Township of Long Beach v. City of New York

• Decision Date: 24 January 1978
• Docket Number: Civ. No. 76-1930.
• Citation: 445 F. Supp. 1203
• Parties: TOWNSHIP OF LONG BEACH, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — District of New Jersey

445 F. Supp. 1203

TOWNSHIP OF LONG BEACH, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

Civ. No. 76-1930.

United States District Court, D. New Jersey.

January 24, 1978.

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Shackleton, Hazeltine, Zlotkin & Dasti by Richard J. Shackleton, Ship Bottom, N. J., for plaintiff.

Philip R. Kaufman, Spotswood, N. J., W. Bernard Richland, Corp. Counsel, New York City, for defendant City of New York.

Robert J. Del Tufo, U. S. Atty., Trenton, N. J. by Carl R. Woodward, III, Newark, N. J., for defendants Environmental Protection Agency and Russell E. Train, Administrator of the Environmental Protection Agency.

MEMORANDUM

CLARKSON S. FISHER, District Judge.

The controversy here presented is a familiar and continuing problem in the New Jersey shore area. It involves the dumping of garbage and sludge by the City of New York into the Hudson River and the Atlantic Ocean. The alleged result of such acts is the sludge which has settled on the ocean floor and spread in some areas to the beaches and resulted in a massive fish-kill which has occurred off the New Jersey coast line. The Township of Long Beach brings this action for injunctive and declaratory relief against the City of New York (hereinafter City), the Environmental Protection Agency (hereinafter EPA) and the Administrator of the EPA.

Jurisdiction of this Court is invoked pursuant to the Federal Water Pollution Control Act (hereinafter FWPCA), 33 U.S.C. § 1365, and the Marine Protection, Research and Sanctuaries Act of 1972 (hereinafter MPRSA), 33 U.S.C. § 1415. Jurisdiction is also grounded upon the following general jurisdictional provisions: 28 U.S.C. §§ 1331(a), 1332(a)(1) and 1337.

Plaintiff alleges that the City's discharge of waste into the Hudson River and the federal defendants' failure to establish a comprehensive program preventing, reducing or eliminating the pollution of the navigable waters of the Hudson River and the Atlantic Ocean are violative of the FWPCA, 33 U.S.C. § 1251 et seq. It also is contended that the issuance of certain permits by the federal defendants to the City allowing dumping violates the MPRSA, 33 U.S.C. § 1401 et seq., in that the City is allowed to dump material violating applicable water quality standards for the Hudson River and Atlantic Ocean and that such dumping has adversely affected both human health and welfare and marine environmental and ecological systems. It is further stated that the City has not complied with the permits, thereby violating the MPRSA. Plaintiff also charges the City with a violation of Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, in that the City has discharged refuse other than that flowing from streets and sewers and passing therefrom in a liquid state into the Hudson River and the Atlantic Ocean. It is further contended that the City, by its acts, and the federal defendants, by their failure to act, have violated the rights of the citizens of the plaintiff which emanate from the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution and have created and are maintaining a public nuisance.

Motions for dismissal based on various jurisdictional grounds and for failure to state a claim upon which relief can be granted and for summary judgment have been made by the defendants. The federal defendants have also moved for dismissal based upon improper venue,¹ the City apparently conceding that it waived the right to raise such a defense. See F.R. Civ.P. 12(h).²

Although jurisdictional questions normally should be addressed by the Court before the issue of venue, I decline to do so. There is no question that there is a split of authority among the federal courts with respect to many of the jurisdictional and standing issues presented herein. If this action is properly before a federal court in one of the districts of New York, I do not believe that I should decide these questions and thereby pronounce the law of the case in the event that such a court would decide the issues differently. I will, therefore, proceed to address the question of venue.³

It first is contended that the general venue statute, 28 U.S.C. § 1391(b),⁴ conclusively limits venue to either the Eastern or Southern District of New York. This belief is based on the view that the claim arose in New York and, obviously, the City does not reside in New Jersey. Although admitting that the venue language is permissive, a similar argument is made with respect to the venue provision of the MPRSA, 33 U.S.C. § 1415(g)(3)(A).⁵ This argument is rejected. It seems patently obvious that the claim upon which this action is based can be considered to have arisen in New Jersey as that certainly is the place where the effect of the alleged violations have weighed most heavily and it is the situs at which the injury occurred. See generally Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 252 (E.D.Pa.1968).

The venue provision of the FWPCA, 33 U.S.C. § 1365(c)(1), however, causes this Court to pause. That section provides that "any action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation may be brought under this section only in the judicial district in which such source is located." Plaintiff argues that this provision does not control the action brought against the federal defendants. Plaintiff points to the provision which allows citizen suits, which reads as follows:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(1) against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365. It is contended that a plain reading of the venue provision establishes that it encompasses only an "action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation." 33 U.S.C. § 1365(c)(1).

No case law addressing this problem has been found. The Court must agree, however, that the venue provision appears to apply only to the action described in 33 U.S.C. § 1365(a)(1). The venue objection is made on behalf of the federal defendants. The claim against them is based on the action for which provision is made in 33 U.S.C. § 1365(a)(2).

The reason behind the application of the venue provision to the former action is obvious. It would be burdensome to require the violator to defend itself in various forums other than that where the source is located. This reason is not, however, applicable when the suit is against the federal agency and the administrator thereof. I therefore concur with plaintiff's interpretation of the statute and hold that 33 U.S.C. § 1365(c)(1) does not control an action brought pursuant to 33 U.S.C. § 1365(a)(2). Accordingly, I deny the federal defendants' motion for dismissal pursuant to F.R.Civ.P. 12(b)(3) for improper venue.

Defendants contend that this Court lacks subject matter jurisdiction over that portion of this suit which is based on the FWPCA because of plaintiff's failure to comply with 33 U.S.C. § 1365(b), which reads as follows:

(b) No action may be commenced —

(1) under subsection (a)(1) of this section —

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,

except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

Plaintiff states that jurisdiction is conferred upon the Court by 28 U.S.C. § 1331 and 33 U.S.C. § 1365(e). This latter statute, which is part of the FWPCA, provides that "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)."

A number of cases supporting plaintiff's position hold that compliance with the notice provision of the FWPCA is not the exclusive way in which a suit based on alleged violations of the FWPCA can be properly brought before the Court. These cases hold that jurisdiction over the subject matter can be obtained if jurisdiction is alleged to arise under 28 U.S.C. § 1331(a).⁶ See Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84 & n. 4, 94 (2d Cir. 1975); Natural Resources Defense Council, Inc. v. Train, 166 U.S.App. D.C. 312, ...