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Atlantic States Legal Found. v. Pan Am. Tanning Corp.

Citation: 23 ELR 20506
No. No. 90-CV-899, 807 F. Supp. 230/35 ERC 1486/(N.D.N.Y., 05/27/1992)

The court holds moot a citizen suit under § 505 of the Federal Water Pollution Control Act (FWPCA) against a tannery operator for alleged discharges of industrial wastewater into a New York State sewer system in violation of the FWPCA and state law. Applying dicta from the U.S. Supreme Court's holding in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, the court finds that future illegal discharges from the defendant's tannery cannot reasonably be expected, because the defendant has upgraded its wastewater treatment facility pursuant to a consent order with the local sewer authority and has located and remedied the source of all post-upgrade violations. The court holds that the burden therefore shifts to plaintiff environmental organizations to present some evidence to refute the defendant's assertion that the case is moot, and the plaintiffs have not satisfied this burden. The court holds that the plaintiffs presented no evidence to suggest a reasonable expectation that the defendant's violations of its permit or federal standards will recur. The court notes that it has jurisdiction over the plaintiffs' claims, since the defendant's discharges continued beyond the date the complaint was filed. However, the defendant's summary judgment motion raises questions of mootness, not jurisdiction. Mootness, unlike jurisdiction, depends on whether the defendant can demonstrate at this point in the litigation that it has become absolutely clear that its discharges cannot reasonably be expected to recur. The court holds that the defendant is entitled to summary judgment, because there is no factual dispute as to the mootness of the plaintiffs' claims. Finally, relying on precedent, the court holds that there is no distinction between the mootness of the plaintiffs' injunctive relief claims and their monetary claims.

Counsel for Plaintiffs
Peter W. Henner
270 Hudson Ave., Albany NY 12210
(518) 432-1122

Counsel for Defendant
Philip H. Dixon, Terresa M. Bakner
Whiteman, Osterman & Hanna
One Commerce Pl., Albany NY 12260
(518) 487-7600