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United States v. Penn Hills, Municipality of

Citation: 28 ELR 21530
No. 91-1334, 6 F. Supp. 2d 432/46 ERC 1279/(W.D. Pa, 02/18/1998)

The court holds that a municipality is liable for diverting raw sewage from its treatment facilities and for discharging pollutants that exceeded allowable effluent limitations in violation of its national pollutant discharge elimination system (NPDES) permits. The court first holds that the municipality is a person within the meaning of the Federal Water Pollution Control Act (FWPCA). The court next holds that unless it has a valid defense, the municipality is liable for any and all effluent and/or by passing violations that it committed. The municipality does not dispute that it discharged pollutants in concentrations in excess of the effluent limits set forth in its NPDES permits or that it discharged raw or partially treated sewage through bypasses. Moreover, the municipality's use of bypasses was unauthorized under the terms of its NPDES permit. The court rejects the municipality's argument that any bypass alternative would have caused greater harm and property damage than the bypasses themselves were causing.

The court then holds that the municipality has no valid defense for its effluent and bypassing violations. The municipality's first affirmative defense that the government failed to join Pennsylvania is moot because the state intervened in the matter. As for the municipality's second affirmative defense that the five-year statute of limitations bars portions of the government's claims, the court will consider evidence presented at trial to determine which violations are in fact time barred. The court also rejects the municipality's third affirmative defense that the court lacked jurisdiction to enter a preliminary injunction. Under the express authority of the FWPCA, the court was clearly authorized to grant preliminary injunctive relief to the government in this case. The court also rejects the municipality's fourth affirmative defense that any penalty assessed by the court would inappropriately penalize taxpayers. Likewise, the court rejects the municipality's fifth affirmative defense. The fact that one of the plants at issue is operated by a municipal corporation does not allow the municipality to escape liability for discharges from this plant, because the municipality is the holder of the NPDES permit that authorizes those discharges. The court also rejects the municipality's sixth affirmative defense that it is permitted to discharge pollutants into the navigable waters of the United States. The municipality's NPDES permits only allow it to discharge pollutants when no feasible alternatives exist, and the court has already found that feasible alternatives to bypassing were available to the municipality. And the municipality's seventh affirmative defense that it is actually reducing the harm to the environment and the public health by operating a sewage treatment system is also rejected because the municipality clearly did not prevent the discharge of pollutants into rivers but, rather, caused such discharge to occur.

Last, the court holds that because it is unable to determine, as a matter of law, just how many effluent and bypassing violations occurred without an expert, it will defer such a determination until the time of trial.

Counsel for Plaintiffs
Robert L. Eberhardt
U.S. Attorney's Office
633 U.S. Post Office & CtHse.
7th Ave. & Grant Sts., Pittsburgh PA 15215
(412) 644-3500

Counsel for Defendant
August C. Damian
Damian & DeLuca
816 5th Ave., 8th Fl., Pittsburgh PA 15219
(412) 261-1900