United States v. Kin-Buc, Inc.

No. 79-514 (D.N.J. April 14, 1981)

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

[11 ELR 20472]

Fisher, J.:

Defendants move this court, pursuant to FED. R. CIV. P. 12(b)(6) and 56, for dismissal or summary judgment, respectively, of plaintiff's 69th cause of action seeking damages in the amount of $1,000,000. Defendants assert that plaintiff's 69th cause of action fails to state a claim upon which relief can be granted because: (1) equitable relief is the sole remedy available to the United States for a federal common-law-of-nuisance claim; (2) the common law has been preempted by specific and exclusive statutory provisions; (3) there is no sufficient allegation of interstate effect or impact; and (4) plaintiff does not have a sufficient claim of right or ownership in the allegedly damaged property. Consequently, defendants urge plaintiff lacks standing and fails to allege a "cognizable cause of action." DEFENDANT BRIEF IN SUPPORT OF MOTION at (i). To support their motion for summary judgment, defendants argue that there is no genuine issue of material facts to bolster plaintiff's damages claim. Plaintiff's arguments essentially controvert defendants'.

This case evolved out of the following scenario. Kin-Buc Landfill in Edison, New Jersey, was operated as a disposal site for solid and liquid municipal, industrial and chemical wastes. In the 1970's these waters, in excess of 70,000,000 gallons of toxic and hazardous substances, were received from over 300 sources located throughout seven states. After numerous fires, and New Jersey Department of Environmental Protection citations, the landfill was closed in June of 1976. On February 9, 1979, plaintiff filed suit against the Kin-Buc owners and operators seeking injunctive relief and penalties pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq., along with damages under the common law of nuisance, for the seeping of toxic and hazardous wastes into adjacent surface waters and nearby groundwaters.

Pursuant to Rule 12(b), matters presented outside the pleading on a 12(b)(6) motion transform it into a Rule 56 summary judgment. See generally 5 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366 (1969). All parties have received reasonable notice of the transformation and the parties expressly recognize the court's conversion power.

To earn summary decision, a party must merit judgment as a matter of law upon genuinely indisputable material facts. FED. R. CIV. P. 56(c). Only a clear showing of authentic nondispute will satisfy the Rule 56(c) standard demanding the absence of triable fact issues. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978). The movant bears this burden. Manetas v. International Petroleum Carriers, Inc., 541 F.2d 408, 413 (3d Cir. 1976). The opposing party receives the benefits of all reasonable doubts and inferences drawn from underlying facts. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977); Cinema Service Corp. v. Twentieth Century-Fox Film Corp., 477 F. Supp. 174, 175 (W.D. Pa. 1979). It appearing that there is no issue as to material facts, this case is appropriate for summary disposition.

The threshold issue in analyzing the plaintiff's claim for damages under the federal common law of nuisance lies in the preemptive nature, or lack thereof, of the Federal Water Pollution Control Act (FWPCA) and the Clean Water Act of 1977. If these acts preempt the federal common law of nuisance, plaintiff's claim is meritles. Otherwise, we can go forward and scrutinize the propriety of damages for the United States under the nuisance claim.

When a party alleges that a statute invades the common law, that statute must be read with a presumption favoring retention of long-established and familiar principles, unless a contrary purpose is expressed. Isbrandsten v. Johnson, 343 U.S. 779 (1951). 33 U.S.C. § 1371(a) provides in pertinent part

[t]his chapter shall not be construed as (1) limiting the authority or functions of any officer or agency of the United States under any other law or regulation not inconsistent with this chapter.

(Emphasis added.) There is no question that federal common law falls within the definition of "laws of the United States." See Ivy Broadcasting Co. v. Amer. Tel. & Teleg., 391 F.2d 486, 492 (2d Cir. 1968). This and similar savings clauses are held to preserve the common-law-unisance remedies. United States v. Atlantic-Richfield Company, 478 F. Supp. 1215, 1220 [10 ELR 20089] (D. Mont. 1979). Thus, the language of § 1371(a) is broad enough that it does not require the conclusion that Congress intended to preempt the federal common law of nuisance. People of State of Illinois v. City of Milwaukee, 599 F.2d 151, 162 [9 ELR 20347] (7th Cir. 1979); People of State of Illinois v. Outboard Marine Corp., 619 F.2d 623, 626 n.13 [10 ELR 20323] (1980); see Illinois v. City of Milwaukee, 406 U.S. 91 [2 ELR 20201] (1971).

While defendants point to language in Illinois v. City of Milwaukee, [11 ELR 20473] 406 U.S. at 107, that left open the possibility of legislation subsequent to the 1972 FWPCA being so comprehensive as to preempt federal common law, I do not find the 1977 Clean Water Act abolishing an action by the United States for nuisance. That act, comprehensive in its regulation of pollutants, in no way changes the provisions of § 1371(a). Further, even though the United States may have remedies available to it beyond the federal common law of nuisance, absent an express Congressional mandate, I cannot and should not abrogate common-law remedies.

Another preliminary issue concerns the necessity of an interstate-impact allegation by plaintiff. Defendants assert that plaintiff fails to allege sufficiently an interstate impact and thereby fails to state a federal basis to this action. The authority of Congress over navigable waters is based on the Constitution's grant to Congress of "Power . . . to regulate commerce with Foreign Nations and among the several States . . . ." (Art. 1, § 8, cl. 3); Gibbons v. Ogden, 22 U.S. 1 (1824). Although most interstate commerce was, at one time, operated on waterways, there is no requirement in the Constitution that the waterway must cross a state boundary in order to be within the interstate-commerce power of the federal government. Rather, it is enough that the waterway serves as a link in the chain of commerce among the states as it flows in the various channels of transportation. United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1324 [4 ELR 20784] (6th Cir. 1974), citing 118 CONG. REC. 33756-57 (1972).

The legislative history of the FWPCA indicates that Congress intended the term "navigable waters" to be given the broadest possible Constitutional interpretation. S. CONF. REP. NO. 92-1236, 92d Cong., 2d Sess. 144, 2 U.S. CODE CONG. & AD. NEWS, pp. 3776, 3822 (1972). The Environmental Protection Agency has interpreted the statutory definition to include "tributaries of navigable waters in the United States." 40 C.F.R. § 125.1(p)(2).

Reserve Mining Co. v. EPA, 514 F.2d 492 [5 ELR 20596] (8th Cir. 1975), and Committee for Jones Falls Sewerage System v. Train, 539 F.2d 1006 [6 ELR 20703] (4th Cir. 1976), generally require an allegation of interstate impact to support a federal common-law-nuisance action. However, Train casts doubt on whether the United States must allege an interstate harm. Id. at 1009. Further, the deficient complaint in Reserve only alleged that Reserve's discharge "significantly endangers the health of all those persons living in the vicinity of . . . operations." Id. at 521. In contrast, People of State of Illinois v. Outboard Marine Corp., 619 F.2d at 629, states that

[a]s we read Illinois v. City of Milwaukee, the Supreme Court explicitly recognized a federal common law action to abate pollution in "interstate or navigable waters." There is no basis for putting a gloss on the Supreme Court holding that would restrict its application to situations in which one state complains of damage to its environment or ecology by a pollution source in another state.

Clearly, Outboard represents a more liberal view and, in my opinion, the better view of what allegation is necessary to support a federal common-law action for pollution.

Plaintiff alleges that the Raritan River, the New York harbor and its environs have been despoiled by defendants' actions. These allegations certainly identify enough of an interstate impact and, alternatively, pollution of a navigable water, to support the jurisdiction of plaintiff's federal action. See also United States v. Byrd, 609 F.2d 1204, 1209 [9 ELR 20757] (7th Cir. 1979). To require more of a complaint for federal common law of nuisance would contravene the act.

Next, I must perform a two-fold task and confront the propriety of plaintiff's damages claim under the federal common law of nuisance, which defendants allege is improper, in light of the assertion that the United States does not have a cognizable claim or interest to support this action. In its origin, public nuisance was a criminal act and remained such until the sixteenth century when, as an incidental remedy, tort damages were first awarded to private individuals who could show that they had suffered particular harm, distinct from that suffered by other members of the public in general. RESTATEMENT (SECOND) OF TORTS, Introductory Notes § 821A, p. 84 (1978). For a nuisance to exist, there must be harm to another or the invasion of an interest. Id. at 86. Thus, we must examine the United States' interest in this action before we address the propriety of a damages request for public nuisance. The test is whether the United States has an interest to protect. See United States v. Republic Steel Corp., 362 U.S. 482, 492 (1960).

For the exercise of the power to regulate commerce, the navigable waters of the United States are deemed to be the "public property of the nation . . ." Wyandotte v. United States, 389 U.S. 191, 201 (1967) (emphasis added). Under the Rivers and Harbors Act, a principal beneficiary of the legislation, if not the principal beneficiary, is the government itself. Id. at 201 (emphasis added). The language of the FWPCA and its legislative history show that the Congress was convinced that uncontrolled pollution of the nation's waterways is a threat to the health and welfare of the country, as well as a threat to its interstate commerce. United States v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1325 [4 ELR 20784] (6th Cir. 1974). The expanded concept of navigable waters discussed above reflects the congressional concern with the purity and quality of the waters. It is also explicit in the goals of the 1972 Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." People of State of Illinois v. Outboard, 619 F.2d at 628.

The United States clearly has a proprietary interest in the navigable waters of the Raritan Bay, bounded by two states. See United States ex rel. Scott v. U.S. Steel Corp., 356 F. Supp. 556, 558 [3 ELR 20204] (N.D. Ill. 1973). Consequently, plaintiff must be able to sue to protect "the national interest in the quality of air and water in their ambient or interstate aspects." United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145, 149 [2 ELR 20557] (D. Vt. 1972), aff. mem., 487 F.2d 1393, cert. denied, 417 U.S. 976 (1974). Both the Second and Third Circuits have indicated that the United States can state a claim for relief under the federal common law of interstate water pollution. City of Evansville, Ind v. Kentucky Liquid Recycling, 604 F.2d 1008, 1019 [9 ELR 20679] (7th Cir. 1979), citing United States v. Stoeco Homes, 498 F.2d 597, 611 [4 ELR 20390] (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975); see also United States v. Solvents Recovery Service of New England, No. 79-704, slip op. [10 ELR 20796] (Aug. 21, 1980, D. Conn.) (where the United States was allowed to intervene in a suit for groundwater contamination). Thus, it seems beyond question that the United States has an interest in the Raritan Bay and can sue to protect that interest.However, even if the United States has an interest to protect in this action, the propriety of damages for the United States under the federal common law of nuisance must be addressed.

Once the existence of a nuisance is established, the plaintiff normally has three possible remedies: an action for the damages which he has suffered, equitable relief by injunction, and abatement by self-help. W. PROSSER, HANDBOOK OF THE LAW OF TORTS, pp. 602-606 (4th ed. 1971). Where the equitable jurisdiction of the court has properly been invoked for injunctive purposes, the court has the power to decide all relevant matters in dispute and to award complete relief even though the decree includes that which might be conferred by a court of law. Alexander v. Hillman, 296 U.S. 222, 241-42 (1935); Porter v. Warner Co., 328 U.S. 395, 399 (1945). In Illinois v. City of Milwaukee, 406 U.S. at 107-08, the Court said that in pollution suits there is "[n]o fixed rule that governs, these will be equity suits in which the informed judgment of the chancellor will largely govern." Defendants seize upon this language and argue that the Court only foresaw injunctive remedies for the United States and that damages cannot be secured unless done so by a private plaintiff. This court, however, feels that the United States, as any other plaintiff whose interest has been harmed by a nuisance, can collect damages.

Generally, the remedies Congress provides are not necessarily the only federal remedies available. Illinois v. City of Milwaukee, 406 U.S. at 103; see Textile Workers v. Lincoln Mills, 353 U.S. 448, 457 (1956). This is especially true when the equitable jurisdiction of the court is invoked, since complete relief can be afforded an aggrieved party even if it encompasses legal remedies such as damages. Alexander v. Hillman, 296 U.S. 222; Porter v. Warner Co., 327 U.S. 395. Limitations on remedies are not readily inferred when the United States, as distinguished from all others, is concerned. United States v. Atlantic-Richfield Company, 478 F. Supp. at 1219. When Congress wanted to limit the remedies available [11 ELR 20474] to the government under the Rivers and Harbors Act, for example, it did so specifically. United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145. It has not done so here.

In National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1230 n. 31 [10 ELR 20155] (3d Cir. 1980), the court gleaned a private right of action for damages under § 1365 (citizens suits) stating that ". . . the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available." Further, in City of Evansville, Ind. v. Kentucky Liquid Recycling, 604 F.2d at 1019, the court stated that "[t]he remedies appropriate for the violation of duties imposed under the federal common law of water pollution will necessarily depend upon the facts in a particular case." The court went on, at footnote 34,

Additional support for the conclusion we reach on this point may be found in the Supreme Court's references to the law to "public nuisance" . . . . For in such suits plaintiffs found to meet the "particular injury" requirements for maintaining a suit for public nuisance [like United States here] traditionally have been awarded damages or equitable relief depending upon the circumstances . . . .

(Citations omitted.) Defendants' reliance on Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652 [10 ELR 20882] (1st Cir. 1980) is misplaced. That court did not decide the propriety of the United States seeking damages. Id. at 671 n.20.

Thus, we find nothing in Illinois v. City of Milwaukee, 406 U.S. 91 [2 ELR 20201] (1972), that supports the conclusion that equitable relief is exclusive or that a request for such relief is essential. City of Evansille, Inc. v. Kentucky Liquid Recycling, 604 F.2d at 1019 n.32. This is especially true even though these types of suits have been labeled "equitable." Since the Acts do not preclude damages for private persons or for municipalities, it follows, in light of the United States' interest in water pollution and from the general law of public nuisance, that damages are appropriate for the United States in this action.

Defendants' motion is denied. Plaintiff shall submit an order. No costs.