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Borough of Upper Saddle River v. Rockland County Sewer Dist. #1

United States District Court, S.D. New York

March 31, 2014

BOROUGH OF UPPER SADDLE RIVER, NEW JERSEY, KAREN MILLER, ROY OSTROM, MARIA FLORIO, MARK RUFFOLO, and LINDA MACDONALD, Plaintiffs,
v.
ROCKLAND COUNTY SEWER DISTRICT #1, Defendant

As Corrected April 22, 2014.

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For the Plaintiffs: Michael Kennedy Burke, LEAD ATTORNEY, Burke, Miele & Golden, LLP, Suffern, NY.

For Rockland County Sewer District #1, Defendant: Thomas R. Gonnella, Pannone Lopes Devereaux & West LLC, Providence, RI; Peter Adelman, The Law Offices of Peter Adelman, Brooklyn, NY.

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CORRECTED OPINION AND ORDER

Edgardo Ramos, U.S.D.J.

This is a citizens' suit brought by the Borough of Upper Saddle River, New Jersey (" Upper Saddle River" ), Karen Miller (" Miller" ), Roy Ostrom (" Ostrom" ), Maria Florio (" Florio" ), Mark Ruffolo (" Ruffolo" ), and Linda MacDonald (" MacDonald" ) (collectively, the " Plaintiffs" ) under the Federal Water Pollution Control Act, 33 U.S.C. § § 1251-1376 (2006) (the " Clean Water Act" or " Act" ) and state common law, alleging that, in the course of operating a sewage treatment facility, Rockland County Sewer District # 1 (the " Sewer District" or " Defendant" ) has polluted--and will likely continue to pollute--the Saddle River. Second Am. Compl. (" SAC" ) ¶ ¶ 1, 9-13, 41, Doc. 64. Plaintiffs bring four causes of action: continuing violations under section 301 of the Clean Water Act (First Claim); and private nuisance, public nuisance and trespass claims under state common law (Second, Third and Fourth Claims, respectively).[1] Id. ¶ ¶ 37-53.

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Plaintiffs seek civil penalties, injunctive and declaratory relief and assert that, in the absence of judicial intervention, the " degradation of the Saddle River will destroy [Upper Saddle River]'s quiet beauty, its bucolic serenity and its healthy, quiet, placid character." Id. ¶ 11.

Pending before the Court are the parties' cross-motions for summary judgment on all claims, pursuant to Federal Rule of Civil Procedure 56. Docs. 102, 106. For the reasons set forth below, both motions are GRANTED in part and DENIED in part.

I. Background

A. Statutory Framework

The stated mission of the Clean Water Act is to " restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Consistent with this goal, section 301 of the Act generally prohibits the discharge of any pollutant[2] from a " point source" [3] into navigable waters of the United States. Id. § § 1311, 1362(6), (7), (12). However, the Act's pollution prohibition is " tempered ... by a self-referential host of exceptions that allow the discharge of many pollutants once a polluter has complied with the [Act's] regulatory program." Atl. States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir. 1993). Of particular relevance here, section 402 of the Act establishes a discharge permit program called the National Pollutant Discharge Elimination System (" NPDES" ), 33 U.S.C. § 1342, which enables the Environmental Protection Agency (" EPA" ) to issue permits authorizing the discharge of pollutants into waterways in accordance with certain specified conditions. Id. § § 1319, 1342(b)(7). The Act also allows the states to implement NPDES through their own permit programs as long as such programs conform to federally approved guidelines. Id. § § 1342(b), (c)(1). In New York, the Department of Environmental Conservation (" DEC" ) is responsible for issuing these permits under the State Pollutant Discharge Elimination System (" SPDES" ). See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir. 2001), adhered to on reconsideration, 451 F.3d 77 (2d Cir. 2006).

The Clean Water Act deems compliance with an SPDES permit to be compliance for enforcement purposes, 33 U.S.C. § 1342, and conversely, noncompliance with a permit violates the Act itself and constitutes grounds for liability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also 40 C.F.R. § 122.41(a) (requiring that the permittee comply " with all conditions of this permit ... [a]ny permit noncompliance constitutes a violation of the Clean Water Act" (emphasis added)); Humane Soc. of U.S. v. HVFG, LLC, No. 06 Civ. 6829 (HB),

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2010 WL 1837785, at *11 (S.D.N.Y. May 17, 2010) (finding liability for failure to satisfy reporting requirements of SPDES permit).

The Act creates two avenues for enforcement of permit violations: actions brought by the government and citizen suits. See, e.g., HVFG, 2010 WL 1837785, at *2. The EPA or the DEC may enforce the Act's permit requirements through administrative, civil, and criminal sanctions. 33 U.S.C. § 1319. In the absence of such governmental enforcement, the Act allows " citizens" to bring civil enforcement actions seeking penalties or equitable relief " against any person alleged to be in violation of the conditions of either a federal or state NPDES permit." 33 U.S.C. § 1365(a); see also id. § § 1342(b) and 1365(f); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

The Act defines a " citizen" as " a person or persons having an interest which is or may be adversely affected." 33 U.S.C. § 1365(g). However, in recognition of the " obvious danger that unlimited public actions might disrupt the implementation of the Act and overburden the courts," Congress placed certain limits on the scope of citizen suits. Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir. 1985) (citation omitted). Before filing suit, a citizen must provide 60 days' notice to: (i) the EPA Administrator; (ii) the State in which the alleged violation occurs; and (iii) any alleged violator. 33 U.S.C. § 1365(b)(1)(A). The purpose of the notice provision " is to give [the alleged violator] an opportunity to bring itself into complete compliance with the [Act] and thus ... render unnecessary a citizen suit." Gwaltney, 484 U.S. at 60. If neither the EPA nor DEC commences an action within that sixty-day notice period, the citizens may bring a suit in District Court seeking civil penalties and/or equitable relief. Atl. States Legal Found. v. Eastman Kodak, 933 F.2d 124, 127 (2d Cir. 1991); HVFG, 2010 WL 1837785, at *2. A prevailing citizen-plaintiff may also be entitled to expenses and attorney's fees. 33 U.S.C. § 1365(d); Laidlaw, 528 U.S. at 175.

Citizen suits " play an important role in the Act's enforcement scheme," as " [t]he citizen suit provisions were designed not only to 'motivate government agencies' to take action ... but also to make citizens partners in the enforcement of the Act's provisions." Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 343 (S.D.N.Y. 2009) (quoting Weiler v. Chatham Forest Prods., 392 F.3d 532, 536 (2d Cir. 2004) (quoting Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir. 1988))). Congress clearly indicated that citizen groups are not to be treated as pariahs, " but rather as welcomed participants in the vindication of environmental interests." Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976). However, because citizen-suits are " meant to supplement rather than to supplant" government enforcement actions, the relief available through a citizen-suit may be limited unless the plaintiffs can show that their suit arises from " ongoing" violations of the Act that have not been diligently prosecuted by the government. 33 U.S.C. § 1319(g)(6); Gwaltney, 484 U.S. at 60.

B. Factual Background[4]

Unless otherwise noted, the following facts, taken from the parties' Local Rule

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56.1 statements and documents filed in support thereof, are undisputed.[5]

i. The Parties

The Saddle River flows through Rockland County, New York, and south into Plaintiff Upper Saddle River, a municipality in northern New Jersey. Pls.' Am. 56.1 Stmt. ¶ ¶ 1-2; see also Gonnella Decl. Ex. 8 (map), Doc. 105-11. Plaintiffs Miller, Ostrom, Florio, Ruffolo, and MacDonald (together, " Individual Plaintiffs" ) reside in Upper Saddle River near the Saddle River and its tributaries. Pls.' Am. 56.1 Stmt. ¶ ¶ 3-8. Part of Upper Saddle River's northern boundary abuts a sanitary sewer system (the " System" ) operated by Defendant Sewer District. Id. ¶ 2; Def.'s Opening Br. 3.

Defendant's System processes sanitary sewage " for residential, municipal and industrial users throughout much of Rockland County," and its service area covers approximately 73 square miles. Pls.' Am. 56.1 Stmt. ¶ ¶ 9-10; Gonnella Decl. Ex. 3 (hereinafter " Engineering Report" ), Docs. 105-3 to 105-6. The System collects sanitary sewage then conveys it to Defendant's

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wastewater treatment plant in Orangeburg, New York, which treats and discharges the sewage water into the Hudson River. Engineering Report at 1-2. As of January 2008, Defendant estimated that its wastewater treatment plant processed 28.9 million gallons of wastewater per day. Id. In addition to the Orangeburg plant, Defendant operates more than 17,000 manholes and more than twenty pump stations throughout its service area. Engineering Report Sec. C, 6-6; id. at Figure 1-4: RCSD Pump Stations.

Dianne Philipps is the Executive Director of the Sewer District. Philipps Aff. ¶ 1, Doc. 104. She has been employed by the Sewer District since 1989 and became Executive Director in approximately March 2004. Pls.' Ex. U (Philipps Dep. 9:5 - 9:24). From January 1998 to at least January 2011, Eugene Yetter served as the Sewer District's Director of Plant Operations. Pls.' Ex. V (Yetter Dep. 8:8 - 8:19). Mr. Yetter primarily worked at Defendant's waste water treatment plant in Orangeburg. Id. (9:3 - 9:5, 74:16 - 74:18). Ms. Philipps was Mr. Yetter's boss. Id. (10:11 - 10:13). Mr. Yetter no longer works for Defendant. Def.'s Resp. Pls.' 56.1 Stmt. ¶ 221, Doc. 121.

ii. Defendant's SPDES Permit

A permit issued by the DEC governs Defendant's operation of the System. See Pls.' Am. 56.1 Stmt. ¶ ¶ 10-11.[6] While Defendant's SPDES Permit enables it to discharge wastewater, it restricts the allowable location, concentration and volume of discharge. 1999-2008 Permit; 2008-2013 Permit. Defendant's SPDES Permit only authorizes the discharge of wastewater from one location--the wastewater treatment plant in Orangeburg--and only into one waterway: the Hudson River (and its tributary, Sparkill Creek). 2008-2013 Permit at 4; 1999-2008 Permit; see also Engineering Report at Sec. 1.3. The SPDES Permit does not allow Defendant to discharge sewage from sites outside of the treatment plant, such as pump stations or manholes, or into other waterways. Pls.' Am. 56.1 Stmt. ¶ ¶ 35, 233; Pls.' Ex. U (Philipps Dep. 177:3 - 177:6, 182:3-183:23).

Defendant's SPDES Permit details effluent limitations and monitoring requirements for parameters including, but not limited to, pH, temperature, volume of suspended and settleable solids, fecal coliform, total residual chlorine (" TRC" ), biochemical oxygen demand (" BOD" ), and carbonaceous biochemical oxygen demand (" CBOD" ).[7] (" Permit Limits, Levels, and

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Monitoring Definitions" in the 2008-2013 Permit; " Final Effluent Limitations and Monitoring Requirements" in the 1999-2008 Permit). The permit expressly prohibits Defendant from discharging water that contains the listed parameters " at levels which may cause or contribute to a violation of water quality standards." 2008-2013 Permit at 2.

Defendant's SPDES Permit also imposes monitoring, reporting and recordkeeping obligations, including a requirement that Defendant must orally report any noncompliance with the terms of the SPDES Permit " which may endanger health or the environment" within 24 hours, and submit a written noncompliance report detailing the cause, duration and description of the noncompliance within five days. 1999-2008 Permit; 2008-2013 Permit. The 2008-2013 SPDES Permit lists Ms. Philipps as the " Responsible Agent or Official" for Defendant's discharge monitoring reports, whereas the 1999-2008 SPDES Permit names Ronald Delo, her predecessor. Id.; see also Pls.' Ex. U (Philipps Dep. 9:18 - 9:19).

iii. Sanitary Sewage Spills

Sanitary sewage overflows (" SSOs" ) are sewage spills into the surrounding environment from points not authorized by a discharge permit. Engineering Report at 3. According to Defendant, " [l]ike all separate sanitary sewer systems," its System " suffers from a certain amount of intrusion of unwanted water from sources such as groundwater, surface water entering through manhole cover vents, illegally connected roof leaders ... sump pumps, and storm drains." Def.'s Opening Br. 4 (citing Engineering Report at 1-6 - 1-8). One potential effect of this " extraneous flow" is that it can overload the System's processing capacity and cause SSOs.

Plaintiffs primarily complain of SSOs related to the Saddle River Pump Station, which is located on the New York side of the New York-New Jersey border. Engineering Report Sec. C, 6-6; id. at Figure 1-4: RCSD Pump Stations. The Saddle River Valley Swim and Tennis Club (the " Swim Club" ) is next to the Saddle River Pump Station on Saddle River Road, in New York. Pls.' Am. 56.1 Stmt. ¶ ¶ 28, 54. Plaintiffs Florio and Ruffolo are members of the Swim Club. Id. ¶ ¶ 88, 98. Plaintiff Ostrom lives in New Jersey, across the border from the Saddle River Pump Station, downstream from the Swim Club. Id. ¶ 78; Gonnella Decl. Ex. 8 (map). Ms. Philipps testified that the water flow near the New York-New Jersey border is such that the flow heads to New Jersey by means of gravity and is then pumped back toward New York by pumping stations. Pls.' Am. 56.1 Stmt. ¶ 122. Ms. Philipps testified that the Saddle River Pump Station is " problematic" in that it is a " high head" station, which means that its pumps " take more of a beating" due to vibration from high head conditions, and thus have to be replaced more frequently.[8] Pls.' Ex. U (Philipps Dep. 20:9 - 22:23); Def.'s Resp. Pls.' 56.1 Stmt. ¶ ¶ 129-30. Ms. Philipps

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testified Defendant has had more mechanical failures at the Saddle River Pump Station relative to other stations as a result of its high head design. Id. at 77:3 - 77:20. She further testified that, as of her January 2011 deposition, Defendant had not made any design changes " to correct the high head situation," and that a new pump station, which she estimated would cost six million dollars, would be required to fix the problem. Id. at 77:16 - 77:25; 78:1 - 78:2. Plaintiffs also complain about SSOs from the Twin Lakes Pump Station, which Ms. Philipps testified has the same design as the Saddle River Pump Station. Id. at 78:13 - 79:2.

Plaintiffs claim that they have personally witnessed sewage spills in their community and have submitted photographs of several sewage spills at the Swim Club in support of their motion. Pls.' Exs. QQ-SS; Pls.' Am. 56.1 Stmt. ¶ ¶ 67, 90. Plaintiff Florio testified that, one " perfectly fine day, not during a rainstorm and not after a rainstorm," she witnessed a fountain of sewage flow out of a manhole near the Swim Club. Pls.' Am. 56.1 Stmt. ¶ ¶ 90-92. Thereafter, she testified that she witnessed sewage rush down the Swim Club's driveway, and cover its lawn with " pieces of toilet paper, used, bloated, tampons, [and] paper." Id. ¶ ¶ 92-93. Plaintiff Ruffolo testified that athletic fields in Lions Park, which is adjacent to the Saddle River, " smell like sewer." Id. ¶ ¶ 102-103. Mr. Ruffolo also claims to have observed what " looked to be like toilet paper" in the Saddle River. Id. ¶ 105. Plaintiff Ostrom claims that he has witnessed " squished up toilet paper" and excrement in the portion of the Saddle River behind his backyard. Id. ¶ 77. Plaintiff Ostrom claims that he and his wife have not used their backyard in the past fifteen years, and do not cook outdoors, due to odors of sewage emanating from the river. Id. ¶ 80. As part of a volunteer " River Assessment Team," Plaintiff Miller claims to have taken water samples from the Saddle River that test positive for fecal coliform bacteria. Id. ¶ ¶ 68-70.[9]

Based upon Defendant's own spill reports, sworn testimony and their expert's reports, Plaintiffs assert that since November 8, 2001, Defendant has caused 135 SSOs, impacting a wide range of locations from the Saddle, Mahwah and Hackensack Rivers to the Swim Club lawn. Pls.' Opening Br. 1, 12-17, 24 (citing Pls.' Exs. GGG, III). While Plaintiffs acknowledge that Defendant and the DEC entered consent orders in 2006 and 2012 with respect to some of these violations, they seek to hold Defendant liable for sewage spills discharged into the Saddle River that were not covered by those consent orders.[10] Pls.' Opening Br. 18; Pls.' Opp. Br. 15.

iv. The 2006 Consent Order

On February 22, 2006, the DEC sent a letter to Ms. Philipps explaining that Defendant had violated the terms of its SPDES Permit and enclosing a copy of a proposed, unsigned consent order. Def.'s Resp. Pls.' 56.1 Stmt. ¶ ¶ 144-145. The unsigned consent order identified forty

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dates on which " [SSO] events discharging untreated raw sewage and stormwater to waters of the State" occurred, during the time period from January 2, 2003 to December 16, 2005. Pls.' Ex. JJ (the " February 22, 2006 Letter" ). At her deposition, Ms. Philipps testified that Defendant reviewed and modified certain terms of the consent order attached to the February 22, 2006 Letter. Pls.' Ex. U (Philipps Dep. 356:1 - 374:5); Def.'s Resp. Pls.' 56.1 Stmt. ¶ ¶ 146-47. In particular, Ms. Philipps testified that the Sewer District rejected a clause proposed by the DEC that would have required the Sewer District to immediately " cease and desist from any and all future violations" because the Sewer District would not be able to comply with such a provision. Pls.' Ex. U (Philipps Dep. 359:16 - 361:6); Def.'s Resp. Pls.' 56.1 Stmt. ¶ 147.

On May 10, 2006, Defendant formally executed a consent order with the DEC. Gonnella Decl. Ex. 2 (the " 2006 Consent Order" ), Doc. 105-2. The 2006 Consent Order provides:

Between January 2, 2003 and December 16, 2005, the [DEC] documented violations by Rockland County Sewer District #1 ... at multiple [of its] sewer collection system sites, which are located at multiple Town and Street locations...[s]pecifically: [Defendant] violated [New York Environmental Conservation Law] section 17-0803, which makes it unlawful to discharge pollutants to the waters of the state from any outlet source in a manner other than as prescribed by SPDES permit, when Respondent's sewer collection system experienced multiple sanitary sewer overflow ... events discharging untreated raw sewage and stormwater to the waters of the State. These violations are set forth in Appendix A to this Order, which is hereby incorporated into this Order in its entirety and shall be fully enforceable as part of this Order.
... [Defendant] consents to the entering and issuing of this Order, and agrees to be bound by the terms and conditions of this Order, including the attached Compliance Schedule.

2006 Consent Order at 1. " Appendix A" identifies sixty-seven overflows on forty dates, three of which occurred at or near the Saddle River Pump Station: (1) an SSO of 400 gallons, at Manhole 10172, on August 14, 2003 that occurred after a power outage (A-2); (2) an SSO of 8,500 gallons, from Manholes 10172, 10174, and 10434, on April 4, 2005 (cause unknown) (A-5); and (3) an SSO of 10,000 gallons at the Saddle River Pump Station on November 30, 2005, after an " uninterruptible power supply" failure (A-6). Id. at Appendix A.

In total, the DEC imposed civil penalties of $20,000 on Defendant--$10,000 of which was to be paid immediately, and $10,000 suspended subject to Defendant's compliance with the Order. Id. at 1. Importantly, the executed Order did not include the " cease and desist" provision that the DEC had proposed in February 2006. The 2006 Consent Order's " Compliance Schedule" required Defendant to " certify completion of the work required under this schedule[] to the [DEC] within five (5) days of its completion." Id. at 2. Additionally, the Order required Defendant to: (1) " [i]mmediately ... continue to report" any SSOs to the DEC, as required by its SPDES Permit; (2) submit a Dry Weather SSO Abatement Report to the DEC by December 29, 2006; and (3) submit an Engineering Report to the DEC by July 2, 2007. Id. at 4.

o DEC required that the Dry Weather Abatement SSO Abatement Report include: (1) " [a] description of [Defendant's] SSO abatement program

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for the Dry Weather SSO Events[11] at the locations listed in Appendix A" and (2) a description of Defendant's Operation and Maintenance Program with recommended improvements to help reduce dry weather SSOs. Id.
o The Engineering Report was to address " all wet and dry weather SSOs listed in Appendix A," and include: (1) an evaluation of flow data for the collection system, including collection system capacities, interceptors and pumping stations; (2) a description of the SSO abatement program for " the locations listed in Appendix A" ; (3) proposed design upgrades for the SSO abatement program; and (4) a final design and implementation schedule " with specific tasks, durations and milestone dates." Id. at 4-5. The deadlines for the two reports are the only concrete deadlines set forth in the Order.

However, it provided that, once approved by the DEC, the implementation schedules proposed in Defendant's reports would become enforceable parts of the 2006 Consent Order. Id. at 5.

v. Compliance with the 2006 Consent Order

On December 29, 2006, Defendant submitted its initial Dry Weather Abatement Report to the DEC. Gonnella Decl. Ex. 4 (hereinafter " Dry Weather Report" ), Doc. 105-7. The Report concluded that Defendant experienced 25 dry weather SSO events between 2003 and 2005, primarily caused by " blockages or mechanical failures." See id. at 5-6 and Appendix A. The Report chiefly attributed the blockages to grease buildup, and identified operator error, equipment failure, and vandalism as additional causes of SSOs. Id. at 5-7. The Report also recommended equipment upgrades, a preventative flushing program, repairs to the collection system, and an educational outreach program for food service professionals on the perils posed by grease to the sewage system. Id. at 8-11.

On July 2, 2007, Defendant submitted its initial Engineering Report to the DEC. Gonnella Decl. Ex. 3 (Letter from D. Philipps to DEC dated January 16, 2008 (hereinafter " Jan. 16, 2008 Letter" ) at 1), Doc. 105-3. The Engineering Report concluded that " wet weather inflow" was the major cause of the SSOs identified in the 2006 Consent Order. Id. To resolve this problem, the Engineering Report proposed that Defendant locate and eliminate wet weather inflow sources (" leaky manholes, illegal roof leader connections, cross-connections with storm sewers" ). Id.

On September 18, 2007, the DEC sent Defendant a letter critiquing the Engineering Report, particularly the inadequacy of its proposed schedule for completion, which did not require Defendant to begin eliminating inflow sources until January 2009. Pls.' Ex. WW at RSHC00008136. The DEC also directed Defendant to revise its report to include an evaluation of the Saddle River Pump Station, which " should have been part of this Engineering Report" because " [s]anitary sewer overflows from this pump station have resulted in a lawsuit from a bordering community

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in NJ." [12] Jan. 16, 2008 Letter at 6. A letter from the DEC dated November 20, 2007 submitted additional remarks to Defendant and indicated that the DEC would not be approving the Report at that time. Gonnella Decl. Ex. 5 (" Nov. 20, 2007 Letter" ), Doc. 105-8.[13]

Defendant issued a revised Engineering Report in January 2008.[14] The January 2008 Report proposed a more expedited implementation schedule, wherein all planned improvements to " priority one" Consent Order locations were to be completed by December 2009, and the remainder of improvements would be completed by December 2011. Jan. 16, 2008 Letter; Engineering Report at Table 6-5: Implementation Schedule. In its January 16, 2008 Letter to the DEC accompanying the revised Engineering Report, Defendant stated as follows regarding the Saddle River Pump Station:

The Order did not require a detailed evaluation of any specific pumping station. The District has been aware of sporadic pump control malfunctions in recent years at the Saddle River Pumping Station. Concerns regarding the peak wet weather flow conveyance at the Saddle River Pumping Station were identified as part of the study's flow metering program. Since the initial report was submitted, a more detailed in-house evaluation of the pumping station hydraulics and pump controls has been completed. The District has prepared contract documents for the replacement of pumps and controls. This work is currently under construction.

Jan. 16, 2008 Letter at 6. The record is unclear as to when and under what circumstances the DEC formally approved Defendant's proposals,[15] but both parties' experts accept the schedule set forth in the January 2008 Engineering Report as final. See Pls.' Ex. III (Lindsay Rpt. at ¶ 4).

In February 2010, the DEC sent a letter to Defendant requesting that it prepare an addendum to the Dry Weather Abatement Report describing Defendant's pump stations, including metrics such as " location, capacity, number of pumps, age of equipment, last major upgrade/repair/replacement, emergency power, overflow history, overflow location in the event of a problem, and nearest receiving water which would

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be affected by an overflow incident." Pls.' Ex. AAA. The impetus for this request was a " technical compliance conference" regarding a sewage overflow at the Twin Lakes Pump Station on January 22, 2010 that reportedly discharged 100,000 gallons into the Saddle River. Pls.' Ex. ZZ. The letter also directed Defendant to identify " priority stations" based on conditions such as capacity and maintenance history. Pls.' Ex. AAA. Defendant submitted the requested addendum, authored by Ms. Philipps and Mr. Yetter on March 19, 2010. Def.'s Resp. Pls.' Am. 56.1 Stmt. ¶ 181; Pls.' Ex. BBB. It represents that the Saddle River Pump Station " was refitted with three new raw sewage pumps," and that additional upgrades were planned under " [a] current capital improvement project." Pls.' Ex. BBB at 5. The report did not specify a deadline for these planned upgrades. Id.

At her deposition in January 2011, Ms. Philipps testified that the replacement of the Saddle River Pump Station pumps occurred in January 2008. Ms. Philipps testified that it is " fair to say" that the replacement of pumps at the Saddle River Pump Station did not " address the problem of the SSOs at the Saddle River Pump Station," and that SSOs continued to occur after January 2008. Pls.' Ex. U (Philipps Dep. 255:25 - 274:23). For example, the installation of new pumps did not stop sewage from overflowing out of a manhole nearby the Swim Club on March 5, 2008. Def.'s Resp. Pls.' 56.1 Stmt. ¶ 163.

Defendant proffers as proof of its compliance with the 2006 Consent Order the Philipps Affidavit[16] and the reports prepared pursuant to the Order. See generally Def.'s 56.1 Stmt., Doc. 101. In her Affidavit, Ms. Philipps attests that the District spent approximately $12 million improving its System in response to the 2006 Consent Order and an additional $18.5 million in other improvements (of its own volition). Philipps Aff. ¶ 6. Ms. Philipps avers that Defendant undertook efforts to eliminate SSOs by " removing major sources of inflow in the system, modifying and/or repairing manholes and manhole covers in connection with that work, rerouting certain flow through capital improvement[s], installing new pumps[,] ... upgrading certain pump facilities, and installing new computerized telemetry systems," and represents that such efforts succeeded. Def.'s 56.1 Stmt. ¶ 6 (citing Philipps Aff. ¶ ¶ 5, 9). Defendant argues that sewage spills in violation of the Clean Water Act have not been reported in the areas tributary to the Saddle River " since the completion of [the implementation of the 2006 Consent Order] at the end of 2011." Def.'s Opening Br. 7.[17] Defendant acknowledges one SSO in the area near the Saddle River in 2012, but claims that this solitary discharge only affected soil, and did not reach any watercourse.

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Id. at n.6; Gonnella Decl. Ex. 12 (Bell Supp. Rpt. at 2-3), Doc. 105-16.

Plaintiffs dispute that Defendant has submitted any evidence, aside from its own " hollow assertions," indicating that it actually completed implementation of remedial measures and fully complied with the 2006 Consent Order.[18] Pls.' Reply Br. 9. At his deposition in January 2011, Mr. Yetter testified that the staffing of the Maintenance Department, which services Defendant's plants and pump stations, has been down over twenty percent for " probably seven years," Pls.' Ex. V (Yetter Dep. 29:8 - 31:21), and that staffing impacts the Sewer District's ability to address sewer overflows when they occur. Id. at 31:22 - 32:4. He also testified that he believed that the DEC " admonished" the Sewer District for staffing issues during the Consent Order review process. Id. at 90:15 - 90:19. With respect to improvements to the Saddle River Pump Station and in particular, manholes near the Swim Club, as of January 2011, Mr. Yetter testified that, notwithstanding the replacement of equipment and design changes, " overflow has continued to flow down into the Saddle River" from the manholes near the Saddle River Pump Station, during both dry and wet weather events, " [w]henever the Saddle River Pump Station either can't keep up with the flow or fails." Id. at 76:3 - 82:19.

vi. The 2012 Consent Order

On or about April 7, 2010, the DEC sent a notice of violation to Defendant concerning certain sewage spills that occurred during 2009 and 2010. Pls.' Ex. CCC. More than two years later, on November 29, 2012, Defendant and the DEC entered into a Consent Order (the " 2012 Consent Order" ) addressing these sewage spills.[19] Philipps Aff. ¶ 7; Gonnella Decl. Ex. 7 (2012 Consent Order at 1-4), Doc. 105-10. The DEC charged that Defendant violated the effluent limits of its SPDES permit by discharging sewage into the waters of the State eleven times between April 2, 2009 and April 1, 2010.[20] 2012 Consent Order at 1-3. The 2012 Consent Order does not mention the 2006 Consent Order. Def.'s Resp. Pls.' 56.1 Stmt. ¶ 45. While the 2012 Consent Order primarily focuses on violations at facilities not at issue here, several of the overflows identified in the 2012 Consent Order emanated from locations related to the Saddle River Pump Station: Manholes 10171, 10172, and 10174. 2012 Consent Order ¶ ¶ 5c, 5d, 5h. Two of these manholes, 10172, 10174 were sites of overflows listed in the 2006 Consent Order.

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2006 Consent Order at Appendix A. Both Consent Orders also mention Manhole 10434 on Ramapo Lane. Id.; 2012 Consent Order ¶ 5c.

The 2012 Consent Order imposed a total civil penalty of $75,000 for Defendant's violations, $25,000 of which was to be paid immediately, and $50,000 suspended. 2012 Consent Order at 4.[21] In addition, the 2012 Consent Order required Defendant to develop an Asset Management Plan and a Capital Improvement Plan to improve their Lincoln Street plant (not at issue here). Id. at 17.

Defendant claims that the SSOs underlying the 2012 Consent Order " were all related to unpredictable, errant mechanical failures and operator error." Def.'s Opening Br. 6 n.5 (citing Philipps Aff. ¶ ¶ 7-9). Ms. Philipps attests, and Plaintiffs dispute, that the purpose of the 2012 Consent Order was for the DEC to ensure that Defendant followed through on its efforts to develop an Asset Management and Capital Improvement Plan, which were already underway at the time of the execution of the 2012 Consent Order. Philipps Aff. ¶ 7. Defendant represents, and Plaintiffs contest, that the Sewer District has fully complied with the 2012 Consent Order. Id. ¶ ¶ 10-11.

vii. The Instant Action

On October 6, 2006, Upper Saddle River sent a letter of intent to file suit to Defendant, the DEC, the DEP, and the EPA, asserting that the 2006 Consent Order, which had been executed four months prior, failed to provide a remedy for Defendant's sewage spills, which continued to flow into the Saddle River unabated. Pls.' Ex. C. On January 5, 2007, Upper Saddle River commenced the instant citizen suit (Compl., Doc. 1), and the Individual Plaintiffs joined the case on April 11, 2007. Am. Compl., Doc. 15.[22] Plaintiffs filed a Second Amended Complaint (the " SAC" ) on May 17, 2010.

Plaintiffs' First Claim for relief is " violation of the Clean Water Act by specific illegal discharges to waters of the United States." SAC ¶ ¶ 28-41. Plaintiffs allege that, after the entry of the 2006 Consent Order, Defendant persisted in violating the terms of its SPDES Permit--and thus the Clean Water Act--by discharging raw sewage containing pollutants: (1) from locations not authorized by its SPDES Permit, such as manholes, pipes and/or point sources at or adjacent to Cherry Lane, South Monsey Road, and in the vicinity of the Swim Club; and (2) into the Saddle River and its tributaries. Id. ¶ ¶ 31-32, 37. The Second through Fourth Claims assert state common law claims for trespass, public and private nuisance. Id. ¶ ¶ 42-53.

Like the original complaint ( see Compl. ΒΆ 26), the SAC alleges that Defendant is responsible for " unpermitted discharges" of waste water into navigable waters on dates including, but not limited to: every day from August 23 -- September 3, 2006; October 31, 2006; November 6, 2006; November 8, 2006; " on or about" March 2, 2007; and " upon information and belief," ...


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