ELR Citation: ELR 20864
No(s). 90-CV-750 (N.D.N.Y. Feb 7, 1991)

The court approves a consent decree in a Federal Water Pollution Control Act (FWPCA) citizen suit alleging that defendant violated its wastewater discharge permit and the Act's pretreatment standards. The decree requires defendant to pay $2,120 to the United States and $8,480 to a university for studies of the water quality of the Mohawk River and nonpoint source pollution. The federal government objects to the decree on the grounds that there is no nexus between the harm caused by defendant's alleged violations and the portion of the remedy requiring a study of the nonpoint source pollution of the river, as required by the Environmental Protection Agency's (EPA's) FWPCA settlement policy. The court notes that the settlement policy, although due some deference, is not binding on the court. Further, the settlement policy is intended to guide EPA enforcement actions, not citizen suits. The court notes that the decree complies with the settlement policy. The proposed study of nonpoint pollution is closely related to the violations alleged in the complaint. The fact that the study encompasses portions of the river that are upstream of the mouth of the tributary that receives defendant's discharges does not render the study less related to the alleged environmental harm. The court concludes that the study is described with sufficient precision, is closely related to the harm alleged in the complaint, and furthers the objectives of the FWPCA.

Counsel for Plaintiffs
Peter W. Henner
270 Hudson Ave., Albany NY 12210
(518) 432-1122

Charles J. Sheehan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Philip H. Dixon
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600