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STATEN ISLAND CITIZENS FOR CLEAN AIR, LTD. v. CITY

October 9, 1997

STATEN ISLAND CITIZENS FOR CLEAN AIR, LTD., Plaintiff, against THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: NICKERSON

 NICKERSON, District Judge:

 Plaintiff Staten Island Citizens for Clean Air, Ltd. (Staten Island Citizens) brought this citizen's suit against the City of New York (The City) pursuant to section 505 of the Clean Water Act, 33 U.S.C. § 1365, and section 7002 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a), seeking a declaratory judgment, injunctive relief, civil penalties and an award of costs and fees for the illegal discharge of pollutants from an inactive open dump called the Richmond Truckfill.

 The Richmond Truckfill is a City-owned garbage dump which operated from 1951 through 1966. Because it is an older landfill, the Truckfill has no liner or other leachate containment or collection system. The dump site is bordered on the south by Richmond Creek. Surface water from Richmond Creek flows to the Arthur Kill, a waterway on the western shore of Staten Island, which drains into Raritan Bay.

 Staten Island Citizens is a not-for-profit organization dedicated to the protection of the natural resources of Staten Island. Its members live near the Richmond Truckfill, and many use the waters surrounding Staten Island for recreational purposes.

 The plaintiffs allege that leachate from the dump discharges into Richmond Creek, polluting the water. Leachate is "liquid that has passed through or emerged from solid waste and contains soluble, suspended or miscible materials removed from such waste." 40 C.F.R. § 257.2.

 Staten Island Citizens have sued for civil penalties and for an injunction preventing further discharge. They have moved for summary judgment, seeking a declaration that the defendant has violated the Clean Water Act and the Resource Conservation and Recovery Act. The defendant, in turn, has asked for summary judgment dismissing the plaintiffs' claims.

 I

 To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Uncertainty regarding the truth of any alleged material fact will defeat a summary judgment motion. U.S. v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982).

 II

 The Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants into navigable waters unless the discharge is made in compliance with certain other provisions of the act. That section prohibits, among other things, discharges which are not authorized by, or are in violation of the terms of a permit issued pursuant to 33 U.S.C. § 1342. Citizens have standing to enforce the provisions of this act under 33 U.S.C. § 1365(a). The plaintiffs allege that the City has not obtained a permit for the Richmond Truckfill Site, and that the site is discharging leachate into Richmond Creek, in violation of the Act.

 The City moves for summary judgment, arguing that the plaintiffs have not proved that the Truckfill Site is currently discharging leachate into the nearby waters, and thus have showed that this Court has jurisdiction. The Clean Water Act does not confer citizen's suit jurisdiction for past acts of pollution. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987). But the plaintiffs have made a good-faith allegation that the defendant's violations continue today. That is all that is required of them at this stage. They will need to prove their case at trial. 108 S. Ct. at 385.

 The plaintiffs move for summary judgment, asking that the defendants be declared to have violated the Clean Water Act. As evidence of its claims, the plaintiffs have introduced the report of an expert. His conclusion, based upon his site inspection and his experience as an engineer, is that leachate containing pollutants is being discharged from the site of the Truckfill through discernible, identifiable channels into Richmond Creek. For its part, the defendant has introduced the affidavit of its expert, who observed no discharges from the Truckfill. He concludes that there is no evidence that the site is discharging leachate into the nearby waters. ...


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