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Massachusetts v. U.S. Veterans Admin.

Citation: 6 ELR 20666
No. No. 76-1090, 541 F.2d 119/9 ERC 1507/(1st Cir., 08/26/1976)

The First Circuit affirms a lower court's dismissal for lack of jurisdiction of this action charging a federal installation with violating the municipal sewage system tie-in timetable contained in its National Pollutant Discharge Elimination System (NPDES) permit. Plaintiff failed to wait the required 60 days after giving notice of intent to file suit before actually bringing this "citizen suit" action under § 505(a) of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) seeking civil penalties under § 309(d) of the statute. The court rejects plaintiff's assertion of "constructive compliance" with the § 505(b) notice requirement. Plaintiff's contention that the court has jurisdiction under the general federal question statute is likewise mistaken. Noting that there is presently a significant judicial debate as to whether causes of action based upon violations of the FWPCA can be asserted under federal question jurisdiction rather than under grants of jurisdiction expressly provided in the Act, the court finds it unnecessary to resolve this issue because bringing this action under federal question jurisdiction is clearly barred by sovereign immunity. A reading of the FWPCA and its legislative history establishes that Congress consented only to suits brought under § 505(a), and did not extend this waiver to non-statutory common law nuisance suits.

Counsel for Plaintiff-Appellant
Charles Corkin, II
Anton T. Moehrke Asst. Attorneys General
Environmental Protection Division
131 Tremont St., 7th Floor
Boston MA 02111
(617) 727-2265

Counsel for Defendant-Appellee
Neil T. Proto
Jacques B. Gelin
Douglas K. Miller
Department of Justice
Washington DC 20530
(202) 739-3888

James N. Gabriel, U.S. Attorney
William A. Brown, Asst. U.S. Attorney
1107 John W. McCormack P.O. & Courthouse
Boston MA 02109
(617) 223-3181

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.