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This effort was pre-empted after 50 days by WV filing its own enforcement lawsuit

MID-ATLANTIC ENVIRONMENTAL LAW CENTER
Defending the Mid-Atlantic
at Widener University School of' Law
4601 Concord Pike, P. O. Box 7474, Wilmington. Delaware 19803-0474
302-477-2167 / Fax: 302-477-2032 / www.mae1c.org

January 12,2004

Certified Mail/Return Receipt Requested
Hon. J. Randolph Hilton, Mayor
Jane Arnett, City Manager
City of Charles Town
P.O. Box 14
Charles Town, WV 25414

Re: Notice of Intent to File a Citizen Suit Under the Clean Water Act Concerning the Charles Town Sewage Treatment Plant

Dear Mayor Hilton and Ms. Arnett:

This notice is provided pursuant to section 505(b) of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1365(b) of Potomac Riverkeeper's intent to file suit against the City of Charles Town for illegal discharges and violations at Charles Town Sewage Treatment Plant located at WV Route 9 East Charles Town, WV 25414. The Mid-Atlantic Environmental Law Center, Inc. ("MAELC") represents the Potomac Riverkeeper, Inc ("Potomac Riverkeeper') in this matter. The Potomac Riverkeeper brings this action to achieve long-term compliance with environmental laws and to improve the quality of the affected watershed.

As described in this letter, the facility is in violation because of discharges from its sewage plant in violation of its National Pollution Elimination Discharge System ("NPDES") permit number WV0022349. The discharge flows into Evitts Run, a navigable water. Evitts Run is a tributary of the Shenandoah River, which joins the Potomac River near Harper's Ferry, WV.

I. IDENTIFICATION OP THE PARTIES AND COUNSEL

The Potomac Riverkeeper is a not-for-profit Maryland corporation. Potomac Riverkeeper is a multi-state educational and advocacy group whose mission "is to protect and restore the Potomac River, from its headwaters in West Virginia to the Chesapeake Bay, through citizen action, advocacy and enforcement."

The address of the Potomac Riverkeeper is as follows:

Ed Merrifield, Riverkeeper
Potomac Riverkeeper, Inc.
P.O. Box 1164
Rockville, MD 20849
(301) 602-4300

The Mid-Atlantic Environmental Law Center, Inc. ("MAELC") represents the Potomac Riverkeeper in this matter. MAELC is a non-for-profit environmental law firm that provides legal services to public interest organizations in environmental matters. MAELC works to ensure that environmental requirements are met, and that legislation and regulations are adequately implemented by responsible federal, state and local agencies. The Center is located at Widener University School of Law and works in tandem with students in Widener's Environmental and Natural Resources Law Clinic.

Please direct all correspondence to:

Lyman C.. Welch, Esq.
James R. May, Esq.
Mid-Atlantic Environmental Law Center
4601 Concord Pike, P.O. Box 7474
Wilmington, DE 19803-0474
(302) 477-2060
(302) 477-2032 (fax)

II. BACKGROUND

In 1972, Congress enacted the Clean Water Act to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1.25 1(a). the CWA's purpose is to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 33 U.S.C. § 1251(a)(2). Except as in compliance with a National Pollution Discharge Elimination System ("NPDES permit") "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a).

The issuance of an NPDES. permit allows for the discharge of any "pollutant or combination of pollutants, notwithstanding section 1311(a) upon condition that such discharge will meet either (A) all applicable requirements or (B) prior to taking of necessary implementing actions relating to such requirements." 33 U.S.C. §1342(a). The State of West Virginia under the delegated authority of section 1342(b) of the CWA issued Charles Town an NPDES permit, WV0022349, on July 21, 2001.

Records show that the facility has violated and continues to violate "an effluent standard or limitation" as used in section 505 of the CWA, 33 U.S.C. §1365(a)(l)(A) and defined in section 505(f) of the CWA, 33 U.S.C. §1365(1) by failing to comply with its NPDES permit.

Section 505(b) of the Clean Water Act, 33 U.S.C. §1365(b) requires that sixty (60) days prior to the filing of a citizen suit in the appropriate federal court under section 505(a) of the Clean Water Act that the alleged violator, the Environmental Protection Agency and the State in which the violations occur, be given notice of the alleged violation. Violations of the terms of Charles Town Sewage Treatment Plant's permit have occurred and continue to occur at its facility located at WV Route 9 East, Charles Town, WV 25414. The monthly discharge reports ("DMRs") filed by Charles Town with the West Virginia Department of Environmental Protection ("WVDEP") demonstrate that Charles Town has violated its applicable NPDES permits on a continuous and/or intermittent basis in at least the following respects:

III.CHARLES TOWN'S VIOLATIONS OF AN EFFLUENT STANDARD OR LIMITATION IN ITS NPDES PERMIT NUMBER WV0022349.

1. The permit limitation for Fecal Coliform (maximum concentration) is 400 mg/l. Charles Town's DMRs indicate a concentration of:

a. 460 mg/l for September 2003;
b.1060 mg/l for August 2003;
...

[The letter continues for two pages listing other permit requirements & violations.]

9. The permit limitation for Total Ammonia Nitrogen (average monthly concentration) is 5.9 mg/l. Charles Town's DMRs indicate a concentration of:

a. 8.1 mg/l for April 2003;
b. 12.5 mg/l for March 2003;
c. 9.9 mg/l for February 2003;
d. 11.3 mg/l for January 2003.

The CWA authorizes civil penalties of up to $27,500 per day per violation.

X. CONCLUSION

If the conditions causing the above violations are not corrected within 60 days, so that it is absolutely clear that there is no reasonable likelihood that the violations will recur, the Potomac Riverkeeper intends to file suit seeking civil penalties, injunctive relief, and litigation costs as provided by the CWA, on behalf of itself and its members.

Potomac Riverkeeper reserves the right to include in its complaint allegations of any additional violations of the permit not included in this 60-day notice letter- Furthermore, this letter does not preclude Potomac Riverkeeper from bringing suit for violations under any other statutory law, or to sue for violations of the CWA other than those described above.

Potomac Riverkeeper believes that this notice of intent to sue complies with the requirements of section 505(b) of the CWA, 33 U.S.C. § 1365(b) and accompanying regulations, If you would like to discuss this matter further or provide us with additional information, please contact us within the next two weeks.

Respectfully,

Lyman C.. Welch, Esq.
James R. May, Esq.
Mid-Atlantic Environmental Law Center
4601 Concord Pike, P.O. Box 7474
Wilmington, DE 19803-0474
(302) 477-2060

c:

Mike Leavitt, Administrator
United States Environmental Protection Agency
Mel Rios Building
1200 Pennsylvania Ave, NW
Washington, DC 20460

Donald S. Welch, Regional Administrator, Region III
United States Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029

Stephanie K. Timmermeyer or current Cabinet Secretary
West Virginia Department of Environmental Protection
1356 Hansford Street
Charleston, WV 25301

Allyn Turner or current Director Division of Water and Waste Management
Division of Water and Waste Management
West Virginia Department of Environmental Protection
414 Summers Street
Charleston, WV 25301

Ed Merrifield, Riverkeeper
Potomac Riverkeeper, Inc.
P.O. Box 1164
Rockville, MD 20849