The opinion of the court was delivered by: Cholakis, District Judge.
This action, brought under 33 U.S.C. § 1365, the "citizen
suits" provision of the Federal Water Pollution Control Act
("Clean Water Act" or "Act"), id. §§ 1251-1387, alleges
ongoing violations by defendant Simco Leather Corporation of
federal pre-treatment standards and defendant's wastewater
discharge permit, issued by the Gloversville-Johnstown Joint
Sewer Board. It is claimed that these violations contribute to
and increase violations allegedly committed by the
Gloversville-Johnstown Wastewater Treatment Facility (into which
defendant's discharges flow) of the terms of its consent decree
in United States of America and State of New York v.
Gloversville-Johnstown Joint Sewer Board, et al, No. CV 84-W-259,
and its State Pollutant Discharge Elimination System ("SPDES")
permit issued by the New York State Department of Environmental
Conservation. The Wastewater Treatment Facility discharges into
the Cayudetta Creek, a tributary of the Mohawk River.
Presently before this Court for consideration is a proposed
Consent Decree, the terms of which call for payment by defendant
of $2,120.00 to the United States Treasury, as well as $8,480.00
to the State University of New York at Oswego for the following
Consent Decree par. 7(B). Predictably, the proposed decree, by
its terms, does not constitute any admission of wrongdoing on the
part of defendant.
The Clean Water Act
In enacting the Clean Water Act, Congress declared that "[t]he
objective of this chapter is to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. § 1251 (a). In furtherance of these broad
remedial goals, the Act authorizes "any citizen [to] 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." Id. § 1365(a)(1). Such
citizen suits may not, however, be commenced where the federal or
state government has already commenced an action to redress the
alleged violations of the Act. Id. § 1365(b)(1)(B).
The Act provides for the United States' ("Government")
participation in citizen suits. At least sixty days prior to the
commencement of such action, a citizen plaintiff must give notice
to the United States Environmental Protection Agency ("EPA" or
"Administrator"), the state in which the alleged violation
occurs, and the alleged violator. Id. § 1365(b)(1)(A). The
Government may intervene as a matter of right, id. §
1365(c)(2), and no consent judgment may be entered in an action in
which the Government is not a party prior to 45 days following
the receipt of a copy of the proposed consent judgment by the
Attorney General and the Administrator. Id. § 1365(c)(3).
In the present case, plaintiffs have complied with all
statutory prerequisites. All pre-suit notices were served and, as
the Act requires, copies of the proposed decree were forwarded to
the Attorney General and the Administrator. The 45 day period
following their receipt of the proposed decree, during which no
consent judgment could be entered, expired on November 8, 1990.
The Government, objecting to the proposed consent decree by way
of submissions to the Court filed on November 8, 1990, argues
that there is no nexus between the harm caused by defendant's
alleged violations and that portion of the remedy calling for a
study of the non-point source pollution of the Mohawk River.*fn1
The Government claims that, absent such nexus, the remedy
violates the EPA's "Clean Water Act Penalty Policy for Civil
Settlement Negotiations" ("Settlement Policy"), and fails to
further the purposes of the Act.*fn2
The parties respond that the proposed study satisfies any
alleged nexus requirement contained in the Settlement Policy and
that this Court is not, in any event, bound by the Settlement
Policy. The parties are correct on both counts. The Settlement
Policy, although due some deference as a product of the
administrative agency charged by Congress with the responsibility
to oversee application of the Act, is not binding on this Court.
By its own terms, it is "intended solely for the guidance of
government personnel," see Settlement Policy at 8, is "not
intended, and cannot be relied upon to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States," id. and allows the EPA "to act at
variance with these policies and procedures and to change them at
any time without public notice." Id.; see Friends of the Earth v.
Archer Daniels Midland Co., 31 ERC 1779, 1781, No. 84-CV-413
(N.D. N.Y. July 19, 1990).
In addition, the Settlement Policy is intended to guide the EPA
in cases it is prosecuting, which is not the case here. See
Settlement Policy at 2; see Sierra Club, 909 F.2d at 1354-1355 n.
6. Finally, unlike other provisions of the Settlement Policy, the
criteria utilized by EPA when considering "mitigation projects"
such as the study here proposed are framed in terms manifesting
EPA discretion. For example,
the activity is most likely to be an acceptable
basis for mitigating penalties if
it closely addresses the environmental
effects of the defendant's violation.
Preferably, the project will address the
risk or harm caused by the violations at
Settlement Policy § V(2) (emphasis added). Although the
policy evinces a preference for mitigation projects that closely
address the effects of a defendant's violation, EPA is not
precluded from approving mitigation projects where there is no
such "close relationship."
In any event, a review of the proposed consent decree reveals
that it comports with the Settlement Policy. The proposed study,
of non-point source pollution of the Mohawk River, is closely
related to the violations alleged in the complaint in this
action. Defendant's discharges contribute to the overloading of
the Gloversville-Johnstown Wastewater Treatment Facility, which
discharges into the Cayudetta Creek, which in turn empties into
the Mohawk River.
This Court accepts plaintiffs' argument that a study of point
sources would provide little new information, given that all
point sources are subject to state permits, and therefore the
amount of pollutants discharged by each point source is already
well documented. In addition, the Court accepts plaintiffs'
assertion that part of the value of the proposed study lies in
its establishment of a baseline level of pollution of the Mohawk
River by non-point sources, information that apparently has never
before been gathered. Such information can only facilitate
greater knowledge of the water quality of the Mohawk and aid the
amelioration of water pollution, which is, after all, the
objective of the Act.
In addition, the fact that the proposed study encompasses
portions of the Mohawk that are upstream of the mouth of
Cayudetta Creek does not render the study less related to the
environmental harm alleged in the complaint. The Mohawk is
sufficiently "next to" and "close to" the Cayudetta Creek to
satisfy any "nexus" requirement alleged by the EPA to be lacking.
See, e.g., Pennsylvania Environmental Defense Foundation v.
Bellefonte Borough, 718 F. Supp. 431, 437 (M.D.Pa. 1989)
(rejecting a proposed consent decree where project contained "no
explicit requirement that the [funding for the project] be used
for projects in, next to, or close to [the polluted waterway].")
Finally, the type of project here proposed was clearly
contemplated, and approved, by
Congress during passage of the Water Quality Act of 1987,
amending the Clean Water Act:
In certain instances settlements of fines
and penalties levied due to NPDES permit
and other violations have been used
to fund research, development and other
related projects which further the goals
of the Act. In these cases, the funds
collected in connection with these violations
were used to investigate pollution
problems other than those leading to
the violation. Settlements of this type
preserve the punitive nature of enforcement
actions while putting the funds collected
to use on behalf of environmental
protection. Although this practice has
been used on a selective basis, the conferees
encourage this procedure where
H.R.Conf.Rep. No. 1004, 99th Cong., 2d Sess. 139 (1986) (emphasis
Since the proposed study is described with sufficient
precision, is closely related to the harm alleged in the
complaint, and furthers the objectives of the Act, this Court
hereby approves its terms.
IT IS SO ORDERED.