PRELIMINARY STATEMENT

Plaintiff Hudson Riverkeeper Fund, Inc. ("Riverkeeper") submits this Memorandum of Law in Support of its Motion for Partial Summary Judgment. Defendants operate the Yorktown Heights Wastewater Treatment Plant ("Plant") which discharges into Hallocks Mill Brook, part of the drinking water supply for New York City and Westchester County. The New York State Department of Environmental Conservation ("DEC") issued the Town of Yorktown State Pollution Discharge Elimination System permit No. NY-0026743 ("SPDES Permit") pursuant to 33 U.S.C. § 1342(b). This permit allows the Defendants to discharge limited quantities of pollutants subject to compliance with certain requirements. Affidavit of Stephanie L. Burns, sworn to on Oct. 15, 1996 ("Burns Aff."), Ex. A.

According to Defendants' own Wastewater Facility Operation Reports ("WFORs"), on at least 2,258 occasions since January of 1991, Defendants have violated the parameters and monitoring requirements of their SPDES Permit. Burns Aff. ¶¶ 11, 17, 22, Ex. F, K-N. The Defendants' WFORs, filed subsequent to the filing of Plaintiff's Complaint show continued violations of their permit. Burns Aff. ¶¶ 21, 22, Ex. I, L-N.

Since the Defendants, through their WFORs, have admitted to violating their SPDES Permit, no genuine issue exists as to whether the Defendants have violated the Clean Water Act ("CWA"). Therefore, Plaintiff should be granted partial summary judgment on the issue of liability.

I. THIS COURT HAS JURISDICTION OVER THIS ACTION.

This Court has jurisdiction pursuant to 33 U.S.C. § 1365(a), which provides that: "any citizen may commence a civil action

. . . against any person . . . alleged to be in violation of . . . an effluent standard or limitation . . . ." The term "effluent standard or limitation [includes] a permit or condition thereof issued under section 1342 of this [Act]. . . ." 33 U.S.C. § 1365(f). Section 1311(a) forbids any person to discharge any pollutant into navigable waters except pursuant to and in compliance with a permit issued under §§ 1342 or 1344.

Plaintiff may bring a citizen suit to enforce permit provisions so long as it satisfies the notice requirements of 33 U.S.C. § 1365(b)(1)(A); makes a good faith allegation that violations are continuous at the time of suit; and neither the state nor the EPA have prosecuted the violations provided in 33 U.S.C. § 1365(b)(1)(B).

A. Plaintiff Provided Proper Notice To Defendants.

The Plaintiff has satisfied the requirements for notice. The Town Supervisor received Plaintiff's Letter of Intent to Sue on July 24, 1995. Burns Aff. Ex. G-H. The notice letter set out the specific dates of the alleged violations, as well as the parameters and conditions violated as required by law. See Hudson Riverkeeper Fund, Inc. v. Putnam County Hosp., 891 F. Supp. 152, 154 (S.D.N.Y. 1995). Plaintiff filed its complaint in this Court on Oct. 13, 1995, more than 60 days later.

B. Defendants' Violations Are Continuous.

Section 1365 also requires for jurisdiction that the plaintiffs "make a good-faith allegation of continuous or intermittent violation[s] . . . ." Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 64 (1987). Plaintiff has satisfied the Gwaltney requirement by alleging that Defendants' noncompliance and violations of their permit are ongoing. See Compl., ¶¶ 7, 28, Burns Aff. Ex. I. Moreover, Defendants have continued to violate following commencement of this action. Defendants have admitted violating their SPDES Permit 785 times in the eleven months since the Complaint was filed. Burns Aff. ¶¶ 18-22 and Ex. L-M. Thus, Plaintiff's allegations have been substantiated by Defendants' own conduct. See NRDC v. Texaco, 2 F.3d 493, 501 (3d Cir. 1993)(finding that post-complaint violations establish continuing violations at time of complaint); Chesapeake Bay Found. v. Gwaltney of Smithfield, 844 F.2d 170, 171-72 (4th Cir. 1988), remanded, 688 F. Supp. 1078 (E.D. Va. 1988), rev'd in part, 890 F.2d 690 (4th Cir. 1989).

Section 1365(b)(1)(B) forbids citizen suits when the federal or state agency has already commenced and is diligently prosecuting an enforcement action to require compliance with the standard or limitation. Defendants admit that neither the EPA nor the DEC have commenced any proceeding against the Yorktown Heights Sewer District. Burns Aff. Ex. J ¶ 4 (Defs.' Answer). Further, the Defendants admit that there has been no administrative proceeding that would preempt this action. Burns Aff. Ex. P, ¶ 80 (Defs.' Resp. to Req. for Admis.).

II. PLAINTIFF HAS STANDING.

The Plaintiff has standing to bring this case on behalf of its members and its directors who are individually affected. For purposes of standing under 33 U.S.C. § 1365(g), a citizen is a "person or persons having an interest which is or may be adversely affected." Plaintiff satisfies the organizational standing test set out in New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988). Furthermore, Defendants' chronic SPDES Permit violations cause pollution that is harmful to Plaintiff's directors and members. This harm satisfies the injury-in-fact

requirement defined by Sierra Club v. Morton, 405 U.S. 727 (1972).

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 the individual members in the lawsuit." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343 (1977)).

Plaintiff brings this action on behalf of both its Directors and its members. 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." Affidavit of Robert H. Boyle, sworn to on Apr. 24, 1996 ("Boyle Aff."), ¶ 2. Riverkeeper members and directors enjoy the watershed and tributaries for activities including, but not limited to, recreational fishing, boating and aesthetic pleasure. Affidavit of Robert B. Hodes, sworn to on Apr. 24, 1996 ("Hodes Aff."), ¶ 8; Boyle Aff. ¶¶ 13, 14. Members and directors also use the watershed for their drinking, cooking and bathing water in New York City and Westchester. Affidavit of David Fell, sworn to on Oct. 10, 1996 ("Fell Aff."), ¶¶ 5-10; Affidavit of Anne Hearst, sworn to on Apr. 25, 1996 ("Hearst Aff."), ¶¶ 5-10. The protection of the Hudson Valley Watershed and its tributaries is a central concern to the Riverkeeper's purposes. Therefore, the Plaintiff has standing to bring this action on behalf of its members.

Plaintiff members' injury-in-fact satisfies constitutional standing requirements. 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 harm to aesthetic interests, environmental well-being, economic interests or recreational interests is sufficient to confer standing. Morton, 405 U.S. at 734-35. In Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985), the Second Circuit ruled that an affidavit in which an affiant "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" are "sufficient to show the injury in fact required by Morton . . ." with respect to CWA violations. See also RITE Research Improves the Env't v. Costle, 650 F.2d 1312, 1319 (5th Cir. 1981)(discussing organizational standing).

One who enjoys a waterway recreationally has standing to sue another who pollutes it, and an organization of which he is a member may sue on his behalf. See e.g., Chesapeake Bay Found. v. American Recovery Co. Inc., 769 F.2d 207 (4th Cir. 1985); NRDC v. Outboard Marine Corp., 692 F. Supp. 801 (N.D. Ill. 1988).

Plaintiff amply satisfies this test. Robert Hodes, a Riverkeeper Member, has fished recreationally in trout streams of the Hudson Valley for many years, concentrating mainly in the Muscoot River into which Hallocks Mill Brook empties. Hodes Aff. ¶ 4. Mr. Hodes is "angry and frustrated" because he would ordinarily fish the Muscoot River 25 or more times this 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, Plaintiff's President, regularly fishes in the New Croton Reservoir and is offended by algae mats and dead fish in the reservoir. Boyle Aff. ¶¶ 11, 12. Mr. Hodes' and Mr. Boyle's aesthetic, environmental and recreational injuries are sufficient to meet the Friends of the Earth test for injury-in-fact.

Anne Hearst and David Fell, Riverkeeper members and directors are also water consumers of the affected reservoirs. Ms. Hearst, a New York City resident, has observed a noticeable deterioration in her tap water. 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 uses it." 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 ¶ 7. Both Ms. Hearst and Mr. Fell have suffered injuries which satisfy the Friends of the Earth test.

Plaintiff's injuries also satisfy the more restrictive standard announced in Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991); see also Texaco, 2 F.3d at 505 (reaffirming Powell Duffryn after the Supreme Court's decision in Defenders of Wildlife, 504 U.S. 555). The Powell Duffryn court found that a CWA plaintiff had Article III standing where its injuries were of the type caused by the type of pollutants discharged by the defendant, without requiring a strict showing that defendant's pollutants caused plaintiff's injuries. 931 F.2d at 72.

Dr. Bell states that chlorine is extremely toxic to aquatic life in small concentrations. Affidavit of Bruce A. Bell, sworn to on Oct. 11, 1996, ("Bell Aff.") ¶ 23. Excessive chlorine discharges may decrease the trout population of a stream, because chlorine, even in small concentrations, is lethal to fish eggs. Bell Aff. ¶ 23. The Defendants' WFORs admit to violations of its chlorine limits, sometimes at high concentrations. See Burns Aff. ¶¶ 11, 17, 22, Ex. F-G, K-M. These violations directly harm Mr. Hodes' and Mr. Boyle's aesthetic and recreational rights to fish the Muscoot River.

Defendants also admit to violations of maximum flow and fecal coliform. Id. The excess flow makes the Plant's pollutant removal less efficient by reducing its detention times. Bell Aff. ¶ 12. In addition, excessive flow through the plant causes other parameter violations, such as CBOD₅, are caused by excessive plant flows. Bell Aff. ¶ 11.

Dr. Bell also attests that the fecal coliform violations indicate the discharge of incompletely disinfected effluent and suggest the presence of other pathogenic bacteria and virus in the effluent. Bell Aff. ¶ 22. So, discharges containing fecal coliform in excess of permit limits increases the public's risk of exposure to disease causing organisms. Id. Anne Hearst attests that she fears drinking her tap water due to health risks. Hearst Aff. ¶¶ 5-8, 10. These reasonable fears meet the injury-in-fact test. Those who drink water downstream of a sewage plant must have standing to challenge what goes into their water.

IS A VIOLATION OF THE CWA.

Determining whether a particular discharge violates the CWA is a simple matter. Section 1311(a) makes unlawful any discharge not authorized by one of several specified sections of the CWA, including 33 U.S.C. § 1342. 33 U.S.C. § 1311(a). A violation of a permit issued under § 1342 is a violation of the Act. EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 (1976); NRDC v. Costle, 568 F.2d 1369, 1374-75 (D.C. Cir. 1977).

"[T]he fact-finding process for determining compliance is a simple one--it involves comparing the reported discharges to the applicable effluent limitations to determine in which instances the discharges exceeded the allowable limits." Connecticut Fund for the Env't v. Upjohn Co., 660 F. Supp. 1397, 1409 (D. Conn. 1987). Plaintiff's Letter of Intent to Sue details violations admitted in Defendants' WFORs. Burns Aff. Ex. G. The Burns affidavit details permit violations subsequent to the Letter of Intent to Sue. Burns Aff. ¶¶ 16, 17, 21 and 22.

"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." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

Defendants admit their own violations in their reports to the government. Defendants' WFORs document 2258 violations since January, 1991. Burns Aff. ¶ 11, 17, 22; Exs. F, G, K-M.

Defendants are strictly liable for SPDES violations. 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." Upjohn Co., 660 F. Supp at 1409 (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)).

Summary judgment on the issue of liability is determined based on a defendant's WFORs. See Coalition for a Liveable West Side, Inc., v. New York City Dep't 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); NRDC v. Loewengart & Co., 776 F. Supp. 996, 998 (M.D. Pa. 1991)).

Plaintiff is entitled to summary judgment when "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). Summary judgment may be had on the issue of liability alone. Defendants' admissions in their WFORs establish Defendants' liability for their violations of the CWA.

Because there is no genuine issue as to any material facts, Plaintiff is entitled to summary judgment declaring Defendants to be in violation of the Clean Water Act.

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