Long Island Soundkeeper Fund v. NYC DEP (Nitrogen Case) | Pace Law School

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Long Island Soundkeeper Fund v. NYC DEP (Nitrogen Case)

Summary: In this citizen suit under the Clean Water Act ("CWA") § 505, 33 U.S.C. § 1365 (1997), Plaintiffs seek to enforce State Pollutant Discharge Elimination System ("SPDES") permit provisions requiring Defendants to lower their discharge of pollutants, particularly nitrogen, into the East River and Jamaica Bay from eight of their water pollution control plants ("WPCPs").
 

PLAINTIFSS MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS

 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LONG ISLAND SOUNDKEEPER FUND, INC., TERRY :

BACKER, THE SOUNDKEEPER, RIVERKEEPER, INC.,

JOHN CRONIN, THE RIVERKEEPER, AMERICAN :

LITTORAL SOCIETY, INC., D.W. BENNETT,

EXECUTIVE DIRECTOR, ANDREW WILLNER, :

THE BAYKEEPER, RALPH ALTUCHOFF, SUSAN

BELLINSON, JIM HOGAN, and MATTEO ROSELLI, :

 

Plaintiffs, :

STATE OF CONNECTICUT, :

Intervenor-Plaintiff, : 98 CIV 1635 (RJD/RLM)

- against - :

 

NEW YORK CITY DEPARTMENT OF :

ENVIRONMENTAL PROTECTION, and

JOEL A. MIELE, COMMISSIONER, :

 

Defendants. :

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PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS'

MOTION TO DISMISS THE COMPLAINT OR, IN THE ALTERNATIVE,

TO STAY THIS ACTION

PRELIMINARY STATEMENT

Plaintiffs respectfully submit this memorandum in opposition to the Motion to Dismiss the Complaint or, in the Alternative, to Stay this Action filed by Defendants, the New York City Department of Environmental Protection ("DEP") and Joel A. Miele, Commissioner of DEP. In this citizen suit under the Clean Water Act ("CWA") § 505, 33 U.S.C. § 1365 (1997), Plaintiffs seek to enforce State Pollutant Discharge Elimination System ("SPDES") permit provisions requiring Defendants to lower their discharge of pollutants, particularly nitrogen, into the East River and Jamaica Bay from eight of their water pollution control plants ("WPCPs").

Defendants have filed this motion to dismiss on several grounds, none of which have any merit. First, Defendants claim that a subsequent enforcement action, filed by the New York State Department of Environmental Conservation ("NYSDEC") in the New York Supreme Court, New York County, preempts Plaintiffs' citizen suit. This assertion is contrary to the language of the CWA and all reported authority.

Defendants next assert that the Court should abstain from exercising jurisdiction over Plaintiffs' citizen suit by dismissing the action, or in the alternative, staying the proceeding. However, this dispute does not involve identical parties as required for abstention, nor does it provide "exceptional circumstances" in which the Court should decline to exercise its jurisdiction. Therefore, the Court should permit Plaintiffs' action proceed to its merits.

Finally, Defendants move for dismissal of Plaintiffs' claims regarding settleable solids violations, claiming that this parameter is a state requirement that is unenforceable by Plaintiffs in a federal citizen suit. In fact, settleable solids parameters are enforceable permit limitations, which are within the scope of regulations contemplated by the CWA. Hence, the Court should deny Defendants' motion to dismiss this part of Plaintiffs' Complaint.

In conclusion, Plaintiffs request that the Court deny Defendants' Motion to Dismiss or Stay in its entirety.

FACTUAL SUMMARY

Most of the facts of this case are undisputed. Defendants discharge effluent into the East River and Jamaica Bay from eight of its WPCPs in New York City. (Defendants' Memorandum of Law in Support of their Motion to Dismiss the Complaint or, in the Alternative, to Stay this Action ("Defendants' Memorandum of Law" or "Defs.' Mem. of Law") at 5.) Under the CWA, such discharges are illegal unless in compliance with a permit issued pursuant to the National Pollutant Discharge Elimination System ("NPDES") permit, or a SPDES permit, which limits the kinds and quantities of pollutants in such discharges. (Defs.' Mem. of Law at 3-4.) Defendants hold SPDES permits for the WPCPs of Wards Island, Bowery Bay, Hunts Point, and Tallman Island, with respect to their discharges into the East River. (Defs.' Mem. of Law at 5.) Defendants hold SPDES permits for the WPCPs of Jamaica, Coney Island, 26th Ward, and Rockaway, with respect to their discharges into Jamaica Bay. (Defs.' Mem. of Law at 5.) Each of these permits establish parameters for pollutant effluent levels, including Settleable Solids, (Defs.' Mem. of Law 26-28), and Total Nitrogen. (Defs.' Mem. of Law at 5.) It is not disputed that under the CWA and the terms of their permits, Defendants are required to sample their effluent and report those results to NYSDEC. (Defs.' Mem. of Law at 4.)

After discovering Defendants' reported permit violations, Plaintiffs gave notice of their intention to file a CWA suit on December 18, 1997, (Affidavit of Karl S. Coplan, sworn on May 15, 1998 ("Coplan Aff."), ¶ 9), as mandated by the CWA. See CWA § 505(b), 33 U.S.C. § 1365(b). Plaintiffs intended to file their suit promptly on February 16, 1998, the first day beyond the 60-day notice period. (Coplan Aff. ¶ 9.) Between December 18, 1997, and February 16, 1998, NYSDEC took no administrative, civil or criminal enforcement actions against Defendants based on the violations alleged in Plaintiffs' notice letter. (Coplan Aff. ¶ 10.) However, on February 6, 1998, NYSDEC's Region II office ("DEC Region II") informed Attorneys for Plaintiffs that it would file an administrative order or a civil suit against Defendants prior to February 16, 1998, unless Plaintiffs agreed to meet with DEC Region II to discuss Defendants' compliance with their SPDES permits. (Coplan Aff. ¶ 11.) Plaintiffs so agreed on the condition that neither NYSDEC nor Plaintiffs take any legal action prior to February 23, 1998. (Coplan Aff. ¶ 12, Ex. A at 1.) On Wednesday, February 11, 1998, Attorneys for Plaintiffs met with DEC Region II regarding Defendants' permit violations. (Coplan Aff. ¶ 14.)

Then, on Friday, February 20, 1998, Plaintiffs agreed to meet with Region II and the New York City Law Department ("Attorneys for Defendants"), attorneys for Defendants, on Wednesday, February 25, 1998. (Coplan Aff. ¶ 16, Ex. B, Ex. C.) To facilitate this meeting, DEC Region II and Plaintiffs again agreed to postpone any legal action. (Coplan Aff. ¶ 16, Ex. B, Ex. C.) DEC Region II agreed not to file suit until Friday, March 6, 1998, while Plaintiffs agreed not to file until Monday March 9, 1998. (Coplan Aff. ¶ 16, Ex. B, Ex. C.) As planned, Attorneys for Plaintiffs, Region II and Attorneys for Defendants met on Wednesday, February 25, 1998, to discuss the violations alleged by Plaintiffs. (Coplan Aff. ¶ 17.) As stated in Defendants' Memorandum of Law, "no resolution was reached as a result of this meeting." (Defs.' Mem. of Law at 6.) During the ensuing week, it was determined by all parties that another meeting would not be productive. (Coplan Aff. ¶ 18.)

On Friday, March 6, 1998, DEC Region II informed Attorneys for Plaintiffs that it, in conjunction with the New York Attorney General's office ("NYAG"), it would be filing a complaint in state court by the end of the day. (Coplan Aff. ¶ 19.) DEC Region II further stated that it would provide confirmation of its filing to Attorneys for Plaintiffs that evening. (Coplan Aff. ¶ 19.) Attorneys for Plaintiffs did not receive such confirmation that evening. (Coplan Aff. ¶ 20.) Displeased with the fact that Defendants' violations had gone uncorrected and unenforced for 80 days after their filing notice, Plaintiffs decided to file their Complaint with this Court on Monday, March 9, 1998. (Coplan Aff. ¶ 21, Ex. D.)

Plaintiffs' Complaint was filed with this Court at 8:36 a.m. on Monday, March 9, 1998. (Coplan Aff. ¶ 21, Ex. D.) Later that day, NYSDEC filed an action in state court against the Defendants in this action, alleging violations similar to those alleged in Plaintiffs' letter of intent to sue. (Coplan Aff. ¶ 22.) NYSDEC filed its Verified Complaint at 9:00 a.m., Monday, March 9, 1998. (Coplan Aff. ¶ 22, Ex. E), twenty-four minutes after Plaintiffs filed their Complaint with this Court. (Coplan Aff. ¶ 21, Ex. D.) Therefore, at the time Plaintiffs' action was commenced, the State of New York had not commenced any action. Defendants' assertion that "NYSDEC filed its action simultaneously with [P]laintiffs' action" is incorrect. (Defs.' Mem. of Law at 16).

ARGUMENT

I. PLAINTIFFS' CITIZEN SUIT IS NOT PREEMPTED BY THE STATE'S SUBSEQUENT ACTION AGAINST THE DEFENDANT.

Defendants argue that Plaintiffs' citizen suit is precluded under section 505(b)(1)(B) of the CWA because the State of New York is diligently prosecuting an action in state court for the same violations which are the subject of Plaintiffs' Complaint. (Defs.' Mem. of Law at 9.) In setting forth a two-part test for the application of 505(b)(1)(B) bar, (Defs.' Mem. of Law at 12), Defendants omit an essential precondition: the existence of a pending state court action prior to the commencement of the citizen suit. Both the language of the CWA and case law establish that where this precondition is not met, a citizen suit cannot be precluded by the

505(b)(1)(B) bar. Any similarity between enforcement actions, the diligence of NYSDEC's

prosecution, or any opportunity for intervention into state court, (Defs.' Mem. of Law at 13, 14, 19), is inconsequential, as the 505(b)(1)(B) bar cannot be applied. Therefore, section 505(b)(1)(B) of the CWA does not provide any grounds for dismissal of Plaintiffs' citizen suit.

A. Section 505(b)(1)(B) is Not Applicable Where a State Action Follows the Commencement of a Citizen Suit.

Plaintiffs' citizen suit cannot be preempted under section 505(b)(1)(B) of the CWA, 33 U.S.C. § 1365(b)(1)(B), because NYSDEC filed after Plaintiffs' suit commenced. On March 9, 1998, at 8:36 a.m., Plaintiffs filed the complaint in the Clerk's Office of this Court, (Coplan Aff. ¶ 21, Ex. D), thereby commencing this action. See Fed. R. Civ. P. Rules 3 and 5(e). See also Ellenbogen v. Rider Maintenance Corp., 794 F.2d 768, 772 (2d Cir. 1986) ("Rule 3 states that a [federal] civil action is commenced upon filing a complaint with the court . . . ."). At that time, NYSDEC had not commenced an administrative, civil or criminal action against Defendants, despite having been notified of Plaintiffs' intention to file suit for 80 days and Defendants having been in violation of nitrogen limitations for over two years. (Coplan Aff.

¶ 21, Ex. E.) Therefore, the diligent prosecution bar of section 505(b)(1)(B) of the CWA, 33 U.S.C. § 1365(b)(1)(B), does not bar Plaintiffs' citizen suit.

The language of the CWA preemption provision makes clear that only a prior governmental enforcement action will preempt a citizen suit under section 505(a)(1)(A) of the CWA, 33 U.S.C. § 1365(a)(1)(A). Section 505(b)(1)(B) provides that "[n]o action may be commenced-(1) under subsection (a)(1) of this section- . . . (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order . . . ." CWA

§ 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B) (emphasis added). The use of the past tense-"has commenced"-unambiguously limits the scope of preemption under section 505(b)(1)(B) to a state enforcement action filed before the federal citizen suit. See id. The CWA makes no provision, anywhere, for dismissal of a properly commenced citizen suit because of a subsequent state enforcement action by a state. See generally CWA §§ 101-607, 33 U.S.C.

§§ 1251-1387. It is undisputed, here, that Plaintiffs commenced their action before NYSDEC. (Coplan Aff. ¶ 22, Ex. D, Ex. E.) Therefore, NYSDEC's subsequently filed lawsuit does not bar Plaintiffs' citizen suit under section 505(b)(1)(B).

Consistent with the unambiguous language of section 505(b)(1)(B), every reported decision addressing this issue has held that section 505(b)(1)(B) does not apply in instances where the state did not take any enforcement action until after the citizen suit was filed. See Connecticut Fund for the Env't v. Job Plating Co., 623 F. Supp. 207, 216 (D. Conn. 1985). See also Atlantic States Legal Found., Inc. v. Eastman Kodak Co. ("Eastman Kodak I"), 933 F.2d 124, 127 (2d Cir. 1991) (citizen action filed before any formal governmental proceeding is "properly commenced" and cannot be preempted under section 505(b)(1)(B)); Chesapeake Bay Found. v. American Recovery Co., 769 F.2d 207, 208-209 (4th Cir. 1985) (stating that a citizens' suit was not barred under 505(b)(1)(B) where the federal government subsequently filed their own action); Connecticut Fund for the Env't, Inc. v. Upjohn Co., 660 F. Supp. 1397, 1404 (D. Conn. 1987) (citing American Recovery in preserving a prior citizen suit); Brewer v. City of Bristol, 577 F. Supp. 519, 527-28 (E.D. Tenn. 1983) (stating that barring a citizen suit by a later filed state enforcement action would violate the spirit of the CWA); Atlantic States Legal Found., Inc. v. Koch Refining Co., 681 F. Supp. 609, 613 (D. Minn. 1988) (plain language of the statute prevents preemption under section 505(b)(1)(B) of citizen suit commenced prior to governmental action); Sierra Club v. Simkins Indus., Inc., 617 F. Supp. 1120, 1126 (D. Md. 1985) (holding that a plaintiff's citizen suit instituted prior to the state's institution of administrative proceedings against the defendant was not barred by section 505(b) of the CWA).

The fact that the State commenced suit in state court only twenty-four minutes later is irrelevant in determining whether the section 505(b)(1)(B) bar is applicable. The case law makes no distinctions between instances where a governmental action is commenced months, weeks, days, or hours after a citizen suit has commenced. See Job Plating, 623 F. Supp. at 210, 216 (state enforcement action that was filed nearly four months after the citizen suit); Koch Refining, 681 F. Supp. at 611 (United States filed its own action exactly three months after plaintiffs commenced a citizen suit); Brewer, 577 F. Supp. at 528 (no action taken by state until two weeks after the plaintiffs filed their complaint in federal court); Upjohn, 660 F. Supp. at 1402 (the state commenced its suit against the defendant three days after the citizen suit commenced), American Recovery, 769 F.2d at 207 (federal government filed suit three hours after a citizen suit was filed). Thus, in construing the 505(b)(1)(B) bar, "the courts must apply an inflexible rule which determines jurisdiction from the time of filing the complaint." Upjohn, 660 F. Supp. at 1404.

The reason for this strict approach is because "the timing of pollution abatement efforts

is often of critical importance." Brewer, 577 F. Supp. at 528. The sixty day notice period of section 505(b)(1)(A) is a "strong method of insuring prompt response," id., and gives the government the "opportunity to act and to control the course of litigation . . . ." American Recovery, 769 F.2d at 208. Furthermore, the enforcement scheme of the CWA could easily be thwarted if a state proceeding commenced at any time during the course of a citizen suit in federal court could deprive the federal court of jurisdiction. Although the role of the states in enforcing the CWA is crucial, Congress has established a perfectly clear deadline beyond which states may not interfere with a federal court jurisdiction over citizen suits. Here, NYSDEC simply did not meet that deadline, despite having 80 days to do so. (Coplan Aff.

¶ 21.)

Defendants claim that a subsequent state action could preempt a federal suit also violates well-established principles of federal jurisdiction. The Supreme Court has consistently held that once jurisdiction attaches, it cannot be divested by subsequent events. See Freeport-McMoran, Inc. v. K N Energy, Inc., 498 U.S. 426 (1991) (citing Mollan v. Torrence, 22 U.S. (9 Wheat.) 537, 539 (1824) (Marshall, C.J.); Clarke v. Mathewson, 12 U.S. (-- Pet.) 164, 171 (1838); Wichita R.R. & Light Co. v. Public Util. Comm'n of Kansas, 260 U.S. 48, 54 (1922)). In Mollan, Chief Justice John Marshall wrote "[i]t is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events." Mollan, 22 U.S. (9 Wheat.) at 539. See also Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959) (stating that "the sufficiency of jurisdiction should be determined once and for all at the threshold and if found to be present then should continue until final disposition of the action"); Dolgow v. Anderson, 45 F.R.D. 470 (E.D.N.Y. 1968) (Weinstein, J.) (citing Mollan, 22 U.S. (9 Wheat.) at 539). A federal court's jurisdiction attaches at the time the complaint is filed. See Stewart v. Shanahan, 277 F.2d 233, 236 (8th Cir. 1960); Smith v. Campbell, 450 F.2d 829, 832 (9th Cir. 1971). Therefore, the federal jurisdiction of this Court, which attached with filing of Plaintiffs' Complaint at 8:36 a.m. on Monday, March 9, 1998, (Coplan Aff. ¶ 21, Ex. D), cannot be divested by a subsequent action taken by the NYSDEC.

Defendants' Memorandum of Law does not cite a single case in which section 505(b)(1)(B) provided a basis for dismissal of a citizen suit commenced prior to governmental proceedings. Rather, Defendants misconstrue two cases in which citizen suits were dismissed on grounds of mootness and res judicata--entirely different issues from that of timing under the 505(b)(1)(B) bar and wholly inapplicable to the instant dispute. (Defs.' Mem. of Law at 17-18, citing Eastman Kodak I, 933 F.2d at 128; United States Envtl. Protection Agency v. City of Green Forest, 921 F.2d 1394, 1405 (8th Cir. 1990).) Neither of the two remaining cases cited by Defendants here dismissed a citizen suit on 505(b)(1)(B) grounds. (Defs.' Mem. of Law at 18-19.) Defendants' also attempt to circumvent the unambiguous language of the CWA by providing policy reasons for barring Plaintiffs' suit under 505(b)(1)(B). (Defs.'

Mem. of Law at 11-12.) Defendants' arguments are unpersuasive and misguided.

In Eastman Kodak I, the Second Circuit held that a citizen suit that was filed before any formal government proceeding began was "properly commenced," and could not be barred under section 505(b)(1)(B) of the CWA, 33 U.S.C. § 1365(b)(1)(B). See Eastman Kodak I, 933 F.2d at 127. The Second Circuit also held that a subsequent consent order may provide a basis for dismissal of similar claims made in a citizen suit on grounds of mootness. See id. at 128. However, a citizen suit may proceed despite the existence of a consent order where there is a "realistic prospect that [the defendant] will continue to violate the CWA as alleged in the complaint." See id. In fact, the Second Circuit remanded the case to the District Court for the Southern District of New York specifically for such a determination. See id. This case lends no support to Defendants' argument as the court expressly held that the section 505(b)(1)(B) bar was inapplicable because plaintiffs' citizen suit was "properly commenced." See id. at 127.

The doctrine of mootness does not apply here for two reasons. First, Defendants and NYSDEC have not entered into a consent decree. (Coplan Aff. ¶ 23, Ex. F.) Even if such an agreement covering all of the violations alleged in Plaintiffs' Complaint were to be reached in the near future, Defendants have not met the "heavy burden" borne by defendants seeking to invoke the mootness doctrine. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987). Defendants would have to demonstrate that it would be "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to reoccur." See id. at 66 (quoting United States v. Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). Defendants are not able to meet this burden because: (1) they have yet to respond to Plaintiffs allegations of ongoing violations, (Plaintiffs' Complaint ¶¶ 60, 71), and (2) Defendants' have affirmatively admitted continuous nitrogen violations through March 1998 in their Verified Answer in the state court case. (Coplan Aff. ¶ 23, Ex. F ¶¶ 17, 23.)

Moreover, the policy reasons with which Defendants support their position, (Defs.' Mem. of Law at 10-11), do not create a "judicial gloss" on the plain language of section 505(b)(1)(B). See Koch Refining, 681 F. Supp. at 613 (policy concerns regarding judicial economy, minimizing liability, and the role of citizen suits held not to affect plain language meaning of section 505(b)(1)(B)). As the Supreme Court in stated in Gwaltney, "the starting point for interpreting a statute is the language of the statute itself." Gwaltney, 484 U.S. at 56 (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). "[A]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." GTE Sylvania, 447 U.S. at 108. Furthermore, "when a court finds the language of a statute to be clear and unambiguous, 'judicial inquiry is complete, except in rare and exceptional circumstances.'" See Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 62 (2d Cir. 1985) (quoting Garcia v. United States, 469 U.S. 70, 75 (1984)). Since the language of the statute unambiguously applies only where a state enforcement action precedes a citizen suit, and because "[e]very court which has considered the issue has concluded that section [505] precludes dismissal of a properly filed citizen suit as a result of a subsequent governmental enforcement action," Koch Refining, 681 F. Supp. at 613, Defendants' policy arguments cannot preclude the plain language meaning of section 505(b)(1)(B).

For these reasons, the 505(b)(1)(B) bar cannot preempt Plaintiffs' suit because no state action existed upon commencement of Plaintiffs' suit.

B. The Degree of Similarity Between the NYSDEC Enforcement Action and Plaintiffs' Citizen is Not Dispositive in Preempting a Citizen Suit.

In arguing that "where . . . the complaints are substantially the same, the citizen suit is barred," (Defs.' Mem. of Law at 13), Defendants misstate the law without providing any case law to support their assertion. Similarity of claims is an element of the section 505(b)(1)(B) bar, but not itself an independent bar. See CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B) ("[n]o action may be commenced . . . if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action . . . to require compliance with the [same] standard, limitation, or order . . . ). See also Connecticut Fund for the Env't v. Contract Plating Co., 631 F. Supp. 1291, 1293 (D. Conn. 1996) (stating that similarity of claims is a component of diligent prosecution which, in turn, is an element of the section 505(b)(1)(B) bar). Hence, this Court must first determine whether the section 505(b)(1)(B) bar is applicable. As explained above, section 505(b)(1)(B) cannot be applied to a citizen suit filed prior to the commencement of a governmental enforcement action. See Eastman Kodak I, 933 F.2d at 127; American Recovery, 769 F.2d at 208-209; Upjohn, 660 F. Supp. at 1404; Job Plating, 623 F. Supp. at 215; Koch Refining, 681 F. Supp. at 613; Brewer, 577 F. Supp. at 527-28; Simkins Indus., 617 F. Supp. at 1125-26. Therefore, section 505(b)(1)(B) does not preempt Plaintiffs' suit regardless of whether NYSDEC has filed a substantially similar complaint.

C. The Diligence of NYSDEC's Prosecution In State Court is Not Dispositive In Preempting Plaintiffs' Citizen Suit.

Defendants' incorrectly state that "timing is not automatically determinative of the government's diligence." (Defs.' Mem. of Law at 17-18, citing Eastman Kodak I, 933 F.2d at 127; Green Forest, 921 F.2d at 1403.) The timing of a citizen suit in relation to a state enforcement action can render the diligence of the state's action irrelevant for purposes of applying the section 505(b)(1)(B) bar. See Contract Plating, 631 F. Supp. at 1292 (stating that the existence of a prior state action and whether that action is being "diligently prosecution" are two necessary elements in applying the 505(b)(1)(B) bar). Therefore, Plaintiffs' suit is not subject to dismissal based upon the NYSDEC's diligence.

None of the cases cited by Defendant hold that previously commenced citizen suit can be dismissed under section 505(b)(1)(B) due to a state's diligent prosecution in a subsequent enforcement action. (Defs.' Mem. of Law at 17-19.) In fact, the Second Circuit in Eastman Kodak held that a state's diligent prosecution could not preempt a previously commenced

plaintiffs' citizen under the 505(b)(1)(B) bar. See Eastman Kodak, 933 F.2d at 127. Further,

these cases are easily distinguished from the instant dispute as there is no consent decree between Defendants and NYSDEC regarding violations alleged by Plaintiffs. (Coplan Aff.

¶ 23, Ex. F.) Therefore, Defendants do not provide the Court with any legal basis for dismissing Plaintiffs' suit under 505(b)(1)(B) on the grounds that NYSDEC is diligently prosecuting its action against Defendants.

Defendants attempt to confer an amount of diligence on NYSDEC's efforts in two respects. First, Defendants boldly assert that the Court "must presume that the State will diligently prosecute its action expeditiously to resolution." (Defs.' Mem. of Law at 18.) Secondly, Defendants assert that NYSDEC has "the expertise to resolve complex or technical issues which may arise during resolution of its lawsuit." Id. Even if there were some factual

basis for these presumptions, neither can alter the fact the section 505(b)(1)(B) bar does not

apply to previously commenced citizen suits. As stated earlier, Plaintiffs' suit was commenced twenty-four minutes prior to NYSDEC's action. (Coplan Aff. ¶ 22, Ex. D, Ex. E.) Therefore, Plaintiffs' citizen suit cannot be preempted under section 505(b)(1)(B) of the CWA based on the diligence of NYSDEC's subsequent prosecution.

D. Plaintiffs Will Not Be Afforded a Meaningful Opportunity to Participate in the State Court Action.

Defendants misinterpret the law by asserting that the "degree to which citizens have an opportunity to participate in the state court proceeding" is "another factor which on occasion has been considered by courts in determining whether a state enforcement action bars a citizen suit." (Defs.' Mem. of Law at 19). The "opportunity to participate" is not itself an independent bar against citizen suits, but rather a necessary component of "diligent prosecution," which, in turn, is an element for asserting the section 505(b)(1)(B) bar. See Frilling v. Village of Anna, 924 F. Supp. 821, 841 (S.D. Ohio 1996). See also Sierra Club v. SCM Corp., 572 F. Supp. 828, 829-30 (W.D.N.Y. 1983). As stated earlier, the section 505(b)(1)(B) bar does not apply to citizen suits which commence prior to any state enforcement action, as is the case here. (Coplan Aff. ¶ 22, Ex. D, Ex. E.) Indeed, all three cases Defendant cite, (Defs.' Mem. of Law at 19-21), involve citizen suits filed after governmental actions had commence