UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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CATSKILL MOUNTAINS CHAPTER OF :

TROUT UNLIMITED INC., THEODORE GORDON  :

FLYFISHERS, INC., CATSKILL-DELAWARE  :

NATURAL WATER ALLIANCE INC., FEDERATED  :

SPORTSMEN’S CLUBS OF ULSTER COUNTY INC., AND :

RIVERKEEPER, INC. : :

Plaintiffs,  : Civ. No.  : 00-CV-0511

-against- : (FJS/RWS) :

THE CITY OF NEW YORK, NEW YORK CITY :

DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND :

JOEL A. MIELE, SR., COMMISIONER OF DEPARTMENT :

OF ENVIRONMENTAL PROTECTION, :

Defendants. :

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PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT OR

FOR A MORE DEFINITE STATMENT

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Plaintiffs respectfully submit this Memorandum in Opposition to the Motion to Dismiss the Complaint filed by the Defendants, the New York City Department of Environmental Protection ("DEP"), Joel Miele, Commissioner of DEP and New York City. In this citizen suit under the Clean Water Act ("CWA") section 505(a), 33 U.S.C. § 1365(a), Plaintiffs seek to enforce the provisions of section 301(a) of the CWA, 33 U.S.C. § 1311(a), which prohibits the discharge of a pollutant from a point source into a navigable body of water without a permit. Specifically, Defendants are discharging pollutants including turbidity, suspended solids and heat from the Shandaken Tunnel into the Esopus Creek without a permit.

Defendants have filed this motion on several grounds, none of which have any merit. First, Defendants move to dismiss the turbidity and thermal discharge claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Fed. R. Civ. Pro. Defendants’ Memorandum in Support of Motion to Dismiss ("Def. Mem.") p. 3. However, Defendants do not challenge sufficient notice was given for the illegal discharge of total suspended solids. Def. Mem., p.5, n.2. Defendants assert that the 60-day notice requirement for a citizen suit was not satisfied under section 505(b) of the CWA, 33 U.S.C. §1365(b) because, they claim, it failed to satisfy the content format specified in 40 C.F.R. § 135.3(a). Def. Mem., p.4. Recent Supreme Court authority establishes that notice letter content is not jurisdictional and therefore it is not subject to a Rule 12(b)(1) motion to dismiss. In any event, the content of the notice letter includes sufficient information to permit the recipients to identify the specific violation upon which Plaintiff’s intended to sue. Based on the allegations contained in the notice letter, the Defendants had ample information necessary to come into compliance with the CWA.

Second, Defendants move to dismiss Plaintiffs’ claim in the Complaint alleging discharge of suspended solids as a violation of section 301(a) of the CWA, pursuant to Rule 12(b)(6). Fed. R. Civ. Pro. Def. Mem., p.12. Defendants assert the Complaint lacks sufficient facts to state a claim that the discharge of suspended sediments into the Esopus Creek from the Shandaken Tunnel constitute a "pollutant," or that their discharge constitutes an "addition" of pollutants "from" a point source within the meaning of the CWA. Def,. Mem., p.12. Defendants do not dispute that turbidity is considered a pollutant, and also concede that suspended solids are a pollutant. Def. Mem., p.13. In fact, EPA regulations and The American Heritage Dictionary define turbidity as an aspect of suspended solids in the water (including clay, silt and sand). In section 304(a)(4) of the CWA, 33 U.S.C. § 1314(a), "conventional pollutants" specifically includes "suspended solids." Defendants also claim that the diversion of waters containing suspended solids originating in the Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek is not an "addition" because it is not being introduced from the outside world. Def. Mem., p.13. Contrary to Defendant’s assertion, case law has defined the term "addition" as the transfer of water containing pollutants between two separate bodies of water which are not equal in quality.

The Court should deny Defendants’ Motion to Dismiss in its entirety. As Plaintiffs have clearly set forth in the Complaint, the Defendants are in violation of section 301(a) of the CWA by discharging a pollutant from a point source into navigable waters without a permit.

The Defendants operate the Shandaken Tunnel as part of the New York City Catskill Water Supply System. Riverkeeper’s Complaint ("Cplt.") ¶20. The Shandaken Tunnel begins at the Schoharie Reservoir in Delaware County, passes through Green County, and into Ulster County where it discharges into Esopus Creek. Cplt. ¶19. When the Shandaken Tunnel is in operation, the intake pipe accepts water from the Schoharie Reservoir and adds it into the Shandaken Tunnel. The water flows through the Shandaken Tunnel and is discharged into the Esopus Creek. Cplt. ¶21. In the absence of the Shandaken Tunnel, water from the Schoharie Reservoir would not reach Esopus Creek because Esopus Creek is located in a different watershed than the Schoharie Reservoir. Cplt. ¶¶22, 37.

The water of Esopus Creek is naturally more clear, or less turbid and lower in suspended solids, than the water of the Schoharie basin. Cplt. ¶23. The New York Department of Environmental Conservation ("DEC") has designated Esopus Creek, between the outlet of the Shandaken Tunnel and the inlet of the Ashokan Reservoir, as a Class A(T) stream. This classification signifies high quality water that is suitable for a trout fishery. Cplt. ¶22. The discharge from the Shandaken Tunnel into Esopus Creek contains a high level of turbidity and suspended solids in the form of fine red clay particles. Cplt. ¶¶27, 28. The discharge from the Shandaken Tunnel periodically contains elevated temperatures that stress trout populations in the Esopus Creek. Cplt. ¶30. The Defendants’ discharge of suspended solids, turbidity, and heat into the Esopus Creek are illegal and unpermitted discharges within the meaning of section 301(a) of the CWA. Cplt. ¶39. Defendants’ activities have caused, and will continue to cause, degradation to the Esopus Creek. Cplt. ¶41. The quality of the Esopus Creek directly and adversely affects the recreational, commercial, aesthetic and environmental interests of the Plaintiff organizations’ members. The interests of the Plaintiffs have been and will continue to be adversely affected by the Defendants’ illegal and unpermitted discharge into the Esopus Creek. Cplt. ¶12. This degradation by the Defendants interferes with the trout habitat and fishing, which decreases the value of the Esopus Creek as a recreational trout fishery. This decreased value harms Plaintiffs’ members who are recreational fishermen and commercial fishing guides who use the Esopus for their business. Cplt. ¶42.

The City of New York has neither applied for, nor been granted, a National Pollutant Discharge Elimination System ("NPDES") or State Pollutant Discharge Elimination System ("SPDES") permit for its discharges into Esopus Creek. Cplt. ¶35. The Defendant has violated and will continue to violate "an effluent standard or limitation" under section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A), because of its illegal and unpermitted discharge from the Shandaken Tunnel into the Esopus Creek. Cplt. ¶38.

On November 20, 1998, Plaintiffs mailed notice of the violations and of their intent to file suit to the Administrator of the United States EPA, to the New York Department of Environmental Conservation, and to the defendants as required by section 505(b)(1)(A) of the Clean Water Act. The notice letter specifically identified total suspended solids as a pollutant that Defendants discharge into the Esopus Creek in violation of section 301(a) of the Clean Water Act. Affidavit of Susan Moon, Exhibit B. Fourteen months after giving notice to the recipients, the complaint was filed. On March 31, 2000, Plaintiffs brought this citizen suit seeking declaratory and injunctive relief under section 301(a) of the Clean Water Act, 33 U.S.C. §1311(a). The Defendants are in violation of the CWA by their unpermitted and unlawful discharge of pollutants from the Shandaken Tunnel into the Esopus Creek. Cplt. ¶1.

I. DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION SHOULD BE DENIED BECAUSE NOTICE LETTER CONTENT IS NOT JURISDICTIONAL AND PLAINTIFFS’ NOTICE LETTER CONTAINED SUFFICIENT INFORMATION AS REQUIRED UNDER SECTION 505(b) OF THE CWA 33U.S.C. § 1365(b).

Attacks on subject matter jurisdiction under Fed.. R. Civ. Pro. are of two forms: "facial attacks" and "factual attacks," commonly referred to as "speaking motions." Garcia v. Copenhaver, Bell & Associates, M.D.’s, P.A.,104 F.3d 1256, 1261 (11^th Cir. 1997). A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. When reviewing a facial attack, the district court liberally takes the allegations in the complaint as true. Murphy v. United States, 45 F.3d 520 (1^st Cir. 1995), cert denied, 515 U.S.1144 (1995). By contrast, when a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Williamson v. Tucker, 645 F.2d 404, 413 (5^th Cir. 1981). In a factual controversy, the district court must weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist which also depends on whether the factual attack also implicates the merits of plaintiff’s cause of action. Id.

The Supreme Court has set a strict standard for dismissals for lack of subject matter jurisdiction when the basis of jurisdiction is also an element in the plaintiff’s federal cause of action. Bell v. Hood, 327 U.S. 678 (1946). If an attack on subject matter jurisdiction also implicates an element of the cause of action, then the proper action for the district court is to find that jurisdiction exits and deal with the objection as a direct attack on the merits of the plaintiff’s case. The defendant is then forced to proceed under Rule 12(b)(6) or Rule 56. Garcia v. Copenhaveer, Bell & Associates, M.D.’s, P.A., 104 F.3d 1256, 1261 (11^th Cir. 1997). Therefore, as enunciated by the Supreme Court in Bell, a complaint that appears to state a cause of action under a federal statute should be dismissed only when the claim is clearly immaterial or is wholly insubstantial and frivolous. Id. It is extremely difficult to prevail in a motion to dismiss for lack of subject matter jurisdiction . Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11^th Cir. 1986).

As set forth in Plaintiffs’ notice letter of intent to sue dated November 20, 1998, Defendants violated and continue to violate "an effluent standard or limitation" under section 505(a)(1)(A), by discharging pollutants, in the form of total suspended solids and settleable solids from the Shandaken Tunnel point source into Esopus Creek without a permit which is a violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a). Moon Affidavit, Exhibit B. All recipients of this letter had fourteen months to either take action or comply with the CWA before Plaintiffs filed this suit. Therefore, the 60-day notice requirement section 505(b) of the CWA 33 U.S.C. § 1365(b) has been more than satisfied and all parties were sufficiently informed. Defendants’ Motion to Dismiss the claim is an inappropriate procedure and lacks merit.

A. Notice Letter Content is a non-jurisdictional question and is not appropriately raised in a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

At the outset, the court must determine whether Defendants’ notice challenge properly brought as a challenge to subject matter jurisdiction as opposed to the merits. Defendants claim that the Supreme Court holding in Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (interpreting the citizen suit notice provision in the Resource Conservation and Recovery Act of 1976 ("RCRA"), which is analogous to the citizen suit notice provision in the Clean Water Act) is dispositive in the case at bar. This is simply an incorrect interpretation of Hallstrom. The Supreme Court held that the citizen suit notice requirement is a "mandatory, not optional, condition precedent for suit" which a court may not disregard at its discretion. Id. However, in Hallstrom the government entities were never given notice when the plaintiff commenced the RCRA lawsuit and so the Court addressed only the question of when notice had to be given, not the contents or quality of notice at issue in this case. In fact, the Supreme Court specifically declined to rule that the provision at issue there, the RCRA notice provision, was jurisdictional, "In light of our literal interpretation of the statutory requirement, we need not determine whether §6972(b) is jurisdictional in the strict sense of the term." Id. at 31.

More recently, the Supreme Court held that the statutory elements of a citizen suit, such as notice, are not to be considered jurisdictional. Steel Company v. Citizens for A Better Environment, 523 U.S. 83 (1998) (holding that question whether EPCRA requires pleading of a continuing violation is not a jurisdictional question). Courts that have used a "pragmatic/functional" approach to this issue have held that the 60-day notice provision is only procedural, not a jurisdictional, requirement. The "pragmatic" approach has been subscribed to by the United States Court of Appeal for the Second, Eighth and District of Columbia Circuits. Hempstead County and Nevada County Project v. United States Environmental Protection Agency, 700 F.2d 459, 461-63 (8^th Cir. 1983); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-83 (2^nd Cir. 1975), Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 703 (D.C. Cir. 1974). Therefore, the issue of sufficiency of notice content would be more properly raised in a motion for summary judgment rather than a motion to dismiss.

B. Plaintiffs’ notice letter contained all the necessary elements and sufficiently alleges the specific violation as required under section 505(b) of the CWA, 33 U.S.C. § 1365(b).

Whether considered jurisdictional or not, Plaintiffs have complied with the mandatory notice requirement by providing Defendants with a notice letter on November 20, 1998 outlining the violations upon which Plaintiffs intended to sue. In a Clean Water Act citizen suit alleging violation of an effluent standard or limitation, no action may be commenced prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order. 33 U.S.C. § 1365(b)(1)(A). Plaintiffs do not dispute that this 60-day notice provision is a mandatory precondition to suit as held in Hallstrom v. Tillamook County, 493 U.S. 20 (1989). Accordingly, on November 20, 1998, Plaintiffs sent a letter placing the City of New York on notice of alleged violations and stating grounds for a complaint. This letter was also sent to the U.S. Attorney General, the U.S. Administrator and Regional Administrator of Environmental Protection Agency pursuant to section 505(b) CWA. Following failed negotiations lasting fourteen months, Plaintiffs filed their Complaint on March 21, 2000.

The Plaintiffs' notice has satisfied the regulatory content requirements for violation of an effluent standard, limitation or as set forth in 40 C.F.R. § 135.3(a). The notice includes (1) "sufficient information to permit the recipient to identify the specific standard, limitation or order alleged to have been violated," i.e., the prohibition found in section 301(a) of the Act, (2) "the activity alleged to constitute a violation," i.e., the discharge of pollutants (including suspended solids) from the Shandaken Tunnel, (3) "the person(s) responsible for the alleged violation," i.e., City of New York, (4) "the location of the alleged violation," i.e., the Shandaken Tunnel from the Schoharie Reservoir into the Esopus Creek, (5) "the date(s) of such violation," i.e., violations have occurred and continue to occur every day that the Shandaken tunnel operates for at least the past five years and (6) "the full name, address, and telephone number of the person giving notice," i.e., the second paragraph of the letter specifically listing the parties giving notice and their full names, addresses and telephone numbers. Moon Affidavit, Exhibit B. Thus, Plaintiffs gave timely and complete notice to the appropriate persons according to section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b) and 40 C.F.R. § 135.3(a).

Defendants contend that the notice letter did not meet the first requirement because it lacks specificity, required by the Clean Water Act and its regulation, to put the recipients of the letter on notice of the violations upon which Plaintiffs intended to sue. It states:

Specifically, plaintiffs’ notice letter fails to "identify the specific standard, limitation or order alleged to have been violated" as required by the regulations promulgated by the EPA pursuant to the Clean Water Act. Def. Mem. p.4.

The notice letter states that the City of New York has discharged pollutants in the form of total suspended solids and settleable solids into the Esopus Creek. Moon Affidavit, Exhibit B. This is a violation of "an effluent, standard or limitation" under section 505(a)(1)(A), as any discharge of pollutants without a permit violates section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a).

Section 505(f) of the CWA specifically includes a violation of section 301 in the definition of an "effluent standard or limitation" that can be enforced in a citizen suit. 33 U.S.C. § 1365(f).

Defendants also argue that the words "turbidity discharge" and "thermal discharge" were not stated in the notice letter, but were present in the complaint and therefore the recipients of the letter were not put on adequate notice of the violations upon which plaintiffs intended to sue. Def. Mem. p.5. This argument is without merit because the term suspended solids is commonly equated to turbidity. In The American Heritage Dictionary of the English Language (Copyright 1996, Houghton Mifflin Company) turbid is defined as "having sediment or foreign particles stirred up or suspended; muddy," while the word turbidity has the meaning "muddiness created by stirring up sediment or having foreign particles suspended." The EPA Office of Water at: http://www.epa.gov/owowwtrl/monitoring/volunteer/stream/vms55.html, describes turbidity as "a measure of water clarity – how much the material suspended in water decreases the passage of light through the water. Suspended materials include soil particles (clay, silt, sand)." The EPA also states that higher turbidity increases water temperatures because suspended particles absorb more heat. Thus, suspended solids, turbidity and thermal discharges are inseparably linked in such a way that the notice of suspended solids was sufficient to place Defendants on notice thereby satisfying its purpose. Indeed, the Complaint specifically states "The water of Esopus Creek is naturally more clear, or less turbid and lower in total suspended solids, than the water of the Schoharie basin." Cplt. ¶23.

Defendants rely on Public Interest Research Group of New Jersey, Inc. v. Hercules Inc.,

50 F.3d 1239, 1248-50 (3^rd Cir.1995) in which the plaintiffs’ notice letter alleged sixty-eight specific discharge violations, but unlike the case at bar, later pleadings filed in the litigation significantly changed the categories by adding recordkeeping and monitoring violations and also included new discharge violations increasing the total number to 650 violations. The defendants in Hercules contended that the notice letter failed to "identify the specific standard, limitation or order alleged to have been violated" and also failed to identify "the activity alleged to constitute a violation." Id. The Court responded that such specificity is not mandated by the regulation but that Congress delegated to the EPA the authority to determine the necessary contents of a notice letter: "The regulation does not require that the citizen identify every detail of a violation. Rather, it states that "[n]otice regarding an alleged violation…shall include sufficient information to permit the recipient to identify" the components of an alleged violation. 40 C.F.R. § 135.3(a)." Id. at 1247, 1248.    Furthermore, the Court stated that "we do not read § 1365 to compel a finding that a citizen must give notice to recipients of each individual violation of a specific discharge limitation." Id. at 1248.      Instead, the Court in Hercules determined that the sufficiency of the plaintiffs’ 60-day notice letter would be judged in terms of whether it accomplished the purpose of providing the recipient with effective and timely notice. Id. at 1249.

Plaintiffs provided effective notice by specifically identifying the discharge of suspended solids. Turbidity is simply another manifestation of the same suspended solids pollution, as both its dictionary definition and EPA guidelines make clear. Courts have allowed citizen suit claims for violations related to those identified in the notice letter to proceed even where the related violations were not specifically identified. In Atlantic States Legal Foundation v. Stroh Die Casting Co., 116 F.3d 814 (7^th Cir. 1997), cert denied, 522 U.S. 981 (1997), the court held that plaintiffs notice of intent to bring suit against defendant satisfied jurisdictional requirements of the CWA by sufficiently informing the manufacturer that the organization was complaining about manufacturer’s unauthorized discharges of die casting process wastewater to municipal sewer system, without identifying specific point source at issue. The court disagreed with the Third Circuit’s ruling in Hercules, 50 F.3d 1239 (3^rd Cir.1995) that a notice letter provides sufficient information for the recipients to identify violations only if it includes a list of discharge violations by parameter. Instead, the Seventh Circuit in Atlantic stated that the key to notice is to give the accused company the opportunity to correct the problem. Id. at 820. Similarly, the Third Circuit in Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 2 F.3d 493 (3d Cir.1993) allowed a citizen suit to proceed based on ongoing violations of different parameters that are the result of the same process flaw identified in the notice letter.

Plaintiffs’ notice letter was timely and stated the grounds upon which they intended to sue, namely a violation of "an effluent standard or limitation under CWA section 505(a)(1)(A), by discharging pollutants from a point source without a permit in violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a) … continues to discharge, pollutants in the form of total suspended solids and settleable solids into Esopus Creek…" Moon Affidavit, Exhibit B. Based on this information alone, the purpose of the notice has been accomplished; (ie.) 1) to urge the state enforcement agency to compel compliance through administrative action, thus eliminating the need for any access to the courts, and 2) to give the alleged violator "an opportunity to bring itself into complete compliance with the Act." See Gwaltney of Smithfield, Ltd v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60 (1987). Indeed, Defendants do not dispute that they were given sufficient notice for the discharge violation of total suspended solids. Def. Mem., p.5. Therefore, the court must deny the Defendants’ Motion to Dismiss for lack of subject matter jurisdiction.

THAT ELEMENTS OF THE DISCHARGE ELEMENTS FROM THE DEFENDANTS' SHANDAKEN TUNNEL CONSTITUTE THE "ADDITION" OF A "POLLUTANT" AS PROHIBITED BY CWA SECTION 301(a) AND DEFINED BY CWA SECTION 502 AND THEREFORE DEFENDANTS' MOTION TO DISMISS MUST BE DENIED.

Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a) prohibits the discharge of pollutants from a point source into waters of the United States, unless such discharges are in compliance with specific portions of the Act. One of the main purposes of the Act is to require pollution sources to abate their pollution sufficiently to meet desired goals for water quality in the receiving water. According to the Congressional Declaration of Goals and Policy under section 101 of the CWA:

The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters; and to achieve this objective (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. 33 U.S.C. § 1251(a).

Pollutants in the form of suspended solids, turbidity and heat, are being added from Schoharie Reservoir through the Shandaken Tunnel into the Esopus Creek. This type of "addition" is precisely what the Clean Water Act is intended to prohibit, since it has turned a renowned trout stream into a water body that is now unsuitable for trout fishing. Under CWA section 402, 33 U.S.C. § 1342, the Act requires permits for the discharge of pollutants into navigable waters. Permits allow the controlled monitoring, inspection, identification of pollutants and treatment standards essential to the successful attainment of the CWA goals. Therefore, in order to continue the discharge of suspended solids, turbidity and elevated temperatures into the Esopus Creek within the limits of the law, the City of New York must be required to apply for and be granted a NPDES/SPDES permit.

Defendants have moved to dismiss Plaintiff’s claim that the discharge of suspended solids constitutes a violation of section 301(a) of the Clean Water Act, pursuant to Rule 12(b)(6), Fed. R. Civ. Pro. Def. Mem., p.12. The standard which the Court must apply when deciding a motion to dismiss is clearly established. The complaint must be liberally construed in favor of the plaintiffs, and it should not be dismissed unless plaintiffs could prove no set of facts in support of their claim which would entitle them to relief. All facts pleaded by the plaintiffs must be taken as true and all reasonable inferences must be drawn in their favor. Furthermore, the complaint will not be dismissed unless some insuperable bar to relief is apparent on its face. Aquilio v. Manaker, NO. 90-CV-45, 91-CV-93, 1991 WL 207473, at *15 (N.D.N.Y. Oct. 10, 1991). Attached as Appendix A. The Court's duty merely is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Russell v. Northrop Grumman Corp., 921 F.Supp. 143, 146 (E.D.N.Y. 1996) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2^nd Cir. 1980)). The appropriate inquiry, therefore, is not "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. 146, (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1976)). Additionally, the Rules do not require the claimant set out in detail the facts upon which he or she bases a claim, but only the claimant gives a statement of the claim that will give defendant fair notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957).

The Complaint clearly alleges that Defendants are in violation of section 301(a) of the CWA, 33 U.S.C. § 1331(a) by their discharge of suspended solids, turbidity and heat from the Shandaken Tunnel into the Esopus Creek without a CWA permit. The deposition of material from one independent body of water to another through a man-made tunnel is established by case law as an "addition" contemplated by the CWA. Accordingly, the Court must deny the Defendants motion to dismiss.

As alleged in the Complaint, the Defendants’ discharges of suspended solids, turbidity and heat into the Esopus Creek are illegal and unpermitted within the meaning of section 301(a) of the CWA, 33 U.S.C. § 1311(a). Cplt. ¶39. The discharge of suspended solids from the Shandaken Tunnel are in the form of fine red clay particles. Cplt. ¶28. Defendants claim that the Plaintiffs Complaint does not literally state that "suspended solids" are a "pollutant" or that the fine red clay particles constitute "pollutants" within the meaning of the CWA. Def. Mem., p.13. The Complaint does, however, clearly state that thermal discharges and increased levels of turbidity constitute pollutants. Cplt. ¶¶33, 34. The American Heritage Dictionary of the English Language (Copyright 1996, Houghton Mifflin Company) defines turbid as "having sediment or foreign particles stirred up or suspended; muddy" while the word turbidity means "muddiness created by stirring up sediment or having foreign particles suspended." The EPA defines turbidity as a measure of suspended solids stated by its Office of Water at: http://www.epa.gov/pwpwwtrl/monitoring/volunteer/stream/vms55.html (describes turbidity as "a measure of water clarity – how much the material suspended in water decreases the passage of light through the water; suspended materials include soil particles such as clay, silt, sand"). The EPA also states that higher turbidity increases water temperatures because suspended particles absorb more heat. Thus, suspended solids, turbidity and thermal discharges are inseparably linked. Indeed, the Complaint makes this linkage clear: "The water of Esopus Creek is naturally more clear, or less turbid and lower in total suspended solids, than the water of the Schoharie basin." Cplt. ¶23.

"Suspended solids" are specifically included in the definition of a "conventional pollutant" in section 304(a)(4) of CWA, 33 U.S.C. § 1314(a)(4). Additionally, under section 502(6) of the CWA, 33 U.S.C. § 1362(6) the definition of "pollutant" means "…heat…rock…sand…" As many courts have held, these natural materials may include the discharge of clay particles and although naturally occurring in the water body, they may still be considered to be a pollutant for purposes of the Clean Water Act. For instance, the court in United States. v. Sinclair Oil Co., 767 F. Supp. 200 (D. Mont. 1990) held that the redeposit in a river bed of indigenous material (including sand, gravel and rocks) for the purposes of maintaining a river channel constituted the addition of a pollutant. A court reached a similar decision in Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9^th Cir. 1990). This case involved a placer mining operation where sand, dirt and clay were left suspended in the wastewater and then redeposited in the stream. The court held that these natural materials from stream beds and banks are pollutants.

A district court should grant a Rule 12(b)(6) motion to dismiss for failure to state a claim only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The Complaint contained ample language surrounding the discharge of suspended solids, turbidity, and heat into the Esopus Creek as well as their impacts on the biological community of the Creek. Defendants in their Motion to Dismiss concede that suspended solids in some circumstances constitute a pollutant and also they do not dispute that suspended solids can be items regulated under SPDES permit. Def. Mem., p13.

In fact, Defendants’ only argument is semantic, as Plaintiffs clearly can prove a set of facts under the pleading that will entitle them to legal relief. Defendants assert that the Complaint does not literally state that suspended solids are a "pollutant." Def. Mem., p.13. However, such meticulous pleading is not required under Fed. R. Civ. Pro. 8(a)(2). The Complaint clearly alleges that Defendants’ discharge of suspended solids is a violation of section 301(a) of the Clean Water Act, Cplt. ¶39, which constitutes a "short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2), Fed. R. Civ. Pro. Defendants characterize this allegation as "nothing more than a bald assertion or conclusion of law." Def. Mem. p.15. On the contrary, Plaintiffs have clearly pleaded the fact that Defendants are discharging suspended solids in violation of the CWA, and it is not necessary to plead the legal conclusion that suspended solids are "pollutants." As discussed supra, it is clearly established that suspended solids constitute a pollutant within the CWA statute. Therefore, the Plaintiffs have sufficiently stated a claim for relief and the Court should deny Defendants’ Motion to Dismiss.

B.        The Suspended Solids that Defendants are discharging from the Shandaken

Tunnel is an "addition" into the Esopus Creek "from" a point source under section 502 of the Clean Water Act.

In their Motion to Dismiss, the Defendants claim that the Plaintiffs Complaint failed to allege any facts which would suggest the discharge of suspended solids constitutes an "addition" under the Clean Water Act. Def. Mem., p14. The Complaint does in fact thoroughly describe the facts and characteristics of the water bodies involved and the "addition" of pollutants from the Shandaken Tunnel into the Esopus Creek. As pleaded in the Complaint, the Shandaken Tunnel begins at the Schoharie Reservoir in Delaware County and passes through Greene County into Ulster County where it discharges into the Esopus Creek. Cplt. ¶19. The Esopus Creek is located in a different watershed than the Schoharie Reservoir and in the absence of the Shandaken Tunnel, water from the Schoharie Reservoir would not reach the Esopus Creek. Cplt. ¶¶22, 37. Water from the Schoharie River enters the Shandaken Tunnel through an intake pipe located on or in the bed of the reservoir and carries the water to be discharged into the Esopus Creek. Cplt. ¶21. The water of the Esopus Creek is naturally more clear, or less turbid and lower in total suspended solids, than the water of the Schoharie basin. Cplt. ¶23. Accordingly, the discharge of these pollutants into the Esopus Creek is the "addition" of a pollutant within the meaning of section 502(12) of the CWA, 33 U.S.C. § 1362(12).

2. The transfer of water containing suspended solids, turbidity, and heat from a reservoir through a tunnel and into an independent watershed is considered an "addition" of a pollutant "from" a point source.

Defendants also contend that the complaint fails to allege any facts to suggest suspended solids were "physically" introduced into the Esopus Creek by the City. Def. Mem., p.14. For their argument, Defendants relied on National Wildlife Foundation v. Gorsuch, 693 F.2d 156 (D.C. Cir.1982), which held that water released from a dam to a stream below was not from a point source and was not an addition, because there can be no addition unless a source "physically introduces a pollutant into water from the outside world." Id. at 175. Gorsuch is clearly distinguished from the case at bar because it dealt with a dam which carried pollutants within a single body of water. The Schoharie Reservoir and the Esopus Creek are separate water bodies in separate watersheds. Cplt. ¶22. But for the existence of the Shandaken Tunnel, the Schoharie Reservoir and the Esopus Creek would never meet. Cplt. ¶37. Water from the Schoharie Reservoir naturally flows north into the Mohawk River, and water from the Esopus Creek naturally flows south into the Hudson River. These two water bodies are therefore distinct and separate, and as such, any "introduction of a pollutant" from the Schoharie Reservoir into the Esopus Creek would have to be from the "outside world."

In Gorsuch, the EPA argued that any addition must occur "from" a point source and not merely through a point source. Id. at 177. The court held that the channel would be considered as a point source itself even though the pollutant merely passed through it from land to navigable water. Id. The rationale behind the court’s decision is based on the EPA’s own regulations, which define "discharge of pollutant" to include "surface runoff which is collected or channeled by man." 40 C.F.R. § 122.3 (1981). Id. Authority for the court’s decision can also be found within the CWA itself under section 502(12) where a "point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, or conduit…from which pollutants are or may be discharged." The discharge of pollutants from the Shandaken Tunnel into the Esopus Creek as alleged in the Complaint is specifically covered under the CWA, EPA regulations and supported by case law. Therefore, the Defendants’ claim that Plaintiffs have failed to allege any facts to prove the City introduced pollutants "from" a point source into Esopus Creek is clearly without merit.

Defendants also cite National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6^th Cir.1988) in support of their case. In Consumers Power Co., the defendants’ pumped storage facility destroyed aquatic life in its turbines and released the remains back into a lake. The court held that this discharge did not constitute an "addition" because it was the movement of pollutants already in the water. However, Consumers Power, like Gorsuch, (an unlike this case) involved movement of materials within the same water body.

A more recent Court of Appeals decision has rejected application of the Gorsuch holding to transfers between water bodies and held such transfers to require a CWA permit. In Dubois v. USDA, 102 F.3d 1273, 1299 (1^st Cir. 1996), cert. denied, 521 U.S. 1119 (1997), the court distinguished between both Gorsuch and Consumers Power Co. by stating:

The Forest Service is simply wrong to analogize the present situation to a dam that merely accumulates the same water, see National Wildlife Federation v. Gorsuch, or a pump storage facility that stores water from one source in a different place, see National Wildlife Federation v. Consumers Power Co., as distinguished from moving different water from one flowing water body into another stationary, colder body. We cannot allow such a watering down of Congress’ clear statutory protections. Id. At 1299.

The court in Dubois held that depositing water from one polluted water body, the East Branch of the Pemigewasset River, into a pristine water body, Loon Pond, constitutes an "addition" of pollutants under the CWA. Because of an expansion of a ski area, extra water for the snowmaking system was pumped from the polluted river into a pristine pond. The court held that this action would introduce pollutants into the pond. The court noted that although the water was hydrologically connected by flow through pipes down from the pond to the river, the water could not flow naturally from the river up to the pond. The court also noted that the river undisputedly contained pollutants not found in the pond and that the water would be subject to private control during the passage through the pipes. The Dubois case is directly on point with the case at bar.

Defendants claim in their motion to dismiss that Dubois can be distinguished from this matter. First, they claim that in Dubois the movement of water was from a Class B to a Class A water body, however both the Schoharie Reservoir and the Esopus Creek are Class A water bodies. Def. Mem., p.24, n.8. This distinction is immaterial. On this issue, the court in Dubois states that "[e]ven if the East Branch were rated in the same general class as Loon Pond (Class A), that would not mean that the two bodies of water were identical in quality, such that a NPDES permit would be unnecessary." Id. at 1298. The Dubois court proceeds to note the differences in the two water bodies, such as temperature, and phosphorus levels that do not make the two water bodies "of like quality." Id. at 1298-99. Similarly, although the Schoharie Reservoir and the Esopus Creek are both Class A water bodies, their physical properties are very different. As pleaded in the Complaint, the water of the Esopus Creek "is naturally more clear, or less turbid and lower in total suspended solids, than the water of the Schoharie basin." Cplt. ¶23. Furthermore, periodically during summer months, "discharges from the Shandaken Tunnel contain elevated temperatures that stress trout populations in the Esopus Creek." Cplt. ¶30.

Defendants also claim that the facts in Dubois can be distinguished from the matter at hand because the pipes that transported the water from the river to the pond in Dubois contained new pollutants to the discharge water, while the Shandaken Tunnel does not add any pollutants to the water that flows through it. Def. Mem., p.23, n.8. However, the court in Dubois held that "even if the pipes add no new pollutants, the transfer of East Branch water through Loon Corp.’s privately owned pipes and its discharge into Loon Pond constitutes a point source discharge of at least some pollutants into the pond, thereby requiring a NPDES permit." Id. at 1298, n.29.

Other cases besides Dubois have also held that diversion of water from one water body into another constitutes an addition. For example, in Del-Aware Unlimited, Inc. et al. v. Department of Environmental Resources, 508 A.2d 348 (Pa. Cmwlth. 1986), appeal denied, 523 A.2d 1132 (Pa. Cmwlth. 1986) the defendant diverted water from the Delaware River to the East Branch to supply water for a cooling nuclear generating system. The court held that the defendant was subject to NPDES requirements for this diversion. See also, Dague v. City of Burlington, 935 F.2d 1343, 1354-55 (2^nd Cir. 1991) cert. granted on other grounds, 502 U.S. 1071 (1992). Although this case discusses the issue of whether or not the pipe that diverts the water is a point source, it implicitly indicates that diversion from one water body into another is an addition. The court rejected the application of Gorsuch, because that case dealt with a single body of water. In Del-Aware Unlimited there were two separate bodies of water. Similarly, as discussed supra, the Schoharie Reservoir and the Esopus Creek are separate bodies of water.

The Complaint clearly alleges that Defendants collect degraded, polluted waters from the Schoharie Basin and add them, through the transfer of a pipe, to the clean waters of the Esopus Creek. This discharge violates water quality standards, and is subject to none of the controls of the CWA permitting system. The First Circuit’s recent holding in Dubois makes it clear that a discharge, such as the case at bar, requires a permit.

III. PLAINTIFFS HAVE PROVIDED SUFFICIENT "FAIR

            NOTICE" OF DEFENDANTS’ CWA SECTION 301(a)

            VIOLATIONS AND THE GROUNDS UPON WHICH THEY

            REST THEREFORE, DEFENDANTS’ MOTION FOR A

MORE DEFINITE STATEMENT SHOULD BE DENIED.

As clearly stated in the Complaint, Defendants are in violation of section 301(a)

of the Clean Water Act, 33 U.S.C.§ 1311(a). Defendants’ discharges of suspended solids, turbidity, and heat from the Shandaken Tunnel into the Esopus Creek without a permit is unlawful. Cplt. ¶16. Plaintiffs have satisfied the elements of a CWA 301(a) claim by pleading in the Complaint that Defendants: 1) discharge pollutants, i.e. suspended solids in the form of fine red clay particles (Cplt. ¶28), turbidity (Cplt. ¶¶27, 34) and thermal discharges (Cplt. ¶¶30, 33), 2) from a point source, i.e. "the Shandaken Tunnel is a "point source" within the meaning of section 502(14) of the Clean Water Act, 33 U.S.C. § 1362(14)" (Cplt. ¶25), 3) into navigable waters, i.e. the Esopus Creek is a "navigable water" within the meaning of section 502(14) of the Clean Water Act, 33 U.S.C. § 1362(14)" (Cplt. ¶26), 4) by a person, i.e. the Defendants are a municipal corporation which operates the Shandaken Tunnel (Cplt. ¶13), and 5) in violation of a permit or without a permit, i.e. Defendants have no NPDES/SPDES permit (Cplt. ¶35). The Complaint has pleaded with specificity the allegations upon which Plaintiffs intend to pursue this case. Therefore, no reason exists to provide Defendants with a more definite statement.

The Court should deny Defendants’ Motion to Dismiss in its entirety. The contents of Plaintiffs notice letter of intent to sue stated with sufficient clarity that the discharge of suspended solids constitutes a violation of section 301(a) of the Clean Water Act. The discharge of these suspended solids from the Shandaken Tunnel into the Esopus Creek is clearly an "addition of pollutants" and a violation of the Clean Water Act in absence of a NPDES/SPDES permit. In the alternative, should the court decide to grant the motion, Plaintiffs respectfully request the court allow leave to replead, since any defects are easily cured.

Dated: June 19, 2000

White Plains, NY

Respectfully submitted,

______________________

KARL S. COPLAN, ESQ

Bar Code 510386

Attorney for the Plaintiffs

Pace Environmental Litigation Clinic, Inc.
78 N. Broadway
White Plains, NY 10603