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Upper Chattahoochee Riverkeeper Fund v. Atlanta, City of

Citation: 28 ELR 20330
No. 1:95-CV-2550-TWT, 986 F. Supp. 1406/46 ERC 1135/(N.D. Ga., 11/17/1997)

The court holds that a city committed multiple violations of the Federal Water Pollution Control Act (FWPCA) by operating several combined sewer overflow (CSO) areas that failed to comply with National Pollutant Discharge Eliminations System (NPDES) permits. The court first holds that the city is entitled to summary judgment as to the plaintiffs' trespass claims. Most of the plaintiffs do not own any property along the Chattahoochee River. Of the two plaintiffs that own property along the river, one only alleges that it fears it may suffer injury in the future, and the other has not shown that pollution from the CSO treatment facilities caused any damage. The court next holds that the city is entitled to summary judgment on the plaintiffs' claims for nuisance. A claim for public nuisance must be brought either by a district attorney or by an individual who can show special damage, and the plaintiffs do not satisfy either requirement. As to private nuisance, the plaintiffs have failed to show that they own land along the river or that the city's acts caused ascertainable property damage. The court then holds that many of the plaintiffs lack standing to assert the FWPCA claims because they have submitted no evidence that they suffered an injury directly traceable to pollution from the CSO facilities.

The court next holds that the city violated the FWPCA by failing to obtain a state environmental agency-approved sampling plan as required by its NPDES permit. The court then holds that the city failed to maintain accurate records. The NPDES permits do not require the city to record sampling times, and the plaintiffs failed to show that the city falsely reported first flush sampling; however, the city's admitted and intentional falsification of monitoring reports violates the conditions of its NPDES permits and the FWPCA. The court also holds that the undisputed facts show that the city failed to perform NPDES permit required first flush sampling at every monitored overflow event. Next, the court holds that the city violated the FWPCA by failing to obtain NPDES permit required composite samples during overflow events. The court then denies plaintiffs' summary judgment motions on claims that the city failed to collect representative samples from the receiving streams and failed to monitor rainfall properly. The court also holds that the city failed to provide adequate staffing to perform the monitoring and sampling requirements of the NPDES permits. The court next holds that because the plaintiffs failed to provide appropriate notice regarding the city's failure to provide an alternate power source to the CSO facilities' failure to provide an alternative source cannot be considered in determining whether the operation of the CSO facilities violated the FWPCA. Because fecal coliform levels exceeded the maximum level on at least half of the monitored design storm overflow events, the court holds that the city violated the NPDES permit requirement to design the CSO facilities to adequately treat waste when rainfall reached a certain level. The court then holds that the city is violating the FWPCA by dumping massive amounts of proscribed metals and fecal coliform bacteria into discharge culverts. The court rejects the city's contentions that discharges to drainage culverts do not have to meet state water quality standards required by the NPDES permits. The state water quality standards apply to all waters of the state, which is defined to include drainage systems. In addition, pollutants need not reach interstate bodies of water immediately or continuously in order to inflict serious environmental damage. Finally, the court holds that, with respect to metals, there has been no showing that the city's CSO discharges caused the water in the natural receiving streams to violate water quality standards. However, the city's dumping of inadequately treated sewage into the tributaries of the river supports the finding that the city caused levels of fecal coliform bacteria that are many thousand times greater than that allowed under the state water quality standards.

[A related decision is published at 27 ELR 20830.]

Counsel for Plaintiffs
David H. Pope
Cart, Tabb & Pope
1355 Peachtree St. NE, Ste. 2000, Atlanta GA 30309
(404) 876-7790

Counsel for Defendant
Richard A. Horder
Kilpatrick & Cody
1100 Peachtree St. NE, Ste. 2800, Atlanta GA 30309
(404) 815-6500