# Petition — Middlesex County Sewerage Authority v. National Sea Clammers Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2305%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 453 U.S. 1 ## Text APR 29 1980 Suprene Court of the Wnited| Btwkedocs., 12 oso» Ocroper Term, 1979 IN THE @9-1711 MIDDLESEX COUNTY SEWERAGE AUTHORITY, PASSAIC VALLEY SEWER- AGE COMMISSIONERS, MIDDLETOWN SEWERAGE AUTHORITY, BERGEN Morea ieee AUTHORITY and THE LINDEN ROSELLE SEWERAGE Petitioners, v. NATIONAL SEA CLAMMERS ASSOCIATION, GOSTA LOVGREN, CITY OF NEW YORK, HONORABLE ABRAHAM BEAME, UNITED STATES EN- VIRONMENTAL PROTECTION AGENCY, RUSSELL E. TRAIN, individually and as ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, UNITED STATES ARMY CORPS OF ENGINEERS, MARTIN R. HOFFMANN, individually and as SECRETARY OF THE UNITED STATES DEPARTMENT OF THE ARMY, NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OGDEN R. REID, individually and as COMMISSIONER OF THE NEW YORK DEPARTMENT OF ENVIRON- MENTAL CONSERVATION, NEW JERSEY DEPARTMENT OF ENVIRON- MENTAL PROTECTION, DAVID J. BARDIN, individually and as COMMIS- SIONER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PRO- TECTION, WEST LONG BEACH SEWER DISTRICT, COUNTY OF WEST- CHESER, DEPT. OF ENVIRONMENTAL FAC. CITY OF LONG BEACH AND CITY OF GLEN COVE and THE JOINT MEETING OF ESSEX AND UNION COUNTIES, Respondents, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT WILENTZ, GOLDMAN & SPITZER, MILTON B. CONFORD, A Professional Corporation, Counsel for Petitioner, Middlesex County Attorneys, Sewerage Authority, FRANCIS x JOURNICK, 900 Route 9, MARVIN J. BRAUTH, Woodbridge, New Jersey 07095. Of Counsel. (201) 636-8000 (Additional Counsel appear on the reverse side of this cover) Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611 JOHN G. GILFILLAN, III, Of Counsel. MENELAOS W. TOSKOS, Of Counsel. FURMAN anv JENNINGS, Attorneys. CHARLES C. CARELLA, Counsel for Petitioner, Passaic Valley Sewerage Commissioners, Gateway I, Suite 2404, Newark, New Jersey 07102. STEPHEN J. MOSES, Counsel for Petitioner, Bergen County Sewer Authority, One Essex Street, Hackensack, New Jersey 07601. VINCENT J. JENNINGS, Counsel for Petitioner, Township of Middle- town Sewerage Authority, 110 Highway 35, Red Bank, New Jersey 07701. RAYMOND G. TOMASZEWSKI, Counsel for Petitioner, The Linden Roselle Sewerage Authority, 812 North Wood Avenue, P.O. Box 626, Linden, New Jersey 07036. TABLE OF CONTENTS SS EE Oh RA IEA SN ee a GREAT RE Ghee eek Od SRO WER - QUESTIONS PRESENTED FOR REVIEW ...W..........-.-:0+2-ce--0-000 CONSTITUTIONAL AND Statutory Provisions INVOLVED nner ere Cae nas cccecsnecnsseencseccmcecntece ARGUMENT—Petitioner advances the folowing reasons for the allowance of certiorari: A. The holding of the Court of Appeals that failure of plaintiffs to give the statutory no- tice of intention to institute a complaint based on the Federal Water Pollution Control Act (FWPCA) 33 U.S.C. Sees. 1251 et seq., 1365, and on the Marine Protection, Research and Sanctuaries Act (MPRSA) 33 U.S.C. Sees. | 1401 et seq., 1415, is not fatal to claims for relief under those statutes, is erroneous; and the Courts of Appeals are in conflict on the issue, rendering review by this Court highly SIDI. :isiashternonanuceacesinmepisinisiannsenihacbihaeicntcsbbonciosiinas B. The holding of the Court of Appeals that a private citizen may maintain an action under 28 U.S.C. See. 1331 against a state govern- mental agency for pollution of ocean waters on the basis of a federal common-law nuisance theory is erroneous; and the federal courts of appeals are now in conflict on the issue, rendering review by this Court highly de. IIIS 1.4 councsasasdgtuaselesopshuboiotaniaaiaseleninaeonnieebasicountsicaleinins 10 TABLE OF CONTENTS 1. Significance of Illinois v. Milwaukee ....... 2. Any pre-existing theory of federal com- mon-law nuisance by a private party against a public sewerage agency should be deemed pre-empted by the enactment of the 1972 Amendments ot FWPCA, of MPRSA as amended in 1977, and of the administrative regulations adopted by KPA pursuant to both acts 2.0... 3. Illinois v. Milwaukee authorizes only an injunction, not damages ....................-.-...—... C. Any tort claim for damages against the New Jersey sewage disposal agencies, including any based on a federal common-law nuisance claim, is barred by the Eleventh Amendment and/or the New Jersey Tort Claims Act since those agencies by New Jersey law partake of New Jersey’s sovereign immunity, and the waiver of such immunity here is predicated on conditions which plaintiffs have not satis- fied. Due respect for States under appro- priate principles of federalism bespeaks re- view of this issue by this Court, the Court of Appeals having resolved it erroneously .. 1. As to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. Bic Bie oD ec 2. As to sovereign immunity under the Eleventh Amendment _.W...-.....-.-.-co---o.-0--- fe am eta Da A UNMET CORA ly ATCT ee a 21 24 TABLE OF CONTENTS ii PAGE APPENDIX: Opinion of the Court of Appeals la Judgment of the Court of Appeals 37a Opinion of the District Court .. 40a Ordler of the Thiwtriet Cre ancl dcatescteteee 68a Constitutional Provision and Statutes Involved Tla Eleventh Amendment to Constitution of the United States .............-. ie rome § 28 U.S.C. See. 1254 ...W.......... wiinnaiiacesie Tla ee ERIE “i iancatteaticlenimeennietelints Tla Re Rese RO hibeisc codec sigue Tla 28 U.S.C. See. 13833 72a ee Ee Ne I ciciinctinccesinaadelmeniaiagaa 72a 33 U.S.C. Sec. 1251 .. 73a 33 U.S.C. Sec. 13811 ..... 76a 33 U.S.C. See. 1816 82a 33 U.S.C. Sec. 1817 .... 84a 33 U.S.C. See. 1841 ._.. = 88a Se Re Mc POD coiceincind te isocaatinen 93a Be Ui SHOU, BUD siacirsninipepnnententnenciotens 95a 33 U.S.C. See. 1365 . 96a, 33 U.S.C. See. 1401 .... sabaninbbaieaiin 98a LR GAR GS °° ) enero nce eee na One 99a ee se Gs BUI ed cteeticeistesisdeeneiiennnioncs 100a Se Wr: TOO BRIG serenttinceorsieganicomanins 103a lv TABLE OF CONTENTS PAGE ao UBL. Gee. 106 os 104a 42 U.S.C. See. 7604 .... ‘4 ... 105a N.JS.A. 5921-2 ... . 108a N.J.S.A. 59:1-3 __. 109a Mar TR in eda eee 109a OE SF | SOM irre See nike 109a Pas BM cisiacctbccmsnsslan 109a pS Re SE ee eee a1 Oe 110a Cases Cited Byram River y. Village of Port Chester, 394 F. Sepp. €i8 (DN.Y. 1076) 17 City of Highland Park y. Train, 519 F.2d 681 (7 Cir. 1975), cert. denied 424 U.S. 927 (1976) 15,17 Committee for Con. of Jones Falls Sewage System v. Train, 375 F.Supp. 1148 (D. Md. 1974), affirmed on other grounds consistent with that of the Dis- trict Court on the instant issue, 539 F.2d 1006 (4 SOs TIED Sicceciscacmanoeanciadessaecslaeslart ae 17-20, 23 Conservation Soc. of S. Ver. Ine. v. Secretary of Tran., 508 F.2d 927 (2 Cir. 1974) 15 Cort v. Ash, 422 U.S. 66 (1975) 12 Georgia v. Tennessee Copper Co., 206 U.S. 230 SOE? Sccsthasestiatasd conimentadaaiahicome ries a Ao 9 cS ORD NI ae Carer Ceres aOR TAD ie eT ET eee 9 WP ICA ~- waiccortabpctslapiaielcesiicubbauiasteneomietaMbininlebaiaan ats 9 09:1-1 (New Jersey Tort Claims Act) ....3, 4, 9, 25 PEAT oid: nvstibiisciabutseniasinensabascesiienpajasinnsehiptabbeaitiaas cai 4, 28 PERNA isstuicshib ucthinnedesnsisiounndeaecdbeiaandiledsiacolaivndasen + TEP SR I \ olalicdadarenexsioeieabiesonaslaialatseaiail 25 MUNEUIE Ow acini cdesicabbanibasovecainenn ehaiarancndleciie ndniesadaastic 4, 26 ee MT i RDO TERT ATS SOPOT COLA LEAT 4, 27 RUT ia dicdas sepreatanictuakirshec lanl bea cdo ckicabiostte aieeoaeaia 4, 27 TPAD wisceunnnssnclaiies Shi tastieapiahiasesecneieneettma ikea 27 by G : ) Sv ceenmumccuen kaonoerta Ne BASIN GAN OR rem 2 TUTTE aiusiiecasistlieatduscmebieinleibaie came vapaantiie iatteete dials cas 2 REE” salindupieisiedadiiinindeniamiaraiccielctedmmeniiacy ctr aot 3, 16 HIT: AID Ssisdneniebncdslacceenceaaidtidcaiaiicnaeia tess 2,4 1333 ...... 2,4 TABLE OF CONTENTS Vii PAGE 33 U.S.C. (Federal Water Pollution Control Act, as amended) : TR BAI isicnsspnnnninsa nae ianso~cigiinmnnminciinaniiiaie 2-4, 7, 10 33 U.S.C. (Marine Protection Research and Sanc- tuaries Act of 1972, as amended): See. 1311 .... 22 NO, SURG Scho stiintnscinaeis es 21 See. 1811(h) ...... s 22 PIO, TAI -siccsuncaisecmastindgnideesrattanseehagedihdanteladadanalianess-diiae 22 ENE SIT . seen bcestieteninnn 22 CPU, RIM Aesinsnihivinicsinisnsacitguashincedanmsaatntaceneaadannalia tans 22 BOIDS: DIPIIEE cicnsichepibenincepisdeinsibide iaksltnatadi eatin 22 I) a, sncsissccatceniiisaenmneteiietaiecielitbei alae chaccalicaas amet 3, 10, 13 BE UIP TMD sais tasaciotsindagson tienen seknincpameniaa caaiaienaae 14 PUG CURD BO ice Ne ee 13 RO: RMI TID cael ccsacaisinigisctacenmbicechaiteamnediien eae Masia 12, 14 ek - Se Oe es eh eee 12, 14 ae SS, anne eee aa nen Sarthe DEAR we Aexbee Bors 7 14 en. Soar S08) TR Sa aeeeenen 14 BUD, TE uiccsciscetclongscancnsuasenaasensienpcaninaeniaiee 2-4, 7, 10 OU, TRIER,” susscssiniessecaiciesstndgandeseoiorcenpennertagieinlnaioenmaaannaa 22 TOO, BETTIE D wicinsncinnnevieessniccepeianieinaantanialemaaeatanaan 22 TEID.. DMRS -~ . a Gispons, Circuit Judge. This case comes before us on an appeal by plaintiffs National Sea Clammers Association and Gosta Lovgren from a final order dismissing their complaint. Plaintiffs are an association whose members make their living harvesting fish and shellfish from the water and ocean beds of the Atlantic Ocean near New York and New Jer- sey, and an individual similarly employed. They sue on behalf of themselves and a class comprising all others similarly situated. Defendants are various federal, state, and local officials and governmental departments that are charged with environmental protection or that are responsible for sewage treatment and disposal. Plaintiffs’ complaint alleged that defendants discharged or permitted the discharge of certain nutrient-rich sew- 3a Opinion of the Court of Appeals age and toxic wastes into the Atlantic Ocean or its tribu- taries. It further alleged that in 1976 these discharges caused a massive and rapid growth of algae from Long Island to Cape May and extending from a few miles to twenty miles offshore. When this algae mass bloomed and died it allegedly settled on the ocean’s floor, and its subsequent decomposition created an anoxia, an oxygen deficiency, in the water near the ocean’s floor, which caused death and other adverse effects on marine life, particularly on those life forms, such as shellfish, ill able to flee the afflicted area, Plaintiffs alleged viola- tions of the National Environmental Pelicy Act of 1969, 42 U.S.C. §§4821-4361 (1976), the -Federal Water Pol- lution Control Act, 33 U.S.C. §§1251-1376 (1976 & Supp. I), the Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. $$1401-1444 (1976), the Rivers and Harbors Act of 1899, 33 U.S.C. §407 (1976), the New York Iinvironmental Conservation Law, N.Y. Environ. Con- serv. §1-0101 (McKinney 1973), the New Jersey Con- servation and Development Law, N.J.S.A. 13:10-1 (1968), the federal common law of nuisance, and the fifth, ninth, and fourteenth amendments to the Constitution. Defend- ants moved for dismissal of all claims on the grounds that the court lacked subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), or that the plaintiffs had failed to state a claim on which relief could be granted, see ed. R. Civ. P. 12(b)(6). The complaint seeks injunc- tive relief, damages, mandamus to compel compliance with statutory duties, the imposition of fines and penalties for certain violations, the award to plaintiffs of one half of the fines assessed, and attorneys’ fees. The trial court, holding that the submission of affidavits converted the motions into motions for summary judgment, granted defendants’ motions as to each cause of action alleged. 4a Opinion of the Court of Appeals The complaint was dismissed, with prejudice, on all claims except for two said to arise under state law which were dismissed without prejudice. This appeal followed. We discuss separately the various legal theories which were pleaded and rejected. 1. The Federal Water Pollution Control Act The district court held that plaintiffs’ failure to com- ply with the notice requirements of the Federal Water Pollution Control Act (FWPCAA)! deprived it of juris- diction to entertain plaintiffs’ claim that defendants vio- lated their duties under that Act. Section 505(a) of the FWPCAA grants to any private citizen the right to sue to enforce compliance with effluent standards or limitations, 33 U.S.C. §1365(a)(1), or to compel the Administrator of the Environmental Protection Agency to perform non- discretionary duties. Id. §1365(a)(2). Section 505(b) re- quires that in suits brought pursuant to subsection (a), 60 days’ notice be given to specified parties to the suit. The Federal Water Pollution Control Act, 33 U.S.C. §§1251- 1376 (1976 & Supp. I) was patterned after the Clean Air Act, 42 U.S.C. §§7401-7642 (1976). As originally enacted it was se- riously deficient as a comprehensive regulatory scheme and was substantially amended in 1972. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, reprinted in [1972] U.S. Code Cong. & Ad. News 951, codified in 33 U.S.C. §§1251- 1376 (1976); see W. Rodgers, Environmental Law §4.2 (1977). The 1972 amendments created the private right of action here in issue. Although the Act was further amended in 1977, those changes are not relevant to this litigation. 5a Opinion of the Court of Appeals Id. §1365(b).? Regulations promulgated by the Adminis- trator define the type and specificity of the notice required. 40 C.F.R. §135.3(A) (1979). The district court held that the notice provision of section 505(b) was a jurisdictional prerequisite to suit, such that plaintiffs’ failure to give notice barred suit un- der section 505(a), 33 U.S.C. §1365(a). This court has rejected the theory that substantial compliance with the notice requirement suffices to give the court jurisdiction under section 505(a). We require instead strict adher- ence to the Act’s notice provisions for suits brought pur- suant to section 505(a). Loveladies Property Owners Ass'n, vy. Raab, 430 F. Supp. 276, 280-81 (D.N.J. 1975), affd mem., 457 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906 (1977). We do not depart from that hold- ing. We note, however, that it would be entirely permis- sible for this court to adopt the pragmatic approach to in- terpreting the 60-day notice provision by which we would merely require that sixty days elapse prior to district * Numerous environmental protection statutes contain citizens’ suit provisions, each of which also contains a notice requirement similar to that found in section 505(b), 33 U.S.C. §1365(b). E.g., Toxic Substances Control Act, §§20, 21, 15 U.S.C. §$2619, 2620 (1976); Surface Mining Control and Reclamation Act of 1977, §520, 30 U.S.C. §1270 (1976 & Supp. I); Marine Protection, Re- search and Sanctuaries Act of 1972, §105, 33 U.S.C. §1415 (1976) ; Deepwater Port Act of 1974, §16, 33 U.S.C. §1515 (1976); Safe Drinking Water Act, §2(a), 42 U.S.C. §300j-8 (1976 & Supp I); Noise Control Act of 1972, §12, 42 U.S.C. §4911 (1976); Resource Conservation and Recovery Act of 1976, §2, 42 U.S.C. §6972 (1976 & Supp. I); Clean Air Amendments of 1970, §12(a), 42 U.S.C. §7604 (1976 & Supp. I). 6a Opinion of the Court of Appeals court action on the complaint.2 The purpose behind the notice provision, as the legislative history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy the alleged violation prior to ju- dicial action.* Thus, in the instant case, we could adopt the position that the failure of the Administrator to take remedial action during the sixty days after receiving no- tice of the suit permitted the suit to go forward in dis- trict court. We need not pass upon this proposition, how- ever, because of our analysis of the independent signifi- cance of section 505(e), 33 U.S.C. §1365(e), the savings clause of the citizens’ suit provision. The district court erred in holding that failure to comply with section 505(b), 33 U.S.C. §1365(b), created an abso- lute bar to plaintiffs’ suit to enforce the provisions of the Act. The citizens’ suit provision of the FWPCAA was modeled on a similar provision in the Clean Act Act. Com- pare Clean Air Act $304, 42 U.S.C. $7604 (1976) with Fed- eral Water Pollution Control Act $505, 33 U.S.C. §1365 ’ See H.R. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46 (1972), reprinted in Legislative History of the Water Pollutiom Control Act Amendments of 1972, at 328-29 (1973) (hereinafter Legislative History) (Senate version, adopted in relevant part by Conference Committee, would require that “no action on a suit may begin for 60 days following notification”). Thus, it appears that the Senate bill envisioned filing of a Complaint prior to the passage of 60 days and intended only to defer action on such a suit. *S. Rep. No. 92-414, 92d Cong., Ist Sess. 79-80 (1972), re- printed in Legislative History at 1497-98, see W. Rodgers, En- vironmental Law §1.13 (1976) (discussing prototype citizens’ suit provision of Clean Air Act). 7a Opinion of the Court of Appeals (1976 & Supp. I). The slight difference in wording of the citizens’ suit provision of each act reflects only the attempt by Congress to ensure that the FWPCAA would comply with the holding of the Supreme Court in the then- recent case of Sierra Club v. Morton, 405 U.S. 727 (1972). The Senate version of the bill would have permitted any person to sue to enforce the terms of the Act. The House bill would have limited citizens’ suits narrowly to suits brought by two types of plaintiffs, citizens of the geo- graphic area who were directly affected by the alleged vio- lation, or groups of persons who, because actively engaged in the administrative process, had shown an interest in ®In Sierra Club, the Supreme Court analyzed the requirement of standing in the context of litigation by environmental groups pursuant to section 10 of the Administrative Procedure Act. 5 U.S.C. §702 (1976). The Court held that such an environmental group would have standing if it could allege an adverse effect on its interests, whether economic, aesthetic, conservational or recrea- tional. 405 U.S. at 738. The legislative history of the FWPCAA is replete with references to the Sierra Club decision and the issue of whether the general language of the Clean Air East End Yacht Club Inc. v. 2d Cir. 1977) ; Committee for Consid. of Jones Falls Sew. Sys. v. Train, 375 F. Supp. 1148 (D. Md. 1974), aff'd on different but not inconsistent grounds, 539 F.2d 1006 (4th Cir. 1976). 7 25a Opinion of the Court of Appeals the common law nuisance remedy recognized in Illinois v. City of Muwaukee is available in suits by private parties. The Court stated explicitly in J/linois that although both parties to that suit were governmental, “it is not only the character of the parties that requires us to apply federal law.” Illinois v. City of Milwaukee, 406 U.S. at 105 n.6. Rather, the Court noted that “where there is an overrid- ing federal interest in the need for a uniform rule of decision ... we have fashioned federal common law.” Jd. In the instant case, plaintiffs are suing for damages to interstate ambient water, an issue as to which there is a clear and overriding federal interest in uniformity.** There is no question but that the interstate pollution here alleged is a problem calling for the application of a uni- form federal standard. Relegating these litigants to pos- sibly conflicting New York and New Jersey nuisance standards would ignore the clear intent of the Supreme Court to federalize those standards and would undermine that federal uniformity. These plaintiffs have sufficiently alleged pollution of interstate waters.” In order to give _ **In reaching the conclusion that federal common law may be fashioned to deal with federal rights, and that ambient air or water are interstate problems as to which there is a federal common law remedy, the Supreme Court relied upon Textile Workers v. Lincoln’ Mills, 353 U.S. 448, 457 (1957) and Texas v. Pankey, 441 F.2d 236, 240-41 (10th Cir. 1971). Tilinois v. City of Mil- waukee, 406 U.S. at 103 & nS. ®° Failure sufficiently to allege interstate effects has proved fatal to plaintiffs seeking to base their suits on the federal common law nuisance remedy. Reserve Mining Co. v. EPA, 514 F.2d 492, 920 (8th Cir. 1975); Committee for Consid. of Jones Falls Sew. (Footnote continued on following page) 26a Opinion of the Court of Appeals full effect to the federal common law of nuisance recog- nized in Illinois, private parties should be permitted, and indeed encouraged, to participate in the abatement of such nuisances. Courts have already extended the Tilinois remedy to the federal government* and to municipalities,*” and one district court has applied it on behalf of private litigants.** The effectuation of the purposes of the JIli- (Footnote continued from preceding page) Sys. v. Train, 539 F.2d 1006, 1009 (4th Cir. 1976). In Illinois v. City of Milwaukee, the immediate issue of concern was the need to apply uniform federal law where the polluting activities of one state caused harm to another state. The need for uniformity, how- ever, is no less a concern where individuals are harmed by the polluting activities of states or their subdivisions. To hold that plaintiffs may not avail themselves of this remedy is to leave open the possibility that this pollution will continue unabated and that the damages suffered by these individuals will be unremedied. Such result was surely not intended by the unanimous Court in JIlinois v. City of Milwaukee. 8° United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975); United States v. Ira S. Bushey & Sons, 346 F. Supp. 145, 149-50 (D. Vt. 1972), aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976 (1974). 37 City of Evansville v. Ky. Lig. Recycling, Inc., 604 F.2d 1008, 1018-19 (7th Cir. 1979), 38 In Byram River v. Village of Port Chester, 394 F. Supp. 618 (S.D.N.Y. 1975), the court extended the Jilinois v. City of Mil- waukee remedy to (1) Byram River, (2) a private corporatic > Byram River Pollution Abatement Association, (3) the Town o Greenwich, a municipal corporation, and (4) a private individual owning land on the river’s bank. Jd. at 622 (relying on Jilinois v. City of Milwaukee and 28 U.S.C. §1331). (Footnote continued on following page) 27a Opinion of the Court of Appeals nois v. City of Milwaukee remedy and the fulfillment of the Supreme Court’s intent in creating that remedy lead us to conclude that it is available to these private litigants who have been injured by the effects of the polluting ac- tivities of these defendants. While Jllinois v. City of Milwaukee did not address this specific issue, we are convinced that the Court would apply the mode of analy- sis of Lincoln Mills® and would look to the Restatement formulation as an appropriate source for a federal rule. These plaintiffs have alleged sufficient individual damage to permit them to recover damages for this essentially (Footnote continued from preceding page) In Stream Pollution Control Poard v. United States Steel Corp., 512 F.2d 1036 (7th Cir. 1975), the Seventh Circuit held that com- mon law relief is available to a pollution control board, but denied the motion of a private individual to intervene on the ground that the federal common law nuisance suit was not a suit commenced to enforce compliance with an FWPCAA “standard, limitation or order.” Jd. at 1039-41, 1040 n.9; see 33 U.S.C. §1365(b) (1) (B) (governing intervention). The court did not address the avail- ability of the Jilimois remedy to a private individual, but held that the remedy extended to the pollution control board because the “complaint raises substantial questions which only a federal court may finally answer.” 512 F.2d at 1040. Although the Seventh Circuit has since questioned the analysis of the FWPCAA permit system. in Stream Pollution, see United States Steel Corp. v. Train, 356 F.2d 822, 830 n.3 (7th Cir. 1977), that affects only the issue of whether under the Act, the private individual could intervene. In Potomac River Association v. Lundeberg Md. Seamanship School, 402 F. Supp. 344 (D. Md. 1975), the court permitted private plaintiffs to sue for the maritime tort of nuisance without reference to a federal common law nuisance claim. Jd. at 358-59; see Part V, infra. 39 Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957). 28a Opinion of the Court of Appeals public nuisance, The Restatement (Second) of Torts de- fines a public nuisance as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts § 821B (1979). A private party may recover damages for a public nuisance if, while exercising the common right, he has suffered damages different in kind from those suffered by the public. 7d. § 821C. The Re- statement for formulation encompasses the injury alleged in this case. In Burges v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973), the court held that it would be incongrous to say that a man engaged in commercial fishing or clamming, and dependent thereon for his livelihood, who may have had his business destroyed by the tortious acts of another should be denied any right to recover for his pecuni- ary loss on the ground that his injury is no differ- ent in kind from that sustained by the general pub- lie. Id. at 250. Thus, these plaintiffs, who have a right under federal common law to abate the pollution of interstate waters, have also suffered sufficient individual harm to sue for damages arising from that public nuisance. We therefore hold that the federal common law of nuisance may be enforced by private plaintiffs and that these plain- *° Illustration 11, explicitly included within the different in kind test, is indistinguishable from the facts of this suit. It states: 11. A pollutes public waters, killing all of the fish. B. who has been operating a commercial fishery in these waters, suffers pecuniary loss as a result. B can recover for the public nuisance. Restatement (Second) of Torts §821C, Illustration 11 (1979). 29a Opinion of the Court of Appeals tiffs have sufficiently alleged individual harm to permit recovery of damages for the public nuisance. Thus we must reverse the trial court’s dismissal of the plaintiffs’ federal common law nuisance claim. V. Admiralty Jurisdiction and Maritime Torts Plaintiffs also listed the federal admiralty law as an alternate basis for their tort claims. See U.S. Const. art IIT, §2; 28 U.S.C. §1333 (1976); 46 U.S.C. §740 (1976). The Supreme Court’s traditional test for the existence of admiralty jurisdiction is two-fold; first, the traditional ele- ment of a maritime locality must be established; and second, a significant relationship to a traditional maritime activity must be proven. Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972). The situs test may be no longer signficant. See P.C. Pfeiffer Co. v. Ford, —— USS. » 48 US.L.W. 4018, 4019 (U.S. Nov. 27, 1979); Sea-Land Serv. v. Director, Office of Workers’ Compens., 040 F.2d 629, 635-39 (3d Cir. 1976). That need not con- cern us here for both elements are satisfied by the allega- tions of the complaint. The situs of the algal bloom was the high seas. The nexus to maritime commerce is plain. See, e.g., Moore v. Hampton Roads Sanitation Dist. Conm’n, 557 F.2d 1030, 1034 (4th Cir. 1976) (harvesting oysters and clams, like fishing, is traditional maritime activity meeting nexus test of Executive Jet), cert. denied, 434 U.S. 1012 (1978); Union Oil Co. v. Oppen, 501 F.2d 008, 561 (9th Cir. 1974) (fishing industry is part of mari- time activity); Potomac River Ass’n vy. LTnandeberg Md. Seamanship School, 402 F. Supp. 344, 358 (D. Md. 1975) (injury to commercial fishing meets tests of Executive Jet). 'Thus, this suit by plaintiffs for the tort nuisance 30a Opinion of the Court of Appeals committed in the navigable waters and injuring those en- gaged in maritime commerce falls within the admiralty jurisdiction of the district court.*! Having held that the district court had jurisdiction in admiralty over plaintiffs’ claims, we turn to whether plain- tiffs have sufficiently alleged a cause of action sounding in maritime tort. One district court has recognized that a suit by clammers and fishermen for damages caused by an oil spill sounded in maritime tort and that recovery could be had for damages suffered by private plaintiffs alleging tortious invasions different from those suffered by the general public. Burgess v. M/V Tamano, 370 F. Supp. 247, 249-50 (D. Me. 1973). The court held that the pollution was an interference with plaintiffs’ direct exer- cise of a public right to fish and dig for claims and thus caused them damages different in kind from those suffered by the general public. Jd. at 250. The district court dismissed this claim on the ground that plaintiffs’ Complaint was insufficient to allege a cause of action sounding in maritime tort. To the extent that plaintiffs have attempted to allege a mariitme tort, it must be found in Count I of their Complaint. That Count seeks recovery based on a theory of federal common law nuis- *! We need not consider plaintiffs’ assertion that the court had jurisdiction independently under the Extension of Admiralty Act, 46 U.S.C. §740 (1976). That Act was intended to broaden juris- diction to cases over which jurisdiction would not have existed under the strict locality test employed prior to Executive Jet. The Act extends admiralty jurisdiction to injuries caused by a vessel on navigable waters the effects of which are felt on land. 3la Opinion of the Court of Appeals ance, rather than alleging specifically a maritime tort.‘ But the facts which support a Burgess-type admiralty tort claim are sufficiently alleged, and thus judged by the standards applicable to motions under Fed. R. Civ. P. 12(b)(6) the Complaint is sufficient. Probably the sub- stantive legal standards applicable to the maritime nuis- ance tort and the federal common law nuisance tort recog- nized in Illinois vy. City of Milwaukee are the same, al- though on this record we need not fully explore that ques- tion. Nor need we decide whether the plaintiffs must at some point elect between admiralty and non-admiralty remedies. Finally, the district court did not, and thus we do not reach the question of whether the Limitation of Liability Act, 46 U.S.C. §§181-195 (1976), would be avail- able to limit liability of the federal and municipal govern- ment defendants for damages to the value of the vessels used to barge the sewage and dredge spoils to the various dumping sites. We do hold that it was error to dismiss plaintiffs’ maritime tort claims against all defendants at the pleading stage. *° The confusion arises because the nuisance claim also requires a showing that these private individuals have suffered damages different in kind from those suffered by the general public. See Part LV, supra. In Burgess, the court held that the tort of nuisance could be a maritime tort and analyzed the Complaint under an admiralty theory. See 370 F. Supp. at 250. The plaintiffs in Burgess did not raise, and the court did not address, the federal common law nuisance issue. Thus, the Burgess opinion does not persuade us that an allegation of the tort of nuisance as to which recovery is expressly based on the doctrine of federal common law nuisance may not also be liberally read as sounding in mari- time tort. 32a Opinion of the Court of Appeals VII. Federal Tort Claims Act The district court held that the cause of action against federal agencies based on maritime tort was barred by plaintiffs’ failure to comply with the requirements of the Federal Tort Claims Act, 28 U.S.C. §§2671-2680 (1976) (FTCA). The terms of the FTCA define the limits of the Court’s jurisdiction to hear suits brought pursuant to the Act. United States v. Sherwood, 312 U.S. 584, 586 (1941) ; Rosario v. American Export Isbrandsten Lines, 531 F.2d 1227, 1231 (3d Cir.), cert. denied, 429 U.S. 857 (1976). Under the Act, claims must first be presented to the ap- propriate federal agency and no suit may be filed until six months thereafter. 28 U.S.C. §2675. Regulations promulgated pursuant to the Act require that each claim so presented contain a demand for a sum certain. 28 C.F.R. $14.2 (1978). These requirements were intended to create a system of prelitigation administrative considera- tion in order to settle claims and avoid unnecessary liti- gation.** Plaintiffs failed to observe the six months’ wait- ing period. The district court held and we agree that it did not have jurisdiction to entertain the plaintiffs’ *8 See 28 U.S.C. §2675 (six months must elapse following pre- sentation of claim to federal agency before suit may be filed); 28 C.F.R. §14.2 (1978) (claim must demand sum certain in dam- ages). ** Bialowas v. United States, 443 F.2d 1047, 1049-50 (3d Cir. 1971) ; see Pennsylvania v. Nat'l Ass’n of Flood Insurers, 520 F.2d 11, 19 (3d Cir. 1975) (sum certain requirement) ; Ryan v. United States, 457 F. Supp. 400, 402 (W.D. Pa. 1978) (same). 33a Opinion of the Court of Appeals claims under the FTCA.“ This precludes a money dam- age recovery against federal agencies based on state law. Since we are remanding the federal common law nuisance claim we leave open the question, not addressed by the parties to this appea!, whether absent a reference in some statute waiving sovereign immunity for federal common law torts, monetary relief against the federal defendants is unavailable. VIII. The National Environmental Policy Act (NEPA) The plaintiffs allege that the Environmental Protection Agency has violated the Nationa! Environmental Poliey Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1976 & Supp. I), by failing to develop, plan, and coordinate fed- eral functions, programs, and resources to the end that the Atlantic Ocean might exist without degradation, and that those who use the marine environment would be pro- tected from risk to health or safety or other undesirable consequences. The district court held that the complaint failed to state a cause of action under NEPA. The issue is one of considerable complexity. The preparation of an environmental impact statement is required for every “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1976). The Administrator of the Environmental Protection Agency, however, is statutorily exempt from the environ- *° We express no view as to whether the sum requested by plain- tiffs was sufficiently certain, sce Fallon v. United States, 405 F. Supp. 1320, 1322 (D. Mont. 1976), or whether plaintiffs’ claims against federal agencies and officials for negligent enforcement of various federal acts would be barred by the FTCA’s exception for discretionary functions. See 28 U.S.C. §2680(a) (1976). 34a Opinion of the Court of Appeals mental impact statement requirement. 33 U.S.C. § 1371 (c)(1) (1976). Whether other substantive provisions of NEPA would afford relief is not entirely clear.*® Further complicating the application of NEPA is the fact that some actions of the Agency are discretionary, 42 U.S.C. § 4331, and are reviewable only pursuant to the Admin- istrative Proceduce Act, 5 U.S.C. § 706 (1976). See En- vironmental Def. Fund v. Corps of Eng., 470 F.2d 289, 298 n. 14, 298-300 (8th Cir. 1972), cert. denied, 412 U.S. 931 (1973). Because it does not appear at this stage of the case that a cause of action based upon NEPA would afford to the plaintiffs and the class they seek to repre- sent any relief different from or more extensive than the relief which would be available under the claims we have already discussed, we decline at this time to pass upon the merit of the rather complex issues posed by NEPA. The district court will be free to reconsider the NEPA contentions in the light of the record developed on remand. IX. State Tort Claims Acts Moreover, to the extent that plaintiffs also failed to comply with the requirements of the New Jersey*? and *° Courts differ, for example, on the question of whether sec- tion 101 of NEPA, setting forth Congress’ declaration of pur- pose, would afford such relief. Compare Calvert Cliffs’ Coord. Comm. v. AEC, 449 F.2d 1109, 114 (D.C. Cir. 1971) (§101 of NEPA is substantive) with Shifflin v. Schlesinger, 548 F.2d 96, 100-01 (3d Cir. 1977) (§101 lacks independent substantive im- pact). *7 New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to*12-2 (1972). The statute provides that public entities may only be sued if a claim is presented within 90 days after the cause of action accrues and no court suit may be instituted prior to six months thereafter. Jd. 59:8-8. The trial judge has discretion under the statute to ex- pand the filing time from 90 days to one year if no substantive prejudice results. Jd. 59:8-9, 35a Opinion of the Court of Appeals New York** tort claims acts, the dismissal of their claims under those acts must be affirmed. We do so, however, without prejudice to present compliance with the require- ments of those statutes and suit thereunder in the future.*® X. Constitutional Claims Plaintiffs also alleged violation of their fifth, ninth, and fourteenth amendment rights. They argued that there is a constitutional right to a pollution-free environment and that, by virtue of their special relationship to the envir- onment, they can enforce this right. The district court rejected the constitutional argument and we affirm that holding. It is established in this circuit and elsewhere that there is no constitutional right to a pollution-free environment. See, ¢.g., Township of Long Beach vy. City of New York, 445 F. Supp. 1203, 1212-13 (D.N.J. 1978) (citing cases rejecting constitui.onal analysis). We hold that the district court properly rejected the plaintiff's constitutional claims. #8 N.Y. General Municipal Law (McKinney) §50-e (1977). The statute provides that notice of a claim must be filed within 90 days after the cause of action accrues, id., that suit may not be filed until 30 days have elapsed after the filing of the notice, id. §50-i(1), and that no suit may be brought more than one year and 90 days after the accrual of the cause of action. Jd. §50-i(1)(c). . a ENVIRONMENTAL PROTECTION, DAVID J. BARDIN, individually and as COMMISSIONER OF NEW JERSEY DEPARTMENT OF ENVIRON- MENTAL PROTECTION, BERGEN COUNTY SEWER AUTHORITY, THE JOINT MEETING OF ESSEX AND UNION COUNTIES, PASSAIC VAL- LEY SEWERAGE COMMISSIONERS, MIDDLE- SEX COUNTY SEWERAGE AUTHORITY, THE LINDEN ROSELLE SEWERAGE AUTHORITY, MIDDLETOWN SEWERAGE AUTHORITY, WEST LONG BEACH SEWER DISTRICT, COUNTY OF WESTCHESTER, DEPT. OF ENVIRONMENTAL FAC., CITY OF LONG BEACH AND CITY OF GLEN COVE. (D.C. Civil No. 77-0126) »™ a On APPEAL FROM THE Unirep States District Court FOR THE Disrricr or New JERSEY Present: Gipspons and Hiccinsoruam, Circuit Judges and Werner, District Judge* J UDGMENT This cause came on to be heard on the record from the United States District Court for the District of New Jer- sey and was argued by counsel on October 16, 1979. On consideration whereof, it is now here ordered and * Honorable Charles R. Weiner, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 39a Judgment of the Court of Appeals adjudged by this Court that the judgment of the said Dis- trict Court filed January 9, 1979, be, and the same is hereby affirmed as to that portion of the said judgment dismissing the Refuse Act claim, the Federal Tort claims Act and state tort claims act claims, and the constitu- tional claims; that part of the judgment dismissing the complaint is reversed to the extent that it dismissed plain- tiffs’ claims under the Federal Water Pollution Control Act, the Marine Protection, Research and Sanctuaries Act, their common law nuisance claims and their maritime tort claims; that portion of the judgment dismissing the Na- tional Environmental Policy Act claim is vacated and that claim is remanded for consideration of the record devel- oped on remand. It is further ordered that the cause is hereby remanded to the district court for further pro- ceedings, consistent with the opinion of this Court. ATTEST: Tuomas F. Quinn Clerk February 5, 1980 Certified as a true copy and issued in lieu of a formal mandate on March 21, 1980. Test: M. (Illegible) Chief Deputy Clerk, United States Court of Appeals for the Third Cireuit 40a Opinion of the District Court (Filed—August 14; 4978) 78) Unrrgp- Status District Court _-— Disrricr or New Jzrsry ae Crvm Action No. 77-126 a> —_- NationaL SEA CLamMeErs Association, ete., et al., Plaintiffs, Vv. Crry or New York, etce., et al., Defendants. Meanor, District Judge. This matter comes before the court on motions by 14 defendants to dismiss the complaint for lack of jurisdic- tion and/or failure to state a claim upon which relief may be granted. Because the parties rely on material outside the pleadings, these motions will be treated as ones for summary judgment. Plaintiffs are the National Sea Clammers Association (NSCA), an incorporated association with its principal place of business in Absecon, New Jersey, and Gosta Lov- gren, a member of NSCA and a New Jersey resident. They have brought this class action on behalf of those who 4la Opinion of the District Court harvest the waters and sea beds of the Atlantic Ocean for a living against 16 governmental agency and individ- ual defendants. Said defendants are municipal, county or federal governmental bodies, and employees thereof, charged with responsibility for sewage disposal and dredg- ing operations on or abcut the New York-New Jersey sea- coast. They may be classified as New York, New Jersey or federal. The New York defendants are: City of New York; Abraham Beame, Mayor of the City of New York;! West Long Branch Sewer District ;? County of Westches- ter;* City of Long Beach and City of Glen Cove. The New Jersey defendants are: Bergen County Sewer Au- thority; The Joint Meeting of Essex and Union Counties; Passaic Valley Sewerage Commissioners; Middlesex County Sewerage Authority; Linden-Roselle Sewerage Authority; and Middletown Sewerage Authority. The fed- eral defendants are the United States Environmental Pro- tection Agency (USEPA); Russell E. Train, individually and as Administrator of USEPA: the United States Army Corps of Engineers (USACE); and Martin R. Hoffman, individually and as Secretary of the United States De- partment of the Army. Plaintiffs allege that the defendants, by commission or omission, have caused or permitted the pollution of the 1 Since the filing of this complaint, Edward Koch has replaced Mr. Beame as Mayor of New York City. 2 The West Long Beach Sewer District has never been served with summons and complaint in this action. 3 The County of Westchester was apparently served with sum- mons and complaint on January 26, 1977, but it has yet to file ‘an answer. a g > of 42a Opinion of the District Court Atlantic Ocean by sewage and other wastes and debris, which pollution has directly or indirectly resulted in dam- age to the marine environment and destruction of ocean life and the clamming industry. The only damage pre- cisely described in terms of location and date is the alle- gation that defendants’ polluting activities resulted in a massive growth of algae covering the Atlantic Ocean from a few to 20 miles offshore over an area from southwest Long Island, New York to due east of Cape May, New Jersey. This algal bloom is alleged to have occurred in the summer of 1976. Plaintiffs predicate their 11 count complaint‘ on a myriad of federal and state grounds: The Federal Water Pollution Control Act Amendments of 1972 (FWPCAA), 33 U.S.C. § 1251 et seg. (Supp. 1977); The Marine Pro- tection, Research, and Sanctuaries Act of 1972 (Ocean Dumping Act or MPRSA), 33 U.S.C. § 1401 et seg. (Supp. W¥7); The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (1977); Section 13 of the Rivers and Harbors Act of 1899 (Refuse Act), 33 U.S.C. § 407 (1970); article VI, clause 2 of the Constitu- tion of the United States and the fifth, ninth and four- teenth amendments; the Civil Rights Act, 42 U.S.C. § 1983 (1974); the Extension of Admiralty and Maritime Juris- * As originally filed, the complaint contained 13 counts against 20 defendants. On April 26, 1977, the complaint was dismissed as to four New York and New Jersey state defendants: The New York Department of Environmental Cpnservation (NYDEC); Ogden R. Reid, individually and as Commissioner of NYDEC: the New Jersey Department of Environmental Protection (NJ DEP) ; and David J. Bardin, individuatiy and as Commissioner of NJDEP. At that time, counts V and VI, which pertain only to the dismissed defendants, were dismissed. 43a Opinion of the District Court dictional Act, 46 U.S.C. § 740 (1975); the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976) and 28 U.S.C. § 2671 et seg. (1965); The Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1977); federal common law nuisance; New York Environmental Conservation Law, N.Y.Environ.Consery. § 1-0101 et seg. (McKinney 1973); New Jersey Conservation and Development Law, N.J.S.A. 13:10-1 et seg. (1968); and state common law trespass and nuisance. Plaintiff allege jurisdiction under 28 U.S.C. $§ 1331 (1966), 1333 (1966); 1343 (1976); 1346 (b) (1976), 1837 (1976) and 1361 (1976).° Plainitffs seek $250 million in compensatory damages, $250 million in punitive damages, fines, an injunction and other relief. The instant action was filed on January 14, 1977. With the exception of the federal defendants and West Long Beach Sewer District, service was effected on the defend- ants between January 25, 1977 and February 1, 1977. While the summons and complaint were served on USACE, Hoff- man, USEPA and Train on January 27, 1977, service against the four federal defendants was not perfected pursuant to F.R.Civ.P. 4(d)(4) (Supp. 1977) until Decem- ber 2, 1977 with the service of the Attorney General of the United States and the U.S. Attorney for the District * Plaintiffs have also attempted to predicate jurisdiction on two clearly inapprepriate bases, to wit, 28 U.S.C. § 1332 (diversity ) and the APA, 5 U.S.C. § 701 et seq. Because plaintiffs and sev- eral defendants are residents of New Jersey, plaintiffs have failed to show the complete diversity required for jurisdiction under 28 U.S.C. § 1332. Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806); Quaker State Dyeing & Finishing Co. v. Cally, 528 F.2d 470, 473 (3d Cir. 1975). The APA does not provide an independ- ent jurisdictional base for a suit challenging governmental action. Califano v. Sanders, 430 U.S. 99 (1977). toa Opinion of the District Court of New Jersey. West Long Beach Sewer District was never served. A number of the defendants have filed crossclaims against the other defendants alleging that the crossclaimants have complied with applicable federal and state permits and, therefore, any liability on their part is attributable to the conduct of others. Some of the defendants received, in addition to the complaint, special notice of plaintiffs’ claims. Said notice was in the form of a letter* from Edward German, on ° The letter was essentially a form letter with appropriate modi- fications for each addressee. The following is the text of the letter sent to the City of New York: PLEASE TAKE NOTICE, that I, Edward C. German, on be- half of the National Sea Clammers’ Association and the class of claimants representing clamdiggers, lobstermen, and fisher- men, hereby claim damages in excess of the sum of $250 n,llion, against the City of New York, for injuries and dam- ages to, and the destruction of the property specified in the statement below, and unless such claim is adjusted and paid within the time specified by law, I shall commence an action against said City of New York, to enjoin the complained of conduct, to require the City to take corrective action and to recover damages in excess of $250 millicn and please take further notice THAT said property has been damaged day by day since approximately on or before September of 1976 in the At- lantic Ocean in an area ranging from approximately the southwest portion of Long Island, New York, to a point approximately due east of Cape May, New Jersey, and ex- tending from a few miles off shore to more than twenty (20) miles out to sea and further THAT said damage has been inflicted upon claimants’ clam beds, lobster beds, and fishing grounds when such clam beds, Footnote continued on following pa e) 9 pag 45a Opinion of the District Court behalf of NSCA, claiming damages caused by pollution to marine environment and life of the Atlantic in an amount “in excess of 250 million dollars.” The letter stated further that the property damaged, the value thereof and the cost of repair “cannot be specifically itemized and estimated at this time.” This letter was served on the City of New York on November 29, 1976, on Train, Hoffman and USACE on January 3, 1977, and on the cities of Glen Cove and Long Beach on March 25, 1977. The record contains conflicting sworn statements as to whether plaintiffs served the Middlesex, County Sewerage Authority with letter notice. Plaintiffs claim to have made service on March 25, 1977, but Middlesex denies receipt. In addition, on or about March 22, 1977 USEPA was served with a formal claim filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seg. The amount of the claim was stated to be “in excess of $250,000,000.” The rest of the defendants received no notice of the plaintiffs’ claims other than the complaint itself. With the exception of West Long Beach Sewer Dis- trict and the County of Westchester, all the defendants (Footnote continued from preceding page) lobster beds, and fishing grounds were destroyed by and through the sewage systems owned, operated, and controlled by the City of New York, by which sludge and sewage efflu- ent was dumped directly by ship into the ocean and by which sewage effluent was carried into the ocean by outfall pipes maintained by the City of New York and further THAT a statement in detail of the property damaged and/or destroyed and the value thereof, as well as the specific cost of repair to claimants’ damage property cannot be specific- ally itemized and estimated at this time. 46a Opinion of the District Court have joined in the instant motions for summary judg- ment on the complaint. Because of the number and vari- ety of the movants and the number of issues raised, I shall consider the contentions of the parties essentially on a count-by-count basis. Discussion I Count I charges that the New York and New Jersey defendants have released sewage effluent and dumped dredgings and toxie materials into the Atlantic with the approval and direction of the federal defendants. These polluting activities are claimed to have fed an algal bloom in the Atlantic during the summer of 1976, destroyed marine life, caused the collapse of the fishing industry and created noxious sights and smells. The creation of this harm and nuisance is specifically alleged to raise a federal question. Thus, Count I sounds in federal com- mon law nuisance. The defendants assert that private parties, such as the plaintiffs, have no standing to raise a Gaim in federal common law auisance. The authorities support defend. ants’ position. In Illinois v. M ilwaukee, 496 U.S. 91 (1972), the Supreme Court held that the States could sue on a theory of federal common law nuisance to abate the pollu- tion of interstate waters. The Court cited Georgia v. Tennessee Copper Co., 206 US. 230 (1907), which spoke of the necessity of allowing to states an avenue for judi- cial resolution of interstate disputes because when the states joined the Union, they gave up their right to forei- bly abate nuisances created in other states. Tilinois y, 47a, Opinion of the District Court Milwaukee, supra, at 104. The opinion quoted further language from the same case to the effect that the Court found it reasonable to enforce a sovereign’s demand to be protected from pollution from an extra-state source, notwitnstanding the Court’s hesitancy to hear a suit be- tween private parties predicated on a federal common law theory. Jd. at 104-05. Lower courts have refused to extend a right of action in federal nuisance to private parties. Parsell y. Shell Oil Co., 421 F.Supp. 1275 (D. Conn. 1976) ; Committee for the Consideration of the Jones Falls Sewer- age System v. Train, 375 F.Supp. 1148 (D. Md. 1974), afd on different but not inconsistent grounds, 539 F.2d 1006 (4th Cir. 1976). Plaintiffs have cited no eases to the contrary. It appears that plaintiffs have no stand- ing to raise their federal common law nuisance claim, and Count I must ke dismissed. II Count II charges the New York and New Jersey de- fendants and USACE with dumping into the Atlantie and the Hudson River refuse other.than that flowing from the streets and sewers in a liquid state in violation of section 13 of the Rivers and Harbors Act of 1899. (Refuse Act), 33 U.S.C. § 407. The defendants take the position that there is no private action under the Refuse Act. Plain- tiffs argue that the purpose of the Refuse Act woald be advanced by a “private attorney general” action and that such actions have been permitted at least against federal defendants. The enforcement of the Refuse Act is specifically dele- gated to the United States, 33 U.S.C. § 413, and it has generally been held that there is no implied private right 48a Opinion of the District Court of action thereunder. See, e.g., Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972); Loveladies Property Owners Association vy. Raab (Love- ladies), 430 F.Supp. 276, 281 (D.N.J. 1975), aff’d mem., O47 F.2d 1162 (3d Cir. 1976); Township of Long Beach v. City of New York (Township of Long Beach), 445 F.Supp. 1203, 1211 & cases cited therein (D.N.J. 1978). However, some courts have found a private right of action under the Refuse Act against federal defendants, Natural Resources Defense Council v. Grant, 355 F.Supp. 280 (E.D. N.C. 1973); People of State of Illinois ex rel. Scott v. Hoffman, 425 F.Supp. 71 (S.D. Ill. 1977), on the theory that where the violator is federal, the U.S. Attorney is in no position to enforce the act because he is also charged with the responsibility of defending the violator. Natural Resources Defense Council v. Grant, supra, at 290. The rule in this circuit appears to be that there is no private right of action under the Refuse Act regardless of the identity of the defendant. I deduce this from the fact that in Loveladies, supra, the Third Circuit affirmed the dismissal of a private cause of action under the act brought against federal and other defendants. Accord, Township of Long Beach, supra, at 1212; Base Angler Sportsman Society v. United States Steel Corp., 324 F. Supp. 412, 416 (D. Ala.), aff'd per curiam sub nom., Bass Anglers Sportsman Society v. Koppers Co., 447 F.2d 1304 (Sth Cir. 1971). Cf., Red Star Towing and Transportation Co. v. Department of Transportation of State of New Jer- sey, 423 F.2d 104, 106 (3d Cir. 1970). Thus, plaintiffs’ claims in Count II must fall. 49a Opinion of the District Court Ill In Counts III, IV, VI!) and IX, the various defend- ants are cha rged with violations of IWPCAA and/or MPRSA. Count III alleges that the federal defendants have violated MPRSA. Count IV charges USEPA and Train with violations of FWPCAA. Cove! VIII alleges that the New York and New Jersey defe» sats have vio- lated FWPCAA, MPRSA, New York Environmental Con- servation Law, New Jersey Conservation and Development Law and permits issued by USEPA, USACE or NYDEC. Count IX charges the federal defendants with negligently carrying out their discretionary functions under FWPC AA, MPRSA and NEPA and further alleges that USACE conducted its dredging activities negligently. Private actions to enforee FWPCAA and MPRSA are authorized by citizens’ suit provisions in each act, 33 U.S.C. §1365(a), (b) and (c) * and 33 U.S.C. § 1415(g)8 respec- 733 U.S.C. § 1365 provides: (a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— (1) ~ against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amend- ment to the Constitution) who is alleged to be in viola- tion 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, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. (Footnote continued on following page) 50a Opinion of the District Court (Footnote continued from preceding page) The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an_ effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appro- priate civil penalties under section 1319(d) of this title. (b) No action may be commenced— (1) under subsection (a) (1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limita- tion, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (2) under subsection (a) (2) of this section prior to sixty days after the plaintiff has given notice 0. such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulatin. (c) (1) Any action respecting a violation by a discharge source of an effluent standard or limitation or an order re- specting such standard or limitation may be brought under this section only in the judicial district in which such source is 1ocated. (Footnote continued on following page) 5la Opinion of the District Court (Footnote continued from preceding page) (2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right. * * x 833 U.S.C. § 1415(g) provides: (g)(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Con- stitution), who is alleged to be in violation of any prohibi- tion, criterion, or permit established or issued by or under this subchapter. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizen- ship of the parties, to enforce such prohibition, limitation, criterion, or permit, as the case may be. (2) No action may be commenced— (A) prior to sixty days after notice of the violation has been given to the Administrator or to the Secretary, and to any alleged violator of the prohibition, limitation, criterion, or permit; or (B) if the Attorney General has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with the prohibition, limitation, criterion, or permit; or (C) if the Administrator has commenced action to im- pose a penalty pursuant to subsection (a) of this sec- tion, or if the Administrator, or the Secretary, has ini- tiated permit revocation or suspension proceedings under subsection (f) of this section; or (D) if the United States has commenced and is dili- gently prosecuting a criminal action in a court 52a Opinion of the District Court tively. The two citizens’ suit provisions are substantially the same. Each contains a notice clause providing that no actions may be commenced under the citizens’ suit provision except upon giving notice to the alleged viola- tor of the act in compliance with the terms of the act and regulations thereunder. All the defendants argue that plaintiffs have failed to give the requisite notice that therefore this court has no jurisdiction over plaintiffs’ WFPCAA and MPRSA claims. Plaintiffs retort that service of the complaint constitutes substantial compliance with the notice provision. Further, they argue that the court has alternative jurisdiction over these citizens’ claims under 28 U.S.C. § 1331, and that in a § 1331 citizens’ suit the notice provisions of 33 U.S.C. §§ 1365 and 1415 do not apply. Because the questions of the sufficiency of notice and the availability of alternative jurisdiction without the requirement of notice are thres- hold issues common to Counts III, IV, VIII and ee shall treat those counts together. I shall first consider the FWPCAA claims, then the MPRSA claims, and finally any remaining issues in each of the four counts. Under FWPCAA, citizens’ actions may be brought against anyone who fails to comply »with an effluent stand- ard, limitation or order issued under the act, 33 U.S.C. § 1365(a)(1), or against the USEPA Administrator for “failure to perform a non-discretionary duty mandated by the act, 33 U.S.C. § 1365(a)(2). No citizens’ action may be commenced without prior notice to the alleged act vio. lator in accordance with USEPA regulations, and, except in circumstances not here relevant, notice must be given at least 60 days before the commencement of the action. 33 U.S.C. § 1365(b). Notice to the alleged violator in a § 1365(a)(1) suit must specify the standard, limitation or 53a Opinion of the District Court order allegedly violated. 40 C.F.R. § 135.3 (1977). Notice to the USEPA Administrator in a § 1365(a)(2) suit must specify the statutory provision claimed to have been trans- gressed. Id. Plaintiffs have failed to give notice to any defendant which satisfies FWPCAA requirements. To the extent notice was given at all, it was untimely and failed to specify any standard, limitation, order or statuory sec- tion purportedly violated. Since strict compliance with the notice provisions of 33 U.S.C. $ 1365 is required, Love- ladies, supra, this court does not have jurisdiction of any FWPCAA claims under 33 U.S.C. § 1365. Plaintiffs take the position that 28 U.S.C. § 1331 pro- vides an alternative basis for jurisdiction. They base their argument on the savings clause of FWPCAA, 33 U.S.C. § 1865(e), which provides: Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforce- ment of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). They urge that the only interpretation of FWPCAA which gives proper effect to the savings clause is on that finds an implied right of action for private parties to enforce FWPCAA unfettered by the notice requirements of § 1365 (b) which right may be exercised by grounding jurisdic tion on the “arising under” jurisdictional statute. There is a split among the circuits on the issue whether the virtually identical citizens’ suit provisions of FWP CAA, MPRSA and the Clean Air Act, as amended, 42 U.S.C. § 1857 et seg. (1969), 42 U.S.C. § 1857h-2 (Supp. 1977), are the exclusive jurisdictional base for private d4a Opinion of the District Court actions to enforce said environmental legislation. The D.C. and Second Circuits have held that the FWPCAA provision is not exclusive, and jurisdiction may be predi- cated alternatively on 28 U.S.C. § 1331 without compliance with the citizens’ suit notice requirement. Natural Re- sources Defense Council, Inc. v. Train (NRDC v. Train), 010 F.2d 692 (D.C. Cir. 1974), as modified, (D.C. Cir. 1975); Natural Resources Defense Council, Inc. v. Calla- way, 524 F.2d 79 (2d Cir. 1975). The Seventh Circuit has held squarely to the contrary with regard to the citizens’ suit provisions of the Clean Air Act. Ctiy of Highland Park v. Train, (Highland Park), 519 F.2d 681 (7th Cir. 1975). Another court in this district has followed the lead of the D.C. and Second Circuits on this issue in a FWP CAA and MPRSA context. Township of Long Beach, supra (Fisher, J.). In Highland Park, supra, Judge Tone, writing for the court, noted that [t]he legislative history of section 304 [42 U.S.C. § 1857h-2 (citizens’ suit provision)] shows Con- gress’s determination that citizen participation in the enforcement of standards and regulations under the Clean Air Act of 1970 ke established. It also shows, however, that Congress intended to provide for citizens’ suits in a manner that would be least likely to clog already burdened Federal Courts and most likely to trigger governmental action which would alleviate any need to for judicial relief. It was in response to these concerns that the statutory notice provisions were included in section 304. Congress’s intention would be frustrated if the statu- tory mandate of section 304(b) were ignored. doa Opinion of the District Court Id. at 690-91. Later, in discussing NRDC v. Train, supra, which is cited without analysis as persuasively precedent in Natural Resources Defense Council v. Callaway, supra, Judge Tone indicated liln [NRDC v. Train], 510 F.2d 692, 698-703 (D.C. Cir. 1975), the majority held that under the Federal Water Pollution Control Act, the pertinent provisions of which are substantially the same as those of the Clean Air Act, judicial review could be obtained . . . under 28 U.S.C. § 1331. .., and refers to the Clean Air Act and its legislative history as a basis for its holding. The majority’s opinion .. . bases its holding on the saving provision of the Federal Water Pollution Control Act, 33 U.S.C. § 1565(e), which is substantially the same as the saving provision in section 304 of the Clean Air Amendments of 1970, 42 U.S.C. § 1857h-2(e), and the statments in the legislative history that othe: remedies were not impaired by the act. The opin- ion does not give any reasons for the court’s .. . holding that jurisdiction was . .. conferred by 28 U.S.C. § 1331. Judge Robb’s dissent argues that the 60-day notice requirement should control. Td. at 693. The Seventh Cireuit ultimataly concluded that [t]he saving provision, expressing the general in- tention of Congress not to disturb existing rights to seek relief, does not have the affirmative effect of removing conditions which existing law imposes upon the exercise of those rights. Id. at 693. I concur in the Seventh Circuit’s analysis of the citizen suit provision. While the saving clause of FWPCAA, 33 56a Opinion of the District Court U.S.C. § 1465(e), may indeed make § 1331 available to an alternative basis for jurisdiction, it does not, in addition, provide a basis to imply a citizens’ right of action under FWPCAA on terms and conditions different from those specifically delineated by Congress. The manifest purpose vf the savings clause seems to be the preservation of exist- ing rights, not the creation of new ones. Thus, satisfac- tion of the notice requirements is an unavoidable pre- requisite to a citizens’ suit. Since plaintiffs have failed to give the notice required by FWPCAA and the regula- tions thereunder, their FWPCAA claims must fail. Because the MPRSA citizens’ suit provisions, including the notice requirements, are identical to those of FWP CAA in all relevant respects, I have no jurisdiction over plaintiffs’ MPRSA claims for the aforementioned reasons. Thus, Counts III and [V must be dismissed in their en- tirety, and Counts VIII and IX are dismissed insofar as they allege FWPCAA and MPRSA claims. The claims remaining in Count VIII allege that the New York and New Jersey defendants have violated New York Environmental Conservation Law, permits issued by NYDEC and New Jersey Conservation and Develop- ment Law. These are state law claims which will be dis- cussed in XI, infra. Left in Count IX are claims that the federal defend- ants negligently conducted their discretionary functions under NEPA and that USACE conducted its dredging activities negligently. Violations of NEPA may be re- viewed by the courts pursuant to the APA, except insofar as the APA exempts certain functions from review. See Environmental Defense Fund v. Corps of Engineers, U.S. Army, 470 F.2d 289, 298-300 (8th Cir. 1972). However, d7a Opinion of the District Court discretionary functions are reviewable under the APA, 5 U.S.C. § 706, only where the agency or officer exceeds the limits of discretion established by Congress. SEC v. Republic National Life Insurance Co., 383 F.Supp. 436, 438 (S.D.N.Y. 1974); International Waste Controls, Inc. v. SEC, 362 F.Supp. 117 (S.D.N.Y. 1973), aff’d per curiam, 485 F.2d 1238 (2d Cir. 1973). Sinee no such excess has been alleged, I have no jurisdiction over this NEPA claim. As to the claim of negligent dredging, this claim sounds in tort, and for reasons more fully set forth in IX, infra, plaintiffs are precluded by the Federal Tort Claims Act from suing USACE with regard to the conduct alleged in the complaint. Thus, Count IX must be dismissed. IV In Count VII, plaintiffs aliege that USEPA and Train have violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4821 et seq., in that [djespite the continued and increasing discharge of pollutants into the Hudson River, New York Harbor and Atlantic Ocean, defendants have failed to develop, plan, and coordinate federal functions, programs, and resources to the end that the marine environment of the Atlantic Ocean might exist with- out degradation, and that those who use the marine environment might do so without risk to health or safety or other undesirable and unintended conse- quences. Complaint {] 71. The defendants correctly argue that USEPA and its Administrator are specifically exempted by FWPCAA 58a Opinion of the District Court from NEPA requirements, except as regards (1) grants for construction of treatment works and (2) the issuance of new source permits. 33 U.S.C. ¢ 1371(c). Plaintiffs have offered no rebuttal on this point. Since neither of the non-exempt functions are alleged in Count VII, this count fails to state a claim upon which relief may be granted. V Count X charges that all the defendants, by action or inaction, have caused “unreasonable degradation of the marine environment” in which there is a publie right pro- tected by the fifth, ninth and fourteenth amendments. The defendants argue that these allegations fail to state a claim because there is no constitutionally protected right to a clean, unpolluted environment. Plaintiffs cite no cases in support of their position that such right exists. Indeed, the courts have consistently held to the contrary. Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971); Township of Long Beach, supra, at 1212 & cases cited therein. Consequently, Count X must be dismissed. VI Count XI alleges that the New York and New Jersey defendants and USACK, by their polluting conduct, have taken and destroyed property held in trust for the pub- lic benefit in violation of the prohibition of the fifth amend- ment of the Constitution of the United States against the taking of private property for public use without just compensation. The defendants argue that plaintiffs have no property right in coastal waters and marine life. Plaintiffs take no position on this point. 59a Opinion of the District Court It is settled law that the states have title to the coastal waters and marine life within their boundaries, including the seabeds and beds of all tidal waters, within three miles of the coast, while title to the waters beyond three miles from the coast is in the United States. McCready v. Vir- gina, 94 U.S. 391 (1876); U.S. v. Florida, 425 U.S. 791 (1976); Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq. (1964), 43 U.S.C. §§ 1311(a) and 1332. Individual citizens have no property interest in the sea waters, sea beds or marine life. Burgess v. M/ Tamano, 370 F.Supp. 247, 249 (S.D. Me. 1973). Thus, plaintiffs have no inter- est protected from condemnation without compensation by the fifth amendment, and Count XI must be dismissed. Vil Plaintiffs’ complaint lists 42 U.S.C. § 1983 as one of the statutes upon which this action is grounded. No specific allegations of facts supporting a § 1983 claim have been made, however. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Since § 1983 requires state action, any claim under that provision against the federal defendants must be dis- 60a Opinion of the District Court missed. As to the New York and New Jersey defendants, plaintiffs have failed to plead any right protected by the Constitution® at stake in this action. See V, VI, supra. Nor have plaintiffs alleged any statutory right, privilege or immunity deprived by state action. ‘I'he various en- vironmental statutes at issue here du not create rights to a clean environment. To the extent they vest private parties with any special interests, they create rights of action to enforce certain statutory provisions. The plain- tiffs have not alleged that the state defendants have inter- fered with the exercise of such rights or action. Thus, any § 1983 claim of the plaintiffs must fall. VIitt Plaintiffs have pleaded the Extension of Admiralty and Maritime Jurisdiction Act, 42 U.S.C. § 740, as one of the bases for this action, but again they have failed to make any factual allegations in support of such claim. Section 740 provides in part that [t]he admiralty and maritime jurisdiction of the United States shall extend to and inelude all eases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. ® Plaintiffs have listed the supremacy clause, art. VI, cl. 2, as one of the many legal bases for this action, but have failed to al- lege how the provision is implicated in the issues presented. In any case, the supremacy clause does not confer on the plaintiffs any independent right relevant to the matters alleged in the com- plaint. 6la Opinion of the District Court Hence, only defendants’ polluting activities conducted from ships causing damage on land would be actionable under this provision. In addition, the section specifically re- quires damage “to person or property.” Plaintiffs have alleged no personal injury in their complaint. Nor have they cited any authority which suggests that any of the alleged wrongful conduct caused damage on land which is cognizable under 42 U.S.C. § 740 in admiralty. Thus, plaintiffs have failed to state a cause of action under this section. IX Plaintiffs have listed admiralty, 28 U.S.C. § 1333(1), as one of the jurisdictional bases for this action. Some courts have indicated that a commercial fisherman’s al- legation that polluting activities have caused damage to his fishing operation states a claim for tortious inter- ference with a public right, a public nuisance cause of action cognizable as a maritime tort in admiralty. Poto- mac River Association, Inc. vy. Lundeberg Maryland Sea- manship School, Inc, (Potomac River), 402 F.Supp. 344, 308 (D. Md. 1975); Burgess v. M/V Tamano (M/V Ta- mano), supra, at 250. In brief, the theory is that while a public nuisance is usually actionable only by the state, a private individual may recover for invasions of the public right if he can show damage of a different kind— not merely of a different degree—from that of the public generally. Commercial fishermen have been held to have such a special interest in the pollution of marine waters. M/V Tamano, supra, at 250. Torts are cognizable in ad- miralty where the activity of the injured party bears a significant relationship to a traditional maritime activity. Executive Jet Aviation, Inc. v. Cleveland, 409 U.S, 249 62a Opinion of the District Court (1973); Union Oil Co, v. Oppen, 501 F.2d 558 (9th Cir. 1974); Potomac River, supra, ai 358. Since fishing is. a traditional maritime activity, tortious damage to fishing by pollution is actionable as a maritime tort. Potomac River, supra, at 358. Of course, polluting activities which are in conformity with permits or regulations under per- tinent environmental statutes are immunized from tort lability. Id. at 359. Plaintiffs have not pleaded a claim in this maritime tort, nor have they requested that their complaint be construed to allege such a cause of action. Therefore, I decline to read such a claim into their pleadings. How- ever, even if plaintiffs nad raised such a claim, except as to one defendant, their cause of action wovld have run aground on the shoals of the notice provisions of various tort claims acts. The federal agency and the state agency defendants are arms of their respective sovereigns, and, hence, are subject to suit in tort only in accordance with the condi- tions of the waiver of sovereign immunity specified in the tort claims act of each respective sovereign. See N.Y. Gen. Mun. Law §§ 50-i, 50-e (McKinney 1977, § 50-i; The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (Supp. to Title 58, 1977), N.J.S.A. 59:1-3; the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq., 28 U.S.C. $$ 13846(b) and 2676. The two federal individual defendants and the mayor of the City of New York, to the extent each acted within the scope of his employment, also enjoy the protection of their respective tort claims act. See 28 U.S.C. §§ 1346(b) and 2679(a); N.Y. Gen. Mun. Law § 50-i(1) (McKinney). Each of the three tort claims acts requires the submission of notice of plaintiffs’ claim as a predicate to suit. 63a Opinion of the District Court New York requires that notice be given to the defend- ant within 90 days of the accrual of the cause of action, § 50-e(1)(a), and that thereafter 30 days must elapse before the commencement of suit, § 50-i(1). Here, the alleged damage occurred in the summer of 1976. New York City received notice on November 29, 1976, and the action was filed on January 14, 1977. None of the othe~ New York defendants received notice, if they got it at all, until March 25, 1977. Hence, only New York City re- ceived timely notice. Although application may be made to the court for late notice, § 50-e(5), plaintiffs have made no such effort. Further, leave to grant such application is within the discretion of the court, and since plaintiffs have offered no explanation for their tardiness, I would be disinclined to grant plaintiffs’ relief. Mayor Beame was not sued in an individual capacity, and no allegations have been made that he exceeded the scope of his authority. Thus, of the New York defendants, only New York City is subject to tort suit. The New Jersey Tort Claims Act requires a claim to be presented to the defendant entity within 90 days of ac- erual of the cause of action. N.J.S.A. 59:8-8. Application for late filling may be made only up to one year after the accrual of the claim. N.J/.S.A. 59:8-9. Plaintiffs have failed to give notice to any New Jersey defendant, except possibly Middlesex County Sewerage Authority. Assum- ing plaintiffs served a notice on Middlesex on the date they claim, said notice was not timely. No timely appli- cation for late filing was made. Thus, plaintiffs are for- ever barred from bringing these tort claims against the New Jersey defendants. See N.J.S.A. 59:8-8(a); Pinck- ney v. City of Jersey City, 140 N.J. Super. 96 (Law Div. 1976). 64a Opinion of the District Court The Federal Torts Claims Act requires that would-be plaintiffs file an appopriate claim with the defendant agency and then wait for six months before commencing suit. 28 U.S.C. § 2675(a). The claim must state a sum certain, 40 C.F.R. § 10.2(a) (1977), and one which does not is a nullity. Bialowa v. U. 8., 443 F.2d 1047, 1050 (3d Cir. 1971). Plaintiffs served their letter notice on USACE, Hoffman and Train on January 3, 1977, and a formal tort claim on USEPA on March 22, 1977. Neither form of no- tice stated a sum certain, and neither was served six months before suit. The fact that service was not effec- tive on the federal defendants until 10 months after the filing of the complaint does not cure plaintiffs’ notice de- fects. See Gunstream v. U.S., 307 F.Supp. 366, 369 (C.D. Cal. 1969). Thus, plaintiffs’ tort claims are barred by the Federal Tort Claims Act against USEPA, USACE and against the individual federal defendants to the extent they acted within the scope of their employment. The complaint recites that Hoffman and Train acted outside the scope of their authority.° Complaint 9 DD, 09. The virtually ideutical language of the pertinent para- graphs provides: (d) Defendant [referring to all the federal de- fendants or Train and USEPA] have repeatedly exceeded their authority as expressly provided in [FWPCAA or MPRSA]. (e) In particular, defendants have taken no ac- tion, despite enforcement powers, to object to or to 10 Federal officials do not have absoiute immunity for conduct which is in excess of statutory authority or in violation of the Constitution. Butz v.Economou, U.S. , 46 U.S.L.W. 4952 (June 29, 1978). 65a Opinion of the District Court set aside the granting of and approval of permits issued to conduct ocean dumping operations as de- scribed in Count I above. Enforcement of FWPCAA and MPRSA turns on a host of discretionary functions. Since the pleading fails to state that Hoffman and Train exceeded the scope of their statutory discretionary powers, I construe paragraphs 55 and 59 to allege only abuse of discretion on the part of the individual defendants. Thus, the complaint does not present a claim that they acted beyond the scope of their employment, and they are protected by the Federal Tort Claims Act. x Plaintiffs’ final federal claim is one in mandamus, 28 U.S.C. $1361. Mandamus is an extraordinary remedy, avail- able only where governmental officials have clearly failed to perform non-discretionary duties. Loveladies, supra, at 282; Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1969). Mandamus is not avail- able where an adequate alternative remedy exists. Ex Parte Republic of Peru, 318 U.S. 578, 584 (1943); Richard- son Vv. U.S., 465 F.2d 844, 849 (3d Cir. 1972), rev'd on other grounds, 418 U.S. 166 (1974). Plaintiffs have alleged that the various defendants have failed to comply with non- discretionary duties under various federal and state en- vironmental statutes and permits issued thereunder. As to any pertinent FWPCAA and MPRSA violations, the citizens’ suit provisions of those aets provide a means to compel performance of non-discretionary duties. Plain- tiffs have failed to show that the citizens’ suit notice pro- visions render those remedies inadequate. Failure to per- 66a Opinion of the District Court form non-discretionary NEPA duties not exempted from liability by other statutes may be reviewed pursuant to the APA, 5 U.S.C. § 701 et seq. Section 13 of the Refuse Act, 33 U.S.C. § 407, is a criminal provision which imposes only a discretionary duty of enforcement on the U.S. De- partment of Justice. See 33 U.S.C. § 413. None of the other statutes pleaded appear to create any duties obliga- tory to any of the defendants herein. Therefore, plain- tiffs have failed to state a valid claim in mandamus. XI The remaining counts are pendant state law claims. Count XII charges all the defendants with creating a nuis- ance. Count XIII charges the New York and New Jersey defendants and USACE with trespass and damage to property held in public trust. Since plaintiffs’ federal claims have all been dismissed, there is no basis for pend- ant jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), and these remaining counts must fall. To the extent that Count VIIT raises pendant claims for vio- lation of the New York Environmental Conservation Law, the New Jersey Conservation and Development Law and permits issued thereunder, these claims must also be dis- missed. Since the disposition on the motions for summary judgment has mooted the crossclaims for indemnity, such erossclaims are dismissed as well. It should be noted, however, that because plaintiffs have no ownership interest in the marine environment and ocean life, they have no standing to sue in ordinary nuis- ance, trespass or for damage to property held in public trust. They could, however, raise a claim sounding in tortious interference with a public right. See IX, supra. 67a Opinion of the District Court In addition, because plaintiffs failed to comply with the notice provisions of the various tort claims acts, they are precluded from suing in tort against any of the defend- ants except New York City. See LX, supra. The movants will prepare individuals orders" in con- formity with this decision, and submit them, with consent as to form, within 15 days of the date of this opinion. Dated: August 14, 1978. 11 Since the claims against West Long Beach Sewer District and the County of Westchester are no different from those against the other New York defendants who received no special notice of plaintiffs’ action, said claims are not viable for the reasons set forth in this opinion. Counsel for Glen Cove will kindly prepare an order dismissing the action as to these two defendants. 68a Order of the District Court UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY Crviz Action No. 77-126 > ae NATIONAL SEA CLAMMERS ASSOCIATION, etc., et al, Plaintiffs, v. CITY OF NEW YORK, etce., et al, Defendants. . For the reasons set forth in the opinion of the court dated August 14, 1978, Ir 1s on this 9th day of January 1979 orDERED as follows: 1. Count I of the complaint herein is dismissed in its entirety as to all defendants named therein with prejudice and with costs; 2. Count II of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 3. Count III of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 69a Order of the District Court 4. Count IV of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 5. Count VII of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 6..Count VIII of the complaint herein is dismissed in its entirety as to all defendants named therein with costs and with prejudice as to all claims asserted therein that arise under federal law, but without prejudice as to all claims therein that arise under the law of any state. 7. Count IX of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 8. Count X of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 9. Count XI of the complaint herein is dismissed in its entirety as to all defendants named therein with pre- judice and with costs. 10. Count XIT of the complaint herein is dismissed with- out prejudice but with costs. 11. Count XIII of the complaint herein is dismissed in its entirety as to all defendants named therein with prejudice, except as to defendant New York City the dis- missal is without prejudice, but with costs as to all de- fendants. 70a Order of the District Court 12. All ecrossclaims are hereby dismissed as moot, but without costs. H. Curtis MrEanor U.S.D.J. Tla Constitutional Provision and Statutes Involved Eleventh Amendment to Constitution of the United States The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 28 U.S.C. §1254 Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; * * * 28 U.S.C. §1291 The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a di- rect review may be had in the Supreme Court. 28 U.S.C. §1331 (a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy ex- ceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or 72a Constitutional Provision and Statutes Involved value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. (b) Except when express provision thereof is otherwise made in a statute of the United States, where the plain- tiff is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any set off or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interests and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. 28 U.S.C. §1333 The district courts shall have original jurisdiction, ex- clusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdic- tion, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. 33 U.S.C. §407 It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, man- ufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing there- 73a Constitutional Provision and Statutes Involved from in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to de- posit, or cause, suffer, or procure to be deposited mate- rial of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otnerwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contau.ed shall extend to, apply to, or prohibit the operations in connection with the improve- ment of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers an- chorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful. 33 U.S.C. §1251 (a) The objective of this chapter is to restore and main- tain the chemical, physical, and _ biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter— T4a Constitutional Provision and Statutes Involved (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attain- able, an interim goal of water quality which pro- vides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal finan- cial assistance be provided to construct publicly owned waste treatment works; (5) it is the national policy that areawide waste treatment management planning processes be de- veloped and implemented to assure adequate con- trol of sources of pollutants in each State; and (6) it is the national policy that a major research and demonstration effort be made to develop tech- nology necessary to eliminate the discharge of pol- lutants into the navigable waters, waters of the contiguous zone, and the oceans. (b) It is the policy of the Congress to recognize, pre- serve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water re- sources, and to consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construc- tion grant program under this chapter and implement the 75a Constitutional Provision and Statutes Involved permit programs under section 1342 and 1344 of this title. It is further the policy of tle Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal tech- nical services and financial aid to State and interstate agencies and municipalities in connection with the pre- vention, reduction, and elimination of pollution. (c) It is further the policy of Congress that the Presi- dent, acting through the Secretary of State and such na- tional and international organizations as he determines appropriate, shall take such action as may be necessary to insure that to the fullest extent possible all foreign countries shall take meaningful action for the prevention, reduction, and elimination of pollution in their waters and in international waters and for the achievement of goals regarding the elimination of discharge of pollu- tants and the improvement of water quality to at least the same extent as the United States does under its laws. (d) Except as otherwise expressly provided in this chap- ter, the Administrator of the Environmental Protection Agency (hereinafter in this chapter called “Administra- tor’) shall administer this chapter. (¢) * * * Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources. 76a Constitutional Provision and Statutes Involved 33 U.S.C. §1311 (a) Except as in compliance with this section and sec- tions 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be un- lawful. (b) In order to carry out the objective of this chapter there shall be achieved— (1)(A) not later than July 1, 1977, effluent limi- tations for point sources, other than publicly owned treatment works, (i) which shall require the ap- plication of the best practicable control technology currently available as defined by the Administrator pursuant to section 1314(b) of this title, or (ii) in the case of a discharge into a publicly owned treat- ment works which meets the requirements of sub- paragraph (B) of this paragraph, which shall re- quire compliance with any applicable pretreatment requirements and any requirements under section 1317 of this title; and (B) for publicly owned treatment works in exist- ence on July 1, 1977, or approved pursuant to sec- tion 1283 of this title prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administra- tor pursuant to section 1314(d)(1) of this title; or, (C) not later than July 1, 1977, any more strin- gent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to 77a Constitutional Provision and Statutes Involved any State law or regulations (under authority pre- served by section 1370 of this title) or any other Federal law or regulation, or required to imple- ment any applicable water quality standard estab- lished pursuant to this chapter. (2)(A) for pollutants identified in subparagraphs (C), (D), and (F) of this paragraph, effluent limi- tions for categories and classes of point sources, other than publicly owned treatment works, which i) shall require application of the best available technology economically achievable for such cate- gory or class, which will result in reasonable fur- ther progress toward the national goal of elimi- nating the discharge of all pollutants, as deier- mined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2) of this title, which such effluent limitations shall re- quire the elimination of discharges of all pollu- tants if the Administrator finds, on the basis of information available to him (including information developed pursuant to section 1325 of this title), that such elimination is technologically and eco- nomically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant ot section 1314(b) (2) of this title, or (ii) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the require- ments of subparagraph (B) of this paragraph, shall require compiance with any applicable pretreatment requirements and any other requirement under sec- tion 1317 of this title; 78a Constitutional Provision and Statutes Involved (B) not later than July 1, 1938, compliance by all pubicly owned treatemtn works with the re- quirements set forth in section 1281(g)(2) of this title; (C) not later than July 1, 1984, with respect to all toxie pollutants referred to in table 1 of Com- mittee Print Numbered 95-30 of the Committee on Public Works and Transpotation of the House of Representatives compliance with effluent limitations in accordance with subparagraph (A) of this para- graph; (D) for all toxic pollutants listed under paragraph (1) of subsection (a) of section 1317 of this title which are not referred to in subparagraph (C) of this paragraph compliance with effluent limitations in accordance with subparagraph (A) of this para- graph not later than three years after the date such limitations are established; (EK) not later than July 1, 1984, effluent limita- tions for categories and classes of point sources, other than publicly owned treatment works, which in the case of pollutants identified pursuant to see- tion 1314(a)(4) of this title shall require applica- tion of the best conventional pollutant control tech- nology as determined in accordane with regulations issued by the Adminitrator pursuant to section 1314 (b) (4) of this title; and (F) for all polutants (other than those subject to subparagraphs (C), (D), or (2) of this para- graph) compliance with effluent limitations in ac- cordance with subparagraph (A) of this paragraph not later than 3 years after the date such limitations 79a Constitutional Provision and Statutes Involved are established, or not later than July 1, 1984, which- ever is later, but in no case later than July 1, 1987. (c) The Administrator may modify the requirements of subsection (b)(2)(A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maxi- mum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of poliutants. (d) Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph. (e) Effluent limitations established pursuant to this section or section 1312 of this title shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this chapter. * * # (h) The Administrator, with the concurrence of the State, may issue a permit under section 1342 of this title which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pol- lutant in an existing discharge from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that— _ . ~~ 80a Constitutional Provision and Statutes Involved (1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under sec- tion 1314(a)(6) of this title; (2) such modified requirements will not interfere with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water; (3) the applicant has established a system for monitoring the impaet of such discharge on a rep- resentative sample of aquatic biota, to the extent practicable ; (4) such modified requirements will not result in any additional requirements on any other point or nonpoint source; (5) all applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced; (6) to the extent practicable, the applicant has established a schedule of activities designed to elim- inate the entrance of toxic pollutants from non- industrial sources into such treatment works; (7) there will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit; (8) any funds available to the owner of such treatment works under subchapter II of this chap- Sla Constitutional Provision and Statutes Involved ter will be used to achieve the degree of effluent reduction required by section 1281(b) and (g) (2) (A) of this title or to carry out the requirements of this subsection. For the purposes of this subsection the phrase “the dis- charge of any pollutant into marine waters” refers to a discharge into deep waters of the territorial sea or the waters of the continguous zone, or into saline estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Ad- ministrator determines necessary to allow compliance with paragraph (2) of this subsection, and section 1251(a) (2) of this title. (k) In the case of any facility subject to a permit under section 1342 of this title which proposes to comply with the requirements of subsection (b)(2)(A) of this section by replacing existing production capacity with an innova- tive production process which will result in an effluent reduction significantly greater than that required by the limitation otherwise applicable to such facility and moves toward the national goal of eliminating the discharge of all pollutants, or with the installation of an innovative control technique that has a substantial likelihood for en- abling the facility to comply with the applicable effluent limitation by achieving a significantly greater effluent re- duction than that required by the applicable effluent limi- tation and moves toward the national goal of eliminat- ing the discharge of all pollutants, or by achieving the required reduction with an innovative system that has the potential for significantly lower costs than the Sys- 82a Constitutional Provision and Statutes Involved tems which have been determined by the Administrator to be economically achievable, the Administrator (or the State with an approved program under section 1342 of this title, in consultation with the Administrator) may establish a date for compliance under subsection (b) (2) (A) of this section no later than July 1, 1987, if it is also determined that such innovative system has the po- tential for industrywide application. (1) The Administrator may not modify any require- ment of this section as it applies to any specific pollut- ant which is on the toxic pollutant list under section 1317(a)(1) of this title. 33 U.S.C. §1516 (B) As soon as practicable, but in no case more than one year, after a category of sources is included in a list under subparagraph (A) of this paragraph, the Ad- ministrator shall propose and publish regulations estab- lishing Federal standards of performance for new sources within such category. The Administrator shall afford in- terested persons an opportunity for written comment on such proposed regulations. After considering such com- ments, he shall promulgate, within one hundred and twenty days after publication of such proposed regulations, such standards with such adjustments as he deems appropriate. The Administrator shall, from time to time, as technology and alternatives change, revise such standards following the procedures required by this subsection for promulga- tion of such standards. Standards of performance, or revisions thereof, shall become effective upon promulga- 83a Constitutional Provision and Statutes Involved tion. In establishing or revising Federal standards of performance for new sources under this section, the Ad- ministrator shall take into consideration the cost of achiev- ing such effluent reduction, and any non-water quality en- vironmental impact and energy requirements. (2) The Administrator may distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards and shall consider the type of process employed (including whether batch or continuous). (3) The provision o* this section shall apply to any new source owned or operated by the United States. (c) Each State may develop and submit to the Ad- ministrator a procedure under State law for applying and enforcing standards of performance for new sources lo- cated in such State. If the Administrator finds that the procedure and the law of any State require the appli- cation and enforcement of standards of performance to at least the same extent as required by this section, such State is authorized to apply and enforee such standards of Serformance ( except with respect to new sources owned or operated by the United States). (d) Notwithstanding any other provision of this chap- ter, any point source the construction of which is ecom- menced after October 18, 1972, and which is so constructed as to meet all applicable standards of performance shall not be subject to any more stringent standard of per- formance during a ten-year period beginning on the date of completion of such construction or during the period 84a Constitutional Provision and Statutes Involved of depreciation or amortization of such facility for the purposes of section 167 or 169 (or both) of Title 26, whichever period ends first. (e) After the effective date of standards of perform- ance promuigated under this section, it shall be unlawful for any owner or operator of any new source in viola- tion of any standard of performance applicable to such source. 33 U.S.C. §1317 (2) Each toxie pollutant listed in accordance with para- graph (1) of this subsection shall be subject to effluent limitations resulting from the application of the best avail- able technology economically achievable for the applicable category or class of point sources established in accord- ance with sections 1311(b)(2)(A) and 1314(b)(2) of this title. The Administrator, in his discretion, may publish in the Federal Register a proposed effluent standard (which may include a prohibition) establishing require- ments for a toxie pollutant which, if an effluent limitation is applicable to a class or category of point sources, shall be applicable to such category or class only if such stand- ard imposes more stringent requirements. Such published effluent standard (or prohibition) shall take into account the toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms and the nature and extent of the effect of the toxie pol- lutant on such organisms, and the extent to which effec- tive control is being or may be achieved under other regu- latory authority. The Administrator shall allow a period 85a Constitutional Provision and Siatutes Involved of not less than sixty days following publication of any such proposed effluent standard (or prohibition) for writ- ten comment by interested persons on such proposed stand- ard. In addition, if within thirty days of publication of any such proposed effluent standard (or prohibition) any interested person so requests, the Administrator shall hold a public hearing in connection therewith. Such a public hearing shall provide an opportunity for oral and written presentations, such cross-examination as the Ad- ministrator determines is appropriate on disputed issues of material fact, and the transcription of a verbatim rec- ord which shall be available to the public. After considera- tion of such comments and any information and material presented at any public hearing held on such proposed standard or prohibition, the Administrator shall promul- gate such standard (or prohibition) with such modifica- tion as the Administrator finds are justified. Such promul- gation by the Administrator shall be made within two hun- dred and seventy days after publication of proposed stand- ard (or prohibition). Such standard (or prohibition) shall be final except that if, on judicial review, such standard was not based on substantial evidence, the Administrater shall promulgate a revised standard. Effluent limitations shall be established in accordance with sections 1311 (b) (2) (A) and 1314(b) (2) of this title for every toxie pollutant referred to in table 1 of Committee Print Numbered 95-30 of the Committee on Publie Works and Transportation of the House of Representatives as soon as practicable after December 27, 1977, but no later than July 1, 1980. Such effluent limitations or effluent standards (or prohibitions) shall be established for every toxic pollutant jisted under paragraph (1) of this subsection as soon as practicable after it is so listed. . > 86a Constitutional Provision and Statutes Involved (3) Each such effiuent standard (or prohibition) shall be reviewed and, if appropriate, revised at least every three years. (4) Any effluent standard promulgated under this sec- tion shall be at that level which the Administrator deter- mines provides an ample margin of safety. (5) When proposing or promulgating any effluent stand- ard (or prohibition) under this section, the Administra- tor shall designate the category or categories of sources to which the effluent standard (or prohibition) shall apply. Any disposal of dredged material may be included in such a category of sources after consultation with the Secre- tary of the Army. (2) The Administrator shall, from time to time, as con- trol technology, processes, operating methods, or other al- ternative change, revise such standards following the pro- cedure established by this subsection for promulgation of such standards. (3) When proposing or promulgating any pretreatment standard under this section, the Administrator shall desig- nate the category or categories of sources to which such standard shall apply. (4) Nothing in this subsection shall effect any pretreat- ment requirement established by any State or local law not in conflict with any pretreatment standard established under this subsection. (c) In order to insure that any source introducing pol- Intants into a publicly owned treatment works, which source would be a new source subject to section 1316 of 87a Constitutional Provision and Statutes Involved this title if it were to discharge pollutants, will not cause a violation of the effluent limitations established for any such treatment works, the Administrator shall promul- gate pretreatment standards for the category of such sources simuitaneously with the promulgation of standards of performance under section 1316 of this title for the equivalent category of new sources. Such pretreatment standards shall prevent the discharge of any pollutant into such treatment works, which pollutant may interfere with, pass through, or otherwise be incompatible with such works. (7) Prior to establishing any regulations pursuant to this section the Administrator shall, to the maximum ex- tent practicable within the time provided, consult with appropriate advisory committees, States, independent ex- perts, and Federal departments and agencies. (b)(1) The Administrator shall, within one hundred and eighty days after October 18, 1972, and from time to time thereafter, publish proposed regulations establishing pre- treatment standards for introduction of pollutants into treatment works (as defined in section 1292 of this title) which are publicly owned for those pollutants which are determined not to be susceptible to treatment by such treatment works or which would interfere with the opera- tion of such treatment works. Not later than ninety days after such publication, and after opportunity for public hearing, the Administrator shall promulgate such pretreat- ment standards. Pretreatment standards under this sub- section shall specify a time for compliance not to exceed three years from the date of promulgation and shall be established to prevent the discharge of any pollutant 88a Constitutional Provision and Statutes Involved through treatment works (as defined in section 1292 of this title) which are publicly owned, which pollutant inter- feres with, passes through, or otherwise is incompatible with such works. If, in the case of any toxic pollutant under subsection (a)of this section introduced by a source into a publicly owned treatment works, the treatment by such works removes all or any part of such toxic pollutant and the discharge froin such works does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a publicly owned treatment works, and does not prevent sludge use or disposal by such works in accordance with section 1345 of this title, then the pre- treatment requirements for the sources actually discharg- ing such toxie pollutant into such publicly owned treat- ment works may be revised by the owner or operator of such works to reflect the removal of such toxic pollutant by such works. 33 U.S.C. §1341 (a)(1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will orig- inate, or, if appropriate, from the interstate water pollu- tion control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. In the case of any such activity for which there is not an applicable effluent limitation or 89a Constitutional Provision and Statutes Involved other limitation under sections 1311(b) and 1312 of this title, and there is not an applicable standard under sec- tions 1316 and 1317 of this title, the State shall so cer- ify, except that any such certification shall not be deemed to satisfy section 1371(c) of this title. Such State or interstate agency shall establish procedures for public notice in the case of all applications for certification by it and, to the extent. it deems appropriate, procedures for public hearings in connection with specific applications. In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification re- quirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be. (2) Upon receipt of such application and certification the licensing or permitting agency shall immediately no- tify the Administrator of such application and certifica- tion. Whenever such a discharge may affect, as deter- mined by the Administrator, the quality of the waters of any other State, the Administrator within thirty days of the date of notice of application for such Federal ]i- cense or permit shall so notify such other State, the licens- ing or permitting agency, and the applicant. If, within sixty days after receipt of such notification, such other 90a Constitutional Provision and Statutes Involved State determine that such discharge will affect the qual- ity of its waters so as to violate any water quality re- quirement in such State, and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the issuance of such license or permit and requests a public hearing on such objectio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2305%3A01. Public record. Not legal advice.