Chesapeake Bay Found., Inc. v. Cnty. of Henrico
| Decision Date | 11 April 2022 |
| Docket Number | Civil No. 3:21cv752 (DJN) |
| Citation | 597 F.Supp.3d 864 |
| Parties | CHESAPEAKE BAY FOUNDATION, INC., et al., Plaintiffs, v. COUNTY OF HENRICO, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Jon Mueller, Ariel Solaski, Pro Hac Vice, Taylor Lilley, Pro Hac Vice, Chesapeake Bay Foundation, Annapolis, MD, for Plaintiff Chesapeake Bay Foundation Inc.
Jon Mueller, Chesapeake Bay Foundation, Annapolis, MD, Jennifer Duggan, Pro Hac Vice, Environmental Integrity Project, Washington, DC, for Plaintiff James River Association.
Christopher Donald Pomeroy, Justin W. Curtis, AquaLaw PLC, Richmond, VA, Joseph Thomas Tokarz, II, Henrico County Attorney's Office, Richmond, VA, Andrew Ramsey Newby, Denise Mary Letendre, Henrico County Attorney's Office, Henrico, VA, for Defendant.
David J. Novak, United States District Judge Plaintiffs Chesapeake Bay Foundation, Inc., and James River Association bring this citizen suit against Defendant County of Henrico, alleging violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. , at the Henrico County Water Reclamation Facility. This matter now comes before the Court on the Motion to Dismiss (ECF No. 12) filed by the County of Henrico.
For the reasons set forth below, the Court will GRANT IN PART and DENY IN PART Defendant's Motion.
A motion made pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. A defendant moving for dismissal for lack of subject matter jurisdiction may either attack the complaint on its face, asserting that the complaint "fails to allege facts upon which subject matter jurisdiction can be based," or, may attack "the existence of subject matter jurisdiction in fact, quite apart from any pleadings." White v. CMA Const. Co. , 947 F. Supp. 231, 233 (E.D. Va. 1996) (internal citations omitted). When deciding a Rule 12(b)(1) motion to dismiss, a federal court may resolve factual questions to determine whether it has subject matter jurisdiction. Thigpen v. United States , 800 F.2d 393, 396 (4th Cir. 1986), overruled on other grounds, Sheridan v. United States , 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court will accept Plaintiff's well-pleaded factual allegations as true, though the Court need not accept Plaintiff's legal conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Based on these standards, the Court accepts the following facts.
Plaintiffs Chesapeake Bay Foundation, Inc. and James River Association bring this citizen suit against Defendant County of Henrico, alleging significant and ongoing violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. , (the "CWA" or "Act") at the Henrico County Water Reclamation Facility (the "Facility"), including disregard for the terms of its Permit issued under the Virginia Pollution Discharge Elimination System ("VPDES").1 (Compl. ¶¶ 1-2 (ECF No. 1).) Henrico's violation of its Permit has harmed the ecological integrity of the James River and its tributaries, and resulted in the Commonwealth of Virginia's imposition of four separate consent orders in the last twenty-eight years. (Compl. ¶¶ 5, 9-10.) In light of violations in the previous four years, and frustrated that the state's enforcement efforts have not resolved Henrico's violations, Plaintiffs bring this citizen suit seeking Henrico's compliance with the Clean Water Act.
The Facility began operating in 1989, and receives untreated wastewater through its sewage collection system from the greater Richmond area. (Compl. 1¶¶ 2-3.) Henrico received VPDES Permit No. VA0063690 (the "Permit") pursuant to the CWA, § 1342, authorizing the Facility to discharge treated sewage and wastewater into the James River with certain limitations. (Compl. ¶ 4.) Specifically, the Permit establishes effluent load and concentration limits for, among other things, Total Suspended Solids ("TSS")2 and Carbonaceous Biological Oxygen Demand ("CBOD")3 and proscribes sanitary sewer overflows ("SSOs").4 (Compl. ¶ 4.)
Between August 3, 1989, and January 8, 1993, the Facility received twenty-three Notices of Violation ("NOVs") that led to the development of a voluntary administrative consent order (the "1993 Consent Order"), issued by the Commonwealth of Virginia State Water Control Board, and approved by the Virginia Department of Environmental Quality ("DEQ") on June 1, 1993. (Compl. ¶ 70; Exhibit D: 1993 Consent Order (ECF No. 1-5).) That order directed Henrico to implement a schedule of compliance addressing effluent limitations for fecal coliform and ammonia nitrogen through effluent filtration, ozone disinfection, and inflow and infiltration projects, but did not assess any penalty.
In the period between February 5, 1993, and August 4, 1994, the Facility received thirteen NOVs. (Compl. ¶ 72; Exhibit E, at 1 (ECF No. 1-6).) During that time, the Facility failed to meet its Permit limits for TSS and CBOD and interim effluent limits set by the 1993 Consent Order for fecal coliform. As a result, in September 1994, the State Water Control Board approved an amendment to the 1993 Consent Order, attributing these violations to a failure of the Facility's effluent filtration system and issuing an updated schedule of compliance. (Compl. ¶ 72.)
On February 19, 1998, DEQ issued an administrative consent order to Henrico to address SSO violations from Henrico's sewage collection system, requiring rehabilitation of nine sewer collection subsystems. (Compl. ¶ 73; Exhibit F: 2003 Consent Order, Section C 2 (ECF No. 1-7).) Henrico failed to meet the schedule identified in this order, resulting in DEQ's issuance of another NOV on November 23, 1999. (Compl. ¶ 73.)
On January 7, 2003, DEQ and Henrico entered into another administrative consent order (the "2003 Consent Order") to address consistent TSS, CBOD, total phosphorus, ammonia nitrogen, and chlorine effluent violations, as well as continued SSOs containing raw sewage that had occurred in the previous two years. (Compl. ¶ 75; Exhibit F: 2003 Consent Order, Section C ¶¶ 3-7.) On November 2, 2001, DEQ had issued an NOV to Henrico for violations of TSS and CBOD reported by Henrico during the March through August 2001 monitoring periods. (Compl. ¶ 74.) DEQ issued an additional NOV on April 16, 2002, for TSS, total phosphorous and ammonia violations during the December 2001 through February 2002 monitoring periods. (Compl. ¶ 72.) The April NOV also cited Henrico for nineteen SSOs that occurred between September 1, 2001 and April 6, 2002. (Compl. ¶ 72.) Despite these NOVs, several additional sewage overflows followed. (Compl. ¶ 72; Exhibit F: 2003 Consent Order, Section C ¶¶ 3-4.) The 2003 Consent Order assessed a civil charge of $25,500 and required Henrico to develop and implement a formal operation and maintenance manual to address effluent limitation violations and submit a schedule of completion for several inflow and infiltration projects to be completed by January 15, 2007, to address the SSOs.
Henrico and DEQ amended the 2003 Consent Order in February 2005 to incorporate an additional inflow and infiltration project. (Compl. ¶ 77; Exhibit G: 2005 Consent Order Amendment, Section B ¶ 4 (ECF No. 1-8).) In September 2007, Henrico and DEQ again amended the 2003 Consent Order to confirm Henrico's completion of all of the corrective actions required to address the effluent violations identified and extend the schedule to complete the inflow and infiltration projects necessary to resolve the SSO violations. (Compl. ¶ 78; Exhibit H: 2007 Consent Order Amendment (ECF No. 1-9).)
Following a renewed series of SSO discharges and effluent limit violations by the Facility, DEQ and Henrico entered into yet another administrative consent order on December 17, 2010 (the "2010 Consent Order"). (Compl. ¶ 79.) The 2010 Consent Order limited its scope by dismissing the effluent violations and, instead, addressed twenty-six unauthorized SSOs occurring from June 20, 2009 through December 3, 2009, and fifty additional SSOs occurring from December 3, 2009 to June 11, 2010. (Compl. ¶ 79; Exhibit I: 2010 Consent Order ¶¶ C.2-7, 9, 10, 13-15 (ECF No. 1-10).) The 2010 Consent Order required Henrico to complete several inflow and infiltration projects designed to eliminate ongoing illicit SSOs and instituted a Schedule of Compliance ending on June 15, 2018. (Compl. ¶ 80.) The 2010 Consent Order also required Henrico to submit to DEQ for approval, and then implement, standard operating procedures for the most optimal plant configuration and process modes for a given set of flow, temperature, and influent loading conditions. (Compl. ¶ 80.) Other than this requirement, the order did not include any other projects to remedy TSS and CBOD effluent violations from the Facility, as it claimed that the Facility had lost the necessary nitrification capability due to influent flow beyond its capacity. (Compl. ¶ 80.) The 2010 Consent Order required Henrico to pay a civil administrative penalty of $29,500 and did not include any stipulated penalty provisions for future violations. (Compl. ¶ 81.) However, as of February 22, 2021, public documents show no evidence of civil or administrative penalties assessed or paid since Henrico and DEQ's execution of the 2010 Consent Order. (Compl. ¶ 81.)
Henrico complied with its schedule and completed all of the projects listed in the 2010 Consent Order by April 2018. However, the projects failed to curb Henrico's...
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