United States v. City of Providence

Decision Date02 May 1980
Docket NumberCiv. A. No. 77-0374.
Citation492 F. Supp. 602
PartiesUNITED STATES of America et al. v. The CITY OF PROVIDENCE.
CourtU.S. District Court — District of Rhode Island

Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., Raymond W. Mushal, Atty., Pollution Control Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C., R. Daniel Prentiss, Chief Legal Counsel, Dept. of Environmental Management, Providence, R. I., Daniel J. Schatz, Sp. Asst. Atty. Gen., Providence, R. I., J. Michael Keating, Jr., McKinnon & Fortunato, Pawtucket, R. I., Steven J. Ferdinandi, Pawtucket, R. I., for plaintiffs.

Gerard McG. Decelles, Sp. Counsel, Providence, R. I., for defendant.

OPINION

FRANCIS J. BOYLE, District Judge.

This action involves the enforcement of an Amended Consent Decree1 entered on October 27, 1978. Defendant City of Providence has moved to modify the Decree and Plaintiff State of Rhode Island and Intervenor Plaintiff Save the Bay, Inc. have moved to have Defendant City of Providence adjudged in contempt of the Decree. Plaintiff United States has opposed modification of the Decree entered October 27, 1978, and, although supporting, has not joined in the Motion to Adjudge Defendant City of Providence in Contempt. Intervenor, Local Union 1033 of the Laborers' International Union of North America, AFL-CIO, in part supports the application for a contempt finding.

Initially, the Court considered only the Motion to Modify the Decree, and upon filing of the Motion to Adjudge in Contempt, heard both on a consolidated record.

This action was commenced by the United States, through the Environmental Protection Agency, and the State of Rhode Island, through the Department of Environmental Management, on June 15, 1977, alleging that the Defendant City was in violation of the Federal Water Pollution Control Act as amended, 33 U.S.C. § 1251 (1978) et seq., by reason of the City's failure to attain the effluent limits specified in National Pollutant Discharge Elimination System Permit Number RI0100315 hereinafter "Permit", issued by the Environmental Protection Agency to the City on April 3, 1979. The Permit was issued for the Fields Point Wastewater Treatment Plant hereinafter "Fields Point Plant" which had been operated by the City since the turn of the century.

The Fields Point Plant has a design capacity of 64 million gallons per day (average daily flow). The effluent is discharged into Narragansett Bay. Narragansett Bay bisects the State of Rhode Island from Providence on the north to the southern boundaries of the State. It is a salt water bay which ultimately empties into the Atlantic Ocean and is a valuable natural resource of the State providing not only the means for commercial shipping and water travel but also areas of shell and fin fishing, as well as providing recreational opportunities for the residents of this area. The City of Providence and other highly industrialized areas are located near its headwaters.

The Fields Point Plant is designed to provide both primary and secondary treatment of wastewater from the City of Providence and a portion of the wastewater from other nearby communities. The purpose of primary treatment is to remove pollutants that will either settle, such as heavier suspended solids, or float, such as grease. Secondary treatment is to be accomplished by the use of an activated sludge process in which a mixture of wastewater and biological sludge, called a biomass, is agitated and aerated, with the result that the micro-organisms in the biomass absorb the harmful organisms in the wastewater, forming large clumps which settle and can be then separated from the wastewater. As a final step in the process, before the effluent is discharged into Narragansett Bay, it is treated with chlorine in order to kill pathogenic or disease-causing bacteria and viruses.

The permit requirements of the Federal Water Pollution Control Act were adopted in 1972. This legislation represented a shift in emphasis from the previous policy to regulate water pollution in navigable waters based upon water quality of the waters to a system of controls based upon the quality of the effluent discharged into those waters. See EPA v. State Water Resources Control Bd., 426 U.S. 200, 204-205, 96 S.Ct. 2022, 2024, 2025, 48 L.Ed.2d 578 (1976). Specific provisions were made in the Act for compliance by both industry and local governments. 33 U.S.C. § 1311 (1978). As it relates to the City of Providence, the Act required the City to provide at least secondary treatment of its wastewater not later than July 1, 1977. 33 U.S.C. § 1311(b)(1)(B) (1978). There is no disagreement that at the time that this action was commenced, the plant was not capable of either primary or secondary treatment and, at best, provided sporadic chemical treatment of wastewater.

The plant had last been overhauled in 1965 and provided primary and secondary treatment into 1974. By 1977 it was, for all practical purposes, shut down. This situation represented not only a violation of the Act but also an obvious health hazard to the residents of this State.

It is asserted, and not contradicted, that the City is the largest single source of effluent discharge along the entire length of the Bay.

Due to neglect, the equipment for treatment became inoperable, and indeed was in such a bad state of disrepair that the extent of work to be done on some of the equipment could not be ascertained until an estimated 11,000 cubic yards of solidified sludge were removed from some of the tanks in the system. This sludge presented a substantial problem since it was the solid remnants of accumulated sewage which had to be lifted from the tanks and disposed of in a safe and sanitary manner. These facts were certainly known to the City authorities on June 15, 1977, when this action was commenced.2

It was in this factual setting that the City agreed to the terms of the first Consent Decree on June 17, 1977, two days after this action was begun. That Decree which was entered by the Court on August 10, 1977, is not substantially different from the Amended Consent Decree, which was entered on October 27, 1978, and which is the subject of this action. Both decrees set a specific date upon which the plant would become operable and a specific date upon which the plant would comply with the effluent quality standards of the Permit. The first Decree provided that the City would "complete the repair and restoration of said water pollution control facilities and equipment" by May 1, 1978, and that it would meet the effluent quality standards by June 1, 1978.

The Amended Consent Decree provided that the City would "complete the repair and restoration" and commence operation of water pollution control facilities and equipment at the Fields Point Plant by September 23, 1979; that by November 23, 1979, "the City shall demonstrate to the satisfaction of EPA that its water pollution control facilities and equipment achieve the effluent limits specified in ..." the Permit; and additionally that it would present "a contingency plan for alternate, environmentally acceptable method(s)" for sludge disposal by September 7, 1979.

Both consent decrees were signed by the highest authorities of the City and entered by a Judge of this Court. They specifically apply to and are binding upon "the defendant, its officers, directors, agents, servants, employees ... and all persons, firms and corporations acting under, through and for it."

The City has not demonstrated to the Environmental Protection Agency that its water pollution control facilities and equipment achieved the effluent limits specified in the Permit, as required. The plant equipment was not operable on September 23, 1979, and was not operable on April 8, 1980. The biomass which is essential to secondary treatment had not been established, and still requires more time for its cultivation. Telescoping valves necessary to return activated sludge to the aeration tanks were still inadequate and require replacement. All aeration tanks were not in operation due to the fact that two of five blowers were inoperable, and one of four sludge holding tanks was not operable. As of March 21, 1980, effluent limits set by the Permit were still being regularly exceeded for biochemical oxygen demand, suspended solids, settleable solids and fecal coliform bacteria. Significantly, the City was unable to estimate when, if ever, the requirements of the Decree would be met.

The City submitted evidence to establish that it had been delayed for up to eight weeks because it was required to obtain a permit from the Department of Environmental Management to dispose of accumulated sludge. Although the City was clearly aware of this requirement as early as 1977, it waited until August of 1978 to seriously discuss this matter with the Department of Environmental Management, did not apply for a permit until September of 1978, and after its application was given the most prompt attention and granted on October 13, 1978, changed its plans which required it to seek additional approval. Again, the Department of Environmental Management acted with unusual dispatch. Whatever delay was occasioned by the lack of a permit must be laid solely at the feet of the City officials, who, although aware of the problem, simply delayed making a prompt application. The time required for the two approvals given to the City cannot be considered to be the responsibility of the State of Rhode Island or its Department of Environmental Management.

The Federal Water Pollution Control Act was adopted by the Congress of the United States "to restore and maintain the chemical, physical and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a) (1978); established as a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," 33 U.S.C. § 1251(a)(1) (1978); and provides that "an interim goal of water quality which...

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    ...diminish the limited resources which the Authority has to [reach this goal and] comply with ... [this decree]." United States v. Providence, 492 F.Supp. 602, 610 (D.R.I.1980). Therefore, [the Sewer Authority] shall not be fined in this On appeal, the Sewer Authority contends that the distri......
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