Plaintiff, Hudson Riverkeeper Fund, Inc. ("Riverkeeper"), submits this Memorandum of Law in Support of its Motion for an Order pursuant to Rule 65(a) of the Federal Rules of Civil Procedure enjoining the Yorktown Heights Sewer District; Town of Yorktown; Aaron Bock, Town Supervisor; Allen Chadwick, Assistant Town Supervisor; and Daniel Ciarcia, Town Engineer ("Defendants") from allowing any new sewer connections to the Yorktown Heights Wastewater Treatment Plant ("Sewage Plant") until the Sewage Plant complies with its permit. As described in the accompanying affidavits, the Defendants' illegal discharges of improperly treated sewage cause Plaintiff irreparable harm.

I. A PRELIMINARY INJUNCTION SHOULD BE ISSUED TO PREVENT DEFENDANTS FROM TAKING IN ANY MORE SEWAGE WHEN IT CAN NOT BE PROPERLY TREATED.

In the Second Circuit, in order to obtain preliminary injunctive relief, the moving party:

must demonstrate (1) that it will suffer irreparable harm if the preliminary injunction is not issued, and (2) that it is likely to succeed on the merits of its claims or, in the alternative, has demonstrated sufficiently serious questions regarding the merits of the claims and the balance of hardships tips decidedly in its favor.

L. J.G. Stickley, Inc. v. Canal Dover Furniture Co., Inc., 79 F.3d 258, 261-62 (2d Cir. 1996) (citing Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 967 (2d Cir. 1995)). The trial court may also consider likely consequences to the parties and the overall public interest. See Standard and Poor's Corp., Inc. v. Commodity Exch., Inc., 683 F.2d 704, 711 (2d Cir. 1982). As explained below, Plaintiff and the public interest will be irreparably harmed if a preliminary injunction is not granted. Moreover, Plaintiff has a strong likelihood of success on the merits.

A. Plaintiff And The Public Interest Will Suffer Irreparable Harm If The Defendants Add Any New Sewer Connections To Defendants' Overloaded Sewage Treatment Plant.

Plaintiff and its members are irreparably harmed by Defendants' permit violations in two ways. First, Defendants' discharges are destroying the recreational fishery of the Muscoot River, the Muscoot Reservoir and the New Croton Reservoir. Second, Defendants' discharges create serious health risks to consumers of reservoir water.

1. Destruction of Fishery.

Plaintiff's members who fish or have fished in the Muscoot River and the New Croton Reservoir are irreparably harmed by Defendants' violations. Since January of 1991, the Defendants' own Wastewater Facility Operation Reports ("WFORs") record 2,258 violations of the chlorine effluent limitation contained in the Sewage Plant's State Pollutant Discharge Elimination System permit No. NY-0026743 ("SPDES Permit"). Affidavit of Stephanie L. Burns, sworn to on October 14, 1996 ("Burns Aff.") ¶¶ 11, 17, 22, Exs. A (SPDES Permit), F, K-M. Chlorine is extremely toxic to fish and the organisms on which they depend. Affidavit of Dr. Bruce A. Bell, sworn to on October 11, 1996 ("Bell Aff.") ¶ 23.

The Hallocks Mill Brook and Muscoot River are classified by New York State Department of Environmental Conservation as trout habitat. 6 N.Y.C.R.R. § 864.6. "When excessive chlorine is discharged to a trout stream, the trout population may decrease since even small concentrations are lethal to fish eggs." Bell Aff. ¶ 23. Formerly, the Muscoot River was an ideal fishing area because of its natural beauty and abundance of trout; however, the recent deterioration downstream of the Hallocks Brook outlet, has rendered the Muscoot River "no longer worth a visit." Affidavit of Robert B. Hodes, sworn to on April 24, 1996, ¶ 5.

Additionally, the metals discharged by the Defendants' Sewage Plant, such as copper, nickel and zinc, have a severe impact on aquatic plants and animals. For example, copper has been shown to be toxic to young and juvenile fish. Bell Aff. ¶ 24. Defendants admit to five violations of the copper effluent limitation since January 1991. Burns Aff. ¶¶ 22, Ex. N. "Nickel adversely affects the reproduction of freshwater crustaceans and fish and nickel salts are injurious to freshwater plants." Bell Aff. ¶ 26. Since January of 1991, Defendants have failed to monitor their effluent for nickel on two occasions. Burns Aff. ¶ 11, Ex. F-G. The numerous impacts of zinc on freshwater plants and animals include: (1) bioaccumulation of zinc in freshwater tissues can reach 1,130 times the concentration of zinc in water; (2) adverse changes in the morphology and physiology of fish; (3) cellular breakdown of fish gills; and (4) inhibition of growth and maturation of freshwater organisms. Bell Aff. ¶ 27. The Defendants' have failed to monitor their effluent for zinc on two occasions. Burns Aff. ¶ 11, Ex. F-G.

At present, the Sewage Plant is hydraulically overloaded which decreases the plant's ability to remove pollutants. Bell Aff. ¶ 12. Any additional sewer hook-ups will increase the flow to the Sewage Plant. This additional flow will exacerbate the degradation of Hallocks Mill Brook by increasing the release of chlorine and metals thereby irreparably injuring the Plaintiff's members who are unable to fish there.

2. Drinking Water Hazards.

Defendants' violations also irreparably harm Plaintiff's members, who drink, cook, and bathe in the water from the Muscoot and New Croton reservoirs as New York City and Westchester water consumers, by introducing pathogens and toxic substances into their drinking water supply. Bell Aff. ¶¶ 20-27.

Defendants have exceeded the Sewage Plant's effluent limitation for lead on two occasions since January of 1991. Burns Aff. ¶ 22, Ex. L-M. Lead is a toxic metal, which accumulates in the tissues of humans and freshwater fish. Bell Aff. ¶ 25. Lead can cause irreversible brain damage to children who ingest water or other substances contaminated with lead. Id. ¶¶ 21, 25.

Defendants' permit violations expose water users to pathogens as well. Defendants' fecal coliform violations indicate the discharge of incompletely disinfected effluent and suggest the presence of other pathogenic bacteria and viruses in the effluent. Bell Aff. ¶ 22. According to Dr. Bell, reduced detention times result in less efficient removal of pollutants, such as bacteria and viruses. Bell Aff. ¶ 12. Anne Hearst, a Riverkeeper Director and New York City resident, will not let her children drink from the home tap because of her "fear it is contaminated by sewage in the reservoir." Affidavit of Anne Hearst, sworn to on April 25, 1996, ¶¶ 5-7. David Fell, another Riverkeeper Director and New York City resident, attests that he "fear[s] that the tap water in his home is not clean" and that he is "forced to filter the water before [he] uses it." Affidavit of David Fell, sworn to October 10, 1996, ¶ 5.

Even when flow volumes are within its permitted capacity, the Sewage Plant has violated the permit limitations for CBOD, Suspended Solids, Chlorine and other pollutants. See e.g., Burns Aff. ¶ 17 (from May 1995 to September 1995, no flow violations occurred, but chlorine and suspended solids violations persisted). Additional flows only exacerbate the violations and increase the discharge of incompletely treated sewage into the Hallocks Mill Brook. The Sewage Plant has a permitted monthly average flow of 1.5 million gallons per day. See Burns Aff. Ex. A (SPDES permit) and Bell Aff. ¶ 11. However, the Sewage Plant has had monthly flow averages for flow as high as 2.4 million gallons per day and on some days, the Sewage Plant flows have exceeded 6.8 million gallons. See Burns Aff. Ex. F (March 1994 WFOR), M (July 1996 WFOR). These levels greatly exceed the plant's capacity to treat sewage. Bell Aff. ¶ 11. Such exceedences escalate the detrimental environmental impacts inherent in discharging incompletely treated sewage into an already overloaded receiving water. Every additional hook-up adds to this risk since each hook-up will further reduce holding times.

The water users served by this system deserve not simply drinkable water, but water that does not have a single drop of "sewage" in it. Because existing flows already exceed Defendants' ability to treat sewage, connection of additional sewer hook-ups is the equivalent of running pipes from toilets directly into a drinking water supply. For these reasons, each new hook-up will cause irreparable harm. A moratorium on "hook-ups" to this sewage treatment plant is therefore essential.

B. The Plaintiff Has Established A Substantial Likelihood Of Success On The Merits, As The Record Establishes Clear And Admitted Violations Of The Clean Water Act.

The Defendants are chronic violators of the Clean Water Act ("CWA"). Defendants in their own WFORs admit to violating their permit 1,226 times between January, 1991 and April, 1995. See Burns Aff. ¶ 11, Ex. F-G. To violate a permit condition is to violate the CWA. EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 (1976).

Under the CWA, "compliance is a matter of strict liability and a defendant's intention to comply or good faith attempt to do so does not excuse a violation." Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1409 (D. Conn. 1987)(citing United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979)); Connecticut Fund for the Env't v. Job Plating Co., 623 F. Supp. 207, 218 (D. Conn. 1985)(citations omitted). The issue of liability is determined based on a defendant's WFORs, and the undisputed facts in this case show that permit levels are exceeded. See Coalition for a Liveable West Side, Inc., v. New York City Department of Envtl. Protection, 830 F. Supp. 194, 198 (S.D.N.Y. 1993)(citing United States v. CPS Chemical Co., 779 F. Supp. 437, 442 (E.D. Ark. 1991); Natural Resources Defense Council v. Loewengart & Co., 776 F. Supp. 996, 998 (M.D. Pa. 1991)); see also Job Plating Co., 623 F. Supp. at 218 (citations omitted). Therefore, Riverkeeper is substantially likely to succeed on the merits.

C. Alternatively, And At A Minimum, Plaintiff Has Established A Sufficiently Serious Ground For Litigation And A Balance Of Hardships Tipping Decidedly In Its Favor.

The Second Circuit has held that as an alternative to showing a likelihood of success on the merits, the moving party is entitled to injunction if it establishes a sufficiently serious ground for litigation and a balance of hardships tipping decidedly in its favor. Stickley, 79 F.3d at 261-62 (citations omitted). As demonstrated in Point B, supra, Plaintiff has clearly established a serious ground for litigation on the merits.

The balance of hardships also clearly favors Plaintiff. If the Defendants are permitted even one additional hook-up, the Sewage Plant's permit violations will worsen. As a result, the Plaintiff will suffer the immediate, severe, and irreparable injuries as noted in Point A, supra.

By comparison, Defendants will not suffer any significant harm if this Court enjoins further sewer hook-ups. The issuance of a preliminary injunction will not alter the status quo or cause undue inconvenience or loss to the Defendants. Defendants have no legitimate interest in expanding its population when it lacks the infrastructure to serve its existing population in compliance with the law. All properties presently served by the Sewage Plant will continue to be served even if a moratorium is granted.

D. This Court Should Issue Effective Injunctive Relief To Stop The Violations Of Federal Law.

Section 505(a) of the Act, 33 U.S.C. § 1365(a), gives district courts jurisdiction "to enforce . . . an effluent standard or limitation" in a suit brought by citizen plaintiffs and specifically refers to the availability of "a temporary restraining order or preliminary injunction" in § 505(d), 33 U.S.C. § 1365(d). Consequently, this Court's jurisdiction under

§ 505(a) plainly includes the authority to issue whatever injunctive relief is necessary to ensure a defendant's compliance with the Act. The D.C. Circuit has explicitly recognized that a sewer hook-up moratorium may be necessary to enforce a sewage treatment plant's effluent limitations. Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 588 (D.C. Cir. 1980).

For the foregoing reasons, Plaintiff respectfully requests this Court to issue a preliminary injunction imposing a sewer hook-up moratorium.

Dated: October 15, 1996

White Plains, New York

Respectfully submitted,

KARL S. COPLAN - KC 3877

ROBERT F. KENNEDY, JR. - RK 5906

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