UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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HUDSON RIVERKEEPER FUND, INC., :

Plaintiff, :

v. : 95 Civ. 8749 (JSR)

YORKTOWN HEIGHTS SEWER DISTRICT, :

TOWN OF YORKTOWN, AARON BOCK,

TOWN SUPERVISOR, ALLEN CHADWICK, :

ASSISTANT TOWN SUPERVISOR and DANIEL

CIARCIA, PLANT ENGINEER, :

Defendants. :

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Plaintiff, an environmental organization whose members recreate and fish in, and drink from, the waters into which Defendants' sewage treatment plant discharges, brought this citizen suit under § 505 of the Clean Water Act ("CWA"), 33 U.S.C. § 1365. Defendants admit thousands of violations of the effluent parameters in their State Pollutant Discharge Elimination System ("SPDES") permit. In a desperate attempt to avoid liability for violations they concede, Defendants now contend Plaintiff lacks standing, and have moved for summary judgment dismissing the Complaint.

The facts underlying this action and Hudson Riverkeeper Fund, Inc.'s basis for standing have been set forth in Plaintiff's Affidavits and Exhibits in Support of Its Motion for Partial Summary Judgment and Plaintiff's Memorandum of Law In Support of Its Motion For Partial Summary Judgment dated October 16, 1996, and are not repeated here. Plaintiff has identified specific voting directors whose use of the Muscoot River, Muscoot Reservoir, and New Croton Reservoir has been detrimentally affected by pollution, and has submitted expert testimony establishing that the kinds of injuries suffered by Plaintiff's directors and members are caused by the kinds of pollutants emitted in excess of permit limits by the Defendants. This satisfies Article III and CWA standing.

For purposes of standing under CWA § 505(g), a citizen is a "person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). Defendants' chronic violations of their State Pollution Discharge Elimination System permit No. NY-0026743 (SPDES Permit) cause pollution that is harmful to Plaintiff's directors and members.

A party that seeks to invoke the power of a federal court must have standing based on the Article III requirement of a case or controversy. Art. III, § 2, cl. 1. Plaintiff, Hudson Riverkeeper Fund, Inc. ("Riverkeeper"), has the requisite stake in the outcome of this action to ensure that this court's power is not being invoked for a hypothetical ruling.

The Supreme Court has distilled the requirements of Article III standing into three components: (1) plaintiffs are required to allege and show injury in fact to a legally recognizable interest, Sierra Club v. Morton, 405 U.S. 727, 734 (1972); the injury must be fairly traceable to the challenged action, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. at 472; (3) the plaintiffs injury will be redressed by the judicial relief sought, Id (citing Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41 (1976)).

Riverkeeper satisfies the constitutional standing requirement because its directors and members suffer injury in fact. Harm to aesthetic interests, environmental well-being, economic interests or recreational interests is sufficient to confer standing. Morton, 405 U.S. at 734-735. The harm may be either actual or threatened. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). Additionally, "[t]hese injuries need not be large, an 'identifiable trifle' will suffice." Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (1990), cert. denied, 498 U.S. 1109 (1991) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14 (1973)).

Riverkeepers's members and directors suffer actual and threatened injury to their recreational, aesthetic, health and economic interests similar to the members in Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57 (2d Cir. 1985). In that case, the Second Circuit held that an affiant who "stated that he passes the Hudson regularly and 'find[s] the pollution in the river offensive to [his] aesthetic values'" and another affiant who "occasionally fishes in the river and "has and will continue to picnic along the river" shows sufficient injury in fact with respect to CWA violations. Id. at 61. In the instant case, the injuries to Plaintiff's directors and members are serious and, as in Friends of the Earth, show injury in fact sufficient to support standing.

Defendants' discharges are destroying the recreational fisheries of the Muscoot River, Muscoot Reservoir and the New Croton Reservoir. Since January of 1991, Defendants have violated their residual chlorine effluent limitation on seventy-seven (77) occasions. Affidavit of Stephanie L. Burns sworn to on Oct. 15, 1996 ("Burns Aff.") ¶¶ 11, 17, 22, Ex. A, F, K-M. Chlorine is extremely toxic to aquatic life - even small concentrations of chlorine are lethal to fish eggs. Affidavit of Bruce A. Bell, sworn to on Oct. 11, 1996 ("Bell Aff."), ¶ 23. Additionally, metals discharged by the Plant, such as copper, nickel, and zinc, have a severe impact on aquatic plants and animals. See Bell Aff. ¶¶ 24-27. For example, copper has been shown to be toxic to young and juvenile fish. Bell Aff. ¶ 24. Since Riverkeeper filed its complaint in October of 1995, Defendants report five violations of their copper effluent limitation. Burns Aff. ¶¶ 13, 20, 22, Ex. A, I, N.

Robert Hodes, a Riverkeeper member, has fished recreationally for trout for many years in the Muscoot River, into which Hallocks Mill Brook empties. Affidavit of Robert B. Hodes, sworn to on April 24, 1996 ("Hodes Aff.") ¶ 4. Mr. Hodes would ordinarily fish the Muscoot River 25 or more times each season, but because the fishing has deteriorated "markedly" over the past five years, the Muscoot River is "no longer worth the visit." Id. at ¶¶ 5, 7. Mr. Hodes has personally observed the deterioration of the Muscoot River, "particularly downstream from the Hallocks Mill Brook outlet and the Yorktown Sewage Treatment Plant." Id. at ¶ 6. In addition, Robert Boyle, Riverkeeper's President, regularly fishes in the New Croton Reservoir and is aesthetically offended by algae mats and dead fish in the reservoir. Affidavit of Robert H. Boyle, sworn to on April 24, 1996 ("Boyle Aff.") ¶¶ 11, 12. Mr. Hodes' and Mr. Boyle's aesthetic, environmental and recreational injuries are sufficient to meet the test employed by the Second Circuit in Friends of the Earth for injury in fact.

Defendants' discharges introduce pathogens and toxic substances into the Croton Reservoir system, creating serious health risks to consumers of reservoir water. See Bell Aff. ¶¶ 18-27. Defendants are presumed to have exceeded the effluent limitation for lead on two occasions since Riverkeeper filed its complaint. Burns Aff. ¶ 22, Ex. A, I, L-M. Lead is a toxic metal that accumulates in the tissues of humans and that can cause irreversible brain damage to children who ingest water or other substances contaminated with lead. Bell Aff. ¶ 25. Fecal coliform violations indicate the discharge of incompletely disinfected effluent and suggest the presence of other pathogenic bacteria and viruses in Defendants' effluent. Bell Aff. ¶ 22.

Anne Hearst and David Fell, Riverkeeper directors, consume water from the affected reservoirs. Ms. Hearst, a New York City resident, has observed a noticeable deterioration in her tap water. Affidavit of Anne Hearst, sworn to on April 25, 1996 ("Hearst Aff."), ¶¶ 3-6. Ms. Hearst now uses only boiled or bottled water and will not let her children drink from the home tap because of her "fear it is contaminated by sewage in the reservoir." Id. at ¶¶ 5-7. Mr. Fell attests that he "fear(s) that the tap water in his home is not clean" and that he is "forced to filter it" before he drinks it. Affidavit of David Fell, sworn to Oct. 10, 1996 ("Fell Aff.") ¶ 5. Mr. Fell is "upset" because his water has been "foamy" on occasions and he has seen "turbidity" in the water. Id. at ¶ 6. Mr. Fell and Ms. Hearst have suffered injuries which satisfy the Friends of the Earth test because they fear their water is not clean, because they have been forced to change their behavior, and because they have actually seen impurities in their water. The Supreme Court has held that "apprehension flowing from the uncertainty about . . . health" is sufficient to establish injury in fact to support Article III standing. Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978).

Contrary to Defendants' assertion, Plaintiff need not show tort-like proximate causation to satisfy the second prong of Article III standing. Plaintiff need "only show that there is a 'substantial likelihood' that defendant's conduct caused [the] harm." Powell Duffryn, 913 F.2d at 72 (quoting Duke Power Co., 438 U.S. 59, 75 n. 20 (1978)). According to the Third Circuit:

Powell Duffryn, 913 F.2d at 72.

As recognized by Powell Duffryn, CWA standing should not impose a greater burden on the Plaintiff to establish standing than to establish liability, for which the CWA requires no showing of specifically identifiable harm. Id. at 73 n.10. The CWA was adopted out of a frustration with the previously existing scheme of the Water Quality Act, which imposed liability only when it could be proven that a particular discharger itself caused violation of a water quality standard. See generally, Mark C. Van Putten & Bradley D. Jackson, The Dilution of the Clean Water Act, 19 U. Mich. J. L. Ref. 863 (Summer 1986); Frank P. Grad, Treatise on Environmental Law §§ 3.03(2)(a)-(a-1) (1996). The CWA intended to grant citizen standing to the limits permitted by Article III of the Constitution (Powell Duffryn, 913 F.2d at 70 n.3), and specifically to allow standing by any person "having an interest which is or may be adversely affected," CWA

§ 505(g), specifically invoking the standard of Morton. S. Conf. Rep. No. 92-1236, available in 1972 WL 12735, *128.

Robert Boyle, Riverkeeper President, and Robert Hodes, a Riverkeeper member, utilize the Croton Reservoir System for recreational fishing, and have complained about declining fish populations, excessive algae growth and dead fish. Boyle Aff.

¶ 8, 11; Hodes Aff. ¶ 4. Plaintiff's expert, Dr. Bruce Bell, attests that the effluent limitations violated by Defendants are deleterious to the trout and other aquatic organisms and promote algae growth. Bell Aff. ¶¶ 20, 21, 23-27; Affidavit of Bruce A. Bell, sworn to on Oct. 25, 1996 ("Bell Ans. Aff.") ¶¶ 4-5, 7, 11.

Similarly, Dr. Bell attests that Defendants' discharges introduce pathogens and toxic substances into the New York City drinking water supply. Bell Aff. ¶¶ 18-27; Bell Ans. Aff. ¶¶ 9-11. The actual and threatened harm to Hearst and Fell is the type of harm caused by the Defendants' admitted violations.

To satisfy the fairly traceable requirement, Plaintiff need not demonstrate to a "scientific certainty that defendant's effluent, and the defendant's effluent alone, caused the precise harm suffered by the plaintiffs." Powell Duffryn, 913 F.2d at 72. Dr. Bell's opinion that impacts to the Hallocks Mill Brook are "likely" and "probable" sufficiently satisfies this requirement under Powell Duffryn. Bell Aff. ¶¶ 18, 20-27; Deposition of Dr. Bruce A. Bell ("Bell Dep.") at p. 71 (ln. 14-19), p. 72 (ln. 11-15), p. 72 (ln. 18) - p. 73 (ln. 4); Bell Ans Aff. ¶ 5.

Thus, since Plaintiff has alleged injuries - destruction of recreational fisheries, aesthetically disturbing algae mats and dead fish, and deterioration of drinking water quality in the Croton Reservoir system - and has shown that the Defendants' effluent contains pollutants that harm aquatic life, promote algae growth, and harm drinking water quality, Plaintiff has standing. See Powell Duffryn, 913 F.2d at 72-73; see also Atlantic States Legal Found., Inc. v. Colonial Tanning Corp., 827 F. Supp. 903, 909 (N.D.N.Y. 1993); Atlantic States Legal Found., Inc. v. Karg Bros., Inc., 841 F. Supp. 51, 55 (N.D.N.Y. 1993).

Plaintiff satisfies the final prong of the Valley Forge test because the injury inflicted by the Defendants' illegal conduct is likely to be redressed by a favorable decision from this court. 454 U.S. at 472. The recreational, aesthetic, health and economic injuries attested to by Plaintiff's directors and members will be remedied by the relief requested in Plaintiff's complaint.

An injunction against further violations of Defendants' SPDES Permit will reduce the Plaintiff's injuries by reducing pollutants discharged into the Croton Reservoir System. Civil penalties will act to deter the Defendants and other SPDES permit holders from violating the CWA. See Powell Duffryn, 913 F.2d at 73; Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 695 (4th Cir. 1989); Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988), cert. denied, 491 U.S. 904 (1989); Student Public Interest Research Group of New Jersey, Inc. v. Bell Laboratories, 617 F. Supp. 1190, 1200-1201 (D.N.J. 1985). The relief sought will clearly redress the pollution of the Muscoot River, Muscoot Reservoir, and the New Croton Reservoir complained of by Plaintiff's members and directors.

Defendants claim that expansion of their plant's treatment capacity conflicts with the interest that Riverkeeper seeks to protect, since, they claim, increased plant size would increase effluent flows discharged to Hallocks Mill Brook. Grace Affirmation ¶¶ 38, 45, 46. This assertion is based on a double-mischaracterization of Dr. Bell's deposition testimony. First, Plaintiff seeks permit compliance, not necessarily plant expansion. Dr. Bell opines only that the Defendants could have achieved compliance with permit limitations by expanding plant treatment capacity, and Dr. Bell used this solution as a basis for estimating Defendants' cost savings by deferring compliance. Bell Aff. ¶ 16; Bell Ans Aff. ¶ 13. Second, Defendants confuse an increase in plant treatment capacity with an increase in plant flows. The fact is that the plant is already running over capacity, Bell Aff. ¶¶ 11, 12; expansion of the plant would simply provide for more effective treatment of the existing excessive flow. Thus, plant expansion would not, as Defendants allege, result in more pollution. Bell Ans. Aff. ¶ 15. At current flow rates, upgrading the plant to a design capacity of 2.5 MGD will increase the Plant's treatment capacity and reduce pollution entering the receiving waters, the Croton Reservoir System. Bell Ans. Aff. ¶¶ 14, 15.

Riverkeeper has standing because it has shown injury in fact that is fairly traceable to the Defendants' illegal conduct and the injuries are likely to be redressed by a favorable ruling from this court.

Generally, Article III standing bars plaintiffs from asserting the rights of third parties. The Supreme Court has recognized organizational standing as one exception to this rule. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333 (1977). 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 it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Washington Apple, 432 U.S. at 343; see United Automobile Workers of America v. Brock, 477 U.S. 274 (1986); see also New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988) (holding that an association of New York City clubs had standing because the members of each of the clubs would have had standing to sue on their own right); RITE - Research Improves the Environment, Inc. v. Costle, 650 F.2d 1312, 1319 (5th Cir. 1981) (citing Sierra Club v. Morton, 405 U.S. at 735). As explained above, Riverkeeper members and directors have suffered recreational, health, and economic injuries as a result of Defendants' illegal conduct sufficient to satisfy individual standing requirements.

Plaintiff is a not-for-profit conservation organization whose primary purpose is "to protect and defend the beauty, quality and biological integrity of the Hudson Valley watershed and its tributaries." Boyle Aff. ¶ 2. Riverkeeper members include sports fishermen, commercial fishermen, and concerned individuals from all over the Hudson River Region who desire to protect the natural resources of the Hudson River and its watershed. Id. The Croton Reservoir system is among the resources Riverkeeper strives to protect. Id. The claims asserted are germane to Riverkeeper's purposes, and do not require participation by individual members. Riverkeeper has standing to bring this action on behalf of its members and directors.

Defendants make the remarkable assertion that because some of Riverkeeper's supporting members may reside in (and pay sewer rates to) the Yorktown Heights Sewer District, Riverkeeper has some conflict of interest that vitiates its standing to bring this citizens suit. Defendants' argument, which is not based on any pertinent authority, would frustrate all citizens suits against governmental entities, and is contrary to the explicit provisions of the CWA. The CWA §§ 505(a)(1)(i) and (ii) specifically authorizes citizen suits against government facilities. 33 U.S.C. § 1365(a)(1). Yet, according to Defendants' argument, no taxpayer could bring such a suit, as she might ultimately be forced to bear some part of the cost of CWA compliance, creating a "conflict." The Clean Water Act is based on a very explicit Congressional determination that the benefits of a clean environment merit the imposition of compliance costs on the sources of water pollution, be they municipal or private. And Riverkeeper's existence as an organization founded specifically to bring environmental enforcement litigation reflects an understanding by Riverkeeper's members and supporters that the benefits of water that is drinkable, fishable, and not fouled by algae mats is worth the cost of sewer rates that reflect the true costs of permit compliance.

Under Defendants' theory, no regional environmental organization could ever bring litigation against any municipal polluter within its area, as some of its members might be taxpayers or rate payers to the municipal defendant. No case has ever so held, and, indeed, the casebooks are brimming with CWA cases brought by regional environmental organizations against municipal defendants. See e.g., Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995); Save Our Bays and Beaches v. City of Honolulu, 904 F. Supp. 1098 (D. Haw. 1994); California Sportfishing v. City of W. Sacramento, 905 F. Supp. 792 (E.D. Cal 1995); Hudson River Fishermen's Ass'n v. City of New York, 751 F. Supp. 1088 (S.D. N.Y. 1990).

Plaintiff amply satisfies the standards for citizen standing to bring a Clean Water Act enforcement case. Its members, including the Directors who set its policies and authorized this litigation, regularly use the water bodies, into which Defendants' improperly treated sewage flows, for fishing, recreation, and drinking water. The kinds of injuries suffered by these directors and members are the kinds of injuries caused by the kinds of pollutants that Defendants discharge in illegal quantities. Defendants' Motion for Summary Judgment on standing grounds should be denied.

Dated: October 28, 1996

White Plains, New York

Respectfully Submitted,

ROBERT F. KENNEDY, JR. - RK 5906

KARL S. COPLAN - KC 3877

STEPHANIE L. BURNS, LEGAL INTERN

SEAN F. NOLON, LEGAL INTERN

Pace Environmental Litigation Clinic, Inc.

78 North Broadway

White Plains, New York 10603

(914) 422-4343; (914) 422-4437 fax

Attorneys for Plaintiff