State of New York v City of Yonkers (2004 NY Slip Op 51908(U))

State of New York v City of Yonkers

2004 NY Slip Op 51908(U)

Decided on October 26, 2004

Supreme Court, Westchester County

Nicolai, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff, the State of New York (hereinafter the State), brings this action against defendant, the City of Yonkers (hereinafter Yonkers), for a permanent injunction compelling Yonkers to abate its discharges of untreated sewage into the Bronx River (hereinafter the River) and for the imposition of statutory penalties on the ground that Yonkers has violated, and is continuing to violate, article 17 of the Environmental Conservation Law (ECL) [Water Pollution Control] and applicable regulations ( 6 NYCRR Parts 701 and 703) and has also caused a public nuisance.

The gravamen of the complaint is that Yonkers has caused or allowed the discharge into the River (which is in the city boundary on the east) of untreated sewage from multiple storm sewer outlets with the result that coliform bacteria are present in the River's waters beyond allowable limits to the detriment of public health, safety, recreational use of the River and the propagation and maintenance of the River's fish population.

Yonkers has joined issue and contends, in a nutshell, that it has not violated any provision of article 17 of the ECL and has been engaged in a comprehensive and costly remediation program to eliminate the pollutants from the River. Briefly stated, Yonkers' position is that it is continuing to work as fast as it can to upgrade the quality of the River's waters and that the impatient State is too hungry to collect penalties from the impecunious city.

In it's first cause of action, the State alleges that Yonkers has been discharging pollutants into the River, a water of the state (ECL 17-0105[2]), from point sources without obtaining the State pollutant discharge elimination system (SPDES) permit required by law in violation of ECL 17-0803, 17-0505 and 17-0701 (1); that, pursuant to Judiciary Law 140-b, the State is entitled to an injunction prohibiting these unlawful discharges; that, pursuant to ECL 71-1929(1), the State is entitled to statutory penalties.

Pursuant to ECL 17-0105 (16), "[p]oint source" is defined so as to include "any pipe, ditch, channel, tunnel, conduit.... from which pollutants are or may be discharged."

SPDES is defined as "the system established pursuant hereto for issuance of permits authorizing discharge to the waters of the state" (ECL 17-0105 [14]).

Section 17-0803 of the ECL provides, in pertinent part, "it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES permit issued pursuant hereto or in a manner other than as prescribed by such permit."

Section 17-0505 of the ECL provides: "The making or use of any outlet or point source discharging into the waters of the State, and the operation or construction of disposal systems, without a valid SPDES permit as provided by section 17-0701 or title 8 hereof are prohibited."

"It shall be unlawful for any person, until a written SPDES permit therefor has been granted by the commissioner, or by his designated representative, and unless such permit remains in full force and effect, to:

(a.) Make or cause to make or use any outlet or point source for the discharge of sewage... into the waters of the state..."

In its second cause of action, the State seeks injunctive relief (Judiciary Law 140-b) and statutory penalties (ECL 71-1929 [1]) on the ground that "Yonkers has discharged, and continues to discharge, organic or inorganic matter into the River, which discharges have caused and contributed to the contravention of 6 NYCRR 701.7, 701.8 and 703.4 (b), water quality standards adopted by the DEC pursuant to ECL 17-0301 [CLASSIFICATION OF WATERS AND ADOPTION OF STANDARDS]."

6 NYCRR 701.7 provides: "The best usage of Class B waters are primary and secondary contact recreation and fishing. These waters shall be suitable for fish propagation and survival."

6 NYCRR 701.8 provides: "The best usage of Class C waters is fishing. These waters shall be suitable for fish propagation and survival. The water quality shall be suitable for primary and secondary contact recreation, although other factors may limit the use for these purposes."

6 NYCRR 703.4 (b) provides, in pertinent part: "Total and fecal coliform standards for specific classes are provided in this section. [*3]

(b) Fecal coliforms (number per 100 ml). [Classes] A,B,C,D,SB,SCThe monthly geometric mean, from a minimum of five examinations, shall not exceed 200."

In its third cause of action, the State alleges that Yonkers' unlawful conduct has created a public nuisance, that Yonkers has received notice thereof, and that Yonkers has failed to abate the nuisance. Pursuant to Judiciary Law 140-b and the common law of nuisance, the State seeks an injunction prohibiting the continuation of the nuisance.

In its answer, Yonkers asserts (in addition to certain admissions, denials and qualified denials) six (6) affirmative defenses:

6. Yonkers "has at all times relevant hereto acted in good faith, with diligence and incompliance with the directions of all appropriate agencies."

The State now moves for summary judgement with regards to its claims for injunctive relief and a severance with regards to its claim for penalties. Included in the moving papers is a proposed order and judgment, 11 pages long, which sets forth in detail what the State wants done and how and when it is to be done.

Efforts have been made, with the court's assistance, both before and after the making of these motions, to reach a settlement of this matter. It was hoped that at least an interim order could be agreed upon. Unfortunately, these efforts have not borne fruit, although no one disputes the need to eliminate pollutants from the River, and substantial efforts have been made to that end. Both parties are in truth the people; the goal to be achieved is the common good, yet the River remains troubled waters.

The Bronx River is a navigable water of the State with its principal headwaters in Davis Brook, Valhalla, New York. Its mouth is 24 miles downstream at the East River in the Bronx. [*4]The River is a valuable resource, but the water quality has been harmed as a result of decades of development within the River's 56 square mile watershed, physical alterations to the River's natural flow, and pollution discharges.

Pursuant to ECL 17-0301 and 6 NYCRR 701.1 et seq., the New York State Department of Environmental Conservation (DEC) has promulgated classifications and standards for the quality and purity of the River's waters. From the River's mouth northward to the East Tremont Avenue Bridge in the Bronx, the River is tidal. This section is classified as Class I saline surface waters. The best uses thereof are secondary contact recreation (boating) and fishing, and the "waters shall be suitable for fish propagation and survival" (6 NYCRR 701.13, 935.6).

Northward of the East Tremont Avenue Bridge, the River is fresh-water. From this bridge north to the Bronx-Westchester border, the River is classified as a Class B fresh surface waterbody. The best uses for this section are "primary (e.g., bathing) and secondary contact recreation and fishing...[and which] waters shall be suitable for fish propagation and survival" (6 NYCRR 701.7, 935.6).

Within Westchester County, the River is classified as a Class C fresh surface waterbody whose "waters shall be suitable for fish propagation and survival" and the "water quality [of which] shall be suitable for primary and secondary contact recreation, although other factors may limit the use for these purposes" (6NYCRR 701.8, 935.6).

State water quality standards regulate the bacterial pathogens in the River by controlling the concentration of fecal coliform, which is an indicator for a variety of bacterial contaminants found in sewage. Pursuant to these standards, within Westchester and within the Bronx north of the Tremont Avenue Bridge, the fecal coliform concentration cannot exceed a monthly average of 200 fecal coliforms per 100 milliliters (one-tenth of a liter or about 3.38 ounces) (6 NYCRR 703.4[b], 935.6).

In a report filed pursuant to section 303 (d) of the Federal Water Pollution Control Act (Clean Water Act) (33 USC 1251, et seq.) in April 1998 with the United States Environmental Protection Agency (EPA), the DEC has designated the primary contact recreation of bathing withing the southernmost 8 miles of the River to be an impaired usage because of the presence of high levels of fecal coliform.

In support of its motion, the State submits, inter alia, the affidavit of Resa A. Dimino, Director of Programs and Development at the Bronx River Alliance, Inc., a non-profit organization established in 2001 to protect, improve, and restore the River and to complete the Bronx River Greenway. In her affidavit, Dimino summarizes the efforts being made to upgrade the River and its environs and states that in the Bronx the River increasingly is used by children and adults for recreation, for boating, swimming, education, research and fishing. She also states that the State has issued fish consumption advisories detailing the dangers in eating fish caught in the River.

Because of concerns about the quality and safety of the River's waters, the New York State Attorney General's Environmental Protection Bureau in 2002 undertook a Bronx River Watershed Enforcement Initiative to compel abatement of pollution discharges into the River. Settlements have been reached with the Bronx Zoo and the New York Botanical Garden, and other investigations are pending.

On April 16, 2002, the State gave written notice to Yonkers of its investigation into [*5]illegal discharges of untreated sewage into the River. On June 14, 2002, the State provided Yonkers written notice that Yonkers was liable for the illegal discharges and asked Yonkers to abate these discharges.

In the vicinity of the River, Yonkers owns storm sewers which drain into the River. (Yonkers also owns sanitary sewers which drain into sewage treatment plants located in the south-western portion of the city.) The State alleges that there are at least 32 pipes that discharge into the River. The State contends that at least four (4) of these pipes discharge untreated sewage into the River on a continuous basis both in dry weather and during storms, although the storm sewers are primarily for the disposal of surplus runoff from rain and melting snow and not for the disposal of untreated sewage.

The State specifies in its complaint (par 28) these four (4) primary locations on the west shoreline of the River as approximately:

The State contends that these discharges have been occuring since at least 1999 and perhaps for decades earlier. Yonkers admits that storm sewers drain into the River in or around these locations. (It is noted that the proposed order lists 17 outfalls in need of remediation.)

The State contends that laboratory analysis of water samples taken in dry weather (defined in the proposed order as a condition in Yonkers in which there is currently no precipitation or snow melt within an outfall's drainage area and there has been no such precipitation or snow melt greater then .1 inch of rain or its snow melt equivalent during the previous 48 hours) between 1999 and late 2001 from discharges at the first three (3) above-listed outfalls revealed high concentration of fecal coliform, sometimes higher than 50,000 units per 100 milliliters, and that the volume of the discharges from all four (4) were substantial.

Yonkers does not admit these specifics, but admits that the city has conducted and continues to conduct inspections and sampling at locations along the River.

In support of its motion, the State submits the affidavit of Judith Schreiber, Ph.D., Senior Public Heath Scientist and Chief Scientist of the Environmental Protection Bureau of the New York State Office the Attorney General (OAG). (Extensive exhibits are attached.) Schreiber states, inter alia, that the risks to human health from contact with sewage in water have been long recognized. She states that the contamination of surface water with sewage exposes people in contact with the water to various bacterial pathogens including ESCHERICHIA COLI (E.COLI) and that the diseases associated with waterborne infections include "mild to life-threatening gastroenteritis, hepatitis, skin infections and generalized infections" (citing MANUAL OF ENVIRONMENTAL MICROBIOLOGY, 1997, p.136)

"Yonkers discharge of untreated sewage from storm sewer pipes into the Bronx River is contributing to the failure to attain health related water quality for the Bronx River. The discharges pose significant and unacceptable health risks to the numerous people who come into contact with the River's water. Unless Yonkers is required promptly to abate its discharges, these health risks are likely to increase considerably in the future." [*6]

In support of its motion, the State also submits the affidavit (with extensive exhibits) of Robert Bode, a Research Scientist and head of the Stream Biomonitoring Unit of the DEC. He states he is "an expert in assessing macroinvertibrate populations to evaluate the water quality of streams and the cause of impairments to water quality."

Bode states, inter alia, that "[a] healthy stream is characterized by a diverse, well-balanced biological community of algae, fish and macroinvertibrates" He defines macroinvertibrates to be "the insects, crustaceans, mollusks, and worms that are found in nearly every stream." He states that a stream's biological components "are linked together in a complex food web."

Bode states that macroinvertibrates show a wide range of sensitivity to pollution, and "their presence, absence or abundance is a reflection of conditions in the stream for the past few months." According to Bode "[a] healthy stream contains many species that are sensitive to pollution, such as mayflies, stoneflies, and some caddisflies."

In assessing a stream for the impact of pollution, Bode gives four (4) levels of severity:

According to Bode, four (4) macroinvertibrate studies of the River, two (2) by DEC and two (2) by the New York City Department Environmental Protection (DEP), have shown that most of the River has poor water quality. The sampling sites in all the studies were Valhalla, White Plains, Tuckahoe, and the Bronx. The studies were done in 1997, 1998, 2002, and 2003, respectively. All showed that the River waters were slightly impacted at Valhalla and moderately impacted at the other test sites. Bode states "streams with moderately or severely impacted water quality are regarded as having limitations on their ability to support the propagation of many fish species because of impairments of the food chain and other adverse effects."

Bode states that these studies indicate that the likely major cause of the impairment of the River in the Yonkers stretch and below was sewage discharges into the River. He concludes that the polluted condition of the River makes the reproduction of trout and similar fish unlikely, that the discharges from the Yonkers storm sewer outlets are significant contributors to the poor water quality and "[t]hese discharges of untreated sewage must be abated if the River's ecological health is to be restored."

The State also submits in support of its motion the affidavit of Patricia Primi, an Environmental Scientist in the Environmental Protection Bureau of the OAG. Primi outlines in detail the investigative work which has been done on behalf of both parties to determine the source of the sewage contamination of the River and the remedial steps which have been undertaken by Yonkers to date (the date of the affidavit is February 27, 2004). Exhibits are attached.

Primi states, inter alia, that OAG started its investigation of sewage discharges into the River in spring 2002. She reviewed documents provided by DEP, including photographs of storm sewer outfalls at Glen Road and McLean Avenue that were discharging liquids in dry weather and the results of analytical tests of these discharges carried out between June 1999 and December 2001. The results showed fecal coliform contamination to very excessive degrees [*7](e.g., at Glen Road, ranging from 16,000 to 308,500 per 100 milliliters).

According to Primi, OAG also retained Long Island Analytical Laboratories, Inc. (LIAL) to conduct a dry weather survey and sampling to determine whether these discharges of sewage at the Glen Road and McLean Avenue outfalls found by DEP in 1999, 2000 and 2001, were continuing, whether any other Yonkers storm sewer north thereof were also discharging sewage, and, if so, the volumes and concentrations thereof. She states that the LIAL test results showed that 17 Yonkers sewer outfalls were discharging significant fecal coliform bacteria and other contamination to the River in dry weather and to the extent of many times the applicable water quality standard of 200 coliforms to 100 milliliter. One testing denominated "Tuckahoe D58" and taken on June 17, 2003, for example, showed 16,000,000 coliforms per 100 milliliter at a flow rate of two (2) gallons per minute.

Primi states she was present at the River on March 18, 2003 when LIAL conducted part of the survey and sampling and personally observed, inter alia,, a strong septic odor and toilet tissue emerging in the discharge from the McLean Avenue outfall.

Primi states that Yonkers did respond to the OAG investigation and conducted TV inspections of the storm sewers involved in the sewage discharges (see infra). Thereby, Yonkers identified addresses it suspected of having sanitary connections to the storm sewers and forwarded these to the Westchester County Health Department (WCHD) for investigation and enforcement. In October 2003, Yonkers began its own investigation and enforcement efforts.

Primi also states that in October 2002, Yonkers contracted with Fred A. Cook Inc. (Cook) to conduct TV inspections of the storm sewer lines in issue. Cook spent 37 days in the field making videotapes. An area not inspected was the Grassy Sprain outfall, which has not been videotaped..

In the course of the TV inspection, Yonkers documented 2,459 service connections to the storm sewers, of which fewer than 1,200 were observed to be "capped", i.e., no longer allowing non-storm water into the storm sewers. Yonkers classified 105 of the non-capped connections as possible sanitary connections allowing sewage to flow into storm sewers and thence into the River.

Primi points out that other connections seen on TV may also convey sewage into the storm sewers, but may not have been passing sewage when observed because of the periodic nature of expelling sewage from both private residences and businesses. Between November 2002 and July 2003, Yonkers requested WCHD to investigate 208 addresses, but a later identified 45 suspect addresses were not forwarded to WCHD. To date, 253 suspected addresses have been identified.

Primi also states that between November 2002 and May 2003, WCHD completed 42 dye tests at suspect addresses and did other investigations. Yonkers has done its own dye tests-35 to date. Of the total 77 dye tests, 44 were negative, 33 were positive and 14 have been corrected.

Primi also states that investigations showed several "cross connections" between Yonkers sanitary sewers and Yonkers storm sewers. One cross connection of particular importance at Tuckahoe Road near the intersection of Park View Road was repaired , as confirmed by dye testing on August 20, 2003. Other cross connections exist (five [5] are identified), however, according to Primi, Yonkers has not provided OAG with evidence that these cross connections have been repaired. [*8]

Primi concludes that OAG's investigations have found large volumes of untreated sewage are being discharged into the River from Yonkers storm sewer outfalls and that the investigation and elimination of the discharges are "substantially incomplete".

The State also admits in support of its application the affidavit of Michael Veraldi, the Laboratory Director at LIAL, who in the winter and spring of 2003 directed LIAL's performance of a field-survey and dry weather sampling along the stretch of the River that borders Yonkers to the west. (Exhibits are also submitted). The task of LIAL was to field survey both sides of the River along that eight (8) mile stretch for any pipes that drain into the River. Each pipe was to be photographed and its cooridinates determined; each pipe's size and material of construction were to be noted.

Veraldi also states that the dry weather flows from any of the pipes were to be documented and characterized by sampling. The samples were to be analyzed for PH, temperature, total suspended solids, dissolved oxygen and fecal coliform. Ambient samples were also to be taken from the River itself both upstream and downstream of each dry weather discharge and analyzed.

Sampling was conducted on or about January 15, January 16, March 18, March 19, March 25, May 15 and June 17, 2003-all dry- weather dates. Veraldi states he directly supervised all aspects of the project and described each step. The results confirmed, in his professional opinion, "that the Bronx River has and is continuing to receive dry-weather discharges that are contaminated with raw sewage."

The State also submits the affidavit of Marian Pompa, Jr, P.E., Associate Engineer with the Bureau of Environmental Quality of the WCDH. Among his duties is the investigation into water quality problems within Westchester County resulting from problems with the operation and maintenance of sanitary sewer systems. Since March 2002, he has had primary responsibility at WCDH to identify problems with the Yonkers sewer systems.

Pompa states, inter alia, that in September and December 200 and January 2001, the County requested Yonkers to reline various sanitary sewers within the River's basin to prevent continued exfiltration of sewage into the Yonkers storm sewers. Yonkers, in July 2002, stated that it had relined 6,000 linear feet of sanitary sewers during the months of January and February 2001. In June 2003, WCDH was informed of a possible discharge of untreated sewage into the River from the Yonkers Tuckahoe Road storm sewer outfall. Yonkers was informed, and, by August 20, 2003, the sewer had been repaired. Pompa also details other repair projects where Yonkers eliminated crossovers and relined over 3,000 linear feet of sewers.

Pompa also describes further WCDH assistance to Yonkers in investigating possible discharges of sewage into the storm sewers and the conducting of dye tests. However, because of the large volume of Yonkers requests, in July 2003, Yonkers was informed that WCDH could no longer render assistance. Yonkers was advised to rely on its own authority and resorces to investigate and remedy violations.

Pompa concludes that untreated sewage has been discharging into the River from Yonkers storm sewers. He states it was uncertain how much of the discharges are caused by defects in the sewage systems which result in transmission of sewage into the storm sewers and how much from connections between private sanitary lines and Yonkers storm sewers.

In opposition to the State's application and in support of its cross motion, Yonkers [*9]submits, inter alia, the affidavit of Andrew A. Api, P.E., City Engineer of the City of Yonkers since 1997, whose 33 year career has included designing, overseeing construction and maintenance and repair of city sewers in the Bronx, Manhattan and Yonkers.

Api outlines in detail the Yonkers sewer systems, both "combined" and "separate". In a combined system, both sanitary sewage and storm water drain together into a sewage treatment facility. The Westchester County Sewage Treatment facility is located in southwest Yonkers. Treated sewage is discharged therefrom into the Hudson River. All of the Yonkers sanitary sewers and some Yonkers storm sewers flow into this facility.

According to Api, the storm water sewer system in issue herein is a separated system. Api states that Yonkers has the proper permit pursuant to article 17 of the ECL to allow the discharge of storm water into the Bronx River.

(3) In the remainder of the city, there are about 56 miles of storm sewers and about 110miles of sanitary sewers. Total milage is about 220.

(4) Yonkers has about 190,000 residents, and virtually all households are served by thissystem. There are tens of thousands of house connections.

(5) On average, sewer pipes are most commonly at depths of about 10 to 12 feet. Pipediameters vary from 6 inches to 72 inches.

(6) Yonkers responds to complaints and investigates problems. Some problems areobvious as they show on the surface; others are reported by other agencies or theCounty.

(7) Inspection of sewer pipes requires the hiring of a contractor to run video camerasthrough the pipes, a technology available only within the last 10 to 15 years.

(8) In 1993, Westchester County began a program to address the excess flows of sewageinto the County's sewage treatment facility. All municipalities were directed to begina program of lining sanitary sewers that the County had found to be leaking. Yonkerscomplied at a cost of $2,200,000.00.

(9) There is a state-wide DEC program, in two (2) phases, with regard to storm water, thefirst phase applicable to municipalities larger then Yonkers.

(10) Under the second phase, Yonkers, in March 2003, filed a Storm Water ManagementProgram (SWMP), which was accepted by DEC.

(11) Yonkers has also submitted a Notice of Intent pursuant to the State EnvironmentalQuality Review Act (SEQRA) to participate in Phase II and complied withDEC's requests to acquire a SPDES permit for its storm water systems.

Api also opines that the State has greatly oversimplified the problem of fecal contamination in the River and in the outfalls from storm drains by positing that there are only two (2) possible sources of contamination, viz., illegal tie-ins and cross-overs from sanitary sewers. Api states that fecal contamination can come from various species of warm blooded [*10]animals, e.g., squirrels, raccoons, etc., domesticated animals such as dogs and cats, and improper disposal of other waste. Contamination can also come from groundwater sources, commercial water use, outdoor residential use and domestic water runoff. Accordingly, states Api, the State oversimplifies the steps necessary to stop contamination, which can include erosian control, retention systems at construction sites, etc.

Api also contends that it is "fundamental unfairness" to seek penalties from Yonkers, that

the fish population data are not relevant to the State's motion, and that plaintiff does not address other sources of water which can run into storm sewers in dry weather, e.g., ground water, water used for firefighting, car washing, lawn watering, etc. He contends that the State is rushing to judgment without giving Yonkers due credit for all the videotaping, dye testing and repairs which the city has accomplished. He concludes that Yonkers is proceeding fully in accordance with its SWMP.

Yonkers also submits the affidavit of William M. Schneider, P.E., Deputy Commissioner of the Department of Housing and Buildings of the City of Yonkers since July 1, 2002. Previously, he worked for WCHD for about 15 years investigating water quality throughout the County.

Schneider discusses the SWMP of Yonkers filed with the DEC by the deadline of March 2003. He contends that DEC contemplated a later date for compliance than the date the OAG commenced this action (in 2002). He opines that the problem of fecal contamination cannot be treated solely as a point source violation (storm sewer outfalls into the River), but must be attacked in a comprehensive manner with the cooperation of the residents in the watershed.

As to the State's proof, Schneider states, inter alia, that water samples can vary greatly even over short intervals - perhaps only minutes apart - and that there are other potential sources of fecal coliform such as non-human animals. He contends that various control measures are needed.

Schneider also states that the water quality of the whole River needs to be considered because it is necessary to study the quality of the water as it flows into Yonkers as a factor in evaluating Yonkers' responsibility for the quality of the water as it flows into the Bronx.

Yonkers also submits the affidavit of William Finn, since April 2003 the Construction Analyst Manager of the City of Yonkers' Engineering Department. Prior to this he was employed for 15 years by Insituform Technologies, a sanitary sewer rehabilitation company.

Finn states, inter alia, that he is responsible for overseeing Yonkers' collection systems, focusing especially in the River's drainage area so as to identify and remediate any problems with the sewer system. He describes the remediation program as systematic and as beginning with a mapping of the sewers in the River's drainage area. When the sewers were mapped, Yonkers spent about $6,250.00 to clean them.

According to Finn, Yonkers contracted with Fred Cook, Inc., to inspect the storm sewers in the River's drainage area via closed circuit television at a cost of over $79,000.00. To date, about 18.45 miles have been videotaped. Thirty-five (35) videotapes have been submitted to the State for review.

Finn also describes the procedures for contacting homeowners to investigate possible illegal ties into storm sewers by conducting dye tests. When an illegal connection is confirmed, a formal notice of violation is sent, and the homeowner is advised to remove the illegal connection. [*11]Failure to comply makes the homeowner liable for penalties.

Finn states that about 187 dye tests have been performed, 30 illegal connections have been confirmed, and 14 thereof have been repaired by homeowners. The average cost is $6,000.00. He also states that 20 apartment buildings were found to be connected illegally and all have been repaired. One repair, of a 100 unit complex, was done by Yonkers at a cost of about $30,000.00.

Finn also describes certain repairs to sanitary sewers done by the city in order to keep sewage out of the storm sewers, one of which cost the city about $100,000.00. Yonkers has also entered into two (2) contracts, at a total cost of about $500,000.00, with Entech Corp. to remediate sanitary sewer problems in the River's drainage area.

Finn denies that Yonkers has in any way delayed or slowed its efforts at investigation and remediation of sewer problems. He states that to date Yonkers has spent over $1,000,000.00 on the sewer systems.

The Court is of the opinion, and so holds, that the State has established its right to summary injunctive relief pursuant to all three (3) causes of action, with the claims for statutory penalties to be severed and continued.

There is no doubt that untreated sewage has been, and is being, discharged into the River from stormwater outlets owned by and under the control of Yonkers. All expert testimony on both sides agrees on this, and there is nothing of any detail submitted by Yonkers to refute the scientific data and testing results submitted by the State as to the levels of coliform bacteria found in the River. The State has made a compelling case that this pollution of the River has made its waters unsafe for recreational purposes, dangerous to human health and detrimental to the propagation and maintenance of the fish population.

Where it is shown that there are no triable issues of material fact summary judgment is warranted (Zuckerman v City of New York, 49 NY2d 557; Andre v Pomeroy, 35 NY2d 361). The opposing party must show that there are questions of fact requiring a trial (Fairfield Affiliates v Rosenbaum, 232 AD2d 522; Crage v Kissing Bridge Ski Area, 186 AD2d 987). Unsubstantiated and speculative doubts about the State's testing results are not enough (Shivers v National Westminster Bank of N.A, 211 AD2d 630; C.D. Parry Co. v Nichter, 244 AD2d 444; Columbus Trust Co. v Campolo, 110 AD2d 616, 617).

Despite the substantial and significant efforts at remediation made by Yonkers, the law is clear that there is strict liability for violations of article 17 of the ECL, which complies with and implements the Federal Clean Water Act (33 USC 1251 et seq.) (State of New York v Mount Hope Asphalt Corp. 163 Misc 2d 778; United States v Gulf Park Water Co., Inc., 972 F.Supp 1056, 1059 [S.D. Miss. 1997]; Stoddard v Western Carolina Regional Sewer Authority, 784 F.2d 1200 [4th Cir. 1986]; United States v Earth Sciences, Inc., 599 F.2d 368 [10th Cir. 1978]).

It is sufficient to establish liability herein that the point source (outlet) belongs to Yonkers because "... a point source need not be the original source of the pollutant; it need only convey the pollutant to navigable waters' ..." (South Florida Water Management Dist. v Miccosukee Tribe of Indians, ___ U.S. ___, 124 S. Ct. 1537, 1543).

The affirmative defenses are of no avail. The State clearly has a right of action under ECL 71-1929 and Judiciary Law 140-b, and the complaint states viable causes of action under these statutes (as well as under the common law of nuisance). A showing of violation of health [*12]or safety regulations is enough to support an injunction without need to balance the equities. (State of New York v Izzo, 216 AD2d 456, 457; State of New York v Merion Blue Grass Sod Farm, 122 AD2d 789; State of New York v Brookhaven Aggregates, 121 AD2ds 440.)

A public nuisance "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all... in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons" (Copart Industries, Inc. v Consolidated Edison Co. of New York, Inc., 41 NY2d 564, 568 [citations omitted]).

Discharging untreated sewage (or other pollutant) into a stream is a public nuisance (Matter of City of Johnstown v Water Pollution Control Bd. of State of New York, 12 AD2d 218; Leo v General Electric Co., 145 AD2d 291 [PCB's into Hudson River]). A party is liable in nuisance even if other contributors to the nuisance are not joined for "nuisance liability is joint and several" (State of New York v Schenectady Chems., 103 AD2d 33, 38). No fault-based allegations are necessary to sustain a public nuisance cause of action (New York Trap Rock Corp. V Town of Clarkstown, 299 NY 77, 80-81; United States v Hooker Chemicals & Plastics Corp., 722 F. Supp 960, 968 [N.D. N-Y 1989]). Accordingly, Yonkers' claim to immunity because it has acted only passively or in good faith is without merit.

Yonkers most attractive argument is that it is in compliance with all laws (third affirmative defense) because it does have the required SPDES permit, and companion Stormwater Management Program SWMP), viz., General SPDES permit GP-02-02. The State does not dispute that Yonkers has the permit, but contends that this does not allow the discharge of raw sewage into the River. The State also contends that the Yonkers SWMP is inadequate.

The preface to the General Permit which covers all of New York State, states, in pertinent part:

"Authorization to discharge under the State Pollutant Discharge Elimination System

"In accordance with the provisions of the Clean Water Act, as amended, (33 U.S.C. 1251 et seq.) operators of small municipal separate storm sewer systems (MS4s) located in New York State, are authorized to discharge to waters of the United States in accordance with the conditions and requirements set forth herein.

"Only those operators of stormwater discharges from small MS4s who prepare a stormwater management program and submit a Notice of Intent in accordance with Part II of this permit are authorized to discharge under this general permit."

Part I, B, 1, of the Permit authorizes discharge of stormwater from MS4s. "Stormwater" is defined as "that portion of precipitation that, once having fallen to the ground, is in excess if the evaporative or infiltrative capacity of soils, or the retentive capacity of surface features, which flows or will flow off the land by surface runoff to waters of the State" (6 NYCRR 750-1.2(87).

Part I, B, 2 of the Permit authorizes certain non-stormwater discharges "provided the Department has not determined them to be substantial contributors of pollutants to a particular [*13]small MS4 applying for coverage under this permit." Then are listed 21 items (a) through (u) such as "water line flushing" and "landscape irrigation", etc.. The last item is "any SPDES permitted discharge." Sewage (untreated or not) is not on the list.

"1. Stormwater discharges that are mixed with non-stormwater or stormwater associated with industrial activity unless such discharges are:

Yonkers contends, however, that there is a safe harbor provision in Part IV of the Permit [SWMP] which allows the discharge of sewage into the River, at least until March 2008, when the SWMP is to be fully operative. Part IV B. [requirements] mandates that operators of small MSFs "develop, implement, and enforce" a SWM P"designed to reduce the discharge of pollutants from small MS4s to the maximum extent practicable" to meet water quality standards.

In Part IV C, six (6) "Minimum Control Measures" are set forth. Control measure number 3 [Illicit Discharge Detection and Elimination] states, in pertinent part:

a) develop, implement and enforce a program to detect and eliminate illicit discharges (as defined at [CFR] Section 122-26 (b)(2)) into the MS4;"

Yonkers argues that this provision allows a period of time in which detection and elimination of sewage (and other pollutants) may proceed without fear that a MS4 operator will suffer the imposition of monetary penalties. If this is not the case, argues Yonkers, then there would be no incentive for a MS4 operator to engage in remediation (a "damned if you do and damned if you don't" situation"). [*14]

In response to this argument, the State submits the reply affidavit of Scott Crisafulli, Esq., Chief of the Bureau of Enforcement and Compliance Assurance of the DEC. He states, inter alia, that the limitations of coverage in Part I, C (supra) are controlling in DEC's interpretation and application of the Permit and that a separate SPDES permit is never issued so as to allow the discharge of untreated sewage into the waters of the State. He also points out that the discharges of sewage which are the basis of this action occurred in dry weather conditions and, therefore, were not contained in stormwater runoff. Therefore, the General Permit for MS4s would not confer a period of immunity for dry weather discharges of sewage into the River, and Yonkers has been in violation of ECL 17-0803, which prohibits discharge of pollutants to the waters of the State without a SPDES permit.

"Nothing in this permit shall be construed to preclude the institution of any legal action or relieve an MS4 from any responsibilities, liabilities, or penalties established pursuant to any applicable state law or regulation under authority preserved by Section 510 of the Clean Water Act."

As to the practical role of the "minimum control" by Control Measure 3, Crisafulli states:

"In many instances, DEC believes that the minimum control' provided by Control Measure 3 may be sufficient to address water quality problems posed by illicit discharges from a municipality. However, in other situations where these measures are insufficient to protect public health and the environment in a timely fashion and to ensure compliance with law, DEC can prosecute an enforcement action administratively, or a judicial enforcement action can be brought by the Attorney General's Office. Pursuant to Parts VI.L and VI.O.1 of the General Permit, these circumstances include situations, such as this one, where State water quality standards are violated."

The State's position on this issue of law is compelling, and to allow the footnote relied upon Yonkers to be determinative would be to allow the tail to wag the dog. "DEC, as a State agency, has broad powers to construe the statutes and regulations it administers and should be upheld unless such construction is unreasonable or irrational" (NYPIRG, Inc. v Williams, 127 AD2d 512, 513). The practical result is that there is no safe harbor for a discharge of untreated sewage into the waters of the State, even though the DEC may abstain from legal action, if a Control Measure 3 program is deemed adequate.

The State's motion is to be granted as to injunctive relief, and the issue of penalties (ECL [*15]71-1929) is to be severed and continued (Catskill Mountains Chapter of Trout Unlimited, Inc. v City of New York, 244 F. Supp2d 41, 48 [N.D.NY]). Yonkers' cross motion is to be denied in all respects.

As to the substance (nuts and bolts, so to speak) of the injunctive relief sought, which is set forth in the proposed order and judgment, the ordering paragraphs of which are annexed as an appendix hereto, the Court notes that there is no objection stated in Yonkers' papers as to the feasibility thereof. This was also the understanding of the Court at the holding of the latest conference. Now, in correspondence, Yonkers indicates that there are some objections (difficulties).

This matter should not be unduly protracted, and the measures sought by the State appear reasonable and in accordance with the evidence in the record. However, in order to allow for possible technical adjustments and practical compromises, the Court directs that the State serve an order and judgment, on notice, in accordance herewith, with leave to Yonkers to submit a counter-order and judgment. Indeed, it might be possible for the parties once again to try to hammer out the details and consent to an order and judgment.