National Sea Clammers Ass'n v. City of New York

• Decision Date: 05 February 1980
• Docket Number: No. 79-1360,79-1360
• Citation: 616 F.2d 1222
• Parties: , 10 Envtl. L. Rep. 20,155 NATIONAL SEA CLAMMERS ASSOCIATION and Gosta Lovgren, Appellants, v. CITY OF NEW YORK, Honorable Abraham Beame, United States EnvironmentalProtection Agency, Russell E. Train, Individually and as Administrator of theUnited States Environmental Protection Agency, United States Army Corps ofEngineers, Martin R.Hoffmann, Individually and as Secretary of the United States Department of theArmy, New York Department of Environmental Conservation, Ogden R. Reid,Individually and as Commissioner of the New York Department of EnvironmentalConservation, NewJersey Department of Environmental Protection, David J. Bardin, Individuallyand as Commissioner of New Jersey Department of Environmental Protection,Bergen County Sewer Authority, the Joint Meeting of Essex and Union Counties,Passaic ValleySewerage Commissioners, Middlesex County Sewerage Authority, the Linden RoselleSewerage Authority, Middletown Sewerage Authority, West Long Beach SewerDistrict, County of Westchester, Dept. of Environmental Fac., City of LongBeach and City of GlenCove.
• Court: U.S. Court of Appeals — Third Circuit

Page 1222

616 F.2d 1222

15 ERC 1314, 10 Envtl. L. Rep. 20,155

NATIONAL SEA CLAMMERS ASSOCIATION and Gosta Lovgren, Appellants, v. CITY OF NEW YORK, Honorable Abraham Beame, United States

EnvironmentalProtection Agency, Russell E. Train,

Individually and as Administrator of theUnited States

Environmental Protection Agency, United States Army Corps

ofEngineers, Martin R.Hoffmann, Individually and as

Secretary of the United States Department of theArmy, New

York Department of Environmental Conservation, Ogden R.

Reid,Individually and as Commissioner of the New York

Department of EnvironmentalConservation, NewJersey

Department of Environmental Protection, David J. Bardin,

Individuallyand as Commissioner of New Jersey Department of

Environmental Protection,Bergen County Sewer Authority, the

Joint Meeting of Essex and Union Counties,Passaic

ValleySewerage Commissioners, Middlesex County Sewerage

Authority, the Linden RoselleSewerage Authority, Middletown

Sewerage Authority, West Long Beach SewerDistrict, County of

Westchester, Dept. of Environmental Fac., City of LongBeach

and City of GlenCove.

No. 79-1360.

United States Court of Appeals, Third Circuit.

Argued Oct. 16, 1979.

Decided Feb. 5, 1980.

Edward C. German, Dean F. Murtagh, Robert P. Corbin (argued), LaBrum & Doak, Philadelphia, Pa., for appellants.

Robert J. Del Tufo, U. S. Atty., Ralph A. Jacobs, Asst. U. S. Atty. (argued), Newark, N. J., for appellees, United States Environmental Protection Agency, Russell E. Train, United States Army Corps of Engineers and Martin R. Hoffmann.

John G. Gilfillan, III (argued), Carella, Bain, Gilfillan & Rhodes, P. A., Newark, N. J., for appellee, Passaic Valley Sewerage Commissioners.

Raymond G. Tomaszewski, (argued), Linden, N. J. for appellee, The Linden Roselle Sewerage Authority.

George J. Minish (argued), Minish & Williams, West Orange, N. J., for appellee, The Joint Meeting of Essex and Union Counties.

Menelaos W. Toskos (argued), Stephen J. Moses, Hackensack, N. J., for appellee, Bergen County Sewer Authority.

Herbert F. Moore, Thomas P. Weidner (argued), Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, N. J., for appellee, The City of Glen Cove.

Allen G. Schwartz, Corp. Counsel, Stephen P. Kramer, Anthony Z. Scher, (argued), New York City, Philip R. Kaufman, Spotswood, N. J., for appellees, City of New York and Abraham Beame.

David N. Hilgendorff, Corp. Counsel, Paula E. Kennedy, Deputy Corp. Counsel, City of Long Beach, Long Beach, N. Y., for appellee, City of Long Beach.

Marvin J. Brauth, Wilentz, Goldman & Spitzer, Woodbridge, N. J., for appellee, Middlesex County Sewerage Authority.

Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and WEINER, ^* District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case comes before us on an appeal by plaintiffs National Sea Clammers Association and Gosta Lovgren from a final order dismissing their complaint. Plaintiffs are an association whose members make their living harvesting fish and shellfish from the water and ocean beds of the Atlantic Ocean near New York and New Jersey, and an individual similarly employed. They sue on behalf of themselves and a class comprising all others similarly situated. Defendants are various federal, state, and local officials and governmental departments that are charged with environmental protection or that are responsible for sewage treatment and disposal.

Plaintiffs' complaint alleged that defendants discharged or permitted the discharge of certain nutrient-rich sewage and toxic wastes into the Atlantic Ocean or its tributaries. It further alleged that in 1976 these discharges caused a massive and rapid growth of algae from Long Island to Cape May and extending from a few miles to twenty miles offshore. When this algal mass bloomed and died it allegedly settled on the ocean's floor, and its subsequent decomposition created an anoxia, an oxygen deficiency, in the water near the ocean's floor, which caused death and other adverse effects on marine life, particularly on those life forms, such as shellfish, ill able to flee the afflicted area. Plaintiffs alleged violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4361 (1976), the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I), the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1444 (1976), the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1976), the New York Environmental Conservation Law, N.Y. Environ. Conserv. § 1-0101 (McKinney 1973), the New Jersey Conservation and Development Law, N.J.S.A. 13:10-1 (1968), the federal common law of nuisance, and the fifth, ninth, and fourteenth amendments to the Constitution. Defendants moved for dismissal of all claims on the grounds that the court lacked subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), or that the plaintiffs had failed to state a claim on which relief could be granted, see Fed.R.Civ.P. 12(b)(6). The complaint seeks injunctive relief, damages, mandamus to compel compliance with statutory duties, the imposition of fines and penalties for certain violations, the award to plaintiffs of one half of the fines assessed, and attorneys' fees. The trial court, holding that the submission of affidavits converted the motions into motions for summary judgment, granted defendants' motions as to each cause of action alleged. The complaint was dismissed, with prejudice, on all claims except for two said to arise under state law which were dismissed without prejudice. This appeal followed. We discuss separately the various legal theories which were pleaded and rejected.

I. The Federal Water Pollution Control Act

The district court held that plaintiffs' failure to comply with the notice requirements of the Federal Water Pollution Control Act (FWPCAA) ¹ deprived it of jurisdiction to entertain plaintiffs' claim that defendants violated their duties under that Act. Section 505(a) of the FWPCAA grants to any private citizen the right to sue to enforce compliance with effluent standards or limitations, 33 U.S.C. § 1365(a)(1), or to compel the Administrator of the Environmental Protection Agency to perform nondiscretionary duties. Id. § 1365(a)(2). Section 505(b) requires that in suits brought pursuant to subsection (a), 60 days' notice be given to specified parties to the suit. Id. § 1365(b). ² Regulations promulgated by the Administrator define the type and specificity of the notice required. 40 C.F.R. § 135.3(A) (1979).

The district court held that the notice provision of section 505(b) was a jurisdictional prerequisite to suit, such that plaintiffs' failure to give notice barred suit under section 505(a). 33 U.S.C. § 1365(a). This court has rejected the theory that substantial compliance with the notice requirement suffices to give the court jurisdiction under section 505(a). We require instead strict adherence to the Act's notice provisions for suits brought pursuant to section 505(a). Loveladies Property Owners Ass'n v. Raab, 430 F.Supp. 276, 280-81 (D.N.J.1975), aff'd mem., 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). We do not depart from that holding. We note, however, that it would be entirely permissible for this court to adopt the pragmatic approach to interpreting the 60-day notice provision by which we would merely require that sixty days elapse prior to district court action on the complaint. ³ The purpose behind the notice provision, as the legislative history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy the alleged violation prior to judicial action. ⁴ Thus, in the instant case, we could adopt the position that the failure of the Administrator to take remedial action during the sixty days after receiving notice of the suit permitted the suit to go forward in district court. We need not pass upon this proposition, however, because of our analysis of the independent significance of section 505(e), 33 U.S.C. § 1365(e), the savings clause of the citizens' suit provision.

The district court erred in holding that failure to comply with section 505(b), 33 U.S.C. § 1365(b), created an absolute bar to plaintiffs' suit to enforce the provisions of the Act. The citizens' suit provision of the FWPCAA was modeled on a similar provision in the Clean Air Act. Compare Clean Air Act § 304, 42 U.S.C. § 7604 (1976) with Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365 (1976 & Supp. I). The slight difference in wording of the citizens' suit provision of each act reflects only the attempt by Congress to ensure that the FWPCAA would comply with the holding of the Supreme Court in the then-recent case of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). ⁵ The Senate version of the bill would have permitted any person to sue to enforce the terms of the Act. ⁶ The House bill would have limited citizens' suits narrowly to suits brought by two types of plaintiffs, citizens of the geographic area who were directly affected by the alleged violation, or groups of persons who, because actively engaged in the administrative process, had shown an interest in the area or the controversy. ⁷ The Conference Committee chose a middle path, limiting the section 505(a) remedy to citizens, but defining citizen broadly in section 505(g). ⁸ The intent of Congress was thus to provide generally for citizens' suits which would not be subject to the jurisdictional amount requirement and yet would provide for private attorney general enforcement to the maximum degree permitted by the Court's Sierra Club decision. ⁹

It is clear, however, from the legislative history that the section 505(a) remedy is not exclusive. That section was intended to give federal courts jurisdiction over suits by private attorneys general seeking to enforce the provisions of the Act. Thus, the notice provision of section 505(b) only applies when a...