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ATLANTIC STATES LEGAL FOUND. v. AL TECH SPECIALTY

May 15, 1986

ATLANTIC STATES LEGAL FOUNDATION, Plaintiff,
v.
AL TECH SPECIALTY STEEL CORPORATION, Defendant



The opinion of the court was delivered by: MCCURN

NEAL P. McCURN, D.J.

MEMORANDUM-DECISION AND ORDER

On July 30, 1984, plaintiff Atlantic States Legal Foundation filed a citizen suit against defendant Al Tech Specialty Steel Corporation alleging numerous violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (Clean Water Act), that occurred between July of 1977 and May of 1983. Currently pending before the court are cross-motions for summary judgment. The plaintiff is seeking judgment only as to liability and requests that, should judgment be entered in its favor, a hearing be held on appropriate relief. The court has jurisdiction of the action pursuant to 28 U.S.C. § 1331.

 Defendant Al Tech operates a steel products manufacturing facility in Watervliet, New York, and at the times in question, was discharging pollutants into the Kromma Kill, a small creek that flows into the Hudson River, pursuant to a water-based permit that was issued to it by the Environmental Protection Agency. Plaintiff Atlantic States contends that the defendant was discharging pollutants into the Kromma Kill at levels in excess of that permitted by the permit under which it was operating. The defendant does not unequivocally deny this contention. As stated on Page 3 of the Defendant's Memorandum of Law in Support of its Motion for Summary Judgment:

 
As with many businesses trying to use state-of-the-art equipment needed to comply with the permit requirements, Al Tech had difficulty meeting its permit standards. In the late 1970's and early 1980's, Al Tech had instances in which its level of pollutants exceeded the standards set by its permits.

 Because the plaintiff became aware that the defendant was exceeding its permit limitations through reports that the defendant itself was required to submit to the E.P.A., it is difficult, if not impossible, for the defendant to challenge the plaintiff's factual contentions. The defendant does, however, raise a number of legal defenses to the plaintiff's charges, and these will now be addressed in order.

 DISCUSSION

 33 U.S.C. § 1365, the primary statute upon which this action is based, provides in relevant part:

 
§ 1365. Citizen Suits
 
(a) Authorization; jurisdiction Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf--
 
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment of the Constitution) 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 respect to such a standard or limitation, or
 
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
 
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, or to order the Administrator to perform such act or duty, as the case may be, and to ...

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