Environmental – Wastewater Treatment Plant – NPDES Permit – Failure to Connect – Excessive Discharges

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Congaree Riverkeeper, Inc. v. Carolina Water Services, Inc. (Lawyers Weekly No. 002-112-17, 31 pp.) (Margaret Seymour, S.J.) 3:15-cv-00194; D.S.C.

Holding: Defendant’s National Pollutant Discharge Elimination System (NPDES) permit required it to connect its wastewater treatment plant to a regional system once the system was physically available, not when the system was contractually available; therefore, defendant’s failure to connect to the regional system for 17 years is a violation of its NPDES permit.

The court grants summary judgment for plaintiff. The court fines defendant $1,500,000 for its failure to connect to the regional system and $23,000 for defendant’s violation of its permit’s effluent limitations. The fines shall be paid to the U.S. Treasury. Defendant is permanently enjoined from discharging any treated or untreated wastewater into the Saluda River, and defendant must connect to a regional wastewater treatment plant in accordance with The 208 Water Quality Management Plan for the Central Midlands Region (the 208 plan).

Standing

In an environmental case, plaintiffs adequately allege injury when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area are lessened. Here, plaintiff’s members specify their uses of the river – fishing, kayaking, canoeing, and providing guided tours – as well as their attempts to avoid the river in the area of defendant’s discharge pipe. Plaintiff’s members also state aesthetic issues with the water’s appearance and smell. Plaintiff has demonstrated that its members use the affected area, have personal knowledge, and avoid the area due to aesthetic and health concerns. Plaintiff has thus demonstrated injury.

The harm is traceable to defendant, which discharges treated wastewater into the Saluda River. While there may be other businesses discharging into the Saluda River, plaintiff’s members specifically noted the area around defendant’s discharge pipe in their affidavits. Further, while connection to the regional system requires other actors’ assistance and approval, defendant cannot be rewarded for its lack of a good faith effort to engage in negotiations and receive the required approvals.

As to redressability, the court may issue an injunction dictating a specific time to connect to the regional system that provides sufficient time for defendant to contract with the Town of Lexington and to seek approval from the Public Service Commission of South Carolina. Relief for plaintiff is not too speculative or dependent upon third parties.

In addition, an imposition of civil penalties is not inequitable. Such penalties would be an incentive for defendant to engage in further negotiations with Lexington; accordingly, civil penalties would redress plaintiff’s injuries.

Plaintiff has standing.

Clean Water Act

Although defendant contends that its 1995 NPDES permit was modified in 2002, the proper modification procedure would have been for defendant to appeal the Department of Health and Environmental Control’s (DHEC’s) denial of defendant’s application to modify its 1995 permit to the South Carolina Board of Health and Environmental Control, for the board to overrule the denial and then to submit the request to a public notice and comment period. The modification procedures were not sufficiently followed in this case; therefore, the 1995 permit applies.

Pursuant to the 1995 permit, defendant is required to submit plans for connection with the regional system and to begin construction of the connection. The 208 Plan clearly says that temporary facilities, such as defendant’s, must “consolidate” with a regional system. DHEC has repeatedly required defendant to connect to the regional system and cease discharging. There are numerous ways to connect to the system. “Connect” does not mean on defendant’s terms, nor does it imply that defendant will have a continuing role after connection is made.

The 1995 permit required defendant to connect to the regional system once the system was “available.” DHEC – the permit’s author – equates the term “available” with “operational,” meaning the regional system is operating and physically available for connection. The court is persuaded by DHEC’s interpretation and concludes that the term “available” means physically, not contractually, available.

The Clean Water Act is a strict liability statute. Accordingly, the bona fides or reasonableness of defendant’s efforts to comply with its permit is not relevant in determining whether defendant is liable under the CWA.

Defendant’s sewage discharge is a serious violation. Between 2009 and 2013, defendant’s economic benefits averaged $689,000 per year. Defendant has violated its permit for more than 17 years, though only recently has anyone undertaken an enforcement action. Further, defendant will incur costs to correct the problems caused by its failure to fulfill the permit requirements. Taking these factors into consideration, the court imposes a fine of $1,500,000.

There is no genuine issue of material fact that defendant has violated its effluent limitations 23 times since 2009. Defendant is not entitled to the “upset defense” because it has not shown that it reported its effluent violations orally within 24 hours and in writing within five days.

Summary judgment for plaintiff.