shall constitute a violation of the permit[.]" General Condition 1(b) of Kodak's SPDES Permit incorporates that requirement.
Kodak argues, however, that federal regulation precludes enforcement under the Act and its regulatory scheme of restrictions which are broader in scope than federal law requires; that General Condition 1(b) of Kodak's Permit is broader in scope than is required under the Act; and that General Condition 1(b) is, therefore, not part of a program enforceable under the Act. See 40 C.F.R. 123.1(i)(2)(1991) (where "an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the federally approved program.")
Atlantic States counters that the requirements of N.Y.E.C.L. § 17-0815(3) are not broader, but only stricter, than the express conditions of Kodak's permit, and that such stricter enforcement is contemplated by both 33 U.S.C. § 1342 and the regulations promulgated thereunder, see 40 C.F.R. 123.1(i)(1) ("Nothing . . . precludes a State from adopting or enforcing requirements which are more stringent or more extensive than those required under [federal regulation.]" Such a view would, indeed, permit imposition of liability under the Act against a permit holder for the discharge of pollutants not expressly regulated by such permit, and not only for the discharge of regulated pollutants in excess of any limits established either by permit or by federal law or regulation.
Neither linguistic analysis nor logic supports Atlantic States's interpretation of N.Y.E.C.L. § 17-0815(3) as merely a stricter version of the applicable federal law and regulations. Imposing liability for any discharge of a pollutant, whether it has been the subject of the administrative permit procedure or not, would clearly broaden the parameters of enforcement of a citizen suit under the Act. That kind of expansion is simply not cognizable under the Act and the applicable case law. See McLellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F. Supp. 1182, 1199 (E.D.Cal. 1988), and cases cited supra at 14. (Citizen suits limited to seeking enforcement of administratively established "effluent standards or limitations.")
The abatement of all contamination of our precious water supply by pollutants is the goal of the Clean Water Act. Congress chose to effect that goal through a permit system which is founded on the administrative determination of levels of pollution which are, given our present state of technological knowledge, acceptable or unacceptable. Plaintiff's frustration with this system, and with the level of pollution discharge it continues to permit, is understandable. Nevertheless, accepting plaintiff's view of the reach of the Act would effectively circumvent the permit system and expand the scope of a citizen suit under the Act; it "would change the nature of the citizens' role from interstitial to potentially intrusive." Gwaltney, 108 S. Ct. at 383. I cannot agree that Congress intended such a result.
WHEREFORE, plaintiff's motion for partial summary judgment is denied; defendant's cross-motion for summary judgment is granted; this case is dismissed.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
December 28, 1992