct stake in the outcome,"
    
    Valley Forge Christian College, 454 U.S. at 473 (quoting Sierra
    
                                    17
    Club v. Morton, 
    405 U.S. 727
    , 740 (1972)), as opposed to those
    
    who "would convert the judicial process into `no more than a
    
    vehicle for the vindication of the value interests of concerned
    
    bystanders.'"    Id. (quoting United States v. SCRAP, 
    412 U.S. 669
    ,
    
    687 (1973)).    Sierra Club's affiants are concerned, but they are
    
    not mere "bystanders."   Two of the affiants live near Galveston
    
    Bay and all of them use the Bay for recreational activities.    All
    
    of the affiants expressed fear that the discharge of produced
    
    water will impair their enjoyment of these activities because
    
    these activities are dependent upon good water quality.    Clearly,
    
    Sierra Club's affiants have a "direct stake" in the outcome of
    
    this lawsuit.
    
         That this injury is couched in terms of future impairment
    
    rather than past impairment is of no moment.    The Supreme Court
    
    has expressly held that a "threatened injury" will satisfy the
    
    "injury in fact" requirement for standing.     Id. at 472 (quoting
    
    Gladstone, Realtors v. Village of Bellwood, 
    441 U.S. 91
    , 99
    
    (1979)); see also Sierra Club v. Simkins Indus., Inc., 
    847 F.2d 1109
    , 1113 & n.4 (4th Cir. 1988) (noting that affidavit
    
    establishing threat of future injury met Article III standing
    
    requirements), cert. denied, 
    491 U.S. 904
     (1989).    Also, at least
    
    one of the affiants did claim to have suffered a past injury:
    
    Mark Muhich ("Muhich") stated that, during a number of his bird
    
    watching trips in Galveston Bay, he had observed discolored
    
    water, oil, and grease, and had detected unpleasant odors; he
    
    also asserted that polluted water impaired his enjoyment of bird
    
    
                                     18
    watching.   The Third Circuit has held that this precise sort of
    
    injury satisfies the "injury in fact" requirement for standing.
    
    Public Interest Research Group of New Jersey, Inc. v. Powell
    
    Duffryn Terminals, Inc., 
    913 F.2d 64
    , 71 (3rd Cir. 1990) (finding
    
    sufficient injury where plaintiff organization submitted
    
    affidavit of member who stated that he was offended by brown
    
    color and bad odor of water body adjacent to park where he went
    
    bird watching), cert. denied, 
    498 U.S. 1109
     (1991).
    
         Moreover, we have held that affidavits similar to those
    
    submitted by Sierra Club were sufficient to satisfy the "injury
    
    in fact" requirement in a citizen's suit brought under the CWA.
    
    In Save Our Community, the plaintiff organization supported its
    
    standing argument with affidavits by some of its members who
    
    owned property or lived in the vicinity of the wetlands that were
    
    being drained by the defendant.    These affiants stated that they
    
    enjoyed "the wildlife, aesthetics, open space, ecological and
    
    other values of the wetlands, . . . and [were] directly and
    
    beneficially interested in the continued protection,
    
    preservation, and enhancement of these values."    Id. at 1160-61.
    
    In holding that these affidavits demonstrated a constitutionally
    
    sufficient injury in fact, we noted that "harm to aesthetic,
    
    environmental, or recreational interests is sufficient to confer
    
    standing, provided that the party seeking review is among the
    
    injured."   Id. at 1161 (citing Sierra Club v. Morton, 405 U.S. at
    
    734-35).    We also recognized that "[t]hese injuries need not be
    
    large, an identifiable trifle will suffice."    Id. at 1161
    
    
                                      19
    (quoting Powell Duffryn, 913 F.2d at 71 (internal quotations
    
    omitted)).      Given this low threshold requirement,23 we hold that
    
    the affidavits submitted by Sierra Club are sufficient to satisfy
    
    the "injury in fact" prong of the test for standing.
    
    
    
        b.      "Fairly Traceable"
    
           Cedar Point further argues that, even if the affidavits
    
    submitted by Sierra Club do establish an injury, they do not
    
    establish that the injury is fairly traceable to Cedar Point's
    
    discharge of produced water.      In this regard, Cedar Point focuses
    
    on the affidavits of Douglas and Muhich.      Cedar Point notes that
    
    Douglas, the only affiant who stated that he engaged in activity
    
    in the vicinity of Cedar Point's discharge, failed to assert that
    
    Cedar Point's produced water in particular injured him in any
    
    way.    Cedar Point also notes that Muhich, the only affiant who
    
    claimed to observe discolored water and foul odors, did not
    
    allege that he made these observations in that part of Galveston
    
    
           23
          CWA cases from other circuits corroborate our observation
    that the threshold for the injury requirement is fairly low.
    See, e.g., United States v. Metropolitan St. Louis Sewer Dist.
    (MSD), 
    883 F.2d 54
    , 56 (8th Cir. 1989) (finding sufficient injury
    where complaint alleged that defendant had discharged pollutants
    into Mississippi River without a permit, that many of the
    intervenor organization's members used the river for recreational
    purposes, and that pollution of the water adversely affected this
    recreational interest); Simkins Indus., 847 F.2d at 1112 n.3 &
    1113 (finding sufficient injury where the affidavit of a single
    group member who regularly hiked along river alleged that
    defendant's activities adversely affected his activities and
    interests); Friends of the Earth v. Consolidated Rail Corp., 
    768 F.2d 57
    , 61 (2nd Cir. 1985) (finding sufficient injury where
    organization submitted affidavit of member who regularly drove on
    bridge over river and was offended by pollution in the river).
    
                                       20
    Bay near Cedar Point's discharge.     Accordingly, Cedar Point urges
    
    that Sierra Club has not met the "fairly traceable" requirement
    
    of standing.
    
         The Third Circuit has articulated a three-part test for
    
    establishing that an injury is "fairly traceable" to a
    
    defendant's discharge in a citizen suit under the CWA.       Powell
    
    Duffryn, 913 F.2d at 72.   According to this test, the plaintiff
    
    must "show[] that a defendant has (1) discharged some pollutant
    
    in concentrations greater than allowed by its permit (2) into a
    
    waterway in which the plaintiffs have an interest that is or may
    
    be adversely affected by the pollutant and that (3) the pollutant
    
    causes or contributes to the kinds of injuries alleged by the
    
    plaintiffs."   Id.   While an overly broad application of this test
    
    may be problematic, see infra n.24, its application to this case
    
    is useful.
    
         Applying this test to Douglas, we find that Sierra Club has
    
    established that his injury is fairly traceable to Cedar Point's
    
    discharge.   First, because Cedar Point does not even have a
    
    permit for its discharges of produced water, any discharge
    
    exceeds that which is allowed under the CWA.    Second, Douglas
    
    asserted in his affidavit and testified that he has canoed and
    
    participated in educational trips in the vicinity of Cedar
    
    Point's discharge, and that he intends to continue these
    
    activities in this area in the future.    These assertions
    
    establish Douglas's interest in that part of Galveston Bay around
    
    Cedar Point's discharge.   With respect to whether produced water
    
    
                                     21
    does or may adversely affect Galveston Bay, Sierra Club presented
    
    expert testimony that Cedar Point's produced water was typical in
    
    many respects, and that typical produced water has harmful
    
    effects on water quality and marine life.
    
         Finally, produced water contributes to the types of injuries
    
    alleged by Douglas, including his fear that the harmful effects
    
    on water quality and the ecosystem will impair his ability to
    
    enjoy canoeing and observing wildlife.    Contrary to Cedar Point's
    
    suggestion, the Constitution does not require Sierra Club to
    
    produce an affiant who claims that Cedar Point's discharge in
    
    particular injured him in some way.    We have noted that "the
    
    fairly traceable element does not require that the plaintiffs
    
    `show to a scientific certainty that [the] defendant's effluent,
    
    and [the] defendant's effluent alone, caused the precise harm
    
    suffered by the plaintiffs.'"   Save Our Community, 971 F.2d at
    
    1161 (quoting Powell Duffryn, 913 F.2d at 72).    Given the number
    
    of entities discharging chemicals into Galveston Bay, it would be
    
    virtually impossible for any of Sierra Club's members to trace
    
    his injuries to Cedar Point's discharge in particular.    Rather,
    
    it is sufficient for Sierra Club to show that Cedar Point's
    
    discharge of produced water contributes to the pollution that
    
    impairs Douglas's use of the Bay.     See Natural Resources Defense
    
    Council, Inc. v. Watkins, 
    954 F.2d 974
    , 980 (4th Cir. 1992);
    
    Powell Duffryn, 913 F.2d at 72 n.8.    Therefore, we hold that
    
    
    
    
                                    22
    Sierra Club has, by Douglas's affidavit, met the "fairly
    
    traceable" requirement for standing.24
    
    
    
        2.    Stating a Claim Under the CWA
    
         Cedar Point also contends that Sierra Club has failed to
    
    state a claim under the citizen suit provision of the CWA because
    
    Sierra Club has not alleged that Cedar Point is violating an
    
    
         24
          Because we hold that Douglas's affidavit establishes an
    injury in fact that is fairly traceable to Cedar Point's
    discharge, we need not decide whether Sierra Club's other
    affiants also meet the "fairly traceable" requirement. See,
    e.g., Simkins Indus., 847 F.2d at 1113 (4th Cir. 1988) (finding
    organizational standing where one member's affidavit established
    individual standing), cited with approval in Save Our Community,
    971 F.2d at 1161.
           We note, however, that Douglas was the only affiant who
    expressed an interest in that part of Galveston Bay where Cedar
    Point's discharge is located. It is true that a strict
    application of the Powell Duffryn test does not demand that sort
    of specificity, because the plaintiff need only show an interest
    in the "waterway" into which the defendant is discharging a
    pollutant; nevertheless, such a literal reading of Powell Duffryn
    may produce results incongruous with our usual understanding of
    the Article III standing requirements. For example, some
    "waterways" covered by the CWA may be so large that plaintiffs
    should rightfully demonstrate a more specific geographic or other
    causative nexus in order to satisfy the "fairly traceable"
    element of standing. Cf. Lujan v. National Wildlife Fed'n, 
    497 U.S. 871
    , 889 (1990) (holding that an affidavit alleging general
    use of a two million-acre land area was not specific enough to
    preclude summary judgment on the issue of statutory standing
    where the challenged action affected only 4500 of the two million
    acres); Natural Resources Defense Council, Inc. v. Watkins, 954
    F.2d at 979 (4th Cir. 1992) (reversing district court's finding
    of no standing in a CWA case where affiants alleged use of river
    near the discharge site because the affidavits did not require
    the court "to assume any particularized geographic usage by the
    affiants to establish the injury necessary to confer standing").
    Therefore, while we find the Powell Duffryn test useful for
    analyzing whether Douglas's affidavit meets the "fairly
    traceable" requirement, we recognize that it may not be an
    appropriate standard in other CWA cases.
    
    
                                     23
    effluent limitation or permit provision promulgated by EPA.25    We
    
    review the issue of whether a plaintiff has stated a claim under
    
    the same standard used by the district court:     A claim may not be
    
    dismissed unless it appears certain that the plaintiff cannot
    
    prove any set of facts in support of his claim that would entitle
    
    him to relief.     Norman v. Apache Corp., 
    19 F.3d 1017
    , 1021 (5th
    
    Cir. 1994); Carney v. RTC, 
    19 F.3d 950
    , 954 (5th Cir. 1994).
    
         As authority for its position, Cedar Point cites to the
    
    following language from our decision in Save Our Community v.
    
    U.S.E.P.A., 
    971 F.2d 1155
     (5th Cir. 1992) (per curiam):
    
                 Without the violation of either (1) an
                 effluent standard or limitation under the
                 CWA, or (2) an order issued with respect to
                 these standards and limitations, the district
                 court lacks jurisdiction to act.
    
    Id. at 1162.     With respect to the constituents of Cedar Point's
    
    produced water, EPA has only promulgated an effluent limitation
    
    on the oil and grease content.26    Because Cedar Point's
    
    discharges have always complied with this limitation, Cedar Point
    
    argues that Sierra Club has failed to state a claim.
    
    
    
    
         25
          The parties sometimes mistakenly refer to this issue as
    "statutory standing." The thrust of Cedar Point's argument,
    however, is that Sierra Club has failed to state a claim under
    the citizen suit provision of the CWA. "Statutory standing" is
    an administrative law concept that arises in the context of
    challenges to agency actions in which a court must determine
    whether the interest sought to be protected is within the "zone
    of interests" protected by the relevant statute. See Association
    of Data Processing Serv. Orgs., Inc. v. Camp, 
    397 U.S. 150
    , 153-
    54 (1970).
         26
              40 C.F.R. § 435.42.
    
                                       24
           Also, Cedar Point contends that Sierra Club has failed to
    
    state a claim with respect to the discharges of the other
    
    constituents of Cedar Point's produced water separately or for
    
    the discharge of produced water as a whole because EPA has not
    
    established an applicable effluent limitation or permit for those
    
    discharges.    Cedar Point reasons that, because there is no
    
    effluent limitation or permit in place for these discharges,
    
    there can be no violation of a limitation, as required by Save
    
    Our Community.    In support of this contention, Cedar Point notes
    
    that the Southern District of Texas has held that the discharge
    
    of a pollutant without a permit is not unlawful under the CWA
    
    unless EPA has adopted a relevant effluent standard or permit
    
    limitation.    United States v. GAF Corp., 
    389 F. Supp. 1379
    , 1386
    
    (S.D. Tex. 1975).    Cedar Point emphatically asserts that this
    
    interpretation represents the way that Congress intended the CWA
    
    to work.
    
           We find Cedar Point's arguments to be without merit.    First,
    
    Cedar Point urges a result contrary to the plain language of the
    
    CWA.    As we noted in Save Our Community, the citizen suit
    
    provision of the CWA states that:
    
                [A]ny citizen may commence a civil action on
                his own behalf . . . against any person . . .
                who is alleged to be in violation of (A) an
                effluent standard or limitation under this
                chapter or (B) an order issued by the
                Administrator or a State with respect to such
                a standard or limitation . . . .
    
    33 U.S.C. § 1365(a)(1).    The term "effluent standard or
    
    limitation," however, is expanded in a later subsection:
    
    
                                     25
                 For purposes of   this section, the term
              "effluent standard   or limitation under this
              chapter" means (1)   effective July 1, 1973, an
              unlawful act under   subsection (a) of section
              1311 of this title   . . . .
    
    33 U.S.C. § 1365(f).   Section 1311(a) provides:
    
                 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.
    
    33 U.S.C. § 1311(a).   Among those sections listed for which
    
    compliance is necessary to make the discharge of a pollutant
    
    lawful, § 1342 provides for NPDES permits that regulate the
    
    discharge of pollutants.   Therefore, the discharge of any
    
    pollutant without a NPDES permit is an unlawful act under
    
    § 1311(a).   The Supreme Court has interpreted § 1311 and § 1342
    
    in this way.   City of Milwaukee v. Illinois, 
    451 U.S. 304
    , 310-11
    
    (1981) ("[I]t is illegal to discharge pollutants into the
    
    Nation's waters except pursuant to a permit.").    Reading these
    
    sections together with § 1365(a) and (f), it is clear that a
    
    citizen may bring an action under the CWA against any person who
    
    is allegedly discharging a pollutant without a NPDES permit.
    
         We agree with Cedar Point that Congress initially intended
    
    that a citizen suit based on a violation of § 1311(a) for
    
    discharging pollutants without a permit would only lie where EPA
    
    had issued a relevant effluent limitation or permit; that is,
    
    where the defendant was discharging pollutants without a permit
    
    because he had failed to obtain a permit that was available,
    
    rather than because EPA had failed to issue such permits.    This
    
    
    
                                     26
    intent is clearly established by the inclusion of particular
    
    dates in the statute, as explained by the legislative history.
    
         First, the citizen suit provision states that a citizen may
    
    bring an action against a person allegedly committing an unlawful
    
    act under § 1311(a) "effective July 1, 1973."     33 U.S.C. §
    
    1365(f)(1).     The CWA was enacted on October 18, 1972.   Federal
    
    Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-
    
    500, 86 Stat. 816 (1972).     The legislative history expressly
    
    states that Congress delayed the availability of a citizen suit
    
    based on an allegedly unlawful act under § 1311(a) in order to
    
    give EPA and the states time to issue all of the permits required
    
    by the CWA.27    Of course, EPA and the states have yet to achieve
    
    this ambitious goal.     Nevertheless, Congress has not amended the
    
    statute to account for the fact that, since July 1, 1973,
    
    numerous entities have violated § 1311(a) by discharging
    
    pollutants without a permit because EPA and the states have not
    
    issued the necessary permits.
    
         27
              Authority granted to citizens to bring
              enforcement actions under this section is
              limited to effluent standards or limitations
              established administratively under the Act.
              Such standards or limitations are defined in
              subsection (f) of [§ 1365] to include the
              enforcement of an unlawful discharge under
              [§ 1311(a)], effective after July 1, 1973.
              By limiting the effective date of citizens
              suits for violation of this provision the
              Committee believes sufficient time is
              available for the State and Federal
              governments to develop fully, and execute the
              authority contained in [§ 1342, which
              provides for NPDES permits].
    
    S. Rep. No. 414, 92d Cong., 1st Sess. 81 (1971) (emphasis added).
    
                                      27
         In a similar vein, § 1342(k) provides that:
    
              Until December 31, 1974, in any case where a
              permit for discharge has been applied for
              pursuant to this section, but final
              administrative disposition of such
              application has not been made, such discharge
              shall not be a violation of (1) section 1311,
              1316, or 1342 of this title, or (2) section
              407 of this title, unless the Administrator
              or other plaintiff proves that final
              administrative disposition of such
              application has not been made because of the
              failure of the applicant to furnish
              information reasonably required or requested
              in order to process the application.
    
    33 U.S.C. § 1342(k).   Again, the purpose of this provision was to
    
    provide a "liability shield" to dischargers for a limited time so
    
    that they would not be exposed to legal action because of
    
    administrative delays in implementing the permit provisions of
    
    the CWA; apparently, Congress expected all permit applications to
    
    be processed by December 31, 1974.   For example, in the House
    
    debates on the conference report, Representative Clark commented:
    
              Section 402(k) states that until December 31,
              1974, a discharge shall not be in violation
              of law if a permit has been applied for, and
              the applicant has furnished all information
              reasonably required or requested. Hopefully,
              the program will be in the hands of the
              States by December 31, 1974, and permits will
              be issued. But, if not, Congress may have to
              extend this date.
    
    1 A Legislative History of the Water Pollution Control Act
    
    Amendments of 1972 274 (Environmental Policy Div., Congressional
    
    Research Serv. ed., 1973) (House consideration of the conference
    
    report) (emphasis added).   As with § 1365(f)(1), however,
    
    Congress has not extended the availability of this liability
    
    shield beyond its original expiration date, despite the fact that
    
                                    28
    applications for permits are continually filed and many remain
    
    pending.
    
         The result of Congress's failure to extend these exceptions
    
    for cases of administrative delay or default is that, "[u]nless
    
    the Administrator issues an NPDES permit, `the discharge of any
    
    pollutant by any person [is] unlawful [under § 1311(a)].'"
    
    National Wildlife Fed'n v. Gorsuch, 
    693 F.2d 156
    , 165 (D.C. Cir.
    
    1982); see also Natural Resources Defense Council, Inc. v.
    
    Costle, 
    568 F.2d 1369
    , 1375 (D.C. Cir. 1977) ("[T]he
    
    Administrator has discretion either to issue a permit or to leave
    
    the discharger subject to the total proscription of [§ 1311].").
    
    As stated previously, the CWA explicitly provides that a citizen
    
    may sue persons allegedly committing unlawful acts under
    
    § 1311(a).    33 U.S.C. § 1365(f)(1).   Therefore, a citizen may
    
    bring an action against a person allegedly discharging a
    
    pollutant without a permit, even if the discharger's illegal
    
    behavior results from EPA's failure or refusal to issue the
    
    necessary permit.
    
         This result is supported by Supreme Court precedent
    
    involving an analogous administrative default in the context of
    
    an environmental enforcement action.     General Motors Corp. v.
    
    United States, 
    496 U.S. 530
     (1990).     General Motors involved a
    
    state implementation plan ("SIP") that regulated emissions from
    
    automobile painting operations under the Clean Air Act ("CAA").
    
    Id. at 534.   The original SIP required General Motors to comply
    
    fully with certain emission limits by December 31, 1985.     Id. at
    
    
                                     29
    535.    One day before this deadline passed, the state submitted to
    
    EPA a proposed revision of the SIP that would have extended the
    
    compliance deadline to summer 1987.      Id.   The CAA authorizes a
    
    state to propose a revised SIP and requires EPA to approve the
    
    revised SIP if it meets certain statutory requirements.       Id. at
    
    533.    EPA did not act on the proposed SIP revision until
    
    September 4, 1988.    Id.   In the meantime, however, EPA filed an
    
    enforcement action against General Motors on August 17, 1987,
    
    alleging that General Motors violated the compliance deadline
    
    contained in the old SIP.     Id.
    
           On appeal, General Motors contended that EPA could not, on
    
    the one hand, bring an enforcement action for violation of the
    
    original compliance deadline, while at the same time unreasonably
    
    delay acting on a proposal to extend that deadline.       Id. at 540.
    
    The Court rejected this argument:
    
                   There is nothing in the statute that
                limits EPA's authority to enforce the
                [existing SIP] solely to those cases where
                EPA has not unreasonably delayed action on a
                proposed SIP revision. Moreover, we find it
                significant that Congress expressly enacted
                an enforcement bar elsewhere in the statute.
                See § 113(d)(10); 42 U.S.C. § 7413(d)(10)
                (1982 ed.) ("During the period of the order .
                . . no Federal enforcement action pursuant to
                this section and no action under section 304
                of this Act shall be pursued against such
                owner . . . ."). The fact that Congress
                explicitly enacted an enforcement bar similar
                to the one proposed by petitioner in one
                section of the statute, but failed to do so
                in the section at issue in this case
                reinforces our refusal to import such a bar
                here.
    
    Id. at 541 (citations omitted).
    
    
                                        30
         Our analysis of the citizen suit provision of the CWA tracks
    
    the Court's reasoning in General Motors.     Nothing in the CWA
    
    limits a citizen's right to bring an action against a person who
    
    is allegedly discharging a pollutant without a permit solely to
    
    those cases where EPA has promulgated an effluent limitation or
    
    issued a permit that covers the discharge.    We note that Congress
    
    did explicitly enact limitations on citizen suits for the purpose
    
    of protecting putative defendants whose violations could be
    
    attributed to administrative delay in promulgating regulations;
    
    however, these limitations have expired by their own terms.       33
    
    U.S.C. §§ 1342(k), 1365(f)(1).   Further, although these
    
    limitations may have been based on unrealistic expectations
    
    regarding EPA's ability to carry out fully its statutory mandate,
    
    it is significant that Congress has not in twenty-three years
    
    amended these sections to conform to the realities of EPA's
    
    regulatory burden and the attendant administrative delay.
    
    Therefore, while Congress's original intent may have been to
    
    limit citizen suits based on unpermitted discharges to those
    
    instances where an applicable permit was available from the state
    
    or EPA, Congress's subsequent inaction evinces an intent to allow
    
    such citizen suits even where the discharger's failure to obtain
    
    a permit can be explained by administrative default.
    
         We are also not convinced that other courts have qualified
    
    the right to sue a person allegedly discharging pollutants
    
    without a permit by limiting that right to situations where EPA
    
    has promulgated a relevant effluent limitation or permit.    The
    
    
                                     31
    only authority that Cedar Point can cite for this proposition is
    
    the district court opinion in GAF Corp., which we find to have
    
    little persuasive value.   First, the language in GAF Corp. cited
    
    by Cedar Point is dicta.   Also, GAF Corp. involved a suit for
    
    injunctive relief by the government, rather than a citizen suit
    
    for damages; the court may have found it inequitable to allow the
    
    government to sue when it had not promulgated regulations to
    
    guide the defendant's behavior.    Yet, even with respect to
    
    actions brought by the government, this language in GAF Corp. has
    
    been criticized.   In United States v. Frezzo Bros., Inc., 
    602 F.2d 1123
     (3rd Cir. 1979), cert. denied, 
    444 U.S. 1074
     (1980),
    
    the Third Circuit specifically rejected GAF Corp.'s
    
    interpretation of the CWA:
    
              We see nothing impermissible with allowing
              the Government to enforce the Act by invoking
              § 1311(a), even if no effluent limitations
              have been promulgated for the particular
              business charged with polluting. Without
              this flexibility, numerous industries not yet
              considered as serious threats to the
              environment may escape administrative, civil,
              or criminal sanctions merely because the EPA
              has not established effluent limitations.
              Thus, dangerous pollutants could be
              continually injected into the water solely
              because the administrative process has not
              yet had the opportunity to fix specific
              effluent limitations. Such a result would be
              inconsistent with the policy of the Act.
                 We do not believe, as did the court in
              GAF, that the permit procedure urged by the
              government is unduly burdensome on business.
    
    Frezzo Bros., 602 F.2d at 1128.
    
         Moreover, we have held that obtaining a permit is a
    
    requirement separate and distinct from the requirement that a
    
    
                                      32
    discharger comply with any applicable effluent limitations.
    
    Carr. v. Alta Verde Indus., Inc., 
    931 F.2d 1055
    , 1060 n.3 (5th
    
    Cir. 1991).   Indeed, numerous courts have allowed suits by
    
    citizens against persons allegedly discharging pollutants without
    
    a permit, despite the fact that the discharger was complying with
    
    applicable effluent limitations or that no applicable effluent
    
    limitation was in place.    See, e.g., Concerned Area Residents for
    
    Env't v. Southview Farm, 
    34 F.3d 114
    , 117 (2nd Cir. 1994), cert.
    
    denied, 
    115 S. Ct. 1793
     (1995); Carr, 931 F.2d at 1061; Menzel v.
    
    County Utils. Corp., 
    712 F.2d 91
    , 94 (4th Cir. 1983); Washington
    
    Wilderness Coalition v. Hecla Min. Co., 
    870 F. Supp. 983
    , 986
    
    (E.D. Wash. 1994); Hawaii's Thousand Friends, Life of the Land,
    
    Inc. v. City and County of Honolulu, 
    806 F. Supp. 225
    , 230 (D.
    
    Hawaii 1992); Hudson River Fishermen's Ass'n v. County of
    
    Westchester, 
    686 F. Supp. 1044
    , 1050 (S.D.N.Y. 1988); O'Leary v.
    
    Moyer's Landfill, Inc., 
    523 F. Supp. 642
    , 646 (E.D. Pa. 1981).
    
         Finally, EPA itself, whose expertise in enforcing the CWA is
    
    entitled to some deference,28 has recognized that citizens have
    
    the right to sue "Coastal Subcategory" operators who are
    
    discharging produced water without a permit.   57 Fed. Reg.
    
    60,926, 60,944-45 (1992).   At the time EPA made this statement,
    
    it had never issued such permits and had only issued effluent
    
    limitations on the oil and grease content of produced water.
    
    
    
         28
          We generally give deference to an agency's interpretation
    of a statute that it administers. Kershaw v. Resolution Trust
    Corp., 
    987 F.2d 1206
    , 1208 (5th Cir. 1993).
    
                                     33
    Accordingly, we hold that Sierra Club has stated a claim under
    
    the citizen suit provision of the CWA.
    
    
    
        3.   Violation of the CWA
    
         Cedar Point's third argument on appeal is that the district
    
    court erred in granting Sierra Club's motion for partial summary
    
    judgment on the issue of whether Cedar Point's discharges of
    
    produced water violated the CWA.       We review the granting of
    
    summary judgment de novo, applying the same criteria used by the
    
    district court in the first instance.       Norman v. Apache Corp., 
    19 F.3d 1017
    , 1021 (5th Cir. 1994); Conkling v. Turner, 
    18 F.3d 1285
    , 1295 (5th Cir. 1994).     First, we consult the applicable law
    
    to ascertain the material factual issues.       King v. Chide, 
    974 F.2d 653
    , 655-56 (5th Cir. 1992).       We then review the evidence
    
    bearing on those issues, viewing the facts and inferences to be
    
    drawn therefrom in the light most favorable to the nonmoving
    
    party.   Lemelle v. Universal Mfg. Corp., 
    18 F.3d 1268
    , 1272 (5th
    
    Cir. 1994); FDIC   v. Dawson, 
    4 F.3d 1303
    , 1306 (5th Cir. 1993),
    
    cert. denied, 
    114 S. Ct. 2673
     (1994).       Summary judgment is proper
    
    "if the pleadings, depositions, answers to interrogatories, and
    
    admissions on file, together with the affidavits, if any, show
    
    that there is no genuine issue as to any material fact and that
    
    the moving party is entitled to judgment as a matter of law."
    
    Fed. R. Civ. P. 56(c).
    
         Cedar Point maintains that the discharge of produced water
    
    without a permit does not violate the CWA because the statute
    
    
                                      34
    only prohibits the discharge of a "pollutant," and, it argues,
    
    neither produced water nor any of its constituents is a pollutant
    
    within the meaning of the CWA.   First, Cedar Point contends that
    
    its produced water and the components thereof are not pollutants
    
    "per se" because they are not specifically enumerated in the
    
    CWA's definition of "pollutant."      That provision states:
    
                  The term "pollutant" means dredged spoil,
               solid waste, incinerator residue, sewage,
               garbage, sewage sludge, munitions, chemical
               wastes, biological materials, radioactive
               materials, heat, wrecked or discarded
               equipment, rock, sand, cellar dirt and
               industrial, municipal, and agricultural waste
               discharged into water. This term does not
               mean (A) "sewage from vessels" within the
               meaning of section 1322 of this title; or (B)
               water, gas, or other material which is
               injected into a well to facilitate production
               of oil or gas, or water derived in
               association with oil or gas production and
               disposed of in a well, if the well used
               either to facilitate production or for
               disposal purposes is approved by authority of
               the State in which the well is located, and
               if such State determines that such injection
               or disposal will not result in the
               degradation of ground or surface water
               resources.
    
    33 U.S.C. § 1362(6).   Cedar Point then argues that courts may not
    
    expand this definition to include substances not explicitly
    
    listed, citing as authority National Wildlife Fed'n v. Gorsuch,
    
    
    693 F.2d 156
     (D.C. Cir. 1982).   In this opinion, the court noted
    
    its reservations about adding terms to the definition of
    
    pollutant because "Congress used restrictive phrasing--`[t]he
    
    term "pollutant" means dredged spoil, [etc.]'--rather than the
    
    looser phrase `includes,' used elsewhere in the Act."      Id. at
    
    171-72.   The court elaborated that the use of the term "means"
    
                                     35
    indicates an intent to exclude any meaning not expressly stated.
    
    Id. at 172 (citing Colautti v. Franklin, 
    439 U.S. 379
    , 392 n.10
    
    (1979)).
    
         Further, the court relied on the legislative history of the
    
    CWA in determining that "Congress did not intend the term
    
    `pollutant' to be all inclusive."    Id. at 173.   The court pointed
    
    out that the purpose of listing specific items in the definition
    
    was "so that litigable issues are avoided over the question of
    
    whether the addition of a particular material is subject to
    
    control requirements."   Id. (quoting S. Rep. No. 414, 92d Cong.,
    
    1st Sess. 76 (1971) (internal quotation omitted)).    Also, the
    
    court noted that earlier draft versions of the CWA used more
    
    inclusive phrasing:   "The term `pollutant' means, but is not
    
    limited to, dredged spoil, . . ., and industrial, municipal,
    
    agricultural, and other waste discharged into water."     Id.
    
    (quoting H.R. 11,896, 92d Cong., 2d Sess. § 502(6) (1972)
    
    (emphasis added) (internal quotation omitted) and citing S. 2770,
    
    92d Cong., 1st Sess. § 502(f) (1971)).   The conference committee
    
    deleted the more inclusive phrases "but is not limited to" and
    
    "other waste," but offered no explanation for the change.       Id.
    
    (citing S. Rep. No. 1236 (Conf. Rep.), 92d Cong., 2d Sess. 143-44
    
    (1972)).
    
         Cedar Point concedes that a discharged substance may still
    
    be subject to regulation under the CWA even though it is not
    
    specifically listed in the definition of pollutant; however,
    
    Cedar Point contends that only EPA, and not the courts, may make
    
    
                                    36
    the determination that a "non-listed" substance is a pollutant.
    
    Again, Cedar Point relies principally on National Wildlife Fed'n
    
    v. Gorsuch.   In its review of the legislative history of the CWA,
    
    the court found "strong signals" that Congress "entrusted EPA
    
    with at least some discretion over which `pollutants' and sources
    
    of pollutants were to be regulated under the NPDES program."    Id.
    
    at 173.   First, the court recognized a general intent to give EPA
    
    "substantial discretion" in interpreting the CWA:
    
              In the administration of the Act, EPA will be
              required to establish numerous guidelines,
              standards and limitations. . . . [T]he Act
              provides Congressional guidance to the
              Administrator in as much detail as could be
              contrived. Virtually every action required
              of the Administrator by the Act, however,
              involves some degree of agency discretion,
              judgments involving a complex balancing of
              factors that include technological
              considerations, economic considerations, and
              others.
    
    Id. at 173 (quoting S. Rep. No. 1236 (Conf. Rep.), 92d Cong., 2d
    
    Sess. 149 (1972)).   The court then quoted Senator Muskie's
    
    comments, made during a debate over the Senate version of the
    
    CWA, as evidence of a specific intent to give EPA discretion in
    
    defining what constitutes a pollutant:
    
              Again, I do not get into the business of
              defining or applying these definitions to
              particular kinds of pollutants. That is an
              administrative decision to be made by the
              Administrator. Sometimes a particular kind
              of matter is a pollutant in one circumstance,
              and not in another.
    
    Id. at 173-74 (quoting 117 Cong. Rec. 38,838 (1971)).
    
         Cedar Point argues that Senator Muskie's comments in
    
    particular make it clear that only EPA may define what
    
                                    37
    constitutes a pollutant under the CWA.   First, Cedar Point notes
    
    that the above language expressly commits the definitional
    
    question to the Administrator of the EPA.   Also, Cedar Point
    
    emphasizes Senator Muskie's statement that a substance may be a
    
    pollutant in some situations and not in others.   Specifically,
    
    Cedar Point contends that whether a substance is a pollutant
    
    depends upon, inter alia, the quantity in which it is discharged,
    
    the characteristics of the receiving waters, and the proportion
    
    of the amount of the substance in the discharge to the amount
    
    that exists in nature.   For example, a substance may be very
    
    harmful when discharged in large quantities into a fresh water
    
    stream, but may have no measurable effect when a smaller quantity
    
    is discharged into a salt water bay.   EPA takes these factors
    
    into account when promulgating effluent limitations and issuing
    
    NPDES permits.   Therefore, Cedar Point argues, EPA defines a
    
    substance as a pollutant by prohibiting its discharge at certain
    
    levels through an effluent limitation or a permit.   Stated
    
    differently, if EPA has not regulated the discharge of a
    
    substance in an effluent limitation or a permit applicable to
    
    that discharge, that substance is not a pollutant in the context
    
    of that discharge.   Accordingly, Cedar Point maintains that it is
    
    not discharging a pollutant in violation of the CWA because:     (1)
    
    neither produced water nor any of its constituents is
    
    specifically listed under the CWA's definition of a pollutant;
    
    (2) EPA has not promulgated an effluent limitation or issued a
    
    permit that regulates Cedar Point's produced water or any of its
    
    
                                    38
    constituents except oil and grease; and (3) Cedar Point has
    
    always complied with the effluent limitation on oil and grease.
    
         Finally, Cedar Point advances a policy argument for its
    
    position that a court may not determine that a discharged
    
    substance is a pollutant where the substance is not specifically
    
    listed in the CWA and is not regulated by a limitation or permit
    
    applicable to the discharge in question.   Cedar Point argues
    
    that, if courts are allowed to make such decisions, chaos will
    
    result because courts will reach different results regarding what
    
    substances are pollutants and at what levels such substances may
    
    be discharged without causing harm to the environment.
    
         An analysis of Cedar Point's arguments requires us to engage
    
    in a two-step inquiry.   First, we must determine whether the CWA
    
    allows a court to find that a particular substance is a pollutant
    
    where it is not specifically listed under the CWA's definition of
    
    a pollutant and EPA has not promulgated an effluent limitation or
    
    permit regulating the discharge of the substance.   If a court may
    
    make such a finding, we must then determine whether Cedar Point's
    
    produced water, or any of its constituents, is a pollutant under
    
    the CWA.
    
         We begin our analysis with the statute itself.29    When a
    
    litigant's rights turn on whether his conduct falls within the
    
    proscriptions of a statute containing terms of art, a court will
    
    
         29
          "When courts interpret statutes, the initial inquiry is
    the language of the statute itself." Hightower v. Texas Hosp.
    Ass'n, 
    65 F.3d 443
    , 448 (5th Cir. 1995); see also Matter of
    Stone, 
    10 F.3d 285
    , 289 (5th Cir. 1994).
    
                                    39
    naturally seek guidance on the meanings of those terms by
    
    reference to definitions provided in the statute.      As stated
    
    above, the CWA defines the term "pollutant" as "meaning" a list
    
    of various items and "not meaning" a couple of discrete
    
    substances.   33 U.S.C. § 1362(6).     We do not disagree with the
    
    D.C. Circuit's assessment that the use of the word "means"
    
    manifests an intent to restrict the definition of pollutant to
    
    the terms listed.     National Wildlife Fed'n v. Gorsuch, 693 F.2d
    
    at 172.   As that court recognized, however, the breadth of many
    
    of the items in the list of "pollutants" tends to eviscerate any
    
    restrictive effect.    See id. at 173 n.52.    Characterizing the
    
    list as "haphazard," the court noted that it contains materials
    
    as specific as "`cellar dirt' (but not `dirt' as such) and as
    
    general as `industrial, municipal, and agricultural wastes.'"
    
    Id. at 174 n.56.    It is scarcely disputable that many substances
    
    discharged into the waters of the United States could be
    
    characterized as "industrial waste," or even as "chemical waste,"
    
    another listed material.    Therefore, the statutory definition of
    
    pollutant at least appears to invite the inclusion of discharged
    
    substances that are not specifically listed into these broad
    
    categories.   Otherwise, these terms would be meaningless; that
    
    is, there would be no such thing as "industrial waste" because
    
    any such discharge could always be described in more specific
    
    terms that are not listed in the statute.
    
         As the D.C. Circuit acknowledged, the legislative history of
    
    the CWA provides little guidance on how inclusive Congress
    
    
                                      40
    intended the definition of pollutant to be.         Id. at 173 n.52.
    
    For example, although Congress clearly stated that the rationale
    
    for listing pollutants was to avoid "litigable issues" over
    
    whether a particular material is subject to the statute, the
    
    inclusion in the list of such imprecise terms as "industrial,
    
    municipal, and agricultural waste" generates more litigable
    
    issues than it resolves.     Id.     Also, while the conference
    
    committee's elimination of the phrases "but not limited to" and
    
    "other waste" from the definition of pollutant may be interpreted
    
    as an attempt to limit the scope of the definition, the committee
    
    did not explain the change.        Id. at 173.   Further, we think that
    
    the retention of such broad terms in the definition suggests that
    
    the committee may have determined that the eliminated phrases
    
    were simply redundant.   For instance, a list that includes "solid
    
    waste," "chemical wastes," "biological materials," "radioactive
    
    materials," and "industrial, municipal, and agricultural waste"
    
    hardly needs to be amplified by the phrase "other waste."
    
    Finally, the D.C. Circuit noted that the House Report is "of
    
    little help in determining how inclusive Congress meant the term
    
    `pollutant' to be" because it does not discuss particular terms
    
    within the definition.     Id. at 173 n.52.
    
         In addition, one commentator has suggested that the CWA's
    
    definition of pollutant is considerably inclusive:
    
              This laundry list of "bads" endorses an
              understanding of a pollutant as a "resource
              out of place." The congressional purpose was
              to identify expansively and anticipate all
              the physical "stuff" that could end up in the
    
    
                                         41
               wrong place to the detriment of water
               quality. . . .
                  Despite the absence of an indisputable
               catch-all (e.g., "any other waste whatever"),
               there is little doubt that the recitation of
               categories in the definition of "pollutant"
               is designed to be suggestive not exclusive.
               In the 1972 amendments, Congress meant to
               carry on the tradition of the Refuse Act, and
               that tradition was to construe the word
               "refuse" as condemning each and every
               variation of damage-inducing wastes that
               changing technologies could invent. This
               interpretation is endorsed by United States
               v. Hamel, [
    551 F.2d 107
     (6th Cir. 1977),]
               which condemns a discharge of gasoline as
               within a generic understanding of
               "pollutant," rather than stretch the less
               inclusive "biological materials" to cover
               organically-based petroleum compounds.
                  That the definition of "pollutant" is
               meant to leave out very little is confirmed
               by the statutory definition of "pollution,"
               which means nothing less than the "man-made
               or man-induced alteration of the chemical,
               physical, biological, and radiological
               integrity of water." [33 U.S.C. § 1362(19).]
    
    2 William H. Rodgers, Jr., Environmental Law: Air and Water 144
    
    (1986).
    
         Given these observations, it seems clear that, while the
    
    listing of a specific substance in the definition of pollutant
    
    may be significant,30 the fact that a substance is not
    
    specifically included does not remove it from the coverage of the
    
    statute.   The next question, then, is who makes the determination
    
    that a substance that is not listed fits into the definition.
    
    Cedar Point argues that only EPA may make such a determination,
    
    to the exclusion of the courts.
    
         30
          Indeed, if a person were to be so bold as to discharge
    "cellar dirt," he could hardly be heard to complain when the full
    force of the CWA was brought upon him.
    
                                      42
         As an initial matter, we note that only in rare
    
    circumstances will a court be called upon to decide in a citizen
    
    suit whether a particular substance is a pollutant.    Typically,
    
    citizen suits are brought against persons who are violating
    
    effluent limitations or permits issued by EPA.   In such cases,
    
    the question of whether the discharged substance is a pollutant
    
    is not in issue because EPA will have already made that
    
    determination through the effluent limitation or permit.31    As
    
    our earlier discussion confirms, however, a citizen may also
    
    bring an action against a person that is discharging an alleged
    
    pollutant without a permit even where EPA has failed to issue a
    
    permit or promulgate an effluent limitation to cover the
    
    discharge.   In these cases, EPA will necessarily have not made a
    
    determination that the discharged substance is a pollutant.
    
    Therefore, logic dictates that the court must be able to decide
    
    whether the discharged substance is a pollutant in order to
    
    determine whether the defendant is violating the statute.    It
    
    would make little sense to allow a citizen to bring an action
    
    that the court could not adjudicate.32   We find that this logic
    
         31
          If the discharger disputed EPA's determination that a
    particular substance was a pollutant, its recourse would be to
    seek judicial review of the determination. In such a case, the
    court would not be deciding whether a particular substance was a
    pollutant, but rather whether EPA's determination was a
    reasonable interpretation of the statute. See, e.g., National
    Wildlife Fed'n v. Gorsuch, 693 F.2d at 174 n.56.
         32
          This logical flaw could be avoided by characterizing the
    question of whether a substance is a pollutant as part of stating
    a claim; that is, by requiring the citizen to demonstrate as an
    element of his claim that the defendant is discharging a
    pollutant. Such a characterization is plausible, given that the
    
                                    43
    compels a holding that a court may determine in a citizen suit
    
    whether a discharged substance is a pollutant, notwithstanding
    
    the fact that EPA has failed to issue a permit or to promulgate
    
    an effluent limitation that regulates the discharge.
    
         Cedar Point does not direct us to any statutory authority to
    
    the contrary.    First, we note that neither the statute nor the
    
    legislative history expressly grants EPA the exclusive authority
    
    to decide that a substance falls within the statutory definition
    
    of pollutant or divests the courts of the same.    The D.C. Circuit
    
    has interpreted the legislative history of the CWA to mean that
    
    Congress has invested EPA with "at least some power" to define
    
    the term "pollutant,"    National Wildlife Fed'n v. Gorsuch, 693
    
    F.2d at 167.    While we agree with this assessment, we find no
    
    support for the logical leap that this delegation of power
    
    necessarily deprives the federal courts of similar authority
    
    where EPA has not spoken.    It is true that Congress intended EPA
    
    to apply the definition of pollutant to particular substances and
    
    to regulate those substances through effluent standards and
    
    permits.   Nevertheless, as explained in our discussion regarding
    
    stating a claim, Congress also made it unlawful for a person to
    
    discharge a pollutant without a permit even where EPA has not
    
    
    
    
    issue of stating a claim is somewhat intertwined with the
    question of whether there has been a substantive violation of the
    CWA. Even under this reading, however, a court would still have
    to decide whether a substance being discharged was a pollutant in
    citizen suits where EPA had not issued a permit or effluent
    limitation.
    
                                     44
    applied the definition to the substance being discharged.      In
    
    such a case, the courts must apply the definition.
    
         Further, these rare cases where courts are called upon to
    
    determine whether a substance is a pollutant do not require a
    
    "complex balancing" of biological, technological and economic
    
    factors, such as EPA must undertake when promulgating effluent
    
    standards.   That is, the court will not be asked to analyze the
    
    level of discharge, the character of the receiving waterway, and
    
    the cost of achieving various permit limitations.    Rather,
    
    Congress has already set the permit limitation in such cases--
    
    zero discharge.   A court need only apply the statutory definition
    
    to determine if the substance in question is a pollutant.      If it
    
    determines that the substance is a pollutant, and the defendant
    
    is discharging it at all without a permit, then there has been a
    
    violation of § 1311(a).    We do not think that this task is beyond
    
    the competence of a court.
    
         Cedar Point also fails to direct us to any judicial
    
    authority contrary to our holding.    In this regard, we point out
    
    that Cedar Point's reliance on National Wildlife Fed'n v. Gorsuch
    
    for this proposition is misplaced.    The court's reservations
    
    regarding adding terms to the statute did not arise in the
    
    context of it being asked to add those terms.    Rather, the court
    
    was reviewing a decision by EPA not to regulate through a permit
    
    the low dissolved oxygen, cold, and supersaturation caused by
    
    dams.   Id. at 171.   The court expressly stated that it was not
    
    deciding whether the definition of pollutant necessarily excluded
    
    
                                     45
    those elements, but only whether EPA could so interpret the
    
    definition.   Id. at 174 n.56.
    
         Moreover, our holding breaks no new ground in the case law.
    
    Rather, it is consistent with numerous CWA cases in which courts
    
    have made an independent determination that a particular
    
    substance is a pollutant without reference to any applicable
    
    effluent standard or permit limitation.   See, e.g., Concerned
    
    Area Residents for Env't v. Southview Farm, 
    34 F.3d 114
    , 117 (2nd
    
    Cir. 1994) (finding that liquid manure is a pollutant because
    
    definitional list includes solid waste, sewage, biological
    
    materials, and agricultural waste), cert. denied, 
    115 S. Ct. 1793
    
    (1995); United States v. Plaza Health Labs., Inc., 
    3 F.3d 643
    ,
    
    645 (2nd Cir. 1993) (finding that human blood is a pollutant
    
    because definitional list includes biological materials), cert.
    
    denied, 
    114 S. Ct. 2764
     (1994); United States v. Schallom, 
    998 F.2d 196
    , 199 (4th Cir.) (finding that "shotcrete" and cement are
    
    pollutants because definitional list includes solid waste,
    
    chemical waste, and sand), cert. denied, 
    114 S. Ct. 277
     (1993);
    
    National Wildlife Fed'n v. Consumers Power Co., 
    862 F.2d 580
    , 583
    
    (6th Cir. 1988) (finding that dead fish and fish remains are
    
    pollutants because definitional list includes biological
    
    materials); United States v. M.C.C. of Florida, Inc., 
    772 F.2d 1501
    , 1505-06 (11th Cir. 1985) (finding that redeposited
    
    vegetation and sediment are pollutants because definitional list
    
    includes dredged spoil), vacated and remanded on other grounds,
    
    
    481 U.S. 1034
     (1987); United States v. Hamel, 
    551 F.2d 107
    , 110
    
    
                                     46
    (6th Cir. 1977) (finding that gasoline is a pollutant because
    
    generic terms of definitional list evince congressional intent to
    
    encompass substances covered under the Refuse Act of 1899, and
    
    Supreme Court had held that gasoline was covered by the earlier
    
    statute); Higbee v. Starr, 
    598 F. Supp. 323
    , 330 (E.D. Ark. 1984)
    
    (finding that hog waste is a pollutant because definitional list
    
    includes agricultural waste), aff'd, 
    782 F.2d 1048
     (8th Cir.
    
    1985).33   The fact that courts have been making these
    
    determinations since the enactment of the CWA tends to deflate
    
    Cedar Point's concerns that the exercise this authority will
    
    result in chaos.
    
         Having held that we have the authority in a citizen suit
    
    under the CWA to determine whether a discharged substance is a
    
    pollutant, we now turn to the question of whether Cedar Point's
    
    produced water, or any of its constituents, is a pollutant under
    
    the CWA.   Examining the statutory definition of pollutant first,
    
    we think that produced water is clearly subsumed by the phrases
    
    "chemical wastes" and "industrial waste."   33 U.S.C. § 1362(6).
    
    The exclusions under this definition also provide some guidance.
    
    Specifically, the definition states that the term "pollutant"
    
    does not mean
    
               water derived in association with oil or gas
               production and disposed of in a well, if the
    
         33
          We recognize that some of these cases are not completely
    analogous to the case sub judice because they involve civil or
    criminal enforcement actions brought by the government; however,
    we see no reason why a court may determine that a substance is a
    pollutant in such cases but may not make that determination in a
    citizen suit.
    
                                     47
              well used . . . for disposal purposes is
              approved by authority of the State in which
              the well is located, and if such State
              determines that such injection or disposal
              will not result in the degradation of ground
              or surface water resources.
    
    33 U.S.C. § 1362(6)(B).34   Although this exclusion of produced
    
    water from the meaning of pollutant in very limited circumstances
    
    does not necessarily mean that produced water is a pollutant
    
    under all other circumstances,35 we nevertheless consider it a
    
    strong indicator of Congress's concern over the effects of
    
    produced water on the environment.    Furthermore, if Congress felt
    
    that it was necessary to draft a detailed exemption for produced
    
    water that has been disposed of in a state-approved reinjection
    
         34
          Inexplicably, neither party brought this provision to our
    attention. This failure is all the more remarkable because this
    provision is the unmistakable fingerprint of the oil and gas
    industry on the CWA -- in the definition of "pollutant" no less.
         35
          But cf. United States Steel Corp. v. Train, 
    556 F.2d 822
    (7th Cir. 1977). In this case, U.S. Steel challenged EPA's
    authority to regulate its disposal of acid wastes in a well. Id.
    at 851. With respect to whether the acid wastes were a
    pollutant, the court quoted the exemption in § 1362(6)(B) and
    stated:
    
              Applying the canon expressio unius est
              exclusio alterius to the quoted language, we
              conclude that the listed materials are
              "pollutants" when injected into wells under
              any other circumstances.
    
    Id. at 852. We do not apply that canon here. The legislative
    history makes clear that Congress was distinguishing between the
    disposal of produced water into wells by the oil industry and the
    disposal of other materials into wells by other industries,
    rather than between the disposal of produced water into wells and
    the disposal of produced water by other means. 1 A Legislative
    History of the Water Pollution Control Act Amendments of 1972
    589-97 (Environmental Policy Div., Congressional Research Serv.
    ed., 1973) (House debate on amendment offered by Rep. Aspin that
    would have eliminated the exemption).
    
                                     48
    well, it may be that Congress believed that such produced water
    
    would otherwise be a pollutant.    If, absent an exemption,
    
    produced water reinjected into a state-approved well is a
    
    pollutant, then it is hardly a stretch to say that produced water
    
    deposited directly into a bay is also a pollutant.36
    
         Aside from this statutory support, we also find substantial
    
    guidance from EPA on the question of whether Cedar Point's
    
    produced water is a pollutant.    As we noted in our discussion of
    
    stating a claim under the CWA, EPA has recognized that citizens
    
    have the right to sue "Coastal Subcategory" operators who are
    
    discharging produced water without a permit.    57 Fed. Reg.
    
    60,926, 60,944-45 (1992).   The ability to bring such an action
    
    necessarily implies that produced water is a pollutant.    In
    
    addition, EPA has issued permits regulating produced water
    
    discharges by oil and gas operators in the "Onshore Subcategory"
    
    and the "Offshore Category" in Texas.    56 Fed. Reg. 7698 (1991);
    
    46 Fed. Reg. 20,284 (1981).   In these permits, EPA has explicitly
    
    referred to produced water as a "pollutant."    See, e.g., 56 Fed.
    
    Reg. 7698, 7701 (1991) ("[T]he permits prohibit the discharge of
    
    all wastewater pollutants from Onshore Subcategory facilities,
    
    including . . . produced water." (emphasis added)).    Finally,
    
    several of the components of Cedar Point's produced water,
    
    including benzene, naphthalene, and zinc, are listed as "toxic
    
    
         36
          We also think it significant that, although Congress
    provided this clear avenue for oil and gas producers to avoid
    regulation by the CWA, Cedar Point chose not to avail itself of
    it.
    
                                      49
    pollutants" in regulations promulgated by EPA.    40 C.F.R.
    
    § 401.15 (1994); cf. Dague v. City of Burlington, 
    732 F. Supp. 458
    , 469-70 (D. Vt. 1989) (finding substances discharged by
    
    defendants to be pollutants by reference to the toxic pollutant
    
    list).    Similarly, oil and grease are listed as "conventional
    
    pollutants."    40 C.F.R. § 401.16 (1994).
    
         Given this support in the statute, as reinforced by EPA's
    
    own regulations, we conclude that Cedar Point's produced water is
    
    a pollutant within the meaning of the CWA.37   Cedar Point does
    
    not dispute that it discharged this produced water into Galveston
    
    Bay without a NPDES permit.    Accordingly, we conclude that the
    
    district court correctly held that Cedar Point violated § 1311(a)
    
    of the CWA.
    
    
    
        4.    Striking of Cedar Point's Experts
    
         Cedar Point's fourth argument on appeal is that the district
    
    court erred in striking Cedar Point's designation of experts and
    
    excluding them from testifying at trial as a sanction for
    
         37
          We recognize that the overwhelming evidence from the
    statute and the regulations makes our determination that produced
    water is a pollutant an easy one. We note, however, that the
    conditions that give rise to the need for a court to determine
    whether a substance is a pollutant may lead to more difficult
    cases. Where EPA has not promulgated a permit or limitation for
    a particular discharge, it may be because EPA lacks the resources
    to do so or because the discharge is not a priority.
    Occasionally, however, it may be because EPA questions whether
    the discharged substance is a pollutant at all. In such a case,
    it is likely that the substance may not clearly fit within the
    statutory definition and that there will be little regulatory
    guidance from EPA. In a citizen suit brought under these
    circumstances, courts should exercise restraint to avoid
    stretching the term "pollutant" too far.
    
                                     50
    violating the court's accelerated discovery order.     In this
    
    regard, we are asked to review two separate determinations by the
    
    district court:   (1) whether Cedar Point actually violated the
    
    discovery order; and (2) if there was a violation, whether the
    
    striking of Cedar Point's experts was an appropriate sanction.
    
    We review the court's finding that Cedar Point violated the
    
    discovery order for an abuse of discretion.      See Scott v.
    
    Monsanto Co., 
    868 F.2d 786
    , 793 (5th Cir. 1989) (district court's
    
    rulings on discovery matters will only be reversed for abuse of
    
    discretion).   We apply the same standard in reviewing a sanction
    
    for violating a discovery order.      Chilcutt v. United States, 
    4 F.3d 1313
    , 1320 (5th Cir. 1993), cert. denied, 
    115 S. Ct. 460
    
    (1994).38   The district court's discretion in such matters has
    
    been described as "broad", id.; Landry v. Air Line Pilots Ass'n
    
    Int'l AFL-CIO, 
    901 F.2d 404
    , 436 n.114 (5th Cir.), cert. denied,
    
    
    498 U.S. 895
     (1990), and "considerable", Murphy v. Magnolia Elec.
    
    Power Ass'n, 
    639 F.2d 232
    , 234 (5th Cir. 1981).     Accordingly,
    
    "[i]t is unusual for an appellate court to find abuse of
    
         38
          But see Alldread v. City of Grenada, 
    988 F.2d 1425
    , 1436
    (5th Cir. 1993). Alldread applied a "manifest error" standard in
    reviewing a trial court's exclusion of expert testimony as a
    sanction for failing to comply with a discovery order. As
    authority for this proposition, the Alldread court cited Page v.
    Barko Hydraulics, 
    673 F.2d 134
    , 139 (5th Cir. 1982). Page,
    however, involved an evidentiary ruling on the admissibility of
    an expert's testimony at trial. It is true that the exclusion of
    expert testimony as an evidentiary matter is reviewable for
    manifest error. United States v. Willey, 
    57 F.3d 1374
    , 1389 (5th
    Cir. 1995), cert. denied, 
    1995 WL 668887
     (U.S. Dec. 11, 1995).
    When expert testimony is excluded as a sanction, however, we
    review the trial court's ruling for abuse of discretion.
    Chilcutt, 4 F.3d at 1320; Bradley v. United States, 
    866 F.2d 120
    ,
    124 (5th Cir. 1989).
    
                                     51
    discretion in these matters."   O'Malley v. United States Fidelity
    
    and Guar. Co., 
    776 F.2d 494
    , 499 (5th Cir. 1985).    Generally, we
    
    will only reverse the trial court's discovery rulings in "unusual
    
    and exceptional case[s]."   Id. (quoting Brown v. Thompson, 
    430 F.2d 1214
    , 1216 (5th Cir. 1970) (internal quotations omitted)).
    
         Immediately after Sierra Club filed its complaint on April
    
    20, 1993, the district court entered an order setting an
    
    accelerated discovery schedule for this case, rather than
    
    proceeding under a traditional discovery plan.39    The order first
    
    required the parties to make certain "initial disclosures"
    
    without waiting for discovery requests.   These initial
    
    disclosures were to include copies of "all documents, data
    
    compilations, and tangible things . . . that are likely to bear
    
    significantly on any claim or defense."
    
         In addition to these disclosures, the court's order required
    
    the parties to make disclosures regarding the expert testimony
    
    that they intended to present at trial.   With respect to each
    
    expert witness, each party had to submit to the other the
    
    following:
    
              a written report prepared and signed by the
              witness which includes a complete statement
              of all opinions to be expressed and the basis
              and reasons therefor; the data or other
              information relied upon in forming such
              opinions; any exhibits to be used as a
    
         39
          The authority for such an order is found in paragraph 6 of
    the Cost and Delay Reduction Plan under the Civil Justice Reform
    Act of 1990, 28 U.S.C. §§ 471-482, as adopted by the Southern
    District of Texas on October 24, 1991. The order tracks the
    language of the new Rule 26(a) of the Federal Rules of Civil
    Procedure, with slight modifications.
    
                                    52
              summary of or support for such opinions; the
              qualifications of the witness; and a listing
              of any other cases in which the witness has
              testified as an expert at trial or in
              deposition within the preceding four years.
    
    The order required the parties to submit these reports ninety
    
    days prior to the trial date.40   The order appears to call for
    
    "simultaneous" disclosure of the reports; that is, the order did
    
    not direct one party to submit its reports first, but only
    
    required each party's reports to be submitted by the ninety-day
    
    deadline.41   After this deadline, the order allowed the parties
    
    to make additional expert submissions in only two situations.
    
    First, the parties could submit reports "to contradict or rebut
    
    evidence on the same subject matter identified by another party"
    
    in its initial expert disclosures.     The order directed that such
    
    a report be made within thirty days after the disclosure of the
    
    report being rebutted.   Second, the parties had a duty to
    
    
         40
          In a telephone conference on September 29, 1993, the
    district court set this case for trial-docket call on May 2,
    1994; accordingly, the expert disclosure deadline fell on
    February 1, 1994.
         41
          The Advisory Committee Notes to Rule 26 recommend
    disclosure of these reports seriatim, but leave such a decision
    to the discretion of the trial court:
    
              [I]n most cases the party with the burden of
              proof on an issue should disclose its expert
              testimony on that issue before other parties
              are required to make their disclosures with
              respect to that issue. In the absence of
              such a direction, the disclosures are to be
              made by all parties at least 90 days before
              the trial date or the date by which the case
              is to be ready for trial . . . .
    
    Fed. R. Civ. P. 26 advisory committee's note.
    
                                      53
    supplement these reports if necessary.42   Such supplementation
    
    was required to be made at least thirty days prior to trial.43
    
         On January 24, 1994, Cedar Point filed a corrected
    
    designation of its expert witnesses:    Don Harper, Carl
    
    Oppenheimer, John McGowan, and Stanley Pier.    Two days later,
    
    Cedar Point supplemented this list with the designation of Joe
    
    Haney.    Cedar Point served the required reports from these
    
    experts around the deadline set by the court's order.44    Cedar
    
    Point later timely served Sierra Club with "rebuttal" expert
    
    reports from Don Harper, John McGowan, and Stanley Pier.
    
    
    
         42
          The scope of this duty to supplement is outlined in Rule
    26(e). Specifically, a party is required to supplement its
    expert disclosures if the court so orders or if "the party learns
    that in some material respect the information disclosed is
    incomplete or incorrect and if the additional or corrective
    information has not otherwise been made known to the other
    parties during the discovery process or in writing." Fed. R.
    Civ. P. 26(e)(1).
         43
          Rule 26(e)(1) requires that supplementation of expert
    disclosures be made by the time the supplementing party's
    "Pretrial Disclosures" are due. Fed. R. Civ. P. 26(e)(1). The
    court's accelerated discovery order directed that the "Pretrial
    Disclosures" would be due at least thirty days before trial.
         44
          Cedar Point maintains that its submission of expert
    reports was timely, citing as evidence a letter to the Clerk of
    the Southern District of Texas that was copied to counsel
    opposite. This letter was a cover letter to the expert reports
    and was dated February 2, 1994. The deadline for service of
    these reports, however, was February 1, 1994, ninety days before
    the docket-call date of May 2, 1994. The court's order directed
    that the parties serve the reports in accordance with Rule 5 of
    the Federal Rules of Civil Procedure. Assuming that Cedar Point
    mailed these reports to Sierra Club, it would have had to do so
    by February 1, as Rule 5 provides that service by mail is
    complete upon mailing. Fed. R. Civ. P. 5(b). In any event,
    Sierra Club's motion to strike Cedar Point's experts was not
    predicated on a failure to comply with deadlines.
    
                                     54
    Finally, Cedar Point timely supplemented Don Harper's reports
    
    before trial.45
    
         On February 14, 1994, Sierra Club filed a motion to strike
    
    Cedar Point's designation of experts as a sanction for failure to
    
    comply with the court's accelerated discovery order.
    
    Specifically, Sierra Club argued that the initial expert reports
    
    filed by Cedar Point were so incomplete and insubstantial that
    
    they failed to meet the requirements of the discovery order.      On
    
    April 19, 1994, the court entered an order granting this motion.
    
    The court found that Cedar Point had not complied with its order
    
    regarding expert reports and ordered that Cedar Point's
    
    designation of experts was stricken, with instructions that none
    
    of Cedar Point's experts would be allowed to testify at trial.
    
         Cedar Point maintains that, between its initial expert
    
    disclosures and its rebuttal and supplementary disclosures, it
    
    did provide enough information to comply with the district
    
    court's discovery order.    Also, Cedar Point asserts that it
    
    cannot be sanctioned for failure to comply with a discovery order
    
    because Sierra Club never filed a motion to compel.    Finally,
    
    Cedar Point argues that the sanction of striking Cedar Point's
    
    experts was an abuse of discretion.    In this regard, Cedar Point
    
    contends that:    (1) the subject of its experts' testimony--the
    
         45
          Cedar Point also filed an untimely supplement to Carl
    Oppenheimer's report on April 25, 1994; however, Cedar Point's
    only purpose in doing so was to ensure the inclusion of this
    report in the record--the district court had already entered an
    order striking Carl Oppenheimer as a witness a week earlier.
    Accordingly, we will not consider the untimeliness of this filing
    in adjudicating Cedar Point's appeal on this issue.
    
                                     55
    harm caused by Cedar Point's produced water--was crucial to the
    
    court's assessment of penalties against Cedar Point; (2) even if
    
    Cedar Point's initial expert disclosures were inadequate, there
    
    was no prejudice to Sierra Club because Sierra Club received the
    
    required information through rebuttal and supplementary
    
    disclosures with enough time to prepare for trial; (3) any
    
    prejudice to Sierra Club because of untimely disclosures could
    
    have been cured through a continuance; and (4) Cedar Point's
    
    failure to comply was justified because Sierra Club's complaint
    
    and initial disclosures were so vague, general, and irrelevant
    
    that the issues in the lawsuit were not sufficiently defined to
    
    put Cedar Point on notice of what expert testimony would be
    
    needed.
    
         The district court's discovery order required that the
    
    parties' initial expert disclosures "include a complete statement
    
    of all opinions to be expressed and the basis and reasons
    
    therefor" and "the data or other information relied upon in
    
    forming such opinions."   The Advisory Committee Notes to Rule 26
    
    of the Federal Rules of Civil Procedure state that such reports
    
    must be "detailed and complete."     Fed. R. Civ. P. 26 advisory
    
    committee's note.   These Notes also explain that the purpose of
    
    the reports is to avoid the disclosure of "sketchy and vague"
    
    expert information, as was the practice under the former rule.
    
    See id.
    
         The district court's finding that Cedar Point's initial
    
    expert disclosures did not meet this standard does not constitute
    
    
                                    56
    an abuse of discretion.    A review of the disclosures bears out
    
    this assessment.   Don Harper's statement of opinions and reasons
    
    was a one-and-a-half page outline listing his "points of
    
    testimony."   Carl Oppenheimer offered two one-paragraph
    
    descriptions of his opinions.    Stanley Pier and John McGowan also
    
    provided only one-paragraph statements relating to their
    
    opinions.   Finally, Joe Haney's statement included no substantive
    
    opinions, but only declared what subjects he intended to research
    
    and to discuss at trial.    Although Cedar Point later reinforced
    
    these statements with rebuttal and supplementary disclosures, the
    
    discovery order and Rule 26(a) clearly require that the initial
    
    disclosures be complete and detailed.    The purpose of rebuttal
    
    and supplementary disclosures is just that--to rebut and to
    
    supplement.   These disclosures are not intended to provide an
    
    extension of the deadline by which a party must deliver the
    
    lion's share of its expert information.    Therefore, we hold that
    
    the district court did not abuse its discretion in finding that
    
    Cedar Point failed to comply with the expert disclosure
    
    provisions of its accelerated discovery order.46
    
         46
          Cedar Point even appears at times to admit that it did not
    comply with the discovery order by stating that it was
    "impossible" to comply and that their experts "did all they could
    do" under the circumstances. The reasons for noncompliance,
    however, are relevant to the separate issue of whether the
    sanction imposed was appropriate. On the other hand, a violation
    of an order is a violation of an order, regardless of the reasons
    therefor.
         In this regard, we note that the question of whether a party
    has violated a discovery order will typically not be in dispute,
    as when a party fails to attend a deposition or refuses to
    produce certain documents. Where the standard of compliance is a
    matter of degree, however, such as the degree to which an initial
    
                                     57
          As authority for its argument that Sierra Club was required
    
    to file a motion to compel before seeking sanctions, Cedar Point
    
    cites our decision in Broadcast Music, Inc. v. Xanthas, Inc., 
    855 F.2d 233
     (5th Cir. 1988).    In Broadcast Music, the plaintiff
    
    argued that the defendant should have been estopped from denying
    
    certain facts when it failed to produce documents relevant to
    
    those facts.   Id. at 238.   We held that the sanction of estoppel
    
    was not available because the plaintiff had not first sought a
    
    motion to compel production of the relevant documents.    Id.    Our
    
    rationale, however, was that the pretrial order did not
    
    explicitly compel the production of those documents in the first
    
    place; rather, the order only stated that "immediate receipt of
    
    such documents would expedite plaintiff's preparation of this
    
    case for trial or preparation of a motion for summary judgment."
    
    Id.   In other words, it would have been unfair to sanction the
    
    defendant for failure to produce documents that it was never
    
    under any clear obligation to produce.   In the present case,
    
    however, Cedar Point was compelled to produce the initial expert
    
    disclosures from the moment the court entered the accelerated
    
    discovery order.   It was not necessary for Sierra Club to create
    
    a obligation to produce by filing a motion to compel; the
    
    obligation was already present.
    
    
    
    
    expert disclosure is "complete," disagreement is more likely to
    occur. The resolution of such disputes is more appropriately
    left to the discretion of the trial court, and only in an unusual
    case of clear abuse should an appellate court reverse. See
    O'Malley, 776 F.2d at 499.
    
                                      58
         Moreover, Rule 37 of the Federal Rules of Civil Procedure,
    
    which governs the imposition of sanctions for failure to make
    
    disclosures, does not require that a party file a motion to
    
    compel before moving for sanctions.    Instead, the rule states
    
    only that, "[i]f a party fails to make a disclosure required by
    
    Rule 26(a), any other party may move to compel disclosure and for
    
    appropriate sanctions."    Fed. R. Civ. P. 37(a)(2)(a).   Indeed,
    
    the Advisory Committee Notes to Rule 37 contemplate that it may
    
    be more effective in some situations to impose a sanction of
    
    excluding evidence instead of an order compelling production:
    
              [A] motion [to compel] may be needed when the
              information to be disclosed might be helpful
              to the party seeking the disclosure but not
              to the party required to make the disclosure.
              If the party required to make the disclosure
              would need the material to support its own
              contentions, the more effective enforcement
              of the disclosure requirement will be to
              exclude the evidence not disclosed . . . .
    
    Fed. R. Civ. P. 37 advisory committee's note.    Because Cedar
    
    Point intended to use its expert testimony to support its own
    
    contentions regarding harm to the environment, the district court
    
    could have concluded that excluding this testimony was the most
    
    appropriate sanction.   Accordingly, we hold that the district
    
    court did not abuse its discretion in sanctioning Cedar Point for
    
    violating the discovery order without requiring Sierra Club to
    
    file a motion to compel.
    
         Finally, we review the sanction itself.    When a district
    
    court strikes a party's designation of expert witnesses and
    
    excludes their testimony as a sanction for violation of a
    
    
                                     59
    discovery order, we determine whether the court's action is an
    
    abuse of discretion by examining four factors:
    
              (1) the importance of the witnesses'
                  testimony;
              (2) the prejudice to the opposing party of
              allowing the witness to testify;
              (3) the possibility of curing such prejudice
                  by granting a continuance; and
              (4) the explanation, if any, for the party's
                  failure to comply with the discovery
                  order.
    
    See Bradley v. United States, 
    866 F.2d 120
    , 125 (5th Cir. 1989)
    
    (citing Murphy, 639 F.2d at 235).
    
         With respect to the importance of Cedar Point's witnesses,
    
    it is clear that the bulk of their expected testimony concerned
    
    the degree of harm caused by Cedar Point's discharge of produced
    
    water.   Although the district court made findings regarding harm
    
    to the environment in assessing the civil penalty against Cedar
    
    Point, the court based the amount of the penalty only on the
    
    economic benefit accruing to Cedar Point from the violation.
    
    Therefore, the stricken testimony ultimately proved to be
    
    unimportant to Cedar Point's case.
    
         As to any prejudice to Sierra Club that would result from
    
    allowing Cedar Point's witnesses to testify, we note that Sierra
    
    Club did receive more detailed information from three of the
    
    witnesses in the form of rebuttal reports.    While these
    
    disclosures were made approximately two months before trial,
    
    Sierra Club should have received most of this information in
    
    initial expert disclosures a month earlier.    Such a delay would
    
    have likely resulted in some prejudice to Sierra Club.      While a
    
    
                                    60
    continuance would have given Sierra Club more time to review the
    
    late disclosures, such a measure "would neither punish [Cedar
    
    Point] for its conduct nor deter similar behavior in the future."
    
    Bradley, 866 F.2d at 126.
    
         Finally, Cedar Point's reasons for failure to comply with
    
    the district court's discovery order are not persuasive.   That
    
    harm to the environment would be an issue in this lawsuit was
    
    clear from the filing of the action in April 1993.   Cedar Point
    
    had over nine months to solicit experts and prepare reports on
    
    this issue by the February 1, 1994 deadline.   Regardless of the
    
    specificity of Sierra Club's complaint and initial disclosures,
    
    Cedar Point should have been able to produce more information
    
    regarding its defense of lack of harm than it did in its initial
    
    expert disclosures.
    
         In light of Cedar Point's failure to adhere to discovery
    
    deadlines and the fact that the expected testimony ultimately
    
    proved to be relatively unimportant, we find that the district
    
    court did not abuse its discretion in striking Cedar Point's
    
    experts and excluding their testimony.
    
    
    
        5.   The Penalty and Attorneys' Fees
    
         Cedar Point's fifth argument on appeal is that the district
    
    court erred in assessing a penalty of $186,070 against Cedar
    
    Point for violating the CWA and in awarding attorneys' fees to
    
    Sierra Club.   We review the district court's findings of fact in
    
    support of the penalty under the clearly erroneous standard.      See
    
    
                                    61
    Public Interest Research Group of New Jersey, Inc. v. Powell
    
    Duffryn Terminals, Inc., 
    913 F.2d 64
    , 79 (3rd Cir. 1990), cert.
    
    denied, 
    498 U.S. 1109
     (1991).        With respect to the court's
    
    weighing of those facts and determination of the penalty,
    
    however, we review for abuse of discretion.        See Atlantic States
    
    Legal Found., Inc. v. Tyson Foods, Inc., 
    897 F.2d 1128
    , 1142
    
    (11th Cir. 1990).        Similarly, we review an award of attorneys'
    
    fees for abuse of discretion.        Bode v. United States, 
    919 F.2d 1044
    , 1047 (5th Cir. 1990).
    
    
    
          a.   The Penalty
    
           The CWA directs district courts to assess civil penalties
    
    for violations of the CWA.        33 U.S.C. § 1319(d).    Specifically,
    
    the statute states that violators "shall be subject to a civil
    
    penalty not to exceed $25,000 per day for each violation."           Id.
    
    Aside from this maximum amount, the statute guides the court's
    
    discretion in setting the penalty as follows:
    
                 In determining the amount of a civil penalty
                 the court shall consider the seriousness of
                 the violation or violations, the economic
                 benefit (if any) resulting from the
                 violation, any history of such violations,
                 any good-faith efforts to comply with the
                 applicable requirements, the economic impact
                 of the penalty on the violator, and such
                 other matters as justice may require.
    
    Id.    The Eleventh Circuit has taken these statutory directives
    
    and developed a procedural framework for calculating penalties
    
    under the CWA.     Tyson Foods, 897 F.2d at 1142.        First, the court
    
    is to calculate the maximum penalty that could be assessed
    
    
                                         62
    against the violator.   Id.    Using that maximum as a starting
    
    point, the court should then determine if the penalty should be
    
    reduced from the maximum by reference to the statutory factors.
    
    Id.
    
          The district court followed the Tyson Foods framework in
    
    this case.   The parties had stipulated that there were 797 days
    
    of unpermitted discharge of produced water prior to trial.      The
    
    judgment was entered twelve days later, during which time the
    
    discharge presumedly continued.     Accordingly, the court
    
    multiplied the statutory figure of $25,000 per day by 809 days of
    
    unpermitted discharge to arrive a maximum penalty of $20,225,000.
    
          The district court then made findings of fact with respect
    
    to the statutory factors.     First, the court found that the
    
    violation was moderately serious because of the effect of the
    
    discharge on benthic organisms47 and the lack of monitoring and
    
    reporting with respect to the discharge.     Second, the court found
    
    that the economic benefit to Cedar Point from the violation was
    
    $186,070, which the court determined was the amount that Cedar
    
    Point saved by not disposing of its produced water in a
    
    reinjection well.   Third, the court found that Cedar Point had
    
    been violating the CWA since it began operating state well 1876.
    
    Fourth, the court found that Cedar Point had not demonstrated
    
    good faith in attempting to comply with the CWA.     In this regard,
    
    the court noted that, although Cedar Point had attempted to
    
    
          47
          "Benthic" organisms are those that live on the bottom of a
    water body.
    
                                      63
    obtain a NPDES permit for its discharge, it had not explored
    
    other ways to comply with the CWA.   Finally, the court reviewed
    
    Cedar Point's financial position and expected future profits from
    
    the Cedar Point field and determined that Cedar Point could at
    
    least afford a penalty equal to the economic benefit attained
    
    from the violation.
    
         In weighing these facts and calculating the penalty, the
    
    district court held that the maximum penalty of $20,225,000 was
    
    inappropriate.   The court determined, however, that the penalty
    
    should at a minimum recapture the savings realized by Cedar Point
    
    because of the violation.   Although the court's findings with
    
    respect to the other statutory factors were also not favorable to
    
    Cedar Point, the court apparently chose not to accord these
    
    factors any weight because it did not increase the penalty beyond
    
    what it found to be the economic benefit to Cedar Point.
    
    Accordingly, the court assessed a penalty of $186,070.
    
         In reviewing the district court's findings of fact, we note
    
    that the court adopted Sierra Club's proposed findings and
    
    conclusions with minimal revision.   Under such circumstances, we
    
    review the court's findings of fact with caution.   FDIC v.
    
    Texarkana Nat'l Bank, 
    874 F.2d 264
    , 267 (5th Cir. 1989) ("[W]e
    
    have shown caution in reviewing district court findings which are
    
    essentially verbatim recitals of the prevailing party's proposed
    
    findings and conclusions."), cert. denied, 
    493 U.S. 1043
     (1990).
    
         The district court chose to calculate the economic benefit
    
    to Cedar Point by reference to the money Cedar Point saved by not
    
    
                                    64
    disposing of its produced water in a reinjection well.       In this
    
    regard, the court made the following findings of fact in its
    
    Memorandum Opinion:
    
                 According to the testimony of Cedar Point's
                 witnesses, operating an injection well would
                 add $60,000 per year to the operating cost of
                 the Cedar Point field. Consequently, the
                 economic benefit to Cedar Point of its
                 violation of the Clean Water Act is at least
                 $60,000 for each full year of operation.
                 According to other Cedar Point testimony, the
                 cost of brine injection is in the range of
                 $.10 to $.20 per barrel. Thus, for 1993, the
                 economic benefit could be determined to be
                 between $42,000 and $84,000.
    
    The court had found that the average daily discharge during the
    
    period of violation was 1,150 barrels per day, and there were 809
    
    days of unpermitted discharge at the time the court entered
    
    judgment.     Using a figure of $.20 per barrel for cost of
    
    reinjection, the court thus found that the economic benefit to
    
    Cedar Point was $186,070.48
    
         On June 6, 1994, Sierra Club filed a motion to alter or
    
    amend the district court's findings and conclusions pursuant to
    
    Rule 52(b) of the Federal Rules of Civil Procedure.49     The
    
    impetus for this motion, by Sierra Club's admission, was that
    
    some of the court's findings and conclusions did not strictly
    
    reflect the evidence that was introduced at trial.     With respect
    
    
         48
              $.20/barrel x 1,150 barrels/day x 809 days = $186,070.
         49
          At the time of Sierra Club's motion, Rule 52(b) stated, in
    pertinent part: "Upon motion of a party made not later than 10
    days after entry of judgment the court may amend its findings or
    make additional findings and amend the judgment accordingly."
    Fed. R. Civ. P. 52(b) (1994).
    
                                       65
    to the court's findings regarding the economic benefit to Cedar
    
    Point, Sierra Club made the following statement:
    
                 The Sierra Club believes that the Court's
              finding that the cost of injection of
              produced water would be approximately $0.10
              to $0.20 per barrel is adequately supported
              based on David Russell's testimony that a
              disposal well would cost approximately
              $300,000 to outfit initially, and $900 per
              year to operate, as well as Mr. Russell's
              admission that a Cedar Point representative
              had testified that one type of injection well
              would add approximately $60,000 per year in
              operating costs. In addition, this finding
              is supported by Sierra Club Exhibit 9, which
              is the Federal Register notice published by
              the Environmental Protection Agency when it
              proposed its zero discharge permit for
              produced water. This notice specifically
              states that studies performed for the EPA
              showed that cost of brine disposal per barrel
              to be between $0.15 and $1.02 per barrel.
              See 57 F.R. 60931. The Court's figure of
              $.020 [sic] per barrel is hence on the
              conservative end of this spectrum.
    
    In granting this motion, the court did not alter its previous
    
    findings, but supplemented those findings with the following
    
    paragraph:
    
                 David Russell testified that the cost of
              injection of produced water would be
              approximately $.10 to $.20 per barrel and
              that a disposal well would cost approximately
              $300,000 to outfit and $900 per year to
              operate. Further, EPA studies show that the
              cost of brine disposal is between $.15 and
              $1.02 per barrel. On this basis, $.20 per
              barrel for disposal of produced water is a
              reasonable figure within the range found.
              See (Sierra Club Exhibit #9); 57 F.R. 60931.
    
    Accordingly, the court let its original calculation of the
    
    penalty stand.
    
    
    
    
                                   66
         Some of the district court's findings do not appear to be
    
    supported by the evidence.   For example, there was no testimony
    
    from any of Cedar Point's witnesses to the effect that a
    
    reinjection well would add $60,000 per year to the operating
    
    costs of the Cedar Point field.    Apparently, John McGowan had
    
    mentioned this figure in his deposition, but neither party
    
    introduced that deposition into evidence and the court did not
    
    allow McGowan to testify at trial.     On cross-examination, David
    
    Russell testified that, if Cedar Point constructed its own
    
    reinjection well, it would not add $60,000 per year to operating
    
    costs.   Later, on redirect, Russell testified that he had read
    
    McGowan's deposition and that the $60,000 figure referred to a
    
    type of well that Cedar Point would not use to dispose of its
    
    produced water.   Also, Russell never testified that the cost of
    
    reinjecting produced water would be $0.10 to $0.20 per barrel,
    
    nor did he testify that it would cost $900 per year to operate a
    
    disposal well.
    
         The EPA cost studies cited in the court's supplementary
    
    findings, however, appeared in an exhibit introduced by both
    
    Sierra Club and Cedar Point.   This exhibit was the draft NPDES
    
    general permit for produced water discharges by Coastal
    
    Subcategory operators, appearing at 57 Fed. Reg. 60,926 (1992).
    
    In this draft permit, EPA made reference to studies of the costs
    
    of reinjection of produced water.      Id. at 60,931.   The most
    
    recent study found that the costs of reinjection of produced
    
    water ranged from $0.15 to $1.02 per barrel.      Id.   Although the
    
    
                                      67
    court's finding that the cost of reinjection is $.20 per barrel
    
    falls within the range stated in the draft permit, Cedar Point
    
    argues that this range is not sufficiently specific to be a
    
    reliable indicator of what it would have cost to reinject its
    
    produced water.   Specifically, Cedar Point contends that the
    
    permit does not indicate whether this range reflects the costs of
    
    paying a commercial reinjection well operator to dispose of
    
    produced water or the costs of an oil and gas operator
    
    constructing its own reinjection well and disposing of produced
    
    water itself.   Russell testified that Cedar Point would not have
    
    paid a commercial injection well operator to dispose of its
    
    produced water because that would have been too expensive.
    
    Instead, Russell testified that Cedar Point would have built its
    
    own reinjection well and that such a well would have cost
    
    $300,000 to outfit initially and $0.0025 per barrel to operate.
    
         Notwithstanding Cedar Point's challenge to the relevance of
    
    the EPA cost figures, we do not think that the district court's
    
    use of the $0.20 per barrel cost figure and subsequent
    
    calculation of an economic benefit to Cedar Point in the amount
    
    of $186,070 are clearly erroneous.     The district court may have
    
    simply chosen to credit the objective evidence from the EPA
    
    studies over the testimony of Russell, one of Cedar Point's
    
    officers.   Also, the court may have resolved any doubts about the
    
    accuracy of the EPA studies by choosing a cost figure near the
    
    low end of the prescribed range.     Finally, and perhaps most
    
    importantly, we note that a court need only make a "reasonable
    
    
                                    68
    approximation" of economic benefit when calculating a penalty
    
    under the CWA.    Powell Duffryn, 913 F.2d at 80 (citing S. Rep.
    
    No. 50, 99th Cong., 1st Sess. 25 (1985)).       We are satisfied that
    
    the court's approximation of economic benefit is reasonable under
    
    the facts of this case.
    
         Further, we do not think that the district court abused its
    
    discretion in assessing a penalty in an amount that reflected
    
    only the economic benefit to Cedar Point.50      The Supreme Court
    
    has described the process of weighing the statutory factors in
    
    calculating civil penalties under the CWA as "highly
    
    discretionary" with the trial court.       Tull v. United States, 
    481 U.S. 412
    , 427 (1987).       It is clear from the district court's
    
    Memorandum Opinion that it considered all of the statutory
    
    factors before settling on an amount based only on economic
    
    benefit.    Considering that the court could have imposed a penalty
    
    as high as $20,225,000, this appears to be a fair and just
    
    result.    As such, we perceive no abuse of discretion.     Therefore,
    
    we affirm the district court's assessment of a penalty in the
    
    amount of $186,070 for Cedar Point's violation of the CWA.
    
    
    
        b.    Attorneys' Fees
    
         Cedar Point's sole argument with respect to attorneys' fees
    
    is that, if we hold that Sierra Club lacks standing to bring this
    
    action or that Cedar Point has not violated the CWA, Sierra Club
    
         50
          Accordingly, we think it unnecessary to review the
    district court's findings of fact with respect to the other
    statutory factors.
    
                                        69
    would not be entitled to attorneys' fees as the "prevailing
    
    party" in this action.     See 33 U.S.C. § 1365(d).   Because we have
    
    held otherwise, we affirm the district court's award of
    
    attorneys' fees.
    
    
    
        6.   Cedar Point's Counterclaim
    
         Finally, Cedar Point appeals the district court's dismissal
    
    of its counterclaim against Sierra Club for abuse of process.
    
    The court dismissed Cedar Point's counterclaim pursuant to
    
    Federal Rule of Civil Procedure 12(b)(6) for failure to state a
    
    claim.   We review a dismissal for failure to state a claim under
    
    the same standard used by the district court:    A claim may not be
    
    dismissed unless it appears certain that the plaintiff cannot
    
    prove any set of facts in support of his claim that would entitle
    
    him to relief.     Norman v. Apache Corp., 
    19 F.3d 1017
    , 1021 (5th
    
    Cir. 1994); Carney v. RTC, 
    19 F.3d 950
    , 954 (5th Cir. 1994).
    
         As the basis for its counterclaim, Cedar Point alleges the
    
    following facts:    (1) Sierra Club either threatened to sue, or
    
    actually sued, all or a number of oil and gas operators in
    
    Galveston Bay under the CWA for the stated purpose of stopping
    
    unpermitted discharges of produced water; (2) in settling these
    
    disputes with the operators, Sierra Club allowed them to continue
    
    the allegedly illegal discharges in exchange for monetary
    
    consideration; (3) Sierra Club Legal Defense Fund realized
    
    substantial profits from these settlements in the form of
    
    attorneys' fees, which Sierra Club is using to finance more
    
    
                                      70
    litigation against oil and gas operators in Galveston Bay; (4)
    
    Sierra Club realized some of the monetary consideration; and (5)
    
    Sierra Club threatened Cedar Point with a similar suit with the
    
    intent to obtain monetary consideration.   Cedar Point argues that
    
    this pattern of suing and settling with oil and gas operators
    
    establishes Sierra Club's intent to use the citizen suit
    
    provision of the CWA to extort money from Cedar Point.    In this
    
    regard, Cedar Point notes that the purpose of a citizen suit is
    
    to stop putatively illegal conduct, and yet the terms of Sierra
    
    Club's settlements allow this conduct to continue.
    
         Under Texas law, the elements of an action for abuse of
    
    process are:
    
              (1) that the defendant made an illegal,
              improper or perverted use of the process, a
              use neither warranted nor authorized by the
              process; (2) that the defendant had an
              ulterior motive or purpose in exercising such
              illegal, perverted or improper use of the
              process; and (3) that damage resulted to the
              plaintiff as a result of such illegal act.
    
    Baubles & Beads v. Louis Vuitton, S.A., 
    766 S.W.2d 377
    , 378 (Tex.
    
    App.--Texarkana, no writ).   "When the process is used for the
    
    purpose for which it is intended, even though accompanied by an
    
    ulterior motive, no abuse of process occurs."   Id. (citing
    
    Restatement (Second) of Torts § 682 cmt. b (1977)).
    
         The facts alleged by Cedar Point do not demonstrate an
    
    "illegal, improper or perverted" use of the citizen suit
    
    provision of the CWA.   First, the "intent to sue" letter sent by
    
    Sierra Club to Cedar Point was not a "threat"; rather, the CWA
    
    requires such letters to be sent at least sixty days prior to the
    
                                    71
    commencement of a civil suit.   33 U.S.C. § 1365(b)(1).   Further,
    
    the fact that Sierra Club has brought suits against other oil and
    
    gas operators in Galveston Bay, and that some of these suits were
    
    resolved through settlement, does not indicate that Sierra Club
    
    was making an illegal use of the citizen suit provision.   The
    
    consent judgments generally directed the operators to cease
    
    discharging produced water after a certain grace period.
    
    Allowing such a grace period does not create an inference that
    
    Sierra Club's citizen suits were pretext for coercing monetary
    
    settlements; EPA itself will provide for grace periods in order
    
    to allow dischargers time for compliance.   See, e.g., 60 Fed.
    
    Reg. 2387, 2394 (1995); see also United States v. Metropolitan
    
    St. Louis Sewer Dist. (MSD), 
    952 F.2d 1040
    , 1044 (8th Cir. 1992)
    
    (holding that district court did not abuse its discretion in
    
    approving consent decree that allowed for delay in compliance).
    
         In addition, the operators agreed to make payments to
    
    environmental interest organizations other than Sierra Club,
    
    provided that such payments would be used for conservation and
    
    education, and not for litigation.   There is nothing illegal or
    
    improper about this sort of provision; indeed, "Congress
    
    encourages settlements of this type which preserve the punitive
    
    nature of enforcement actions while putting the funds collected
    
    to use on behalf of environmental protection."   Sierra Club v.
    
    Electronic Controls Design, Inc., 
    909 F.2d 1350
    , 1355 (9th Cir.
    
    1990) (internal quotations and citations omitted).   The consent
    
    judgments did provide for the payment of attorneys' fees and
    
    
                                    72
    costs incurred by Sierra Club in the litigation; however, we find
    
    nothing improper here, as such provisions frequently appear in
    
    consent judgments.       Finally, we note that these settlement
    
    agreements were reviewed and approved by the Department of
    
    Justice and EPA, as required by the CWA.       33 U.S.C. § 1365(c)(3).
    
    In light of these observations regarding Sierra Club's
    
    settlements with other oil and gas operators, and our holding
    
    today that Sierra Club's suit against Cedar Point is meritorious,
    
    we conclude that Cedar Point has failed to state a claim for
    
    abuse of process.    Therefore, we affirm the district court's
    
    dismissal of Cedar Point's counterclaim.
    
    
    
    B.   Sierra Club's Appeal
    
          In its appeal from the district court's order amending the
    
    injunction, Sierra Club raises the following points of error:
    
    (1) the district court lacked jurisdiction to amend the
    
    injunction; and (2) the district court abused its discretion in
    
    amending the injunction.       We address each of these arguments in
    
    turn.
    
    
    
         1.   Jurisdiction
    
          We review a district court's exercise of subject matter
    
    jurisdiction de novo.       Price v. United States, 
    69 F.3d 46
    , 49
    
    (5th Cir. 1995); In re Moody, 
    41 F.3d 1024
    , 1026 (5th Cir. 1995).
    
    Sierra Club contends that the district court lacked jurisdiction
    
    to amend its earlier injunction because Cedar Point's notice of
    
    
                                        73
    appeal from the final judgment divested the district court of
    
    jurisdiction over the action.    Sierra Club recognizes that there
    
    are exceptions to the divestment of jurisdiction under Rule 60(b)
    
    and Rule 62(c) of the Federal Rules of Civil Procedure, but
    
    argues that those exceptions do not apply.
    
         The district court did not cite either rule as authority for
    
    its order amending the injunction, but Sierra Club addresses each
    
    possibility.    If we hold that the authority for the amendment of
    
    the injunction was Rule 60(b), Sierra Club argues that the
    
    district court lacked jurisdiction because the court did not
    
    misinterpret or misapply the law and EPA's administrative order
    
    did not moot the court's initial injunction.    On the other hand,
    
    if Rule 62(c) is the relevant authority, Sierra Club contends
    
    that a district court lacks jurisdiction under that rule to
    
    dissolve an injunction once its validity has been appealed.
    
         Generally, a notice of appeal divests the district court of
    
    jurisdiction over the judgment or order that is the subject of
    
    the appeal.    Henry v. Independent Am. Sav. Ass'n, 
    857 F.2d 995
    ,
    
    997 (5th Cir. 1988).    Rule 62(c) provides an exception to this
    
    principle.    That rule provides, in part:
    
              When an appeal is taken from an interlocutory
              or final judgment granting, dissolving, or
              denying an injunction, the court in its
              discretion may suspend, modify, restore, or
              grant an injunction during the pendency of
              the appeal upon such terms as to bond or
              otherwise as it considers proper for the
              security of the rights of the adverse party.
    
    Fed. R. Civ. P. 62(c).    We have held, however, that the authority
    
    granted by Rule 62(c) does not extend to the dissolution of an
    
                                     74
    injunction.   Coastal Corp. v. Texas Eastern Corp., 
    869 F.2d 817
    ,
    
    819 (5th Cir. 1989).   In addition, we have held that the district
    
    court's power to alter an injunction pending appeal is limited to
    
    "maintaining the status quo."    Id. at 820.
    
         In the present case, the district court's amending order is
    
    more appropriately characterized as a modification--as opposed to
    
    a dissolution--of the original injunction, bringing the court's
    
    action within the ambit of Rule 62(c).     A "dissolution" would
    
    imply that the amending order altered the original injunction so
    
    that it no longer had any effect.     That is not the case here.
    
    The amending order stated that Cedar Point was not enjoined from
    
    discharging produced water as of the effective date of the final
    
    NPDES general permit and compliance order "so long as it complies
    
    with the terms of said General Permit and Compliance Order."       The
    
    permit and compliance order contain several conditions, including
    
    the submission of a compliance plan, operating and maintenance
    
    requirements, and notification procedures.     60 Fed. Reg. 2387,
    
    2389-94 (1995).   If Cedar Point fails to comply with any of these
    
    terms, the court's order will act to enjoin the discharge of
    
    produced water and to impose a penalty for such discharge.
    
    Therefore, we hold that the district court's amending order had
    
    the effect of modifying the injunction under Rule 62(c), rather
    
    than completely dissolving it.
    
         Further, we do not think that the modification exceeded the
    
    district court's limited authority to alter an injunction to
    
    "maintain the status quo."   The court's original order stated
    
    
                                     75
    that "Cedar Point Oil is enjoined from any further discharges of
    
    produced water from the Cedar Point Field to the waters of
    
    Galveston Bay, until such time as it secures an NPDES permit for
    
    such discharges."   Strictly speaking, the NPDES general permit
    
    issued by EPA on January 9, 1995, is a permit for the discharge
    
    of produced water by Coastal Subcategory operators, including
    
    Cedar Point; the limitation contained in the permit, however,
    
    requires zero discharge.   The effect of the compliance order is
    
    that operators covered by the general permit who were discharging
    
    produced water on the effective date of the permit are allowed to
    
    discharge produced water until January 1, 1997, so long as they
    
    continue to take affirmative steps to comply with the zero
    
    discharge limitation.   The district court could have reasonably
    
    read the permit and order together as creating an opportunity for
    
    Cedar Point to be covered by a NPDES permit and to discharge
    
    produced water while covered by that permit.   Accordingly, the
    
    district court modified its injunction to allow Cedar Point to
    
    take advantage of that opportunity.
    
         With respect to the jurisdictional question, it is
    
    significant that the injunction by its own terms created the
    
    possibility for a change in its operation.    Stated differently,
    
    part of the "status quo" of this action is that the court's
    
    injunction has ongoing effect, and that effect was subject to
    
    change depending upon subsequent developments.   The court did not
    
    exceed its authority in stepping in to supervise this change
    
    through an amendment of its original order.    Accordingly, we hold
    
    
                                    76
    that the district court had jurisdiction under Rule 62(c) to
    
    amend its original order with respect to the injunction.
    
    
    
    
        2.   Modification of the Injunction
    
         We review a district court's orders under Rule 62(c) for
    
    abuse of discretion.   See Wildmon v. Berwick Universal Pictures,
    
    
    983 F.2d 21
    , 23 (5th Cir. 1992).     Sierra Club contends that the
    
    district court abused its discretion in modifying the injunction
    
    because the modification was contrary to the original purpose of
    
    the injunction.   Specifically, Sierra Club argues that the
    
    general NPDES permit does not give Cedar Point the authority to
    
    discharge produced water, and therefore does not trigger a change
    
    in the injunction's effect.   To the contrary, Sierra Club points
    
    out that the permit prohibits Cedar Point from discharging
    
    produced water and that only after the court altered its
    
    injunction was Cedar Point eligible for the two-year grace period
    
    established by the compliance order.    Consequently, Sierra Club
    
    concludes that the court misread the permit and order as creating
    
    a "carte blanche" for oil and gas operators in Galveston Bay to
    
    discharge produced water until 1997.
    
         Generally, a court should only modify an injunction to
    
    achieve the original purposes of the injunction, if those
    
    purposes have not been fully achieved.     See United States v.
    
    United Shoe Machinery Corp., 
    391 U.S. 244
    , 248-49 (1968).     We do
    
    not dispute Sierra Club's reading of the final general NPDES
    
    
                                    77
    permit and compliance order; nevertheless, we do not think that
    
    the district court's modification of the injunction deviated from
    
    the original purpose of the injunction.        That purpose was to
    
    prohibit the unpermitted discharge of produced water into
    
    Galveston Bay.    Under the injunction as modified, Cedar Point is
    
    subject to a general permit applying to all produced water
    
    discharges by Coastal Subcategory operators in Louisiana and
    
    Texas and is legally discharging produced water according to the
    
    terms of the compliance order.     Meanwhile, the injunction remains
    
    in effect and provides for penalties against Cedar Point if it
    
    violates the terms of the general permit or compliance order.
    
    Also, under the terms of the compliance order, Cedar Point will
    
    have to take affirmative steps to eliminate its produced water
    
    discharges and, in any event, will have to cease such discharges
    
    by January 1, 1997.   Finally, we note that the ordering of Cedar
    
    Point's legal obligations effected by the modified injunction is
    
    highly preferable; that is, it is more appropriate that Cedar
    
    Point's produced water discharges are primarily regulated by a
    
    permit and order issued by EPA than by a continuing injunction
    
    supervised by a federal district court.        Accordingly, we hold
    
    that the district court did not abuse its discretion in modifying
    
    the original injunction.
    
    
    
                               III.   CONCLUSION
    
         For the foregoing reasons, we AFFIRM the judgment of the
    
    district court.
    
    
                                       78
    79
    

Document Info

DocketNumber: 94-20461

Filed Date: 1/11/1996

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (73)

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Price v. United States , 69 F.3d 46 ( 1995 )

United States v. United Shoe MacHinery Corp. , 391 U.S. 244 ( 1968 )

Association of Data Processing Service Organizations, Inc. ... , 397 U.S. 150 ( 1970 )

Sierra Club v. Morton , 405 U.S. 727 ( 1972 )

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Hunt v. Washington State Apple Advertising Comm'n , 432 U.S. 333 ( 1977 )

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