Appeals presenting common question consolidated for opinion. Hudson River Sloop Clearwater, Inc. appeals from a judgment of the United States District Court for the Northern District of New York, Miner, J., granting Conrail's motion for summary judgment on the basis of section 505(b)(1)(B) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(B) (1982). Friends of the Earth, Atlantic States Legal Foundation, Inc. and Christian G. Spies appeal from a judgment of the United States District Court for the Northern District of New York, Munson, C.J., dismissing their complaint on the same basis. Plaintiffs-appellants contend that both judgments rest on a misconstruction of section 505(b) (1)(B). Conrail cross-appeals from both judgments insofar as they denied its request for attorneys' fees. Affirmed in part, reversed in part and remanded.
Before: MESKILL and PRATT, Circuit Judges, and METZNER,*fn* District Judge.
We have consolidated these two appeals for opinion, although they were argued separately,*fn1 because they arise from similar facts and present a common legal question: whether enforcement actions by the New York State Department of Environmental Conservation (DEC) against Consolidated Rail Corporation (Conrail) that culminated in consent orders preclude the institution of citizen suits under section 505 of the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or Act), 33 U.S.C. § 1365 (1982). We conclude that they do not.
Hudson River Sloop Clearwater, Inc. (Sloop Clearwater) appeals from a judgment entered in the United States District Court for the Northern District of New York, Miner, J., granting Conrail's motion for summary judgment on the basis of section 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B). Friends of the Earth, Atlantic States Legal Foundation and Christian G. Spies (collectively Friends) appeal from a judgment also entered in the United States District Court for the Northern District of New York, Munson, C.J., dismissing their suit against Conrail for lack of subject matter jurisdiction on the basis of section 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B). Both judgments denied Conrail's requests for attorneys' fees.
We affirm the denials of attorneys' fees. We affirm Judge Miner's decision to the extent that it held that Sloop Clearwater had standing to sue. We reverse Judge Miner's grant of summary judgment for Conrail and against Sloop Clearwater, and we reverse Chief Judge Munson's dismissal of Friends' complaint.
These actions were brought under the citizen suit provision, section 505(a), of the Clean Water Act, 33 U.S.C. § 1365(a). Both alleged violations of National Pollutant Discharge Elimination System/State Pollutant Discharge Elimination System (NPDES/SPDES) permits issued to Conrail by DEC. The permits which DEC is authorized to issue pursuant to section 402(a) & (b) of the Act, 33 U.S.C. § 1342(a) & (b) (1982), set allowable pollutant discharge limits for particular locations. The Act makes it unlawful for any person to discharge pollutants into navigable waters except in compliance with the limits and conditions of a discharge permit.
Prior to the filing of these suits, Conrail's permit violations led to administrative involvement by DEC and resulted in the execution of orders of consent between Conrail and DEC. At no time during the negotiations between Conrail and DEC did Sloop Clearwater, Friends or any other members of the public have an opportunity to participate.
A. Sloop Clearwater and Conrail's Selkirk Yard
Sloop Clearwater is a not-for-profit New York corporation dedicated to the protection and restoration of the Hudson River. An environmentalist, public interest organization, it engages in research, monitoring, education and advocacy on behalf of its members. Sloop Clearwater has approximately 5,000 members who reside in New York State. Several members reside, own property or recreate in, on or near the Hudson River and South Albany Creek.
Sloop Clearwater's suit involves Conrail's A.E. Perlman Yard in Selkirk, New York (Selkirk Yard), a diesel locomotive repair and refuelling facility, which discharges treated wastes from its operations through point sources into the Hudson River and South Albany Creek. Although authorized by an NPDES/SPDES permit to discharge limited quantities of pollutants into these waterways, the Selkirk Yard failed to comply with the permit limitations. In September 1979, Conrail entered into a consent order with DEC regarding the Selkirk Yard permit violations. It imposed a number of obligations on Conrail, including a timetable, related to the construction of a wastewater treatment facility. The order also assessed a $25,000 penalty against Conrail, $5,000 to be paid immediately and the remainder to be suspended for as long as Conrail complied with the order. Conrail did not comply, but it was never penalized, and the order was repeatedly modified. After a number of extensions, Conrail completed construction on the $2 million project in April 1984, considerably after its original December 1982 deadline. Conrail claims to have been in compliance with its Selkirk Yard permit since July 1984.
In September 1982, Sloop Clearwater notified Conrail of its intention to institute a citizen suit to enforce compliance with the Selkirk Yard permit. It filed suit in November 1982 and moved for partial summary judgment on the issue of liability. Conrail moved to dismiss the complaint or in the alternative for summary judgment. The district court first addressed Conrail's contention that Sloop Clearwater lacked standing. Noting that Sloop Clearwater had produced affidavits from two of its members setting forth specific injury in precise terms, the court determined that there was standing. Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F. Supp. 345, 348 (N.D.N.Y. 1984). Turning to Conrail's claim that the DEC administrative proceeding and the resultant consent order precluded a citizen suit under section 505(b)(1)(B), the court agreed that DEC's enforcement proceedings and the resultant consent order were the equivalent of a diligently prosecuted court action and granted summary judgment for Conrail.
On appeal, Sloop Clearwater argues that the administrative proceedings and consent order are insufficient to activate the bar of section 505(b)(1)(B). Conrail supports the district court's section 505 conclusion but contends that Sloop Clearwater lacks ...