ELR Citation: ELR 20183
No(s). 90 Civ. 4721 (GLG) (S.D.N.Y. Aug 21, 1991)

The court holds that a citizen suit against New York City and city agencies for alleged violations of the Federal Water Pollution Control Act (FWPCA) resulting from the discharge of leachate from a city-operated landfill into a local bay is not barred by FWPCA §309(g)(6)(A)(ii). In December 1985, the New York State Department of Environmental Conservation (DEC) entered into a consent order with the New York City Department of Sanitation (DOS) requiring the DOS to submit to the state a temporary and a permanent leachate management plan for the landfill. In 1988, DEC approved a DOS proposal to discharge the leachate into Eastchester Bay, which feeds into Long Island Sound. In April 1990, the DEC and the DOS entered into a second consent order requiring the completion by 1995 of a further remedial plan for the landfill. An organization for the preservation of Long Island Sound filed an FWPCA citizen suit three months later. On the organization's claim that its suit should be allowed because the state law being enforced by the DES is not comparable to FWPCA §309(g), the court notes that if the state's efforts to cap the landfill are successful, the problem with discharges into Eastchester Bay, which led to the organization's suit, will be resolved. However, the court holds that the state did not diligently prosecute its action under state law. Since defendants allege state involvement since 1983, this means that at least 12 years will run before the problem is rectified. Further, the permanent measure that was to have been adopted pursuant to the 1985 order has never been established and the 1990 order permits the defendants five years to adopt a plan and construct a new facility. The court notes its lack of confidence that the target date of 1995 will be enforced. Rejecting the defendants' contention that there is no need for a federal court's intervention because the state is intimately involved with cleanup efforts, the court orders the plaintiff to draft a permanent injunction permitting defendants a reasonable time to develop an alternative plan.

Counsel for Plaintiff
Mary Barbanes, Elizabeth Barbanes
Smith & Barbanes
733 Yonkers Ave., Yonkers NY 10704
(914) 476-0600

Counsel for Defendants
Victor C. Kovner, Corporate Counsel
New York City Law Department
100 Church St., New York NY 10007
(212) 788-0808