Petition for Writ of Certiorari — Connor v. Aerovox Inc.

*

IN THE suerte cote Barut UNITED STATES

October Term, 199 9ffice - Supreme Court. US.

FILED

~ SEP 18 19K4

ALEXANDER L. STEVAS

CLERK

CHARLES J. CONNOR;

THOMAS VITAL;

FREDERICK STOWELL, JR.;

PAUL DUBOIS;

STEPHEN BOZA;

ROBERT SAKWA;

ANTONE FARIAS, JR.,

RICHARD J. PERZENTZ;

SCOTT FRYER; and

MASSACHUSETTS LOBSTERMEN'S

ASSOCIATION, INC.

Petitioners

VS.

AEROVOX INCORPORATED; and

CORNELL-DUBILIER ELECTRIC

CORPORATION

Ne ee a a ef ee SO Ye a ae a

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

LEONARD ROSE, Esq.

220 Scranton Avenue

Falmouth, MA 02540

(617) 548-7900

Attorney for Petitioners

Of Counsel:

ARNOLD L. LUM, Esq.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

CHARLES J. CONNOR;

THOMAS VITAL;

FREDERICK STOWELL, JR.;

PAUL DUBOIS;

STEPHEN BOZA;

ROBERT SAKWA;

ANTONE FARIAS, JR.;

RICHARD J. PERZENTZ;

SCOTT FRYER; and

MASSACHUSETTS LOBSTERMEN'S

ASSOCIATION, INC.

Petitioners

VS.

AEROVOX INCORPORATED; and

CORNELL-DUBILIER ELECTRIC

CORPORATION

NS] NS SY NS NS SS SS BH SS SY SB SY SY WS 8 SY SY WS SY SY

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

LEONARD ROSE, Esq.

220 Scranton Avenue

Falmouth, MA 02540

(617) 548-7900

Attorney for Petitioners

Of Counsel:

ARNOLD L. LUM, Esq.

QUESTIONS PRESENTED FOR REVIEW

(1) Did Congress, by enacting the

Federal Water Pollution Control Act

Amendments of 1972, and the Marine

Protection, Research and Sanctuaries Act,

preempt and bar all non-statutory maritime

tort cgunee of action by private victims

against all private polluters for damages

caused by marine pollution?

(2) Does the holding of the First

Circuit that "federal common law of nuisance

in the area of water pollution" is to be

read as being synonymous with "all federal

judge-made law of nuisance whether maritime

or general federal law" destroy the

distinctions between federal common law and

federal maritime law set forth in Article

III, Section 2, of the Constitution, and in

28 U.S.C. 1331 and 1333?

TABLE OF CONTENTS

Questions Presented For Review i

Table Of Contents ii

Table Of Authorities Cited iv

Opinions Delivered Below 1

Grounds For Jurisdiction 2

Text of Constitution And Statutes Involved

Constitution, Article III, Section 2

Title 28, U.S. Code, Section 1331

Title 28, U.S. Code, Section 1333

Title 33, U.S. Code, Section 1251,

> > & Ww

et seq.(reference only)

Title 33, U.S. Code, Section 1401,

et seq.(reference only) +

Statement Of The Case 5

Basis For Federal Jurisdiction

In The Court Of First Instance 15

ARGUMENT

I. The Rulings Below Were Believed

Il.

Iii.

To Conform To Existing Law

Established By The National

Sea Clammers Decision;

Not To Create New Thecries Of Law

For This Case. 16

It Is Important That This Honorable

Court Should Rule That The FWPCA And

Similar Statutes Do Not Exonerate

Polluters From Claims Of Direct

Victims. 21

The National Sea Clammers Case Is

Distinguishable On Its Facts And

Should Not Be A Precedent Here. 26

IV. Federal Admiralty And Maritime

Jurisprudence Is A Separate

Constitutional Jurisprudence Apart

From Federal Common Law. 32

V. Reversal Of The Rulings Below Will .

Have No Adverse Impact On The FWPCA,

And Will Not Be Inconsistent With

This Court's Holding In National

Sea Clammers. 37

VI. This Petition Is One In Which

Summary Action Is Warranted

To Reverse The Judgments Below. 40

APPENDIX

Memorandum and Order, District Court Al

Opinion, First Circuit Court of Appeals A3

Sketch, Fishing Closure Areas A33

Authorization to Discharge (sample) A34

TABLE OF AUTHORITIES CITED

U.S. Constitution

Article III, Section 2

(Text) ---' 2

--- ll, 15, 19,

33Statutes

Title 21, U.S. Code, Sections 301, 346

--- 6

Title 28, U.S. Code, Section 1254(1)

--- 2

Title 28, U.S. Code, Section 1331

(Text) --- 4

--- i, 19, 34, 35, 39

Title 28, U.S. Code, Section 1332

--- 15, 35, 36, 40

Title 28, U.S. Code, Section 1333

(Text) --- 4

S. 28. 834 B9e BOs BOe Dee Bee Be

Title 28, U.S. Code, Section 1346

; --- 28

Title 28, U.S. Code, Sections 1923, 1925

--- 36

Federal Water Pollution Control Act (FWPCA)

Title 33, U.S. Code, Section 1251 et seq.

Referred to generally throughout petition.

Marine Protection, Research and Sanctuaries

Act (MPRSA)

Title 33, U.S. Code, Section 1401 et seq.

Referred to generally throughout petition.

Regulations

Code of Massachusetts Regulations,

Chapter 105, Section 260.001

--- 6

Rules Of Procedure

Fed. R. Civ. P., Rule 12 (b)(6)

Fed. RR. Civ. Pe, Rule 23

Cases Cited

AMOCO CADIZ, Limitation Procs.

(CA7, 1983) 699 F2d 909

--- 28

Bay State Lobster Co., Inc. v. Perini Corp,

355 Mass. 782, 245 N.E.2d 759 (1969)

--- 27, 42

Burgess v. M/V TAMANO

(D.Me. 1973) 370 F. Supp. 247

; --- 27, 42

DeLovio v. Boit, 2 Gall. 298,

Fed.Cas.No. 3,776 (CCD Mass i815)

--- 33

Foremost Ins. Co. v. Richardson,

457 U.S. » ava wot. 196 (1982)

--- 34

Louisiana v. M/V TESTBANK

(ED La 1981) 524 F. Supp. 1170

--- 27

Middlesex County Sewerage Authority

v. National Sea Clammers Association,

Soa Uses £5 BUS Set. £015 (1981)

Referred to generally throughout petition

Romero v. International Terminal Co.

358 U.S. 354 (1959).

--- 34

Drilling Unit SEDCO 135, Limitation Procs.

(SD Tex 1982) 543 F. Supp. 561

--- 28

Silkwood, Adm'r v. Kerr-McGee Corp.

Gene , 104 §.Ct. 615 (1984)

haw 14, 39

TORREY CANYON, Limitation Procs.

(CA2, 1969) 409 F2d 1013

me 2?

U. S. v. F. G. Evans (The Blackheath)

195 U.S. 361 (1904)

won 33

U.S. v. Oswego Barge Corp.

(CA2 1981) 664 F2d 327

aoe 29

Other Authority Cited

Corpus Juris Civilis,

Digest 14, 2. 9

OPINIONS DELIVERED BELOW

At this time, the petitioners have been

unable to find any formal publication of the

opinion of the district court below, and

have also been unable to find any formal

publication of the opinion below of the

court of appeals for the first circuit.

Petitioners have made a Westlaw electronic

search of cases in the district court of

Massachusetts and in the court of appeals

for the first circuit, as well as a manual

search of American Maritime Cases, to no

avail.

+

GROUNDS FOR JURISDICTION

The original cause of action in the U.S.

District Court for the District of

Massachusetts was dismissed on 1 February

1983. The judgment of the U.S. Court of

Appeals for the First Circuit was entered on

28 March 1984, A timely petition for

rehearing was denied on 25 April 1984. A

motion to this Honorable Court for leave to

file the within petition on or before 22

September 1984 was allowed on 13 July 1984,

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONSTITUTION, ARTICLE III, Sec. 2

The judicial power shall extend to all

cases, in law and equity, arising under this

Constitution, the laws of the United States,

and treaties made, or which shall be made

under their authority;--to all cases

affecting ambassadors, other public

ministers and consuls;--to all cases of

admiralty and maritime jurisdiction;--to

controversies to which the United States

shall be a party;--to controversies between

two or more states;--between a state and

citizens of another state;--between citizens

of different states;--between citizens of

the same state claiming lands under grants

of different states, and between a state, or

the citizens thereof, and foreign states,

citizens or subjects.

3

Title 28, U.S. Code, Section 1331

The district courts shall have original

jurisdiction of all civil actions arising

under the Constitution, laws or treaties of

the United States.

Title 28, U.S. Code, Section 1333

The district courts shall have original

jurisdiction, exclusive of the courts of the

states, of:

(1) Any civil case of admiralty or

maritime jurisdiction, saving to suitors in

all cases all other remedies to which they

are otherwise entitled.

(2) Any prize brought into the United

States and all proceedings for the

condemnation of property taken as prize.

Federal Water Pollution Control Act

Title 33, U.S. Code, Section 1251 et seq.

Marine Protection, Research and Sanctuaries

Act.

Title 33, U.S. Code, Section 1401 et seq.

4

STATEMENT OF THE CASE

The trial court, on motion, dismissed the

complaint for failure to state a cause of

action for which relief could be granted.

Therefore, this statement is based upon a

reading of the complaint most favorably to

plaintiff-petitioners.

Petitioners-plaintiffs (hereinafter

plaintiffs) are fishermen, licensed by

Massachusetts to engage in a restricted

commercial lobster fishery, and the

Massachusetts Lobstermen's Association,

Inc., whose members comprise most of the

commercial Lebetetuen licensed by the

Commonwealth of Massachusetts. A class

action was also alleged, including within

the class all commercial lobstermen,

shellfishermen and finfishermen in the area

of the pollution complained of.

In the course of manufacturing operations

conducted continuously over a period of

years, the two defendants-respondents

(hereinafter defendants) Aerovox, Inc., a

Massachusetts corporation, and

Cornell-Dubilier Electric Corp., a Delaware

corporation, discharged and dumped into the

waters of the Acushnet River, New Bedford

Harbor and Buzzard's Bay, Massachusetts,

substantial quantities of toxic chemicals

and other pollutants, including a class of

organic chemicals characterized by molecular

configuration as polychlorinated biphenyls

(hereinafter referred to as PCBs).

Consumption of foods, including fish and

shellfish, containing measurable amounts of

PCBs is regulated by the Federal Food Drug

Administration (FDA) pursuant to 21 U.S.C.

cections 301 and 346, and by the

Massachusetts Department of Public Health

(MDPH) pursuant to Chapter 105 of the Code

of Massachusetts Regulations and by 105 CMR

260.001 et seq., in particular.

PCBs are highly stable compounds which do

not degrade quickly. They settle to the

6

seabed of the body of water into which they

are discharged, becoming incorporated into

the bottom sediments, where they remain for

decades without breaking down into less

harmful products. PCBs are ingested by

lobsters, snellfish, bottom feeding fish and

other filter-feeding benthyic organisms,

which accumulate the chemical in their

organs and tissue in concentrations in

excess of tolerance levels established by

the FDA and the MDPH. Lobsters, shellfish

and various bottom-feeding finfish with high

concentrations of PCBs in their flesh are

banned by both the FDA and MDPH as food for

human consumption, and therefore they may

not legally be sold by plaintiffs.

The PCBs discharged and dumped by the

defendants into the aforementicned waters

have become permanently fixed in the seabed

of those waters, where they have

contaminated the lobsters, shellfish and

bottom-feeding fish in the area. As a

result, the MDPH first closed the waters

: Z

ee

LL

north of the Hurricane Dike in New Bedford

Harbor (Area I) to the taking of lobsters

and shellfish; then closed the waters

generally south of Area I and north of a

line extending from Ricketson's Point in

South Dartmouth westerly to Wilbur Point on

Sconticut Neck (Area II) to the taking of

lobster or bottom-feeding fish (including

eels, scup, flounder and tautog); and

thereafter similarly closed the waters

generally south of Area II and north of a

line extending from Mishaum Point on Smith

Neck in the Town of Dartmouth north and west

to Gong "3" on Hursett Rock off New Bedford

Harbor and contiguous north and east to

Rocky Point and West Island in the Town of

Fairhaven (Area III). All of the closed

areas are in Massachusetts. [For a sketch

showing these areas, see Appendix at A33,

below. |]

Because of the closings of said areas to

lobstering and other fishing engaged in by

the individual plaintiffs, they and other

8

a a ee

commercial fishermen have been forced to

fish elsewhere. Those closed areas are the

best and most accessible areas for

lobstering, finfishing and shellfishing, and —

are where plaintiffs habitually conducted

their commercial lobstering, shellfishing

and finfishing activities in the past. With

each new closure, the plaintiffs have been

forced to travel further from port on each

fishing trip, have been forced to fish in

distant areas which are more treacherous by

reason of weather and sea conditions, and

have been subjected to greater stress on

themselves, their boats and equipment than

they were required to sustain before the

closure of the more sheltered waters of

Areas I, II and III. Moreover, since the

closures, they have been unable to carry on

lobstering, shellfishing and finfishing

operations with the same frequency and

regularity as in the past, because of the

more severe and prohibitive weather and sea

conditions in the areas outside of Areas Il,

2

II and III. Because plaintiffs have also

been unable to service their lobster pots or

fish traps as frequently because of the

greater distances from port, they have lost

gear to thieves and to the perils of the sea

more than in the past. As a result,

plaintiffs have had a substantial increase

in their costs and expenses of operations,

including much higher fuel costs, and have

not been able to take lobsters, shellfish

and finfish with the same quantitative or

financial success as they had when operating

in the safer, but now closed areas, and have

suffered great emotional stress and injuries

because of the greater risks and conditions

faced, all to their great damage.

The plaintiff Massachusetts Lobstermen's

Association, Inc. (hereinafter MLA), which

maintains a hull insurance program for its

members, has faced greater financial risks

by reason of the increased likelihood of

claims against its insurance policies

byplaintiffs and other of its covered

10

members who previously fished primarily in

the safei waters that are now closed to

them.

Because of the state of current scientific

and engineering knowledge, there is no

practical means to clean up Areas I, II-and

III to remove the toxic chemicals and other

pollutants, including PCBs, so that they may

be reopened and plaintiffs may go back to

commercial fishing there within the

foreseeable future. Their injuries are thus

permanent.

On 31 December 1980, plaintiffs filed suit

in the United States District Court for the

District of Massachusetts against Aerovox,

Inc. and Cornell-Dubilier Electric Corp.

The action was grounded in maritime tort

allegations and was filed within the

admiralty and maritime subject matter

jurisdiction of the district court.

Jurisdiction was invoked pursuant to Article

III, Section 2 of the United States

ll

Constitution and 28 U.S.C. 1333. Plaintiffs

also claimed a class action under Fed. R.

Civ. P. Rule 23, on behalf of all other

lobstermen, shellfishermen and finfishermen

who have maritime tort claims against the |

defendants on similar facts.

-

During the pendency of the action in the

trial court, this Honorable Court decided

the case of Middlesex County Sewerage

Autnority v. National Sea Clammers

Association, 453 U.S. 1, 101 S&S. Ct. 2615

(1981)(hereinafter National Sea Clammers).

The defendants filed a motion to dismiss for

failure to state a claim upon which relief

could be granted, pursuant to Fed. R. Civ.

P. Rule 12(b)(6), citing the National Sea

Clammers decision. The trial court granted

the motion to dismiss, holding that

pollution of navigable waters was

comprehensively regulated by the Federal

Water Pollution Geatrai Act, 33 0.8.6.

Section 1251 et seq., and the Marine

Protection, Research and Sanctuaries Act, 33

12

U.S.C. Section 1401 et seq., and that all

nonstatutory causes of action by private

victims against marine polluters, including

maritime tort actions, had been thereby

preempted, citing as its authority this

Honorable Court's opinion in National Sea

Clammers.

Plaintiffs timely appealed to the United

States Court of Appeals for the First

Circuit, claiming that the district court

had misinterpreted this Honorable Court's

holding in National Sea Clammers. The Court

of Appeals, characterizing the plaintiffs'

claim as one based on nuisance, albeit in

maritime tort, held that the FWPCA and MPRSA

preempted all "federal judge-made law" on

the subject, including both maritime and

non-maritime nuisance claims in the area of

water pollution, and affirmed the holding of

the district court.

Plaintiffs timely filed a petition for

rehearing, citing this Honorable Court's

13

OE

opinion in Silkwood, Adm'r. v. Kerr-McGee

Corp., U.S. ,104 S. Ct. 615 (1984),

which was decided after briefs and oral

argument had been submitted to the Court of

Appeals. Plaintiffs argued for rehearing on

the ground that a finding of comprehensive

preemption should not be made where the

cited federal statutes only provided for the

regulation of standards for discharge of

toxic wastes and for limited federal

recovery of cleanup costs .

On April 25, 1984, the Court of Appeals for

the First Circuit denied plaintiffs'

petition for rehearing.

BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

Jurisdiction of the United States District

Court for the District of Massachusetts was

invoked on the basis of Article III, Section

2 of the U. S. Constitution, and Title 28,

U.S. Code, Section 1333. The plaintiffs’

claims were stated solely as causes of

action under federal admiralty law and

characterized as maritime tort claims.

Diversity of citizenship was lacking, so

there was no concurrent jurisdiction of the

court under Title 28, U.S. Code, Section

1332.

ARGUMENT

I.

The Rulings Below Were Believed To

Conform To Existing Law Established

By The National Sea Clammers Decision;

Not To Create New Theories Of Law

For This Case

The lower courts in this case held that

private victims of water pollution caused by

private polluters have no legal remedies

available to them in federal or state courts

for their direct damages, because the

Federal Water Pollution Control Act

(hereinafter FWPCA), 33 U.S. Code 1251 et

seq, and the Marine Protection, Research and

Santuaries Act (hereinafter MPRSA), 33 U.S.

Code 1401, et seq., have preempted "all

federal judge-made law of nuisance whether

maritime or general federal law."

The basis for the lower courts' holdings is

the opinion handed down in National Sea

Clammers by this Honorable Court. It is

respectfully submitted that the courts below

misunderstood the scope of the opinion of

this Honorable Court and failed to take into

account the foreseeably adverse consequences

of their rulings. If the legal precedents

created by the opinions below are not

reversed, the adverse effects on victims of

water pollution will be pervasive and

substantial.

The rulings of the courts below are

predicated upon their belief that this

Honorable Court in National Sea Clammers

proclaimed three compelling legal

propositions; two having the potential of

leaving victims of deliberate, widespread

harm without a remedy, and the third having

‘the potential of causing extensive

procedural confusion in the federal district

courts, as follows:

1) Private polluters may discharge and dump

toxic wastes into public waters and may even

immerse private victims in toxic wastes,

severely injuring them in their persons and

in their property, and for such injuries

those victims may have no legal remedy in

17

ee

federal or state courts against the

polluters.

2) The FWPCA operates to set a preemptive

federal limit on the economic incentives and

sanctions that may be imposed on private

polluters to control their own toxic

discharges. Under the Act, polluters have

no motivation to prevent or to clean up the

pollution they generate, since (a) they are

not vulnerable to any economic pressure in

the form of legal liability to direct

victims of their actions, and (b) they are

subject only to limited liability to the

government for the costs of cleaning up all

of the pollution that they create. As long

as the limited maximum amount of statutory

clean-up costs that are assessable against

them by the federal government are less than

the costs of eliminating the pollution that

they cause, and as long as they can derive

more profits by continuing to extend their

water polluting activities within their

permits, it makes no legal or economic sense

18

eater

en eee

for water polluters to reduce or eliminate

any part of pollution that they generate, no

matter how large. In fact, it makes more

economic sense for them to maximize their

activities, even though they cause extensive

pollution thereby, because they will be able

to spread over more of their work product

the limited clean-up costs that can be

imposed by the government.

3) The doctrine of statutory preemption now

nullifies any and all of the jurisdictional

distinctions of the federal Judicial Power

subject matter jurisdiction stated in

Constitution Article III, Section 2, and in

Title 28 of the U.S. Code. Any federal

statute that preempts federal common law in

cases that fall exclusively within the

subject matter jurisdiction of the district

courts under Title 28, U.S. Code, Section

1331, equally preempts judge-decided federal

admiralty and maritime law in admiralty

cases that fall exclusively within the

subject matter jurisdiction of the district

courts under Title 28, U.S. Code 1333,

[Whether an admiralty law statute that

preempts general (i.e., "judge-made")

ee

maritime law also preempts federal common

law that falls under the same topic is not

yet clear. ]

The petitioners represent to this Honorable

Court that they believe that the foregoing

propositions are the essence of the lower

courts’ holdings in this case. The

ramifications of those propositions are

obviously far-reaching. What is more

important to note, however, is that the

lower courts did ine intend to create any

new legal theories in order to arrive at

those three propositions. They simply

stated that they were conforming to what

they believed this Honorable Court declared

in National Sea Clammers. This present

petition, therefore, really does not seek to

contest the validity of new propositions of

law created by the lower courts. Instead,

this petition asks whether this Honorable

20

Court meant to have its opinion in Nationgl

Sea Clammers thus interpreted by the courts

below. Because of the enormous potential

impact of the lower court rulings,

petitioners believe that a writ of

certiorari should be granted in this case.

Ii.

It Is Important That This Court

Should Rule That The FWPCA And

Similar Statutes Do Not Exonerate

Polluters From Claims

Of Direct Victims

The petitioners suggest that, for the

purposes of the within petition, the FWPCA

and MPRSA can be characterized as federal

legislation that was intended to set basic

standards by which clean public waters can

be achieved throughout the nation. The acts

empower administrative agencies by a permit

process to limit the amount and kind of

toxic wastes that may be discharged into

public waters by private polluters. The

FWPCA also empowers the federal government

to a limited extent to sue for and collect

from private polluters the federal costs of

cleaning up pollution in public waters

generated by then.

Reading the National Sea Clammers case to be

applicable and compelling, the lower courts

declared that because the FWPCA and MPRSA

provided for legal standards for polluting

discharges and empowered the federal

government to recover clean-up costs up to a

limited maximum amount, the preemption of

the two statutes must be regarded as

pervasive and complete in respect to any

claim that falls within the topic of water

pollution. Accordingly, they ruled that

private victims of such pollution now have

no remedy for the direct damage done to them

by any water pollution for which the federal

government may recover clean-up costs.

With respect, it is suggested that the

courts below extended beyond reason the

doctrine of preemption as applied in the

National Sea Clammers case. A preferred

view of the FWPCA and related acts should be

en

that they establish a frame of reference for

the withholding of criminal sanctions in

respect to toxic discharges into waters

subject to the acts. A polluter's formal

application for a permit to discharge is .

disclosure and a promise that toxic

discharges will not exceed a specific kind

and level. The permit serves as a

governmental declaration that if an

applicant's toxic waste discharges do not

exceed the kind and amount specified, the

polluter will not be charged with criminal

violation of the acts. The purposes of the

acts are served and a polluter is assured

that if he remains within the limits thus

set, he need not fear criminal prosecution.

Nothing in such a permit process is aimed at

dealing with the rights of victims, since

polluters do not as part of an application

disclose who will or may be directly

victimized by their toxic discharges. In

fact, it is arguable that most polluters

will not even know who may become a victim

bane Delsentitenas inate eee

ee ee ee

of their toxic discharges. For example, if

the toxic PCB wastes of the polluters in the

present case have found their way into the

underground fresh water tables of the

surrounding communities of New Bedford and

Fairhaven, a substantial number of persons

who are served by wells on their preperty

may have consumed large quantities of PCBs

and are victims of the polluters'

activities. If the permit process is

intended to give a carte blanche to

polluters to destroy their neighbors'

drinking water supplies with impunity, the

process is a vicious form of free enterprise

that petitioners have assumed to be long

dead. Such a version of the permit process

is hardly regulatory; it is truly

permissive! Petitioners ask this Honorable

Court to take judicial notice of the fact

that permits now issued by governmental

agencies do not purport to exonerate

permittees from civil liability to those

injured by their actions, which would be the

24

case if total exoneration were to be

accomplished by the acts. [For an example

of this, see a copy of a permit issued to

one of the polluters in the present case, at

Part II, B6, B8, and BY of the permit, found

at Appendix A34, at A40 and A4l, below. ]

If their opinions are not overruled, the

effect of the opinions and judgments of the

courts below in this case will be to impose

a heavy burden on direct victims of

pollution and to offer to polluters new

opportunities to create mischief and

confusion. Moreover, if the lower courts'

reading of this Honorable Court's holding in

National Sea Clammers is correct, it seems

to be inevitable that whatever progress has

been made in cleaning up the waters of our

nation will be lost. Since it is obvious

that that cannot have been the purpose of

Congress in enacting the FWPCA, it must

necessarily follow that the lower courts'

views are incorrect. A detailed analysis of

the reasoning employed by the lower courts

25

all scala —————— _ —

is not necessary in order to reach such ga

conclusion. What is needed only is for this

Honorable Court to consider whether its

holding in National Sea Clammers was

intended to have the effect given to it by

the courts below.

Iil.

The National Sea Clammers Case Is

Distinguishable On Its Facts, And

Should Not Be A Precedent Here.

There are distinct differences between the

factual and procedural elements of National

Sea Clammers and the case now before this

Honorable Court.

The petitioners herein brought an action for

a money judgment remedy sader the federal

maritime law, pursuant to Title 28, U.S.

Code, Section 1333. They are private

victims suing for direct damages sustained

by them from pollution generated by the

defendants. No governmental agencies are

parties to the present case. No legal

challenge to any government action under the

26

a

PON LON ER NO Og aI Om

FWPCA is involved in this case. No clean-up

action or clean-up damages are sought by the

petitioners. The petitioners made no claim

as private attorneys-general, and no claim

for damage to the public's interest in the

fisheries was asserted. No remedy which is

available under the FWPCA is being sought by

the petitioners. The legal precedent for

their cause of action is in maritime cases

such as Burgess v. M/V TAMANO (D. Me, 1973)

370 F. Supp. 247; Louisiana v. M/V TESTBANK

(ED. La, 1981) 524 F. Supp. 1170; U.S.v.

Oswego Barge Corp. (CA2, 1981) 664 F.2d 327.

See also Bay State Lobster Co., Inc. v.

Perini Corp., 355 Mass. 782, 245 N.E. 2d 759

(1969). Other precedents are inherent in

the limitation of liability proceedings

brought pursuant to Title 46, U.S. Code 181

et _seq., especially in massive oil spill

cases, such as the M/V Torrey Canyon

disaster in March 1967 --see TORREY CANYON

Limitation Procs., (CA2, 1969) 409 F2d 1013;

or the the IXTOC I disaster in the Gulf of

Mexico --see Drilling Unit SEDCO 135

Limitation Procs., (SD Tex, 1982) 543

F.Supp. 561; or the M/V Amoco Cadiz

disaster of the coast of France --see AMOCO

CADIZ, Limitation Procs., (CA7, 1983) 699

F2d 909. The petitioners’ cause of action

is not different from any oil or chemical

spill damage case brought by a victim

against water polluters.

In National Sea Clammers, the plaintiffs

sought a remedy under the FWPCA and MPRSA,

but claimed that they could come within the

FWPCA under a theory of fedéral common law

of nuisance. However, since the plaintiffs

had failed to comply with the procedural

requirements of the Federal Water Pollution

Control Act, they could not claim a remedy

under the FWPCA. Furthermore, since the

plaintiffs had not complied with the

procedural requirements of the Federal Tort

Claims Act, Title 28, U.S. Code, Section

1346, or of any applicable state tort claims

act, they could not seek a remedy pursuant

to federal maritime law against the

defendant government agencies in that case.

This Honorable Court expressly noted in

National Sea Clammers that the plaintiffs |

ee ante by hh cael

had asserted no claims under the federal

admiralty and maritime laws in the court of

first resort. Also, in National Sea

Clammers, the plaintiffs apparently sought

damages for the loss of a public resource,

as opposed to their own personal damages.

Their case was more in the nature of a

private attorneys general suit to recover

damages suffered by the public; although it

is not clear to the petitioners herein

exactly what the plaintiffs in National Sea

Clammers expected would be the manner of

collection and distribution of damages in

the event that the plaintiffs prevailed in

that case, since any judgments against the

defendant public agencies in favor of the

public incerest would be both payable from

and back to public treasuries.

In National Sea Clammers, it appears that

the plaintiffs ignored clearly safe courses

through the well-marked procedural channels

of the FWPCA and federal/state tort claims

acts, and attempted to sail their case in

uncharted areas which were demarcated as

being within the domain of the federal

common law of nuisance. In so doing, they

ignored the admonition that when the depth

of the water is exceeded by the draft of

one's boat, one is aground. They were not

capsized by contrary winds of maritime law,

nor did their cause founder upon any

doctrinal reefs of the FWPCA or of the

federal/state tort claims acts. Their case

was lost when the plaintiffs failed to

recognize that the laws of the shore serve

needs that are different from those of the

sea. As a result, they navigated by

landmarks that were located well within the

inland territory of the common law, and

drove themselves hard upon a rocky beach

where natural forces destroyed then.

Had the plaintiffs in National Sea Clammers

sought a remedy under the FWPCA or under

federal maritime law pursuant to the

federal/state tort claims acts, it may well

be that this Honorable Court would have

dealt less summarily with the claims made =

them. The petitioners do not here contend

that this Court was in error or unreasonable

in disposing of National Sea Clammers on the

grounds stated. To the contrary,

petitioners respectfully acknowledge the

correctness of the judgment of this Court in

that case. Clearly, in National Sea

Clammers, the plaintiffs sought relief under

a far-fetched theory, while they ignored

obvious remedies and legal precedents that

were readily available to them under the

FWPCA and under federal maritime law. The

petitioners’ only contention here is that in

deciding the National Sea Clammers case,

this Honorable Court's opinion was stated in

terms that have been misinterpreted by the

lower courts in cases involving maritime

claims of private water pollution victims

Peeneetemeny ante titimethlaniiiien btedie te »

against private polluters, and there is an

urgent need for clarification of the

National Sea Clammers holding in order to

prevent further misinterpretation with all

of the foreseeably adverse consequences

thereof.

For the foregoing reasons, it is

respectfully submitted that National Sea

Clammers should not be treated as a

precedent and should not be deemed to be

dispositive of the issues in the present

case before this Court, and that this

Honorable Court should grant a writ of

certiorari herein in order to make a ruling

to that effect to guide the lower courts.

IV.

Federal Admiralty And Maritime

Jurisprudence Is A Separate

Constitutiscaal Jurisprudence

Apart From Federal Common Law

Even in the formative years of the law, the

need for different rules to govern land

matters and maritime issues was always

recognized. In his Corpus Juris Civilis,

the Emperor Justinian declared;

"Ego orbis terrarum dominus sum, lex autem

maris. Lege Rhodia de re nautica iudicetur,

quatenus nulla lex ex nostris ei contraria

est." (Digest 14.2.9.)

The need to preserve the separate status of

admiralty and maritime law was recognized in

the Constitution, Article III, Section 2.

In the formative years of admiralty

jurisprudence in the United States, in the

landmark case of DeLovio v. Boit, 2 Gall.

298, Fed Cas. No. 3,776 (CCD Mass. 1815),

Judge Story discussed the ancient history

of this separate jurisprudence. In this

century, Justice Holmes, in U.S. v. F.G.

Evans (The Blackheath), 195 U.S. 361, 365

(1904) made clear that the grant of

admiralty jursdiction in Article III,

Section 2, of the Constitution is fixed in

scope by the Constitution and cannot be

enlarged by statute. In current times, this

Honorable Court has continued to recognize

the status of the admiralty and maritime

a i a ce ee eet oe

jurisprudence as separate and distinct under

the Constitution. Foremost Ins. Co. v.

Richardson, 457 U.S. ~ £03 $.Ct

198(1982).

In Romero v. International Terminal Co., 358

U.S. 354 (1959), at 364-368, 370, Justice

Frankfurter pointed out that the Framers of

the Constitution used precise,

differentiating and not redundant language,

and that "cases in admiralty" within the

scope of Title 28, U.S. Code, Section 1333,

are not of the same class as "cases arising

under the laws and Constitution of the

United States," within the scope of Title

28, U.S. Code, Section 1331.

The courts below in this case have declared

that cases of "judge-made" federal common

law are of,the same class as cases of

"judge-made" admiralty law, and that there

is no distinction to be made between then.

If that is true, the language of Title 28,

U.S. Code, Sections 1331 and 1333 must be

34

aS SSeS eR hESC

a rn

regarded as redundant, notwithstanding

Justice Frankfurter's views of the

Constitution. It must be equally true that

federal courts of first resort asserting

jurisdiction in admiralty cases involving

"judge-made law" may do so under the

provisions of Title 28, U.S. Code, Section

1331, without regard to the grant of

subject-matter jurisdiction in Section 1333.

And it must also follow that the right of a

jury trial, which is not ordinarily

available under the general maritime law in

cases filed pursuant to Title 28, U.S. Code,

Section 1333, will now be available in all

admiralty cases that are filed pursuant to

Title 28, U.S. Code, Section 1331.

The courts below did not deal with the

obvious permutations of their ruling that

all “judge-made law" cases are the same.

For example, the effect of Title 28, U.S.

Code, Section 1332, which includes a wide

variety of civil "“judge-made law" cases

within its scope, becomes uncertain. If a

Daa rg a hs ks ech peau ee sage eer ae anata Pa

|

)

suit involving a civil claim arising under

this Court's interpretation of the

.Constitution is filed in a federal district

court, does the happenstance that the

litigants are citizens of different states

make Section 1332 concurrently applicable

and impose a $10,000 minimum damages

limitation on the subject matter

jurisdiction of the district court?

Another problem could involve the

application of Title 28, U.S. Code, Sections

1923 and 1925, which deal with docket fees

and costs of briefs, as well as the

allowance and taxation of costs in admiralty

cases. If admiralty cases involving

"judge-made law" are the same as cases

arising under Title 28, U.S. Code 1331, then

there are no cases that can be categorized

as being admiralty cases for purposes of

Sections 1923 and 1925.

The lower courts’ ruling in this case create

a number of other paradoxes and sources of

confusion in the field of admiralty claims,

which need not be elaborated upon in this

petition but which will be obvious to this

Honorable Court. The petitioners

respectfully submit that similar paradoxes

and confusiou may plague the lower courts in

non-admiralty claims in other federal

"judge-made law" fields if the rulings of

the courts below in the present case are not

reversed. For those reasons, too, a writ of

certiorari should be granted herein.

V.

Reversal Of The Rulings Below

Will Have No Adverse Impact

On the FWPCA And Will Not Be

-Inconsistent With This Court's

Holding In National Sea Clammers

The effect of the rulings below has been to

create a radical departure from historic

principles of substantive and procedural

law, which undoubtedly will have a major

adverse economic impact upon victims who

have already been physically and

psychologically traumatized by the impact of

waterspollution. A reversal of the rulings

below will simply restore the status quo in

which victims of water pollution have the

right to sue polluters for the damage they

have suffered. The purposes and operation

of the FWPCA and MPRSA will not be affected

in any way. In fact, those acts and all

similar legislation will be supplemented by

the economic effect of victims’ civil suits

for pellution damage, which will force the

polluters to internalize the costs of their

pollution, despite their immunity to

criminal prosecution for pollution within

permitted limits.

A reversal of the rulings below will not be

inconsistent with this Honorable Court's

opinion in National Sea Clammers, since the

way will still be closed to private

attorneys general suits that do not comply

with the, statutory procedural requirements

of the FWPCA or federal/state tort claims

acts andtthat are not suits within the

traditional admiralty and maritime

' jurisdiction of the federal courts or within

the traditional common and statutory law

duriedictios of the state courts. For

example, pcellution damage to private or

public drinking water resources is not

damage that pertains to traditional maritime

activity. Thus, a maritime cause of action

will not lie for such damage, and no forum

for such an action will be available in a

federal district court under Title 28, U.S.

Code, Section 1333. Similarly, by virtue of

National Sea Clammers, a federal common law

cause of action will not be available in a

federal district court under Title 28, U.S.

Code, Section 1331, because of this Court's

ruling in National Sea Clammers that

Congress by the FWPCA preempted federal

common law remedies for water pollution.

However, under the qualifying opinion of

this Honorable Court in Silkwood, Adm'r v.

Kerr-McGee Corporation, U.S. » 104

S.Ct 615 . 984), the holding in National Sea

Clammers can be read as saying the the FWPCA

preempted only federal common law remedies

an ee rte 2 em AER en aE te RE RL ET STE ENTE STIR LER: NT ER: TTT, RTE TRIS COSA TI — REIT

of pollution victims, but did not preempt

any traditional federal admiralty or state

statutory or common law remedies of such

victims. Thus, a state common law action

will still exist for such water pollution

damage, and a state forum will be available

under state law, with a federal forum

available under Title 28, U.S. Code, Section

1332, in diversity cases, without doing any

violence to the purposes or application of

the FWPCA or to the holding of National Sea

Clammers. Therefore, once again, the

petitioners respectfully submit that a writ

of certiorari should be granted and the

rulings below should be reversed.

VI.

This Petition Is One In Which

Summary Action Is Warranted To

Reverse The Judgments Below

As is argued above, the overall question

that is being presented to this Honorable

Court is whether the Court meant to have its

opinion in National Sea Clammers interpreted

in the manner adopted by the lower courts in

——————————————

this case. Did this Court intend to hold

that substantive rights of private victims

of private polluters were taken away by

Congress by means of the FWPCA?

This Court knows what it intended to say in

National Sea Clammers, and does not need to

have National Sea Clammers reargued in order

to be able to clarify its opinion. If this

Court is inclined to declare that it did not

intend to have its opinion in National Sea

Clammers interpreted to equate federal

common law and federal admiralty and

maritime law or to treat them as being one

and the same thing, then. it appears that the

within cause is ripe for summary action to

reverse the judgments below.

If there has been no preemption of victims’

rights to a maritime tort cause of action

and money judgment remedy under federal

admiralty and maritime law and/or to any

State statutory or common law right and

remedy concurrently available, then there

41

EE

are existing noncontroversial doctrines of

federal admiralty law and Massachusetts

common law, such as are described in Burgess

v. M/V TAMANO, supra, and in Bay State

Lobster Co., Inc. v. Perini Corp., supra,

which upon the facts of the within case

entitle the several plaintiffs to prevail

individually and in their class action on

the issue of liability.

What is before this Honorable Court is a

case which, except for the apparent

interdictive effect of the lower courts'

interpretation of National Sea Clammers,

would not have been subject to dismissal for

failure to state a cause of action for which

relief may be granted. If this Court

declares that no such interdiction of

victims’ rights was intended, no further

grounds are needed by this Honorable Court

in order for it to be able to reverse and

remand for reinstatement and further

proceedings in the district court.

ss...

Petitioners respectfully suggest that it

would be presumptuous for them or for the

respondents to brief and to argue to this

Honorable Court what its intentions were in

National Sea Clammers. Clarification of the

Court's opinion is needed, because, without

clarification, widespread confusion and harm

may occur. But that clarification may well

be provided, if the Court sees fit, by a

Summary opinion which removes the apparent

interdiction of the petitioners" cause of

action in the district court. By taking

summary action, the Court will save time and

reduce its own heavy burdens, and will allow

the petitioners’ cause of action to proceed

expeditiously, so that they may obtain the

remedies they so sorely need.

Respectfully submitted,

LEONARD ROSE, Esquire

Petitioners’ Attorney

220 Scranton Avenue

Falmouth, MA 02540

(617) 548-7900

Of Counsel:

ARNOLD L. LUM, Esquire

MEMORANDUM AND ORDER

February 1, 1983

SKINNER, D. J.

Plaintiffs, licensed commercial

lobstermen, shellfishermen and fishermen,

and the Massachusetts Lobstermen's Assoc.

Inc., bring this action for damages against

defendants Aerovox, Inc. ("Aerovox") and

Cornell-dubilier Electric Corp., Inc.

("CDE") alleging that the defendants have

deprived plaintiffs of their trade by

discharging toxic chemicals into the waters,

contaminating the shellfish, and causing the

waters to be closed to commercial fishing.

The case is presently before the court on

defendants" motion to dismiss pursuant to

Fed.R.Civ.P 12(b)6.

Pollution of navigable waters has

been addressed by Congress in the Federal

Water Pollution Control Act ("FWPCA"), 33

U.S.C. Section 1251 and by the Marine

Protection Research, and Sanctuaries Act of

1972 (MPRSA"), 33 U.S.C. Section 1401 (1976

ed. and Supp. III). In Middlesex Country

Sewerage Authority v. National Sea Clammers

Assoc., 453 U.S. 1 (1981), the United States

Supreme Court belé that FWPCA and MPRSA (1)

provide no private right of action for

damages, and (2) preempt the federal common

law of nuisance in water pollution cases.

Plaintiffs have framed their claims as

maritime torts, thus seeking to avoid the

precise holding of Sea Clammers. The Court

in Sea Clammers based its decision of what

is perceived to be the intent of Congress

"to establish an all-encompassing program of

water pollution regulation.” Milwaukee v.

Illinois, 451 U.S. 304, 318 (1981). There

is no perceptable reason to distinguish

between common law claims and maritime torts

in construing the "all-encompassing" and

preemptive effect of the statutes.

Accordingly, defendants’ motion to dismiss

is ALLOWED.

/s/ Walter Jay Skinner

/s/ United States District Judge

FAIRCHILD, Senior Circuit Judge,

Plaintiffs, licensed commercial lobstermen,

shellfishermen, and fishermen, and the

Massachusetts Lobstermen's Association, Inc.

{fnl]} appeal from a judgment dismissing

their maritime tort claim for alleged damage

to fishing grounds caused by discharges of

toxic substance. [fn2] Relying on Supreme

Court decisions in Milwaukee v. Illinois,

451 U.S. 304 (1981) (Milwaukee County

Sewerage Authority v. National Sea Clammers

Assn., 453 U.S. 1 (1981) (Sea Clammers), the

cistrict court concluded that maritime tort

claims for damages resulting from water

pollution, based on a nuisance theory, have

been, like federal common-law nuisance

claims for such damages, preempted by

enactment of the Federal Water Pollution

Control Act (FWPCA), [fn3] 33 U.S.C. Section

1251 et seq., and the Maritime Protection,

Research, and Sanctuaries Act of 1972

(MPRSA), 33 U.S.C. Section 1401 set seq,

For the reasons that follow, we affirm.

Plaintiffs allege in their complaint

that defendants Aerovox, Inc. and |

Cornell-Dubilier Electrical Corporation

discharged "substantial quantities of toxic

chemicals, heavy metals and other

pollutants, including quantities of ...

polychlorinated biphenyls (PCBs), "into the

Acushnet River, New Bedford Harbor, and

Buzzards Bay in southern Massachusetts; that

these pollutants settled on the seabed and

have accumulated in high concentration in

shellfish and botto.-feeding fish prompting

the Massachusetts Department of Public

Health to restrict commercial fishing in

those areas; and that these restrictions

have forced plaintiffs to fish in more

remote, hazardous waters increasing their

risks and costs while reducing the size of ©

their catch. Plaintiffs brought suit

invoking admiralty and maritime jurisdiction

| ee: een

and claiming damages from defendants'

discharges to be at least $20,000,000.00.

Defendants moved to dismiss the

complaint on the ground that it failed to

state a claim upon which relief could be

granted.[fn4] Defendants contended that

discharges of pollutants into interstate and

coastal waters are regulated under FWPCA and

MPRSA, and, consistent with Milwaukee II and

Sea Clammers, not properly the subject of

maritime law damage claims based on public

ruisance principles.

In reply to defendant's motion to

dismiss, plaintiffs conceded that FWPCA and

MPRSA preempted the federal common law of

nuisance in water pollution cases, but

contended a claim for damages under federal

maritime law survived enactment of the

Statutes. The district court disagreed. The

court found "no perceptible reason to

distinguish between common law claims and

maritime torts in construing the...

preemptive effect of [FWPCA and MPRSA].

As argued by the parties, we are

presented with the same narrow issue

addressed by the district court: whether

maritime law is preempted by enactment of

FWPCA and MPRSA to the extent it would

afford a damage remedy for pollution of

navigable waters based on a common-law

nuisance theory.

II.

In Milwaukee II, the Supreme Court

considered a suit by the State of Illinois

to enjoin various Wisconsin municipalities

and county sewerage commissions with respect

to discharges of sewage into Lake Michigan.

Suit was based on the federal common law of

nuisance recognized by the Court in Illinois

v. Milwaukee, 406 U.S. 91 (1972) (Milwaukee

I), as controlling water pollution disputes

interstate in character. When Milwaukee I

was decided, the Court acknowledged that

"new federal laws and new federal

regulations may in time preempt the file of

federal common law of nuisance." 406 U.S.

at 107. Five months later Congress passed

the Federal Water Pollution Control Act

Amendments of 1972 (the 1972 Amendments), 86

Stat. 816.

In deciding whether this enactment

preempted the federal common law of

nuisance, upon the basis of which an

injunction had been granted to Illinois, the

Milwaukee II Court emphasized the paramount

nature of the authority of Congress with

respect to common law. "Federal common law

is a ‘necessary expedient,’ and when

Congress addresses a question previously

governed by a decision rested on federal

common law the need for such an unusual

exercise of lawmaking by federal courts

disappears." 451 U.S. at 314 (citation

omitted). One of the principal decisions

relied on by the Court for this proposition

was Mobil Oil Corp. v. Higginbotham, 436

FF

618 (1978), a case involving a claim

for damages under admiralty law.

In [Mobil Oil], the Court

refused to provide damages for

"loss of society" under the general

maritime law when Congress had not

provided such damages in the Death

on the High Seas Act:

"We realize that, because

Congress has never enacted a

comprehensive maritime code,

admiralty courts have often

been called upon to supplement

maritime statutes. The Death

on the High Seas Act, however,

announces Congress' considered

judgment on such issues as the

beneficiaries, the limitation

period, contributory

negligence, survival, and

damages... The Act does not

address every issue of

wrongful-death law, ... but

when it does speak directly to

a question, the courts are not

free to ‘'supplement' Congress'

answer so thoroughly that

the Act becomes meaningless."

Id., at 625.

451

oSe

Thus the question was whether the

legislative scheme "spoke directly

to a question" -- in that case the

question of damages -- not whether

Congress had affirmatively

proscribed the use of federal

common law.

et Jids

With this question in mind, the

Court concluded the 1972 amendments

supplanted federal common law, at least as a

source of restrictions on discharges of

sewage. The Court found that Congress had

"occupied the field" of water pollution

abatement “through the establishment of a

comprehensive regulatory program supervised

by an expert administrative agency." Id. at

317.

Milwaukee II might have been read to

hold no more than that FWPCA preempts the

authority of a district court to impose

under federal common law or nuisance more

stringent limitations on effluents than

those promulgate by EPA under the Act. But

the Supreme Court made clear in Sea Clammers

that this is too narrow a reading of the

Milwaukee II decision.

Sea Clammers presented the Supreme

Court with a factual setting quite like that

of the present case. Plaintiffs, an

organization whose members harvest fish and

shellfish off the coast of New York and New

Jersey and one of its members, brought suit

in federal district court alleging that

defendants' discharge cof sewage into the

Hudson River and New York Harbor was

polluting the Atlantic Ocean and causing the

"collapse of the fishing, clamming and

lobster industries which operate in [those]

waters."[fn5] 453 U.S. at 5. Among other

legal theories, plaintiffs sought injunctive

and declaratory relief and damages through

implied rights of action under FWPCA and

MPRSA, in federal common law of nuisance,

and in maritime tort.

The district court rejected each of

these claims. In particular, the court

refused to imply remedies not provided under

the Acts, rejected the common law of

nuisance claim as unavailable to private

parties, and found that the maritime claim

10

had been inadequately pled. The Third

Circuit reversed, upholding all three bases

for suit. See National Sea Clammers Assn.

vy. City of New York, 616 F.2d 1222 (3rd Cir.

1980). The Supreme Court made a limited

grant of certiorari.

The Court rejected the possible

existence of an implied right of action

under the Acts. As to the question of a

common law nuisance Claim, the Court

explained that Milwaukee II held "the

federal common law of nuisance in the area

of water pollution is entirely preempted by

the more comprehensive scope of the FWPCA,

which was completely rev‘sed soon after the

decision in [Milwaukee Ij" 453 U.S. at

21-22. The Court stated that Milwaukee IT

disposes entirely of respondents

federal common law claims, since

there is no reason to suppose

that the pre-emptive effect of the

FWPCA is any less when pollution of

coastal waters is at issue.

To the extent that this litigation

involves ocean waters not covered

All

by the FWPCA, and regulated under

the MPRSA, we see no cause for

different treatment of the

pre-emption question. The

regulatory scheme of the MPRSA is

no less comprehensive, with respect

to ocean dumping, than are

analogous provisions of the FWPCA.

Id. See Marquez-Colon v. Reagan, 668 F.2d

611, 614 n.2 (lst Cir. 1981) ("the Supreme

Court .. . held [in Milwaukee II and Sea

Clammers] that the federal common law of

nuisance for interstate and coastal water

pollution has been entirely preempted by

[FWPCA]").

III.

The plaintiffs concede the

discharges alleged in their complaint

occurred in waters subject to regulation

under FWPCA or MPRSA, and that claims for

injunctive and compensatory relief from

those discharges can no longer be based on

the Milwaukee I federal common law of

nuisance. The plaintiffs seek recovery as a

matter of maritime tort law, the elements of

12

the claim being the same as common-law

nuisance.[fn6] The principles of commonlaw

nuisance on which they rely have recently

been recognized as principles of maritime

tort law. See Burgess v. M/V Tamano, 370 F.

~-Supp. 247 (D. Maine 1973) (recognizing

right of commercial fishermen to maintain

suit for damages against parties allegedly

responsible for oil spillage into Maine's

coastal waters). See also Matter of Oswego

Barge Corp., 664 F.2d 327, 334 n.11l (2nd

Cir. 1981) (discussing uncertain existence

of a maritime claim based on nuisance

principles). Arguing that the maritime tort

claim was not specifically addressed by the

Supreme Court in Sea Clammers, plaintiffs

contend that the underlying maritime law was

not preempted. We cannot agree.

In Sea Clammers, the Third Circuit

upheld common-law nuisance claims sounding

in both general federal law and admiralty.

616 F.2d at 1233-36. Petitions for a writ

iS

of certiorari were filed by a group of New

Jersey sewerage authorities, No. 79-1711, 49

U.S.L.W. 3110 (Apr. 29, 1980), by the Joint

Meeting of Essex and Union Counties in Jew

Jersey, No. 79-1754, 49 U.S.L.W. 3110 (May

5, 1980), by the City and Mayor of New York,

No. 79-1760, 49 U.S.L.W. 3111 (Ma 5, 1980),

and by the federal defendants named in the

suit, No. 80-12, 49 U.S.L.W. 3111 (May 5,

1980), and by the federal defendants named

in the suit, No. 80-12, 49 U.S.L.W. 3139

(July 3, 1980). The New Jersey sewerage

authorities and the City and Mayor of New

York expressly asked in their petitions that

the Court consider whether a nuisance claim

for damage from water pollution may be

maintained in maritime tort law under 28

U.S.C. Sec. 1333 or in general federal law

under 28 U.S.C. Section 1331. The Supreme

Court limited its grant of certiorari to

consideration:

1. Whether [FWPCA and MPRSA]

imply a private right of action

A14

independent of the rights

explicitly created by the citizens

suit provisions of those

Acts, 33 U.S.C. Section 1415(g).

y Whether a private citizen

has 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. Section 1331.

Je Whether any federal common

law nuisance action for alleged

damages sustained resulting

from ocean pollution, if available

to a private citizen, is not

preempted by the present

regulatory scheme governing ocean

pollution established by [FWPCA

and MPRSA].

EPA v. Sea Clammers, 449 U.S. 917-18

(1980).

We are uncertain whether the Court's

limited grant of certiorari included

consideration of the viability of a

commonlaw nuisance claim sounding in

admiralty under 28 U.S.C. Section 1333. The

Court understandably limited question number

two, whether a private citizen has standing

to maintain common-law nuisance claim for

15

damages, to actions brought as a general

federal question under Section 1331.

Presumably there would be no question of

Standing to maintain an otherwise

appropriate maritime claim. It turned out

to be unnecessary to address question two.

Question three, which the Court did

address, was ot expressly limited to actions

under Section 1331. Whether in framing

question three the Court intended to include

consideration of preemption of a maritime

action under Section 1333 based on

common-law nuisance principles is

problematic. The elements and principles of

the cause of action for public nuisance are

probably the same whether general federal or

maritime law is invoked. See Clammers

opinion whether it was solely considering

federal common-law nuisance in an action

invoking Section 1331 federal question

jurisdiction, although the opinion refers to

consideration by the lower courts of the

16

maritime tort claim. Given the extension of

admiralty jurisdiction to all wrongs

occurring on navigable water, see Foremost

Insurance Co. v. Richardson, 457 U.S. 668,

672-77 (1972), not reaching the question of

the viability of a nuisance claim in

maritime tort would mean the Court left

unconsidered a basis for recovery virtually

coextensive with the claim rejected.

In Oswego Barge, the second Circuit

concluded "the Supreme Court could well have

understood that by determining that the

FWPCA preempts the federal common law of

nuisance, the Court was in effect rejecting

both the common law claim based on Section

1331 jurisdiction as weli as the maritime

claim based on Section 1333 jurisdiction.

The Court was not reviewing the maritime

claim as such, but it was nonetheless

finding its sole component to have been

preempted." 44 F.2d at 338 n.13.

Assuming that the Supreme Court did

not decide whether the Sea Clammers

plaintiffs could pursue their maritime tort

claim, we address the question whether there

is any reason why a maritime damage claim

founded on principles of common-law nuisance

should survive the enactment of FWPCA and

MPRSA when a damage claim founded on

identical principles, embodied in the

federal common law of nuisance, did not

survive.

The district judge found no

perceptible reason o distinguish between the

two claims in this regard.

We can find none.

In Oswego Barge, the Second Circuit

considered a maritime tort claim founded on

principles of common-law nuisance and found

18

preemption, albeit in a different situation.

There the United States was

plaintiff and sued a barge owner for the

cost of cleaning up an oil spill. fFWPCA

gave the United States a statutory cause of

action, but limited the recovery. 33 U.S.C.

Section 1321(f). The government sought full

recovery on a maritime tort nuisance theory.

The district court entered jugment against

the government and the court of appeals

affirmed as to this claim,

Judge Newman wrote a very scholarly

opinion dealing with preemption by

congressional act of judge-made federal law.

He acknowledged a presumption in favor of

preemption of federal common law whenever it

can be said that Congress has legislated on

the subject. 64 F.2d at 335-36. Noting

that the Supreme Court appears to have

applied the presumption somewhat less

forcefully to judge-made maritime law than

Al9

to non-maritime federal common law, id. at

336, he nevertheless concluded that the

presumption arose in the case under

consideration and was not rebutted.

The question of whether

non-statutory maritime law survived

enactment of FWPCA ultimately turned in

Oswego Barge on

a careful analysis of several

factors that the Supreme Court has

considered relevant in assessing

whether the presumption of

preemption has been overcome. Any

terms of the statute explicitly

preserving or preempting judge-made

law are of course controlling, as

is clear evidence of Congressional

intent to achieve such results. In

the absence of clearly expressed

legislative intent, legislative

history may provide useful

guidance. The "scope of the

legislation™ must be assessed.

City of Milwaukee v. Illinois,

supra, 101 S.Ct. at 1791 n.8.

A judgment must be made whether

applying judge-made law would

entail "filling a gap left by

Congress' silence" or "rewriting

rules that Congress has

affirmatively and specifically

enacted." Mobil Oil Corp. v.

Higginbotham, supra, 436 U.S.

at 625. The detail and

A20

comprehensiveness of a statute will

frequently aid this determination.

Finally, Congress is less likely to

have intended preemption of

long-established and familiar

principles” of "the common law or

the general maritime law."

Isbrandsten Co. v. Johnson,

343 U.S. 779, 783 (1952).

Id. at 338-39 (footnotes omitted).

We acknowledge that FWPCA contains

provisions dealing more specifically with

the concerns of the Oswego Barge plaintiffs

than with the concerns of the plaintiffs in

the case before us. As Judge Newman wrote,

FWPCA established for the situation of an

oil spill “a comprehensive remedial scheme

providing for both strict liability up to

specified limits and recovery of full costs

upon proof of willful negligence or willful

misconduct." Id. at 340. The act does not

provide a compensatory remedy for losses of

the type complained of here. It does

authorize the government to remove hazardous

substances discharged into navigable waters

21

and to recover at least part of the cost. 33

U.S.C. Section 1321(c)(1) and (£)(2).fn7]}

Present plaintiffs allege that the damage is

irreversible, and the cleanup provisions may

thus provide no relief.

The Supreme Court has emphasized,

however, the comprehensiveness of the policy

implemented in FWPCA rather than the

adequacy of the implementation. "The lesson

of Milwaukee II is that once Congress has

addressed a national concern, our

fundamental commitment to the separation of

powers precludes the courts from

scrutinizing the sufficiency of the

congressional solution." Illinois Outboard

Marine, 680 F.2d 473, 478 (7th Cir. 1982).

"The question is whether the field has been

occupied, not whether it has been occupied

in a particular manner."[fn8] Milwaukee II,

451 U.S. at 324.

In Milwaukee II, the Supreme Court

found no provisions of FWPCA either

22

expressly preserving or preempting the

federal common law of nuisance.[fn9] The

court did find, however, that "[t]he ‘major

purpose’ of the [1972] Amendments was ‘to

establish a comprehensive long-range policy

for the elimination of water pollution.'"

451 U.S. at 318 (quoting S. Rep No. 92-414,

at 95, 2d Leg. Hist. 1511) (emphasis

supplied by Court), and that the provision

of the Amendments “occupied the field" of

water pollution abatement. Id. at 317. The

Court concluded that "[t]he estabiishment of

such a sei f-consciously comprehensive

program by Congress .. . strongly suggests

that there is no room for courts to attempt

to improve on that program with federal

common law." Id. at 319. The Supreme Court

readily rejected a claim for private damages

in Sea Clammers because "the federal commo”

law of nuisance in the area of water

pollution is entirely pre-empted by the more

comprehensive scope of the FWPCA," 453 U.S.

at 22, and not because FWPCA "addressed some

>

bo

W

aspect of the problem in a particular way,"

Outboard Marine, 680 F.2d at 478. "[T]he

"question" Congress ‘addressed’ in the 1971

Amendments was the entire question of water

pollution. The displacement of federal

common law must, under the reasoning of

Milwaukee II, be equally broad."Id.

An ordinary construction of the

Supreme Court's pronouncement in Sea

Clammers that "the federal common law of

nuisance in the area of water pollution is

entirely preempted" would appear to

encompass all federal judge-made law of

nuisance in the area of water pollution is

entirely preempted" would appear to

encompass all federal judge-made law of

nuisance whether maritime or general federal

law. We agree with the district court that

for present purposes a claim for damages

based on nuisance principles and brought as

a claim of maritime tort is

indistinguishable.

Plaintiffs argue that even if FWPCA's

enactment preempted the federal common law

of nuisance, the district court sitting in

admiralty may borrow from state law to

fashion a theory of liability for the

instant dispute. There is no question that

federal courts may borrow from a variety of

sources in establishing common law admiralty

rules to govern maritime law liability where

deemed appropriate. See Wilburn Boat Co. v.

Fireman's Ins. Co., 348 U.S. 310 (1954). But

in our view the source of the borrowed law

would be irrelevant. A damage claim based on

common-law nuisance principles is precluded

whether under maritime or other federal

jurisdiction.fnl10]

I IOLA COELIAC. ROE OUI nm -

Accordingly, the district court's

judgment dismissing plaintiffs’ complaint

for failing to state a claim upon which

relief can be granted is AFFIRMED.

[fnl]The Massachusetts Lobstermen's

Association, Inc. (MLA) is a not-for-profit

association of lobstermen engaged in

providing hull, protection and indemnity,

and health and accident insurance to its

members. The majority of MLA members operate

in Massachusetts; MLA asserts that

defendants’ actions have increased the ;

likelihood of claims against its insurance

policies, injuring MLA and its members.

[fn2]The United States was allowed to submit

a brief amicus curiae in support of reversal

"as a shoreside and marine property owner."

{[fn3]The Federal Water Pollution Control Act

as originally enacted, 62 Stat. 1155, was

held by the Supreme Court in Illinois v. :

City of Milwaukee (Milwaukee I), 406 U.S. 91

(1972), not to preclude an action under a

federal common law of nuisance to enjoin the

discharge of water pollutants. Only after

passage of the Federal Water Pollution

Control Act Amendments of 1972, 86 Stat.

816, did the Court conclude in Milwaukee II

that FWPCA had preempted the federal common

law of nuisance. Accordingly, the district

court references to FWPCA, and those in this

opinion, are to the Act as amended in and

since 1972.

[fn4]Defendants also moved to stay the

proceedings pending resolution of a

Massachusetts state court class action

seeking injunctive and compensatory relief

from Aerovox, Cornell-Dubilier, the City of

New Bedford, and the Commission of the

Department of Public Health for the

Commonwealth of Massachusetts. Suit against

defendants Aerovox and Cornell-dubilier was

A27

based primarily on claims alleging

negligence. The state suit was brought on

behalf of "all fishermen living within the

immediate vicinity of New Bedford,

Massachusetts, New Bedford Harbor and

southeastern Massachusetts area" who have

suffered "past and present injuries ... as

a result of the contamination of [that]:

area." Nunes v. Aerovox, Civil Action No.

11445 (Bristol County S. Ct., complaint

filed Oct. 10, 1980). As in the present

federal complaint, Aerovox and

Cornell-Dubilier were charged in state court

with having discharged "dangerous chemicals

and chemical waste, and more particularly

PCBs, ... into the New Bedford Harbor and

Buzzards Bay area." We take notice that the

state court entered judgment for Aerovox and

Cornell-Dubilier in early 1983, finding

plaintiffs' claim based on negligence failed

to show "physical damage which was directly

caused by the defendants." Cross appeals

were dismissed by stipulation of the parties

on December 9, 1983.

[fn5]There are only two factual distinctions

from the present case which might

conceivably be relevant. One is that the

active producing pollution and the waters

polluted in Sea Clammers both involved two

States; the polluting activity before us and

the waters affected involve only the

Commonwealth of Massachusetts. The other is

that the Sea Clammers defendants were all

public entities, but here the defendants are

private corporations. We do not think these

distinctions are a sound reason for a result

different from that reached by the Court in

Sea Clammers.

[fn6]The plaintiffs have not pressed a

maritime tort under a negligence theory

before this court. See Oswego, 664 F2d at

A28

334, 343-44, We do not consider whether

such a claim is appropriate where

intentional discharge of pollution in the

public waters is at issue, nor whether a

negligence action for injuries due to water

pollution still sounds in maritime tort

after FWPCA's enactment.

{fn7]The United States points out that

Section 1321 contains a provision

specifically preserving the obligations of

any owner or operator of any onshore

facility to persons or agencies whose

property is injured by discharge of a

hazardous substance. Section 1321(0)(1)

provides.

Nothing in this section shall affect

or modify in any way the obligations of any

owner or operator of any vessel, or of any

owner or operator of any onshore facility or

offshore facility to any person or agency

under any provision of law for damages to

any publicly owned or privately owned

property resulting from a discharge of any

oil or hazardous substance or from the

removal of any such oil or hazardous

substance.

33 U.S.C. Section 1321(0)(1). The United

States asserts as amicus that "[t]he

manifest effect of this provision is clearly

and affirmatively to preserve existing

remedies for pollution-caused damage to.

property." (Government's emphasis.) In

support of this proposition, the government

refers us to numerous statements during the

House of Representatives and Senate debates

at the time Section 1321 was originally

enacted as part of the Water Quality

Improvement Act of 1970. among them are

Senator Muskie's comment that “our bill does

not go as far as the problem extends. We

are not talking in our bill about liability

A29

to third parties for damage from spills;

"Hearings on S.7 and S.544 Before the

Subcomm. on Air and Water Pollution of the

Senate Public Works Comm., Q9ist Cong., lst

Sess., at 1369 (1969); and Representative

Cramer's explanation that “charges or

damages due to third parties under admiralty

at or common law ... wovld be in addition"

to charges for clean up costs under the Act.

116 Cong. Rec. 9326-27 (1970).

While Section 1321(0)(1) may be read

expressly to preserve federal common law

damage claims from preemption by the clean

up provision itself, it cannot be read at

this point to mean that the provisions of

FWPCA as a whole do not preempt those

claims. Section 1321(0)(1) states that

"nothing in this section" shall affect the

obligation of owners of discharging

facilities. The section, and comments by

Congressman in 1970, do not speak to the

preempting effect of the 1972 Amendments.

Milwaukee II and Sea Clammers plainly held

that because of their comprehensive effect,

the 1972 Amendments as a whole preempt the

federal common law of nuisance. See

discussion note 9 infra.

[fn8]Defendants contend that the

restrictions placed on fishing in Buzzards

Bay by Massachusetts health officials was

prompted solely by concern with PCB

contamination. In addition to being subject

to general regulation of discharge under

FWPCA, see 40 C.F.R. Part 122 (1983), the

disposal of PCBs was singled out by Congress

for regulation under the Toxic Substance

Control Act (TSCA), 1 U.S.C. Section 2601

set seq. See 15 U.S.C. Section 2605(e); 40

C.F.R. Section 761.79 (1982).

[fn9]The plaintiffs rely, as did the

Milwaukee II plaintiffs, on the preserving

language contained within the citizen suit

provision of FWPCA, 33 U.S.C. Section 1365.

Section 1365 authorizes private civil suits

to enforce an effluent standard or order

issued under the Act. Section 1365(e)

provides:

Nothing in this section shall

restrict any right which any person (or

class of persons) may have under any statute

or common law to seek enforcement of any

effluent standard or limitation or to seek

any other relief (including relief against

the Administrator or a State agency).

33 U.S.C. Section 1365(e). See also

parallel provisions in MPRSA, 33 U.S.C.

Section 1415(g)(5), and in TSCA, 15 U.S.C.

Section 2620(b)(5).

The Supreme Court concluded this

"subsection is common language accompanying

citizen-suit provisions and ... means only

that the provision of such suit dves not

revoke any remedies. it most assuredly

cannot be read to mean that the Act as a

whole does not supplant formerly available

federal common-law actions but only that the

particular section authorizing citizens

suits does not do so." Milwaukee IJ, 451

U.S. at 329.

{[fnlO]Plaintiffs have not contended that any

part of their alleged injuries were suffered

due to discharges prior to enactment of the

1972 Amendments. We therefore do not

consider whether FWPCA displaces the federal

common law of nuisance remedy for discharges

of pollutants into navigable waters prior to

1972. See Outboard Marine, 680 F.2d at

476-81 (concluding that FWPCA displaced

federal common-law nuisance claim for

pre-1972 discharges).

>

Wo

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EDITOR'S NOTE

PAGES Asst ru A. 42 WERE POOR

HARD C TIME OF FILMLNG

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

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NEW SEDFORD

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Point —

Areas Subject to °CB Closures

1 Waters ciosed to ail fismung activities

2 Waters closed to the taking of lobsters. seis,

founcers. scup. and tautog

Misheum Point 3 Waters cicsea to loosienng onty

Fishing Closure Areas established *~ che “assachusects Oeparcment of

Public Health.

d -

rei? ,

\ — re) Federal Permit Se. ™a0003930

' RC State Permit No. 451

| S 4 State Application Bo. >), ©

,O “st Pg MODIFICATION #1

: a,° ae

; & N e. ~.

r - " «AUTHORIZATION TO DISCHARGE UNDER THE

NATIONAL POLLUTANT PMISCHARGE ELIMINATION SYSTEM

In compliance «ith tre provisions +f the Fed cal Water Priluuna Canunl Act. a amended.

(33 USC. 1251 et. seq; she “Act”), and the Massachusetts Clean Gacers Act, a8

amended, (M.G.L.,C.21, $426-53),

Cornell-Oubilter Elecerical Corporacica

8 euthonird to drscharge from a fartiity located % ae

‘ 1605 Case Redaey French Soulevard

: Rew Redford, MA 02744

te receiving waters named

Storm drain to che Fort Fhoenix Reach

.

im accordance with effMuent limitations, monitoring requirments and other conditions «tt funn

in Parts |. il, and lI! hereof.

This permit shail become effective on 43 days after the date of signature below. Ys

This perms and the zs thorizauon to discharge 1131] cxpire at midmght, June 1, 1°80.

This permit sodifice. ‘Ye percit issued on August 14, 1975.

Siqred une aay ot Hs: eed i ote.

° 9 ; a

os be - “3

>; GB % < /%

oe? i 2

4te i Pe, e

Meo be: t aw ted 4 AT en hl fies 4 “ak i he

Leslie A. Carechers, Director Themas C. “McYunon, DS. rece-r

Enfeccenent Oivisioa Oivision ef Vacer #2. ution Contrei

Eavironmental Protection Agency Commoawealchn of “Masse: nusects

A34

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Cerrected 1/14/77

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A35

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CG MONITORING AND REPORTING Ce

1. Rapresenteiwe Sampang

Sesnpics and measurements laken af requered herein shail be mypresentalier of the volume

and nature of the mo.tend discharge 5

& Reporting

Mentoring results obtained dung the peewwwus J) months -hall be semmanaed kx

PRERDOOLD and reported on a Ducharcr Monnunng Report Gorm (RPA No. 3220-1),

me later than the 28ch aay +f the month folluwimg the completed reporung

period. The first report uw due on January 28, 1977* | Duplicate ugned comes of

these, and all other report required fheren. shall be wbmitied wo whe Regona

Ademumustiretor and Une Nae af Une [ofloe nig addresses:

Envireaments! Protection Agency Division of Water Pollution Control

Region I + Permits Branch Leverett Saltoastall Building

?. 0. Bex $127 100 Cambridge Street

Boston, MA 02114 Beaten, MA 02202

Subsequent reports due each April 28, July 28, October 26, and January 28.

a The “daly averecr™ ducharge means the total dum hurce by werght dunne a calendar

month divided by the number of dus m the munth that the promucton oF

was operating. Where lest inon daily somplag « required by We

permit, the daily average discharge shall be determined hy the summavon of all he

meseured daily dischargers by weve divided br the number of days during the

calendar month when We measurements were made.

& The “daly maximum™ discharge means We willl docharge by wright dunng any

colendar cizy.—

4. Test Procedurcs

Test proceedures [ne Une analyses of jwilutane shall conform to regulations jnibhshed

purwant to Secven JO4(¢) of Ue Act, uncer whieh such procedures may be required.

&. Recording of Rewlts °

Fer cach measurement ur sample When pursuant te ine requirer.enis of Une permit, ie

permutter shall recerd tne following infurmuuen:

a The exart place, date, and ume of ampling:

t. The dates the anaivans were perform,

ec. The pereua(s) who performed the analy ws,

A36

& The analytical iechasques oe methods ued: and

The remulta of afl required anaiyers.

& Addinanel Uanuarme re Permiites °

ine vahwn required on We Discharge \onitonag Report Form (EPA Ne. 3320-11. Such

wereascd (requency wail ais he indicated.

T. Revords Retention

Al records and infnrmauion rewulting fram the monitonng activities requued ty tim

Herm inciuding ad recorus of anaiyers performed and calibrauen and mamnienancr +i

ireme and recordings from a ™ We metrumenwuon sail uc

reimined for © munmum of uree (3) year, ot longer if requested dy the Revuna

Adeninmuraiar oF Une Sigie water poiluuan control agency.

_—- +

A37

A MANAGEMENT REQUIREMENTS

1. Chenge in Diacherge

AB dincharers suthurized hetem shall he comatent with Une rms and conditions of thes

perm. The diarharer of any petiutant wienufied in Uus permit more frequendy .san ofr

at a lewet in cites of that authonard shall constitute a noiauion of the permit. .iny

aatropeted fartinty e\pansiem, productam metraset, of peoress modif cations -vnich wil

rewkt in new, different. of ineteaned diwhares of pollutants must be repored by

mehrnissson of 3 new NPIDES appin auen of, if such changers will not viniste Une effivent

fenitauens yerified! in thin perant, bw neure io the perm usuing zuthonty of weh

changer. Fidluwing such notice, the permet may be modified to speeily and limit any

potlutania net prevwrundy limetrnd.

Mancum plrance betificet nut

If, for any reason? the perauticer does net romply with of will be unable lo comply with

any daily maximum effluent lmitaiea penfied m thes jermu, the permuice shail

provide the Hegonal Admuinsirator and the Siate with whe following information. nm

writing, wuhin five (5) dave of bee oming aware of wen conduon.

a A desenpues of the dewnare ood caew of non comphance: and

& The pened of suncum liancr. wctuding «-\ am. uates and umes, of, if not corrected,

the enlctpetied ume the noncompliance it cipected te rontines, and eps bring

taken lo reducer, climenair and jeevent recurrence of ine noncormaying Cischarzr.

‘The permittee shall Lake all n-monahie ste7s [o minimize any adverse impact Lo navigable

waters resulting from soacomplaner with any effluent litastauons specified im thu

perms, including wech acecieraced additional moniLonng as necessary lo Gelermme Lhe

aatuer and impact af the nunramplying dlerherge.

Any diversion from of *); 1 of laviliiws necewary lo manta compliance with the

terms and eundiuons uf thes permit rs protntated. cacem (1) where unavowabie to prewnt

lows af life oF severe yrnmerty dumage. Of iu) where excessive storm dramage of runoil

wereld damag any facdsirs newemury for comphance with the effluent heitations and

promitians of the perma The permiuice thall prompily noufy the Reponal

Adenvniatrator and the Slate m «eniing of each such divermon oF by pass.

mee ee

re ee ee eee +

o ©

PART It

en ee |

Perms = 140003930

Removed Substences ’ 7

Solids, shuders, filter beck wash. of out pullutanis remowed in the course of treatment ur

control of wasiewsicr shall Le digpeacd of im 4 manner such a to prevent any peeibitant

from sech matenais from enienng navigable waess.

Power Falures

In order to mamnian compliance with we effivent limiztions and proftitbeuons of Ws

permnt, the permittee shail either:

@ im accordance with the Schedule of Complience cuntamed im Part |, prowde an

alternative power source sufficient to operate the wastewater control (aciiues:

at, if mech sitemmative power source 3 not im existence, and no date [or is implementation

sppears in Part |, ;

& Halt, reduce or otherwise conirol production and/or ail discharges upon he

reduction, lom, or failure of the pmmary source of power Lo the wastewater control

(acilities.

RESPONSIBILITIES

1

Right of Entry

The permitice shail allow the head of the State watrr pollution control agrncy. the

Regional Admunatrator, and jor their suthonaed representatives, upon the presentation uf

credentials:

a Teo enter upon the permiiie'’s premaes where an e{Muent source is located of ir.

which any records are required Lo be kept under the terms and conditions of tin

perm: and °

b. At reasonable times to have access to and copy any records reouired Lo be k-pt uriier

the terms and ronditions of ‘thw permu; & inspect anv monitonng equipment of

monitoring method required in Uus permit; and Lo sample any crncharge of poibi tants.

Trensf{er of Ownership of Control ‘

In Ure event of any chan~ 1 control or ownership of facilites from wich the suthonzed

Gischarges emanate, the j»..nittre shall nouly Une succeeding owner of contruiler of the

existence of this permit by letler. 8 copy of winch shall be forwarded to the Reponal

Adminatrator and wre Sue water pollution cor irol agency.

Avasiadility of Reports

Kacep for data determined in le confidential under Section 304 of the Act, all mports

prepared im accordance with the terms of Wis perm shall be avalable for puldo

A39

- ) 0 PART It

: oe Ta 8

forms Me. 4A0003930

imapection st the offices of the State, = .:rr pollution control agency and the Rewunal

Admunutratet. As required by the Act. ¢{!luent deta shail not be considered confidential.

Kaowwmgy making any fale statement un any such repert may resull in the imposivun of

criminal penalties as provided far im Sexton 309 of the Act

Perm Modificeuca s

After antece and opportunity for 3 braneg, he permit may be modified, suspended. or

revoked im whole of in part dunng us term [or couse wnciuding, but not limited io, ne

fallow wrg: -

& Volation of amy terms of conditions uf hs permat.

& Obtaning the permit by misrepre=ntauon oF [failure to deciose (ully ail rekvont

(acts: or

¢« Achane ia any condition Wat n«yuires esther a lemporary of permanent reductum of

ehemnation of ne authored discharge.

Tose Pollutants

Notwithstanding Part (1, 4 above. if 2 tose effivent scandard of prot. muce (including

any whedule of comyphince speed m such effluent staniard of promimuon:

established under Seruon JU7(ai of the ut fue a lox pollutant eh:ch «@ present in (he

Giacharge and such siandard of proiiintion s mure sinngent (han any limiutauon (or wch

pollutant in this permit, thes permit shal] he revueu of modified in arcrurdance with the

tons effiuent standard of protulninm and ihe permittee so noulied.

Clad and Craund L.abdiisty

Facem a provutess) im perma comhtions on “fypusang™ (Part i], A-5) and “Power

Fatteres™ (Part 11, .\-7), nothing in this permet shall Le construed Lo relieve Une permuticr

from ew of cnamnal prnaiies far noncompliance.

Od ond Naserduas Substance Liability

Nothing im thrs permit shall he comsineed Lo prevtuide the institute of any legal action of

relieve the permutice from any respunsiniitics, lisbiliucs, of penalties to which the

prermitice is or may he ssbyect wader Section 311 of the Act

Stete Laws

Nothiog wm this permit dail be consirucd to preciuds tiie instituuon of any legal actvon of

relieve the permitice from any respemubslives. hainit «5, or penalues ectablished pursuant

tee any applicable State law oe regulation under authonty preserved hy Section 510 of the

Act .

A4O0

‘ q

i oe

= PT Fieain

_

=

*

4

f

%

®

‘The issuance of this permit does nat convey any property rights in either real or peroneal

property, ur any exciusuve i nor does % suthonze any injury to private property

a= any invasion of personal rights, nor any in(nogement of Federal, State or local laws of

reguiauions.

Severe ditity

PART ill

AGL

.

: ae OQ

-FOR PURPOSES OF TRIS PERT, THE PILLOWING TERMS SMALL APPLY.

a - The value of ¢ composite sample or the eeen value of the

analyses of the evecified aumber ef samples collected at regular intervals

ever a acres] operating 4ey-

Daily Max «que wanimnmn velua of cay one grab comple collected i

_ wermal operating 4e7-

Grab Sample - As tadividual semple collected in a period of less then

1S ainuces. :

ite Sample - A seeple consisting of « minimum of eiant grab samples

collected at regular intervals over @ nocnal operating ay and combined

proportional toe flow, oc & cample conciauous ly collected proportional co

flow over « aorual operating day-

Imp Lemenc action Schedul = An sbatement proares consisting of:

a. A plana of incended desian, construction, and operation of new

er modified facilities to creat the effluent; and

bd. A timetable setting forth the dates by which all sources of

water pollution aust be ia compliance with the effluent limicaticas of

this permit. Tris schedule shall include (1f appropriate) interim and

final dates te accomplish:

(1) Completion of prelisinary plane and engineering report

(2) Completion of. finel plane

(3) Contract sverd

(4) Commencement of construction

(3) Completion of construction and commencement of operatioce

(6) Attainment of operacional level

Tre following ebbrevistions, when used, ore defined below.

ag/t ‘ eilligrams per liter

va/l micrograns per liter

lbe/day pounds per day

ug/day kilegrens pet day

Temp. “C temperature ia degrees Centiarede

Tenp. “? temperature ia degrees Tehrenbeit

Turd. turbidity eeesured is Jeckson Candle Gaite (JTU)

wiey Sreeper aay”

A42

-———— -

; ; a ©

THFR oc TSS tocal eonfilteradle cosidue o¢ total guspended solide

300 tive-day piechenical exyEe® demand ealese ethervise

epecified es,

rm retal Kjeldsen) aitregen se nitreses

my" ‘ qumonia sitroges & aitroges

Tecal ? cotal phosphorus 4° prospherue

coo cbenical oxyxes demand

ror total organic carboa

Surfoetant qurface-ective ogame

pa a eeasure of the nydrogen ton eoucentratios

rca polychlorinated vipheny?

@) /Day cubic eaters pet dey

“cD : wiliiea gallon per day

Oil & Grease Dex ane extractable maceriel

Tetal Colifers gecal celifors pacteria

Fecal Colifere cotal fecel colifere dbecterts

a et Llsiiter(s)

el/i eilliliter(s) per liter

a : standard waits

w3-" aitrece sitroges ** aitroges

wo27-" aitrite aitroges °° nitrogen

woz 6 5 ‘eoubined aitrite ead aitrece aitregen se aitrenes

ciz eotal residual chlerine