PETER HENNER
ATTORNEY AND COUNSELOR AT LAW
P.O. BOX 326
CLARKSVILLE, NEW YORK 12041-0326
(518) 768-8232
Fax: (518) 768-8235
WEB SITE: peterhenner.com
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CERTIFIED MAIL – RETURN RECEIPT REQUESTED
NOTICE OF INTENT TO SUE
October 20, 2003
Mr. Mark Wagner, General Manager
Pyramid Crossgates Company
120 Washington Avenue
Albany, New York 12203
Dear Mr. Wagner:
This letter is a formal Notice of Intent to file a citizen suit against Pyramid Crossgates Company (“Crossgates”) for violations of its State Pollution Discharge Elimination System (“SPDES”) Permit 0107930. This suit will be brought to enforce the provisions of the Federal Clean Water Act, 33 USC 1251, et. seq.
§505(b) of the Clean Water Act (33 USC 1365(b)) requires that a citizen must give notice of its intent to sue sixty days prior to the institution of a civil action.
You are hereby given notice that the Alliance for Environmental Renewal (“Alliance”) and Save the Pine Bush, Inc. will file a civil action in the United States District Court for the Northern District of New York, sixty days after the date of this Notice of Intent to Sue.
The Alliance for Environmental Renewal is a not-for-profit corporation whose principal office is located at 60 Scutt Road, Feura Bush, NY 12067, (518) 768-8234. Save the Pine Bush is a not-for-profit corporation whose principal office is located at 33 Central Avenue, Albany New York 12206 (518) 434-4037. The Alliance for Environmental Renewal and Save the Pine Bush will be represented in this lawsuit by Peter Henner, Esq., whose office is located at P.O. Box 236, Clarksville, NY 12041, (518) 768-8232.
LEGAL CLAIMS
The lawsuit which will be commenced will allege that Crossgates has violated, is violating, and, unless enjoined, will continue to violate, the terms and conditions of its SPDES Permit by exceeding its authorized limits on pollutant concentrations on discharges of wastewater into the Krum Kill, immediately upstream of the McKownville Reservoir. As itemized below, these violations have occurred regularly every winter since 1999-2000, and there is every reason to believe that that they will continue in the upcoming 2003-2004 winter, unless they are enjoined by a lawsuit.
The terms and conditions of the permit that are being violated constitute “effluent limitations” within the meaning of §502(11) of the Clean Water Act (33 USC §1362 (11)), and such effluent limitations are enforceable pursuant to § 505(a) (1) (A) of the Clean Water Act (33 USC §1365(a)(1)(A)).
THE VIOLATIONS
Your SPDES permit establishes a 500 milligrams per liter (mg/l) limit for concentrations of sodium chloride in the storm water runoff from your shopping center and associated paved areas. Sodium chloride is salt, which you use on a seasonal basis for snow removal. However, the Discharge Monitoring Reports that you have filed with the Department of Environmental Conservation indicate the following violations:
Month
Sodium Chloride Concentration
April 2003 519
January 2003 577
December 2002 1450
March 2002 572
January 2002 920
February 2001 1084
January 2001 763
December 2000 712
February 2000 933
January 2000 559
DEPARTMENT OF ENVIRONMENTAL CONSERVATION ENFORCEMENT HISTORY
On December 30, 1998, you entered into an Order on Consent to address previous violations of your permit limitation for sodium chloride violations. Pursuant to this order, you paid a penalty of $1500 to the New York State Department of Environmental Conservation (“NYSDEC”). This consent order was modified in 2001, to address questions pertaining to the late filing of discharge monitoring reports. At that time, you paid an additional penalty of $3000.
In January 2003, you agreed with the NYSDEC to move the sampling location from a point immediately adjacent to Interstate 87, to avoid the possibility that your sampling results were adversely affected by increased sodium chloride in the runoff from the highway. However, a NYSDEC inspection in March 2003 indicated that you were continuing to sample at the Interstate 87 location, and your sampling indicates continuing violations for the months of March and April 2003.
Based on this history, we believe that the violations will continue in the 2003-2004 winter, regardless of whether the April 2003 sampling was done at the old or at the new location.
CONCLUSION
In the lawsuit, the Alliance and Save the Pine Bush will seek injunctive and declaratory relief to insure that there are no further violations of your SPDES Permit and will also seek civil penalties at the statutory maximum of $25,000 per day for each violation. In addition, we will seek the $25,000 per day statutory maximum for any and all additional violations which may occur after the service of this letter. Finally, we will also petition the court to award costs, disbursements, and attorney and expert witness fees.
During the sixty day notice period prior to the institution of the lawsuit, I will be available to discuss possible remedies. Any possible remedy must guarantee that Crossgates will comply with all of the terms and conditions of its SPDES Permit. If you wish to avail yourself of the opportunity to discuss this lawsuit, or if you have any questions regarding this letter, please contact me.
As required by 40 CFR 135, I am sending a copy of this Notice letter to the Administrator of EPA, the Regional Administrator of EPA Region 2, and to the Commissioner of the New York State Department of Environmental Conservation.
Very truly yours,
Peter Henner
Counsel for Notifiers
Alliance for Environmental Renewal Save the Pine Bush
cc: Marianne Lamont Horenko,
Acting Administrator
United States Environmental Protection Agency
411 M Street SW
Washington, DC 20460
Jane Kenney, Regional Administrator
EPA Region No. 2
290 Broadway
New York, NY 10007-1866
Erin M. Crotty, Commissioner
NYS Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1011
Crossgates Mall Company LLP,
Crossgates Mall General Company, LLP,
Crossgates Mall Holdings, Inc.
c/o The Pyramid Companies
The Clinton Exchange, 4 Clinton Square
Syracuse, New York 13202-1078
By certified mail
Crossgates Mall Enterprises Company, LLC.
c/o CT Corporation System
111 Eighth Avenue
New York, N.Y. 10011
Registered Agent
By certified mail
