The opinion of the court was delivered by: PIERRE N. LEVAL
PIERRE N. LEVAL, U.S.D.J.
This is a citizen suit brought under the Clean Water Act (CWA), alleging violations by the New York City Department of Environmental Protection (DEP/City) of the terms of its CWA permits for the North River Wastewater Treatment Plant and the Wards Island Wastewater Treatment Plant by exceeding the permits' respective limits on the average daily dry weather flow sent to these plants.
DEP/City moves for summary judgment, contending that (1) under the CWA, prior enforcement actions brought by the New York State Department of Environmental Conservation (DEC/State) for these same permit exceedences at the two plants bar the commencement of a CWA citizen suit; and (2) even if the suit is not barred, the action should be dismissed as moot because the remedial measures imposed on DEP/City by DEC/State will cause the violations at issue to cease without likelihood of recurrence. Plaintiffs cross-move for summary judgment on the issue of liability on the grounds that there is no factual dispute that the two plants are and will for some time continue to be in violation of permit limitations.
The CWA establishes the national pollutant discharge elimination system (NPDES). While NPDES permits are issued by the Environmental Protection Agency, § 402(b) of the CWA, 33 U.S.C. § 1342(b), provides for delegation of permit granting authority to a State pursuant to an EPA-approved permitting program (a state pollutant discharge elimination system or SPDES). DEC/State has issued SPDES permits for New York City's fourteen sewage treatment plants, including the two at issue here. These permits govern the type and amount of pollutants that may be discharged and the maximum limit on the flow that may be sent to any plant.
The Wards Island plant, under the Triborough Bridge, has a permit from DEC/State providing that the dry weather effluent flow (i.e. discounted for stormwater runoff) to the plant must not exceed 250 million gallons per day (mgd). The permit provided that within four months the average flow must be reduced to 115% of the plant's design capacity and that, if it was not, DEC/State could ban new sewer connections. It soon became clear to DEC/State that the Wards Island plant would not meet the reduction goals. As a result, DEC/State and DEP/City entered into a consent order in 1989, under which DEP/City would implement a comprehensive program, including various conservation measures and technological improvements, to reduce flows at the plant. The flow exceedences at Wards Island addressed by this order are the basis for the complaint with respect to that plant. Various other negotiations between DEP/State and DEP/City followed. In January 1993, DEC/State initiated enforcement proceedings against DEP/City based on the latter's failure to comply with aspects of the 1989 consent order; this resulted in negotiation of a modified consent order, providing for further measures to be undertaken by DEP/City and imposition of a $ 200,000 penalty on DEP/City for missing the deadline in the 1989 order for submission of the preliminary design for plant expansion.
The North River Plant's SPDES permit provides that its maximum dry weather flow must not exceed 170 mgd. In a letter dated December 16, 1991, DEP/State issued a notice of hearing and complaint concerning exceedences of this limit, which exceedences are those at issue in the complaint here. After negotiations, DEC/State and DEP/City entered into a consent order on July 1, 1992. Again, this order requires various conservation and other flow reduction measures by DEP/City, along with certain monitoring and planning efforts.
In December 1992, plaintiffs brought this citizen suit, pursuant to § 505 of the CWA, 33 U.S.C. § 1365. The complaint seeks injunctive relief, enjoining DEP/City from permitting any additional sewer connections or additional sewer flow into either plant unless the plants have unused capacity under the permits and appointing a neutral expert to monitor DEP/City's operation of the two plants and to provide periodic reports to the parties and the court until the average daily flow of the plants is consistently below 95% of the maximum flow limitations, along with attorneys fees and costs.
A. Whether plaintiffs' complaint is barred
This citizen suit is brought under Section 505 of the CWA, 33 U.S.C. § 1365, which gives this court jurisdiction over the complaint, "Except as provided in . . . section 1319(g)(6) of this title . . . ." The referenced provision, § 1319(g)(6), bars certain citizen suits under certain circumstances. It provides, in pertinent part, that
any violation -- . . . (ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or (iii) for which the . . . State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection ...