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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1981
- **Citation:** 453 U.S. 1

## Text

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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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2305%3A05. Public record. Not legal advice.