Hudson River Sloop Clearwater v. Consol. Rail Corp.

• Decision Date: 02 July 1984
• Docket Number: No. 82-CV-1307.,82-CV-1307.
• Parties: HUDSON RIVER SLOOP CLEARWATER, INC., Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of New York

591 F. Supp. 345

HUDSON RIVER SLOOP CLEARWATER, INC., Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

No. 82-CV-1307.

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

July 2, 1984.

Trial Lawyers for Public Justice, Washington, D.C., E. Stewart Jones, Troy, N.Y., for plaintiff; Anthony Z. Roisman, Susan J. Vogel, Washington, D.C., of Counsel.

John Jenchura, Abbi L. Cohen, Philadelphia, Pa., for defendant.

McNamee, Lochner, Titus & Williams, P.C., Albany, N.Y., Local Counsel for defendant; Earl H. Gallup, Jr., Albany, N.Y., of counsel.

MEMORANDUM-DECISION and ORDER

MINER, District Judge.

I

This citizens' suit, brought pursuant to section 505 of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1365, challenges alleged unremedied violations by defendant Consolidated Rail Corporation ("Conrail") of its National Pollutant Discharge Elimination System/State Pollutant Discharge Elimination System ("NPDES/SPDES") permit in violation of section 301(a) of the FWPCA, 33 U.S.C. § 1311(a). Jurisdiction is predicated upon section 505(a)(1) of the FWPCA, 33 U.S.C. § 1365(a)(1). Before the Court are motions by plaintiff for partial summary judgment on the issue of liability, Fed.R.Civ.P. 56(a), and by defendant to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or in the alternative, for summary judgment, Fed.R.Civ.P. 56(b).

II

Plaintiff, The Hudson River Sloop Clearwater, Inc. ("Clearwater"), is an environmental public interest membership organization incorporated under New York State's not-for-profit corporation laws. Clearwater has approximately 5000 members who reside in New York State. The organization conducts environmental research, monitoring, education and advocacy on behalf of its members. Defendant Conrail is a Pennsylvania corporation operating a diesel locomotive repair and refueling facility in Selkirk, New York.

According to the complaint, Conrail discharges treated wastes from its Selkirk facility through a point source into the Hudson River and the South Albany Creek. These discharges have been controlled since February of 1975 by the terms of defendant's NPDES/SPDES permit issued by the New York Department of Environmental Conservation ("DEC") pursuant to N.Y.Envtl.Conserv.Law §§ 17-0801 to 17-0829.¹

On September 19, 1979, Conrail signed an "order on consent" with DEC arising out of its permit violations. The order called for an engineering and construction schedule designed to achieve full compliance with permit limitations by December 1, 1982. The order also imposed a $25,000.00 penalty on Conrail, with $5,000.00 payable immediately and the remainder to be suspended once compliance with the order had been effected. Apparently, the order has been modified or amended to allow Conrail to achieve compliance by April 1, 1984, somewhat later than originally anticipated.

On November 23, 1982, after reviewing statutorily mandated reports filed by defendant, see 33 U.S.C. § 1318, and both noting the presence of "a pattern of continuous non-compliance with the FWPCA ...," Complaint, ¶ 16, and perceiving the absence of any diligent prosecution of defendant by federal or state authorities, plaintiff commenced this action. Prior to filing the complaint, and pursuant to section 505(b) of the FWPCA, 33 U.S.C. § 1365(b), plaintiff, on September 17, 1982, notified Conrail, the EPA and DEC of defendant's continuous violations of its NPDES/SPDES permit and of its intention to sue Conrail unless within sixty days, see 33 U.S.C. § 1365(b)(2), action was taken to redress the identified problems. In its notice letter, plaintiff pointed to over 514 violations of the Conrail permit occurring in the preceding five-year period.

Based on Conrail's alleged violations, plaintiff seeks, inter alia, an injunction prohibiting Conrail from operating its Selkirk facility in such a manner as will result in further permit violations, as well as imposition of civil penalties of $10,000.00 for each day of each violation, 33 U.S.C. §§ 1319(d), 1365(a). Defendant has moved to dismiss the instant complaint, or in the alternative, for summary judgment, contending both that plaintiff lacks standing and that it has failed to state a claim upon which relief can be granted. Moreover, Conrail argues that the Court lacks subject matter jurisdiction. Plaintiff has cross-moved for partial summary judgment to establish Conrail's liability for its permit violations.

III

The citizen suit provision embodied in section 505 of the FWPCA provides, in relevant part:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation ....

. . . . .

(b) No action may be commenced —

(1) Under subsection (a)(1) of this section —

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right....

33 U.S.C. § 1365.

Section 505, Conrail contends, precludes maintenance of the present suit because the consent order entered into with DEC constitutes diligent state prosecution. See 33 U.S.C. § 1365(b)(1)(B). While neither party disputes that administrative action undertaken by DEC may be the equivalent of court action within the meaning of the statute, see, e.g., Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), since DEC has the power to impose similar penalties and award injunctive relief otherwise available under the FWPCA, see Gardeski v. Colonial Sand & Stone Co., 501 F.Supp. 1159, 1163 (S.D.N.Y.1980), plaintiff argues that because it did not have a right or opportunity to intervene in the DEC proceeding, see 33 U.S.C. § 1365(b)(1)(B), that action does not satisfy the court action element under the statute. Even if the DEC proceeding is deemed to satisfy the court action requirement, plaintiff maintains that the unsatisfactory enforcement history surrounding Conrail's alleged violations precludes a finding of diligent prosecution. See id.

Aside from these statutory questions, Conrail raises additional challenges, including the contention that plaintiff is without standing to maintain the present suit and the suggestion that any claims are time-barred by what is asserted to be the applicable statute of limitations. Finally, defendant urges that no viable claim is raised here because neither additional penalties nor injunctive relief is "appropriate."

A. Standing

As a threshold matter, the Court is constrained to address the challenge to Clearwater's standing, since it is now a familiar requirement that those who seek to invoke the jurisdiction of the federal courts must satisfy the prerequisite imposed by article III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). A plaintiff must allege "`such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (emphasis in original) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)). The plaintiff must suffer a concrete, personal injury as a result of the acts which he challenges. 422 U.S. at 508, 95 S.Ct. at 2210.

Conrail concedes that an organization whose members are injured may represent those members in a proceeding for judicial review, see Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1971), but argues that mere allegations that an organization's members have suffered injuries to their aesthetic, conservational, recreational or economic interests, without factual support, are wholly insufficient to confer standing to sue under section 505 of the FWPCA. There is no question that as a pleading matter, plaintiffs have satisfied the requirements of Sierra Club v. Morton, 405 U.S. at 731-41, 92 S.Ct. at 1364-1369. See generally Sierra Club v. The Aluminum Company of America, 585 F.Supp. 842 (N.D.N.Y.1984). Paragraph seven of plaintiff's complaint alleges that:

Members of Clearwater reside in New York State, particularly in the Hudson River Valley, in the vicinity of the Hudson River and South Albany Creek, or own property or recreate in, on or near the Hudson River and South Albany Creek. The quality of the nation's waters and the waters of New York State directly affects the health, economic, recreational, aesthetic and environmental interests of Clearwater's membership. The interests of Clearwater's members have been, are being and will be adversely affected by Defendant Conrail's failure to comply with its NPDES/SPDES permit requirements.

Complaint, ¶ 7. Defendant, however, relying on the recent decision of Judge Telesca in Sierra Club v. SCM Corp., 580 F.Supp. 862 (W.D.N.Y.1984) (appeal pending), suggests that plaintiff's reliance on generalized injuries to its membership is insufficient to confer standing. Holding that injury will not be presumed from conclusory allegations, Judge Telesca noted that while plaintiff had "adequately tracked the language in Mo...