Petitioners Brief — Middlesex County Sewerage Authority v. National Sea Clammers Assn.

~~ ees

8 eS et

Nos. 79-1711; 79-1754; 79-1760; 80-12 (Conjolidated). (.:..”

—————_—_—_——_ D

IN THE i

+ A&C 4 198

Supreme Court of the United States

1 MICNAF ya i

Ocroser Term, 1980 oe ee

MIDDLESEX COUNTY SEWERAGE AUTHORITY, et al.

Petitioners (79-1711)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, e¢# al..

JOINT MEETING OF ESSEX AND UNION COUNTIES,

Petitioner (79-1754)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.,

CITY OF NEW YORK AND ABRAHAM BEAME,

Petitioners (79-1760)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

ENVIRONMENTAL PROTECTION AGENCY, et al.

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

Petitioners (80-12)

On Writs of Certiorari to the United States Court of Appeals

for the Third Circuit

BRIEF FOR PETITIONER, THE JOINT MEETING OF

ESSEX AND UNION COUNTIES

GEORGE J. MINISH,

Counsel for Petitioner, The Joint Meeting of

Essex and Union Counties,

P.O. Box 236, 614 Eagle Rock Avenue,

West Orange, New Jersey 07052,

(201) 736-9622

MINISH anr WILLIAMS,

Attorneys,

—— _ apienetiinieneaiiaiasninatadimaiai

Petitions For Certiorart Fitep Aprit 29, 1980 (79-1711) ; May 5, 1980

(79-1754) ; May 5, 1980 (79-1760) ; Juty 3, 1980 (80-12)

CERTIORARI GRANTED OctoBEr 20, 1980

. a

Questions Presented

1. Whether the Federal Water Pollution Control Act,

33 U.S.C. §1251 et seq., and the Marine Protection, Re-

search and Sanctuaries Act of 1972, 33 U.S.C. §1401, et

seq., imply a private right of action independent of the

rights explicitly created by the citizens suit provisions

of those Acts, 33 U.S.C. §§1865(e) and 1415(g).

2. Whether a private citizen has standing to maintain

a federal common law nuisance action for alleged dam-

ages sustained resulting from ocean pollution, as a gen-

eral federal question under 28 U.S.C. §1331.

3. Whether any federal common law nuisance action

for alleged damages sustained resulting from ocean pollu-

tion, if available to a private citizen, is not pre-empted

by the present regulatory scheme governing ocean pollu-

tion established by the Federal Water Pollution Control

trol Act and The Marine Protection, Research and Sanc-

tuaries Act.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............-

OPINIONS AND JUDGMENTS BELOW

JURISDICTION ROR A at MOREE

CoNSTITUTIONAL AND StatuTorY Provisions INVOLVED

STATEMENT OF THE CASE ...........--- wa

SUMMARY OF ARGUMENT

ARGUMENT:

I—Neither the FWPCA as amended, nor the

MPRSA as amended, imply a private right

of action independent of the rights explicit-

ly created by the citizens’ suit provisions

contained therein, 33 U.S.C. esa: and

a 5 eee er ne Ree

II—A private citizen lacks standing to maintain

a federal common law nuisance action for

alleged damages sustained resulting from

ocean pollution as a general question under

28 U.S.C. $1331 shinies sce se iptdladiaebpisthianiainn

IlI—The present regulatory scheme governing

ocean pollution established by the FWPCA

and the MPRSA should preempt any fed-

eral common law nuisance action by a

private citizen, if available, for alleged dam-

ages sustained resulting from ocean pollu-

TIN cies seicncailip sale cicaebenssngphegscieccneietiledbcaimeatgsacapcaea:

a a

10

18

li TABLE OF CONTENTS

PAGE

Cases Cited

Byram River vy. Village of Port Chester, 394 I’. Supp.

Cee ER | SRE ee eC ae 20

City of Evansville, Ind. v. Ky. Liquid Recycling, 604

i ee tt ae | SN cen Ne RO en aE 6, 13-15

City of Highland Park v. Train, 519 F.2d 681 (7 Cir.

1975), cert. denied 424 U.S. 927 (1976) ........... 6, 11, 12, 20

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

IE ast eaccsetaditsnccasapiopin can onticckccaaeci Sat teehascaiaeied 8, 19-22

Cort v. Ash, 422 U.S. 66 (1975) 2. 6, 7, 14, 16, 17

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ........ dy 8, 9,

18-24, 26

Natural Resources Defense Council, Ine. v. Callaway,

cB ee Be ee bs Sk): ) eee 11

Natural Resources Defense Council, Ine. v. Train, 510

ge ea tig: ) En eae ee 11

Parsell v. Shell Oil Co., 421 F.Supp. 1275 (D.Conn.

1976) aff’d without opinion sub nom. East End

Yacht Club, Ine. v. Shell Oil Co., 573 F.2d 1289

Oy Vania ME EO “i cscachcecieidiachsaaibenacgsticchateticiecaatsonntonolcnien’ 8, 20, 22, 23

Sierra Club v. Morton, 405 U.S. 727 (1972) 20002... 7, 15, 16

Stream Pollution Bd. of Ind. v. U.S. Steel Corp.,

hg BS i oe |: eae Cera 20

Touche-Ross & Co. v. Redington, 442 U.S. 560 (1979) 17

Township of Long Beach v. City of New York, 445

Bi POU i. CRs PED crcincccsncercensescossidicnatn easetisiad 11

TABLE OF CONTENTS lil

PAGE

Transamerica Mortgage Advisors, Ine, v. Lewis, 444

U.S. 11 (1979) 17

United States ex rel Scott v. United States Steel

Corp., 356 F.Supp. 56 (D-Ill. 1973) 9, 24, 26

United States v. Ira S. Bushey & Sons, Ine., 346

F.Supp. 145 (D.Vt. 1972), aff'd 487 F. 2d 1393

(2 Cir, 1973) 9, 20, 24, 26

United States v. Stoeco Homes, Inc., 359 F.Supp.

672 (D.N.J. 1973) 20

United States v. United States Steel Corp., 356 F.

owe. SEG (OLTN. ER. TOT D cscsccancssnicnccusinimesoaa 20

Statutes Cited

Reet aie: PT icinscecansnscnssinigntaiecniadienac aaa 3

28 U.S.C. (Judicial Code) :

> |} | Rance UR DANONE A CTT 2

| __; mNamee mcENM RUC era) xr i, 8, 11,18

TOO. BEE) iiss sstscnnerrcsoeienaaancaeee 1-7

33 U.S.C. (Rivers and Harbors Act of 1899) :

RS MIT cstiinsnervssesisssiiensalbatasplclibieceetis leans 24, 26

33 U.S.C. (Federal Water Pollution Control Act, as

amended) :

ee. SIGE. WE OOM. ccc chine 24, 26

A BRD andes seneecinsnsececiicanstcaepouen enum ed aen 26

See. 2501 ot 20) WW. eee i,2

bt RID scicsncscisicinsvanisicitecascllae alesse ee 6, 14

iv

TABLE OF CONTENTS

33 U.S.C. (Federal Water Pollution Control Act, as sa

amended) :

STR EGTA il SERENE OND AER Sa 15-18

I ioc ce ss taslstachotamenndoerscmuonsch ccd 7,15

|. Seek aaah a RvR T Se i, 7, 10, 13-18

I sees ke 7,16

33 U.S.C. (Marine Protection Research and Sanctu-

aries Act):

I A tal ns Sep secccnsnieldianalichabuonle i, 3

oe cae NIN Ri 2 TRU 1 Se CR ESAS 27

I ian enacts lieraddeaieis asec 27

NN a i in scscs Deotenistcledasnchceebabcousin 27

I a 27

NT as panes cs a odie pndcpicavactmnoeddignunlabin 27

i, EEE Ea Ee aon ae Oe 28

on . RES ETE OR Cee n NEL ee i, 10

IO ccna acini ecemntaneccaic® 10

cop | een EMRE ETE FORT CRE 28

42 U.S.C. (Clean Air Act):

I asad reclined dessin ded nine Siariuschchc ces wear 6,12

Other Authorities Cited

S. Rep. No. 414, Reported in 1972, U.S. Code Cong. &

Peas RNs MS PIER ici li

S. Rep. No, 1301, Reported in 1972, U.S. Code Cong. &

MM BN, Br I anise cseticteenccccbenctnsshvieassenctin’ 13

Nos. 79-1711; 79-1754; 79-1760; 80-12 (Consolidated)

IN THE

Supreme Court of the United States

Ocrosrer TERM, 1980

»

—_—

MIDDLESEX COUNTY SEWERAGE AUTHORITY, et al.

Petitioners (79-1711)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

JOINT MEETING OF ESSEX AND UNION COUNTIES,

Petitioner (79-1754)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

CITY OF NEW YORK AND ABRAHAM BEAME,

Petitioners (79-1760)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, e¢ al.

ENVIRONMENTAL PROTECTION AGENCY, et al.

Petitioners (80-i2)

v.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

On Writs of Certiorari to the United States Court of Appeals

for the Third Circuit

ai

—_—

BRIEF FOR PETITIONER, THE JOINT MEETING OF

ESSEX AND UNION COUNTIES

Opinions and Judgments Below

The Opinion of the Court of Appeals for the Third

Circuit, filed February 5, 1980, is reported at 616 F.2d

1222. The Opinion and Judgment of the Court of Ap-

peals is reprinted in the Appendix to the Petition for

Certiorari of Middlesex County Sewerage Authority, et al

at pp. la and 38a, respectively; and in the Petition for

Certiorari of Environmental Protection Agency, et al at

pp. la and 32a, respectively.

The Opinion of the District Court for the District of

New Jersey is unreported officially but appears at 12

E.R.C. 1118. The Opinion and Order of the District Court

is reprinted in the Appendix for Certiorari of Middlesex

County Sewerage Authority, et al at pp. 40a and 60a

respectively; and in the Appendix to the Petition for

Certiorari of Environmental Protection Agency, et al at

pp. 35a and 60a, respectively.

Jurisdiction

This Court has jurisdiction to review the Judgment

of the Court of Appeals for the Third Cireuit by Writ

of Certiorari under 28 U.S.C. §1254(1). The Judgment

of the Court of Appeals was entered on February 5,

1980. The Petition for a Writ of Certiorari by this Pe-

titioner was filed on May 5, 1980, and was granted by

this Court on October 20, 1980.

Constitutional and Statutory Provisions Involved

The pertinent provisions of the Federal Water Pollu-

tion Control Act (FWPCA), 33 U.S.C. $1251 et seq. and

3

The Marine Protection, Research and Sanctuaries Act

(MPRSA), 33 U.S.C. $1401 et seq., involved in this case

are reprinted in the Appendix of Middlesex County Sew-

erage Authority, et al at pp. 72a to 105a.

Statement of the Case

On January 14, 1977, plaintiffs, National Sea Clammers

Association and Gosta Lovgren, on their own behalf and

on behalf of a class of others allegedly similarly situated,

commenced the instant action seeking both injunctive re-

lief and damages against numerous Federal, New York

and New Jersey State officials and agencies concerned

either with the disposition of sewage or the administra-

tive regulation of the activities of such agencies. Peti-

tioner herein, the Joint Meeting of Essex and Union Coun-

ties (Joint Meeting), is an assembly of the members of

the various municipalities comprising the Counties of Es-

sex and Union, in the State of New Jersey, formed pur-

suant to N.J.S.A. 40:63-68, et seq.

The essence of plaintiffs’ eleven count Complaint (Joint

app. 18a, ef seq.) is that the discharge of sewage and

the dumping of sludge resulting from sewage treatment

by the municipal defendants had caused damage to the

clam, oyster and lobster beds in the Atlantic Ocean, thereby

adversely affecting plaintiffs’ commercial business of fish-

ing, clamming and lobstering on the shores or in the wa-

ters of the ocean. The Complaint alleges that the de-

fendants have caused damage to said beds by failing to

carry out a series of statutory and constitutional duties

designed to maintain pollution within certain respectable

limits. Plaintiffs further contend that, since they are mem-

bers of the class and purport to represent a class com-

prised of commercial fishermen engaged in the harvest

, ay

g

of clams, oysters, lobsters and fish in the Atlantic Ocean,

they have the requisite standing to bring such an ac-

tion.

The basic characterizations in law of the pertinent al-

legations made by plaintiffs in their Complaint against

the Petitioner are essentially that Petitioner created and

maintained a federal public nuisance resulting from the

discharge of effluent and the dumping of sludge into New

York Harbor and the Atlantic Ocean and that the Pe-

titioner operated vutside the scope of permits issued by

various governmental authorities in direct violation of the

FWPCA and MPRSA, thereby allowing the plaintiffs to

commence a citizens’ suit.

Petitioner and other defendants moved to dismiss the

plaintiffs’ claim for lack of subject matter jurisdiction

in light of the fact that plaintiffs failed to provide a

notice of their claims to the defendants as required by

the FWPCA and MPRSA. Petitioner and the other de-

fendants also urged that the plaintiffs, as private citi-

zens, lacked the requisite standing to institute that part

of the instant action based upon the federal common law

of nuisance. The disposition of the issues presented on

defendants’ Motion to Dismiss by the Court below was

as follows.

Regarding the claims asserted under the FWPCA and

MPRSA, the District Court held that they must be dis-

missed because of plaintiffs’ failure to timely serve no-

tice on the defendants prior to institution of the action,

as required by the respective statutes (pet. cert. app.

06a). While agreeing that strict adherence to the sta-

tutory notice provisions was required, the Court of Ap-

peals reversed the holding of the District Court. In rely-

ing upon the “savings clauses” contained in the citizens’

suit provisions of the Acts, the Court of Appeals held

that the absence of notice was not fatal because the “sav-

ings clauses” preserved any existing right of action under

statute or common law. (Joint App. 10a).

Regarding plaintiffs’ contention that they could main-

tain the instant litigation independent of any right pur-

suant to the “savings clauses” of the FWPCA and MPRSA

as a right implied under those statutes and under the

theory of federal common law of nuisance, the District

Court held, relying primarily on TJilinois v. City of Mil-

waukee, 406 U.S. 91 (1972), that the latter avenue of

relief was available only in favor of states, not to pri-

vate parties, and that the notice provisions of the sta-

tutes remained applicable to any actions brought pursu-

ant to the “savings clauses” (pet. cert. app. 47a). The

Court of Appeals reversed these determinations holding

that a private federal common law nuisance claim was

available through private citizens as well as an implied

claim under the FWPCA and MPRSA (pet. cert. app.

28a-29a, 6a-14a).

Four Petitions for Certiorari were filed by a number

of New Jersey Public Sewage Disposal Agencies, the City

of New York and the Environmental Protection Agency.

Said Petitions were granted by Order of this Court dated

October 20, 1980, (Joint App. 48a). The questions were

ordered limited to those set forth hereinabove.

Summary of Argument

1. Neither the FWPCA nor the MPRSA imply a

private right of action independent of the rights ex:

plicitly created by the citizens’ suit provisions contau. -d

therein. There is no dispute that the citizens’ suit pro-

visions of the FWPCA (which are analogous to the citi-

6

zens’ suit provisions of MPRSA) were modeled after the

citizens’ suit provisions of the Clean Air Act, 42 U.S.C.

$7604. There is dispute among the Circuits, however, as

to whether the citizens’ suit provisions of the FWPCA

and MPRSA provide an exclusive jurisdictional basis for

private actions to enforce the provisions of said Acts.

The more well-reasoned approach to a solution for this

dilemma is contained in the holding in City of Highland

Park v. Train, 519 F.2d 681 (7th Cir. 1975), which con-

cluded that the savings clauses of the citizens’ suit pro-

visions of the Clean Air Act, which paralleled those of

the FWPCA and MPRSA, provided the sole jurisdic-

tional basis for private actions to enforce the provisions

of the Act. Although the Court in Highland Park, supra,

recognized the necessity of citizen participation in the

enforcement of the provisions of the Act, it neverthe-

less pointed out the concern of Congress that such citi-

zens’ suits be made availiable in a such manner that al-

ready burdened federal courts would not become over-

burdened.

The legislative history embodied in the 1972 Senate

Report on the FWPCA bill specifically notes that the

savings clause provisions of the Act refer to any rights

or remedies under “any other law” and not to the sub-

ject statute itself as concluded by the Court of Appeals

below. The Court in City of Evansville, Ind. v. Ky.

Tiquid Recycling, 604 F.2d, 1008 (7th Cir. 1979), com-

pletely agreed with the interpretation contained in the

Senate Report, thereby precluding the inference of any

congressional intent to create a private right of action

for damages under other provisions of the FWPCA. The

Court in City of Evansville, supra, noted that $505, 33

U.S.C, $1865, was also applicable with respect to the third

factor identified in Cort v, Ash, 422 U.S. 66, 78 (1975),

7

which required an evaluation of the legislative scheme vis-

a-vis remedies sought. Upon examination of the legisla-

tive scheme, the Court concluded that the implication

of a private right of action would be inconsistent with

the congressional purposes of the act.

In line with Congress’s intent to model the provisions

of the FWPCA so as to be consistent with the holding

of the Supreme Court in the case of Sierra Club v. Mor-

ton, 405 U.S. 727 (1972), the Court of Appeals below

concluded that actions brought pursuant to $1365(a)(1)

were to be in the nature of private attorney general ac-

tions instituted by non-injured citizens while those ac-

tions brought pursuant to $1365(e) were relegated to

citizens who had been injured. However, a comparison

of the statutory language of the Administrative Pro-

eedure Act, with which the Court in Sierra Club, supra,

was concerned, and the language contained in §1365(g)

of the FWPCA, clearly indicates that the only “citizens”

who have standing to bring actions pursuant to those

Acts must have an interest which is or may be adversely

affected, thereby precluding private attorney general ac-

tions such as envisioned by the Court of Appeals below.

The Court of Appeals finally relied upon the four part

test for finding an implied private cause of action estab-

lished by the Supreme Court in Cort v. Ash, supra. In

essence, said four part test boiled down to the ultimate

determination as to whether congress intended to create

the private remedy asserted. In conjunction with the un-

disputed purpose of the FWPCA to protect individuals

from injury caused by the polluting activities of others

and consistent with the conclusion that private attorney

general actions are not allowable under the Act, the un-

mistaken conclusion results that the sole basis for relief

for injured citizens is through the citizens suit provisions

of the Acts.

8

2. A private citizen does not have standing to maintain

a federal common law nuisance action for alleged damages

sustained resulting from ocean pollution as a general

federal question under 28 U.S.C. §1331.

In Illinois v. City of Milwaukee, 406 U.S. 91 (1972),

the Supreme Court concluded that a cause of action in

federal common law of nuisance for water pollution was

available to the plaintiff therein. The Court of Appeals

below extended the seope and effect of the decision in

Illinois, supra, to allow such federal common law nuisance *

actions to be instituted by private citizens. In light of

the fact that the Court in Illinois, supra, relied upon

causes of action brought on behalf of states as legal prece-

dent and decisions subsequent to Illinois, supra, have

confined federal common law of nuisance actions to those

brought on behalf of governmental plaintiffs, the conclusion

of the Court of Appeals below is unfounded.

In the case of the Committee for the Consideration of

the Jones Falls Sewage System vy. Train, 375 F.Supp.

1148 (D.Md. 1977), aff’d on the other grounds, 539 F.2d

1006 (4th Cir. 1976), the District Court confirmed the

existence of a body of federal common law of nuisance

emanating from Iilinois, supra, but specifically restricted

said actions to those of plaintiffs seeking relief on behalf

of states and the United States. Certainly, if the Supreme

Court wished to extend the availability of federal com-

mon law nuisance actions beyond those instituted on be-

half of governmental plaintiffs, then such an extension

of scope would have been explicitly stated in its opinion.

Exception is also taken to the effect of the decision

of the Court of Appeals below which allows private liti-

gants to recover damages against the defendants herein.

In line with the rationale of the District Court in Parsell

v. Shell Oil Company, 421 F.Supp. 1275 (D.Conn. 1976),

aff'd without opinion sub nom., East End Yacht Club, Inc.

v. Shell Oil Company, 573 F.2d at 1289 (2d Cir. 1977), it

is inconceivable that even if the Court in Illinois, supra,

envisioned actions based upon federal common law of

nuisance by private litigants, those actions would be econ-

cerned with any relief other than the abatement of nuis-

ances emanating from one state to another, and not for

damages.

3. Any federal common law nuisance action by a private

citizen for alleged damages sustained resulting from ocean

pollution, if available, should be preempted by the present

regulatory scheme governing ocean pollution established

by the FWPCA and the MPRSA.

In Illinots v. Milwaukee, supra, the issue of federal statu-

tory preemption of federal common law nuisance actions

was first discussed. The Supreme Court concluded therein

that federal statutory preemption did not exist at that

time, but that new federal laws and new federal regula-

tions may at some point in the future preempt the field

of federal common law of nuisance. Subsequent decisions

in the case of Umted States v. Ira S. Bushey & Sons, Inc.,

346 F.Supp. 145 (D.Vt. 1972) and United States ex rel

Scott v. Umted States Steel Corp., 356 F. Supp. 56 (D.TIIL.

1973), also refused to accept federal statutory preemption

of federal common law nuisance actions for water pol-

lution, in line with Jilinois, supra, but again with the pro-

viso that such actions would be maintainable only until

legislation had been passed effectively regulating and pre-

venting the pollution of interstate waters. It is important

to note that the nature of all the plaintiffs therein were

governmental units and also that the effeet of the 1972 and

1977 amendments of the FWPCA and the enactment of

the MPRSA in 1972 had not really been felt at the time

these decisions were rendered. It is respectfully submitted

10

that the regulatory nature and enforcement authority em-

bodied in these Acts were precisely what the aforesaid

decisions looked toward when leaving a door open for fed-

eral statutory preemption of federal common law nuisance

actions in the future. Thus, the time is now at hand when

federal common law nuisance actions are no longer neces-

sary in light of the stringent water pollution restrictions

now on the books and the widespread enforcement capa-

bility of the EPA established as a result thereof.

ARGUMENT

POINT I

Neither the FWPCA as amended, nor the MPRSA as

amended, imply a private right of action independent

of the rights explicitly created by the citizens’ suit pro-

visions contained therein, 33 U.S.C. §§1365(e) and

1415(g).

Contrary to the holding of the District Court below, the

Court of Appeals held that the “savings clauses” of the

FWPCA and MPRSA, 33 U.S.C. §§1365(e) and 1415(g)

(5), respectively, imply a private cause of action against

any person or governmental agency alleged to be in vio-

lation of an effluent standard or limitation under the Acts

or an order by the EPA Administrator or State eoncern-

ing such a standard. Using 33 U.S.C. §1365(e) as a model,

the savings clauses of these acts essentially provide:

“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).”

11

It was recognized by both Courts below that the Circuits

have differing opinions as to whether the citizens’ suit pro-

visions of the FWPCA and MPRSA provide an exclusive

jurisdictional basis for private actions to enforce the pro-

visions of said Acts. The D.C. and Second Cireuits have

held that the citizens’ suit provisions are not exclusive,

thereby allowing jurisdiction to be predicated alternatively

on 28 U.S.C. §1331 without the necessity of complying with

the notice requirements attendant to the citizens’ suit pro-

visions. Natural Resources Defense Council, Inc. v. Tram,

510 F.2d 692 (D.C. Cir. 1974), Natural Resources Defense

Counsel, Inc. v. Callaway, 524 F.2d 79 (2d Cir. 1975). How-

ever, in City of Highland Park v. Train, 519 F. 2nd 681

(7th Cir. 1975), the Seventh Circuit held that the citizens’

suit provisions of the Clean Air Act, which paralleled those

of the FWPCA and MPRSA, provided the sole jurisdic-

tional basis for private actions to enforce the provisions

of the Act. The District Court also noted that a District

of New Jersey case had followed the lead of the D.C. and

Second Circuits on this issue. Z'ownship of Long Beach

v. City of New York, 445 F'. Supp. 1203 (D.N.J. 1978).

The District Court believed that the Seventh Circuits’

analysis and holding in Highland Park, supra, represented

the more well-reasoned approach to this dilemma and

thereby concluded that the savings clauses of the citizens’

suit provisions of the FWPCA and MPRSA may allow al-

ternate basis for jurisdiction pursuant to 28 U.S.C. $1331,

but not without compliance with the notice requirements

thereof. However, the Court of Appeals considered the

holdings in the D.C. and Second Circuits to be more per-

suasively reasoned than that of the Seventh Cireuit and,

therefore, held that such a separate and distinct jurisdie-

tional basis in fact existed. (pet. cert. app. 10a). There is

no indication in the opinion of the Court of Appeals as to

why the D.C. and Second Circuit Opinions represented

12

“more persuasively reasoned cases” than that of the

Seventh Circuit.

Based upon the agreement of the Court of Appeals below

that the citizens’ suit provisions of the FWPCA were

modeled after the citizens’ suit provisions of the Clean Air

Act, 42 U.S.C. §7604 (pet. cert. app. 4a and lla), it would

seem inconsistent that the Court of Appeals would not

follow the reasoning in Highland Park, supra, which spe-

cifically dealt with the relationship of the savings clause

and citizens’ suit provisions in the Clean Air Act. The

Court in Highland Park, supra, pertinently noted that the

legislative history of the Clean Air Act:

“Shows Congress’s determination that citizen partici-

pation in the enforcement of standards and regula-

tions under the Clean Air Act of 1970 be estab-

lished. It also shows, however, that Congress in-

tended to provide for citizens’ suits in a manner

that would be least likely to clog already burdened

federal courts and most likely to trigger gov-

ernmental action which would alleviate any need

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 statutory mandate of Section

304(d) were ignored.” 519 F. 2d at 690-691.

The Court went on to conclude that the savings clause

of the Clean Air Act

“expressing the general intention of Congress not

to disturb existing rights to seek relief does not have

the affirmative effect of removing conditions which

existing law imposes on the exercise of those rights.”

519 F. 2d at 693.

13

A further review of the legislative history of the sav-

ings clauses of the FWPCA and MPRSA will serve to

illustrate the obvious inconsistencies of the Court of

Appeals holding. With respect to the savings clause, the

1972 Senate Report on the FWPCA bill pertinently stated:

“. .. it should be noted, however, that the section

would specifically preserve any rights or remedies

under any other law”. (emphasis added) §S.Rep.

No. 414, Reported in 1972, U.9. Code Cong. & Adm.

News, 3668, 3746.

Substantially the same reasoning is contained in the

Senate Report on the MPRSA bill. S.Rep. No. 1301, re-

ported 1972, U.S. Code Cong. & Admin. News, 4232, 4250.

The Court of Appeals below interpreted the reference to

“any statute” in §1365(e) to include the subject statute

itself contrary to the clear intent noted in the above cited

Senate Report that “any statute” means any statute other

than the FWPCA itself. Although the Court of Appeals

alluded to the aforesaid legislatve history of the FWPCA,

it concluded that it was not presuaded by the stated inter-

pretation of the wording of the Act offered in the Senate

Report. (pet. cert. app. 16a).

Interestingly enough, the Seventh Cireuit has once

again provided us with a very well-reasoned decision on

point dealing specifically with the savings clause provision

of the FWPCA. In City of Evansville, Ind. v. Ky. Liquid

Recycling, 604 F. 2d 1008 (7th Cir. 1979), the Court pre-

faced its discussion by alluding to the legislative history

cited above. The Court then addressed itself to the in-

terpretation contained in the Senate Report of the statu-

tory phrase “under any statute or common law” as “under

any other law” as follows:

“Even if this is intended only as a paraphrase, it

suggests that a right of action for damages must

14

be found outside the Act itself. And Congress’

rejection of all but two of the proposed exceptions

to the requirement of a 60-day waiting period for

a citizens suit, see note 16, supra, reinforces the

evidence in $505 [1365] itself of an intent to eir-

cumscribe private rights of action under the

FWPCA.” 604 F. 2d at 1015.

A footnote to the Court’s conclusion hereinabove indi-

cated that if the language in the Senate Report was in-

tended to state exactly what was meant by the phrase

“any statute or common law” rather than as a mere

paraphrase, then §505(e), 33 U.S.C. §1365(e) would pre-

clude the inference of any congressional intent to create a

private right of action for damages under other provisions

of the FWPCA. Nonetheless, the Court was not dissuaded

from concluding as it did that private rights of action were

precluded under the savings clause. The Court in City of

Evansville, supra, noted further that $1365 was also ap-

plicable with respect to the third factor identified in Cort

v. Ash, 422 U.S. 66, 78 (1975), namely, “is it inconsistent

with the underlying purposes of the legislative scheme to

imply such a remedy for the plaintiff?” 604 I’. 2d at 1015.

The legislative scheme of $1365 was aptly stated by the

Court as follows:

“$505 evidences a congressional intent to carefully

channel public participation in the enforcement of

the Act. Before commencing a citizen suit, the

plaintiff must give notice not only to the alleged

violator, but to the Administrator and the State in

which the violation oceurs. If either the Adminis-

trator or the State initiates adequate enforcement

proceedings, the private action is foreclosed, al-

though the complainant is authorized to intervene

15

‘as of right’. §505(b), 33 U.S.C. §1365(b).” 604 F.2d

at 1015.

The Court then concluded that a private plaintiff may

enforce compliance with the effluent standards and limi-

tations, require the Administrator to perform a duty to

act, and impose civil penalties by instituting a private

suit under §505(a), 33 U.S.C. §1365(a). However, the

Court went on to emphasize that the implication of a

private remedy “would be inconsistent with the congres-

sional purpose implicit in the Act of encouraging private

participation in the enforcement of the Act within the

channels expressly provided”, 604 F. 2d at 1016.

In further support of its contention that a general

private cause of action exists under the FWPCA and

MPRSA, the Court of Appeals below rationalized that

actions brought pursuant to §1365(a)(1) were to be in

the nature of private attorney general actions instituted

by non-injured citizens while those actions brought pur-

suant to §1365(e) were relegated to citizens who had

been injured. The basis for this thesis proposed by the

Court of Appeals is Congress’ attempt to insure that the

FWPCA would comply with the holding of the Supreme

Court in the then-recent case of Sierra Club y. Morton,

405 U.S. 727 (1972). (pet. cert. app. 7a).

In Sierra Club, supra, the Supreme Court concluded that

an environmental group would have standing to bring

suit pursuant to the Administrative Procedure Act if it

could allege an adverse effect on its interest. The Court

of Appeals thrust was that it was Congress’s intent con-

sistent with the Sierra Club decision to provide generally

for citizens’ suits which would not be subject to the juris-

dictional amount requirement but which would still allow

for private attorney general enforcement. A comparison

16

of the statutory language, however, would seem to imply

a somewhat different resnlt. Section 1365(g¢) defines a

“citizen” who is permitted to institute an action under

§1365(a) as a “person or persons having an interest which

is or may be adversely affected”. It is interesting to

note that the Court in Sierra Club, supra, also required

that the person or persons instituting the suit must be

“adversely affected”. 405 U.S. at 740.

It would appear intuitively obvious that standing in both

sections is predicated upon injury. Thus, the citizens con-

templated by both §§1365(a) and (e), must be one in the

same. This being the case, the rationale employed by the

Court of Appeals appears to be completely misplaced and

unable to support its conclusion that there is a private

right of action independent of §1365(a).

In furtherance of its position, the Court of Appeals then

relied upon the four part test for finding an implied pri-

vate cause of action established by the Supreme Court in

Cort v, Ash, supra. The factors referred to in Cort are:

First, is the plaintiff “one of the class for whose

special benefit the statute was enacted,” ... that is,

does the statute create a federal right in favor of

the plaintiff? Second, is there any indication of

legislative intent, explicit or implicit, either to create

such remedy or to deny one? ... Third, is it consist-

ent with the underlying purpose of the legislative

scheme to imply such a remedy for the plaintiff?

And finally, is the cause of action one tra-

ditionally relegated to state law, in an area basic-

ally the concern of the States so that it would be

inappropriate to infer a cause of action based solely

on federal law? 422 U.S. at 78.

17

The significance of the four part test established in Cort

v. Ash, supra, was explained in Touche Ross & Co. v. Red-

ington, 442 U.S. 560, 575 (1979) wherein the Court stated:

“. .. the Court did not decide that each of these

factors is entitled to equal weight. The central in-

quiry remains whether Congress intended to create,

either expressly or by implication, a private cause of

action.”

Further enforcement of the Touche Ross refinement was

given by the Supreme Court in Z'ransamerica Mortgage Ad-

visors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979) wherein the

Court noted that the “question whether a statute creates a

cause of action, either expressly or by implication, is basic-

ally a matter of statutory construction”. Thus, the ulti-

mate determination is whether Congress intended to create

the private remedy asserted.

There can be no dispute that one of the primary pur-

poses behind the passage of the FWPCA was the protec-

tion of individuals from injury caused by the polluting

activities of others. Consistent with this purpose, those

individuals suffering actual injury by the pollution should

be given a means by which their injury could be judicially

addressed. As previously noted, the Court of Appeals con-

cluded that §1865(a) allowed for private attorney general

actions to be instituted by non-injured citizens. Burdened

by this conclusion in applying the factors established in

Cort v. Ash, as furthered modified and explained in Touche

Ross, supra, and Transamerica Mortgage, supra, the Court

of Appeals below could only conclude that the only avail-

able means for the institution of judicial action by injured

citizens was through the provisions of §1365(e), which

would thus be consistent with the intent of Congress to

18

provide protection to those who are likely to be injured.

The holding of the Court of Appeals that §1365(a) pro-

vided a private attorney general cause of action precluded

any other conclusion.

Unburdened by the Court of Appeals’ conclusion that a

private attorney general right of action exists, the deter-

mination that a private remedy exists for citizens injured

by violation of the act would also be consistent with the

purposes of the act. However, under the latter thesis, the

private right of action would exist pursuant to $1365(a)

as further modified and explained in $1365(e). Thus, while

both theses provide for a private remedy, the latter would

only provide for one within the context of the FWPCA

and MPRSA.

It is respectfully submitted that the legislative scheme

intended and as enacted by Congress envisioned private

remedies only for those citizens injured as a result of

water pollution. Thus, a private right of action inde-

pendent of the citizen’s suit provisions does not exist.

POINT II

A private citizen lacks standing to maintain a federal

common law nuisance action for alleged damages su-

stained resulting from ocean pollution as a general

federal question under 28 U.S.C. §1331.

In reliance upon the holding of the Supreme Court in

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) contrary

to that of the District Court, the Court of Appeals below

held that a cause of action in federal common law of nuis-

ance for water pollution did extend to private citizen plain-

tiffs. It is respectfuly submitted that the Court of Appeals

19

below has extended the scope and effect of the decision of

this Court in Illinois v. Milwaukee, supra, to a point far

beyond that for which it was intended.

The principal issue for this Court in Illinois v. Mil-

waukee, supra, was “whether pollution of interstate or

navigable waters creates an action arising under the ‘laws’

of the United States within the meaning of §1331(a)”. 406

U.S. 91 at 99. In holding that such an action does arise

pursuant to §1331(a), the Supreme Court pertinently

stated:

“As the field of federal common law has given neces-

sary expansion to matters of federal concern and

relationship (where no applicable federal statute

exists, as there does not here), the ecological rights

of a State in the improper impairment of them from

sources outside the States own territory, now would

and should be, we think, held to be a matter having

basis and standard in federal common law and so

directly constituting a question arising under the

laws of the United States.” 406 U.S. at 99-100

In so holding, the Court relied upon actions brought on

behalf of states as legal precedent, thereby precluding

a carte blanche basis for permitting such actions insti-

tuted by other then state plaintiffs.

Subsequent to the decision in Illinois v. Milwaukee, supra,

the lower Federal Courts have consistently and almost

without exception confined federal common law of nuisance

actions to those brought on behalf of state plaintiffs and

by the United States. See, e.g., 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 district court on the instant issue, 539 F.2d

20

1006 (4th Cir. 1976) en bane); Parsell v. Shell Oil Co.,

421 F. Supp. 1275 (D. Conn. 1976), aff’d without opinion

sub nom. East End Yacht Club, Inc. v. Shell Oil Co.,

O73 F.2d 1289 (2 Cir. 1977); Stream Pollution Bad. of

Ind. v. U.S. Steel Corp., 512 F. 2d 1036 (7th cir. 1975)

(private citizen denied intervention); ef. Highland Park

v. Train, supra, 519 F.2d 681); but see Byram River

v. Village of Portchester, 394 F.Supp. 618 (S.D.N.Y. 1975) ;

United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp.

145 (D. Vt. 1972) 363 F. Supp. 110 (D. Vt. 1973), aff’d

487 F.2d 1393 (2d Cir. 1973), cert. den., 417 U.S. 976,

94S. Ct. 3182, 41 L.Ed. 2d 1146 (1976); United States

v. United States Steel Corp., 356 F. Supp. 556 (N.D.

Ill. 1973) ; United States v. Stoeco Homes, Inc., 489 F.2d

097 (3d Cir. 1974), cert. den. 420 U.S. 927, 95 S. Ct.

1124, 43 L.Ed. 2d 397 (1975).

In the case of Committee for Con. of Jones Falls

Sewage System vy. Train, supra, the District Court con-

cluded that an individual citizen could not bring an aec-

tion based upon the theory of federal common law of

nuisance. The rationale applied by the District Court

therein in reliance on Illinois v. Milwaukee, supra, was that

a cause of action in federal common law of nuisance was

found to exist in the latter case because of the “character

of the plaintiffs as governmental units”. 375 F. Supp. at

1153. In its affirmance, the Court of Appeals for the

Fourth Circuit further solidified the development of a body

of federal common law of nuisance eminating from JJlinois

v. Milwaukee, supra, and cases relied upon therein, while

still maintaining the constraint that a cause of action

brought under this theory was available only to those plain-

tiffs seeking relief on behalf of states, with one exception.

The Court further noted:

“Perhaps with the exception of actions by the United

States to abate public nuisances created in navig-

21

able waters by polluters, (citations omitted) but con-

sistent with Section 1251(b) [FWPCA], the doctrine

of Illinois v. Milwaukee has not been extended be-

yond the abatement of public nuisance in interstate

controversies where the complainant is a state and

the defenders are creating extra territorial harm.”

539 F.2d at 1009.

In its holding, the Court of Appeals below relied heavily

(pet. cert. app. 25a) upon Footnote 6 in Illinois vy. Mil-

waukee, 406 U.S. at 105, which stated in pertinent part:

“Thus it is not only the character of the parties that

requires us to apply federal law ... [W]here there

is an overriding federal interest in the need for a

uniform rule of decision or where the controversy

touches basic interest of federalism, we have fash-

ioned federal common law.”

In essence, the Court of Appeals construed the language

of said footnote as allowing a non-sovereign to institute a

federal common law of nuisance action if the subject fed-

eral question to be considered required federal uniformity.

The contra-holding in Committee for Con. of Jones Falls

Sewage System v. Train, supra, with respect to the same

footnote, contains a more persuasively reasoned analysis

of the intent of the Court in Jllinois v. Milwaukee. The

Court specifically noted therein:

“ .. this statement [it is not only the character of

the parties that requires us to apply federal law]

can be read in at least two different ways. It could

mean (a) that there were other considerations suf-

ficient in themselves to require application of fed-

eral law, or (b) that there were other federal in-

terests which in addition to the character of the

22

parties required the application of federal law al-

though those other interests in themselves would not

have been sufficient. In the view this Court takes of

the basis for the Supreme Court’s decision, the lat-

ter interpretation is the proper one. 375 F. Supp. at

1154, n.12.

It is obvious almost without question that the foregoing

analysis should be relied upon by this Court as the only

basis for its decision regarding a private citizens’ standing

to maintain a federal common-law nuisance action. If the

Supreme Court in JIlinois envisioned that such actions

should be available to private citizens, there is no reason

that the opinion would not, or could not, have so explicitly

stated same. However, by specifically constraining its de-

cision to the class of plaintiffs therein, the Supreme Court

let it be known that its determination regarding the avail-

ability of federal common law nuisance actions should not

be extended beyond the context in which it was stated, as

was so aptly construed in Committee for Con. of Jones

Falls Sewage System v. Train, supra.

Exception is not only taken to the decision of the Court

of Appeals below to extend the doctrine of Illinois v. Mil-

waukee, swpra, te private citizen plaintiffs, but also to the

effect of the Court of Appeals decision which would allow

private litigants to recover damages against the defend-

ants herein. It is respectfully submitted that even if the

Court in Illinois vy. Milwaukee, supra, envisioned actions

based upon federal common law of nuisance by private

litigants, those actions would only be eoncerned with abate-

ment of nuisances eminating from gne state into another,

and sot for damages.

The pure and simple reasoning forming the basis of this

exception was very aptly and succinctly stated by the Dis-

trict Court in Parsell v. Shell Oil Co., supra, as follows:

23

“Finally, there is justification for limiting any right

of action under Illinois v. Milwaukee to private

parties seeking injunctive relief rather than dam-

ages. Part of the reason why the Supreme Court

encouraged the development of the federal common

law of water pollution in Milwaukee was the need

for resolution of intricate and highly important

questions of the appropriate water quality standards

to apply. As the Court said, ‘these will be equity

suits in which the informed judgment of the chan-

cellor will largely govern.’ 406 U.S. at 107-108, 92

S. Ct. at 1395. A jury awarding damages in an oil

spill case with wholly intrastate impact would be

contributing to the development of evolving water

quality standards only in the most ad hoc way.” 421

F.Supp. at 1281-1282.

It is respectfully submitted that the rationale of the

District Court in Parsell v. Shell Ow Co., supra, is com-

pletely correct and equally as appropriate in the instant

ease. Damage suits were not contemplated in Illinois, nor

is there any reason for them to be contemplated now.

POINT IIf

The present regulatory scheme governing ocean

pollution established by the FWPCA and the MPRSA

should preempt any federal common law nuisance action

by a private citizen, if available, for alleged damages

sustained resulting from ocean pollution.

The issue of federal statutory preemption of federal

common law nuisance actions was first discussed by this

Court in Illinois v. Milwaukee, supra. Therein, the Court

noted that:

24

“Tt may happen that new federal laws and new

federal regulations may in time pre-empt the field

of federal common law of nuisance, But until that

comes to pass, federal courts will be empowered to

appraise the equities of the suits alleging creation

of public nuisance by water pollution.” 406 U.S. at

107.

In reliance upon the Supreme Court’s observation regard-

ing preemption in Illinois v. Milwaukee, supra, the Court

in United States v. Ira S. Bushey & Sons, Inc., supra, in

denying a motion to dismiss the complaint, held, inter

alia, that the numerous laws which Congress enacted te

prohibit or control pollution of interstate or navigable

waters did not establish in themselves the exclusive means

by which federal policy and interest concerning the quality

of water under federal jurisdiction might be protected in

federal courts. In reference to Illinois v. Milwaukee, supra,

the Court noted that it was made clear therein that the

application of federal common law to abate a public nuis-

ance in interstate and navigable waters was not incon-

sistent with the Water Pollution Control Act, the River

and Harbors Act of 1899, or any other legislation yet en-

acted, thereby precluding the Court from accepting an

argument that the existing federal statute preempted a

federal common law of nuisance action.

In United States ex rel Scott v. United States Steel Corp.,

306 F. Supp. 56 (D.Ill. 1973), it was held that an Amend-

ment to the Federal Water Pollution Control Act (33

U.S.C. §1151 et seq.), giving the Environmental Protee-

tion Agency the power to adopt and enforce regulations

governing the pollution of interstate waters, did not pre-

ciude federal court jurisdiction of common law nuisance

suits involving interstate waters. In that case, the United

States and the State of Illinois filed a complaint which,

al

25

inter alia, claimed a federal common law right of action

in nuisance to abate an alleged pollution of Lake Michigan,

an interstate body of water. The Court concluded that it

did not find any provision in the amendment, which became

effective 12 days after the filing of the action, purporting

to abolish the federal common law of nuisance, but rather

it found an intention to supplement and amplify any pre-

existing remedies. It was hornbook law, the Court pointed

out, that statutes will not be construed in derogation of

common law unless such intent is clear. The Court ulti-

mately concluded that the plaintiff governments were free

to maintain such an action at least until the Environmental

Protection Agency had acted effectively in the area of reg-

ulating the pollution of interstate waters.

It is important to note that these three cases were com-

menced prior to the enactment of the MPRSA in 1972 and

the 1977 amendments of the FWPCA and also prior to the

time when the practical effects of the 1972 amendments of

the FWPCA could be felt. Also, since the plaintiffs in

these three cases were two states and the United States

Government, the Courts’ holdings that preemption did not

exist at that time should only be construed as favorable

to plaintiff governments.

The aforesaid holdings that federal common law nuis-

ance actions involving water pollution were not preempted

by then existing federal laws or regulations in that area

did not in any way present an absolute bar to federal pre-

emption in the future. Rather, these holdings looked to-

ward a time when federal laws and regulations would have

established a firm and effective network for the regula-

tion and prevention of pollution of interstate waters under

the auspices of the Environmental Protection Agency. It

is respectfully submitted that the statutory and practical

effect of the FWPCA 1972 and 1977 amendments and the

26

enactment of the MPRSA in 1974 is that the expectations

envisioned in the aforesaid holdings have now been realized.

Thus, the more firmly established and comprehensive

laws and regulations with respect to the prevention of

water pollution now on the books accompanied by an

effective enforcement arm in the EPA have precluded the

necessity for federal common law nuisance actions by

private citizens at this time. A cursory review of the

changes and enhancements to federal water pollution con-

trol legislation as it has evolved since 1972 clearly sup-

ports the contention that statutory preemption of common

law nuisance actions regarding water pollution should be

the norm, rather than the exception.

Prior to 1972, the extent of federal water pollution con-

trol was embodied in 33 U.S.C. (1970 ed.) §1151 et seg.

and Section 13 of the Rivers and Harbors Act of 1899, 33

U.S.C. §407. The essential thrust of this water pollution

legislation was the setting of ambient water quality stand-

ards to establish permissible levels of pollution in inter-

state waters, with the states being given primary respon-

sibility for developing said standards along with the im-

plementation and enforcement thereof. 33 U.S.C. (1970

ed.) §$1160(¢). The EPA did have the right to promulgate

its own water quality standards should a state either fail

to establish a water quality standard or to promulgate an

inadequate one. 33 U.S.C. (1970 ed.) $1160(e).

By the promulgation of the 1972 and 1977 amendments

to the FWPCA, the standards for elimination of water

pollution were changed, the regulatory and enforcement

process and procedures were more specifically defined and

tightened, and the role of the EPA therein was greatly

enhanced.

The specific statutory amendments are too numerous to

set forth herein and their significance relative to the prior

27

enactments would have to be emphasized in great detail.

Suffice it to say, however, that judicial notice will clearly

reveal that the overall scope and effect of the 1972 and

1977 FWPCA amendments far overshadow the legislative

scheme in effect prior thereto.

Of more significant impact to the case at hand was the

enactment of the MPRSA in 1972. The primary concern

of the MPRSA is the overail regulation of the dumping

of materials into ocean waters and the strict limitation

of the dumping of any materials which would “adversely

affect human health, welfare or amenities, or the marine

environment, ecological systems, or economic potentiali-

ties.” 33 U.S.C. $1401(b).

In order to affectuate the aforesaid policy, a dumping

permit program was established whereby the EPA would

be authorized to issue permits for dumping material into

ocean waters where the Administrator determined “that

such dumping will not unreasonably degrade or endanger

human health, welfare, or amenities or the marine en-

vironment, ecological systems or economic potentialities.”

33 U.S.C. §1412. Various criteria were established by which

the Administrator was to make this determination, 33

U.S.C. §1412(a) and authorization was given to the Ad-

ministrator to designate the site and time for dumping.

33 U.S.C. $1412(¢c). Pursuant to 33 U.S.C. §1412a, enacted

in 1977, the Administrator of the EPA was directed to

end the dumping of sludge into ocean waters as soon as

possible after the date of the enactment of that section, but

in no case could the Administrator issue any permit or

renewal thereof “which authorizes any dumping after

December 31, 1981.”

Consistent in scope and effect with the FWPCA are the

other provisions of the MPRSA, e.g., the detailed civil

28

and criminal sanctions for enforcement of the Act, §1415;

the interaction between the Administrator and the states

and the attendant rights and obligations of the parties

thereto, 33 U.S.C. §1416(d); the substantial funding pro-

grams established by the act for the purpose of the

design and creation of suitable land based alternatives

for the disposition of sewage sludge to be available at

the time when dumping is no longer permitted; and the

mandating of extensive and comprehensive research pro-

grams directed toward a further definition of the problems

inherent with dumping chemicals or toxicants into ocean

waters and the scientific, technological and economic factors

which go into the solution thereof.

The legislative format for the regulation and prevention

of water pollution as it stands now, compared with that

in existence at the time of the aforesaid Court decisions

regarding federal preemption in this area, Illinois v. Mil-

waukee, supra, United States v. Ira S. Bushey and Sons,

Inc., supra, and United States ex rel Scott v. United States

Steel Corp., supra, clearly exemplifies that type of federal

regulation and control of the pollution of interstate waters

called for by those decisions. Having reached the point

where the EPA has been given and has effectively assumed

the complete authority for the regulation and prevention

of water pollution through the promulgaticn of reguations

and the enforcement thereof, there is no longer a need

for actions by private citizens injured by violations of

the FWPCA or MPRSA, and regulations promulgated

thereunder, to be commenced other than through the citi-

zens’ suit framework and provisions emboé@i»! in those

Acts.

The conclusion that federal preemption of federal com-

mon law nuisance actions is now at hand is not in any way

lessened in effeet by the existence of the savings’ clauses

29

contained in the citizens’ suit provisions of the Acts. Hav-

ing come into effect at the time of the enactment of the

FWPCA and MPRSA, the savings’ clauses insured the

availability of alternative remedies outside the provisions

of the Acts, including, but not limited to, those available

at common law. The decisions noted herein also recognized

a need for such common law actions at that time. How-

ever, as we have noted, the practical application of the

regulatory and enforcement provisions contained in the

Acts has attained the stature envisioned at the time of the

enactment of the Acts. Thus, it is not inconsistent at this

point in time to preclude federal common law nuisance

actions as an available remedy under the savings’ clause

provisions of the Acts; their necessity is outdated and

their practical effect at this time would wreck havoe on

the strides taken and achieved by the EPA in its success-

ful task of regulating and preventing the pollution of our

waters.

CONCLUSION

For the reason stated, Petitioner respectfully prays

that the judgment below should be reversed in part

consistent with Petitioner’s stated position herein on the

questions for review as limited by this Court.

Respectfully submitted,

Grorce J. MinisH,

Counsel for Petitioner, The Joint

Meeting of Essex and Union

Counties,