The opinion of the court was delivered by: KNOX
Plaintiff brought suit against the defendants, basing jurisdiction on the Federal Water Pollution Control Act (FWPCA) (Clean Water Act), 33 U.S.C. § 1251 et seq., for allegedly discharging sewage sludge and other sewage material into the Shenango River and its tributaries. Plaintiff sought preliminary and permanent injunctive relief against the defendants named herein, several contractors, North Shenango Township, South Shenango Township, and the members of the Board of the North and South Shenango Joint Municipal Authority in their individual capacities for violations of the Clean Water Act. A hearing on plaintiff's motion for a preliminary injunction commenced on June 20, 1979 and, at the conclusion of the hearing on June 22, 1979, the Court denied plaintiff's motion "for the present but with liberty to the plaintiff at any time evidence of (statutory violations) is developed to bring the matter again to the attention of the Court." (Notes, 311). The Court granted motions to dismiss or for summary judgment in favor of the contractors, the Townships, and the members of the Board of the North and South Shenango Joint Municipal Authority in their individual capacities for lack of personal and subject matter jurisdiction. On May 21, 1980, the case was tried to the court nonjury. We have carefully reviewed the evidence introduced during the three days of trial and the arguments of counsel and, therefore, the case is now ripe for adjudication. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, we make the following findings of fact and conclusions of law.
The plaintiff, The Pymatuning Water Shed Citizens for a Hygienic Environment, is a Pennsylvania non-profit corporation. Membership in the plaintiff corporation is limited to persons living in or having some ecological or recreational interest in the Pymatuning Water Shed area. The officers of the plaintiff are: George Stratford, President; Walter Krothe, Vice-President; and Linda L. Brown, Secretary-Treasurer. The defendant, North and South Shenango Joint Municipal Authority (Authority), was formed by resolutions of the North and South Shenango Townships in the Fall of 1974, for the purpose of planning and building a sewage disposal system for the area. The additional defendants are the members of the Board of the Authority.
On October 30, 1974, the Authority retained Northwest Engineering, Inc. of Tidioute, Pennsylvania to prepare plans and specifications, and apply for the necessary grants and loans for the sewage system. The system is designed to service portions of North and South Shenango Townships, Crawford County, Pennsylvania, extending from Espyville on the north to the outskirts of Jamestown Borough on the south and from the Penn Central Railroad tracks westerly to the Pymatuning Reservoir shoreline. The drainage basin for most of this area is the Pymatuning Reservoir and a small portion of South Shenango Township drains into the Crooked Creek drainage system. These basins are, in turn, part of the larger Shenango River drainage basin.
On February 4, 1975 the Authority submitted an application to the Bureau of Water Quality Management, Department of Environmental Resources, Commonwealth of Pennsylvania, for a Water Quality Management Permit. Amendments to the application were filed on June 20, 1975, September 20, 1975, and September 24, 1975, and the DER issued the permit on September 18, 1976.
Construction began in 1977 and on April 20, 1979, Certificates of Substantial Completion were issued by Northwest Engineering, Inc. to the contractors. By November 1, 1979, ninety per cent of the customers were using the system.
Surface water from pavements, area and roof drains, and flooded manhole covers frequently enters the system in violation of Conditions 5, 8, and 16 of the DER permit and in violation of Condition 16 of the Standard Conditions Relating to Erosion Control of the DER permit.
On September 14, 1979, December 24-25, 1979, January 11, 1980, and February 22, 1980, the flow of sewage through the system significantly exceeded the estimated flow per day because of excessive inflow. As a result of the inflow which occurs generally during periods of heavy rainfall, there have been numerous discharges of raw or untreated sewage into the Shenango River and its tributaries. On December 25, 1979 and February 22, 1980, the flow records indicate that the holding capacity of the tanks at the treating facility had been exceeded. Overflows and surcharging have occurred at pump stations I-2, I-3, I-6, C-2, C-4, C-5, C-8, C-12, C-13, and C-17 at various times in July, August and September of 1979. Overflows and flooding are likely to occur in the future unless substantial corrective measures are taken.
During periods of heavy rainfall, excessive infiltration of the system has occurred in violation of Conditions 3, 4, 8, and 16 of the DER permit and Condition 6 of the Standard Conditions Relating to Erosion Control of the DER permit.
Infiltration is water which leaks from the ground into the sewer through such sources as broken pipes, defective joints, and leaky manhole barrels. A report of the inspections of selected manholes conducted by the engineering firm of Betz, Converse, Murdoch, Inc. of Pittsburgh, Pennsylvania, revealed that the sagging of the pipe lines and the separation of the joints resulted from poor construction. The firm reported that the pipe bedding and backfill was improperly placed, and settlement occurred in the trenches, thereby causing the lines to sag and the joints to separate. The firm further concluded that most of the leaky joints were associated with clay pipe. As a result of excessive infiltration, raw or untreated sewage has been discharged into the Shenango River and its tributaries during periods of heavy rainfall.
In an effort to seal the leaky joints and reduce infiltration, one or more of the contractors used chemical grouting, a correcting procedure which is used to seal leaky joints when the pipe is otherwise structurally sound. In its report, Betz, Converse described grouting, as follows:
"The grout used on this job was a polyacrylamide gel commonly known by its trade name "AM-9.' The system has three components, the monomer, the catalyst and the initiator. The monomer and catalyst are powders which are dissolved in water to form a 10% monomer solution. The initiator is dissolved in water separately. When the monomer-catalyst solution is mixed with the initiator solution they quickly react to form a semi-solid rubbery material called a gel. The time for gel formation can be controlled by adjusting the concentrations of the chemicals. It is also influenced by temperature.
To seal leaky joints the liquid chemicals are mixed, and using a special packer, are quickly forced from inside the pipe out through the particular joint that was found to be leaking. At that point the mixture is a thin liquid which flows like water and penetrates the soil around the leaky joint. Within a short period of time, typically 20 seconds, the mixture saturates the soil and fills all voids near the pipe and then gels in place. The resulting rubbery material effectively blocks the infiltration of water into the pipe. After sealing, the joint is tested with air pressure to show that the leak has been sealed.
The maximum effective life of an AM-9 sealing job is not known. The material has been in use for approximately 20 years and installations of that age are still effective. It is relatively inert material and is resistant to attack by bacteria, other microorganisms and the chemicals normally found in the soil.
The most serious adverse condition is dehydration. The gel is composed of about 90% water and 10% polymer and will maintain its rubbery consistency only as long as this water is not lost. When surrounded by and saturated with water the gel remains intact and continues to provide a good seal. This would be the case in a location where the water table is always above the pipe. On the other hand, if the water table ever drops below the pipe and the soil is no longer saturated with moisture, the grout may begin to dry out and could shrink and crack. If the water table would rise again the grout would partially rehydrate and swell but cracks previously formed would usually not heal completely. These cracks could then provide channels for water to find its way into the joint again. Additional cycles of dehydration and rehydration would tend to form more and larger cracks and could ultimately, over the years, lead to the complete failure of the seal. Drying out of the gel may be delayed by the addition of moisturizing agents such as calcium chloride."
Betz, Converse, Murdoch, Inc., Sanitary Sewer System Review, 31-32. The specifications for this system ...