United States v. City of New York

179 F.R.D. 373, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20573, 41 Fed. R. Serv. 3d 920, 1998 U.S. Dist. LEXIS 6874, 1998 WL 240316
CourtDistrict Court, E.D. New York
DecidedMay 4, 1998
DocketNo. 97 CV 2154(NG)(SG)
StatusPublished
Cited by10 cases

This text of 179 F.R.D. 373 (United States v. City of New York) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. City of New York, 179 F.R.D. 373, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20573, 41 Fed. R. Serv. 3d 920, 1998 U.S. Dist. LEXIS 6874, 1998 WL 240316 (E.D.N.Y. 1998).

Opinion

MEMORANDUM AND ORDER

GERSHON, District Judge.

This action has been brought pursuant to Section 1414(b) of the Safe Drinking Water Act (“SDWA”), 42 U.S.C. § 300g-3(b). The United States of America, acting at the request of the Administrator of the United States Environmental Protection Agency (“EPA”), alleges that the City of New York (“the City”) and the New York City Department of Environmental Protection (“NYC-DEP”) are in continuing violation of the Surface Water Treatment Rule (“SWTR”), 40 C.F.R. §§ 141.70-141.75, promulgated under Section 1412 of SDWA, 42 U.S.C. § 300g-l.

The State of New York and the Commissioner of the New York State Department of Health have intervened as plaintiffs with the consent of the United States and the City. Presently before the court are the motions of three other entities — the City of Yorktown, New York (“Yorktown”), the City of Yonkers, New York (“Yonkers”) and the Croton Watershed Clean Water Coalition, Inc. (“the Coalition”), an organization consisting of environmental groups and individual water rate payers and taxpayers from New York City and the Croton watershed counties of Westchester and Putnam — to intervene as defendants pursuant to Federal Rule of Civil Procedure 24. For the reasons stated below, these motions are denied.

BACKGROUND

A. The Croton Watershed.

According to the complaint, the City obtains water for a population of approximately 9 million people from a number of surface water sources found outside of the City’s borders. Among these are the twelve surface reservoirs and three controlled lakes that make up the Croton watershed portion of the City’s water supply. In recent years the Croton watershed has normally accounted for about tell percent of the City’s water consumption.

In 1991, a City report entitled New York City’s Long-Range Water Quality, Watershed Protection and Filtration Avoidance Program concluded that the safety of water from the Croton watershed should be ensured through filtration treatment. In 1992, the City entered into a stipulation with the New York State Department of Health pursuant to which the City acknowledged that it was required by federal and state law to build a filtration plant for the Croton watershed. The stipulation further provided that the City would have the final design of the plant completed by July 1995 and that construction of the plant would be completed by [376]*376July 1999. To date, however, the City has not completed the design of the plant, has not chosen a site for the plant and has not commenced construction.

On January 13, 1991, the EPA, acting pursuant to powers granted it by SDWA, issued a determination to the effect that SWTR required the City to undertake to provide for filtration and disinfection of water from the Croton watershed. Although the City was informed by the EPA of its rights to challenge the determination through administrative procedures, such a challenge was not undertaken.

This action was filed on April 24, 1997. The United States alleges that, because the City has to date failed to filter and disinfect water from the Croton watershed, it has been in violation of the terms of the EPA’s determination since mid-1993. In its prayer or relief, the United States seeks to have the City enjoined from further violations of SDWA and SWTR and the issuance of an order compelling the City to site, design, construct and operate a filtration plant for the Croton watershed on an expeditious schedule. The United States also seeks the imposition of civil penalties against the City for violations of SDWA and SWTR.

B. The Proceedings.

The United States, the State and the City have indicated a willingness to attempt to resolve this action through the negotiation of a consent decree, and I have referred them to Magistrate Judge Steven J. Gold, who has been supervising the parties’ negotiations. Any proposed agreement must be filed with the court at least thirty days before it is entered, during which time the United States “will receive and consider, and file with the court, any written comments, views or allegations relating to the proposed judgment.” 28 C. F.R. § 50.7.

C. The Motions To Intervene.

The three proposed intervenors have filed separate motions for intervention. Yorktown declares that it has a vital interest in this action “because there is a high probability that if the plaintiffs prevail, Yorktown may become the site of an enormous water filtration and disinfection facility ... which will result in significant harm to the residents of Yorktown.” Consequently, Yorktown seeks to intervene in order to prevent a “wholly arbitrary and capricious” effort “to foist a filtration plant on a community outside of [the City’s] political boundaries.”

Similarly, Yonkers seeks to intervene because of the possibility that it will be the site of a filtration plant for the Croton watershed. Specifically, Yonkers asserts that the site for the filtration plant may be on property owned by New York City at the Hillview Reservoir, located in the City of Yonkers. Thus, echoing Yorktown, Yonkers declares that, absent intervention, it “faces the prospect of being forced to accept a filtration plant, even though other sites under consideration may well be more cost effective, adversely affect fewer people, and provide greater benefits to a larger number of users of the New York City water supply.”

Both Yorktown and Yonkers also assert that they will be damaged no matter where the Croton watershed filtration plant is built, because certain residents and businesses in both municipalities obtain water from the Croton watershed. They anticipate that the cost of building a filtration plant, regardless of where it is sited, will likely be passed on to Croton watershed ratepayers, including, perhaps disproportionately, their residents.

Finally, the Coalition characterizes itself as “a membership corporation that includes consumers of drinking water from the Croton watershed including people of color from New York City, water rate payers, taxpayers and residents of New York City and the watershed counties of Westchester and Putnam, and many other individuals interested in the preservation of water quality in the Croton watershed.” The Coalition seeks to intervene in order to assert the position— which it contends is not being asserted by any of the existing parties — that “filtration of the Croton water supply is not only unnecessary, but dangerous to consumers, fiscally wasteful and irresponsible, and destructive of any concept of enlightened planning.” They also claim that the over-development that filtration will encourage will have effects that [377]*377will fall disproportionately upon minority communities.

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179 F.R.D. 373, 30 Envtl. L. Rep. (Envtl. Law Inst.) 20573, 41 Fed. R. Serv. 3d 920, 1998 U.S. Dist. LEXIS 6874, 1998 WL 240316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-city-of-new-york-nyed-1998.