ELR Citation: ELR 20747
No(s). 88 Civ. 3748 (LLS) (S.D.N.Y. Jul 25, 1989)

The court holds that an electric utility's challenge to the New York Department of Environmental Conservation's (DEC's) modifications of its state-issued national pollutant discharge elimination system (NPDES) permit for the utility's power plant is not moot even though DEC has withdrawn the modifications. Shortly after the Environmental Protection Agency (EPA) approved New York's NPDES permit program, EPA and several utilities operating power plants along the Hudson River agreed that EPA's prior permits, requiring the utilities to retrofit their power plants with cooling towers, would be regulated and monitored by New York. Later, DEC announced its intent to modify the NPDES permit, but then withdrew the proposed modifications without prejudice to any future course of action. The court holds that the utility's challenge to the modification is not moot, since it is not absolutely clear that DEC will not again propose permit modifications. DEC's statement expressly allows for reimposing the conditions after the expiration of the settlement agreement. However, the court holds that the utility does not have a cause of action under the Federal Water Pollution Control Act, since the Act does not expressly authorize a state-issued NPDES permit holder to sue the state. The utility's redress must be sought in state court. Moreover, the issue of whether the proposed permit modifications would violate a settlement between the federal government and the utility does not raise any question of federal common law that would permit the district court to exercise federal question jurisdiction. The utility's claim of contract breach has no direct effect on the United States and application of state law will not conflict with any federal policy.

Counsel for Plaintiff
Brent L. Brandenburg
Consolidated Edison Company of New York, Inc.
4 Irving Pl., Rm. 1820, New York NY 10003
(212) 460-4333

Counsel for Defendant
Stuart Miller, Ass't Attorney
New York State Department of Law
120 Broadway, New York NY 10271
(212) 341-2000