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ATLANTIC STATES LEGAL FOUND. v. EASTMAN KODAK CO.

December 28, 1992

ATLANTIC STATES LEGAL FOUNDATION, INC., 658 West Onondaga Street Syracuse, New York 13204, Plaintiff,
v.
EASTMAN KODAK COMPANY, 1669 Lake Avenue Rochester, New York 14650, Defendant.



The opinion of the court was delivered by: MICHAEL A. TELESCA

 INTRODUCTION

 This action was commenced November 14, 1991, pursuant to § 505 of the Federal Water Pollution Control Act (the "Clean Water Act" or "Act"), as amended, 33 U.S.C.A. § 1365 (West 1986 and Supp. 1992), which authorizes citizens to commence actions ("citizens suits") against persons alleged to have violated "effluent standards or [other limitations on the release of pollutants into the nation's navigable waters]" established by the Act.

 The plaintiff, Atlantic States Legal Foundation, Inc. ("Atlantic States"), is a not-for-profit corporation with its principal place of business in Syracuse, New York. Its members include residents of Rochester who either own property or use recreation facilities in or near the Genesee River and Paddy Hill Creek, which allegedly are affected by the discharges of pollutants from defendant Eastman Kodak Company, Inc. ("Eastman Kodak" or "Kodak") in violation of the Act. Atlantic States alleges that such discharges emanate from Kodak Park, one of defendant's major industrial facilities located in Rochester, New York.

  Atlantic States has moved for partial summary judgment on the issue of the liability of defendant Eastman Kodak Company for violating the Clean Water Act by discharging, since April 1, 1990, one or more of 16 pollutants *fn1" into the water supply. Defendant Kodak has cross-moved for summary judgment dismissing the complaint on various grounds. Upon review of the Clean Water Act itself, its legislative history and current regulatory scheme, and the relevant case law, I find that, when an alleged polluter is subject to a pollution discharge permit issued pursuant to the Clean Water Act, a citizen suit under the Act against the polluter may only address discharges of pollutants expressly regulated by such permit. Accordingly, and for the reasons discussed below, plaintiff's motion is denied, defendant's cross-motion is granted, and the complaint dismissed in accordance with this decision.

 BACKGROUND

 The Earlier Action -- "Kodak I"

 Atlantic States commenced an earlier action against Kodak in August 1989. *fn2" That complaint alleged that New York State (the "State"), through its Department of Environmental Conservation ("DEC"), issued to Kodak a permit under the National Pollutant Discharge Elimination System pursuant to § 402(b) of the Act, 33 U.S.C. § 1342(b) (a "State NPDES Permit" or "SPDES Permit"). This SPDES Permit authorizes Kodak to discharge limited quantities of certain pollutants from its Kodak Park facility into both the Genesee River and the Paddy Hill Creek. The complaint alleged that Kodak's discharges of pollutants had exceeded the limitations of its SPDES Permit on numerous occasions between March 1987 and May 1989. In a decision filed September 18, 1990, I dismissed Kodak I as precluded by a prior settlement with the State. On appeal, the Second Circuit vacated that dismissal and remanded Kodak I for a determination whether the prior settlement between Kodak and the State had "caused the violations alleged by Atlantic States to cease and eliminated any realistic prospect of their recurrence." *fn3"

 After remand, Atlantic States moved pursuant to Fed. R. Civ. P. 15 to amend its complaint to include both violations of Kodak's SPDES Permit ("exceedances") which had occurred after the filing of the complaint and discharges by Kodak of pollutants which are not expressly mentioned in the SPDES Permit. In a decision filed September 27, 1991, I granted Atlantic States's motion insofar as it sought to include in the complaint more recent exceedances of the SPDES Permit and denied the motion insofar as it sought to include discharges of pollutants which are not mentioned in the Permit. Kodak I has since settled, and these discharges concerning pollutants not mentioned in Kodak's SPDES Permit form the basis of the complaint in the instant action ("Kodak II").

 This Complaint

 The complaint in Kodak II alleges that information submitted by Kodak in the form of "toxic chemical release forms" ("Form Rs") *fn4" establishes that Kodak is discharging pollutants which it is not authorized to discharge under its SPDES Permit, and that Kodak is, accordingly, violating both its Permit and the Act. Plaintiff seeks a declaration that these discharges violate the Clean Water Act; an injunction against Kodak's continuing discharge of these pollutants; mandatory disclosure to plaintiff by Kodak concerning its activities at Kodak Park relevant to these discharges; and both the maximum civil penalties permitted under the Act and attorney's fees.

 Plaintiff's Motion for Partial Summary Judgment

 In its motion for summary judgment on the issue of Kodak's liability under the Act, Atlantic States relies almost exclusively upon information in Form Rs submitted by Kodak to both the United States Environmental Protection Agency ("EPA") and the State, and upon affidavits interpreting the significance of the Form Rs. Atlantic States argues that Kodak's Form Rs, submitted for the years 1989-1991, constitute admissions of violations of the Act sufficient to warrant granting of its motion.

 Facilities, such as Kodak Park, which are known to have released toxic chemicals into the environment, must submit Form Rs annually. 42 U.S.C. § 11023(a). Form Rs contain detailed information concerning toxic discharges which occur in the normal course of a facility's business. While the Forms are based on chemicals known to be used and/or produced in the ordinary course of business, the information contained therein is essentially the result of a sophisticated process of estimation, including computer models, rather than of precise actual measurement. In this regard, and for purposes of a summary judgment motion, Form Rs differ significantly from the discharge monitoring reports ("DMRs") and non-compliance reports ("NCRs") which formed the basis of Atlantic States' complaint in Kodak I. DMRs and NCRs are regular reports of actual discharges which a permit holder is required to submit to both the state and the EPA. Courts have consistently found that undisputed DMRs and NCRs constitute sufficient evidence of a permit holder's liability under the Act to warrant granting a motion for summary judgment on that issue. See, e.g., Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F. Supp. 440, 451 (D.Md. 1985); Nat. Resources Defense Council v. Texaco Refining, 719 F. Supp. 281, 289 (D. Del. 1989), vacated in part on unrelated ground, 906 F.2d 934 (3d Cir. 1990); cf. Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532, 536 (W.D.N.Y. 1984) (Summary judgment inappropriate when defendant disputes DMRs.) Thus, even if I were to consider the merits of plaintiff's motion for summary judgment, I would find that plaintiff's submission of Form Rs fails to establish by a preponderance that Kodak has violated the Act as alleged in the complaint.

 Defendant's Cross-Motion for Summary Judgment

 Kodak does not directly oppose Atlantic States's summary judgment motion; it cross-moves for summary judgment on bases initially pled as affirmative defenses. *fn5" Kodak argues that this action should be dismissed because the complaint alleges discharges only of pollutants which are not expressly regulated by its SPDES Permit and that such discharges are not the proper subject of a citizen suit under the Clean Water Act. With respect to this argument Kodak relies almost exclusively on the EPA's interpretation of the Act as evidenced in various internal EPA memos.

 Alternatively, Kodak argues that the Clean Water Act itself precludes this citizen suit, because it bars such suits when a state "has commenced and is diligently prosecuting an action under a [comparable] state law" and when a state "has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under . . . a comparable state law." 33 U.S.C. § 1319(g)(6)(A). Kodak argues that the same Consent Order which formed the basis for this Court's dismissal of Kodak I also precludes the instant suit. If I were to reach this alternative argument, I would, on the basis of the record before me, be obliged to deny the motion, because disputed issues of fact remain as to whether Kodak's settlement with the State has actually "caused the violations alleged by Atlantic States to cease and eliminated any realistic prospect of their recurrence." Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., Inc., 933 F.2d at 128.

 As discussed below, these motions turn on the meaning of the relevant provisions of the Act, a meaning which emerges only upon reading the provisions conjunctively and in light of both the Act's legislative history and its regulatory scheme.

 DISCUSSION

 Relevant Provisions of the Clean ...


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