The opinion of the court was delivered by: CHARLES L. BRIEANT
Defendant Orange & Rockland Utilities, Inc. ("O&R"), seeks summary judgment dismissing the Amended Complaint ("Complaint") in this action for lack of subject matter jurisdiction; failure to state a claim upon which relief may be granted; and failure to join the New York State Department of Environmental Conservation ("DEC") as issuer of a State pollutant Discharge Elimination System ("SPDES") permit held by defendant, as a necessary party to this action.
Plaintiff, Hudson Riverkeeper Fund, Inc., ("Riverkeeper") is a New York not-for-profit corporation. Its purpose is to preserve and protect the beauty, quality and biological integrity of the Hudson River and its tributaries, primarily by litigation. Most of its 1,250 members live along the Hudson or its tributaries and use the Hudson River and its watershed for such activities as commercial and recreational fishing, boating, bird watching and hiking. They share a common concern about the quality of the Hudson and its watershed. Riverkeeper has been held to have standing as a citizen to enforce the Clean Water Act, and to sue for claimed violations of SPDES permits issued by DEC affecting the Hudson River. See Orange Environment, Inc. v. County of Orange, 811 F. Supp. 926 (S.D.N.Y. 1993), and 33 U.S.C. § 1365(a).
Defendant O&R, a New York corporation, is a franchised, regulated public utility engaged in the generation and distribution of electric power. As such, O&R owns and operates as one of its sources of electric power, the Lovett Generating Station ("Lovett") located on the west shore of the Hudson River at Tompkins Cove, Rockland County, New York, in this district.
Lovett uses four separate intake structures for Hudson River water to cool the steam condensers into which the turbines are exhausted. Once used, the water is discharged into the river together with the waste heat, at three separate points of discharge. Both the intake structure and the discharge are operated pursuant to an SPDES renewal permit issued effective October 1, 1991, hereinafter "the permit" or the "SPDES permit".
Plaintiff seeks declaratory judgment, injunctive relief and monetary damages pursuant to § 309(d) of the CWA, 33 U.S.C. § 1319, based on allegations that defendant O&R is engaged in continuing violation of Condition 9 of the SPDES permit for the Lovett plant. Condition 9, its meaning and effect will be discussed below.
The following facts are well pleaded and assumed to be true for the purpose of the motion. Defendant O&R's Lovett facility consists of five fossil fuel fired steam turbine electric generating units, numbered one through five. Unit 1 built in 1949 and 2 built in 1950, are standby units which operate when required. Unit 3, built in 1955, operated in 1992 at 11% of its average annual capacity. In 1992, Unit 4, built in 1966 and Unit 5, built in 1969, operated at 54% and 48% of capacity respectively. It does not appear whether these low percentage operating levels were caused by maintenance shutdowns, lack of demand, operating decisions related to fuel, efficiency, costs, or other reasons.
The location and configuration of the water intakes and discharges from and into the Hudson River are shown on Exhibit "B", page 2, to the affidavit of Robert T. Kosior sworn to July 2, 1993, attached to the defendant's Notice of Motion (Doc. 14), hereinafter "Kosior Affidavit".
The principal concerns of the plaintiff and the DEC with regard to this facility involve (1) injury to fish which are impinged on the vertical traveling 3/8 inch screens behind the entrance of each intake, discussed below, (2) death by entrainment of fish smaller than 3/8 inch in size, and other fish and plant life, which pass through the screens and are, with minor exceptions, killed by the turbulence and the heat encountered in passing through the heat exchangers, or condensers, and (3) the adverse effect on the River of the waste heat energy discharged as a result of the process.
A typical Lovett intake structure, with pump and screen, is depicted on Exhibit "B", page 1, of the Kosior Affidavit. So called "trash racks", consisting of steel vertical bars, are placed at the entrance of each intake to prevent large debris, boats, people, large fish and other marine life from entering a pumping chamber or three sided tank. Behind the trash racks, are 3/8 inch mesh so called "vertical traveling screens". These rotate upwardly in the intake chamber, in the manner of a conveyor belt, ahead of the centrifugal intake pump, to prevent debris, fish and other marine life larger than 3/8 inch from entering the intake pump which services the condensers. Objects smaller than 3/8 inch pass through the intake. Entrainment is said to occur when aquatic life measuring less than 3/8 inch is drawn through the vertical traveling screens, passes into the cooling water intake unit and is heated in the condenser and discharged with the heated water back to the River. Impingement of aquatic life larger than 3/8 inch is said to occur when it is drawn into the unit, compressed against the vertical screen, and thereafter washed off the screen with water jets, into the screen wash trough, which returns it to the River.
On May 30, 1989, O&R applied to DEC to renew its SPDES permit for the Lovett facility which would expire in December 1989. After the usual procedures involving public notice, the DEC issued a renewal permit to O&R covering the operations described above, together with other discharges by O&R at the Lovett plant not relevant to this case. The renewal permit, which became effective October 1, 1991, and expires October 1, 1996, is Exhibit "A" of the Kosior Affidavit.
Riverkeeper had written to Mr. Edward W. Radle, Supervising Aquatic Biologist, the DEC officer in charge of the drafting of the permit (the "Permit Writer") expressing its views, discussed below.
Familiarity on the part of the reader with the entire permit is assumed. We summarize the permit only to the extent deemed necessary. The SPDES permit grants a single authorization (No. 003) for Units 1, 2 and 3; another authorization, (No. 004) for Unit 4, and one for Unit 5 (No. 019). Each of these call for a maximum temperature at discharge of 107degreeF, and a maximum difference between intake and discharge of 22.5degreeF in summer, and 28.5degreeF in winter. The permit provides for a maximum of 161.0 million gallons per day for Units 1, 2 and 3, 150.2 million gallons per day for Unit 4, and 172.8 million gallons per day for Unit 5; making a total maximum discharge under the SPDES of 484.0 million gallons per day. While the permit does not limit the number of days of operation, in practice far less water is actually pumped under the permit than could be pumped if the plant operated at 100% average annual capacity.
The SPDES permit, commencing at page 11, contains a list entitled "Additional Requirements". There are fourteen such separate requirements or Conditions. Some do not relate to the cooling water, or merely require specialized bookkeeping; e.g. Condition 5b, which requires that daily water use shall be measured and logged for the outfalls on the condenser cooling, and that temperature of the intake and discharges must be recorded continuously. Condition 8 contains a specific requirement for a report to be submitted for October 1993, "on the economic and engineering possibilities for reducing the quantities of waste heat rejected[sic] to the Hudson River and of condenser cooling water used". This condition also provides that "reduction in the use of cooling ...