Ventnor City v. Fri

No. 1101-73 (D.N.J. March 8, 1974)

The court dismisses an action seeking injunctive relief against EPA approval of a federal grant for the construction of a sewerage treatment plant in Atlantic City. Plaintiffs' claim that additional studies of alternative methods of sewerage disposal are required is jurisdictionally defective, since the Federal Water Pollution Control Act Amendments of 1972 clearly provide that plaintiffs must give 60 days notice prior to filing a citizen suit, and no such notice was given in this case.

Counsel for Plaintiffs
Martin L. Blatt
Blatt, Blatt & Mairone
3201 Atlantic Ave.
Atlantic City, N.J. 08401

Counsel for Defendants
Z. Lance Samay Asst. U.S. Attorney
U.S. Courthouse
Federal Square
Newark, N.J. 07102

[5 ELR 20029]

Cohen, J.

On July 27, 1973, plaintiffs instituted this action seeking various kinds of injunctive relief against the Department of Environmental Protection of the State of New Jersey and the Atlantic [5 ELR 20030] County Sewerage Authority in connection with the selection of a method of sewerage disposal for Atlantic County, and to compel Administrator Fri to request additional studies and reports of alternative methods of sewerage disposal prior to authorizing a federal construction grant to the Atlantic County Sewerage Authority for the construction of a sewerage treatment plant in Atlantic County, New Jersey.

Plaintiffs' claim is jurisdictionally defective. The sole statutory basis for jurisdiction upon which plaintiffs rely is 33 U.S.C. § 1365. In pertinent part this statute, which allows for citizen suits under the Federal Water Pollution Control Act Amendments of 1972, provides as follows:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. . . .

(b) No action may be commenced —

(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator. . . . Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

Pursuant to § 1365 (b)(2) the Administrator promulgated notice regulations 40 C.F.R. § 135.2 and § 135.3 which were published on June 7, 1973 in 38 Fed. Reg. 15040-41.

The law is clear: in order to bring an action based upon § 1365, a party must first give sixty days notice of such action, and that notice must be given in the manner prescribed by the above-described regulation. If the two-step prerequisite established by § 1365(b) is not fulfilled, a suit cannot be maintained under § 1365(a).

In the instant case plaintiffs failed to give any notice whatever of this action. Because plaintiffs failed to fulfill the notice requirement of § 1365(b), their suit based upon § 1365(a) must fail for want of jurisdiction.

THEREFORE, it is hereby ordered that the defendants' Motion to Dismiss in the above-entitled cause is granted, and plaintiffs' Complaint is hereby dismissed without prejudice.