The opinion of the court was delivered by: NEAL P. MCCURN
MEMORANDUM-DECISION AND ORDER
This action arises under the "citizen suit" provision of the Federal Water Pollution Prevention and Control Act ("Clean Water Act" or "Act"), 33 U.S.C. § 1365 (1988). Plaintiffs commenced this suit in 1990 seeking punitive, injunctive, and declaratory relief from defendant's alleged illegal discharge of industrial wastewater in Fulton County, New York. This court has jurisdiction over plaintiffs' claims pursuant to 28 U.S.C. § 1331 (1988). Presently before the court are plaintiffs' motion for partial summary judgment and defendant's cross motion for summary judgment.
A. Facts giving rise to this suit
Defendant Pan American Tanning Corp. ("Pan American") operates a tannery in Gloversville, New York. During its production process, Pan American discharges its wastewater through the sewer system to the Gloversville-Johnstown Wastewater Treatment Facility (hereinafter referred to as "facility" or "sewage plant"). The facility in turn discharges treated wastewater into the Cayudetta Creek in Fulton County. Pan American's discharges to the facility are authorized pursuant to a permit issued in 1985 by the Gloversville-Johnstown Joint Sewer Board ("Joint Sewer Board"), which operates the facility. The permit sets forth precise limitations on the contents of Pan American's discharges. See Pl. Rule 10(j) Statement (2/10/92) at P 1.
Plaintiffs Atlantic States Legal Foundation ("Atlantic States") and Rainbow Alliance for a Clean Environment ("Rainbow") are not-for-profit corporations dedicated to protecting and improving the environment. Members of Rainbow live in Johnstown and Gloversville, and thus pay taxes and fees for operation of the sewage plant. Rainbow is itself a corporate member of Atlantic States; therefore, members of Rainbow are also members of Atlantic States. Plaintiffs proclaim that many of their members are affected by the facility's impact on their recreational, aesthetic, environmental, and economic interests. Two members of Rainbow, Robert Galinsky and William Dievendorf, allege that they regularly participate in recreation activities on the shores of Cayudetta Creek and are often offended by the creek's foul odor and unseemly color. Mr. Galinsky also owns a home near the sewage plant and alleges that his property value, as well as his enjoyment of his home, has diminished as a result of the stench emanating from the plant.
Although their complaint centers on the stench emanating from the facility, plaintiffs place responsibility on Pan American for the hardship they have suffered. According to plaintiffs, Pan American's discharges into the facility exceed the highest permissible levels of toxicity established by both the permit and federal regulations,
thereby saturating the facility with pollutants it is not equipped to handle. As a result of Pan American's violations, some pollutants escape treatment and are discharged into the Cayudetta Creek. Moreover, the contaminants that the facility successfully removes from the wastewater are concentrated in sludge which accumulates in the facility. The excess pollutants in the sludge further contribute to the odor problem. Plaintiffs assert that Mr. Galinsky and a third Rainbow member, James Abbott, own homes in Johnstown or Gloversville and have been forced to pay higher sewer use fees to fund plant improvements necessitated by Pan American's illegal discharges.
Pan American is no stranger to charges of environmental contamination. In August, 1989, the Joint Sewer Board issued two appearance tickets alleging that Pan American illegally discharged chromium and lead into the facility, violating the Gloversville City Code. Pan American plead guilty to the charges in Gloversville City Court and paid a $ 700.00 fine. During the next twelve months, the Joint Sewer Board issued three more appearance tickets to Pan American, all citing additional chromium discharges. On December 27, 1990, Pan American entered an Order of consent with the Joint Sewer Board relating to those three appearance tickets. The order imposed an additional $ 4,100.00 fine and required Pan American to maintain an aggressive timetable for upgrading its internal wastewater treatment system. See Rioux Aff. (2/7/92) exh. "C".
The order also imposed stipulated penalties for any future violations that might occur during the upgrade.
Pursuant to the Order of Consent, Pan American completed the upgrade of its treatment system by March 15, 1991, but not without incident. In the process of completing the upgrade Pan American incurred $ 2,500.00 in additional penalties for illegal discharges. According to Pan American, however, since the completion of its treatment system upgrade, only a small number of isolated permit violations have occurred. Pan American plant manager James Rioux insists that all of the post-upgrade violations were caused by mechanical malfunctions or other lapses that have been completely remedied. Rioux Aff. at PP 20-23 (see discussion infra p. 8). The other lapses leading to post-upgrade discharges were caused by either the presence of old sludge in the clarifier tanks, the use of chlorine to wash floors in the dye room, or both. At any rate, Pan American attests that these errors have been corrected.
Six months after the Joint Sewer Board executed the Consent Order with Pan American, plaintiffs served a statutory notice of intent to sue pursuant to the Clean Water Act, 33 U.S.C. § 1365. Plaintiffs subsequently commenced this suit in August, 1990, alleging that since June 15, 1985, Pan American discharged industrial wastewater into the sewage plant in violation of § 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), and in violation of N.Y. Envtl. Conserv. L. § 17-0825 (McKinney 1984). According to plaintiffs, Pan American's discharges are actionable under the Clean Water Act because they violated the standards set forth in the Joint Sewer Board permit and in federal regulations governing pretreatment discharges, 40 C.F.R. § 425 (1990). In all, plaintiff cites 173 discharges which it believes violated the permit and/or regulatory effluent standards of limitation.
Pan American acknowledges culpability for 57 of its discharges but denies liability for the remaining 116 discharges. Of the remaining 116 discharges, Pan American argues that it did not violate effluent standards of limitation in 51 instances and that various ...