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UNITED STATES v. MUNICIPALITY OF PENN HILLS

February 18, 1998

UNITED STATES OF AMERICA and COMMONWEALTH OF PENNSYLVANIA, Plaintiffs,
v.
THE MUNICIPALITY OF PENN HILLS, Defendant.



The opinion of the court was delivered by: BLOCH

MEMORANDUM OPINION

 BLOCH, District J.

 Presently before the Court is a motion filed by the plaintiff, the United States of America (the government), for summary judgment on the liability portions of Counts I and II of the Complaint. For the reasons set forth in this Court's opinion, the government's motion will be granted in part and denied in part.

 I. Background

 This is a civil action seeking injunctive relief and civil penalties for alleged violations of the Clean Water Act (the Act), 33 U.S.C. 1251, et seq. A brief rendition of the facts underlying the within action is set forth below.

 Defendant, Penn Hills, is a municipality in Allegheny County, Pennsylvania. As such, Penn Hills owns and operates five sewage collection and treatment plants, four of which are the subject of this action--the Gascola Water Pollution Control Plant (Gascola), the James Volk, or Sandy Creek, Water Pollution Control Plant (Sandy Creek), the Long Road Water Pollution Control Plant (Long Road) and the Plum Creek Water Pollution Control Plant (Plum Creek).

 Penn Hills' collection and treatment process at the time the within action was filed was as follows: Raw sewage from the residences and businesses in Penn Hills was conveyed to one of Penn Hills' five collection and treatment plants either by gravity or through pump stations. Thereafter, once at the appropriate plant, the raw sewage underwent primary and secondary treatment, and the treated wastewater generated by each plant was then chlorinated and discharged through a permitted outfall. Often times, the wastewater was discharged directly into the Allegheny and Monongahela Rivers and their tributaries.

 Section 301(a) of the Act, 33 U.S.C. § 1311(a), makes it unlawful for any person to discharge any pollutant except as in compliance with the Act. One exception to the Act's prohibition against discharge is found in § 402, 33 U.S.C. § 1342. Pursuant to that section, a person may obtain a permit under the National Pollutant Discharge Elimination System (NPDES), authorizing he or she to discharge certain pollutants under specified circumstances.

 Most NPDES permits contain both effluent and bypassing limitations. Effluent limitations are restrictions placed on the quantity, rate and concentration of chemical, physical and/or biological constituents discharged by a permittee from designated point sources into navigable waters. Bypass limitations, on the other hand, are simply restrictions placed on the diversion of waste from a permittee's treatment facilities.

 In June, 1985, and thereafter in June, 1990, Penn Hills obtained NPDES permits from the Pennsylvania Department of Environmental Resources. These permits were requested and obtained under the express authority of the Act, 33 U.S.C. § 1342(b), and, among other things, allowed Penn Hills to discharge pollutants into the Allegheny and Monongahela Rivers and their tributaries. Pursuant to the NPDES permit language, however, Penn Hills was required to take samples of and analyze the level of pollutants being discharged from each of the four treatment plants at issue, and was prohibited from discharging pollutants in concentrations in excess of the effluent limits set forth therein. (See Penn Hills' NPDES permits, part (A)(1), attached as Exhibits 1A-4C to the government's memorandum).

 In addition to setting effluent limitations, the NPDES permits at issue also prohibited Penn Hills from bypassing waste unless the circumstances were such that: (1) bypassing was unavoidable to prevent loss of life, personal injury or severe property damage; and (2) no feasible alternative was available. Specifically, on the issue of bypassing, Penn Hills' NPDES permits provided as follows:

 
(1) Bypassing not Exceeding Permit Limitations - The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if the bypass is for essential maintenance to assure efficient operation....
 
(2) Other Bypassing - In all other situations bypassing is prohibited unless the following conditions are met:
 
(a) A bypass is unavoidable to prevent loss of life, personal injury or "severe property damage"; [and]
 
(b) There are no feasible alternatives to a bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. (This condition is not satisfied if the permittee could have installed adequate backup equipment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance)....

 (See NPDES permits, part (B)(1)(d)).

 In August, 1991, the government filed the within complaint against Penn Hills, seeking both injunctive relief and civil penalties for alleged violations of its NPDES permits and §§ 301 and 402 of the Act. Upon filing the complaint, the government also moved for a preliminary injunction, requesting that Penn Hills be ordered to perform certain activities designed to eliminate the alleged violations that were the most immediate threats to human health, i.e., the unauthorized discharge of raw sewage into the Allegheny and Monongahela Rivers and their tributaries.

 Thereafter, in September, 1991, this Court issued a preliminary injunction order, consented to by all parties, requiring Penn Hills to, inter alia: (1) identify all points of unpermitted discharge; (2) monitor those discharge points; (3) produce and implement a plan to eliminate unpermitted discharge; and (4) immediately block the unpermitted discharge points that could be blocked. The Court also set forth a timetable for Penn Hills to comply with in the development and implementation of a comprehensive plan to rehabilitate its treatment facilities and/or to convey its sewage to the Allegheny County Sanitary Authority (Alcosan) for ultimate treatment.

 Although Penn Hills encountered some delays in construction due to harsh weather conditions, and was therefore unable to meet several milestone dates set by this Court by which certain stages of the rehabilitation project were ordered to be completed, by January, 1996, Penn Hills was in compliance with all of the requirements of this Court's preliminary injunction order. That is, Penn Hills developed a comprehensive plan for conveying all of its raw sewage to Alcosan, and also developed a state of the art system of flow equalization tanks for the retention of excess sewage.

 The only remaining relief sought by the government in this case is, therefore, permanent injunctive relief and the imposition of civil penalties. *fn1" Although the parties engaged in further settlement negotiations after the completion of Penn Hills' rehabilitation project, they have been unable to reach a final settlement of this matter. The government has therefore filed the motion presently before the Court in which it requests summary ...


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