Section 402 of the CWA, the National Pollutant Discharge Elimination System ("NPDES") provision, is one of the sections of the CWA which authorizes the discharge of pollutants but only under certain conditions. Pursuant to § 402, the Environmental Protection Agency ("EPA") may issue a permit for the discharge of any pollutant upon the condition that such discharge will meet applicable CWA requirements. CWA § 402; 33 U.S.C. § 1342. Section 402(b) of the CWA also allows states to administer their own permit programs. In conformance with this provision, New York administers the State Pollutant Discharge Elimination System program through N.Y. Envt'l Conserv. Law §§ 17-0801-0829 (McKinney 1984 & Supp. 1993), and its implementing resolutions. 6 N.Y.C.R.R. § 750-757.

NPDES and SPDES permits work to achieve the goals of the CWA by "transform[ing] generally applicable [restrictions] . . . into the obligations . . . of the individual discharger, and [the CWA] provide[s] for direct administrative and judicial enforcement of permits." EPA v. California, 426 U.S. 200, 205 (1976) (citations and footnotes omitted). Section 402 of the CWA requires state permit programs to insure that any permit for a discharge from a POTW have a program to assure compliance with pretreatment standards. CWA § 402(b)(8-9); 33 U.S.C. § 1342(b)(8-9).

Section 505 of the CWA fosters the goals of the CWA by allowing citizens to sue to "abate pollution when the government cannot or will not command compliance." Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 62 (1987). In providing for citizen suits, "Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests." Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 63 (2nd Cir. 1985) (quoting Friends of the Earth v. Carey, 535 F.2d 165, 172 (2nd Cir. 1976), cert. denied, 434 U.S. 902 (1977).

The CWA § 505 citizen suit provision provides, inter alia, that after proper notice:

CWA § 505(a); 33 U.S.C. § 1365(a) (emphasis added). For purposes of § 505(a) "person" is defined as any "individual, corporation, partnership, municipality." CWA § 501(5); 33 U.S.C. § 1361(5).

Section 505(f) defines the term "effluent standard or limitation" to include "a permit or condition thereof issued under [§ 402] of this [Act]." CWA § 505(f); 33 U.S.C. § 1365(f). Hence, the CWA gives citizens the right to enforce NPDES and SPDES permit provisions when permit holders violate those provisions.

The Defendant, DEP, is the city agency charged with the operation of the fourteen New York City publicly owned sewage treatment plants. DEP operates these sewage treatment plants under a SPDES permit issued by the New York State DEC pursuant to the Clean Water Act, 33 U.S.C. § 1251 et seq. Section 402(b) of the CWA, allows States to develop and administer CWA permit programs. 33 U.S.C. § 1342(b). Section 309(a)(1)-(3) of the CWA allows states to issue SPDES permits and enforce the conditions and limitations. 33 U.S.C. § 1319(a)(1-3).

On September 30, 1988 DEC issued SPDES permits to the DEP to operate New York City’s 14 sewage treatment plants ("STPs"). These permits require, among other things, that the DEP implement an Industrial Pretreatment Program. In July, 1991, the permits for all of New York City's plants were modified to require, inter alia, minimum staffing of the IPP at 72 individuals.

This permit modification arose as a direct result of Plaintiff's enforcement efforts. In December, 1988, Plaintiff and others challenged the legality of Defendant's SPDES permit by suing DEC, the issuing body, in state court. The lawsuit was based, in part, on DEC's failure to include numerical toxic limits in the pretreatment section of Defendant's permit. The state court found in Plaintiff's favor and ordered DEC to hold permit hearings. Following three years of negotiations between Defendant, Plaintiff, the federal EPA, and others, DEC issued an amended version of SPDES permit #0026131 in July 1991. The new permit required that "[t]he permittee shall [m]aintain minimum staffing positions committed to the implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times." See SPDES Permit #0026131 § IV(B)(6), page 21, Ex. A to Affidavit of Michael McIntosh, sworn to on Nov. 16, 1995 ("McIntosh Aff."). By committing itself to a firm 72 staffers, the City persuaded EPA and the Plaintiff here to withdraw their administrative challenge to the pretreatment section of Defendant's permit.

The permit requires 72 staff members in the IPP; there are no provisions in the permit authorizing any alternative equivalents to substitute for the 72 staff member requirement. See SPDES Permit #0026131, Ex. A to McIntosh Aff.; Letter of Patrick M. Durack of the EPA to Philip Grande of the DEP dated Feb. 3, 1995, Ex. B to McIntosh Aff ("Grande Letter"). In issuing the pretreatment program permit provisions, Administrative Law Judge O'Connell clarified the provision: "The proposed conditions require the City to maintain a minimum of 72 staffing positions for the pretreatment program despite budget problems." See Second Interim Decision of the Commissioner, July 16, 1991, p. 6, Ex. C to McIntosh Aff. (emphasis added).

At no point between July 26, 1991 and June, 1995 did the Defendant maintain staffing levels at 72 staff members. See Def.’s Responses to Pl.’s First Set of Interrogs. 3-6, Ex. E to McIntosh Aff.; Def.’s Responses to Pl.’s Second Set of Interrogs. 2, Ex. F to McIntosh Aff.; Def.’s Revised Supplemental Responses to Pl.’s First Set of Interrogs., Ex. G to McIntosh Aff.; Daily Employment History for Industrial Pretreatment Program Employees, Ex. H to McIntosh Aff.; Graphical Illustration of IPP Staffing Levels from 7/91 to 6/95, Ex. I to McIntosh Aff. This is in direct violation of the staffing provision of their SPDES permit. During this period, at least 64 applicants submitted resumes to the DEP seeking employment in the Industrial Pretreatment Program. See Applicant Resumes, Ex. J to McIntosh Aff. There was no lack of applicants with the requisite qualifications for employment in the Industrial Pretreatment Program. See Dep. Philip Grande, Jr. at 64 lines 23-25, Ex. K to McIntosh Aff.; Dep. of Robert LaGrotta at 145, lines 4-7, Ex. L to McIntosh Aff.

At least one applicant during this time period was determined by the DEP to be a qualified candidate and was to be processed for hiring. See Interdepartmental Memo from Robert LaGrotta to Elizabeth Simmons, dated March 2, 1994, Ex. M to McIntosh Aff.; Letter from Marilyn Gelber to Marla Wieder, Ex. R to Affidavit of Marla Wieder, sworn to on November 15, 1995, ("Wieder Aff."). After being promised the job and waiting for several months to be hired, this applicant was advised that she could not be employed by the DEP due to "a hiring freeze." Id. (emphasis added).

Defendant has continuously failed to comply with the permit provisions requiring the Defendant to make good faith efforts to maintain 72 staff members. Accordingly, the Plaintiff, Hudson Riverkeeper Fund, Inc., commenced this citizen's suit on October 6, 1994.

Because the undisputed facts, in Defendant's own interrogatory responses and other documents, demonstrate that Defendant failed to hire qualified staffers at levels mandated in Defendant's SPDES permit, the Court should grant Plaintiff for Motion for Partial Summary Judgment and declare Defendant to have violated its permit.

I. RIVERKEEPER HAS STANDING BECAUSE ITS MEMBERS HAVE BEEN INJURED BY DEFENDANT'S VIOLATION OF ITS SPDES PERMIT.

The Plaintiff has standing to bring this action on behalf of its members because it satisfies the test the Supreme Court set forth in New York State Club Association v. City of New York, 487 U.S. 1 (1988). Furthermore, Defendant's noncompliance with its permit provisions causes pollution that is harmful to Plaintiff. This harm amounts to injury-in-fact as defined by Sierra Club v. Morton, 405 U.S. 727 (1972). Having satisfied the necessary prerequisites, the Riverkeeper has standing to bring this action against the DEP.

A membership organization has standing to sue on behalf of its members "when (a) its members would otherwise have standing to sue in their own right; (b) the interests [the suit] seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit." New York State Club Association v. City of New York, 487 U.S. 1, 9 (1988) (quoting Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).

Plaintiff brings this action on behalf of its members. The Riverkeeper is a non-profit conservation organization whose primary purpose is to preserve and protect the beauty, quality and biological integrity of the Hudson River and its tributaries. Members of the Riverkeeper enjoy the Hudson River for a number of activities including, boating and recreational and commercial fishing. Affidavit of Robert Gabrielson, sworn to on Nov. 15, 1995, paras. 3, 5 ("Gabrielson Aff.); Affidavit of John Cronin, sworn to on Nov. 14, 1995, paras. 2, 4 ("Cronin Aff."); Affidavit of Robert H. Boyle, sworn to on Nov. 16, 1995, paras. 3-5. The protection of the water quality of the Hudson River and the survival of the biota in the Hudson River are central concerns to the Riverkeeper's purpose. Therefore, the Plaintiff has standing to bring this action on behalf of its members.

Individual members of Riverkeeper have been injured-in-fact sufficiently to satisfy constitutional requirements for standing. Injury-in-fact is "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not `conjectural' or `hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). The Supreme Court has held that harm to aesthetic interests, environmental well-being, economic harms or recreational interests is sufficient to confer standing. Sierra Club v. Morton, 405 U.S. 727, 734 (1972). The Second Circuit has held that a person who regularly uses an area has standing. Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985). Thus a plaintiff who states that he "swim[s] in the river," "occasionally fishes in the river" and "has and will continue to use" the river has asserted sufficient injury-in-fact to sue. Id.

In the instant case, John Cronin, Hudson Riverkeeper and Executive Director of the Hudson Riverkeeper Fund Inc., has submitted an affidavit attesting that he lives on the shoreline of the Hudson and enjoys fishing, swimming, hiking, and wildlife watching in or along the Hudson River. Cronin Aff, para. 3. Mr. Cronin attests that he is unable to fish as he has in the past, because of the risk to his health if he was to consume the fish that he caught. Cronin Aff., para. 15. He attributes this to a health advisory that declares the existence of PCBs in the Hudson River fish. Cronin Aff., para. 15. Mr. Cronin's Affidavit alone, which shows injury to his aesthetic and environmental interests, is sufficient to meet the Friends test for injury-in-fact.

Plaintiff has also submitted the affidavit of Robert Gabrielson, a member and director of Riverkeeper. Mr. Gabrielson has been a commercial and recreational fisherman on the Hudson River for the past fifty years. Gabrielson Aff., para. 3. Mr. Gabrielson is "angry and frustrated" because he has lost over half of his income because toxic pollutants that contaminate the fish in the Hudson River have resulted in a total ban on commercial fishing of certain species. Id. at paras. 3, 5. Fish Consumption Advisories issued by the DEC restrict human consumption of fish from the Hudson either entirely (for American eel, White perch, White catfish, Carp) or to a limit of one meal per month (Walleye, Smallmouth bass, Bluefish, Rainbow smelt, Striped bass, Northern pike, Largemouth bass, Atlantic needlefish, Tiger muskellunge) or in the case of Blue crab, to no more than six per week. The State of the City's Waters 1994: The New York Harbor Estuary, New York City DEP, p. 22, Ex. P to McIntosh Aff ("DEP Harbor Study"). Mr. Gabrielson has been involved in catching fish for the Department of Health to determine the PCB concentration in the fish flesh. Mr. Gabrielson is completely restricted from commercially fishing striped bass and catfish because the fish flesh concentration of PCB's still exceed the U.S. FDA safe level of 2ppm. Gabrielson Aff., para. 5. Mr. Gabrielson said the Department of Health "shut me down twenty years ago because of the health risk from contaminated fish." He is very discouraged and disappointed that after all this time toxic pollutants are still being discharged into the river and the fish cannot be fished commercially because of the levels of contamination. Id. at para. 3. Clearly Mr. Gabrielson has suffered both recreational and economic injuries which satisfy the Friends of the Earth test.

Plaintiff's injuries also satisfy the more restrictive test announced in Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990), cert denied, 498 U.S. 1109; see also, NRDC v. Texaco, 2 F.3d 439, 505 (3d Cir. 1993) (reaffirming Powell Duffryn after decision in Lujan V. Defenders of Wildlife, supra). The Powell Duffryn court found that a CWA plaintiff has Article III standing where the injuries suffered were of the type caused by the type of pollutants discharged by defendants, without requiring a strict showing that the plaintiff's injuries were in fact caused by defendants' own pollutants. 931 F. 2d at 71, 72. In 1994, the DEP itself published a study endorsed by Mayor Giuliani and Defendant Gelber, which stated that "toxic substances continue to enter New York Harbor via sewage effluent," and described how toxic pollutants such as PCBs bioaccumulate in the food chain and become a health risk to humans who might consume the contaminated fish. DEP Harbor Study, p. 22, Ex. P to McIntosh Aff. This report also states that wastewater is the source of 32% of metal pollutants and 21% of PCB's in New York Harbor. Id., p. 29. The EPA's Hudson Harbor Study shows that City sewer plants continue to be a significant source of discharges of PCBs into the Hudson River. The City's failure to maintain proper staff levels in its Industrial Pretreatment Program therefore directly harms Mr. Gabrielson.

Clearly Mr. Gabrielson has suffered economic harm caused by the additional levels of toxic pollutants and PCBs permitted to enter the Hudson River because of the Defendant's failure to employ the requisite 72 employees to run the IPP as required by its SPDES permit. Plaintiff has demonstrated that its members have suffered an injury, a total ban on commercial fishing for striped bass and catfish, caused by the kind of pollutant emitted by Defendant: PCBs. Thus, Plaintiff's members have suffered injuries which meet the injury-in-fact requirement of standing under Powell Duffryn.

"To prevail on a motion for summary judgment, the moving party must establish that there is no genuine issue of material fact to be submitted to the trier of fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Binder v. Long Island Lighting, Co., 933 F.2d 187, 191 (2d Cir. 1991). The moving party bears the initial burden of informing the district court of the reasons for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A violation of a provision of a SPDES permit issued under the authority of § 402 of the CWA, 33 U.S.C. § 1342, constitutes a violation of an "effluent standard or limitation" enforceable under § 505 of CWA, 33 U.S.C. § 1365 - the citizen suit provision. 33 U.S.C. § 1365(f)(6). The interpretation of the terms of a permit is a matter of law for the court. Student Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 1986 WL 6380, *11 (D.N.J.); California Public Interest Research Group, et al v. Shell Oil Company, 840 F. Supp. 712, 716 (N.D.Ca. 1993). It is not a question of fact for the jury. See id. Thus, here, it is the court's function to determine the meaning of the permit provision. Factors for consideration include the plain language of the permit provision itself, and its historical background. See Hercules, at *11-13.

DEP's SPDES Permit #0026131 § IV(b)(6) requires that "the permittee shall [m]aintain minimum staffing positions committed to implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times." See SPDES Permit, p. 21, Ex. A to McIntosh Aff. Defendant's own admissions demonstrate that it has failed to comply with this permit provision. This is an incontrovertible violation of the Clean Water Act.

DEP's SPDES permit became effective on July 29, 1991; at no time from that date until July, 1995, did DEP have 72 staff members implementing the Industrial Pretreatment Program. Defendant's own interrogatories responses show that it did not have 72 staff members for that period. See Def.'s Responses to Pl.'s First set of Interrogs. No. 3-6, Ex. E to McIntosh Aff.; Def.'s Responses to Pl.'s Second Set of Interrogs. No. 2, Ex. F to McIntosh Aff.; Def.’s Revised Supplemental Responses to Pl.’s First Set of Interrogs., Ex. G to McIntosh Aff.; Daily Employment History for Industrial Pretreatment Program Employees, Ex. H to McIntosh Aff.; Graphical Illustration of IPP Staffing Levels from 7/91 to 6/95, Ex. I to McIntosh Aff.

Records of staffing history produced by the Defendant indicated the dates of employment of every staff member employed in the IPP program from July 1991 to June 1995. Id. These records show that prior to June, 1995, the monthly total never reached the requisite minimum level of 72 staff members. See Graphical Illustration of IPP Staffing Levels from 7/91 to 6/95, Ex. I to McIntosh Aff. Furthermore, the Division Chief of the Division of Drainage Basin Management, which incorporates the IPP program, admits that during his employment in that position, from August 1992 through the present day, the IPP had less than 72 staff members. See Dep. Philip Grande, Jr. at 28 lines 14-18, Ex. K to McIntosh Aff. Defendant's own admissions clearly show that it violated its permit by failing to "maintain minimum staffing positions . . . at 72 staff members" mandated by its permit to implement the IPP program. Plaintiff is therefore entitled to Summary Judgment.

Defendant's hiring practices from July 29, 1991 to June, 1995, do not reflect "good faith efforts to keep 72 IPP positions filled at all times" as required by its SPDES permit. The failure to fill the 72 IPP positions at any point during the four year period itself demonstrates the Defendant's lack of good faith.

That demonstration is further bolstered by the availability of qualified applicants for positions in the Industrial Pretreatment Program. At least 64 applications for employment were submitted to the IPP during this time. None of these candidates were hired. See 64 applicant resumes, Ex. J to McIntosh Aff. Among the known 64 applicants, Ms. Marla Wieder, was selected as a qualified candidate for a position in the Legal Unit of the IPP program. See Letter from Marilyn Gelber to Marla Wieder May 6, 1994, Ex. R to Wieder Aff.; Dep. Philip Grande at 204, lines 11, 14-21, Ex. K to McIntosh Aff. Despite the DEP's recognition of Ms. Wieder's qualifications and the need for the attorney trainee position to be filled, Ms. Wieder, although promised the job, was never processed for hiring.

Another applicant, Ms. Luz Caminero, was proposed for employment as an engineer in the IPP program by the Section Chief of the Enforcement and Compliance Section of the IPP. See Dep. Robert Lagrotta at p. 111, lines 23-25 and at 112, lines 1-19, Ex. L to McIntosh Aff. Again, despite the fact that Defendant lacked the required staff members to implement the IPP program, this applicant was never processed for hiring. Id. at p. 113, lines 11, 12-14. The lack of adequate staffing levels along with the availability of qualified applicants proves that Defendant failed to make good faith efforts to keep the required 72 positions filled at all times.

Defendant attributes its failure to fill the vacant IPP position to "budgetary constraints." See Interdepartmental Memo from Robert LaGrotta to Elizabeth Simmons March 2, 1994, Ex. M to McIntosh Aff.; Letter from Marilyn Gelber to Marla Wieder, May 6, 1994, Ex. R to Wieder Aff.; Letter from Preeti Torres to DEP, received on Dec. 14, 1993, Ex. N to McIntosh Aff. The DEC administrative law judge's order implementing the permit explicitly warns the Defendant that "budgetary constraints" will not be considered a legitimate excuse for not meeting the required staffing level under the permit. The 1991 Interim Hearing Report, adopted by the Commissioner of the Department of Environmental Conservation as the Second Interim Decision, states: "The proposed conditions require the City to maintain a minimum of 72 staffing positions for the pretreatment program despite budget problems." Interim Decision of the Commissioner, p. 6, Ex C to McIntosh Aff. (emphasis added).

The DEC's order is entitled to deference by this Court. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984) (holding that the interpretation of the government agency is entitled to deference over other interpretations). If the agency interpretation is not arbitrary or unreasonable then it must be upheld. Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., 12 F.3d 353 (2nd Cir. 1994); see also Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116, 125 (1985); California Public Interest Research Group v. Shell Oil Co., 840 F.Supp. 712, 716 (N.D.Ca. 1993) ("[i]n construing . . . permits [issued under CWA §402], courts . . . give deference to agency interpretation where they are reasonable"). Accordingly, "budgetary constraints" are not an excuse for failure to maintain IPP staffing levels at 72 employees.

C. Defendant's Permit Requires 72 Employees, Not Their "Equivalents".

Defendant claims that it has maintained the "equivalent" of 72 people and thereby complied with the permit mandate. Def.'s Ans. at para. 29. However, this interpretation is inconsistent with the permit's plain language. The permit provision is plain: "[t]he permittee shall Maintain minimum staffing positions committed to implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times." See SPDES permit No. 0026131 IV(B)(6), Ex. A to McIntosh Aff. (emphasis added). The meaning of this sentence is clear. Defendant must hire 72 "staff members" when the permit takes effect and make good faith efforts to restaff those positions promptly when losses occur due to attrition or promotion.

Under the "plain language" rule, statutes and permits should be read and interpreted according to their plain language.

In its June 29, 1994 audit of the Industrial Pretreatment Program, the EPA cited numerous deficiencies in New York City’s implementation of its Industrial Pretreatment Program, including the Defendant's reliance on overtime measures to meet its permit obligations. "The City can not rely indefinitely on the use of overtime and other measures to implement the IPP and comply with the approved IPP and SPDES requirements." Grande Letter, Ex. B to McIntosh Aff. In a letter from the United States Environmental Protection Agency to the Chief of the Industrial Pretreatment Program (then called the Industrial Waste Control Section) retroactively approving the permit modification the EPA asserted that "[m]aintaining 72 positions in the [IPP] is necessary to ensure that the [IPP] is adequately implemented." Letter from Patrick Durack of EPA to Larry Klein June 18, 1992, p. 2, Ex. O to McIntosh Aff.

Thus, EPA's and DEC's interpretation of the permit is consistent with the provision's plain language -- 72 actual full time staff members are required, overtime equivalents cannot be used to achieve permit compliance. Absolutely no statement in Defendant's permit or in any agency interpretation exists permitting the "equivalent" of 72 people. See id. Defendant's interpretation distorts the permit's plain language.

Here, the EPA's and the DEC's interpretation requiring 72 actual people is entitled to deference over any other interpretations.

There is no genuine dispute that DEP failed to maintain an IPP staff of 72 employees, as required by its SPDES permit. Accordingly, for the reasons stated above, this Court should grant Plaintiff's Motion for Partial Summary Judgment declaring Defendant to be in violation of its SPDES permit.

Dated: November 16, 1995

White Plains, New York

Respectfully Submitted,

__________________________________________

ROBERT F. KENNEDY, JR. - RK 5906

KARL S. COPLAN - KC 3877

MICHAEL A. McINTOSH, JR. LEGAL INTERN

Pace Environmental Litigation Clinic, Inc

78 North Broadway

White Plains, New York 10603

914-422-4343; 914-422-4437 fax

Attorney for Plaintiffs