HomeMy Public PortalAboutExhibit MSD 11A30 Coalition For the Environment's Motion to InterveneIN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA )
)
and )
)
THE STATE OF MISSOURI )
) No. 4:07-cv-01120-JCH
Plaintiffs, )
)
and )
)
MISSOURI COALITION FOR )
THE ENVIRONMENT FOUNDATION, )
a non-profit corporation )
)
Plaintiff-Intervenor, )
)
v. )
)
METROPOLITAN ST. LOUIS )
SEWER DISTRICT, )
)
Defendant. )
)
___________________________________ )
[PROPOSED] COMPLAINT IN INTERVENTION
INTRODUCTION
1. This Complaint in Intervention is brought pursuant to the federal Clean
Water Act and is intended to substantially reduce the amount of raw sewage discharged
to streams in the St. Louis region. For decades, the Metropolitan St. Louis Sewer District
("MSD") has discharged raw sewage to St. Louis streams from hundreds of "sewer
overflows." MSD has failed to take adequate measures to reduce and/or eliminate these
overflows and is therefore in violation of the federal Clean Water Act, federal
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 1 of 11
2
regulations, and permits issued by the State of Missouri. The Missouri Coalition for the
Environment Foundation ("Coalition") pursues this action on its own behalf and on
behalf of its many members who use and enjoy streams around the St. Louis region.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the Coalition's claims pursuant to 33
U.S.C. § 1365(a) and 28 U.S.C. § 1331.
3. Venue is proper in this Court pursuant to 28 U.S.C. §1391(b) because it is
the judicial district where MSD is located and where the alleged violations occurred. The
Coalition has its principal place of business within the jurisdictional boundary of the U.S.
District Court for the Eastern District of Missouri.
PARTIES
4. Plaintiff-Intervenor Missouri Coalition for the Environment Foundation is
a non-profit corporation incorporated under the laws of the State of Missouri with its
principal office at 6267 Delmar Boulevard, Suite 2-E, University City, Missouri 63130.
5. The Coalition is a membership organization with the purposes of
preserving and enhancing the scenic, scientific, educational, historical, wilderness,
wildlife, open space, outdoor recreation and public health values of the physical
environment, and coordinating, encouraging, and assisting efforts of others to maintain
and enhance environmental quality.
6. The Coalition has hundreds of members in the St. Louis region, many of
whom use the region's streams for recreational purposes and for aesthetic and emotional
enjoyment. These interests of the Coalition's members are adversely affected by MSD's
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 2 of 11
3
continued discharge of raw sewage and other pollutants into streams around the St. Louis
region.
7. Defendant MSD is political subdivision of the State of Missouri
empowered to operate by the Missouri Constitution. MSD is charged with management
of the wastewater and stormwater in all of the City of St. Louis and approximately 80
percent of St. Louis County. MSD is a "person" subject to suit under the Clean Water
Act. 33 U.S.C. §§ 1362(5), 1365(a).
STATEMENT OF FACTS
MSD's Sewer System and Sewer Overflows
8. MSD is responsible for the operation and maintenance of wastewater
treatment facilities and the associated separate sanitary sewer system ("separate sewer
system"), combined sanitary and stormwater sewer system ("combined sewer system"),
and the stormwater sewer system serving residential, commercial and industrial entities
throughout the City of St. Louis and most of St. Louis County. MSD's service area
covers approximately 525 square miles and it has more than 430,000 residential and
commercial accounts combined. MSD's wastewater treatment facilities collectively
receive approximately 300 million gallons of domestic sewage and industrial wastewater
for treatment each day.
9. Sewer overflows are widespread within MSD's sewer system. The
overflows occur in both the separate sewer system and the combined sewer system.
10. In areas with separate sewers, sanitary sewer overflows ("SSOs") occur
when the sanitary sewer system discharges domestic sewage and industrial wastewater
before it is transported to a treatment facility.
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 3 of 11
4
11. In combined sewer areas, combined sewer overflows ("CSOs") occur
when the system is filled beyond capacity by the combined inflow of stormwater,
sewage, and industrial wastewater.
12. According to MSD's records, its system had 301 SSO locations as of July
6, 2006. The U.S. Environmental Protection Agency ("EPA") has recently estimated that
these SSOs discharge approximately 226 million gallons of untreated wastewater into St.
Louis area streams each year.
13. According to MSD's National Pollution Discharge Elimination System
("NPDES") permits issued by the State of Missouri, its system has approximately 200
CSO locations. These CSOs are also known to regularly discharge pollutants into
streams during rain events. Past estimates indicate that MSD's CSOs discharge 26 billion
gallons of untreated wastewater into St. Louis area streams each year.
The Coalition's Interest and Involvement
14. The Coalition's members use and enjoy streams around the St. Louis
region for a number of purposes, including many streams that receive discharges from
MSD's SSOs and/or CSOs. Coalition members enjoy viewing these streams and the
wildlife that is found in and near them. Coalition members also come into contact with
the water in such streams when recreating, conducting volunteer water quality
monitoring, participating in stream clean-ups, and carrying out stream mapping.
15. Because of the interest of the Coalition and its members in the health of
St. Louis area streams, the Coalition served a notice of intent to sue on MSD on April 12,
2007. Exh. A hereto. The Coalition's notice letter identified numerous violations of the
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 4 of 11
5
Clean Water Act ("CWA") by MSD, including regular SSOs, a failure to report SSOs to
regulatory authorities, and a failure to complete planning for the abatement of CSOs.
16. The Coalition's notice letter stated that a lawsuit would be filed against
MSD if the violations of the CWA were not rectified. Citizen suits to address violations
of the CWA may only be filed 60 days after the service of such a notice. 33 U.S.C. §
1365(b).
17. On June 11, 2007, the United States of America and the State of Missouri
brought the above captioned enforcement suit against MSD. The Coalition files this
Complaint in Intervention to protect its interests and the interests of its members in St.
Louis area streams.
STATUTORY BACKGROUND
18. The CWA prohibits the discharge of any pollutant except as may be
authorized pursuant to certain enumerated sections of the CWA. 33 U.S.C. § 1311(a).
19. The CWA defines the term "discharge of a pollutant" as "any addition of
any pollutant to navigable waters from any point source . . . ." 33 U.S.C. § 1362(12).
20. "Navigable waters" is defined as "the waters of the United States,
including the territorial seas." 33 U.S.C. § 1362(7).
21. The term "pollutant" includes, among other things, sewage, sewage
sludge, chemical materials, biological materials, and municipal waste. 33 U.S.C. §
1362(6).
22. "Point source" is defined as "any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit . . .
from which pollutants are or may be discharged." 33 U.S.C. § 1362(14).
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 5 of 11
6
23. The CWA provides that any person who violates the prohibition on
unauthorized discharges, or who violates a condition or limitation in a permit issued
pursuant to the CWA, shall be subject to a civil penalty not to exceed $25,000 per day for
each violation which takes place prior to January 31, 1997, $27,500 per day for each
violation which takes place after January 30, 1997, and $32,500 per day for each
violation which takes place after March 15, 2004. 40 C.F.R. § 19.4; 33 U.S.C. § 1319(d).
24. At all relevant times, the State of Missouri has been authorized by the
United States Environmental Protection Agency to implement the NPDES permit
program for discharges into navigable waters within its jurisdiction pursuant to 33 U.S.C.
§ 1342(b).
25. The CWA authorizes any citizen to commence a civil action against any
person who is alleged to be in violation of an "effluent standard or limitation." 33 U.S.C.
§ 1365(a). The CWA defines "effluent standard or limitation" as including various
specified sections of the CWA as well as provisions of NPDES permits. 33 U.S.C. §
1365(f).
26. The CWA authorizes "any citizen" to "intervene as a matter of right" in
enforcement cases brought by the federal government or a state. 33 U.S.C. §
1365(b)(1)(B).
CLAIM ONE
(Violation of Clean Water Act)
27. Paragraphs 1 through 26 are realleged and incorporated herein by
reference.
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 6 of 11
7
28. It is unlawful for MSD to discharge pollutants from a point source into
navigable waters unless the discharge is authorized by a NPDES permit. 33 U.S.C. §§
1311, 1342.
29. MSD has discharged pollutants into St. Louis area streams from its SSOs
on many occasions. These discharges were not authorized by any of the NPDES permits
held by MSD.
30. Attached to this Complaint as Exhibit A, and incorporated herein by
reference, is a notice of intent to sue letter sent to MSD by the Coalition that identifies
specific unauthorized discharges of pollutants from MSD's SSOs. These discharges of
pollutants by MSD from its SSOs violated the CWA because the discharges were not
authorized by a NPDES permit. 33 U.S.C. § 1311(a).
31. On information and belief, the Coalition alleges that MSD has discharged,
and will continue to discharge in the future, pollutants without a NPDES permit from a
total of 301 SSO locations, inclusive of those referenced in the preceding paragraph.
These 301 SSO locations are identified in Exhibit B hereto. On information and belief,
the Coalition alleges that MSD has taken no or insufficient remedial action to prevent
future discharges at these SSO locations and these violations are therefore ongoing.
32. As stated in reports prepared by MSD's consultants, the pollutants in its
SSO discharges include, but are not limited to, fecal coliform bacteria, suspended solids,
aluminum, iron, biological oxygen demand ("BOD"), lead, oil, grease, silver, copper, and
hexavalent chromium.
33. Each unauthorized discharge from MSD's SSOs constitutes a separate
violation of 33 U.S.C. § 1311(a).
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 7 of 11
8
34. Unless enjoined by the Court, MSD will continue to discharge pollutants
without a permit in violation of 33 U.S.C. § 1311(a).
CLAIM TWO
(Violation of Clean Water Act)
35. Paragraphs 1 through 34 are realleged and incorporated herein by
reference.
36. Pursuant to 33 U.S.C. § 1318, 40 C.F.R. § 122.41(1)(6) and (7), and
conditions of its NPDES permits,1 MSD is required to make reports of its unauthorized
discharges to regulatory agencies.
37. MSD's NPDES permits contain the following condition:
The permittee shall report any noncompliance, which may endanger health or the
environment. Any information shall be provided orally within 24 hours from the
time the permittee becomes aware of the circumstances. A written submission
shall also be provided within five (5) days of the time the permittee becomes
aware of the circumstances. The Department may waive the written report on a
case-by-case basis if the oral report has been received within 24 hours.
38. MSD has failed to comply with the above reporting requirements for the
discharges from its SSOs listed in Exhibit A.
39. MSD's failure to report the discharges from its SSOs listed in Exhibit A
constitutes multiple violations of the above condition in its NPDES permits, of 40 C.F.R.
§ 122.41(1)(6) and (7), and 33 U.S.C. § 1318.
1 Standard Conditions for NPDES Permits. Issued by the Missouri Department of
Natural Resources Missouri Clean Water Commission, Revised October 1, 1980, Part I, §
B(2)(b). These standard conditions are included in the NPDES permits for the following
MSD facilities: Lemay, Bissell Point, Baumgartner, Coldwater Creek, Fenton, Grand
Glaize, Lower Meramec (existing), Lower Meramec (new), and Missouri River.
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 8 of 11
9
40. On information and belief, the Coalition alleges that MSD has taken no or
insufficient remedial action to prevent future discharges at the locations identified in
Exhibit B and does not currently have an adequate system of reporting discharges from
these SSO locations. The reporting violations alleged are therefore ongoing.
41. Unless enjoined by the Court, MSD will continue to violate 33 U.S.C. §
1318, 40 C.F.R. § 122.41(1)(6) and (7), and the condition in its NPDES permits
identified above, by failing to make reports to the relevant regulatory agencies of its
unauthorized discharges.
CLAIM THREE
(Violation of Clean Water Act)
42. Paragraphs 1 through 41 are realleged and incorporated herein by
reference.
43. The NPDES permits issued for MSD's Lemay and Bissell Point facilities
required MSD to "submit a revised Long Term Control Plan (LTCP) consistent with the
U.S. EPA CSO Control Policy dated April 19, 1994 (59 FR 18688) by August 17,
2006."2 The LTCP is a planning document designed, in part, to set forth a schedule of
activities that will reduce and/or eliminate CSOs.
44. MSD has not submitted a complete LTCP and is therefore violating the
CWA and the above provision of the NPDES permits issued for its Bissell Point and
Lemay facilities.
2 Missouri State Operating Permit for MSD Lemay WWTP, Part D, Schedule of
Compliance (Revised July 6, 2007); Missouri State Operating Permit for MSD Bissell
Point WWTP, Part D, Schedule of Compliance (Revised January 27, 2006).
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 9 of 11
10
45. Each day since August 18, 2006, that MSD fails to submit a complete
LTCP in compliance with the NPDES permits for its Bissell Point and Lemay facilities
constitutes a separate violation of the CWA.
46. Unless enjoined by the Court, MSD, by failing to submit a complete
LTCP, will continue to be in violation of its Bissell Point and Lemay NPDES permits and
therefore the CWA.
REQUESTED RELIEF
WHEREFORE, Plaintiff-Intervenor Missouri Coalition for the Environment
Foundation prays that this Court:
A. Issue an injunction requiring MSD to take all actions necessary to meet the
requirements of the Clean Water Act, including:
1. actions necessary to end the discharge of pollutants from the SSO
locations identified in Exhibit B;
2. actions necessary to meet reporting requirements for unauthorized
discharges from the SSO locations identified in Exhibit B; and
3. actions necessary to complete and submit a Long Term Control
Plan for CSO abatement.
B. Impose civil penalties against MSD for each of its violations of the CWA
in the amount authorized by the CWA.
C. Award to the Coalition the costs of litigation, including reasonable
attorneys' and expert witness' fees pursuant to 33 U.S.C. § 1365(d); and
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 10 of 11
11
D. Grant such other relief as the Court deems just and appropriate.
Respectfully submitted,
By: /s/ Edward J. Heisel______________
Edward J. Heisel, ED Bar. No. 98493
Interdisciplinary Environmental Clinic
Washington University School of Law
Campus Box 1120
St. Louis, Missouri 63130
(314) 935-8760 (phone)
(314) 935-5171 (fax)
ejheisel@wulaw.wustl.edu
Attorneys for Missouri Coalition for the
Environment Foundation
Case 4:07-cv-01120-JCH Document 3-2 Filed 08/13/2007 Page 11 of 11