ELR Citation: ELR 20467
No(s). 89 Civ. 2287 (S.D.N.Y. Nov 8, 1990)

The court holds that New York City violated §301 of the Federal Water Pollution Control Act (FWPCA) by discharging chlorine and alum floc without a national pollutant discharge elimination system (NPDES) permit into a branch reservoir of one of the city's main water supply systems. The city used the branch reservoir as a settling basin for floc resulting from non-filtration water purification processes. The court holds that chlorine and alum sludge are regulated pollutants under FWPCA §502(6), and the water supply system aqueduct and shaft pipes are point sources under FWPCA §502(14). Further, the court holds that the transfer of chemicals into the branch reservoir constitutes the addition of a pollutant requiring an NPDES permit. The court also holds that the federal Safe Drinking Water Act (SDWA) does not implicitly preempt the FWPCA. Thus, contrary to the city's position, the court holds that the state of New York lacks the power to grant the city a de facto exemption from NPDES permit procedures merely by mandating compliance with the federal SDWA. The FWPCA objective of preserving the environmental integrity of navigable waters and the SDWA objective of protecting the purity of public drinking water are complementary. Moreover, to regard each statute as effective absent a clearly expressed congressional intent to the contrary is consistent with the U.S. Supreme Court's standard of literalism for determining preemptive effect. If Congress had intended to provide additional exemptions from the NPDES permit procedures, it would have done so in its most recent revisions. Finally, the court holds that the Environmental Protection Agency's interpretation that chlorine and alum sludge are pollutants under the FWPCA is reasonable and entitled to deference, notwithstanding the state's conflicting construction of the Act.

[Pleadings in this case are digested at ELR Pend. Lit. 66074.]

Counsel for Plaintiff
Robert F. Kennedy Jr.
Natural Resources Defense Council
40 W. 20th St., New York NY 10011
(212) 727-2700

Counsel for Defendants
Robin Levine, Ross Friedman
New York City Law Department
100 Church St., New York NY 10007
(212) 374-3174