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Keywords

plaintifftrialmotionsummary judgmentregulationmotion for summary judgmentclean water act
plaintiffdefendantattorney

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Hudson River Fishermen’s Ass’n v. Westchester County, 686 F.Supp. 1044, 27 ERC 2154, 18 Envtl. L. Rep. 21,451

Facts

The case involves a landfill located at Croton Point, which was operational for nearly sixty years and received both domestic and industrial waste, including hazardous materials. The Environmental Protection Agency (EPA) had previously investigated the landfill due to leachate pollution affecting the Hudson River, leading to a consent decree requiring the county to comply with environmental regulations. Despite the landfill's closure in 1986, concerns persisted regarding ongoing pollution from a drainage ditch and outflow pipe discharging pollutants into the river, prompting the Hudson River Fishermen's Association to file a citizen suit.

Croton Point is a large area of almost 600 acres on the east shore of the Hudson River. It juts for a couple of miles into the widest section of the Hudson River, forming the southeast corner of Haverstraw Bay and the northern border of Croton Bay. It was one of the largest tidal marshes on the Hudson River and was an important ecological area for various types of flora and fauna. In 1927, a quiet time between two world wars when ecological considerations were of less significance and the Croton area less populated, Westchester County decided to put a major landfill on a part of the Croton Marsh. For almost sixty years it was an active dump. Initially, only seventy acres of the marsh were used. The dump gradually expanded, however, ultimately engulfing most of the wetlands.

Issue

Whether the Hudson River Fishermen's Association could maintain a citizen suit under the Clean Water Act despite the existence of a governmental enforcement action regarding the same landfill.

The thrust of the CWA is to provide society with a remedy against polluters in the interest of protecting the environment. Section 101 of the CWA, 33 U.S.C. § 1251(a). If the Government's action achieves that end, the fact that HudFish or any other private attorney general is barred from duplicating that effort should hardly seem surprising or harsh.

Rule

Citizen suits are permitted under the Clean Water Act to enforce effluent standards or limitations, and a violation occurs when pollutants are discharged without a permit.

Citizen suits are expressly permitted under the CWA when they seek to enforce 'an effluent standard or limitation … [or] an order issued by the Administrator [of the EPA] or a State with respect to such a standard or limitation….' Section 505 of the CWA, 33 U.S.C. § 1365(a)(1) (emphasis added).

Analysis

The court analyzed whether the drainage ditch and outflow pipe constituted a 'point source' under the Clean Water Act, which would require a permit for discharging pollutants. It concluded that the plaintiff's allegations of ongoing unpermitted discharges were sufficient to maintain the citizen suit, as the government’s action did not address the specific claims raised by the plaintiff.

The instant case, however, differs from the typical situation discussed by Judge Friendly in Hooker Chemicals, where a permit has been obtained and the issue is whether the polluter is complying with the terms of the permit. Here, no permit has been secured. Thus, defendants argue, since no administratively established effluent levels have been set, plaintiffs are barred from bringing a citizen suit. We think such a conclusion suffers from an unwarranted and 'hypertechnical' reading of section 505 of the CWA, 33 U.S.C. § 1365(a)(1).

Conclusion

The court denied the county's motion for summary judgment, allowing the citizen suit to proceed based on the allegations of ongoing violations of the Clean Water Act.

For all of these reasons, we believe that a citizen suit in this case may be maintained.

Who won?

Hudson River Fishermen's Association prevailed in the case because the court found that they had standing to bring the citizen suit under the Clean Water Act, and the county's arguments did not bar the action.

The court emphasized that when the Government is actively litigating a corollary enforcement effort, plaintiffs bringing citizen suits under the CWA are not entitled to maintain their actions simply to secure 'personalized' relief. Such actions are not barred, however, when it appears that the Government's effort does not address the factual grievances asserted by private attorneys general.

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