The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Plaintiff The Humane Society of the United States, ("Plaintiff" or "HSUS") brings this suit against Defendant HVFG, L.L.C. ("Defendant" or "HVFG") for violations of the Clean Water Act. See 33 U.S.C. § 1365 (2010). HSUS contends that HVFG violated two state-issued Clean Water Act permits, because HVFG discharged pollutants in excess of permitted levels and failed to follow the permits' reporting and monitoring requirements. HVFG claims that it is not liable for any Clean Water Act violations because certain alleged violations are not actionable under the statute, all other violations were resolved in an Order on Consent with the state environmental agency, and that it has otherwise demonstrated that HVFG did not violate the permit requirements. The parties cross-moved for summary judgment. This Court finds that there are sufficient undisputed material facts to show that HVFG committed a number of Clean Water Act violations, but that only some of them are actionable. For the reasons that follow, Plaintiff's motion for summary judgment is DENIED in part and Defendant's motion is GRANTED to the extent that certain alleged violations have been mooted by subsequent state action, as is spelled out below. Plaintiff's motion for summary judgment is otherwise GRANTED. Defendant's motion is DENIED with regard to the reporting and monitoring violations that were not resolved by the state action.*fn1 In light of the prior remedial actions by HVFG, I find the most appropriate remedy here is a nine-month affirmative injunction to ensure HVFG's proper compliance with, and understanding of, its monitoring and reporting requirements pursuant to the Clean Water Act permits, as well the establishment of an environmental benefit project.
The Clean Water Act ("CWA" or "Act") was established "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. It seeks to eliminate the discharge of pollutants into navigable waters, and has an "interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Id. To carry out these goals, the CWA created the National Pollutant Discharge Elimination System ("NPDES"), which provides the Environmental Protection Agency ("EPA") with the authority to issue permits that regulate the discharge of pollutants according to certain specified conditions. See 33 U.S.C. § 1342; see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52-53 (1987). The statute also allows a state to take control of this permit system and administer the NPDES itself, so long as it conforms to federal guidelines and is approved by the EPA Administrator. Id. New York State has established its own permit system, referred to as the State Pollutant Discharge Elimination System ("SPDES," pronounced "spee-dees"), which is operated by the New York State Department of Environmental Conservation ("DEC"). See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir. 2001); N.Y. Envtl. Conserv. Law §§ 17-0105(13); 17-0701; 17-0803. "Generally speaking, the NPDES [and SPDES] requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters." South Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004).
The CWA "formally prohibits the discharge of a pollutant by any person*fn3 from any point source to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System." Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491 (2d Cir. 2005); see also 33 U.S.C. §§ 1311, 1342. A "point source" is "any discernible, confined and discrete conveyance . from which pollutants are or may be discharged," which includes concentrated animal feeding operations or "CAFOs." 33 U.S.C. § 1362(14). "CAFOs are the largest of the nation's 238,000 or so animal feeding operations -- agriculture enterprises where animals are kept and raised in confinement." Waterkeeper Alliance, 399 F.3d at 492 (internal quotations omitted). NPDES permit requirements for CAFOs "apply with respect to all animals in confinement at the operation and all manure, litter, and process wastewater generated by those animals or the production of those animals." 40 C.F.R. § 122.23(a). Any CAFO that "discharges or proposes to discharge" must seek coverage pursuant to a permit. § 122.23(d)(1).
The Act provides essentially two methods of enforcement for this regulatory structure. The EPA or a state agency like the New York DEC may enforce permit requirements through administrative, civil, and criminal sanctions. See 33 U.S.C. § 1319. In addition, "[i]n the absence of federal or state enforcement, private citizens may commence civil actions against any person alleged to be in violation of the conditions of either a federal or state NPDES permit." Gwaltney, 484 U.S. at 53 (internal quotations omitted); see also 33 U.S.C. § 1365(a). Prior to bringing suit, a citizen must first give 60 days' notice "(i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order." § 1365(b). In a successful "citizen suit," a district court may order civil penalties and equitable relief; the citizen who brings suit may also be entitled to expenses and attorney's fees. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 175 (2000); 33 U.S.C. § 1365(a), (d).
HSUS is a non-profit membership organization with over 846,000 members and constituents in New York State and over 11 million members and constituents total. It is a self-described "animal protection organization," whose goals include "protecting the nation's wildlife and wildlands and fostering the humane treatment of all animals." See The Humane Society of the United States, About Us: Overview, http://www.humanesociety.org/about/overview/ (last visited Apr. 18, 2010); Decl. of Dr. John W. Gandy, ¶¶ 1-2. HVFG operates Hudson Valley Foie Gras, a CAFO that raises and slaughters ducks for the production of foie gras.*fn4 HVFG operates two facilities near Ferndale, New York, which include duck-raising facilities, manure storage tanks and pits, and a slaughterhouse facility.*fn5 The facilities are permitted to confine up to 100,000 ducks, and contained approximately 41,000 ducks as of March 13, 2009. As is perhaps obvious, HVFG's operations create a sizeable quantity of waste and by-products. Annually, HVFG generates more than 5,000 tons of manure, 600 tons of litter and bedding, and 5 million gallons of wastewater. The facilities are located near or bordered by the Middle Mongaup River, a perennial stream that flows into the Mongaup River. Wastewater from the slaughterhouse operation is treated and discharged into the Middle Mongaup River through a streambank pipe.
The New York DEC issued two SPDES permits to HVFG that are relevant to this action. SPDES Permit No. NY 023-5393 regulates the discharge of pollutants from HVFG's duck slaughtering operation. See Decl. of Sarah L. Conant in Supp. of Pl's Mot. for Summ. Judgment ("Conant Decl."), Ex B (SPDES Permit No. NY-023-5393) (hereafter "Slaughterhouse SPDES Permit"). The Slaughterhouse SPDES Permit places numerical restrictions on the discharge of certain designated parameters*fn6 that can act as harmful water pollutants, such as temperature, ammonia, settleable solids, phosphorous, chlorine, and fecal coliform.*fn7 In addition, the permit requires certain monitoring activities, reporting requirements, and recordkeeping conditions. The DEC also issued SPDES General Permit No. GP-04-02, which more generally regulates HVFG's CAFO operations at its two facilities. Conant Decl., Ex. K (SPDES General Permit for CAFOs No. GP-04-02) (hereafter "CAFO SPDES Permit"). The CAFO SPDES Permit prohibits any discharge of wastewaters into the surface waters of the State.*fn8 It likewise contains detailed reporting, monitoring, and recordkeeping requirements, and in particular calls for the creation of a "Comprehensive Nutrient Management Plan" or "CNMP" to ensure practices in compliance with the permit.
After it provided a 60-day notice of intent, on September 6, 2006, HSUS filed a complaint against HVFG for violations of its Slaughterhouse SPDES Permit. On December 21, 2006, HSUS sent a second 60-day notice to HVFG, this time with regard to violations of its CAFO SPDES Permit. On February 15, 2007, HVFG entered into an Order on Consent with the DEC. See Conant Decl., Ex. Q (DEC Order on Consent) (hereafter "DEC Order" or "Order"). The DEC Order purported to cover violations of both the Slaughterhouse and CAFO SPDES Permits. It laid out a timetable and directions for HVFG to come into compliance with the permits, required the payment of a $50,000 civil penalty,*fn9 and required that they fund the purchase of an "Environmental Benefits Project" or clean up litter surrounding the Mongaup River. The DEC Order also stated that the DEC conducted an inspection of HVFG facilities on June 20, 2006, and from that date to the date of the Order, "the Department is not aware of any discrepancies from proper operating procedures." DEC Order ¶ 13. On March 6, 2007, HSUS filed an amended complaint, which incorporated alleged violations of both the Slaughterhouse and CAFO SPDES Permits. Defendant moved for early summary judgment on May 7, 2007, which was denied. See Order, Aug. 11, 2009 (Docket No. 50).
Plaintiff now moves for summary judgment on its claims. HSUS argues that there is no material factual dispute that HVFG violated both its Slaughterhouse and CAFO SPDES Permits. Plaintiff claims that Defendant violated its Slaughterhouse SPDES Permit through (1) discharges in excess of the permitted levels for temperature, chlorine, settleable solids, phosphorous, ammonia, and fecal coliform; (2) improper calibration and use of temperature, chlorine, and settleable solid testing equipment; (3) failure to take discharge reporting samples at proper locations; (4) failure to properly record the time, location, and chain of custody for discharge reporting samples; (5) failure to correctly report temperature on certain dates; and (6) failure to show a basis for certain chlorine sample reports. Plaintiff claims the Defendant violated its CAFO SPDES Permit through (1) impermissible discharges of pollutants in 2005 and 2006; (2) failure to properly complete and maintain a Comprehensive Nutrient Management Plan; and (3) improper storage of waste in a lagoon and storage tanks not constructed or certified by an engineering professional.*fn10 HVFG opposes HSUS's motion and cross-moved for summary judgment, on the grounds that there is no liability for violations of either permit because (1) the DEC Order precluded or mooted all of Plaintiff's claims; (2) the alleged reporting and recordkeeping violations and any alleged violations of the CAFO SPDES Permit are not actionable Clean Water Act violations; and (3) to the extent they are actionable violations, undisputed material facts demonstrate that they did not violate these requirements. Oral argument on these motions was held on March 23, 2010. The following week at a conference in chambers, this Court discussed and advised both parties of its tentative findings as well as certain proposed remedies. Finally, the parties each submitted letter briefs that addressed the Court's suggested relief of an injunction and equitable environmental remedial measures.
Summary judgment is warranted if the moving party shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Cordiano v. Metacon Gun Club, Inc. 575 F.3d 199, 204 (2d Cir. 2009); see also Fed.R.Civ.P. 56(c). A material fact is one that will affect the outcome of the suit, and a dispute about a material fact occurs where there is sufficient evidence for a reasonable fact finder to return a verdict for the nonmoving party. See, e.g., Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). Evidence must be viewed in a light most favorable to the non-moving party, and all inferences must be drawn in their favor. See Cordiano, 575 F.3d at 204. A party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but.must set forth specific facts showing that there is a genuine issue for trial." Sista, 445 F.3d at 169; Fed.R.Civ.P. 56(e).
1. Constitutional/Associational Standing
Plaintiff must satisfy the case-or-controversy requirement of the Constitution to have standing to bring a lawsuit. See U.S. CONST. art. III, § 2. "[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Laidlaw, 528 U.S. at 180-181 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). For an association to have standing, it must show that (1) its members would otherwise individually have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim nor the relief requires participation of individual members. See id.; Bldg. & Constr. Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 144 (2d Cir. 2006).
HSUS has provided more than sufficient facts to demonstrate that it has constitutional standing to bring this suit. See Laidlaw, 528 U.S. at 183; see also Downtown Dev., 448 F.3d at 146. Defendant suggests that this suit is not sufficiently germane to HSUS's organizational purpose. While it is certainly true that HSUS is, in its own words, an "animal protection organization," this does not mean it cannot bring a Clean Water Act suit. The Second Circuit determined in Downtown Development that "germaneness" is a fairly modest test, and need only show that it would "reasonably tend to further the general interests that individual members sought to vindicate in joining the association and whether the lawsuit bears a reasonable connection to the association's knowledge and experience." 448 F.3d at 149. Plaintiff here passes that test.
HSUS must also satisfy a number of statutory requirements under the Clean Water Act in order to properly bring suit against HVFG. A party may bring a citizen suit under the CWA when it (1) provides 60 days' notice to the alleged violator, the EPA, and the state; (2) has alleged a continuing violation of the Act; and (3) has not been precluded by EPA or state action. See Laidlaw, 528 U.S. at 174-75; 33 U.S.C. §§ 1365, 1319. HVFG essentially claims that HSUS has failed to satisfy any of these elements. To the contrary, HSUS has shown more than enough evidence to demonstrate that it meets these requirements.
The CWA states that no citizen suit may commence "prior to sixty days after the plaintiff has given notice of the alleged violation." 33 U.S.C. § 1365(b)(1)(A). The purpose of the notice provision is to give a violator the opportunity to come into compliance, and/or for the state or EPA to bring its own enforcement action, and thus render the citizen suit unnecessary. See Gwaltney, 484 U.S. at 60; Trout Unlimited, 274 F.3d at 488. According to the Second Circuit,thenotice must list "each separate pollutant that will be alleged in a subsequent complaint as the basis of a violation of the Act." Trout Unlimited, 273 F.3d at 487 (adopting rule from Pub. Interest Research Group v. Hercules, 50 F.3d 1239, 1248 (3d Cir. 1995)); see also 40 C.F.R. § 135.3(a) (stating that the notice "shall include sufficient information to permit the recipient to identify" the components of an alleged violation). In this case, HSUS provided appropriate and sufficient notice prior to filing suit. Both notice letters were submitted to the proper parties, and both detail each of the pollutants alleged to be the basis of the violations.*fn11 "Once the discharge violation is noticed, any subsequently discovered monitoring, reporting or recordkeeping violation that is directly related to the discharge violation may be included in the citizen suit." Hercules, 50 F.3d at 1248. HVFG was given sufficient notice of the violations of both permits to investigate the merits of the claims, determine the scope of the problem, and come into compliance.
As noted, a citizen suit cannot proceed if it has been precluded by an EPA or state enforcement action. The CWA bars a citizen from filing suit where "the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State." 33 U.S.C. § 1365(b)(1)(B); see Laidlaw, 528 U.S. at 175. This bar does not apply here, however, because the DEC Order was a purely administrative action and did not involve any judicial proceeding.*fn12 See Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir. 1985); City of Newburgh v. Sarna, No. 09 Civ. 5117(CM), 2010 WL 572118, at *15 (S.D.N.Y. Feb. 5, 2010) (citing Consol. Rail). The Act also prohibits any action for an award of civil penalties where "the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed." 33 U.S.C. § 1319(g)(6)(A)(iii). This section does not apply where a citizen has filed suit "prior to commencement of an action under this subsection" or where the citizen has given the required 60-day notice prior to the commencement of a state action and files suit within 120 days of the notice. See § 1319(g)(6)(B). Here, HSUS provided notice of the Slaughterhouse SPDES Permit violations on June 6, 2006 and filed suit on September 6, 2006, well before any agreement was reached between the DEC and HVFG. As such, these claims cannot be barred by the later-produced DEC Order. See id. ...