Friends of the Earth v. Consolidated Rail Corp.

No. 83-CV-1506 (N.D.N.Y. December 27, 1984)

The Court holds that the entry of a consent order prior to formal administrative action, coupled with reasonably responsible compliance with that order, constitute the diligent state prosecution necessary to preclude a citizen enforcement action under § 505 of the Federal Water Pollution Control Act (FWPCA). In a footnote the court observes that plaintiff environmental groups have satisfied standing requirements. The court further notes that the chronology submitted by plaintiffs of defendant's violations of its state pollutant discharge elimination system water pollution permit, which was issued pursuant to authority delegated to the state by the federal government under the FWPCA, is sufficient to state a cause of action. After reviewing cases establishing that administrative proceedings may be deemed court actions for the purpose of precluding citizen suits under § 505(b)(1)(B) if the proceedings are the substantial equivalent of those available in federal court, the court concludes that a comparison of state and federal enforcement authorities and procedures is unnecessary. It rules that a consent order carried out with reawsonable diligence satisfies the requirements of § 505 and in this case, substantial compliance with the consent order successfully terminated defendant's excessive pollution. The court concludes that diligent prosecution is a factual issue to be resolved by the court and, in light of its finding of diligent prosecution dismisses plaintiffs' action for lack of subject matter jurisdiction.

Counsel for Plaintiffs
Bruce J. Terris, Lee Ann Meyer
Terris & Sunderland
1121 12th St., Washington DC 20005
(202) 682-2100

Jan Kublick
Davoli, McMahon & Kublick
500 South Salina St., Syracuse NY 13202
(315) 424-1105

Counsel for Defendant
John R. Jenchura, Abbi L. Cohen
Consolidated Rail Corp.
1138 Six Penn Center Plaza, Philadelphia PA 19103
(215) 977-4000

Taylor Obold
Hiscock & Barclay
Financial Plaza
221 Warren St., P.O. Box 4878, Syracuse NY 13221
(315) 422-2131

[15 ELR 20108]

MUNSON, J.:

Memorandum-Decision and Order

This is a citizen suit brought under the Federal Water Pollution Control Act (FWPCA or Clean Water Act), 33 U.S.C. § 1251 et seq., alleging that defendant Consolidated Rail Corporation (Conrail) has discharged excessive amounts of pollutants under 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).¹

Plaintiffs commenced this action seeking a declaratory judgment, injunctive relief and the imposition of civil penalties and award of costs for defendant's violations of its NPDES/SPDES permit between July 1, 1977 and February 1, 1984. Before the court are plaintiff's motion for partial summary judgment on the issue of liability, Fed. R. Civ. P. 56(a), and defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), or in the alternative for summary judgment under Fed. R. Civ. P. 56. For the reasons which follow defendant's motion to dismiss under Rule 12(b)(1) is granted, and plaintiff's motion for partial summary judgment is denied.

Plaintiffs include two environmental groups and one individual. Plaintiff Friends of the Earth is a not-for-profit corporation organized under the laws of New York, dedicated to the protection and enhancement of the natural resources of the United States. Members of Friends of the Earth, of which there are 8000 in New York, reside in the vicinity of, and own property or recreate in, on or near portions of Butternut Creek and Oneida Lake, the bodies of water affected by defendant's discharge of pollutants in violations of the NYDES/SPDES permit. Plaintiff Atlantic States Legal Foundation, Inc. is also a not-for-profit corporation organized under the laws of New York dedicated to protecting and restoring natural resources, particularly water resources of the states along the Atlantic Coast. Similar to the Friends of the Earth, its members live near and/or recreate at the affected bodies of water. Plaintiff Christian G. Spies is a member of both of the two organizations and birdwatches at Butternut Creek which flows into Oneida Lake and has a strong interest in the quality of the water.² Defendant Conrail is a Pennsylvania corporation which owns and operates Dewitt Yard, a facility for the inspection, maintenance and repair of diesel engines in Syracuse, New York.

Plaintiffs commenced this action under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365.³ To support their cause of action plaintiffs have submitted a chronology of numerous instances in which defendants have discharged pollutants in levels exceeding those provided in their NPDES permits. This is sufficient to state a cause of action under § 505(a)(1) of the Clean Water Act, § 1365(a)(1). See Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832 [12ELR 20571] (S.D.N.Y. 1981).

[15 ELR 20109]

However, a citizen suit is precluded under the next subsection of the Act "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 or require compliance with the standard, limitation or order . . ." 33 U.S.C. § 1365(b)(1)(B). Defendant contends that the existence of the consent order entered into with the New York Department of Environmental Conservation (DEC) providing for the construction of the treatment facility constitutes "diligent prosecution" under this section of the Act, thereby precluding this citizen suit. Plaintiffs argue that the consent order does not preclude a citizen suit where plaintiffs were not afforded the right to intervene in the administrative proceedings and where the potential penalties available are less than in federal court.⁴

III

In June, 1979 Conrail entered into a consent order with the DEC in which it agreed to upgrade its waste water treatment facility and to obtain authority to discharge pretreated waste water into the sewer system. At the time Conrail entered into the consent order, it paid a civil penalty of $1000. There were several delays in the submission by Conrail and approval by the DEC of engineering plans for the facility; the DEC approved the final plans in November, 1980. The requisite sewer permit was obtained in December, 1980, but was no longer required when in June, 1981 Conrail closed the diesel shop at the Dewitt Yard for which the sewer permit had been required. The parties entered into an Order of Modification in October, 1981 providing that construction of the treatment facility commenced on August 1, 1981 would be completed by September 1, 1982. A two-month extension was later granted, and the construction project was completed in November, 1982. Conrail has been in substantial compliance with its permit since April, 1984.

It has been widely viewed by courts and by now can be said to be generally accepted that administrative proceedings can be deemed the equivalent of court action to satisfy the preclusive factor of § 505(b)(1)(B). See Baughman v. Bradford Coal Co., 592 F.2d 215, 217 [9 ELR 20147] (3d Cir.), cert. denied, 441 U.S. 961 (1979), Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159, 1163 (S.D.N.Y. 1980), Love v. New York State Department of Environmental Conservation, 529 F. Supp. 832, 844 [12 ELR 20572] (S.D.N.Y. 1981), Sierra Club v. SCM Corp., 572 F. Supp. 828 [14 ELR 20183] (W.D.N.Y. 1983) (subsequently dismissed on standing grounds; aff'd, Nos. 84-7241, 84-7261, (2d Cir. Oct. 29, 1984)), Hudson River Sloop Clearwater v. Consolidated Rail Corp., 591 F. Supp. 345, 348 [14 ELR 20627] (N.D.N.Y. 1984) (appeal filed, Nos. 84-7701, 84-7715 (2d Cir.)). In Baughman the Third Circuit, in a case of first impression, examined the legislative history of the parallel Clean Air Act and determined that an administrative proceeding may be deemed a "court" so as to preclude a subsequent citizen suit in federal court if the agency's "powers and characteristics make such a classification necessary to achieve statutory goals." Baughman, 592 F.2d at 217.

The purpose of the Clean Water Act is to halt water pollution. Hudson River Sloop Clearwater, 591 F. Supp. at 351 (citing United States v. Cargill, Inc., 508 F. Supp. 734, 737 [11 ELR 20649] (D. Del. 1981)). Primary responsibility for issuing permits and enforcing the limitations contained in the permits was granted to state agencies. See Baughman, 592 F.2d at 218, Gardeski, 501 F. Supp. at 1163. As contemplated by Congress, enforcement by state agencies would most often entail prosecution of violators of effluent limitations. Where agency action proves ineffective, either because the agency is not pursuing enforcement activity "diligently" or where the penalties available to the agency prove insufficient to push a polluter to correct his violations, the Act contains the powerful citizen suit provision. See Baughman, 592 F.2d at 218.

Thus, administrative proceedings may be deemed a court so as to preclude citizen suits if the proceedings are the substantial equivalent of those available in federal court. Baughman, 592 F.2d at 219. Factors employed to make this determination include penalties available to the state agencyand whether the administrative proceedings afforded citizens the right to intervene which is preserved under the statute in actions commenced in federal court. Id. The penalties available are important in order to provide a sufficient deterrent. Id. Similarly, the right of citizens to intervene in administrative proceedings is to ensure vigorous enforcement of the Act's provisions. (Congress intended to provide for "the salutary effects of citizen gadflies.") Id.

An analysis of the potential penalties and procedures in an administrative proceeding is not required in the case at bar in which the polluter entered into a consent order to remedy the cause of its violations prior to the commencement of any formal administrative proceedings.⁵ The Clean Water Act does not require a state agency to commence adversarial proceedings; a consent order may be sufficient to satisfy the requirement of diligent prosecution. Gardeski, 501 F. Supp. at 1166; Sierra Club, 572 F. Supp. at 831 n. 3. A consent order may not in all cases constitute diligent prosecution, as where the state agency fails to monitor compliance with the order or if insufficient corrective action is taken by the polluter. See Gardeski, 501 F. Supp. at 1166; Sierra Club, 572 F. Supp. at 831 n. 3. In the case at bar Conrail entered into a consent order in which it committed itself to construct a waste water treatment facility at the cost of $1.364 million. This court concludes that the construction proceeded with reasonable diligence. There were some initial problems with the operation of the treatment facility shortly after completion of construction, but the record indicates that Conrail took prompt corrective action to remedy its exceedances. While compliance with the permits may not have been achieved as quickly as plaintiffs would have liked to have seen, the results anticipated by the Act have been achieved; Conrail has ceased polluting. See Hudson River Sloop Clearwater, 591 F. Supp. at 351.

This court concludes that to permit a citizen suit under the Act after the completion of the construction of the treatment facility in compliance with the consent order and the remedying of exceedances shortly thereafter would not be consistent with the purposes of the Clean Water Act. Whether an agency has been diligently prosecuting an action appears to be a factual determination to be made by the court. Under the facts presented in this case where compliance with a consent order is reasonably diligent, the court concludes that the results obtained by the DEC are the equivalent of diligent court prosecution under § 505(b)(1)(B). Therefore, this action is dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). No costs are assessed against the parties.

It is so Ordered.

1. Conrail was issued a permit by the EPA on April 22, 1977 to dischawrge limited quantities of pollutants from its facility into Butternut Creek. The permit was issued by the Administrator of EPA pursuant to Section 402(a) of the FWPCA, 33 U.S.C. § 1342(a) (1982). This permit was converted by the NYDEC to an NYDES/SPDES permit pursuant to Section 402(a)-(b) of the Act, 33 U.S.C. § 1342(a)-(b).

2. The question of standing is not in dispute. An organization whose members are injured may represent those members in a proceeding for judicial review. Sierra Club v. Morton, 405 U.S. 727, 739 [2 ELR 20192] (1972). Although more than conclusory allegations of members' injuries is required to satisfy the standing requirement of "injury in fact," plaintiffs' allegations in their complaint are supplemented by its supplying of names of several of the groups' respective members with specific statements as to the type of injury suffered. The injuries alleged include, inter alia, diminished recreational use of the bodies of water because of unpleasant odor from pollution and avoidance of entering the water because of visible pollution; the individual members also allege an adverse effect on economic activities associated with use of the land surrounding the bodies of water. Plaintiffs' responses to defendant's interrogatories demonstrate more than a "general interest in environmental preservation" by the plaintiff environmental groups so as to constitute injury in fact, thereby satisfying the standing requirements of the Clean Water Act. See Sierra Club v. SCM Corp., Nos. 84-7241, 84-7261, slip op. at 6775 (2d Cir. October 29, 1984). Similarly, the responses to defendant's interrogatories by individual plaintiff Spies narrating his lessened enjoyment of birdwatching due to the pollution in Butternut Creek and Oneida Lake demonstrate the requisite injury in fact to satisfy the standing requirement as to an individual. See id. at 6776-77 (standing of an individual to commence a citizen suit under Clean Water Act depends on the individual's meeting the "Morton" test of Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972)).

3. The citizen suit provision in the Clean Water Act provides in pertinent 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 of a State with respect to such a standard or limitation . . .

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, . . ., and to apply any appropriate civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365 (1982).

4. The Third Circuit in Baughman recognized that an administrative proceeding could constitute a "court" so as to preclude citizen suits if the agency has the power to "accord relief which is the substantial equivalent" to the EPA in federal courts. Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961 (1979). The DEC has broad powers of enforcement. Gardeski v. Colonial Sand & Stone Co., 501 F. Supp. 1159, 1163 (S.D.N.Y. 1980). The DEC may impose a civil penalty of up to $1000 per violation, N.Y. ENVIR. CONSERV. LAW § 71-1725, or the Attorney General may bring an action for penalties of up to $10,000 per day for a violation. Id. § 71-1929. The DEC may issue a summary abatement order, id. § 71-0301, and the DEC may have the Attorney General seek injunctive relief, id. § 71-1931, and criminal penalties, id. § 71-1933. Unlike the Pennsylvania Department of Environmental Resources in Baughman, the New York DEC possesses substantial powers to enforce the Clean Water Act. See Hudson River Sloop Clearwater v. Consol. Rail Corp., 591 F. Supp. 345, 348-49 [14 ELR 20627] (N.D.N.Y. 1984), Gardeski, 501 F. Supp. at 1163.

5. However, courts have recognized that the DEC possesses sufficient power to effectively enforce the Clean Water Act thereby making administrative action the substantial equivalent of court action. See infra n. 4; Gardeski, 501 F. Supp. at 1163; Hudson River Sloop Clearwater, 591 F. Supp. at 348-49.