ELR Citation: ELR 20460
No(s). 91 Civ. 4823 (VLB) (S.D.N.Y. Sep 6, 1994)

The court holds that the owners and developers of an abandoned construction site are liable under the Federal Water Pollution Control Act (FWPCA) for discharging pollutants without a permit, and that the environmental groups that brought the citizen suit against them are entitled to attorney fees and expenses. Because the owners and developers did not respond to the groups' complaint, the court treats the facts asserted in the complaint and in the groups' affidavits as true. The court first notes that pollutants, including solid waste, wrecked or discarded equipment, garbage, rock, sand, and dirt, have been and continue to be discharged from the site into a creek that is a tributary of the Hudson River. The court holds that these discharges emanate from a point source or sources into navigable waters without a necessary FWPCA §301 permit. The court further holds that the discharges constitute a violation of the FWPCA for each day that such material remains in the creek. The court next holds that the environmental groups have asserted a valid cause of action under the FWPCA against the nonresponding property owners so as to establish the owners' liability under FWPCA §§301, 402, and 404. The court next permanently enjoins the owners from using the site to violate the FWPCA, noting that injunctive relief, statutory damages, and attorney fees and costs are available under New York law even where a corporation is dissolved, if the cause of action, as here, accrues before dissolution. The court also holds that such remedies are also available against the defendant development limited partnership, whether dissolved or not. The court next grants the groups' application for statutory penalties, and refers the amount of the penalty to a magistrate judge for consideration of the responsibility, culpability, and responsiveness of those involved. The court next holds that the groups, having established the owners' and developers' liability, may be considered prevailing parties, making an award of their litigation costs appropriate. The court holds that the award should be equal to full compensation comparable to that of a fee-paying client, and orders the magistrate judge to consider the reasonableness of the claimed fees in his report and recommendation.

Counsel for Plaintiffs
Robert F. Kennedy Jr., Steven P. Solow, Robert F. Snow
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
Paul A. Levine
MacKrell, Rowlands & Premo
80 State St., Albany NY 12207
(518) 436-8000