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United States v. Kin-Buc, Inc.

Citation: 11 ELR 20472
No. No. 79-514, (D.N.J., 04/14/1981) Motion to dismiss denied

In a suit brought by the United States against the owners of a hazardous waste disposal site, the court denies defendants' motion to dismiss plaintiff's claim under the federal common law of nuisance. First, the court rules that the Federal Water Pollution Control Act Amendments of 1972 did not preempt common law nuisance, at least to the extent that the United States may invoke the doctrine. The court also rejects defendants' claim that plaintiff improperly failed to allege that defendants' actions caused pollution of an interstate body of water. The affected water body need be only a navigable water of the United States to be protected by federal common law. Because the waters allegedly affected by defendants' activities meet the test of navigability, the United States has a proprietary interest in it and thus may seek damages in addition to equitable remedies.

Counsel for Plaintiff
William W. Robertson, U.S. Attorney; Charles S. Crandall, Ass't U.S. Attorney
970 Broad St., Newark NJ 07102
(201) 645-2155

Counsel for Defendants
Mark D. Larner
Budd, Larner, Kent, Gross, Picillo & Rosenbaum
33 Washington St., Newark NJ 07102
(201) 622-7400

Benjamin Weiner
Weiner & Hendler
303 George St., New Brunswick NJ 08903
(201) 846-3100

Edward J. Egan
1703 E. 2d St., Scotch Plains NJ 07076