Sewer Authority of the City of Scranton
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, Plaintiff, v. Civ. No. __________________________ SEWER AUTHORITY OF THE CITY OF SCRANTON, Defendant. COMPLAINT The United States of America, by authority of the Attorney General of the United States and through the undersigned attorneys on behalf of the Administrator of the United States Environmental Protection Agency (“EPA”), files this Complaint, and allege as follows: NATURE OF ACTION 1. This is a civil action for injunctive relief and civil penalties brought against the Sewer Authority of the City of Scranton pursuant to Sections 309(b) and (d) of the Federal Clean Water Act (“CWA”), 33 U.S.C. §§ 1319(b) and (d), for permanent injunctive relief and assessment of civil penalties regarding the operation of a sewage treatment plant and collection system. The United States alleges that Defendant discharged, and continues to discharge, pollutants into waters of the United States in violation of Section 301(a) of the CWA, 33 U.S.C. § 1311(a), including discharges of raw sewage, storm water, and other wastewater (collectively, “combined sewage”) from at least 80 constructed combined sewer outfalls, and for violations of conditions established in the National Pollutant Discharge Elimination System (“NPDES”) permits issued to Defendant by the Pennsylvania Department of Environmental Protection (“PaDEP”), as authorized by the EPA under Section 402(b) of the CWA, 33 U.S.C. § 1342(b). 2. Section 309(e) of the Clean Water Act states that when a municipality is a party to a civil action brought by the United States under Section 309 of the Clean Water Act, “the State in which the municipality is located shall be joined as a party.” 33 U.S.C. § 1319(e). The Commonwealth of Pennsylvania, through the PaDEP, has filed or will file a complaint alleging violations the Pennsylvania Clean Streams Law, Act of June 22, 1937, P.S. 1987 as amended, 35 P.S. §§ 691-1001, arising out of the same operative facts as are alleged in this complaint. The Commonwealth also has filed or will file, pursuant to Rule 24 of the Federal Rules of Civil Procedure, a motion to intervene in this case as a co-plaintiff. JURISDICTION, VENUE, AUTHORITY AND NOTICE 3. This Court has jurisdiction over the subject matter of this action pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345 and 1355. 4. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C. §§ 1391(b) and 1395(a) and Section 309(b) of the CWA, 33 U.S.C. § 1319(b), because it is the judicial district where Defendant is located, where a substantial part of the events or omissions giving rise to the claim occurred, and where the alleged violations occurred. Venue in this district is also proper under 28 U.S.C. § 1391(c). 5. Authority to bring this action is vested in the Attorney General of the United States under Section 506 of the CWA, 33 U.S.C. § 1366, and 28 U.S.C. §§ 516 and 519. DEFENDANT 6. Defendant is a municipal authority created under the Pennsylvania Municipal Authorities Act, 53 Pa. C.S.A. §§ 5601-23, and is known as “the Sewer Authority of the City of Scranton” or the “Scranton Sewer Authority” (“SSA”). 2 7. Defendant is located in Lackawanna County, Pennsylvania. 8. Defendant has the power to sue and be sued. 53 Pa. C.S.A. § 5607(d)(2). 9. Defendant is a “person” within the meaning of Section 502(5) of the CWA, 33 U.S.C. § 1362(5), and a “municipality” within the meaning of Section 502(4) of the CWA, 33 U.S.C. § 1362(4). 10. Defendant owns and operates a “treatment works” as that term is defined in Section 212(2) of the CWA, 33 U.S.C. § 1292, and a “publicly owned treatment works” (“POTW”) as that term is defined in EPA regulations implementing the CWA, 40 C.F.R. § 122.2 (cross-referencing the definition at 40 C.F.R. § 403.3(q)). LEGAL BACKGROUND 11. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant by any person except as authorized by a National Pollutant Discharge Elimination System (“NPDES”) permit issued by the EPA or an authorized State pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. 12. Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source.” 13. Section 502(7), 33 U.S.C. § 1362(7), defines “navigable waters” to be the “waters of the United States, including the territorial seas.” 14. Federal regulations promulgated pursuant to the CWA define the phrase “waters of the United States” to include, among other things, (i) all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) all interstate waters; (iii) tributaries of waters of these waters; and (iv) wetlands adjacent to the foregoing. 40 C.F.R. § 122.2. 3 15. Section 502(6) of the CWA, 33 U.S.C. § 1362(6) includes “sewage” in the definition of “pollutant.” 16. Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines “point source” as “any discernable, confined and discrete conveyance . from which pollutants are or may be discharged.” 17. Under Section 402(a) of the CWA, 33 U.S.C. § 1342(a), the Administrator of the EPA may issue NPDES permits to authorize the discharge of pollutants into waters of the United States, subject to the conditions and limitations set forth in such permits. 18. Section 402(b) of the CWA, 33 U.S.C. § 1342(b), provides that a state may establish its own permit program, and after receiving the EPA’s authorization of its program, may issue NPDES permits. 19. At all times relevant to this Complaint, the Commonwealth of Pennsylvania has been authorized by the EPA to administer an NPDES program for regulating the discharges of pollutants into navigable waters within the Commonwealth’s jurisdiction. The EPA authorized the PaDEP to administer an NPDES program on July 1, 1978. 20. The EPA retains concurrent enforcement authority pursuant to Section 402(i) of the Act, 33 U.S.C. § 1342(i). 21. Section 402(q) of the Act, 33 U.S.C. § 1342(q), provides that each permit, order, or decree issued after December 21, 2000, for discharges from a municipal combined sewer system shall conform to the EPA’s Combined Sewer Overflow Policy (“CSO Policy”), 59 Fed. Reg. 18688 (May 19, 1994). 22. Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes the Administrator of the EPA to commence a civil action to obtain appropriate relief, including a permanent or 4 temporary injunction, when any person: discharges without a permit in violation of Section 301 of the CWA, 33 U.S.C. § 1311; violates any permit condition or limitation in a permit issued under Section 402 of the CWA, 33 U.S.C. § 1342; or violates any order issued by the Administrator of the EPA. 23. Pursuant to Section 309(d) of the CWA, 33 U.S.C. § 1319(d), the court may impose civil penalties not to exceed $25,000 per day for each day in which such violation occurs on or before January 30, 1997, $27,500 per day for each day of violation after January 30, 1997 (Pub. L. 104-134, 61 Fed. Reg. 69360 (Dec. 31, 1996), $32,500 per day for each day in which such violation occurred after March 15, 2004, (69 Fed. Reg. 7121 (Feb. 13, 2004), and $37,500 for each day in which such violation occurred on or after January 12, 2009 (see 73 Fed. Reg. 75340, 75345 (Dec. 11, 2008). GENERAL ALLEGATIONS 24. Defendant provides sewage collection and wastewater treatment services to residences and places of business covering a 16-square-mile area that includes parts of the City of Scranton and portions of the Boroughs of Dunmore, Taylor, Dickson City and Moosic. 25. At all relevant times, Defendant has owned and/or operated a wastewater treatment facility (“WWTP”) and an associated collection system (collectively referred to hereafter as “publicly owned treatment works” or “POTW”), including sanitary sewage conveyances and combined sewage and storm water conveyances which receive and treat wastewater and storm water runoff from residential, commercial, industrial and combined sewage sources. 5 26. Defendant’s collection system includes approximately 275 miles of sewers, approximately 172 miles of which consists of combined sewers that carry both sewage and storm water. 27. During certain rainfall events, the volume of waste water entering Defendant’s combined sewer system exceeds the hydraulic capacity of the sewers and/or the treatment plant. In those circumstances, Defendant’s collection system will discharge untreated waste water from certain designated outfalls, known as combined sewer outfalls. 28. When wastewater discharges from a combined sewer outfall, the event is known as a combined sewer overflow (“CSO”). 29. Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the PaDEP issued NPDES permit no. PA-0026492 for Defendant’s WWTP with an effective date of November 5, 1996 (the “1996 NPDES Permit”). 30. The 1996 NPDES Permit identified, and authorized discharges from, one WWTP outfall and 69 combined sewer outfalls. 31.