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Citizens For Pennsylvania's Future v. Pittsburgh Water & Sewer Authority and City of Pittsburgh

December 3, 2012

CITIZENS FOR PENNSYLVANIA'S FUTURE, PLAINTIFF,
v.
PITTSBURGH WATER & SEWER AUTHORITY AND CITY OF PITTSBURGH, DEFENDANTS.



The opinion of the court was delivered by: Mitchell, Magistrate Judge:

MEMORANDUM OPINION

Presently before the Court is a motion to dismiss the complaint filed by defendant Pittsburgh Water & Sewer Authority ("PWSA"). For reasons discussed below, PWSA's motion to dismiss (Document No. 9) will be denied.

This is a citizens' suit brought by the plaintiff, Citizens For Pennsylvania's Future ("PennFuture"), against defendants PWSA and the City of Pittsburgh ("City") pursuant to Section 505 of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1365, and Section 601 of the Pennsylvania Clean Streams Law ("Clean Streams Law"), 35 P.S. § 691.601.*fn1 PennFuture alleges that the defendants are co-permittees of a permit issued by the Pennsylvania Department of Environmental Protection ("PADEP") under the Clean Water Act and the Clean Streams Law; that they violated the terms and conditions of said permit in connection with discharges of stormwater from a municipal separate storm sewer system to the Allegheny River; and that the interests of PennFuture members are being harmed by these violations (Complaint at ¶¶ 9-26, 28-29, 34, 37).*fn2

In the complaint, PennFuture asserts that under the authority of the Clean Water Act and the Clean Streams Law, PADEP issued to PWSA and the City a "NPDES Individual Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems (MS4s)" at NDPES Permit No. PA1136133 (the "Permit") (Complaint at ¶ 9 and Exhibit B attached to the complaint [which is a copy of the Permit]). The Permit commenced on September 29, 2004 and authorized the discharge of stormwater from MS4s into the Monongahela River, Allegheny River and Ohio River (Id.).*fn3

The Permit provides that PWSA and the City "must, during the term of this Individual Permit, implement a Stormwater Management Program that meets the following Minimum Control Measures:

1) Public Education and Outreach on Stormwater Impacts;

2) Public Participation and Involvement;

3) Illicit Discharge Detection and Elimination;

4) Construction Site Runoff Control;

5) Post-Construction Stormwater Management in New Development and Redevelopment; and

6) Pollution Prevention and Good Housekeeping for Municipal Operations and Maintenance." (Complaint at ¶ 11, citing the Permit at p. 4).

The Permit also obligates PWSA and the City to "implement and enforce" certain programs under the aforesaid Minimum Control Measures 3, 4, and 5, including: "[e]nact an ordinance prohibiting non-stormwater discharges into the MS4", "[e]nact an ordinance to require erosion and sediment controls, as well as sanctions to ensure compliance", and "[u]se an ordinance to address post-construction runoff from new development and redevelopment projects." (Complaint at ¶¶ 12-13, citing the Permit at pp. 4-5).

In 2007 and 2010, the City enacted ordinances to comply with the Permit (Complaint at ¶¶ 14-16).*fn4 PennFuture asserts that under the ordinances enacted by the City pursuant to the Permit, regulated activities equal to or greater than ten thousand square feet in area, or publicly funded developments or redevelopments must submit a Stormwater Management Site Plan ("SWM Site Plan") that meets the stormwater management standards designated for that particular regulated activity (Complaint at ¶ 17). PennFuture complains that in a redevelopment project involving the Buncher Company, that did not occur.

According to PennFuture, the Buncher Company is constructing a redevelopment project in the City's "Strip District" (the "Project") that has received a $15 million Redevelopment Assistance Capital Program Grant from Governor Corbett (Complaint at ¶ 18). As part of the Project, the Buncher Company commenced -- without having submitted a SWM Site Plan to PWSA or the City -- the construction of a new roadway, from Eleventh Street to Fourteenth Street, near the Allegheny River (the "Eleventh Street Project") (Id. at ¶ 19). However, after PennFuture issued its aforementioned Notice Letter identifying the violation, the Buncher Company submitted a SWM Site Plan to ...


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