ATLANTIC TERM. URBAN REN. v. DEPT. OF ENV. PROT.

• Citation: 705 F. Supp. 988
• Decision Date: 07 February 1989
• Docket Number: No. 87 Civ. 4242(MEL).,87 Civ. 4242(MEL).
• Parties: ATLANTIC TERMINAL URBAN RENEWAL AREA COALITION, John Theodore Glick, Anne McClellan, Loraine Oliver, and Mildred Davis, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION; New York City Public Development Corporation; New York City Board of Estimate; Edward I. Koch; Harvey W. Schultz; New York City Planning Commission; Sylvia Deutsch; United States Environmental Protection Agency; William K. Reilly; United States Department of Housing and Urban Development; and Jack F. Kemp, Defendants.
• Court: U.S. District Court — Southern District of New York

705 F. Supp. 988

ATLANTIC TERMINAL URBAN RENEWAL AREA COALITION, John Theodore Glick, Anne McClellan, Loraine Oliver, and Mildred Davis, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION; New York City Public Development Corporation; New York City Board of Estimate; Edward I. Koch; Harvey W. Schultz; New York City Planning Commission; Sylvia Deutsch; United States Environmental Protection Agency; William K. Reilly; United States Department of Housing and Urban Development; and Jack F. Kemp, Defendants.

No. 87 Civ. 4242(MEL).

United States District Court, S.D. New York.

February 7, 1989.

Edward Copeland, Elizabeth St. Clair, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for plaintiffs.

Peter L. Zimroth, Corp. Counsel of the City of New York (Jeffrey Schanback, John De Angeli, Asst. Corp. Counsels, of counsel), New York City, for municipal defendants.

Benito Romano, Acting U.S. Atty., S.D. N.Y. (Richard W. Mark, Richard M. Schwartz, Asst. U.S. Attys., S.D.N.Y., of counsel), New York City, for Federal defendants.

David M. Kaplan, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C.

Richard Roos-Collins, Office of General Counsel, U.S. E.P.A., Washington, D.C.

Lisa Burianek, Asst. Regional Counsel, U.S. E.P.A., Region II, New York City.

Gershon M. Ratner, Washington, D.C., Associate General Counsel for Litigation.

Jonathan Strong, Sr. Trial Atty.

John A. Martin, Trial Attorney, U.S. Dept. of Housing & Urban Development.

Donald J. Reed, Office of General Counsel, U.S. Dept. of Commerce, Washington, D.C.

LASKER, District Judge.

Atlantic Terminal Urban Renewal Area Coalition and several individuals (collectively "ATURA") who live in the vicinity of the proposed Atlantic Terminal and Brooklyn Center Projects ("the Project") move to amend their complaint to add three claims (claims six through eight), as well as a new defendant. The underlying suit, as well as the proposed amendments, address the effect of the Project on the quality of the surrounding air and, more specifically, the effect of the Project on the concentration of carbon monoxide in the environs. The motion is denied, with the exception of leave to add claim eight against the municipal defendants on which decision is deferred.

The parties do not dispute the legal standard governing the motion. Although leave to amend "shall be freely given," leave should be denied where it shall cause "undue delay or prejudice to the opposing party," Clay v. Martin, 509 F.2d 109, 113 (2d Cir.1975), or "where plaintiff's proposed amendment advances a claim or defense that is legally insufficient on its face or otherwise clearly without merit...." Feldman v. Lifton, 64 F.R.D. 539, 543 (S.D.N.Y.1974). What the parties do dispute, however, is whether the three proposed claims are legally sufficient or whether they will cause undue delay if granted. The arguments of each defendant are addressed in turn.

I. Environmental Protection Agency

The United States Environmental Protection Agency and its Administrator William K. Reilly¹ (collectively "EPA") oppose ATURA's motion for leave to amend to add claim six, which alleges a violation of § 113(a)(1) of the Clean Air Act ("CAA"), 42 U.S.C. § 7413(a)(1). Section 113(a)(1) states:

Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator's notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section.

Although the Administrator has not made a formal finding, ATURA contends that he has found that the City of New York violated ¶ 3.6(A) of New York's State Implementation Plan ("SIP"), which provides in relevant part that:

if an EIS Environmental Impact Statement for a project proposal identifies a violation or exacerbation of the carbon monoxide standard, then the City commits to assure that mitigating measures will be implemented by the project sponsor or City, so as to provide for attainment of the standard by December 31, 1987 and maintenance of it thereafter.

ATURA contends that the city is in violation of ¶ 3.6(A) because the Final Environmental Impact Statement ("FEIS") for the Project indicates that, even with mitigation measures, the locations surrounding the Project will not comply with the carbon monoxide standard by December 31, 1987. ATURA also relies for support of its allegation that the EPA has found a violation on a letter dated October 16, 1986 from Barbara Pastalove, Chief of the Environmental Impacts Branch of Region II of the EPA, to Michael P.M. Spies, Assistant Vice President of the New York City Public Development Corporation, which states in relevant part that the mitigation plans for the Project "do not meet Clean Air Act requirements and could not receive EPA approval if submitted as control measures for the carbon monoxide hot spots identified by the EISs."²

The EPA contends that ATURA has done no more than establish that the agency has before it information that may enable it to make a finding that the City is in violation of the SIP. However, the EPA argues that it has not made such a finding nor can it be compelled to do so, because the duty to make such a finding is discretionary.³ It is not disputed that § 304 of the CAA, 42 U.S.C. § 7604(a)(2), confers subject matter jurisdiction on the court only to compel the Administrator to perform a mandatory duty. Council of Commuter Org. v. Metropolitan Transp. Auth., 683 F.2d 663, 665 (2d Cir.1982).

At issue is the nature of the Administrator's duty as specified in § 113(a)(1) of the Act to "find" the existence of a violation. For a number of reasons, I find more persuasive the reasoning of those courts that have construed the duty to "find" a violation under § 113 and parallel provisions of the Federal Water Pollution Control Act ("FWPCA") as discretionary more persuasive than those that have found the duty mandatory. Compare Dubois v. Thomas, 820 F.2d 943, 947 (8th Cir.1987) (holding duty to find a permit violation under § 309(a)(3) of FWPCA, 33 U.S.C. § 1319(a)(3), not mandatory); Harmon Cove Condominium Ass'n v. Marsh, 815 F.2d 949, 953 (3rd Cir.1987) (duty of Secretary under § 404 of FWPCA, 33 U.S.C. § 1344, to find a violation is discretionary); Seabrook v. Costle, 659 F.2d 1371, 1375 (5th Cir.1981) (section 113(a) of the CAA "does not impose a nondiscretionary duty to make a finding on every alleged violation of a SIP"); Council of Commuter Org. v. Metropolitan Transp. Auth., 524 F.Supp. 90, 92 (S.D.N.Y.1981) (duty to issue notices of violation arises only after Administrator "makes a discretionary finding that such violations have occurred"), aff'd, 683 F.2d 663 (2d Cir.1982)⁴ with New England Legal Found. v. Costle, 475 F.Supp. 425, 433 (D.Conn.1979) (the Administrator has been held "to make ... a finding of a SIP violation pursuant to § 113(a)(1) when information regarding an alleged violation is presented to him"), aff'd in part and reserved in part, 632 F.2d 936 (2d Cir.1980); Wisconsin's Envtl. Decade, Inc. v. Wisconsin Power and Light Co., 395 F.Supp. 313, 320 (W.D.Wis.1975) ("when presented with evidence indicating that a violation may exist under § 113(a)(1), the Administrator must make a finding that a violation does or does not exist"); Marinoff v. EPA, No. 78-3042 (S.D.N.Y. Nov. 22, 1978) (citing language of Wisconsin but finding that neither party indicated whether Administrator has been presented with evidence of a violation).

First, the language of § 113 does not compel a holding that the Administrator must make a finding whenever he or she is informed of an alleged violation. As is true of the language of § 309(a)(3) of the FWPCA, the language of § 113(a)(1) "makes no mention whatever of a duty to make findings, much less a duty to carry out an investigation of each and every citizen complaint." Dubois v. Thomas, 820 F.2d at 947.

Second, a construction of the statute, like that of Wisconsin and New England Legal Foundation, requiring the Administrator to determine whether a violation exists each time an allegation is made, could frustrate the purpose of the Act. Although investigations of every alleged violation may be ideal, limited time and resources constrain the Administrator; as the court in Seabrook reasoned, a rule requiring investigations at the drop of an allegation would more likely than not divert resources from efficient and effective investigations of violations appearing most egregious. 659 F.2d at 1375. See also Dubois v. Thomas, 820 F.2d at 947 (holding that goal of FWPCA would be frustrated were Secretary to have mandatory duty to investigate and find permit violations because agency would not be able to concentrate its energies on those claims considered most egregious).

Third, § 113 involves questions of the Administrator's prosecutorial discretion, which should be limited only if the language of the statute or the congressional history were to indicate more clearly a mandatory duty. As Seabrook, Dubois, and Harmon Cove have held, decisions to take enforcement activity are generally committed to agency discretion in the absence of statutory language or legislative history to the contrary, and the "principle of almost absolute discretion in initiating enforcement action should apply with equal force to the decision to take the preliminary investigatory steps that would provide the basis for enforcement action." Seabrook, 659 F.2d at 1374.

Of course it can be argued, as in Wisconsin, that

because ... Congress made a deliberate decision that the duty to issue notices of violation

...