ELR Citation: ELR 20160
No(s). 92 Civ. 9011 (PNL) (S.D.N.Y. Aug 2, 1993)

The court holds that state enforcement action against New York City for national pollutant discharge elimination system permit violations at two of its wastewater treatment facilities does not bar a citizen suit for injunctive relief under the Federal Water Pollution Control Act (FWPCA). The court holds that the plain language of FWPCA §309(g)(6), which precludes citizen suits when a state is diligently prosecuting an action under comparable state law, applies only to citizen suits for civil penalties. The court notes that this construction is not irrational, because §309(g)(6)'s language is unambiguous. Moreover, the provision protects violators against incurring repetitive civil penalties, while permitting federal district court suits seeking injunctions to proceed when violations continue after civil penalties have been paid or where state-ordered injunctive relief is inadequate. The court also notes that federal courts should defer to concurrent state court actions to avoid subjecting the violator to conflicting injunctive relief. The court holds that the citizens' claims are not moot, because the city has failed to show that the permit violations—which are ongoing despite current and proposed implementation of remedial measures—have ceased without likelihood of recurrence. Finally, the court grants the citizens' motion for summary judgment on the issue of liability, because the FWPCA imposes strict liability and it is uncontested that the city is in violation of its permits.

Counsel for Plaintiffs
John T. Van Der Tuin
Stults, Balber, Horton & Slotnik
1370 Avenue of the Americas, New York NY 10019
(212) 246-2400

Counsel for Defendant
O. Peter Sherwood, Corporation Counsel
Office of Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303