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HUDSON RIVER SLOOP CLEARWATER, INC. v. CONRAIL

July 2, 1984

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


The opinion of the court was delivered by: MINER

ROGER G. MINER, D.J.

MEMORANDUM-DECISION and ORDER

 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 17-0819. *fn1"

 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, P16, 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 ...


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