City of Evansville, Ind. v. Kentucky Liquid Recycling, Inc.

• Decision Date: 09 August 1979
• Docket Number: No. 78-1578,78-1578
• Citation: 604 F.2d 1008
• Parties: , 9 Envtl. L. Rep. 20,679 CITY OF EVANSVILLE, INDIANA, et al., Plaintiff-Appellants, v. KENTUCKY LIQUID RECYCLING, INC., et al., Defendant-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1008

604 F.2d 1008

13 ERC 1509, 9 Envtl. L. Rep. 20,679

CITY OF EVANSVILLE, INDIANA, et al., Plaintiff-Appellants, v. KENTUCKY LIQUID RECYCLING, INC., et al., Defendant-Appellees.

No. 78-1578.

United States Court of Appeals Seventh Circuit.

Argued Oct. 24, 1978.

Decided Aug. 9, 1979.

Lockyear, Barber & Kornblum, Theodore Lockyear, Steve Barber and James A. Kornblum, John C. Cox, Evansville, Ind., for plaintiff-appellants.

Fred S. White, Evansville, Ind., Edward M. Steutermann, Louisville, Ky., for defendant-appellees.

Before SPRECHER, TONE and BAUER, Circuit Judges.

TONE, Circuit Judge.

Three Indiana municipal corporations that use water from the Ohio River bring this action to recover damages incurred because of defendants' discharges of contaminants into the river from Kentucky. The most important question on this appeal is whether plaintiffs have stated a claim over which the district court had jurisdiction. We hold that a claim is stated under the federal common law of nuisance and that the court had jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiffs are Evansville, Indiana, the water works department of that city, and Mount Vernon, Indiana. Defendants are Kentucky Liquid Recycling, Inc., three of its employees, and Louisville and Jefferson County Metropolitan Sewage District. Plaintiffs allege that Kentucky Liquid Recycling discharged toxic chemicals into the sewer system of the sewer district, and that the sewer district in turn discharged these chemicals into the Ohio River, from which plaintiffs draw water into their treatment plants. As a result of these discharges, it is alleged, plaintiffs incurred unusual treatment expense and other expenses, which they seek to recover as damages. They also seek punitive damages. Plaintiffs seek to represent a class of similarly situated municipalities and water treatment facilities, for whom similar relief is asked.

Although inartfully stated, several theories of federal jurisdiction are discernible from the amended complaint: (1) jurisdiction under 28 U.S.C. § 1331 over implied rights of action under (a) § 13 of the Rivers and Harbors Act, 33 U.S.C. § 407, (b) the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, Et seq., and (c) the Safe Drinking Water Act, 42 U.S.C. § 300f, Et seq.; (2) jurisdiction under the citizen suit provisions of the latter two statutes; and (3) jurisdiction under 28 U.S.C. § 1331 over a right of action under the federal common law of nuisance. Plaintiffs also assert state law claims, which, diversity of citizenship being lacking, must rest on pendent jurisdiction. ¹

In dismissing the amended complaint for lack of subject matter jurisdiction, ² the district court held that violation of § 13 of the Rivers and Harbors Act did not give rise to a private right of action. The possibility of implying a right of action under the other two Acts was not discussed; and, viewing the notice requirements for citizen suits to enforce the requirements of the other two Acts as jurisdictional prerequisites, the court found jurisdiction lacking because of plaintiffs' admitted failure to comply with these requirements. The court rejected plaintiffs' contention that the savings clause of either statute in combination with 28 U.S.C. § 1331 provided an adequate basis for federal court jurisdiction. In addition, the court held that because plaintiffs were not states, jurisdiction could not be sustained under 28 U.S.C. § 1331 and the federal common law of nuisance. Having concluded that it had no jurisdiction over the federal claims, the court dismissed the pendent state law claims.

I. Rivers and Harbors Act

We agree with the district court that a private right of action should not be inferred under § 13 of the Rivers and Harbors Act, ³ which does not expressly create one. ⁴

The Supreme Court has recently made it clear that, when Congress does not expressly create a private cause of action, an intent to do so is not lightly to be inferred. Touche Ross & Co. v. Redington, --- U.S. ----, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Shiffrin v. Bratton, --- U.S. ----, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979) (vacating and remanding for further consideration in light of Touche Ross ); See Cannon v. University of Chicago, --- U.S. ----, 99 S.Ct. 1946, 1967-1968, 60 L.Ed.2d 560 (majority opinion), 1968 (Rehnquist, J., concurring), 1985 (Powell, J., dissenting) (1979); Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). Referring to the four factors stated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court in Touche Ross explained that although each is "relevant," they are not necessarily entitled to equal weight, and, moreover,

(t)he central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort the language and focus of the statute, its legislative history, and its purpose, see 422 U.S., at 78, 95 S.Ct., at 2088 are ones traditionally relied upon in determining legislative intent.

--- U.S. at ----, 99 S.Ct. at 2489. The Court also said,

To the extent our analysis in today's decision differs from that of the Court in (J. I. Case v.) Borak, (377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964)), it suffices to say that in a series of cases since Borak we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today.

Touche Ross v. Redington, supra, --- U.S. at ----, 99 S.Ct. at 2490 (citing Cannon ).

Even before these recent Supreme Court decisions, the Third Circuit refused to infer a private right of action from sections of the Rivers and Harbors Act that are analogous for present purposes, ⁵ and district courts reached the same conclusion with respect to § 13. ⁶

The first factor listed in Cort v. Ash is whether the plaintiff is "one of the class for whose Especial benefit the statute was enacted," Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis supplied) that is, does the statute create a federal right in favor of the plaintiff?

422 U.S. at 78, 95 S.Ct. at 2088. Referring to this factor in Cannon, the majority said,

the Court has been especially reluctant to imply causes of actions under statutes that create duties on the part of persons for the benefit of the public at large.

--- U.S. at ----, 99 S.Ct. at 1954-1955 n.13; See also Touche Ross v. Redington, supra, --- U.S. at ----, 99 S.Ct. 2479. The duties created by the provision relied on by plaintiffs in this case are for the benefit of the public at large. ⁷

As for the second Cort v. Ash factor, neither party cites any legislative history that might shed light on Congress' intent. ⁸

The third factor, the consistency of a private right of action with "the underlying purposes of the legislative scheme," Cort v. Ash, supra, 422 U.S. at 78, 95 S.Ct. at 2088, is not helpful to plaintiffs here. Section 17 of the Act, 33 U.S.C. § 413, expressly delegates enforcement of the provisions of § 13 to the Department of Justice; and § 16 of the Act, 33 U.S.C. § 411, authorizes the district courts to award one-half of any criminal fines imposed on violators of § 13 to "persons giving information which shall lead to conviction." ⁹ While a private right of action would not be inconsistent with either of these provisions, both suggest that Congress intended to leave primary enforcement of the provision of the Act to the Department of Justice. Cf. Red Star Towing v. Department of Transportation, supra note 5, 423 F.2d at 105 & n.3.

The fourth Cort v. Ash factor seems to cut both ways, for the cause of action asserted here, although perhaps "one traditionally relegated to state law," is not "in an area basically the concern of the States." 422 U.S. at 78, 95 S.Ct. at 2088.

No one factor is controlling. Here the first, and arguably, the third factors weigh against implication of a private right of action; the second and fourth are at best only neutral. The central inquiry is congressional intent, Touche Ross v. Redington, supra, --- U.S. at ----, 99 S.Ct. at 2479, and given the "stricter standard for the implication of private causes of action," Id. at ----, 99 S.Ct. at 2490, established in the Supreme Court's most recent decisions in this area, we think the evidence insufficient to support the conclusion that Congress intended to create a private right of action under § 13 of the Rivers and Harbors Act. ¹⁰

II. Federal Water Pollution Control Act

Relying primarily on Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975), plaintiffs contend that the district court erred in holding that jurisdiction was lacking under the Federal Water Pollution Control Act Amendments ¹¹ because they had failed to comply with the notice provisions of § 505. ¹² More specifically, plaintiffs contend that the district court had jurisdiction of their FWPCA claims under 28 U.S.C. § 1331 by operation of the "saving clause" contained in § 505. ¹³

In the cited case and an earlier case ¹⁴ the Second Circuit joined the District of Columbia Circuit, Natural Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975), in holding that an action could be maintained against an administrative official despite the plaintiff's failure to comply with the FWPCA's 60-day notice requirement. We declined to follow the latter decision in City of Highland Park v. Train, 519 F.2d 681, 693 (7th Cir. 1975), Cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), a case arising under the Clean Air Amendments of 1970, 42 U.S.C. §§ 1857a, Et seq. In any event, these three decisions of other circuits are inapplicable here. In each, the court's focus was on whether it had jurisdiction, ¹⁵ since the Administrative Procedure Act, 5 U.S.C. § 702, provided for review of final agency...