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Catskill Mountains Chapter of Trout Unlimited v. City of New York

            The Shandaken tunnel carries water from the Schoharie Reservoir to the Esopus Creek in the Catskills, which then flows into the Ashoken Reservoir.  New York City DEP operates this tunnel as part of its water supply system.  Esopus Creek is a renowned trout fishing stream.  Unfortunately, the water that is piped in from Schoharie Creek is of much lower quality than the natural flow in the Esopus, and contains high amounts of suspended solids, clouding the clear waters of the Esopus, and ruining the Esopus for trout fishing.  DEP has no Clean Water Act permit for this discharge of contaminated water into the Esopus Creek.

            Pace Environmental Litigation Clinic filed a notice of intent to sue DEP on behalf of Riverkeeper and several other Catskill sportsmen’s organizations.  During February, 1999, through March, 2000, Clinic lawyers and interns have held a series of meetings with New York City DEP, New York State DEC, and the Attorney General’s office to determine if a negotiated resolution was possible.

            These negotiations proved unsuccessful when New York City announced it felt no obligation to clean up the discharge, and the Clinic filed a complaint under the Clean Water Act on March 31, 2000.  The City moved to dismiss, claiming that discharge of already polluted water from one watershed into another could not be the “addition” of a pollutant in violation of the Clean Water Act.  Clinic student Michelle Land briefed the case over the Summer, and Clinic student Basil Seggos argued the motion before the Northern District of New York in September.  Despite recent First Circuit precedent holding that the Clean Water Act applied in exactly these circumstances, the court granted the City’s motion to dismiss.

            The Clinic appealed the dismissal, and the appeal was argued on May 25, 2001.  On October 23, 2001, the Second Circuit reversed the District Court’s dismissal and reinstated Trout Unlimited’s claims.  In June, 2002, the District Court granted plaintiffs’ motion for summary judgment declaring liability.

            The Clinic conducted the penalty and relief trial of this matter on January 8–16, 2003.  Clinic students presented opening statements and conducted witness examinations and cross examinations.  The trial resulted in a $5.7 million penalty being assessed against the City of New York, along with injunctive relief requiring New York City to obtain a permit for the discharge within 18 months.

            New York City filed an appeal from this judgment, which was adjourned pending the Supreme Court’s determination of South Florida Water Management District v. Miccosukee Tribe of Indians.   Following the Supreme Court’s decision in that case, the appeal was fully briefed during the Summer of 2004.  However, despite repeated communication with the Second Circuit Court of Appeals urging the Court to set a date for oral argument, the Clinic received an Order dated April 18, 2005 adjourning oral argument (which had been set for May 26, 2005) to an unspecified later date.

            In late Summer 2005, the City filed a motion with the Second Circuit to submit a supplemental brief in the appeal.  It also submitted its brief, which argued that a recent “interpretation” by the Environmental Protection Agency supported its construction of the Clean Water Act.  In light of the delay in oral argument, the Clinic filed a Motion to Expedite the Appeal with the Second Circuit in late September.  Though the motion was denied, oral argument was finally scheduled for November 21, 2005.  Before oral argument, the Clinic submitted its Responsive Supplemental Brief to the Second Circuit, which argued that the EPA “interpretation” was not entitled to deference and was a flawed construction of the Clean Water Act.  The Court accepted the supplemental briefs and oral argument was heard as scheduled.  In June of 2006, the Second Circuit issues its opinion affirming the trial court’s liability determination and the penalties assessed (with a minor mathematical correction).  After unsuccessfully moving for reargument or rehearing en banc, in November 2006 the City filed a petition for certiorari to the Supreme Court.  Former Clinic student Sarah Olinger prepared plaintiffs’ opposition to the petition, and the petition was finally denied in February 2007. 

            The state permitting proceedings progressed on a parallel track, as scheduled.  Clinic student Craig Michaels conducted the administrative hearing on behalf of the Trout Unlimited parties.  Post hearing briefs were filed in January 2006, and in the Spring of 2006 we received Commissioner Sheehan’s decision allowing for the issuance of the draft permit as of July 1, 2006.  Because the permit allows for the violation of water quality standards in several circumstances (and without a variances ever having been applied for or granted), and also allows the City and DEC to select the appropriate technology to address turbidity problems in the Esopus without public input, the plaintiffs in the federal case filed an Article 78 proceeding in the Fall of 2006 challenging the Commissioner’s decision and the resulting permit.  The case was initially assigned to Ulster County Supreme Court Justice Michael Kavanagh, but was transferred to Acting Supreme Court Justice Kimberly O’Connor upon Justice Kavanagh’s elevation to the Appellate Division, First department in late 2006.  The Article 78 proceeding was fully briefed by the parties and submitted in November 2007.  On May 8, 2008, the parties conducted oral argument of the causes of action in the petition telephonically.  Clinic Student John Vassallo participated in the oral argument on behalf of the petitioners.  In August 2008, we received a ruling from the court granting our petition on both causes of action and remanding the SPDES permit to DEC.  The City of New York appealed Justice O’Connor’s ruling in our Article 78 proceeding on the grounds that the new EPA rule (see below) has rendered the SPDES permit (and the need for a permit) null and void.  That appeal was fully briefed over the summer, and argued on November 16, 2009.  In January 2010 we received a decision from the Third Department affirming Justice O’Connor’s decision in our favor.  The City sought leave to appeal to the New York Court of Appeals, but their motion was denied.  In October the City filed an application with the DEC seeking variances from the WQBEL’s in the SPDES permit for the Shandaken Tunnel.  We intend to request a hearing on that application as soon as the DEC notices its intent to modify the permit.

            Meanwhile, in 2008, EPA finalized a rule that exempts from NPDES permitting requirements any transfers of water between distinct waters of the United States where such waters are not subject to intervening municipal or industrial uses.  The Clinic has now sued EPA to challenge the water transfers rule as ultra vires and inconsistent with the plain requirements of the Clean Water Act.  Our challenge to the Rule involved a “dual filing” in the Court of Appeals and the Southern District of New York because of uncertainty over which court has original jurisdiction (it is our position that jurisdiction properly lies in the district court).  Our Second Circuit petition was consolidated with several others filed around the country and transferred by the Multi District Litigation panel to the 11th Circuit.  The EPA moved to stay or dismiss our district court case and Clinic students have twice appeared in Court on behalf of the plaintiffs on this motion.  In April 2009, Judge Karas decided to stay our case pending decisions from the 11th Circuit on jurisdiction and/or the merits.

            In 2010, the 11th Circuit decided the appeal of a related case styled Friends of the Evergaldes v. South Florida Water Management District.  The court, purporting to apply Chevron deference, held that the EPA Water Transfers Rule was a permissible exercise of the EPAs discretion.  In light of this decision, our clients have voluntarily withdrawn their petition from the 11th Circuit without prejudice, opting to place “all of their eggs” in the APA challenge to the Water Transfers Rule pending in the district court.

            Last Fall (2012), we received welcome news from the 11th Circuit, as that court agreed with our position that it lacked original jurisdiction over the petitions for review under CWA § 509(b)(1). The Clinic immediately wrote to Judge Karas requesting that he reactivate the case, and Ben Lowenthal, one of our interns, got to appear before Judge Karas to argue against the governement’s position that the stay should continue. Judge Karas ultimately agreed with us and set a summary judgment briefing schedule.  Earlier this semester, a plethora of western states and water management agencies filed motions to intervene in the case, which we decided to oppose in an effort to limit the number of briefs and/or brief pages we would need to respond to.  Another of our legal interns, Braden Smith, addressed the court at this hearing and did a masterful job (Clinic professors received several private compliments from other counsel who were present in court concerning Braden’s performance).

            The Clinic filed a summary judgment motion on behalf of its twelve environmental and sporting NGO clients in March 2013, and we await service of EPA’s answering papers in May 2013.

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Hastings-on-Hudson - ARCO Site

          The old has become new again.  In 2003, Riverkeeper entered into a consent decree with ARCO concerning the investigation and remediation of this site which sits on the Hudson River and is heavily contaminated with PCBs.  After years of cleanup delays (resulting primarily from technical disagreements between ARCO and the DEC), we have recently begun considering  taking action to enforce the consent decree or to otherwise pressure the parties into moving forward with making remedial decisions and moving forward with the cleanup.  In connection with these efforts, we have been meeting over the past two years with representatives of the DEC, the village and ARCO, and we anticipate continuing to stay involved to ensure that this site will finally get the remediation equivalent to that which we bargained for in the 2003 consent decree.  Last winter (2012) we submitted comments on a Proposed Remedial Action Plan issued by NYSDEC for the site, and the Record on Decision was issued last Spring (2012). The next step will be negotiations with BP-ARCO and the Village concerning modifications to the old federal consent decree.

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Kentucky Mountaintop Removal Mines

            In October 2010 the Clinic issued notices of intent to sue three companies (two ICG subsidiaries and one Trinity Coal subsidiary) operating in eastern Kentucky for fraudulent DMR reporting and other permit violations.  The notices were served on behalf of Waterkeeper Alliance, Kentucky Riverkeeper, Appalachian Voices and Kentuckians for the Commonwealth. Last week, two days before the notice period elapsed, the State announced that it had filed enforcement proceedings against all three companies and simultaneously submitted consent judgments for the court’s approval.

            The Clinic submitted intervention papers and a hearing was conducted before a Kentucky state court judge on December 14, 2010.  Clinic intern Peter Harrison participated in the argument at the hearing.  The state court ultimately granted our motion to intervene and then engaged in a contentious and difficult discovery period.  An evidentiary hearing was conducted in August 2011 for the purpose of testing whether the proposed consent judgments are “fair, reasonable and in the public interest,” and the Court has reserved decision on that issue.  Following the hearing the Court issued a mediation order requiring all parties to spend a day with a mediator in an effort to resolve the disputes.  The mediation was conducted in January 2012 and led to extensive settlement negotiations with the coal companies and the Cabinet.  The Clinic has been working with its clients and local counsel to support their settlement efforts.

            We received excellent news last Spring (2012) that buttressed our negotiating leverage.  The Kentucky Supreme Court issued an opinion in which it rejected applications by the coal companies and the Cabinet for extraordinary relief in the form of a writ of prohibition.  The coal companies sought a ruling that Judge Shepherd was acting outside of his jurisdiction when he allowed our limited intervention, but the Kentucky Supreme Court roundly rejected all of their arguments.  See Comm’r of the Energy & Environmental Cabinet v. Shepherd, 2012 WL 1454163 (April 26, 2012 Ky.)

            This Fall (2012) we reached agreement with ICG that resulted in a court-approved settlement of that case. The settlement requires, inter alia, that ICG (1) pay approximately double the amount it had originally agreed to pay in its proposed consent judgment with the Cabinet; (2) pay for plaintiffs to independently monitor effluent parameters through a split-sampling regime; (3) pay for an independent consultant to regularly audit ICG’s DMRs; and (4) pay plaintiffs’ legal fees.

            Our litigation in Kentucky against Frasure Creek Mining continues

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Poughkeepsie public trust issues - Licensing of Waryas Park public dock to Empire Cruise Lines

          The Clinic sued the City of Poughkeepsie and Seaway Navigation Ltd. (a for-profit tour boat company) this last summer on behalf of Riverkeeper and local citizens to challenge determinations made by the City to license the only public dock in the City to Seaway.  The City determined without explanation that the license is a SEQRA type II action and ignored Riverkeeper’s letter insisting that it cease and desist from violating SEQRA and the public trust doctrine.  The City also ignored its obligations under its own local waterfront management plan, and completely circumvented its Waterfront Advisory Committee in its review of the project.  The Waryas Park public dock has been heavily used for decades by the public for boating, fishing and sightseeing, and the license agreement with Empire Cruise lines has virtually eliminated the public’s ability to use its dock.  This past winter we were approached by the respondents about trying to resolve the matter.  We then engaged in trilateral discussions with the City and Seaway over a period of several months that culminated in a court-approved settlement whereby the City has agreed to expand the public dock to make up virtually all of the dock space lost to the public as a result of the license agreement.  The City is required to have the dock with 60 feet of new dock extensions installed no later than May 15, 2013, and we will be monitoring the installation with the assistance of Riverkeeper’s boat captain to be sure that this obligation is met.

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Riverkeeper v. Entergy Indian Point (Spent Fuel Pools and NRC Relicensing)

            In September 2005, Entergy and the Nuclear Regulatory Commission announced that the underground pools containing spent nuclear fuel at the Indian Point Nuclear Power Plant were leaking contaminated water.  This water is contaminated with radioactive tritium, strontium 90, and cesium.  These radioactive elements are reaching the Hudson River.  Although Indian Point is regulated by the Nuclear Regulatory Commission, certain aspects of hazardous nuclear waste, including underground storage tanks, are regulated by EPA.  Pursuant to Resource Conservation and Recovery Act regulations, Entergy was required to notify EPA promptly upon its discovery that its underground waste storage tanks were leaking.  This notice would invoke a public EPA remedial process pursuant to 40 C.F.R. Part 280.  Entergy has failed to make the required notification.

            In connection with Entergy’s renewal application for relicensing, the Clinic began in earnest to assist Riverkeeper in mounting its opposition to the application.  Clinic interns have been working since August 2007 with Riverkeeper attorneys and others on the opposition, which has taken the form of a petition to intervene in the relicensing hearing.  In April 2008, Clinic students worked with Riverkeeper attorneys at the NRC administrative hearing at which argument concerning Riverkeeper’s petition for intervention was heard by a panel of three Commissioners (similar to ALJs).  Riverkeeper’s petition to intervene was granted, and the Commissioners ruled that two of the three contentions (issues) raised by Riverkeeper were deemed adjudicable.  The NRC adjudicatory hearing commenced this Fall, and is being conducted by Riverkeeper in-house counsel. The Clinic took our legal interns to one of these hearing dates in October, and intends to continue to advise Riverkeeper as the hearings continue.

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Riverkeeper v. Entergy Indian Point (SPDES Renewal and CWA § 401 WQ cetification)          

           The Clinic is working with Riverkeeper in an adjudicatory proceeding concerning the SPDES permit for the Indian Point nuclear power generating facility in Buchanan, New York.  The Clinic and Riverkeeper are acting as co-counsel on this matter representing not only Riverkeeper, but also Scenic Hudson and NRDC.  The primary issue at the hearing will be the determination of “best technology available” to minimize adverse environmental impacts, i.e., whether Entergy will be required to retrofit the Indian Point nuclear reactors with a hybrid closed-cycle cooling water system.

            Meanwhile, in connection with Entergy’s application to the NRC to relicense Indian Point for an additional 20-year license term (see next matter), Entergy needs to obtain a CWA § 401 water quality certification from the DEC.  DEC denied Entergy’s application for this certification in April 2010, and we have intervened in that proceeding on behalf of the same clients we represent in the SPDES hearing.  An issues ruling from the ALJs assigned to this matter was issued in December 2010.

            A consolidated hearing on both the SPDES and CWA 401 issues commenced in October 2011.  Clinic legal interns have been extensively involved in supporting Riverkeeper attorneys at the hearing.  Our students have attended and participated in the hearing and Kate Leisch conducted a cross-examination of one of Entergy’s expert witnesses.  This hearing will continue for at least another year, and we expect our students to continue to be heavily involved on behalf of our clients.

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Riverkeeper v. ExxonMobil (Newtown Creek) (Settlement monitoring)

           On January 20, 2004, acting on behalf of Riverkeeper, Inc. and six named individual plaintiffs, the Clinic served letters of intent to sue ExxonMobil Corporation (“ExxonMobil”), Chevron Texaco Corporation (“Chevron”), and Peerless Importers, Inc. (“Peerless”) in the Eastern District of New York for violations of the Clean Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”), and the Resource Conservation and Recovery Act, 42 U.S.C. 42 U.S.C. §§ 6901-6992 (“RCRA”).  The violations stem from various underground spills and leaks of more than seventeen million gallons of petroleum products over at least the past five decades.  These pollutants have contributed to the contamination of the Brooklyn-Queens aquifer, discharged into Newtown Creek, and created an imminent and substantial endangerment to the residents and ecosystem of Greenpoint, Brooklyn.  In May 2004, the Clinic filed a complaint on behalf of Plaintiffs against ExxonMobil.  Over the course of the following eighteen months, plaintiffs granted ExxonMobil a series of stays of the litigation to encourage the company to remediate the pollution and its hazards.  In early 2006, ExxonMobil entered into a confidential agreement with Chevron whereby Chevron would actively remediate the seep of petroleum products into Newtown Creek from a bulkhead owned by Peerless.  However, as a result of ExxonMobil’s continued non-responsiveness to Riverkeeper’s cleanup requests and the company’s apparently dilatory settlement tactics, Riverkeeper allowed the litigation suspension to lapse on November 4, 2004.  As a result, ExxonMobil finally answered Plaintiffs’ May 2004 complaint. 

            In December, 2005, the Court accepted the parties’ proposed discovery schedule, with fact discovery continuing through September 2006, and expert discovery concluding in Spring, 2007.  ExxonMobil has subsequently produced over 250,000 pages of documents in response to plaintiffs initial document requests, which required every student enrolled in the Clinic during Spring 2006 to help review.  In the Spring of 2006, ExxonMobil filed a motion to compel plaintiffs to join Chevron and BP-Amoco as additional parties.  This motion was briefed and argued by Clinic student Eric Annes before Magistrate Judge Levy on July 13, 2006, and was ultimately decided in plaintiffs’ favor.  Since then we have continued to conduct discovery.

            We also learned in late-2006 that the DEC had referred the matter to the New York State Attorney General for enforcement purposes.  We have been working cooperatively with OAG, and in early 2007, Attorney General Cuomo announced the issuance of notices of intent to sue ExxonMobil and other PRPs concerning the pollution of Newtown Creek and the aquifer.  OAG commenced its suit in the Fall of 2007.  Its complaint mirrors the claims in our case, but also included numerous state and federal claims for which no citizen suit is available.  The parties have advised the Court that the OAG suit should likely be consolidated for discovery or for all purposes with our case.

            From 2008 to 2010, Riverkeeper, the State and Exxon engaged in discussions concerning a potential settlement.  Clinic interns were actively involved in representing the interests of Riverkeeper members and the Greenpoint community in these negotiations.  In November 2010 we were thrilled to finalize these settlement negotiations, and to announce a settlement that requires Exxon to investigate and remediate all of the contaminated media on (and emanating from) the site and to establish a $19.5 million dollar environmental benefit project fund to be used to “green” Greenpoint (create open space, access to Newtown Creek, address contamination issues).  To our knowledge, this EBP is the largest one ever established in the State.  The state’s settlement with Exxon has completed DOJ/EPA review, and has been so ordered by the court.  Riverkeeper’s separate settlement with Exxon has also undergone DOJ review, and was so-ordered by the District Court in last May.  We are now engaged in compliance monitoring with respect to Exxon’s ongoing investigation and remediation at the site.

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Spring Creek Composting Facility

            New York City Department of Sanitation has fenced off more than 20 acres of a public park in the New Lots/East New York section of Brooklyn in order to operate a composting facility for yard waste from all over the City, including private yard waste.  The City failed to seek the proper legislative approval for converting public trust parkland into non-park use, and further illegally constructed the solid waste facility without the required Part 360 DEC permit.  Upon discovery, DEC declined to initiate enforcement proceedings and instead “encouraged” the Department of Sanitation to apply for a permit.

            The Clinic intervened on behalf of NY/NJ Baykeeper to oppose the City’s application for a DEC solid waste management permit for the facility, and also investigated other ways to challenge the City’s improper use of public trust land.  DEC Administrative Law Judge Susan DuBois accepted the Clinic’s proposal to adjudicate issues concerning non-park use, satisfaction of variance requirements, and New York City’s record of compliance issues.  In February 2005, Susan J. DuBois issued a Supplemental Ruling on Issues stating that following issues are also adjudicable: the project’s consistency with the New York City’s Waterfront Revitalization Program and compliance with noise standards for solid waste management facilities.  The City and DEC appealed to Deputy Commissioner Lynette Stark, who upheld most of ALJ DuBois’s rulings, but found that alienation of parkland was not an adjudicable issue.  The Clinic has since completed discovery and was preparing to commence an adjudicatory hearing in October 2006 when our expert witness withdrew from the proceeding as a result of wrongful witness tampering by the City’s attorneys.  ALJ DuBois subsequently adjourned the hearing and, after months of searching for an appropriate and affordable replacement expert witness, we have finally located a new expert.  The adjudicatory hearing has been conducted by Clinic students over 14 days between May 2007 and March 2009.  Post-hearing briefs were submitted over the summer and late last year we were thrilled to receive a recommended decision from the ALJ that recommended that the Commissioner deny the permit application.  Unfortunately, this past July we received the Decision of the Commissioner which rejected the ALJ’s recommendation and determined to issue the permit.  In November 2012, we filed an Article 78 against DEC challenging two of the Commissioner’s determinations.  This proceeding is still pending with oral argument scheduled for June 6, 2013.

            Meanwhile, as mentioned above, Executive Deputy Commissioner Stark reversed ALJ DuBois’s finding that alienation of parkland was an adjudicable issue and held that an aggrieved citizen complaining of alienation must take his complaint to the courts, not to DEC in a permit challenge.  We have followed EDC Stark’s “advice,” and have filed a declaratory judgment action in Supreme Court, Kings County, seeking (1) a declaration that the City has illegally alienated public trust parkland and (2) an injunction requiring the City to either obtain State legislative approval with a reasonable period of time or return the parkland to the public for proper park use.  We are preparing to file a motion for summary judgment and a permanent injunction next Tuesday, April 30, which, if successful, will require the parkland to be returned to the public and enjoin the operation of compost operations in Spring Creek Park unless state legislative approval is obtained.

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