The opinion of the court was delivered by: TELESCA
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
This is a citizen's suit to enforce the anti-pollution standards of the Federal Clean Water Act, 33 U.S.C. Section 1251, et seq. Plaintiffs are environmental organizations, and defendant operates an automotive parts manufacturing plant in Elmira Heights, New York. Jurisdiction of this Court is alleged pursuant to Section 505 of the Clean Water Act, 33 U.S.C. Section 1365. Pending before me are plaintiffs' motion for partial summary judgment as to liability, and defendant's motion for summary judgment as to standing, the applicable statute of limitations, and failure to state a claim under Clean Water Act Section 505. As set forth below, I determine that the applicable statute of limitations is five (5) years under 28 U.S.C. Section 2462, and deny the remaining motions for summary judgment.
In operating its Elmira facility, defendant Facet Enterprises discharges treated waste into Mays Creek, a tributary of Newtown Creek, which is in turn a tributary of the Chemung River. A permit authorizing the discharge of limited amounts of pollutants was issued to the defendant initially by the Environmental Protection Agency (a National Pollutant Discharge Elimination System, or NPDES, permit) and subsequently by the New York State Department of Environmental Conservation, or DEC (a State Pollutant Discharge Elimination System, or SPDES, permit). Plaintiffs allege over 100 violations of these permits between 1977 and 1982, based upon Discharge Monitoring Reports (DMR's) filed by defendant with DEC. Plaintiffs also allege some eleven (11) violations of the SPDES permit since that time, all of which defendant alleges not to have been prohibited by the terms of the SPDES permit and the applicable regulations.
In June, 1984, defendant moved to dismiss plaintiffs' complaint for failure to state a claim, primarily upon the theory that the Clean Water Act does not grant citizen plaintiffs a right to sue for civil penalties imposed soley as a result of past violations. This motion has been converted to a summary judgment motion, and some discovery has taken place on this and other issues. Defendant has added two (2) more counts to its summary judgment motion, dealing with standing and the applicable statute of limitations. Defendant claims that plaintiffs lack standing because they have no interest adversely affected by defendant's discharges, and because plaintiffs have suffered no injury traceable to defendant's discharges. Further, defendant argues that the applicable statute of limitations is either the five (5) year statute of limitations under 28 U.S.C. Section 2462, or alternatively the three (3) year statute of limitations under New York CPLR section 214.
Plaintiffs' motion for partial summary judgment is based upon the DMR's filed by defendant which provide evidence of violations. Plaintiffs claim that the DMR's conclusively establish defendant's liability for the violations.
Plaintiffs have provided several affidavits (many of which are as yet unsigned) from members attesting to their aesthetic and recreational use of the Chemung River. Plaintiffs claim that this establishes an interest adversely affected by discharges from defendant's plant, satisfying the first prong of the two-prong test of standing under Data Processing Service v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Plaintiffs claim that the second prong of the test, (that there be injury to plaintiffs traceable to the defendant's violations), has been satisfied insofar as plaintiffs are required to do so under the holding in United States v. SCRAP, 412 U.S. 669, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973), by a showing that plaintiffs' members use the area affected by defendant's discharges recreationally and aesthetically.
The test for standing in a case such as this one was recently articulated by the Second Circuit in Sierra Club v. S.C.M. Corporation, Nos. 84-7241, 84-7261 (October 29, 1984):
The constitutional limits on standing are grounded in the requirement of Article III that the federal courts adjudicate only actual cases or controversies, and such limitiations require that the would-be plaintiff show injury in fact, i.e., "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Prudential concerns may further limit the class of those permitted to sue, as where "the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated," and thus requires that the plaintiff's injury be "peculiar to himself or to a distinct group of which he is a part, rather than one 'shared in substantially equal measure by all or a large class of citizens.'" Finally, Congress may grant a right to sue to those who meet the constitutional limitations on standing but who might otherwise be barred by prudential limitations. Congress may not, however, "abrogate the Art. III minima: A plaintiff must always have suffered 'a distinct and palpable injury to himself,' . . . that is likely to be redressed if the requested relief is granted."
Slip op. at 6775-76 (citations omitted).
After analyzing the legislative history of Clean Water Act Section 505, the Second Circuit did not state categorically that Congress intended by Section 505 to abrogate any prudential. limitations on standing. Rather, the court held only that "[Section] 505(g)'s definition of 'citizen' as a 'person or persons having an interest which is or may be adversely affected,' means those who can claim injury in fact within the meaning of [Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972)]." Slip op. at 6780. The implication of this holding ...