Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. # 1, No. 07 Civ. 00109ER.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtRAMOS, District Judge.
Citation16 F.Supp.3d 294
PartiesBOROUGH OF UPPER SADDLE RIVER, NEW JERSEY, Karen Miller, Roy Ostrom, Maria Florio, Mark Ruffolo, and Linda MacDonald, Plaintiffs, v. ROCKLAND COUNTY SEWER DISTRICT # 1, Defendant.
Decision Date22 April 2014
Docket NumberNo. 07 Civ. 00109ER.

16 F.Supp.3d 294

BOROUGH OF UPPER SADDLE RIVER, NEW JERSEY, Karen Miller, Roy Ostrom, Maria Florio, Mark Ruffolo, and Linda MacDonald, Plaintiffs

No. 07 Civ. 00109ER.

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

Signed April 22, 2014.

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Michael Kennedy Burke, Burke, Miele & Golden, LLP, Suffern, NY, for Plaintiffs.

Thomas R. Gonnella, Pannone Lopes Devereaux & West LLC, Providence, RI, for Defendant Rockland County Sewer District # 1.

Peter Adelman, The Law Offices of Peter Adelman, Brooklyn, NY, for Defendant Rockland County Sewer District # 1.


RAMOS, District Judge.

This is a citizens' suit brought by the Borough of Upper Saddle River, New Jersey (“Upper Saddle River”), Karen Miller (“Miller”), Roy Ostrom (“Ostrom”), Maria Florio (“Florio”), Mark Ruffolo (“Ruffolo”), and Linda MacDonald (“MacDonald”) (collectively, the “Plaintiffs”) under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 –1376 (2006) (the “Clean Water Act” or “Act”) and state common law, alleging that, in the course of operating a sewage treatment facility, Rockland County Sewer District # 1 (the “Sewer District” or “Defendant”) has polluted—and will likely continue to pollute—the Saddle River. Second Am. Compl. (“SAC”) ¶¶ 1, 9–13, 41, Doc. 64. Plaintiffs bring four causes of action: continuing violations under section 301 of the Clean Water Act (First Claim); and private nuisance, public nuisance and trespass claims under state common law (Second, Third and Fourth Claims, respectively).1 Id. ¶¶ 37–53.

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Plaintiffs seek civil penalties, injunctive and declaratory relief and assert that, in the absence of judicial intervention, the “degradation of the Saddle River will destroy [Upper Saddle River]'s quiet beauty, its bucolic serenity and its healthy, quiet, placid character.” Id. ¶ 11.

Pending before the Court are the parties' cross-motions for summary judgment on all claims, pursuant to Federal Rule of Civil Procedure 56. Docs. 102, 106. For the reasons set forth below, both motions are GRANTED in part and DENIED in part.

I. Background

A. Statutory Framework

The stated mission of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Consistent with this goal, section 301 of the Act generally prohibits the discharge of any pollutant2 from a “point source”3 into navigable waters of the United States. Id. §§ 1311, 1362(6), (7), (12). However, the Act's pollution prohibition is “tempered ... by a self-referential host of exceptions that allow the discharge of many pollutants once a polluter has complied with the [Act's] regulatory program.” Atl. States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir.1993). Of particular relevance here, section 402 of the Act establishes a discharge permit program called the National Pollutant Discharge Elimination System (“NPDES”), 33 U.S.C. § 1342, which enables the Environmental Protection Agency (“EPA”) to issue permits authorizing the discharge of pollutants into waterways in accordance with certain specified conditions. Id. §§ 1319, 1342(b)(7). The Act also allows the states to implement NPDES through their own permit programs as long as such programs conform to federally approved guidelines. Id. § 1342(b), (c)(1). In New York, the Department of Environmental Conservation (“DEC”) is responsible for issuing these permits under the State Pollutant Discharge Elimination System (“SPDES”). See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir.2001), adhered to on reconsideration, 451 F.3d 77 (2d Cir.2006).

The Clean Water Act deems compliance with an SPDES permit to be compliance for enforcement purposes, 33 U.S.C. § 1342, and conversely, noncompliance with a permit violates the Act itself and constitutes grounds for liability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; see also 40 C.F.R. § 122.41(a) (requiring that the permittee comply “with all conditions of this permit ... [a]ny permit noncompliance constitutes a violation of the Clean Water Act” (emphasis added));

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Humane Soc. of U.S. v. HVFG, LLC, No. 06 Civ. 6829(HB), 2010 WL 1837785, at *11 (S.D.N.Y. May 18, 2010) (finding liability for failure to satisfy reporting requirements of SPDES permit).

The Act creates two avenues for enforcement of permit violations: actions brought by the government and citizen suits.See, e.g., HVFG, 2010 WL 1837785, at *2. The EPA or the DEC may enforce the Act's permit requirements through administrative, civil, and criminal sanctions. 33 U.S.C. § 1319. In the absence of such governmental enforcement, the Act allows “citizens” to bring civil enforcement actions seeking penalties or equitable relief “against any person alleged to be in violation of the conditions of either a federal or state NPDES permit.” 33 U.S.C. § 1365(a) ; see also id. §§ 1342(b) and 1365(f) ; Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

The Act defines a “citizen” as “a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g). However, in recognition of the “obvious danger that unlimited public actions might disrupt the implementation of the Act and overburden the courts,” Congress placed certain limits on the scope of citizen suits. Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir.1985) (citation omitted). Before filing suit, a citizen must provide 60 days' notice to: (i) the EPA Administrator; (ii) the State in which the alleged violation occurs; and (iii) any alleged violator. 33 U.S.C. § 1365(b)(1)(A). The purpose of the notice provision “is to give [the alleged violator] an opportunity to bring itself into complete compliance with the [Act] and thus ... render unnecessary a citizen suit.” Gwaltney, 484 U.S. at 60, 108 S.Ct. 376. If neither the EPA nor DEC commences an action within that sixty-day notice period, the citizens may bring a suit in District Court seeking civil penalties and/or equitable relief. Atl. States Legal Found. v. Eastman Kodak, 933 F.2d 124, 127 (2d Cir.1991) ; HVFG, 2010 WL 1837785, at *2. A prevailing citizen-plaintiff may also be entitled to expenses and attorney's fees. 33 U.S.C. § 1365(d) ; Laidlaw, 528 U.S. at 175, 120 S.Ct. 693.

Citizen suits “play an important role in the Act's enforcement scheme,” as “[t]he citizen suit provisions were designed not only to ‘motivate government agencies' to take action ... but also to make citizens partners in the enforcement of the Act's provisions.” Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 343 (S.D.N.Y.2009) (quoting Weiler v. Chatham Forest Prods., 392 F.3d 532, 536 (2d Cir.2004) (quoting Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir.1988) )). Congress clearly indicated that citizen groups are not to be treated as pariahs, “but rather as welcomed participants in the vindication of environmental interests.” Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir.1976). However, because citizen-suits are “meant to supplement rather than to supplant” government enforcement actions, the relief available through a citizen-suit may be limited unless the plaintiffs can show that their suit arises from “ongoing” violations of the Act that have not been diligently prosecuted by the government. 33 U.S.C. § 1319(g)(6) ; Gwaltney, 484 U.S. at 60, 108 S.Ct. 376.

B. Factual Background4

Unless otherwise noted, the following facts, taken from the parties' Local Rule

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56.1 statements and documents filed in support thereof, are undisputed.5

i. The Parties

The Saddle River flows through Rockland County, New York, and south into Plaintiff Upper Saddle River, a municipality in northern New Jersey. Pls.' Am. 56.1 Stmt. ¶¶ 1–2; see also Gonnella Decl. Ex. 8(map), Doc. 105–11. Plaintiffs Miller, Ostrom, Florio, Ruffolo, and MacDonald (together, “Individual Plaintiffs”) reside in Upper Saddle River near the Saddle River and its tributaries. Pls.' Am. 56.1 Stmt. ¶¶ 3–8. Part of Upper Saddle River's northern boundary abuts a sanitary sewer system (the “System”) operated by Defendant Sewer District. Id. ¶ 2; Def.'s Opening Br. 3.

Defendant's System processes sanitary sewage “for residential, municipal and industrial users throughout much of Rockland County,” and its service area covers approximately 73 square miles. Pls.' Am. 56.1 Stmt. ¶¶ 9–10; Gonnella Decl. Ex. 3 (hereinafter “Engineering Report”), Docs. 105–3 to 105–6. The System collects sanitary sewage then conveys it to Defendant's

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wastewater treatment plant in Orangeburg, New York, which treats and discharges the sewage water into the Hudson River. Engineering Report at 1–2. As of January 2008, Defendant estimated that its...

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