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  • Family Law Unit: Legal Assistance to Victims | Pace Law School
    Victims Family Law Unit attorneys provide the full range of comprehensive civil legal services to victims and survivors of domestic violence in Westchester and Putnam Counties including orders of protection custody visitation child support spousal support or maintenance property issues divorce immigration and other matters The Family Law Unit provides bilingual legal services education and outreach on domestic violence issues and the law to communities in Westchester and Putnam Counties

    Original URL path: http://law.pace.edu/family-law-unit-legal-assistance-victims (2016-02-12)
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  • Westchester Division | Pace Law School
    Calendar January Admits Registrar Bursar Shuttle Bus Schedule Campus Map Departmental Directory Give to Pace Law School Web Mail Pace University Search form Search You are here Home Services and Programs Westchester Division The Westchester Division of the Pace Women s Justice Center makes legal information and referral resources readily available through our Legal Helpline 914 287 0739 Staff attorneys provide general guidance and information to callers about their legal rights navigating the court system and attorney referrals Issues include but are not limited to Custody Child support Spousal support Orders of protection Divorce Landlord tenant issues Consumer rights Moderate Means Matrimonial Panel The Moderate Means Matrimonial Panel provides a valuable resource to those who are above federal poverty guidelines but cannot afford the prevailing rates for private divorce attorneys Clients are screened based on income and if accepted are referred to an attorney who will represent them at a substantially reduced rate Private attorneys are recruited to serve on the panel and receive ongoing training by Center staff on domestic violence child support and other issues For more information call 914 287 0739 Publications We distribute user friendly plain language Center publications in both English and Spanish entitled Divorce

    Original URL path: http://law.pace.edu/westchester-division (2016-02-12)
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  • Immigration Justice Clinic Client Eligibility Standard | Pace Law School
    You or your family are eligible without regard to income under federal state or local entitlement programs to receive legal assistance from legal services organizations or In cases of special hardship where a potential client is unable to afford to pay a fee normal for the nature and extent of professional services required in the matter for which legal representation is requested JJLS may take into consideration such factors as the client s income assets current indebtedness health condition institutional confinement unemployment and unemployability the difficulty novelty and unpopularity of the legal issues the importance of the rights that would be protected by the legal representation and the estimated cost of the legal services In certain circumstances JJLS will make an exception and consider representing immigrants who do not meet any of the criteria listed above If you have not already contacted other attorneys or a lawyer referral service we may ask you to do so If you believe that you meet the JJLS guidelines and you wish to consider student representation please complete the Inquiry Record posted separately on our Website and send mail or fax it to the Pace Immigration Justice Clinic at John Jay Legal Services Inc If it appears that your case may be suitable for student representation a law student will call you to learn more about your case and if appropriate to arrange an interview at the Law School After that meeting if both you and the Clinic agree that the Clinic may appropriately represent you in this matter you and the Clinic will enter into an agreement authorizing the Clinic to represent you If based on the Inquiry Record your problem does not appear suitable for the Clinic you will be notified by letter Whenever possible we will provide advice about alternative sources of representation Clients must pay all fees and costs other than legal fees necessary to seek an immigration remedy The clients must pay these fees directly to the appropriate court or agency when required The Clinic lacks the resources to accept every eligible case A decision not to offer representation in your case is not a decision about the merit of your particular legal position Immigration Justice Clinic De Elegibilidad Para Ser Clientes El programa de Immigration Justice Clinic la Clínica de John Jay Legal Services Inc JJLS es una organización no lucrativa ubicada en la Facultad de Derecho de Pace que provee asistencia a los inmigrantes quienes no pueden obtener representación legal por que carecen de los recursos económicos suficientes para pagar la cantidad necesaria dado lo complicado y lo difícil de sus problemas legales Los estudiantes de derecho bajo la supervisión de un miembro de la facultad representan a inmigrantes en busca de regularizar su estado o defenderse contra removida por el gobierno de los Estados Unidos No se cobra por los servicios legales proveídos por la Clínica JJLS y Pace son instituciones con limitados recursos y solo pueden proveer representación a un pequeño numero de individuos en

    Original URL path: http://law.pace.edu/immigration-justice-clinic-client-eligibility-standard (2016-02-12)
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  • Investor Rights Clinic Client Eligibility Standard | Pace Law School
    customers in handling their disputes with broker dealers JJLS and Pace are educational institutions and have no affiliation with the Financial Industry Regulatory Authority FINRA JJLS has the following eligibility guidelines Your household s annual income should not exceed 100 000 Your claim should not exceed 100 000 You should not have any major assets e g vacation homes other non retirement investments except your home your car and the investments that led to the losses in dispute You should be a resident of New York State now or have been a resident of New York State when the disputed transactions occurred In certain circumstances JJLS will make an exception and consider representing investors who do not meet all of the criteria listed above If you have not already contacted other attorneys or a lawyer referral service we may ask you to do so If you believe that you meet JJLS s guidelines and you wish to consider student representation of your claim please complete the attached questionnaire and send it to the Pace Investor Rights Clinic at John Jay Legal Services Inc If it appears that your case may be suitable for student representation a law student will call you to learn more about your case and to arrange an interview at the Law School After that meeting if both you and the Clinic agree that the Clinic may appropriately represent you in this matter you and the Clinic will enter into an agreement authorizing the Clinic to represent you If based on the questionnaire your matter does not appear suitable for the Clinic you will be notified promptly by letter General information about the securities arbitration process is available on FINRA s website at finra org ArbitrationMediation index htm Investors are responsible for all costs other than legal

    Original URL path: http://law.pace.edu/investor-rights-clinic-client-eligibility-standard (2016-02-12)
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  • Esopus Creek | Pace Law School
    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 s pecific 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 He rcules 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 II PLAINTIFFS HAVE ADEQUATELY STATED A CLAIM 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 A The Complaint adequately establishes that the materials that Defendants are discharging from the Shandaken Tunnel constitute pollutants as defined by the EPA and CWA 1314 a 4 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

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  • DEP Hiring | Pace Law School
    Oil case this argument is inapplicable because the rule of substantial performance applies only to contracts and permits are not contracts A federal court has similarly rejected Defendants mutual assent interpretation argument Defs Mem at 12 in City of Hoboken 675 F Supp at 195 The City of Hoboken court addressed the issue of whether mutual assent was required for a permit assuming arguendo that the permit language was unclear Id The court explicitly rejected the defendant s argument that its National Pollutant Discharge Elimination System NPDES permit was a contract between the Environmental Protection Agency EPA and the permittee Id The court went on to note that a search for shared intentions is largely inappropriate in interpreting a permit in a pollution by permit case Id at 196 citing American Lung Ass n 670 F Supp at 1289 91 Thus the court wholly rejected the defendants argument that its intentions be manifested in the permit City of Hoboken at 196 Using the tools of statutory construction the court found instead the interpretation of the EPA to govern and granted the Unites States motion for summary judgment in full Id A search for shared intentions is largely inappropriate in interpreting permits because they are regulations or rules issued by a state or federal agency Logically the rules of contract law are not used to interpret them Traditional rules of statutory construction apply to permits American Lung Ass n 871 F 2d at 319 Shell Oil 840 F Supp at 716 City of Hoboken 675 F Supp at 195 96 Public Interest Research Group of New Jersey Inc v Yates 790 F Supp 511 514 D N J 1991 C Defendants Permit Does Not Allow Overtime to Satisfy the Requirement That They Maintain 72 Staff Members As with any statute or regulation the starting point for interpretation is the language of the permit Defendants permit provides The permittee shall maintain minimum staffing positions committed to implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times DEP Permit no NY 0026131 McIntosh Aff Ex A This language explicitly requires that Defendants arrange to have a 72 member staff not a 63 member staff working overtime The permit speaks of staff members not staff member equivalents as Defendants would gloss it And the permit requires good faith efforts to keep the staff member positions filled with staff members at all times not just in times of budget surpluses or overtime shortages In applying the rules of permit construction courts generally defer to the permit drafting agency s interpretation Shell Oil 840 F Supp at 716 The DEC Administrative Law Judge in approving this compromise language in Defendants permit stipulated on the public judicial record that T he proposed conditions require the City to maintain a minimum of 72 staffing positions for the pretreatment program despite budget problems Interim Hearing Report at 6 McIntosh Aff Ex C Defendants ignore this clear order when they suggest that the IPP staffing provision was written specifically to account for certain hiring constraints that a government employer works under such as budgetary constraints and hiring freezes Defs Mem p 17 The Adminsitrative Law Judge s interpretation of DEC s permit writing authority is consistent with the provision s plain language 72 actual full time staff members are required despite certain hiring restraints caused by the City s budget problems See City of Hoboken 675 F Supp at 195 96 Shell Oil 840 F Supp at 717 The U S Environmental Protection Agency EPA has also indicated its position that overtime equivalents cannot be used to achieve permit compliance In its June 29 1994 audit of the Industrial Pretreatment Program the EPA cited numerous deficiencies in New York City s implementation of its Industrial Pretreatment Program including the Defendants reliance on overtime measures to meet their permit obligations In approving the permit the EPA stated that the city must make every effort to maintain the staffing level as required by the IPP and the City s SPDES permits The City can not rely indefinitely on the use of overtime and other measures to implement the IPP and comply with the approved IPP and SPDES requirements Letter of Patrick M Durack of the EPA to Philip Grande of the DEP dated Feb 3 1995 Ex B to McIntosh Aff In a letter from the United States Environmental Protection Agency to the Chief of the Industrial Pretreatment Program then called the Industrial Waste Control Section retroactively approving the permit modification the EPA asserted that m aintaining 72 positions in the Industrial Waste Control Section IWCS is necessary to ensure that the IPP is adequately implemented Letter from Patrick Durack of EPA to Larry Klein June 18 1992 McIntosh Aff Ex O D The Clean Water Act Requires Strict Compliance With Permit Conditions and Violations Are Not Excused by Substantial Compliance or a Lack of Specific Harm Demonstrably Traceable to the Violation The CWA makes unlawful the discharge of any pollutants into the nation s navigable waters except as authorized by a permit issued under the Act CWA 301 a 33 U S C 1311 a Section 402 of the CWA provides for the issuance of permits for the discharge of any pollutant upon the condition that such discharge meets applicable CWA requirements CWA 402 33 U S C 1342 See CWA 301 a 33 U S C 1311 a see generally Student Public Interest Research Group of New Jersey Inc v P D Oil Chemical Storage Inc 627 F Supp 1074 1078 1079 D N J 1986 The enforcement language in 309 of the CWA makes a person liable for a violation of any condition or limitation in a permit issued by a State CWA 309 a 33 U S C 1319 a 1 Thus Defendants discharge of enormous amounts of pollutants from its 14 sewage treatment plants is legal only so long as it is in strict

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  • DEP Hiring - MOL | Pace Law School
    a 33 U S C 1365 a emphasis added For purposes of 505 a person is defined as any individual corporation partnership municipality CWA 501 5 33 U S C 1361 5 Section 505 f defines the term effluent standard or limitation to include a permit or condition thereof issued under 402 of this Act CWA 505 f 33 U S C 1365 f Hence the CWA gives citizens the right to enforce NPDES and SPDES permit provisions when permit holders violate those provisions STATEMENT OF FACTS The Defendant DEP is the city agency charged with the operation of the fourteen New York City publicly owned sewage treatment plants DEP operates these sewage treatment plants under a SPDES permit issued by the New York State DEC pursuant to the Clean Water Act 33 U S C 1251 et seq Section 402 b of the CWA allows States to develop and administer CWA permit programs 33 U S C 1342 b Section 309 a 1 3 of the CWA allows states to issue SPDES permits and enforce the conditions and limitations 33 U S C 1319 a 1 3 On September 30 1988 DEC issued SPDES permits to the DEP to operate New York City s 14 sewage treatment plants STPs These permits require among other things that the DEP implement an Industrial Pretreatment Program In July 1991 the permits for all of New York City s plants were modified to require inter alia minimum staffing of the IPP at 72 individuals This permit modification arose as a direct result of Plaintiff s enforcement efforts In December 1988 Plaintiff and others challenged the legality of Defendant s SPDES permit by suing DEC the issuing body in state court The lawsuit was based in part on DEC s failure to include numerical toxic limits in the pretreatment section of Defendant s permit The state court found in Plaintiff s favor and ordered DEC to hold permit hearings Following three years of negotiations between Defendant Plaintiff the federal EPA and others DEC issued an amended version of SPDES permit 0026131 in July 1991 The new permit required that t he permittee shall m aintain minimum staffing positions committed to the implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times See SPDES Permit 0026131 IV B 6 page 21 Ex A to Affidavit of Michael McIntosh sworn to on Nov 16 1995 McIntosh Aff By committing itself to a firm 72 staffers the City persuaded EPA and the Plaintiff here to withdraw their administrative challenge to the pretreatment section of Defendant s permit The permit requires 72 staff members in the IPP there are no provisions in the permit authorizing any alternative equivalents to substitute for the 72 staff member requirement See SPDES Permit 0026131 Ex A to McIntosh Aff Letter of Patrick M Durack of the EPA to Philip Grande of the DEP dated Feb 3 1995 Ex B to McIntosh Aff Grande Letter In issuing the pretreatment program permit provisions Administrative Law Judge O Connell clarified the provision The proposed conditions require the City to maintain a minimum of 72 staffing positions for the pretreatment program despite budget problems See Second Interim Decision of the Commissioner July 16 1991 p 6 Ex C to McIntosh Aff emphasis added At no point between July 26 1991 and June 1995 did the Defendant maintain staffing levels at 72 staff members See Def s Responses to Pl s First Set of Interrogs 3 6 Ex E to McIntosh Aff Def s Responses to Pl s Second Set of Interrogs 2 Ex F to McIntosh Aff Def s Revised Supplemental Responses to Pl s First Set of Interrogs Ex G to McIntosh Aff Daily Employment History for Industrial Pretreatment Program Employees Ex H to McIntosh Aff Graphical Illustration of IPP Staffing Levels from 7 91 to 6 95 Ex I to McIntosh Aff This is in direct violation of the staffing provision of their SPDES permit During this period at least 64 applicants submitted resumes to the DEP seeking employment in the Industrial Pretreatment Program See Applicant Resumes Ex J to McIntosh Aff There was no lack of applicants with the requisite qualifications for employment in the Industrial Pretreatment Program See Dep Philip Grande Jr at 64 lines 23 25 Ex K to McIntosh Aff Dep of Robert LaGrotta at 145 lines 4 7 Ex L to McIntosh Aff At least one applicant during this time period was determined by the DEP to be a qualified candidate and was to be processed for hiring See Interdepartmental Memo from Robert LaGrotta to Elizabeth Simmons dated March 2 1994 Ex M to McIntosh Aff Letter from Marilyn Gelber to Marla Wieder Ex R to Affidavit of Marla Wieder sworn to on November 15 1995 Wieder Aff After being promised the job and waiting for several months to be hired this applicant was advised that she could not be employed by the DEP due to a hiring freeze Id emphasis added Defendant has continuously failed to comply with the permit provisions requiring the Defendant to make good faith efforts to maintain 72 staff members Accordingly the Plaintiff Hudson Riverkeeper Fund Inc commenced this citizen s suit on October 6 1994 Because the undisputed facts in Defendant s own interrogatory responses and other documents demonstrate that Defendant failed to hire qualified staffers at levels mandated in Defendant s SPDES permit the Court should grant Plaintiff for Motion for Partial Summary Judgment and declare Defendant to have violated its permit ARGUMENT I RIVERKEEPER HAS STANDING BECAUSE ITS MEMBERS HAVE BEEN INJURED BY DEFENDANT S VIOLATION OF ITS SPDES PERMIT The Plaintiff has standing to bring this action on behalf of its members because it satisfies the test the Supreme Court set forth in New York State Club Association v City of New York 487 U S 1 1988 Furthermore Defendant s noncompliance with its permit provisions causes pollution that is harmful to Plaintiff This harm amounts to injury in fact as defined by Sierra Club v Morton 405 U S 727 1972 Having satisfied the necessary prerequisites the Riverkeeper has standing to bring this action against the DEP A Plaintiff s Organization Meets the Standing Requirements for Organizations A membership organization has standing to sue on behalf of its members when a its members would otherwise have standing to sue in their own right b the interests the suit seeks to protect are germane to the organization s purpose and c neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit New York State Club Association v City of New York 487 U S 1 9 1988 quoting Hunt v Washington Apple Advertising Comm n 432 U S 333 343 1977 Plaintiff brings this action on behalf of its members The Riverkeeper is a non profit conservation organization whose primary purpose is to preserve and protect the beauty quality and biological integrity of the Hudson River and its tributaries Members of the Riverkeeper enjoy the Hudson River for a number of activities including boating and recreational and commercial fishing Affidavit of Robert Gabrielson sworn to on Nov 15 1995 paras 3 5 Gabrielson Aff Affidavit of John Cronin sworn to on Nov 14 1995 paras 2 4 Cronin Aff Affidavit of Robert H Boyle sworn to on Nov 16 1995 paras 3 5 The protection of the water quality of the Hudson River and the survival of the biota in the Hudson River are central concerns to the Riverkeeper s purpose Therefore the Plaintiff has standing to bring this action on behalf of its members B Riverkeeper Has Standing Because Its Members Have Suffered Injury In Fact That Is Causally Related To Defendant s Violation Of Its SPDES Permit Individual members of Riverkeeper have been injured in fact sufficiently to satisfy constitutional requirements for standing Injury in fact is an invasion of a legally protected interest which is a concrete and particularized and b actual or imminent not conjectural or hypothetical Lujan v Defenders of Wildlife 504 U S 555 560 1992 citations omitted The Supreme Court has held that harm to aesthetic interests environmental well being economic harms or recreational interests is sufficient to confer standing Sierra Club v Morton 405 U S 727 734 1972 The Second Circuit has held that a person who regularly uses an area has standing Friends of the Earth v Consolidated Rail Corp 768 F 2d 57 61 2d Cir 1985 Thus a plaintiff who states that he swim s in the river occasionally fishes in the river and has and will continue to use the river has asserted sufficient injury in fact to sue Id In the instant case John Cronin Hudson Riverkeeper and Executive Director of the Hudson Riverkeeper Fund Inc has submitted an affidavit attesting that he lives on the shoreline of the Hudson and enjoys fishing swimming hiking and wildlife watching in or along the Hudson River Cronin Aff para 3 Mr Cronin attests that he is unable to fish as he has in the past because of the risk to his health if he was to consume the fish that he caught Cronin Aff para 15 He attributes this to a health advisory that declares the existence of PCBs in the Hudson River fish Cronin Aff para 15 Mr Cronin s Affidavit alone which shows injury to his aesthetic and environmental interests is sufficient to meet the Friends test for injury in fact Plaintiff has also submitted the affidavit of Robert Gabrielson a member and director of Riverkeeper Mr Gabrielson has been a commercial and recreational fisherman on the Hudson River for the past fifty years Gabrielson Aff para 3 Mr Gabrielson is angry and frustrated because he has lost over half of his income because toxic pollutants that contaminate the fish in the Hudson River have resulted in a total ban on commercial fishing of certain species Id at paras 3 5 Fish Consumption Advisories issued by the DEC restrict human consumption of fish from the Hudson either entirely for American eel White perch White catfish Carp or to a limit of one meal per month Walleye Smallmouth bass Bluefish Rainbow smelt Striped bass Northern pike Largemouth bass Atlantic needlefish Tiger muskellunge or in the case of Blue crab to no more than six per week The State of the City s Waters 1994 The New York Harbor Estuary New York City DEP p 22 Ex P to McIntosh Aff DEP Harbor Study Mr Gabrielson has been involved in catching fish for the Department of Health to determine the PCB concentration in the fish flesh Mr Gabrielson is completely restricted from commercially fishing striped bass and catfish because the fish flesh concentration of PCB s still exceed the U S FDA safe level of 2ppm Gabrielson Aff para 5 Mr Gabrielson said the Department of Health shut me down twenty years ago because of the health risk from contaminated fish He is very discouraged and disappointed that after all this time toxic pollutants are still being discharged into the river and the fish cannot be fished commercially because of the levels of contamination Id at para 3 Clearly Mr Gabrielson has suffered both recreational and economic injuries which satisfy the Friends of the Earth test Plaintiff s injuries also satisfy the more restrictive test announced in Public Interest Research Group v Powell Duffryn Terminals Inc 913 F 2d 64 3d Cir 1990 cert denied 498 U S 1109 see also NRDC v Texaco 2 F 3d 439 505 3d Cir 1993 reaffirming Powell Duffryn after decision in Lujan V Defenders of Wildlife supra The Powell Duffryn court found that a CWA plaintiff has Article III standing where the injuries suffered were of the type caused by the type of pollutants discharged by defendants without requiring a strict showing that the plaintiff s injuries were in fact caused by defendants own pollutants 931 F 2d at 71 72 In 1994 the DEP itself published a study endorsed by Mayor Giuliani and Defendant Gelber which stated that toxic substances continue to enter New York Harbor via sewage effluent and described how toxic pollutants such as PCBs bioaccumulate in the food chain and become a health risk to humans who might consume the contaminated fish DEP Harbor Study p 22 Ex P to McIntosh Aff This report also states that wastewater is the source of 32 of metal pollutants and 21 of PCB s in New York Harbor Id p 29 The EPA s Hudson Harbor Study shows that City sewer plants continue to be a significant source of discharges of PCBs into the Hudson River The City s failure to maintain proper staff levels in its Industrial Pretreatment Program therefore directly harms Mr Gabrielson Clearly Mr Gabrielson has suffered economic harm caused by the additional levels of toxic pollutants and PCBs permitted to enter the Hudson River because of the Defendant s failure to employ the requisite 72 employees to run the IPP as required by its SPDES permit Plaintiff has demonstrated that its members have suffered an injury a total ban on commercial fishing for striped bass and catfish caused by the kind of pollutant emitted by Defendant PCBs Thus Plaintiff s members have suffered injuries which meet the injury in fact requirement of standing under Powell Duffryn II DEFENDANT HAS VIOLATED AN EFFLUENT LIMITATION OF THEIR SPDES PERMIT To prevail on a motion for summary judgment the moving party must establish that there is no genuine issue of material fact to be submitted to the trier of fact and that the movant is entitled to judgment as a matter of law Fed R Civ P 56 c Binder v Long Island Lighting Co 933 F 2d 187 191 2d Cir 1991 The moving party bears the initial burden of informing the district court of the reasons for its motion and identifying those portions of the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any which it believes demonstrates the absence of a genuine issue of material fact Celotex Corp v Catrett 477 U S 317 323 1986 A violation of a provision of a SPDES permit issued under the authority of 402 of the CWA 33 U S C 1342 constitutes a violation of an effluent standard or limitation enforceable under 505 of CWA 33 U S C 1365 the citizen suit provision 33 U S C 1365 f 6 The interpretation of the terms of a permit is a matter of law for the court Student Public Interest Research Group of New Jersey Inc v Hercules Inc 1986 WL 6380 11 D N J California Public Interest Research Group et al v Shell Oil Company 840 F Supp 712 716 N D Ca 1993 It is not a question of fact for the jury See id Thus here it is the court s function to determine the meaning of the permit provision Factors for consideration include the plain language of the permit provision itself and its historical background See Hercules at 11 13 DEP s SPDES Permit 0026131 IV b 6 requires that the permittee shall m aintain minimum staffing positions committed to implementation of the Industrial Pretreatment Program at 72 staff members and make good faith efforts to keep such positions filled at all times See SPDES Permit p 21 Ex A to McIntosh Aff Defendant s own admissions demonstrate that it has failed to comply with this permit provision This is an incontrovertible violation of the Clean Water Act A Defendant Failed to Maintain 72 Staff Members DEP s SPDES permit became effective on July 29 1991 at no time from that date until July 1995 did DEP have 72 staff members implementing the Industrial Pretreatment Program Defendant s own interrogatories responses show that it did not have 72 staff members for that period See Def s Responses to Pl s First set of Interrogs No 3 6 Ex E to McIntosh Aff Def s Responses to Pl s Second Set of Interrogs No 2 Ex F to McIntosh Aff Def s Revised Supplemental Responses to Pl s First Set of Interrogs Ex G to McIntosh Aff Daily Employment History for Industrial Pretreatment Program Employees Ex H to McIntosh Aff Graphical Illustration of IPP Staffing Levels from 7 91 to 6 95 Ex I to McIntosh Aff Records of staffing history produced by the Defendant indicated the dates of employment of every staff member employed in the IPP program from July 1991 to June 1995 Id These records show that prior to June 1995 the monthly total never reached the requisite minimum level of 72 staff members See Graphical Illustration of IPP Staffing Levels from 7 91 to 6 95 Ex I to McIntosh Aff Furthermore the Division Chief of the Division of Drainage Basin Management which incorporates the IPP program admits that during his employment in that position from August 1992 through the present day the IPP had less than 72 staff members See Dep Philip Grande Jr at 28 lines 14 18 Ex K to McIntosh Aff Defendant s own admissions clearly show that it violated its permit by failing to maintain minimum staffing positions at 72 staff members mandated by its permit to implement the IPP program Plaintiff is therefore entitled to Summary Judgment B Defendant Failed to Make Good Faith Efforts to Keep the Mandated Positions Filled at All Times Defendant s hiring practices from July 29 1991 to June 1995 do not reflect good faith efforts to keep 72 IPP positions filled at all times as required by its SPDES permit The failure to fill the 72 IPP positions at any point during the four year period itself demonstrates the Defendant s lack of good faith That demonstration is further bolstered by the availability of qualified applicants for positions in the Industrial Pretreatment

    Original URL path: http://law.pace.edu/dep-hiring-mol (2016-02-12)
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  • Hudson Riverkeeper Fund, Inc. v. Town of Yorktown | Pace Law School
    its tributaries Affidavit of Robert H Boyle sworn to on Apr 24 1996 Boyle Aff 2 Riverkeeper members and directors enjoy the watershed and tributaries for activities including but not limited to recreational fishing boating and aesthetic pleasure Affidavit of Robert B Hodes sworn to on Apr 24 1996 Hodes Aff 8 Boyle Aff 13 14 Members and directors also use the watershed for their drinking cooking and bathing water in New York City and Westchester Affidavit of David Fell sworn to on Oct 10 1996 Fell Aff 5 10 Affidavit of Anne Hearst sworn to on Apr 25 1996 Hearst Aff 5 10 The protection of the Hudson Valley Watershed and its tributaries is a central concern to the Riverkeeper s purposes Therefore the Plaintiff has standing to bring this action on behalf of its members B Plaintiff Has Standing Because Its Members And Directors Have Suffered Injury In Fact That Is Causally Connected To Defendants Violations Of Their SPDES Permit Plaintiff members injury in fact satisfies constitutional standing requirements Injury in fact is an invasion of a legally protected interest which is a concrete and particularized and b actual or imminent not conjectural or hypothetical Lujan v Defenders of Wildlife 504 U S 555 560 1992 citations omitted The harm to aesthetic interests environmental well being economic interests or recreational interests is sufficient to confer standing Morton 405 U S at 734 35 In Friends of the Earth v Consol Rail Corp 768 F 2d 57 61 2d Cir 1985 the Second Circuit ruled that an affidavit in which an affiant stated that he passes the Hudson regularly and find s the pollution in the river offensive to his aesthetic values and another affiant who occasionally fishes in the river and has and will continue to picnic along the river are sufficient to show the injury in fact required by Morton with respect to CWA violations See also RITE Research Improves the Env t v Costle 650 F 2d 1312 1319 5th Cir 1981 discussing organizational standing One who enjoys a waterway recreationally has standing to sue another who pollutes it and an organization of which he is a member may sue on his behalf See e g Chesapeake Bay Found v American Recovery Co Inc 769 F 2d 207 4th Cir 1985 NRDC v Outboard Marine Corp 692 F Supp 801 N D Ill 1988 Plaintiff amply satisfies this test Robert Hodes a Riverkeeper Member has fished recreationally in trout streams of the Hudson Valley for many years concentrating mainly in the Muscoot River into which Hallocks Mill Brook empties Hodes Aff 4 Mr Hodes is angry and frustrated because he would ordinarily fish the Muscoot River 25 or more times this season but because the fishing has deteriorated markedly over the past five years the Muscoot River is no longer worth the visit Id at 5 7 Mr Hodes has personally observed the deterioration of the Muscoot River particularly downstream from the Hallocks Mill Brook outlet

    Original URL path: http://law.pace.edu/hudson-riverkeeper-fund-inc-v-town-yorktown (2016-02-12)
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