Jump to Navigation
Jump to Content

Byram River v. Port Chester, Village of

Citation: 5 ELR 20440
No. No. 74 Civ. 4054, 394 F. Supp. 618/7 ERC 1970/(S.D.N.Y., 04/08/1975) state environmental agency's motion to dismiss granted, other defendants' motions to dismiss denied

The court has jurisdiction under the federal common law of nuisance to consider claims for injunctive and declaratory relief against continued pollution of an interstate river through the discharge of inadequately treated sewage from a municipal treatment plant. The Eleventh Amendment bars suit by the plaintiffs, which include the river itself, against the New York State Department of Environmental Conservation (DEC), but not against a tri-state sanitation commission or the DEC Commissioner in his official capacity, even though the eventual granting of relief may require an expenditure of state funds. The motions of these defendants to dismiss for failure to state a claim are denied, since the administrative remedies which defendants claim must first be exhausted have proved ineffectual for over 14 years. Although the roles of several of the defendants in creating the nuisance are tenuous, non-feasance by these agencies and individuals in failing to construct a secondary sewage treatment plant to abate the pollution is declared a valid cause of action.

Counsel for Plaintiffs
Haynes N. Johnson
Parmelee, Johnson & Bollinger
460 Summer Street
Stamford, Conn. 06901

A. William Mottolese
Town Hall
Greenwich, Conn. 06830

Counsel for Defendants
Louis J. Lefkowitz Attorney General
Julius Feinstein Asst. Attorney General
State Capitol
Albany, N.Y. 12224

Gerald Harris County Attorney
Sherwood Alexander Asst. County Attorney
County Office Building
White Plains, N.Y. 10601

McKirdy, Riskin & Krieger
10 Park Place
Morristown, N.J. 07960