Biotech Mills Permit Application

Biotech Mills has filed an application to reactivate a paper mill and discharge wastewater into the Battenkill Creek, a fabled trout stream.  The applicant has a history of permit violations under a  previous permit.  Pace Environmental Litigation Clinic is representing the Battenkill Conservancy before the New York State Department of Environmental Conservation in opposition to the permit application.  Although the Clinic filed its intervention papers several years ago, the applicant has not completed its application and no hearings have been scheduled yet.      

Catskill Mountains Chapter, 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 Ashoken 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 Indian Tribes.   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.  We are still awaiting the decision of the Second Circuit.

Also in late Summer 2005, the City had filed a motion with the Northern District of New York, seeking a stay and injunction of the District Court’s order pending appeal.  The Clinic filed responsive papers with the District Court in September, and the District Court has not ruled on the City’s motion.  Thus, the state permitting proceedings progressed 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 July 2006 the Commissioner issued a decision allowing for the issuance of the draft SPDES permit.  In September 2006 the Clinic filed an Article 78 proceeding on behalf of the Trout Unlimited parties.

Crossroads Ventures

Crossroads Ventures has proposed a huge two hotel, two golf course resort development at the headwaters of the Esopus Creek in the Catskills. Riverkeeper has joined a coalition of environmental organizations opposing the massive development. The Clinic has assisted in the preparation of comments on the Draft Environmental Impact Statement for the project and has also assisted with the preparation of an issues petition challenging the proposed issuance of various DEC permits required by the development. The issues conference was held before a DEC Administrative Law Judge Richard L. Wissel. Following the issues conference, the coalition of environmental organizations submitted a post-issues conference brief. The coalition received an issues ruling by the DEC Administrative Law Judge Richard L. Wissel that was largely in our favor. Judge Wissel found 12 adjudicable issues. The clinic received the appeals to the issue ruling on November 23rd. The reply to the appeals was submitted on January 17.

Indian Point

In 2001, the Clinic filed a petition on behalf of Riverkeeper to close down Indian Point Nuclear Power Facility pending a review of security concerns and evacuation planning in the wake of the September 11 attacks on the United States.  The Executive Director of the Nuclear Regulatory Commission issued a decision denying the relief requested.  The Clinic appealed this decision to the Second Circuit Court of Appeals, under the caption Riverkeeper v. Collins.   The Second Circuit dismissed the petition for review, finding that although Riverkeeper raised "grave concerns" about the safety of operating Indian Point, the NRC's decision on Riverkeeper's petition was a matter committed to agency discretion and not subject to judicial review.

The Clinic has begun to research the legal standards and opportunities for intervention that will apply when Entergy seeks thirty-year extensions of the operating licenses for Indian Point units 2 and 3.  Entergy's application is expected to be filed sometime between the summer of 2005 and 2008, at least five years before the plant's license expires in 2013.  Professor Coplan and Clinic intern Phillip Musegaas attended a roundtable meeting with Attorney General Eliot Spitzer on April 26, 2005, to discuss the availability of alternative sources of electricity for New York State, were Indian Point shut down.               

New York City Sewage Treatment Plant 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 Cassutto.  Judge Cassutto 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 Cassutto 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 Cassutto.   Following the issues conference, the Clinic and Riverkeeper filed a joint Supplemental Petition for Full Party Status with Soundkeeper, Inc., and New York/New Jersey Baykeeper. The petition addressed three issues identified by Judge Cassutto: (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 Cassutto 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 Cassutto 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 briefing schedule for this appeal has been suspended, as DEC has changed its staffing of the case and has submitted a newly revised draft permit.

No Spray Coalition v. New York City

The Clinic represents several groups that are opposed to the application of pesticides for mosquito control purposes related to the West Nile Virus outbreak.  A notice of intent to sue was previously filed by the client organizations in October 1999 for unpermitted discharge of pesticides into waters without a Clean Water Act (CWA) permit. The Clinic filed a Clean Water Act and Resource Conservation and Recovery Act (RCRA) case against the City of New York in the Southern District of New York in July 2000, seeking immediate injunctive relief against the spraying.  Clinic students examined witnesses at the preliminary injunction hearing before District Judge John S. Martin in September 2000.  The hearing attracted favorable press attention, including the playing of a videotape showing New York City pesticide spray trucks spraying crowds of people on street corners in northern Manhattan.  Although Judge Martin denied the preliminary injunction and dismissed the RCRA case, the clients’ CWA case survived.  The Second Circuit rejected the Clinic’s appeal of the dismissal of its RCRA claim and the denial of a preliminary injunction in June 2001.

Both parties moved for summary judgment on the CWA claims in 2002.  In November of that year, District Court Judge John Martin granted the City’s motion, dismissing the remaining CWA claims.  Judge Martin reasoned that citizen suit enforcement of the CWA cannot occur where the application of pesticides is performed in compliance with the requirements of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  According to Judge Martin, the “incidental” spraying of pesticides into New York City water bodies does not sustain a CWA case because only a “non-technical” violation of the FIFRA-regulated pesticide labels would support a claim under the CWA.  In May 2003, the Clinic appealed the District Court’s ruling to the Second Circuit Court of Appeals, which vacated the District Court’s dismissal and remanded for further proceedings, on December 9, 2003.  The Second Circuit concluded that the District Court misinterpreted the relationship between compliance with FIFRA and compliance with the CWA, holding that citizens can sue under the CWA to enforce the requirements of that Act regardless whether or not a violation of FIFRA had occurred.  The case was re-assigned to District Court Judge George B. Daniels, who established a schedule for re-briefing of the cross-motions for summary judgment and set a date for oral arguments. 

On July 28, 2004, Clinic Student Daniel Yohannes argued the renewed summary judgment motions on behalf of the plaintiffs.  This past summer, Judge Daniels issued a Memorandum Decision denying both parties’ summary judgment motions.  In his June 7, 2005 Decision, Judge Daniels found that the spraying of pesticides over navigable water can constitute an addition of pollutant into navigable water.  Judge Daniels further found that if City helicopters and trucks conveyed pollutants from their original source to the navigable water, they could constitute point sources under the CWA.  The Decision creates favorable law from the Clinic’s perspective because the Decision suggests if the plaintiffs can prove New York City sprayed pesticides directly into water, then the plaintiffs will have established a CWA violation.

Although Judge Daniels’ decision creates good law, this case is progressing against the backdrop of an evolving regulatory position with regard to the CWA’s applicability to municipal vector control programs.  Recent Environmental Protection Agency (EPA) guidance suggests that the spraying of pesticides for purposes of mosquito control should be exempt from the requirements of the Clean Water Act.  In April 2005, EPA proposed a rule that would allow the application of pesticides used for mosquito-control purposes to waters of the United States without a Clean Water Act permit so long as these pesticides are applied “consistent with FIFRA labeling requirements.”  The Clinic assisted Waterkeeper Alliance in submitting comments to EPA, arguing that the rule violates both the CWA and FIFRA.

The parties began pursuing possibilities for settlement of this case in the summer of 2005.  In early October 2005, the plaintiffs presented a series of settlement demands to the City of New York.  After making little progress in their discussions, the parties appeared before Southern District Magistrate Judge Ronald Ellis for a pretrial settlement conference on November 16, 2005.  The parties have met on several occasions with Judge Ellis and Clinic Students Robyn Hanson and Justin Kimple have drafted a settlement proposal.  At this point, the parties have agreed to a settlement.  We are awaiting final approval from the New York City Comptroller’s Office and will lodge the consent decree immediately upon receipt of such approval.

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”). Although the Supreme Court, Suffolk County dismissed the petition sua sponte as moot in March 2003, the Clinic 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 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 has proceeded through discovery, including several discovery motions. Discovery has now closed and the parties have filed cross-motion for summary judgment.

 

Riverkeeper v. Crotty

The Danskammer Electric Generation Plant at Danskammer Point in the Town of Newburgh has been operating under an expired Clean Water Act permit since 1992.  The plant uses obsolete “once through” cooling water technology that requires the withdrawal of huge  quantities of Hudson River water, and kills millions of Hudson River fish annually.  Despite federal and state law requirements which mandate that Clean Water Act permits expire after five years and be subject to public notice and comment renewal proceedings, the NY DEC has allowed Danskammer to operate on “administrative renewal” without public review since 1992, simply by taking no action on Central Hudson’s permit renewal application.  The Clinic filed a demand letter on behalf of Riverkeeper in 2001 seeking public notice and comment, and an adjudicatory hearing, on the permit renewal.  DEC denied this request after another 18 months of delay, in a decision that claimed that environmental organizations had no standing to enforce the timing requirements and public notice requirements of DEC’s uniform procedures. 

The Clinic then filed an Article 78 petition in Albany County Supreme Court seeking mandamus to force DEC to hold the required notice and comment hearing proceedings.  After hearing oral argument, Albany County Supreme Court Justice Kavanagh issued an interim order requiring DEC to publish a draft renewal permit for public comment by July 1, 2003. 

The DEC issued a draft renewal permit for the Danskammer Plant by the July 1, 2003 deadline, but failed to require the best technology available, which is closed cycle cooling.  The Clinic assisted Riverkeeper attorneys in an issues petition and intervention in the permitting proceeding.  Administrative Judge O’Connell handed down an issues ruling that provides for formal adjudication of Riverkeeper’s demand that the permit incorporate closed cycle cooling. 

Because of the delays in the administrative proceedings for the renewal of the Danskammer permit, the Clinic asked Judge Kavanagh to rule on the remaining issues in Riverkeeper’s case against DEC for failure to amend the Danskammer permit.  On September 2, 2004, Judge Kavanagh issued a decision and judgment granting the petition, declaring that Riverkeeper has standing to challenge DEC’s failure to act, and declaring DEC’s ten years of inaction on the permit renewal to be an arbitrary and capricious delay.  Judge Kavanagh also declared that Dynegy no long could rely on the continued effectiveness of the expired permit.  Dynegy and DEC have appealed to the Appellate Division, Third Department.

On April 20, 2006, the Appellate Division issued a decision reversing Judge Kavanaugh’s judgment granting the petition, solely on the grounds that the remaining causes of action were barred by the four month statute of limitations of CPLR Article 78.  Petitioners have not yet determined whether to seek leave to appeal, as the administrative proceedings for the permit have concluded and a revised permit is expected to be issued shortly.

During the Fall of 2005 the DEC conducted an adjudicatory hearing relating to the determination of BTA for the Danskammer facility.  The Clinic did not participate in this hearing, which was conducted by outside and in-house counsel for Riverkeeper.  ALJ O’Connell subsequently issued a hearing report recommending that BTA for the Danskammer facility did not require the installation of closed-cycle cooling, and Riverkeeper appealed.   In May 2006, the DEC Commissioner issued a decision approving the ALJ’s findings and allowing for the issuance of the draft SPDES permit, which was issued effective June 1, 2006.  In July 2006, the Clinic filed an Article 78 proceeding seeking to overturn the commissioner’s decision, void the permit and remand to DEC for further proceedings.  This article 78 is currently pending. 

Riverkeeper v. Town of New Windsor

The Town of New Windsor operates a sewage treatment plant with a permitted outfall at the very mouth of Moodna Creek where it flows into the Hudson River. The pipeline leading to this outfall travels through the bed of Moodna Creek, and a concrete standpipe in this effluent pipeline has been damaged for a long time, allowing treatment plant effluent to flow into the clear upstream waters of the Moodna Creek. Although the DEC has been aware of this violation since the 1990s, nothing has been done to remedy it.

Over the Summer of 2003, the Clinic filed a 60 day notice letter under the Clean Water Act on behalf of Riverkeeper. The Clinic commenced a lawsuit for the discharge of this polluted sewage plant effluent at a non-permitted location. During discovery, we identified two additional unpermitted discharge points. Riverkeeper filed a new notice letter concerning these additional discharge points, and the Clinic filed a second action in November, 2004 to require remediation of these discharge points as well.

As discovery progressed in the first action, the parties began settlement negotiations. Plaintiffs submitted a Proposed Settlement to Defendants on July 20, 2004. The negotiations proceeded slowly, however, and Riverkeeper deposed several Town of New Windsor officials in the fall of 2004. Dr. Bruce Bell also prepared an expert report on the sewage leaks on November 11, 2004.

In the meantime, the Town had installed a new cover on the manhole in the Creek in June of 2004. Plaintiff submitted a revised draft consent order to Defendants on December 23, 2004, which added remediation of the damage caused by the additional discharges cited in the second complaint. The actions were finally consolidated in January, 2005. By this time, both parties agreed a settlement was imminent, forestalling further discovery. A final version of the consent order was agreed upon and executed by all parties on February 25, 2005. The final consent order included a provision granting Riverkeeper the right to recover its attorney's fees and costs from the Town. Riverkeeper and the Town also submitted a Stipulation Settling Attorney's Fees to the Court. Pursuant to this agreement, the Town paid the Pace Environmental Litigation Clinic approximately thirty thousand dollars for attorney's fees, and Riverkeeper ten thousand dollars for costs incurred, including Dr. Bell's expert report.   
 

Riverkeeper v. Exxon-Mobil; Riverkeeper v. Chevron-Texaco; Riverkeeper v. Peerless Importers (Newtown Creek)

On January 20, 2004 and acting on behalf of Riverkeeper, Inc. and six named plaintiffs,  Pace Environmental Litigation Clinic, Inc. filed 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 the past five decades.  These pollutants have contributed to the contamination of the Brooklyn-Queens aquifer, discharge into Newtown Creek, and create a substantial and imminent 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 next eighteen months, Riverkeeper granted ExxonMobil a series of stays to the litigation to encourage the company to remediate the pollution and its hazards.  Earlier this year, 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 March 2007, and expert discovery concluding in July, 2007.  ExxonMobil produced over 120,000 pages of documents in response to plaintiffs initial document requests, which has required every student enrolled in the Clinic during Spring 2006 to help review.  ExxonMobil has filed a motion to join Chevron and BP-Amoco as additional parties.  This motion was argued before Magistrate Judge Levy on July 13, 2006 by Legal Intern Eric Annes. In August 2006, Magistrate Judge Levy issued an order delaying the Joinder Motion. 

Spring Creek Compost Facility

New York City Department of Sanitation has closed off 23 acres of a public park in the New Lots 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 park land into non-park use.  The Clinic has sought to intervene in opposition to the City’s application for a DEC solid waste management permit for the facility, and is also investigating 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. This issues ruling was appealed to Deputy Commissioner Lynette Stark, who issued a decision in June 2006 rejecting ALJ DuBois’s recommendation that alienation of parkland was an adjudicable issue.  The Clinic has since commenced an Article 78/Declaratory Judgment action challenging the Commissioner’s decision.

On March 7, 2005, the Department of Environmental Conservation issued a Clean Water Act permit for the discharge of filter backwash water from the New York Aquarium into the ocean waters off of Coney Island. This discharge interferes with the use of these waters by long distance swimmers who train there, and who are disturbed by the odors, turbidity, and solids discharged by the aquarium. During the comment period on the permit, these swimmers, as well as Raritan Baykeeper, submitted comments concerning these violations of water quality standards. Nevertheless, the DEC failed to hold a public hearing on the permit, and in fact modified the permit to weaken its effluent limitations without providing further public notice and comment. On July 7, 2005, the Clinic filed an Article 78 proceeding on behalf of Raritan Baykeeper (d/b/a NY/NJ Baykeeper) seeking nullification of the permit on the grounds that DEC violated procedure requirements for a public hearing on the permit, and violated notice requirements by changing the draft permit without allowing an opportunity for public notice and comment on the changes. The proceeding is currently before Justice Arnold N. Price, Supreme Court, Queens County. Both parties submitted all briefs and supporting documents to the court on November 1, 2005. On January 24, 2006, Justice Price issued a decision rejecting the petition and dismissing the proceeding. Baykeeper has determined not to appeal this decision, but to investigate bringing a permit enforcement proceeding instead.

Tilcon, Inc. owns and operates the Clinton Point stone quarry on the east bank of the Hudson River, about 2 miles south of Poughkeepsie, New York. Quarry operations necessitate the frequent pumping of stormwater runoff, quarry pumpout, and process wastewater, which is discharged from pipes into the Hudson River. (One outfall discharges into Casper Creek, a tributary of the Hudson). These discharges consist mainly of suspended and settleable solids, oil & grease, and pH. Tilcon is operating under a current SPDES permit. Clinic students, along with Riverkeeper boat captain John Lipscomb, are continuing to investigate potential water quality violations caused by the Quarry operation.
 

This case concerns the violations of Mirant’s SPDES permit by not timely deploying the Gunderboom Marine Life Exclusion System in accordance with its Clean Water Act permit. 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.

Both this year and last year, Mirant has consistently violated its permit. In 2004, Mirant did not install the Gunderboom till the end of April, citing unexpected difficulties and complications. This year, the Gunderboom still has not been installed. There was no reason not to install the Gunderboom by February 23 this year 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 has been 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.


   

General Electric transported 37, 530 tons of waste materials to the Dewey Loeffel Site in Rensselaer County, New York between 1952 and 1968.  The Dewey Loeffel Site is a 19.6-acre inactive hazardous waste disposal site.  The site is contaminated primarily with PCBs.  The DEC issued an ROD in January 2002 instructing GE to remediate the site.  The ROD relies solely on natural attenuation to remediate the lower portions of the site.  In addition, the ROD requires annual monitoring of sediment, suspended sediment, and surface water to track the progress of natural attenuation in Nassau Lake. The lower portion of the site, Nassau Lake, remains under an advisory warning against consumption of fish in the Lake due to PCB contamination.  A clinic student, Sarah Samp, submitted a F.O.I.L. request for the monitoring results. Communication continues with DEC to obtain updated information on the ROD.

The Clinic sent a Notice of Intent to Sue to the proper parties on January 14, 2005.  The notice alleged that Mr. Cascino, et al., committed violations of RCRA and the Clean Water Act by transporting and dumping loads of pulverized construction and demolition debris onto a site in the Town of Dover.  This site abuts a tributary of the Ten Mile River and parts of the site are designated DEC wetlands.  The concern is that the piles pose an imminent and substantial endangerment, debris is falling into the tributary, and wetlands have been filled from debris dumped by Mr. Cascino.  The Clinic has been working with attorneys from the Town of Dover to analyze the scope of the action and whether a §404 action should be brought.  A complaint has not yet been filed. 

In December of 2004, the DEC established a Solid Waste Removal Plan for the site, which requires a Sampling Plan and Investigation Scope of Work, as well as a Solid Waste Characterization and Removal Plan Report based on the Sampling Plan and Investigation Scope of Work.  This has not yet been fully complied with, due to extensions of the date of compliance, however some sampling has been done by DEC and Mr. Cascino’s company.  The DEC has stated that the site is in significant non-compliance with this Civil Compromise.  The Clinic is in the process of determining whether a complaint should be filed and the scope of the cause of action. 

The Clinic has been retained to represent Riverkeeper and seven local landowners interested in wetlands preservation to petition DEC to re-map freshwater wetlands M-21 and M-22 in the Town of Rochester, Ulster County. The official map of these wetlands, which has not been updated since 1988, significantly understates the extent of these wetlands, which has allowed inappropriate development and disturbance of wetlands areas. During the Spring of 2006, Clinic Students Stephanie Talbert and Justin Kimple drafted a petition to DEC to re-map these wetlands to reflect their true boundaries. The Clinic received notice from DEC in November 2006 that its petition has been granted and that the subject wetlands will be remapped over the next several months.

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 has not yet decided whether to proceed with the litigation.