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New Brunswick, City of v. Milltown, Borough of

Citation: 12 ELR 20803
No. Nos. 81-2906, -2907, 686 F.2d 120/17 ERC 1937/(3d Cir., 07/22/1982) Aff'd

The Third Circuit affirms the district court's ruling, 12 ELR 20136, that § 204(b)(1) of the Federal Water Pollution Control Act (FWPCA) authorizes the Environmental Protection Agency (EPA) to withhold sewage treatment grant funds from a county sewerage authority to which a municipality without a user charge system indirectly discharges its sewage. Pursuant to a contract, Milltown sends its sewage to New Brunswick, a participating member of the Middlesex County Utilities Authority (MCUA), for disposal without charge and New Brunswick then sends the combined flows from the two municipalities to the MCUA. The Court rules that the language of the FWPCA and the implementing regulations support EPA's determination to withhold funds from the MCUA based upon Milltown's failure to adopt a user charge system. Milltown is a recipient of the MCUA's waste treatment services within the meaning of § 204(b)(1) since sewage generated in Milltown is, in fact, treated by the MCUA and Milltown is within the MCUA's jurisdiction since it is within the territory serviced by the Authority. The court rejects appellants' contentions that withholding grant funds from the MCUA merely because Milltown has no user charge system contravenes the underlying purposes of the FWPCA or constitutes an abuse of discretion. Finally, the court upholds the constitutionality of § 204(b)(1), ruling that the user charge requirement neither abrogates the Milltown-New Brunswick contract nor makes its impairment necessary or inevitable.

Counsel for Appellants
Milton B. Conford, Francis X. Journick
Wilentz, Goldman & Spitzer
900 Rte. 9, P.O. Box 10, Woodbridge NJ 07095
(201) 636-8000

Arnold K. Mytelka, Roger S. Clapp, Robert S. Seguin
Clapp & Eisenberg
80 Park Plaza, Newark NJ 07102
(201) 642-3900

Counsel for Appellees
Carol E. Dinkins, Ass't Attorney General; Donald W. Stever Jr., Rosanne Mayer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5409

James M. Cahill, Ass't City Attorney
78 Bayard St., New Brunswick NJ 08903
(201) 745-5025

Garth, J. joined by Becker and Fullam,* JJ.