Evansville, City of v. Kentucky Liquid Recycling, Inc.
Citation: 9 ELR 20679
No. No. 78-1578, 604 F.2d 1008/13 ERC 1509/(7th Cir., 08/09/1979)
The Seventh Circuit Court of Appeals reverses the district court's dismissal, for lack of subject matter jurisdiction, of a suit by three municipal utilities for damages from pollution caused by appellees' discharge of toxic substances into the Ohio River. In determining whether appellants properly stated a cause of action on which to support federal jurisdiction, the court agrees with the court below that § 13 of the Rivers and Harbors Act provides neither an express nor an implied right of action. In addition, appellants have not stated a cause of action under the Federal Water Pollution Control Act because their failure to comply with the notice requirement of § 505 precludes reliance on the express right of action provided by that section and because the Act is not to be read to confer an implied private right of action. Appellants' claim under the Safe Drinking Water Act is dismissed because appellees' conduct did not even arguably violate the statute. However, the district court erroneously determined that appellants had failed to state a cause of action under the federal common law of nuisance since they were not sovereign states. Although in Illinois v. Milwaukee, 2 ELR 20201, the United States Supreme Court did not address the scope of the parties entitled to invoke the doctrine, the case law, the authorities, and considerations of policy indicate that the right to invoke the doctrine should extend to state-regulated utilities. The existence of a valid cause of action vests the court with federal question jurisdiction, rendering reliance on Ohio's long-arm statute unnecessary and requiring remand to the district court for further proceedings.
Counsel for Appellants
555 Sycamore St., Evansville IN 47708
John C. Cox
Cox, Mitchell & Staser
522 Main St., Evansville IN 47708
Counsel for Appellees
208 Hulman Bldg., Evansville IN 47708
Robert G. Breetz
Stites, McElwain & Fowler
3400 First Nat'l Tower, Louisville KY 40202
Before SPRECHER, TONE, and BAUER, Circuit Judges.