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The Potomac Riverkeeper had sent a notice of intent to file a citizen lawsuit, which this lawsuit by the state pre-empted.

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
RECEIVED MAR 09 2004 JEFFERSON COUNTY CIRCUIT COURT
Civil Action No.04-C-79

ALLYN G. TURNER, DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff,

v.

CITY OF CHARLES TOWN, Defendant.

COMPLAINT

Plaintiff, Allyn G. Turner, Director, Division of Water and Waste Management, West Virginia Department of Environmental Protection ("WVDEP") alleges that:

Nature of the Action

1. This is a civil action for injunctive relief and civil penalties for violations of the West Virginia Water Pollution Control Act ("WPCA"), West Virginia Code §§ 22-11-1 through -28. Authority to bring this action is vested in the WVDEP by W. Va. Code §§ 22-l-6(d)(7) and 22- 11-22.

Jurisdiction and Venue

2. This Court has jurisdiction over the subject matter of this action pursuant to W. Va. Code § 22-1 1-22.

3. Venue is proper in the Circuit Court of Jefferson County pursuant to W. Va. Code §22-11-22 because the violations noted herein occurred in Jefferson County, and because the Defendant has been and is doing business in Jefferson County.

Defendant

4. The Defendant is a municipality incorporated pursuant to the laws of the State of West Virginia and, at all times pertinent to this action, has owned and operated a wastewater treatment facility in Jefferson County.

5. The Defendant is a "person" within the meaning of W. Va. Code § 22-11-3(15).

General Allegations

6. Section 30 1(a) of the federal Clean Water Act ("CWA"), 33 U.S.C. § 1311(a), prohibits, inter alia, the discharge of any pollutant except in compliance with the CWA. The United States Environmental Protection Agency ("EPA") implements this requirement through a permitting system known as the National Pollutant Discharge Elimination System ("NPDES"). Permits issued by EPA under this system are referred to as "NPDES permits."

7. Section 402(b) of the CWA, 33 U.S.C. § 1342(b), authorizes the Administrator of the EPA to approve a state NPDES permit program that implements and administers the federal NPDES program in that state.

8. The state of West Virginia has been authorized by the EPA to administer the NPDES permit program for discharges into waters within its jurisdiction since May 10, 1982. Pursuant to W. Va. Code §~ 22-1-5, 22-1-7 and 22-1 1-4(a)(1), the WVDEP, through the Director of the Division of Water and Waste Management, is the state regulatory agency that administers and enforces the NPDES permit program in West Virginia.

9. Section 8 of the WPCA, West Virginia Code § 22-11-8, prohibits, inter alia, the discharge of any pollutant by any person into waters of the State of West Virginia, unless the discharge is in compliance with an NPDES permit issued pursuant to the WPCA.

10. Section 22 of the WPCA, W. Va. Code § 22-11-22, authorizes the WVDEP to commence a civil action for injunctive relief to compel compliance with and enjoin violations of any provision of the WPCA or any term or condition of an NPDES permit issued under the WPCA.

11. Section 22 of the WPCA, W. Va. Code § 22-11-22, also provides that any person who violates any provision of an NPDES permit issued pursuant to the WPCA is subject to a civil penalty of up to $25,000 per day for each day of each violation.

Claim for Relief
(Discharge Limitation Violations)

12. The City of Charles Town has owned and operated a wastewater treatment facility for several years under NPDES Permit No. WV0022349 ("Permit"). The Permit was reissued by the WVDEP on July 24, 2001, and is scheduled to expire on July 23, 2006. It authorizes the City of Charles Town to discharge pollutants from its wastewater treatment facility into Evitts Run of the Shenandoah River of the Potomac River under the terms and conditions set forth in the Permit. A copy of the Permit is attached hereto as Exhibit A and incorporated herein by reference.

13. The terms and conditions of the Permit limit the discharge of pollutants in the effluent from the Defendant's wastewater treatment facility. See Exhibit A. These limitations apply, inter alia, to Fecal Coliform Bacteria, Amonia-Nitrogen, Total Suspended Solids, and Biological Oxygen Demand, each of which is a "pollutant" as that term is defined in Section 3 of the WPCA, W. Va. Code § 22-1 1-3.

14. The Permit requires the City of Charles Town to report monthly to the WVDEP information regarding its discharges from the wastewater treatment facility. Reports submitted by the City of Charles Town, as well as other records, show that the effluent from the City of Charles Town's wastewater treatment facility has exceeded, and continues to exceed, the effluent limitations contained in the permit for the pollutants identified in paragraph 13 since at least 1998.

15. The City of Charles Town's failure to achieve the discharge limitations contained in the Permit is a violation of the Permit and the WPCA. Unless enjoined, these violations of the Permit and of the WPCA will continue. Plaintiff is, therefore, entitled to injunctive relief enjoining further violations and to appropriate civil penalties for each day of each violation pursuant to Section 22 of the WPCA.

Relief Requested

Wherefore, the WVDEP prays that:

1. The City of Charles Town be enjoined from any and all future violations of the WPCA and from any discharge of pollutants except as expressly authorized by its Permit.

2. The City of Charles Town be ordered to comply with all terms and conditions of its Permit.

3. The City of Charles Town be ordered to develop, submit to the WVDEP for approval, and implement a plan that provides for abatement and control of its discharges to the Evitts Run of the Shenandoah River of the Potomac River.

4. The City of Charles Town be assessed, pursuant to W. Va. Code § 22-11-22, a civil penalty of $25,000 for each day of each violation.

5. The City of Charles Town be ordered to pay the costs, including attorney, witness, and consultant fees, in this action.

6.The Court grant such further relief as it deems just and proper.

Respectfully submitted,

ALLYN G. TURNER, DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

By Counsel

Joseph A. Lazell
Office of Legal Services
West Virginia Department of Environmental Protection
1356 Hansford Street
Charleston, WV 25301
(304) 558-9160