THOMAS J. MCAVOY
Chief U.S. District Judge
MEMORANDUM, DECISION & ORDER
The defendant, Karg Bros., operates a tannery in Johnstown, New York. The facility discharges wastewater to the Gloversville Johnstown Joint Wastewater Treatment Facility, a publicly owned water treatment plant. These discharges are regulated by both a wastewater discharge permit issued by the sewage plant, and by federal categorical pretreatment standards set forth at 40 CFR 425.15.
The parties to this action came before the court on May 22, 1992 both making a motion for summary judgment in their favor. The court ruled that the plaintiffs' motion for summary judgment be denied in its entirety and that the defendant's motion for summary judgment be granted in part and denied in part in an order entered on July 19, 1993. The court granted partial summary judgment in favor of the defendant based on the plaintiffs' lack of standing to sue for the alleged exceedences of chromium, hexavalent chromium, lead, phenolics, nickel, copper, zinc, and sulfide between January 1, 1989 and December 31, 1991. Summary judgment was also granted in favor of the defendant in regard to all other alleged exceedences of lead, copper, zinc, and hexavalent chromium. Because the court found that material questions of fact still existed surrounding the remaining alleged exceedences, summary judgment was denied in all other respects. The exceedences that remained in question included all pH exceedences mentioned in the complaint and Notice of Intent to Sue and those alleged exceedences of phenolics, chromium, and sulfide mentioned in the complaint and the Notice of Intent to Sue, which did not occur between January 1, 1989 and December 31, 1991.
The plaintiffs have since moved for reconsideration of the court's July 19, 1993 order pursuant to Fed.R.Civ.P. 59(e) and Northern District of New York Local Rule 10(m). The plaintiffs cite this court's favorable ruling on reconsideration motions made in the similar cases of Atlantic States Legal Foundation v. Colonial Tanning Corp. 90-CV-896 and Atlantic States Legal Foundation v. Twin City Leather Corp., 90-CV-801 as grounds to do the same in this case. The plaintiffs assert that, contrary to the court's holding, they do have standing to maintain this suit, as was found upon reconsideration of the other cases. Furthermore, the plaintiffs seek summary judgment in their favor regarding the 41 alleged violations that were the subject of their original motion for partial summary judgment. They also assert that, contrary to the court's July 19, 1993 order, their claims with respect to the defendant's violations of its wastewater discharge permit for copper and lead are not moot. The defendant has opposed reconsideration.
A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F. Supp. 97, 114 (D. Conn. 1992). It is in light of this standard that the court undertakes reconsideration of its July 19, 1993 order in this case.
A. The Court's Prior Decision
In considering the standing issue, the court recognized that at a constitutional minimum, to establish standing a plaintiff must (a) claim to have suffered an injury in fact, (b) which is fairly traceable to the defendants' allegedly illegal conduct, and (c) is likely to be redressed by a favorable outcome. Transcript of Oral Decision 5/22/92 at 3 [hereinafter Transcript]. After considering the allegations in the complaint and the evidence presented, relying on Friends of the Earth v. Consolidated Rail Corporation, 768 F.2d 57 (2d Cir. 1985), the court found that the plaintiffs satisfied the "injury in fact" element. Transcript at 4. However, as to the "fairly traceable" element the court found that the plaintiffs had failed.
As to that second element, the court explained that "the question is not whether the defendants' exceedences caused the facility to violate its effluent standards, but rather whether the defendants' pollution reached the Cayudetta Creek in excess of the legal limits." Id. at 7. Continuing with its decision, the court stated that "whether the facility exceeded its limitations is a material fact which is dispositive of the issue of whether the pollutants reached the creek in unlawful amounts." Id. Because defendants had come forward with uncontradicted evidence that the facility had not exceeded its limitations as to sulfides and chromium, the court found that the plaintiffs' injury was not fairly traceable to the defendants' alleged violations of those parameters. As to the remaining violations, the court found that summary judgment was not proper because there were questions of fact remaining.
Now, after reconsidering its prior analysis in the context of the relevant statutory scheme, and with a better understanding of the interrelationship between the limitations imposed on indirect dischargers and publicly owned treatment works, the court believes that its earlier ruling was in error. For the reasons expressed herein, the court now finds that plaintiffs have met the second element of the standing analysis.
B. Reconsideration of Standing
In 1972 Congress established a comprehensive statutory and regulatory scheme, known as the Clean Water Act, in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). As part of this scheme, limitations were imposed on the type and amount of certain pollutants which may be discharged into the Nation's navigable waters. However, in 1977 Congress recognized that the "Act's regulatory mechanism for the control of toxins had failed. . . ." Natural Resources Defense Council v. U.S. Environmental Protection Agency, 790 F.2d 289, 292 (3d Cir. 1986). Consequently, the Act was amended that year to address the regulatory deficiencies.
The 1977 Amendments required that sources discharging waste into publicly owned treatment works (POTW) pretreat their waste. Section 307(b)(1) of the Act, 33 U.S.C. § 1317, directs the Administrator of the EPA to establish categorical pretreatment standards for the introduction of pollutants into POTWs. This illustrates Congressional recognition of the fact "that the pollutants which some indirect dischargers release into POTWs could interfere with the operation of the POTWs, or could pass through the POTWs without adequate treatment." National Association of Metal Finishers v. Environmental Protection Agency, 719 F.2d 624, 633 (3d Cir. 1983), rev'd on other grounds sub nom, Chemical Mfrs. Ass'n. v. N.R.D.C., Inc., 470 U.S. 116, 84 L. Ed. 2d 90, 105 S. Ct. 1102 (1985). Implicit in the establishment of categorical pretreatment standards for indirect dischargers was a recognition of the fact that both the indirect source and the POTW are independent polluters.
With the advent of the 1977 Amendments each polluter must separately comply with its own pollution limitations.
As explained by the court in International Union, U.A.W., when formulating these categorical pretreatment standards,
"[the] EPA compared the percentage of each regulated pollutant that a POTW can remove from the wastestream with the percentage that a direct discharger using the best available technology can remove. [46 F.R.] at 9407, 9415 [(1981)]. Where POTWs were found to be less efficient than direct dischargers at removing a regulated pollutant, EPA calculated the maximum concentration of that pollutant (i.e. the categorical standard) that can be present in an indirect discharger's wastewater without preventing attainment of the mandated parity in removals." 740 F. Supp. at 1081.