Peconic Baykeeper, Inc. v. Suffolk County
| Citation | 585 F.Supp.2d 377 |
| Decision Date | 17 November 2008 |
| Docket Number | No. CV 04-4828(ADS).,CV 04-4828(ADS). |
| Parties | PECONIC BAYKEEPER, INC., Kevin McAllister, Alfred Chiofolo, Plaintiffs, v. SUFFOLK COUNTY, Suffolk County Department of Public Works, Division of Vector Control, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
Matthew R. Atkinson, Riverhead, NY, Pace Environmental Litigation Clinic, by Karl Stephen Coplan, Esq., Of Counsel, White Plains, NY, for Plaintiffs.
Christine Malafi, Suffolk County Attorney, by Christopher A. Jeffreys, Assistant County Attorney, Christopher M. Gatto, Assistant County Attorney, Hauppauge, NY, for Defendants.
Under the provisions of the Clean Water Act, it is unlawful to discharge "pollutants" in the waters of the United States without an appropriate permit. As stated by the Second Circuit in No Spray Coalition, Inc., et al v. City of New York, et al., 351 F.3d 602, 604 (2d Cir.2003): "The Clean Water Act is a regulatory statute designed to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The statute prohibits "discharge" of "any pollutant" into "navigable waters" without a permit issued by the United States Environmental Protection Agency ("USEPA" and "EPA") under the National Pollution Discharge Elimination System ("NPDES") or under a federally approved state permit system. See 33 U.S.C. §§ 1311(a), 1342. New York State created the "State Pollutant Discharge Elimination System" ("SPDES"), in compliance with the Clean Water Act. See N.Y.Envir.Conserv.Law § 17-0801 (McKinney 2006).
The Clean Water Act contains a "citizen suit" provision providing that any "person or persons having an interest which is or may be adversely affected" may sue to enforce any limitation in a Clean Water Act permit. 33 U.S.C. §§ 1365(a)(g); Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 701, 145 L.Ed.2d 610 (2000). This is such a citizen suit.
Further, the Clean Water Act contains two permitting provisions that form the basis of the plaintiffs' claims: (1) Section 402 relates to the "discharge of a pollutant," and (2) Section 404 relates to the discharge of "dredged or fil material." See 33 U.S.C. §§ 1342 and 1344.
This action was commenced against Suffolk County and Vector Control, a division of the Suffolk County Department of Public Works, by the filing of a complaint on November 8, 2004. As stated in the Introduction, "this action is a citizen suit" brought under Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1) seeking civil penalties payable to the United States Treasury, injunctive relief, declaratory relief and costs including reasonable attorneys' fees. The complaint consists of three cause of action. The First Claim for Relief alleges violation of the Clean Water Act by "Discharging Dredged Spoils and other Materials Without a Clean Water Act Section 404 Permit." The Second Claim For Relief alleges violations of the Clean Water Act by "Discharging Pollutants from Ditches and Culverts Without a Clean Water Act Section 402 Permit." The Third Claim For Relief alleges violations of the Clean Water Act by "Spraying Pesticides into Waters of the United States Without a Clean Water Act Section 402 Permit."
In response to the plaintiffs motion for partial summary judgment and the defendants cross-motion for summary judgment dismissing the complaint, the Court rendered a decision on March 12, 2007. In the decision, the Court found that multiple material issues of fact exist which precludes summary judgment by either party. Accordingly, both motions for summary judgment were denied.
In this case several unfamiliar terms were discussed, which require definition. For example, a larvicide is defined as an agent for killing larval pests. Larva is the immature, wingless and often wormlike feeding forms that hatches from the eggs of many insects. An adulticide is an insecticide used to kill adult insects as opposed to a larvicide.
The plaintiff Alfred Chiofolo is a semi-retired bayman. He has clammed, fished and did crabbing on the south shore of Long Island for more than forty years. He testified that after Suffolk County sprayed over wetlands with pesticides, he saw "dead crabs all over" and also saw toad fish and other fish dead in the crab pots. His "catch" decreased about ten percent per year from 2000 and this affected him economically. Chiofolo saw unmarked helicopters every year, with Suffolk County trucks servicing them. He also saw crabs asleep in the mud and a dredge scooped them up. In 2005 he had chest surgery and other health problems and cannot work. Chiofolo would like to see the spraying stop and would want the County to use another method of mosquito control.
On cross-examination, Chiofolo testified that in his day, he was a very active crab fisherman. In 2001, he caught more than 100,000 pounds of crabs. In calendar year 2004, he caught more than 50,000 pounds of crabs. He became ill in 2005 and could no longer work as a fisherman. While he saw helicopters spraying in the Mastic area, he could not tell if they were spraying pesticides. In fact, he didn't know what was being sprayed. Also he did not test any of the dead crabs or the water they were in, nor was he aware of any such test results. Chiofolo was familiar with this type of litigation, because he was involved in four prior lawsuits brought by Peconic Baykeeper. In addition, although Chiofolo testified at a hearing before the Suffolk County Legislature opposing the County Vector Control Program, he is aware of no studies finding that Vector Control has any negative impact on crabs, humans or the water; and, he has no knowledge of any documentation to support his "damage to crabs" theory.
The co-plaintiff, Kevin McAllister, has been the President, CEO and Chief Financial Officer of Peconic Baykeeper, Inc. ("PBK") from 2004. He first formed this organization in June, 2001. The mission of PBK is to protect and improve the south shore bays and advance conservation issues. PBK owns 280 acres of bay bottom, under the water in the Great Peconic Bay near Southampton; in part to be used for oyster cultivation and to raise shellfish.
As a person who employed crabbing and shell fishing for recreational purposes, he saw the impact of ditches and pesticides as a threat to aquatic life. McAllister discussed a New York State decision by Justice Paul J. Baisley, Jr. which found in favor of PBK.
McAllister investigated the so-called mosquito ditches himself. On March 31, 2004, he took several samples from a ditch located along the western flank of the Terrell River County Park, on the border of Center Moriches and East Moriches, near the waterfront on Moriches Bay. The samples were to ascertain if there was a conveyance of pollutants from the mosquito ditches to Moriches Bay. The results were all negative for pesticides and other compounds except for elevated levels of "total and fecal coliform bacteria". He explained that fecal coliform bacteria exists in the intestinal tract of warm-blooded animals and indicates the presence of "other pathogens that form public health threats."
McAllister returned to this same location some ten months later, in 2005, to take additional samples. The results were elevated samples of bacteria and showed that water was flowing from the ditch to the bay. The lab that did this testing in 2005 was the Eco-Test Laboratories.
On cross-examination, McAllister revealed that PBK had initiated two prior suits against Suffolk County in 2002 and 2003. In fact, he challenged the County on four prior occasions. These cases involved the same plaintiffs and the same attorneys. He conceded that Vector Control by Suffolk County suppresses mosquito propagation for health reasons:
Q You don't dispute, sir, that the Suffolk County Division of Vector Control suppresses mosquitos and their propagation for health reasons?
A Correct.
Q So, there is a health overlying purpose for the county's vector control program; is that correct?
A Not entirely.
Q But that is one of the reasons, correct?
A Yes.
Q And isn't it true, sir, that one of the means that the Division of Vector Control utilizes to suppress mosquitos is by channeling and draining water in swampy areas to minimize mosquito breeding areas?
A Yes.
McAllister previously testified before the Suffolk County Legislature that the application of pesticides from the Vector Control Program caused lobsters to die. However, on January 30, 2001, before the Legislature, he conceded that his statement as to the lobsters dying because of the Vector Control Program was "speculative." (Tr. at 87).
In addition, McAllister testified many times before the Suffolk County Legislature Health Committee—always in opposition to the Vector Control Program. He testified that his lab reports confirmed that the fish kill at Priest's Pond on August 12, 2001 showed a high level of pyrethroid pesticides. However, in fact, he conceded that the state lab report was not conclusive and that is the same lab report he is relying on in this case. Also, in his testimony before the County Legislature he indicated that he wanted the County to do away with the mosquito ditches, even though it would take nearly seventy years for a mosquito ditch to fill in.
Also, since December 2004, he was aware that the New York State Department of Environmental Control ("DEC") had personal involvement in any Vector Control Project that requires maintenance of any mosquito ditch within Suffolk County. In addition, referring to his co-plaintiff Alfred Chiofolo, he considered his testimony concerning the decrease in crab population in Moriches Bay to be "merely speculative and anecdotal information." (Tr. at 90).
On August 12, 2001, McAllister received a call to investigate a fish kill...
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