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ATLANTIC STATES LEGAL FOUND. v. COLONIAL TANNING C

July 17, 1993

ATLANTIC STATES LEGAL FOUNDATION, INC. and RAINBOW ALLIANCE FOR A CLEAN ENVIRONMENT, Plaintiffs,
v.
COLONIAL TANNING CORPORATION, Defendant. ATLANTIC STATES LEGAL FOUNDATION, INC. and RAINBOW ALLIANCE FOR A CLEAN ENVIRONMENT, Plaintiffs, v. TWIN CITY LEATHER CORPORATION, Defendant.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 Chief U.S. District Judge

 MEMORANDUM & ORDER ON RECONSIDERATION

 The above captioned actions, Atlantic States Legal Foundation, Inc. v. Colonial Tanning Corporation, 90-CV-896, and Atlantic States Legal Foundation, Inc. v. Twin City Leather Corporation, 90-CV-801, are citizen suits brought by plaintiffs pursuant to the Clean Water Act for defendants' alleged violations of certain federally imposed effluent limitations. In April, 1992 the court rendered oral decisions on cross motions for summary judgment in both cases.... In all material respects those decisions are indistinguishable.... Having considered the arguments presented, the court granted defendants' cross-motions for summary judgment in part and denied plaintiff's motions in their entirety.... Insofar as those rulings are relevant here, the court held that plaintiffs lacked standing as to some of their claims, and in that respect granted partial summary judgment for defendants.... Also, the court ruled that it would only consider violations listed in the complaints and the intent to sue letters attached thereto.... Based upon those oral decisions, orders were entered on June 30, 1992.

 Since that time, plaintiffs have moved for reconsideration of those decisions contending that the court erred in its interpretation of the law governing citizen suit standing under the Clean Water Act, 33 U.S.C. §§ 1250-1387 ("the Act"), and that the court erred in limiting the scope of the complaint.... Also on reconsideration, plaintiffs argue that the court should grant summary judgment in their favor in both cases.... Defendants in both cases have opposed reconsideration.... This constitutes the court's decision on the motion for reconsideration, and shall be entered by the clerk as the court's order in both cases.

 I

 (a) Introduction:

 Both actions are brought pursuant to § 505 of the Act, 33 U.S.C. § 1365. This section authorizes citizen suits under the Act against "any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter . . .", 33 U.S.C.... § 1365(a)(1).... The complaints allege that the defendants discharges are in violation of 33 U.S.C. § § 1311(a) *fn1" and 1317(d), *fn2" and § 17-825 of the New York State Environmental Conservation Law.... *fn3" Plaintiffs seek declaratory and injunctive relief, the payment of civil penalties, and an award of attorney and expert witness fees.

 Plaintiffs are two environmental organizations which have as their primary purpose the protection of the environment. Atlantic States Legal Foundation ("Atlantic") is a national organization, based in Syracuse, New York and Rainbow Alliance for a Clean Environment ("Rainbow") is an organizational member of Atlantic whose membership is largely based in Fulton County, New York.... Defendants are tanning facilities located in the Gloversville-Johnstown area.... Pursuant to wastewater permits issued by the Gloversville Johnstown Joint Sewer Board (JSB), defendants discharge wastewater into the Gloversville Johnstown Joint Wastewater Treatment Facility ("the facility"), a publicly owned treatment works.

 The JSB permits set forth certain effluent limitations for concentrations of pollutants in the wastewater.... However, in addition to the permit limitations, the defendants are also subject to federal categorical pretreatment limits which have been established by the Environmental Protection Agency (EPA) pursuant to 40 C.F.R. § 403.... The specific limitations for the tanning industry are set forth at 40 C.F.R. § 425.

 The defendants' wastewater, and that of other local dischargers, is treated by the facility.... Once the wastewater is treated, it is discharged by the facility directly into the Cayudetta Creek. *fn4" However, like defendants, the facility is similarly constrained by effluent limitations.... The facility discharges its wastewater pursuant to a New York State Pollutant Discharge Elimination System (SPDES) permit.... The SPDES permit states that the limitations on influent - that is, the wastewater received by the facility from defendants and other indirect dischargers - which are imposed by the JSB permits shall constitute pretreatment standards under 33 U.S.C.... § 1317(d).... Thus any violation of a discharge permit limitation, or any violation of the limits imposed by the Code of Federal Regulations, constitutes a violation of an effluent limitation under § 1317(d), and is actionable under 33 U.S.C. § 1365. In their complaints, plaintiffs allege that defendants have exceeded the applicable effluent standards on numerous occasions.

 According to plaintiffs, two members of Rainbow, Robert Galinsky and William Dievendorf, regularly recreate on the shores of Cayudetta Creek.... The complaint alleges that they are offended by the foul smell and dirty color of the creek, which according to the complaint, is a result of the defendants' discharges in excess of the effluent limitations.... Furthermore, Mr. Galinsky owns a home in the vicinity of the facility.... The complaint alleges that the value of his home, as well as his enjoyment of it, has been adversely impacted by the odors from the sewage plant.... In addition to Messrs.... Galinsky and Dievendorf, another of plaintiff's members James Abbott owns a home in Johnstown, and allegedly pays higher sewer use fees and taxes as a result of the defendant's discharges.

 Prior to filing their complaints, however, plaintiffs served both Twin City Leather and Colonial Tanning with an intent to sue letter.... Each such letter adequately identified the limitations allegedly violated by the particular defendant, the activities constituting the violations, the persons liable and the location of the alleged violation.... Additionally, these letters specifically identified dates of violations for certain parameters beginning in January, 1989. However, in the concluding paragraphs of each letter, plaintiffs advised defendants that they intended to seek penalties "for each violation of the Wastewater Discharge Permit during the period of five years and sixty days preceding the institution of the lawsuit. . . ." (See Colonial Tanning Complaint, Exhibit A, 90-CV-896; Twin City Leather Complaint, Exhibit A, 90-CV-801).

 The complaint in the Colonial Tanning action was filed on August 14, 1990, and the complaint in the, Twin City Leather action was filed on July 17, 1990.... Like the intent to sue letters, the complaints identified specific dates of violations from January of 1989 to various dates in 1991.... Both complaints allege in the first cause of action that

 
"Defendants [sic] pollutant discharges are listed in the Notice of Intent to Sue Letter annexed hereto as Exhibit "A", and those which have been committed after March 31, 1990 . . .... are violations of defendant's wastewater discharge permit and/or federal categorical pre-treatment standards, and are violations of Section 301(a) and 317(d) of The Act, 33 U.S.C. 1311(a) and 1317(d)." (Colonial Tanning Complaint at P 32; Twin City Leather Complaint at P 32).

 Neither complaint alleges violations of the limitations prior to January of 1989.... However, in the ad damnum clauses, each complaint sought penalties for all violations of the effluent limitations from a date five years and ...


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