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United States v. Hampton Roads Sanitation Department

ELR Citation: 42 ELR 20076
Nos. No. 2:09-ev-481, (E.D. Va., 04/02/2012) (Allen, J.)

A district court held that a local sanitation department that owns and operates a complex sanitary sewer conveyance system and 13 wastewater treatment plants must pay penalties for the unintended discharge of sewage following heavy rainfall in the spring of 2010. The department previously entered into a consent decree with EPA and the commonwealth of Virginia to remedy past CWA and state law violations. Under the consent decree's remediation terms, stipulated penalties can be assessed against the department when sanitary sewer discharges occur. The consent decree also contained a force majeure provision that precludes liability for events beyond the department's control. The department sought to invoke this provision to avoid liability, but it failed to show by a preponderance of the evidence that the discharges at issue were caused by events beyond its control. The consent decree requires the department to anticipate weather-related events and to use its best efforts to address the effects of each event as it is occurring and after it has occurred to prevent or minimize any delay to the greatest extent possible. The court concluded that the department failed to do so here. Accordingly, the force majeure provision does not preclude the department's liability for stipulated penalties under the consent decree.