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April 8, 1975


The opinion of the court was delivered by: KNAPP



 This suit seeks to stop the depositing of inadequately treated sewage into the Byram River ("the River") by the sewage treatment plant owned and operated by defendant Village of Port Chester. The River (which is named as a plaintiff in the action) is a federal navigable river which forms a portion of the boundary line between Connecticut and New York, and eventually flows into Long Island Sound. The other plaintiffs are the Byram River Pollution Abatement Association, a Connecticut corporation created to protect and improve the quality of the River's water; the Town of Greenwich, Connecticut, a municipal corporation bordering on the River; and J.A.B. Haughwout, an individual who lives on the Connecticut shores of the River, and is allegedly directly and adversely affected in the use of his land because of the pollution.

 The defendants are the Village of Port Chester, a municipal corporation of the State of New York, which owns and operates the sewage treatment plant alleged to be polluting the River; the County of Westchester, in which Port Chester is located, and which along with Port Chester bears the primary responsibility for designing and constructing a new sewage treatment plant; Alfred Del Bello, the Chief Executive of Westchester County; the Interstate Sanitation Commission ("Interstate Commission"), a tri-state body established with the approval of Congress to prevent pollution of certain waters including the River; Thomas Glenn, the director of the Interstate Commission; the New York State Department of Environmental Conservation ("DEC"), which establishes standards for the construction of sewage plants and approves such plans; and James L. Biggane, the Commissioner of the DEC.

 Plaintiffs allege that all of the defendants are jointly and severally liable for non-feasance in having failed to construct a secondary sewage treatment plant which would abate the pollution of the River. The plaintiffs seek broad equitable and declaratory relief, including an order setting a timetable for completion of an adequate sewage treatment plant; the appointment of a receiver to supervise the designing and construction of such a facility; a declaration that the defendants have been derelict in their respective duties; and a declaration that under priority guidelines established by the DEC for federal funding of sewage treatment plants, defendant Port Chester would qualify for Federal funding in the current fiscal year.

 All of the defendants, except the Village of Port Chester, have filed motions urging that the action be dismissed on a wide variety of grounds. It should be noted that the controversy over who is responsible for the River's pollution has been before courts and agencies for over fourteen years. The River's substandard condition is a matter of record, and none of the defendants in this action are newcomers to the dispute. It was as early as May, 1961 that the Interstate Commission found the River to be polluted and ordered Port Chester to construct new facilities by 1963 to abate the discharge of raw and only partially treated sewage. When Port Chester failed to comply, an action was brought by the Interstate Commission in the New York State courts. In May, 1966, the State Supreme Court ordered facilities to be completed by May, 1968. In February, 1968, the court approved an extension of time until 1971. A further complication arose in December, 1969 when the County of Westchester made Port Chester a part of its newly-created Port Chester Sanitary Sewage District. The County then hired an engineering firm to develop a plan for new facilities, and in April, 1972, the County submitted the proposal for approval to the DEC so that federal and state funding could be arranged. A year later, in April, 1973, the DEC informed the County that the proposal was "not acceptable."

 This federal court action was originally filed in the District of Connecticut. In an unreported memorandum decision dated August 21, 1974, Judge Jon O. Newman dismissed the action as to all defendants other than the Village of Port Chester for lack of in personam jurisdiction. In order to allow the plaintiffs to secure relief against all the defendants, he then transferred the case to this district where in personam jurisdiction as to all the defendants could be obtained.

 Without analyzing all of plaintiffs' various theories of subject matter jurisdiction, it is sufficient to note that federal jurisdiction is properly predicated on 28 U.S.C. § 1331 to consider the claim of a nuisance upon interstate waters in violation of federal common law. Illinois v. City of Milwaukee (1972) 406 U.S. 91, 31 L. Ed. 2d 712, 92 S. Ct. 1385. See also Judge Newman's unreported decision. Of course, if this action is barred by the Eleventh Amendment, as several defendants so contend, see discussion, infra, then neither 28 U.S.C. § 1331 nor any of plaintiffs' other claimed jurisdictional bases, including the civil rights statute, 42 U.S.C. § 1983, would nullify the protection the constitutional amendment affords the defendants. Edelman v. Jordan (1974) 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347; Rothstein v. Wyman (2d Cir. 1972) 467 F.2d 226, cert. denied 411 U.S. 921, 36 L. Ed. 2d 315, 93 S. Ct. 1552 (1973).


 The defendants County of Westchester and Alfred Del Bello, the County Executive, move to dismiss the action upon the grounds that the court lacks subject matter jurisdiction over the proceeding, or, in the alternative, that the complaint fails to state a claim upon which relief can be granted. Both contentions must be rejected.

 Westchester's subject matter jurisdiction claim is based on the contention that plaintiffs have not complied with Section 52 of the New York State County Law, McKinney's Consol. Laws of New York. *fn1" That provision, which incorporates Sections 50-e and 50-i of the General Municipal Law, McKinney's Consol. Laws, *fn2" requires that before an action against a county or its employees can be brought, a notice of claim must be filed with the county within ninety days after the cause of action accrued. The defendants maintain that the failure to comply with this statutory requirement constitutes a fatal defect which requires the dismissal of the complaint.

 The difficulty with defendants' argument, is that both defendants have for some time had actual and prompt notice of the claim and this lawsuit. As noted above, the present amended complaint is substantially identical to the complaint filed in the District of Connecticut in November, 1973. In such circumstances it is clear that the defendants are estopped from making an argument under Section 52 of the County Law. McCabe v. Nassau County Medical Center (2d Cir. 1971) 453 F.2d 698.

 Defendants' second contention -- that the complaint fails to state a cause of action upon which relief can be granted -- can be quickly disposed of. The defendants argue that administrative procedures and negotiations between Westchester and the other defendants are now being carried out pursuant to the provisions of the Environmental Conservation Law of New York to accomplish the identical result which plaintiffs seek in this action -- the planning and construction of a new sewage treatment plant. They maintain in essence that these administrative remedies should first be exhausted prior to the resort to legal action in the federal courts.

 In view of the procedural history of this case, such an argument seems frivolous. Administrative proceedings have proven ineffectual for over fourteen years, and the Byram River continues to be a depositary for raw and untreated sewage. While this Court usually grants deference to state administrative procedures, in this situation any further delay in this litigation would be unconscionable. See McKart v. United States (1969) 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657; Eisen v. Eastman (2d Cir. 1969) 421 F.2d 560, cert. denied 400 U.S. 841, 27 L. Ed. 2d 75, 91 S. Ct. 82; Frost v. Weinberger (E.D.N.Y. 1974) 375 F. Supp. 1312, 1320.

 Accordingly, the motions to dismiss by the County of Westchester and Mr. Del Bello are denied.


 The New York State Department of Environmental Conservation, James Biggane, the Interstate Commission, and Thomas Glenn all seek the dismissal of the complaint on the grounds that the action is barred by the Eleventh Amendment to the Constitution. This motion will be granted only as to the Department of Environmental Conservation.

 The Eleventh Amendment to the Constitution states:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

 While the Amendment by its own terms does not bar suits against a State by its own citizens, the Supreme Court has consistently ruled that an unconsenting State is protected from suits brought in federal courts by her own citizens as well as by citizens of another state. Hans v. Louisiana (1890) 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504; Parden v. Terminal R. Co. (1964) 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207; Employees v. Missouri Public Health Dept. (1973) 411 U.S. 279, 36 L. Ed. 2d 251, 93 S. Ct. 1614; Edelman v. Jordan (1974) 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347. It is also well settled that even though a state is not named as a defendant in an action, the suit may still be barred by the Eleventh ...

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