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Atlantic States Legal Found. v. Al Tech Specialty Steel Corp.

Citation: 17 ELR 20125
No. No. 84-CV-1040, 635 F. Supp. 284/24 ERC 1506/(N.D.N.Y., 05/15/1986)

The court rules that a plaintiff organization has standing under Federal Water Pollution Control Act (FWPCA) §505, the citizen suit provision, to sue for past violations of the FWPCA. Standing is established despite the fact that no organization member alleged use of the Kroma Kill, a small creek into which the steel corporation discharged its pollutants. The court holds that the members' use of the Hudson River, into which the Kroma Kill flows, is sufficient to confer standing. The court next holds that the five-year statute of limitations for civil penalty actions, 28 U.S.C. §2462, applies to FWPCA citizen suit actions, but that the limitations period begins to run when the reports documenting the violations were filed with the Environmental Protection Agency (EPA), not from when the violations actually occurred. The court holds that the statute is tolled by the plaintiff's sending of the 60-day letter required by FWPCA §505(b)(1)(A). The court next holds that the corporation cannot use the "upset" exception as a defense to the violation because its discharge permit is not technology based, but is a water-based permit to which EPA has determined that the upset exception does not apply. The court further holds that the corporation can be held liable for violations prior to the time the plaintiffs' organization was formed since it is possible that some pollutants have permanently affected the water of the Kroma Kill. Finally, the court holds that assertions that the violations reported to EPA were due to measurement errors is not a valid basis on which to defeat a motion for summary judgment since a defendant could always claim measurement error. Even if it were a valid defense, the court holds that it would not apply in this case because the allegations of measurement error are vague and conclusory.

Counsel for Plaintiff
Jan Kublick
Davoli, McMahon & Kublick
500 S. Salina St., Syracuse NY 13202
(315) 424-1105

Counsel for Defendant
Paul R. Braunsdorf
Harris, Beach, Wilcox, Rubin & Levey
Granite Bldg., 130 E. Main St., Rochester NY 14604
(716) 232-4440