ELR Citation: ELR 20482
No(s). 93 Civ. 3116(CLB) (S.D.N.Y. Oct 21, 1993)

The court holds that whether an electric utility plant is in compliance with a condition in its state pollutant discharge elimination system (SPDES) permit requiring the use of the "best technology available" to minimize environmental impact is a genuinely disputed issue of material fact, and that the condition is valid and enforceable by citizen suit under the Federal Water Pollution Control Act (FWPCA) §505. The court first holds that the SPDES permit condition requiring the use of the "best technology available" is not so vague or ambiguous as to be useless, lacking in meaning, or unenforceable. The term appears in FWPCA §301(b) and in the New York Department of Environmental Conservation's (DEC's) regulations, can be ascertained as fact, and can be enforced by injunctive relief. The court next holds that the "best technology available" language, once inserted into the permit, provides the basis for a citizen suit under FWPCA §505. The court then holds that the affidavit of an expert witness, stating that the water intake at the electric facility did not use the best technology available, and the use of different technology at nearby plants are sufficient to raise a genuine issue of material fact, precluding summary judgment. Last, the court holds that the DEC is a necessary party because an injunction requiring modification of the plant's intake valves might subject the utility to inconsistent obligations, since no structural changes may be made to the water intakes without DEC approval.

Counsel for Plaintiff
Robert F. Kennedy Jr.
Natural Resources Defense Council
40 W. 20th St., New York NY 10111
(212) 727-2700

Counsel for Defendant
G. S. Peter Bergen
LeBoeuf, Lamb, Leiby & MacRae
125 W. 55th St., New York NY 10022
(212) 424-8000