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Case Docket
- Catskill Mountains Chapter of Trout Unlimited v. City of New York
- EPA Pesticide Rule Challenge
- Hastings-on-Hudson - ARCO Site
- Kentucky Mountaintop Removal Coal Mines
- Natural Gas Drilling (horizontal hydrofracking) in the NYC Watershed
- New York City Sewage Treatment Plant Permit Modification Proceeding
- Peconic Baykeeper, Inc. v. Suffolk County
- Riverkeeper v. Entergy Indian Point (NRC Relicensing)
- Riverkeeper v. Entergy Indian Point (SPDES Renewal)
- Riverkeeper v. ExxonMobil (Newtown Creek)
- Riverkeeper, Inc. v. Mirant Lovett, LLC
- Spring Creek Composting Facility
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 Ashokan 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.
EPA Pesticide Rule Challenge
EPA finalized a rule in 2006 exempting entire categories of pesticide applications from NPDES permitting requirements. On behalf of Waterkeeper Alliance and several of its member programs, the Clinic commenced two challenges to this rule. First, as a protective measure, the Clinic filed a petition in the Court of Appeals for the Second Circuit. We describe this as a “protective measure” because, pursuant to CWA § 509(b), we do not believe that the courts of appeals have original jurisdiction over this type rule granting a wholesale exemption from permitting requirements. As such, the Second Circuit petition makes clear that it was filed protectively (in case original jurisdiction is found to exist), and we also filed an action in U.S. District Court for the Northern District of California.
After the time for filing rule challenges in the courts of appeals expired, the MDL panel conducted a “lottery,” and consolidated all of the petitions filed in the various circuits around the country in the Sixth Circuit (Cincinnati, Ohio). We filed a motion to dismiss all of the petitions on jurisdictional grounds, which motion was referred to the merits panel.
Oral argument was heard by the 6th Circuit in April 2008, and in January 2009 the Sixth Circuit issued a merits decision denying our jurisdictional motion but granting our petition on the merits (“Cotton Council”). In response to this ruling, EPA declined to seek rehearing or petition for certiorari, instead seeking (and receiving) a two-year stay of the mandate to give it time to fashion a general NPDES permit for the types of pesticide applications in question. Industry, on the other hand, sought rehearing (which was denied) and then petitioned the Supreme Court for certiorari (which was also denied).
As noted, EPA acquiesced in the 6th Circuit’s Cotton Council ruling and is in the process of drafting a general permit to cover the pesticide application activities it had previously sought to exempt from NPDES permit requirements. States with delegated NPDES authority are currently involved in the same process. Under the Sixth Circuit’s ruling, the vacatur of the regulatory NPDES exemption will be effective in April 2011, and all permitting authorities intend to have permits in place to cover these activities by then. We commented on EPA’s proposed permit, and will have to review the final permit issued next year before making any decisions concerning whether to challenge that permit.
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 met recently with representatives of the village and ARCO, and we anticipate continuing to stay involved to ensure that this site will finally get the remediation bargained for in the 2003 consent decree.
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. The Clinic is currently working with local counsel to prepare intervention papers so that we may be heard by the State Court judge before the consent judgments proposed by the state and the defendants are entered.
Natural Gas Drilling in NYC Watershed
The Clinic has been working with the Riverkeeper NYC Watershed team to examine the environmental implications of plans by gas companies to begin “hydrofrac” drilling for natural gas in the Marcellus Shale in New York State, part of which underlies the New York City watershed.
New York City Sewage Treatment Plants Permit Modification Proceeding
DEC has proposed modifications to the SPDES permits for New York City’s 14 sewage treatment plants as part of a “full technical review” of these permits under DEC’s so-called “Environmental Benefit Permitting Strategy.” New York City challenged these modifications, claiming that provisions requiring full implementation of the Total Maximum Daily Load for nitrogen in the Long Island Sound Watershed exceeded the permissible scope of the permit. In September, 2003, the Clinic filed a petition for intervention and an issues petition, seeking further modification of the permit to completely implement the requirements of EPA’s combined sewer overflow control strategy, and also to implement the nitrogen total maximum daily load for Combined Sewer Overflows. Clinic student Kirstin Etela appeared in Fall 2003 at the issues conference before Administrative Law Judge Kevin Casutto. Judge Casutto deferred the issues ruling pending consideration of an Administrative Consent Order between DEC and New York City governing Combined Sewer Overflow planning and mitigation measures. DEC has now issued that proposed Administrative Consent Order, and Clinic student Kelly Bray submitted extensive comments on the proposed Consent Order.
Judge Casutto lifted the stay on the issue ruling when the Combined Sewer Overflow Administrative Consent Order became effective in January 2005. In April, 2005, the Clinic filed a supplemental issues petition, seeking compliance with the Clean Water Act and the requirements of EPA’s Combined Sewer Overflow Control Policy. Clinic Student Kelly Bray appeared on May 4, 2005 at the issues conference before Judge Casutto. Following the issues conference, the Clinic filed a joint Supplemental Petition for Full Party Status on behalf of Riverkeeper, Inc., Soundkeeper, Inc., and New York/New Jersey Baykeeper. The petition addressed three issues identified by Judge Casutto: (1) Is the January 2005 CSO-ACO the appropriate mechanism for CSO regulation, or must the terms and conditions of the ACO compliance schedule be explicitly set forth in the draft SPDES permit; (2) Must any proposed changes to the ACO be subjected to an opportunity for full adjudicatory hearing, pursuant to 6 NYCRR Part 624, including the applicability or relevance of 6 NYCRR 750-1.18 and the former 750-1.18; and (3) Interpretation of the phrase "shall conform to Combined Sewer Overflow Policy" as that phrase appears in Section 402(q)(1) of the Clean Water Act.
Judge Casutto issued a Ruling on Proposed Adjudicable CSO Issues and Party Status following the May 2005 issues conference on November 9, 2005. The issues ruling addressed ten separate issues for adjudication. Judge Casutto concluded that an adjudicable issue was raised “as to whether DEC staff must incorporate the compliance schedule in permits, or in the alternative, include a statement in each permit that the compliance schedule represents the ‘shortest reasonable time’ within which to achieve water quality for that WPCP’s receiving waters.” He also held in abeyance an issue as to “[w]hether the six Long Island Sound WPCP draft SPDES permits should include numeric limitations for CSO event nitrogen loading, in order to achieve compliance with the nitrogen total maximum daily load (TMDL) for Long Island Sound” pending the potential appeal of other issues relating nitrogen issues.
The appeals were briefed and submitted to the Commissioner in 2007. Incredibly, it took until this summer to receive a decision from Commissioner Grannis which, unfortunately, ruled against us on every issue. We have filed an Article 78 on behalf of NRDC, Riverkeeper and two other Waterkeeper Alliance member programs challenging two of the Commissioner’s holdings (both pertaining to CSOs). Our initial brief has been filed and the return date on this petition is January 31, 2011.
Peconic Baykeeper, Inc. v. Suffolk County
In April 2002, the Clinic filed an Article 78 petition challenging Suffolk County’s approval of a mosquito control program using extensive pesticides and wetlands ditching without undergoing an environmental impact review as required under the State Environmental Quality Review Act (“Peconic I”). Supreme Court, Suffolk County, dismissed the petition sua sponte as moot in March 2003. The Clinic then commenced a second Article 78 proceeding challenging the 2003 continuation of the mosquito control program, again without any environmental review (“Peconic II”). Suffolk County extended its mosquito program into 2004 and the Clinic filed a third Article 78 proceeding against the County (“Peconic III”). In January 2005, the Clinic filed its fourth Article 78 petition against the County for its extension of the mosquito control program into yet another year (“Peconic IV”). Although Supreme Court issued a decision granting the petition in this matter, it did not issue judgment, despite timely submission of a proposed judgment by the Clinic.
On April 16, 2004, the Supreme Court, Suffolk County granted the petition in Peconic II, and enjoined the County of Suffolk from implementing its vector control program until it had properly complied with the environmental review procedures of SEQRA. On October 4, 2004, the Supreme Court granted the petition in Peconic III. In April 2005, the County perfected an appeal from the grant of the petition in Peconic III.
In April 2004, the Clinic perfected an appeal of Peconic I’s dismissal as moot by the Supreme Court to the Appellate Division, Second Department. In September 2004, Suffolk County perfected an appeal of the Court’s decision granting the petition in Peconic II. On April 4, 2005 the Appellate Division dismissed both Peconic I and Peconic II as moot.
The Clinic, working with co-counsel and Clinic alumnus Matthew Atkinson, filed a federal Clean Water Act citizen suit against the County of Suffolk in November 2004, as their pesticide spraying and wetlands ditching activities lack required Clean Water Act permits. The
case proceeded through discovery, including several discovery motions. After discovery closed, cross-motions for summary judgment were filed by both sides. In ___ 2007, Judge Spatt denied both sides’ summary judgment motions and set the case on the 24-hour notice trial calendar.
On April 14, 2008, we received notice from Judge Spatt that trial of this case would commence on April 21, 2008 The case was then tried by Matthew Atkinson, with the assistance of Professor Coplan and Clinic intern Tybe Franklin, over five days between April 21-28, 2008 (Professor Estrin was unavailable due to the birth of his daughter on April 22). Post-trial briefs were filed in May and June 2008, and closing argument was made by Matthew Atkinson on July 31, 2008. In November 2008, we received a decision from Judge Spatt ruling against the plaintiffs on all claims and dismissing the complaint. Plaintiffs have appealed the dismissal of their claims, and Clinic students briefed the appeal on plaintiffs’ behalf during the summer and fall of 2009. Oral argument of the appeal occurred on December 15, 2009, and last month we received the Second Circuit’s Opinion and Order vacating Judge Spatt’s judgment in part.
After getting Judge Spatt reversed by the Second Circuit on the most troubling aspects of his ruling (that trucks and helicopters spraying mosquito adulticides are not point sources because they are discharging to the “air column” and not to the water below it), and after prevailing in our challenge to the EPA regulation that sought to exempt pesticide applications from NPDES requirements in many circumstances (see next case discussion) (which means that Suffolk County must obtain a SPDES permit for its adulticiding activities no later than April 2011), Peconic Baykeeper decided most of its concerns raised in the litigation had been addressed. The litigation between Baykeeper and County was thus settled this Fall.
Riverkeeper v. Entergy Indian Point (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.
On April 18, 2006, Riverkeeper gave notice of its intent to sue pursuant to RCRA to enforce the notification requirement and invoke EPA regulatory jurisdiction. The notice period expired in June. Riverkeeper subsequently decided not to proceed with the noticed litigation, but rather to continue to gather facts that it will rely on to oppose Entergy’s application for a new operating license.
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 was recently advised that its petition to intervene was granted and that the Commissioners ruled that two of the three contentions (issues) raised by Riverkeeper were deemed adjudicable. We are currently awaiting information concerning the scheduling of the NRC adjudicatory hearing.
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 in this hearing representing not only Riverkeeper, but Scenic Hudson and NRDC as well. 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 reactors with a hybrid closed-cycle cooling water system. We are currently in the discovery phase which has been and continues to be extremely burdensome and time consuming. The hearing itself is currently scheduled to commence sometime in 2011, but given the ongoing discovery delays it appears likely that that date will need to be pushed back.
Meanwhile, in connection with the NRC relicensing of Indian Point, Entergy needs to obtain a 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. We are currently awaiting an issues ruling from the ALJs assigned to this matter.
Riverkeeper v. ExxonMobil (Newtown Creek)
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.
Over the past two years this case has been moving very slowly because Riverkeeper, the State and Exxon have been involved in ongoing discussions concerning a potential settlement. Clinic interns have been actively involved in representing the interests of Riverkeeper members and the Greenpoint community in these negotiations. This semester we were thrilled to finalize these settlement negotiations, and to announce a settlement to the public 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 settlement is currently undergoing DOJ/EPA review, and will likely be so ordered by the court early next year.
Riverkeeper, Inc. v. Mirant Lovett, LLC
This case concerns violations of Mirant’s SPDES permit by not timely deploying the Gunderboom Marine Life Exclusion System in accordance with permit requirements. The Gunderboom is a device installed in the Hudson River to prevent entrainment of fish and other organisms in the cooling water intake structures of the Lovett Power Generating Station. Entrainment is lethal to fish. Lovett requires a SPDES permit because of the thermal pollution it discharges. According to the permit, the Gunderboom must be installed by February 23, or ice out, whichever is later. Installing the Gunderboom by late February is important to many ecologically important and abundant fish species, like the tomcod, white perch, striped bass, river herring, and bay anchovy. These species all have appreciable numbers of young stages in the river around that time so the Gunderboom is vital to protecting them. The Gunderboom has as a target an 80% exclusion rate, measured by monitoring the above species. However, there have been setbacks to determining the effectiveness of the Gunderboom and protecting the fish species, which is the concern of this action.
Over the last few years Mirant has consistently violated its permit. In 2004 and 2005, Mirant did not install the Gunderboom until the end of April, citing unexpected difficulties and complications. There was no reason not to install the Gunderboom by February 23 in either of those years because, as United States Coast Guard ice reports indicate, the river was free from ice that would have prevented safe deployment of the Gunderboom. Due to these violations, the Clinic filed a complaint on March 11, 2005.
Mirant filed for Chapter 11 bankruptcy protection on July 16, 2003. The bankruptcy order requires compliance with 11 U.S.C. § 362, which is the automatic stay provision of Chapter 11. Due to these bankruptcy proceedings, this action was stayed and transferred to the Court’s Suspense Docket until 60 days after an order confirming Mirant Lovett’s Plan of Reorganization is entered by the United States Bankruptcy Court for the Northern District of Texas becomes final and non-appealable. This stipulation and order was entered by the court on April 22, 2005 and signed by Judge McMahon on April 20, 2005.
The bankruptcy hearing occurred in the Spring and Summer of 2007, and a final plan of reorganization was enterred by the Bankruptcy Court on October 2, 2007. We served the summons and complaint upon the defendant in February 2008, and had the case administratively reactivated. However, we recently received notice that Mirant decided to close the plant, and to the plant ceased operations on April 19, 2008. Mirant advised us of its intent to move to dismiss based on the plant closure and requested a pre-motion conference with the Court pursuant to local rules. The conference was conducted in December 2008, and one of our students, Erin Flannery, appeared with Professor Estrin on behalf of Riverkeeper. In January 2010, Mirant’s motion to dismiss was granted in part and denied in part, and we have recently been involved in discovery concerning Riverkeeper’s surviving claims.
Just two weeks ago, we lodged in the S.D.N.Y. a consent judgment settling Riverkeeper’s claims. The settlement requires Mirant to establish an environmental benefit fund in the amount of $115,000 to be used for purposes of fish restoration projects in the Hudson. Mirant has also agreed to pay Riverkeeper’s legal fees in the amount of $75,000. The consent judgment is currently undergoing DOJ/EPA review, and we expect that it will be entered by the court early next year.
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.
As mentioned above, 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. While we disagree with this holding, we have followed Ms. 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 recently received discovery from the City, and we are currently working on a motion for summary judgment and an injunction 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.