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August 21, 1991


The opinion of the court was delivered by: Goettel, District Judge:


This action concerns the limitations on a party's ability to institute a citizen suit to challenge violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. (the "CWA"), when state authorities have already entered into two Orders on Consent with the parties responsible for the pollution.


The sordid details of this bureaucratic and political nightmare are as follows.

The Pelham Bay Landfill (the "landfill" or the "dump"), located in Bronx County, New York City, was operated from 1963 to 1979 by the New York City Department of Sanitation ("DOS"). Thereafter, the landfill was closed, but not effectively capped, since in 1982 complaints about leachate streams and ponds were lodged by individuals living in the vicinity of the landfill.*fn1 In response to these complaints, the New York State Department of Environmental Conservation ("DEC"), which is charged with enforcing the state's environmental laws, began investigating the matter and in December 1985, DEC and DOS entered into an Order on Consent (the "1985 Order") requiring DOS to submit two leachate management plans to the state, one temporary and one permanent. Finally, in July 1988, after the usual bureaucratic delay, DOS submitted its interim proposal. The proposal provided for the collection of the leachate and its subsequent recirculation into the landfill. DEC rejected this, however, claiming it was insufficient to address the problem.*fn2 An alternate temporary proposal was quickly adopted and approved by the DEC. The proposal provided that the leachate was to be collected, passed through a sewage system, and ultimately discharged into the Eastchester Bay (the "Bay"), which is located in Bronx County and feeds into the Long Island Sound. Even with this modification to the plan, construction began just one month after DOS filed its initial proposal, and beginning in September 1988, DOS began discharging the leachate into the Bay. Thereafter, in April 1990, a second Order on Consent (the "1990 Order") was entered into between DOS and DEC, requiring the completion by 1995 of a further remedial plan for the landfill.*fn3

Plaintiff, the New York Coastal Fishermen's Association, filed its citizen suit in this court on July 17, 1990.*fn4 Plaintiff is organized for the preservation of the Long Island Sound. Plaintiff contends that the defendants' actions as of September 1988 in dumping the leachate into the Bay have violated the CWA and plaintiff now seeks civil penalties, as well as declaratory and injunctive relief. Plaintiff contends that while a permit for discharging pollutants should have been sought from either the EPA or the DEC, see 33 U.S.C. § 1342(a), (b), no such application was ever made.

The parties now move for summary judgment.*fn5 They agree that there are no genuine issues of material fact to be tried and that the action is ripe for summary judgment. In fact, defendants do not dispute that they are violating the CWA by discharging leachate into the Bay. Instead, their only defense is that a citizen suit for penalties under the CWA is impermissible if the state "has commenced and is diligently prosecuting an action under a State law comparable to this subsection." Id. § 1319(g)(6)(A)(ii).*fn6 In this respect, defendants contend that the actions of the DEC in obtaining the 1985 and 1990 Orders is unequivocal evidence of the state's diligent prosecution efforts.

In response, plaintiff focuses on the requirement that the state action be "comparable" to a federal enforcement proceeding under the CWA. Plaintiff argues that the DEC's actions are not comparable because the state has never sought to penalize the defendants. Moreover, plaintiff suggests that the delays that already have occurred, and the fact that it will be quite some time before a new facility will be in place, raise serious questions as to the DEC's diligent prosecution. Finally, plaintiff contends that even if civil penalties cannot be sought in this citizen suit, its claims for declaratory and injunctive relief remain viable. Defendants do not contest the accuracy of this last argument, but rather, argue that it is impractical for this court to attempt to fashion a remedy when the state has already done so.


The Clean Water Act was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). "The Act makes unlawful the discharge of any pollutant into navigable waters except as authorized by specific sections of the Act." Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 52, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). One type of authorization is the obtaining of a permit from either the EPA or an analogous state agency, see 33 U.S.C. § 1342(a), (b), but one was not sought in this case.*fn7 While the CWA grants the EPA enforcement power, it also permits "citizen suits" in the absence of either federal prosecution of the CWA or state prosecution of comparable state statutes. A prevailing plaintiff in a citizen suit can obtain injunctive relief and/or civil penalties payable to the United States government. Id. § 1365(a); Gwaltney, 484 U.S. at 53, 108 S.Ct. at 379.

The statute imposes certain limitations on when a citizen suit for penalties may be maintained. Specifically at issue in the case at bar is the provision that "any violation — . . . with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection . . . shall not be the subject of a civil penalty action under . . . section 1365 of this title." 33 U.S.C. § 1319(g)(6)(A)(ii) (emphasis added). Section 1365 is the statutory provision authorizing citizen suits for both penalties and injunctive relief. In addition, if an action brought by the government is pending in either federal or state court, a citizen suit for any purpose, injunctive or otherwise, cannot be brought. Id. § 1365(b)(1)(B); see Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 63 (2d Cir. 1985). In the case at bar, defendants contend that DEC's enforcement of New York law, which resulted in the entry of the two consent orders, is evidence of its diligent prosecution of comparable actions.

Plaintiff initially argues that the state is not pursuing a comparable action. Plaintiff points to the fact that the subtitle of the section under which section 1319's limitation on citizen suits is contained is entitled "administrative penalties." Therefore, plaintiff suggests, it is only when the state's prosecution seeks to penalize the respondent that a citizen suit is precluded. We reject this argument as it is an overly technical interpretation of the statute.

The main purpose behind the limitation of citizen suits is to permit the federal and state governments to exercise their powers to remedy violations of the Clean Water Act. "[T]he citizen suit is meant to supplement rather than to supplant governmental action." Gwaltney, 484 U.S. at 60, 108 S.Ct. at 383. In this regard, a citizen suit may not "seek to recover fines and penalties that the government has elected to forego." Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d 124, 127 (2d Cir. 1991) (citing Gwaltney, 484 U.S. at 60-61, 108 S.Ct. at 382-83). Thus, it cannot be reasonably argued that only when a penalty is actually imposed that a citizen suit is precluded. Such an interpretation would unnecessarily undermine state and local enforcement efforts. Cf. id. ("we do not believe the Clean Water Act can or should be read . . . to prevent state or local authorities from achieving a settlement as to conduct that is the subject of a citizen complaint"). Under New York's Environmental Conservation Law ("ECL") section 71 — 1929, the state, through the DEC, can seek penalties for violations of article 17 of the ECL, which is entitled Water Pollution Control. The fact that in the case at bar no penalties were imposed, although the right was reserved in both the 1985 and 1990 Orders,*fn8 does not, in and of itself, require a finding that the state is not enforcing a comparable statute. See North & South Rivers Watershed Ass'n v. Town of Scituate, 755 F. Supp. 484, 486 (D.Mass. 1991) (look to entire state statutory scheme and state's decision not to employ penalty provisions "does not change the fact that the statutory scheme under which the [State] acts is comparable").

Plaintiff's second argument, however, requires greater scrutiny. Plaintiff again focuses on the requirement that the state be enforcing a comparable statute and argues that pollution control of navigable waters was not at issue in either the 1985 or the 1990 Order. Plaintiff cites this court's decision in Hudson River Fishermen's Ass'n v. County of Westchester, 686 F. Supp. 1044 (S.D.N.Y. 1988), in which we found a citizen suit was not precluded because the government's Consent Order expressly did not apply to the damage complained of by the plaintiff. Id. at 1052. Thus, it could not be ...

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