Case 4:22-cv-00130-CLM Document 1 Filed 02/01/22 Page 1 of 59
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`FILED
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` 2022 Feb-01 AM 10:50
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`FILED
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` 2022 Feb-01 AM 10:50
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 2 of 59
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`rainwater and groundwater to enter the sanitary sewer system, a problem referred to as
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`“inflow andinfiltration.” The excess water in the system overwhelmsthe hydraulic
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`capacity of sewer pipes, manholes, and other sewer infrastructure, leading to overflows of
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`untreated sewage.
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`3.
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`All these sanitary sewage overflowsenterstreets, homes, and ultimately
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`the waters surrounding the City of Gadsden — the Coosa River, Neely Henry Lake, Big
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`Wills Creek, Black Creek, and their tributaries and surrounding wetlands.
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`4,
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`The Board’s failure to maintain sewage infrastructure andthe resulting
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`regular discharges of untreated sewage to the waters in and around Gadsden, Alabama,
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`both violate the terms of the Board’s National Pollutant Discharge Elimination System
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`(“NPDES”) permits, which were issued to it pursuant to the federal Clean Water Act.
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`5.
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`As noted,the illegal discharges are the outcomeofearlier, more.
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`foundational violations of the Board’s NPDES permits. The Board’s NPDESpermits
`require it: to carefully maintain the sewers, manholes, and treatment equipment that make
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`up the “publicly owned treatment works”; to report accurately on the pollutionit
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`discharges; and to assure that sewagepollution discharges do not compromise water
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`quality standards established to protect local waters and ensure that these waters remain
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`drinkable, swimmable, fishable, and supportive of healthy populations offish and
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`wildlife. The Board violates these and other standards, terms, andlimitationsofits
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`NPDESpermits routinely, in a variety of ways.
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`6.
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`As a result of the Board’s rampantfailures to maintain its sanitary sewage
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`infrastructure,failures to report accurately onits discharges of pollution, andits failures
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`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 3 of 59
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`to protect local waterbodies, the Board has violated and continuesto violate the Clean
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`Water Act and its NPDESpermits.
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`II.
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`JURISDICTION AND VENUE
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`7.
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`Thisis a civil suit brought underthe citizen suit enforcement provision of
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`the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq. (“Clean Water Act”
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`or “CWA”) (see 33 U.S.C. § 1365). This Court has subject matter jurisdiction over the
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`parties and this action pursuant to Section 505(a)(1) of the Clean Water Act, 33 U.S.C. §
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`1365(a)(1), and 28 U.S.C. §§ 1331 and 2201 (an action for declaratory and injunctive
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`relief arising under the Constitution and laws of the United States).
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`8.
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`The venueis proper in the Northern District of Alabama pursuantto
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`Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the source of
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`the violations is located within this judicial district.
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`1.
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`PLAINTIFFS HAVE COMPLIED WITH THE CLEAN WATER ACT’S
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`PRE-SUIT NOTICE REQUIREMENTS
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`9.
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`On November 18, 2021, Plaintiffs issued a sixty (60) day notice letter
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`(“Notice Letter”) to the Board, as required by Section 505(b)(1)(A) of the Clean Water
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`Act, 33 U.S.C. § 1365(b)(1)(A). The Notice Letter informed the Board that Plaintiffs
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`intended to sue the Boardfor violating numerous, identified requirements of its NPDES
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`permits and the Clean Water Act. The Notice Letter was sent also to the Administrator of
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`the United States Environmental Protection Agency (“EPA”), the Administrator of EPA
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`Region IV, andthe Director of the Alabama Department of Environmental Management
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`(“ADEM”), as required by the above Section of the Clean Water Act. A true and correct
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`copy of Plaintiffs’ Notice Letter is attached as Exhibit A andis incorporated by reference.
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`10.
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`OnJanuary 12, 2022, 54 days after receiving the Notice Letter, ADEM
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`filed a complaint against the Board in the Circuit Court of Etowah County, Alabama,
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`seeking to enforce certain provisions of the Board’s permits and certain provisions of
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`Alabamalaw.
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`11.
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`ADEM’s complaint in the Etowah County Circuit Court does not seek to
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`enforce compliance with many of the permit requirements that Plaintiffs identified in the
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`Notice Letter as standards and limitations that the Board has violated and continues to
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`violate.
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`12.|More than sixty (60) days have passed since the Notice Letter was issued
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`to the Board, the state, and federal agencies.
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`13.
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`Neither EPA northe state of Alabama has commencedoris diligently
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`prosecuting an action to redress the violations alleged in the Notice Letter and this
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`Complaint. This action is not barred by any prior administrative penalty matter issued
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`under Section 309(g) of the Clean Water Act, 33 U.S.C. § 1319(g). Accordingly, because
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`the requirements of 33 U.S.C. § 1365(b)(1)(B) have been met, this matter may be
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`commenced.
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`WV.
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`PARTIES
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`14.
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`Coosa Riverkeeper is a nonprofit organization whose mission is to protect,
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`preserve, and restore the ecologicalintegrity and productivity of the Coosa River through
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`enforcement, field work, and community action. Coosa Riverkeeper’s mission includes
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`safeguarding the environmental, recreational, and commercialintegrity of the Coosa
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`River and its ecosystem. Coosa Riverkeeper achievesits mission through public
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`education, advocacy for sound public policies, and participation in legal and
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`administrative forums. To further its mission, Coosa Riverkeeperactively seeks federal
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`and state implementation of the Clean Water Act and, where necessary, directly initiates
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`enforcementactions on behalf of itself and its members.
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`15.
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`The Center for Biological Diversity (“Center”) is a national nonprofit,
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`conservation organization dedicated to the preservation, protection, and restoration of
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`biodiversity, native species, and ecosystems. The Center was founded in 1989 andis
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`based in Tucson, Arizona, with offices throughout the country. The Center works
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`through science, law, and policy to secure a future for all species, great and small,
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`especially those hovering on the brinkof extinction. The Center is actively involved in
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`species and habitat protection issues and has more than 89,600 members throughoutthe
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`United States and the world, including in Alabama. The Center advocates for the
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`protection and recovery of species existing throughout the southeastern United States and
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`Alabama,including for water-dependent species such as mussels andfish.
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`16.
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`Advance Etowahis a nonprofit organization with the goal of bringing
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`together the community of Etowah County by informing citizens of how their community
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`is governed, promoting transparency and accountability in their local government, and
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`encouraging the citizens of Etowah County to understandthat they have a responsibility
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`in the county’s governance. Advance Etowah’s missionis to give a voice to the people
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`of the Etowah County community.
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`17.
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`Our Children’s Earth Foundationis a nonprofit organization dedicated to
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`protecting the environment. Our Children’s Earth promotes public awareness of
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`domestic and international environmental impacts through information dissemination,
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`education, and private enforcement of environmentalprotection statutes. Our Children’s
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`Earth enforcement cases aim to achieve public access to government information, ensure
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`proper implementation of environmental statutes and permitting, and enjoin violations of
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`environmental and governmenttransparency laws.
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`18.
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`Plaintiffs represent members and supporters in and around Gadsden who
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`have personally suffered harm to their aesthetic, recreational, and economic interests due
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`to the Board’s sanitary sewage overflowsand failure to maintain its sanitary sewage
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`infrastructure. Plaintiffs’ members and supporters use, repeatedly visit, and will continue
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`to use andvisit the waterbodies that the Boardis polluting.
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`19.
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`Carolyn Parker, a member of Coosa Riverkeeper, is deeply affected by the
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`Board’s discharges of raw sewage and concerned about how these discharges affect her
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`community and local waterbodies. Sanitary sewer overflows often occuronthe streets
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`leading into the subdivision where she lives. When she served on the Etowah County
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`Commission,her constituents would often complain to her about the widespread sewage
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`problems in Gadsden. Sheisstill contacted regularly aboutthis issue, leading herto be
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`concerned for the health, safety, and wellbeing of herself and her community. Ms. Parker
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`walks along the Coosa River around two to three times per week, and, in the summer, she ©
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`boats and swims in the Coosa River. She often smells sewage whenshevisits the Coosa
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`River and is worried about how the Board’s discharges of sewage affect the Coosa
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`River’s water quality, its ecosystems, and the health of the people that use and recreate on
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`the Coosa River. The Board’s discharges of sewageinto the Coosa Riverdetract from
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`Ms. Parker’s enjoymentof her visits to the Coosa River. She wouldrecreate in and along
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`the Coosa River more often if Gadsden’s widespread sanitary sewer overflow problem
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`was undercontrol.
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`20.
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`Joshua Tidwell, a memberof the Center for Biological Diversity, is also
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`personally affected by the Board’s discharges of raw sewage and is deeply concerned
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`about the impacts of the sewage on local waterbodies that he cares about and frequently
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`recreates in and upon. Mr. Tidwell ownsa canoe and kayak rental business on Big Wills
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`Creek. Whenasanitary sewer overflow reaches Big Wills Creek, fewer people frequent
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`his business, which harms him economically. Mr. Tidwell often fishes, boats, and kayaks
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`on Big Wills Creek and Lake Neely Henry, and as such heis both directly at risk of
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`exposure to the Board’s sewage and his enjoymentof his outings on these lakes is
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`reduced. Heis worried about how the Board’s sanitary sewer overflows affect these
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`waterbodies and the wildlife that rely on the continuing health of these ecosystemsfor
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`their own survival. He has seen people swimming near areas where sewage has reached
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`surface waters and is concerned about these membersofhis local community becoming
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`sick due to the pollutants in sanitary sewer overflows. Heis also concerned abouthis
`own health and safety, and that nutrient pollution caused by sanitary sewer overflows will
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`negatively impair these freshwater ecosystems, including the habitats that they provide
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`for threatened and endangered species.
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`21.|Mary Carolyn Machen, a member of Our Children’s Earth Foundation,is
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`also personally affected by the Board’s discharges of raw sewage. Ms. Machen owns a
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`stand-up paddle board outfitting business on Neely Henry Lake. Whenevera sanitary
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`sewer overflow reaches Neely Henry Lake, Ms. Machen must suspend operationsat her
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`business to protect the health of her customers. She is concerned that the Board’s
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`frequent sanitary sewer sewage overflows are negatively impacting the public perception
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`and reputation of Neely Henry Lake, a waterbody that she cares deeply about. Ms.
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`Machen often swims and paddles in Neely Henry Lake but cannotrecreate in or on the
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`water whenever a sewage overflow reachesthe lake, since she does not want to be
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`exposed to raw sewage. Through her business, she operates an eco-tour where customers
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`can observe the local wildlife in the lake. She is concerned that this wildlife is negatively
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`impacted by the nutrient pollution caused by the Board’s sanitary sewer overflows.
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`Additionally, the Board’s failure to properly report its sanitary sewage overflows causes
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`her harm. Without transparent and accurate reports from Defendant,sheis left
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`uninformed about sewagepollution that can affect her recreation, her health, and her
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`business.
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`22.
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`Fred Zackery, a member of Advance Etowah,is also affected by the
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`Board’s sanitary sewer overflows on a regular basis. Nearly every timeit rains, there are
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`sanitary sewage overflowsin the streets aroundhis office. Mr. Zackery constantly passes
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`by sewage overflows during his commute to work, and he often needs to change his route
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`to work to avoid sewagein the streets. There are also sanitary sewer overflowsin the
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`neighborhood where he lives. Mr. Zackery must deal with the foul odor of sewage
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`wheneverthere is a sanitary sewer overflow in his neighborhood. Whenthese overflows
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`are left to dry in the streets, they leave behind residual sewage on the ground. This leads
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`him to be concerned about the health and safety of the membersof his community,
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`especially children. Mr. Zackery also wishes for transparent and accurate reporting from
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`the Boardin order for his community to be better informed aboutsanitary sewer
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`overflows and the extent of the sewage problem facing Gadsden.
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`23.
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`The Board is a municipal corporation of the City of Gadsden, incorporated
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`under the laws of the State of Alabama.
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`V.
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`STATUTORY BACKGROUND
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`24.
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`Congress enacted the Clean Water Act in 1972 to “restore and maintain
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`the chemical, physical, and biological integrity of the Nation’s waters.” CWA Section
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`101(a), 33 U.S.C. § 1251(a). In furtheranceof this goal, the Act provides a
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`comprehensive approach for the regulation of pollution discharged into the waters of the
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`United States.
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`25.
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`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of
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`pollutants from a point source into navigable waters of the United States, unless in
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`compliance with various enumerated sections of the Act.
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`26.
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`A “point source”is “any discernible, confined and discrete conveyance,
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`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
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`fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
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`floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
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`27.
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`Under section 402 of the Clean Water Act, 33 U.S.C. § 1342, the
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`Administrator of the EPA can issue NPDESpermits, and can authorize states to issue
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`NPDESpermits, to the owners or operators of point sources that authorize and carefully
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`circumscribe their discharges of pollution.
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`28.
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`Discharges not authorized by,or in violation of, the terms of a NPDES
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`permit issued by the EPA or a designated state agency are prohibited pursuantto section
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`301 of the Clean Water Act, 33 U.S.C. § 1311.
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`29.
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`Undersection 402(a), (b) of the Clean Water Act, 33 U.S.C. § 1342(a),
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`(b), the Administrator of the EPA has authorized ADEMto implement a NPDES
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`permitting program in Alabama.
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`30.
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`The discharges from a municipal sewer system, referred to under the
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`Clean Water Act as a “Publicly Owned Treatment Works” (“POTW”), are point source
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`discharges that require authorization under a NPDESpermit.
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`31.
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`40C.F.R. § 403.3(q) defines a POTW asa “a treatment works as defined
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`by section 212 of the Act, which is owned by a State or municipality .
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`.
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`. [it] includes any
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`devices and systems usedin the storage, treatment, recycling and reclamation of
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`municipal sewage orindustrial wastes of a liquid nature. It also includes sewers, pipes
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`and other conveyancesonly if they convey wastewater to a POTW TreatmentPlant.”
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`32.
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`Sections 212(2)(A) and (B) of the Clean Water Act, 33 U.S.C. §
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`1292(2)(A) and (B)states a treatment works includes “sewage collection systems,
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`pumping, power and other equipment, and their appurtenances” and “sanitary sewer
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`systems.”
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`33.
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`Section 301(b)(1) of the Act, 33 U.S.C. § 1311(b)(1), requires POTWs
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`with NPDESpermits to meet effluent limitations based upon secondary treatment andto
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`comply with any more stringent limitation that may be necessary to protect state water
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`quality standards.
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`34,
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`Section 308 of the Clean Water Act, 33 U.S.C. § 1318, requires NPDES
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`permittees to maintain records; install, use, and maintain monitoring equipment; sample
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`effluent; and report regularly to the permit-issuing agency regardingthefacility's
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`discharge of pollutants. The reports are called Discharge Monitoring Reports (“DMRs”).
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`35.
`The citizen suit provision of the Clean Water Act, section 505(a)(1), 33
`U.S.C. § 1365(a)(1), authorizes any citizen to commencea civil action against any person
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`alleged to be in violation of “an effluent standardor limitation” or “an order issued by the
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`Administrator or a State with respect to such a standard orlimitation.”
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`36.
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`As relevant here, an “effluent standardor limitation”includes: any
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`unlawful discharge under Section 301(a) of the Act, 33 U.S.C. § 1311(a); any effluent
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`limitation established under Sections 301 and 302 of the Act, 33 U.S.C. §§ 1311 and
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`1312; any condition of a NPDESpermit; or any “order issued by the Administrator or a
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`State with respect to such a standardor limitation.” 33 U.S.C. § 1365(f).
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`37.
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`Declaratory relief in this case is authorized by 28 U.S.C. § 2201-02
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`(powerto issue declaratory relief in case of actual controversy and further necessary
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`relief based on such a declaration).
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`38.
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` Injunctive relief is authorized by section 505(a) of the Act, 33 U.S.C.§
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`1365(a).
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`il
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`39.
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`Violators of the Act are also subject to an assessmentofcivil penalties of
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`up to $59,973 per day per violation for violations occurring after November 2, 2015.
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`CWA §§ 309(d), 505(a), 33 U.S.C. §§ 1319(d), 1365(a); 40 C.F.R. §§ 19.1-19.4.
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`VI.
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`STATEMENT OF FACTS
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`The Board’s POTWSand Their NPDES Permits
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`40.
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`The Board operates two POTWSin Gadsden,referred to on their NPDES
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`permits as the East River Wastewater Treatment Plant(“East River POTW”) and the
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`West River Wastewater TreatmentPlant (“West River POTW”). Each POTWconsists of
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`both a sewagetreatmentplant adjacentto the Coosa River and a network of sewers that
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`connects homesand businessesto the plant.
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`41.
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`The Board is authorized to discharge pollutants pursuantto the standards,
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`limitations, and conditions of two different NPDES Permits: No. ALQ022659, issued by
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`ADEMfor the East River POTW, and No. AL0053201, issued by ADEMfor the West
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`River POTW.Below,these permits are referred to as the East River NPDES Permit and
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`the West River NPDES Permit.
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`42.
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`43.
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`Both POTWsdischarge into the Coosa River,
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`Discharges from certain enumerated outfalls at the two POTWs to the
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`Coosa River are authorized pursuantto the Board’s NPDESpermits.
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`44,
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`Each of these NPDESpermits contains terms andlimitations regulating
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`how and wherethe Boardis authorized to discharge pollution from each POTW to the
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`Coosa River.
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`12
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`45.
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`The outfalls listed in these NPDES permits are the only locations from
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`which Gadsdenis authorized to discharge pollution, and only if the discharges comply
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`with all terms and limitations stated in the permit.
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`46.
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`Each permit also contains other terms and limitations that regulate
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`maintenance, monitoring, recordkeeping, and other matters,all designed to ensure that
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`Gadsden’s sewers and sewage treatment plants are well maintained, well managed, and
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`that problems are observed, reported accurately, disclosed to the public, and addressed in
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`a timely manner.
`47.
`The environmental problems and Clean Water Act violations arising in the
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`East River POTW and West River POTWoriginate from the Board’s poor maintenance
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`and management practices. The Board allows excessive inflow andinfiltration that
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`overloads the sewer system and allows other problems to develop too, such as sewer
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`blockages, pipe leaks, and equipmentfailures. These problemsresult in discharges of
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`raw sewage and excess discharges of pollution at the sewage treatmentplants.
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`The Board’s Failures to Maintain Sewage Infrastructure
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`48.
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`Adequate maintenance and management of the Board’s sanitary sewersis
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`essential to controlling inflow andinfiltration, preventing sewer overflows, and
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`forestalling problems at the sewage treatment plants.
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`49.
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`40C.F.R. § 122.41(e) states that a “permittee shall at all times properly
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`operate and maintain all facilities and systems of treatment and control (and related
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`appurtenances) which are installed or used by the permittee to achieve compliance with
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`the conditions of [its NPDES permit].”
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`13
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`50.
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`The East River and West River NPDES permits require that the Board:
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`properly operate and maintainall facilities and systems of treatment and
`control (and related appurtenances) whichare installed or used by the
`Permittee to achieve compliance with the conditions of the permit. Proper
`operation and maintenanceincludeseffective performance, adequate
`funding, adequate operator staffing andtraining, and adequate laboratory
`and process controls, including appropriate quality assurance procedures.
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`East River NPDES Permit, Section II.A.1; West River NPDES Permit, Section IL.A.1.
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`51.|The Board has violated the standards andlimitations contained within the
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`maintenanceprovisions of its NPDES permits in many ways.
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`52.
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`Frequent and widely distributed sewage blockages indicate that the Board
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`is not effectively performing basic maintenance, such as routine sewer pipe inspection
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`and cleaning, with adequate frequency and thatthe Boardis not proactively addressing
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`structural or behavioral causes of blockages.
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`53.
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`The Board is not performing basic inspection, cleaning, or repair duties in
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`sewers and manholesin line with industry standards and in a manner adequate to ensure
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`that they maintain integrity and keep groundwater and rainwater out of the sewer system.
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`54.
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`The Boardalsois not effectively performing one of the most fundamental
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`duties of a sewer operator: to monitor and control the inflow of sewage from the “lateral
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`lines” that connect homes and businesses to the sewer mains to ensure that excessive flow
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`is not overwhelming the system. Putdifferently, the Board is not properly matching the
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`flow from laterals into main sewers against the capacity of the sewer system to handle
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`that flow. The Board is not effectively or correctly performing, funding,orstaffing its
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`efforts to monitor and control the volume of wastewater discharged from laterals into
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`main sewers, nor engaging in quality assuranceofthis process.
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`14
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`55.
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`The Board doesnot effectively perform its operational and maintenance
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`duties as a POTW operatorin that it does not adhere to a Capacity, Management,
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`Operations, and Maintenance Program that meets industry best practice standards. The
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`Board’s practices fall short of industry best practice in areas ranging from funding to
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`proactive repairs to frequency of cleaning and inspection and measuresto addressfats,
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`oils, and grease that cause blockages and overflows.
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`56.
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`A review of the Board’s Municipal Wastewater Pollution Prevention
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`Reports showsthat the asset managementefforts detailed are generally reactive to
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`problems — sanitary sewer overflows, pump station failures, and pipe failures.
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`57.
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`Proactive asset managementis considered best practice in the sanitary
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`sewer industry to maintain a collection system within its useful service life, prevent
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`structural or mechanicalasset failures, prevent blockages, and prevent sanitary sewer
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`overflows from occurring.
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`58.
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`The Board is not following best practice standards to reduce discharges of
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`untreated sewage. The Board’s reactive approach is unacceptable to Plaintiffs and to
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`residents of Gadsden generally. The Board should not wait for sewer systemsto fail and
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`for untreated sewageto run into streets, into people’s homes, and into the Coosa River
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`before acting.
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`59.
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`The Board does not adequately fund the operation and maintenanceof the
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`POTWs,including particularly the cost of repairing and keeping sewers and manholes in
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`good condition. This is evident from the fact that, despite carrying out some amount of
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`repair work every year,(1) the Board admits that the sewers suffer from severe inflow
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`15
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`and infiltration and (2) the POTWsdischarge raw sewageat a rate far higher than well
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`managed or even average sewer systems.
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`60.
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`The Board’s failure to maintain its sewer infrastructure has allowed
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`excessive infiltration and inflow into the East River POTW and West River POTW,
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`causing sanitary sewer overflows.
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`61.
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`Additionally, the Board’s improper maintenanceof its systems has
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`resulted in blockages, pipe leaks, equipmentfailures, and otherfailures that lead to
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`sanitary sewer overflows. Defendant’s failures to properly operate and maintain the
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`POTWSsare discussed further in the Notice Letter (attached as Exhibit A).
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`62.
`
`The Board’s neglect of its POTWsdirectly violates the termsofits
`
`individual NPDES permits, which mandate proper operation and maintenance. These
`
`permit violations also violate the Clean Water Act.
`
`63.
`The Board’s numerousfailures to properly operate and maintain the
`sewers are in and ofthemselves violations ofthe NPDESpermits. They have also
`
`resulted in hundreds of other permit violations: discharges that exceed effluent limitations
`
`and overflows of raw sewage (SSOs) from the Board’s sewerlines, manholes, pump
`
`stations, and various other POTW equipment/conveyances. Raw sewagedischarges
`
`occur because the Board’s neglect of the sewers allows inflow andinfiltration to
`
`overwhelm the sewer system’s capacity.
`
`16
`
`
`
`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 17 of 59
`
`The Problem of Inflow and Infiltration in Gadsden
`
`64.
`
`Because the Board fails to properly operate and maintain the POTWs,the
`
`functioning of the sewers and treatment plants is compromised by severe volumes of
`
`inflow andinfiltration.
`
`65.
`
`Inflow generally refers to water other than wastewater—typically rain or
`
`snowmelt—that enters a sanitary sewer system through a direct connection to the sewer.
`
`66.
`
`Infiltration generally refers to other water that enters the sanitary sewer
`
`underground, for example through defects in the sewer pipesor other infrastructure.
`
`67.
`
`Infiltration can be long-term seepage of water into a sanitary sewer system
`
`from the water table, or a rapid increase in sanitary sewer flow during and immediately
`
`after a rainfall event due to rapidly rising groundwater.
`
`68.
`
`Significant quantities of inflow andinfiltration also enter the main sewer
`
`lines from the sewer “laterals” that connectto individual buildings.
`
`69.
`
`Inflow andinfiltration cause a cascade of environmental problems because
`
`sanitary sewer systems are not designed to collect large amounts of runoff from
`
`precipitation events or to provide widespread drainage. Sanitary sewers systemsarebuilt
`
`with some allowance for extraneousflow (i.e., inflow andinfiltration), but large volumes
`
`of extraneous flow cause sanitary sewers to back up and overflow or overload the
`
`treatment plant and degrade its performance.
`
`
`
`70. The Board’s sanitary sewer systemsplayacritical role in protecting
`
`humanhealth and the environment. The purpose of sanitary sewersis to transport
`
`wastewater uninterrupted from its source to the treatment plants associated with the two
`
`17
`
`
`
`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 18 of 59
`
`POTWSs. Proper operation and maintenanceofthe sewersis integral to ensuring that
`
`wastewater is collected, transported, and treated at the plants.
`
`71,
`
`Failure to adequately maintain sewersresults in: blockages, backups, and
`
`overflows of untreated sewage; undergroundleakage of untreated sewageinto
`
`groundwater(exfiltration) and of groundwater into sewerpipes (infiltration); other forms
`
`of reducedstructural integrity; reduced capacity ofthe collection system; and reduced
`
`treatment plant performance because ofinflow andinfiltration-related hydraulic
`
`overloading.
`
`The Board’s Sanitary Sewer Overflows
`
`72.
`
`As aresult of poor maintenance, blockages, and excessive inflow and
`
`infiltration, the Board regularly releases raw sewage from manholes, sewers, and other
`
`parts of the POTW into streets, homes, and waterbodies. Frequently, these sanitary sewer
`
`overflowsresult in discharges of pollution to waters of the UnitedStates.
`
`73.
`
`The most immediate health risks associated with sanitary sewer overflows
`
`is the potential for exposure to bacteria, viruses, and other pathogens. Humanhealth
`
`impacts occur when people becomeill due to contact with water or ingestion of water or
`
`shellfish that have been contaminated by SSO discharges. In addition, sanitary sewer
`
`systemscan back up into buildings, including private residences. These discharges
`
`provide a direct pathway for human contact with untreated wastewater.
`
`74,
`
`Sanitary sewer overflowsare a systemic problem in Gadsden. Plaintiffs
`
`listed 154 of the Board’s reported sanitary sewer overflows in Figures 1-3 of the Notice
`
`18
`
`
`
`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 19 of 59
`
`Letter (Exhibit A to this complaint). The occurrence and severity of sanitary sewer
`
`overflowsis directly caused by the Board’s neglect of the sewerinfrastructure.
`
`75.
`
`In both 2014 and 2020, the Board informed ADEM that inflow and
`
`infiltration was a key causeof its sanitary sewer overflows. In the Municipal Wastewater
`
`Pollution Prevention Report that the Board submitted to ADEM in 2019, the Board
`
`described its sanitary sewers as experiencing “severe” inflow andinfiltration.
`
`76.
`
`Becauseits significant SSO problem is still ongoing despite years of
`
`reports from the Board to ADEM indicating that the Board’s repair, management, and
`
`rehabilitation efforts are “continual,” Plaintiffs allege that the Board’s efforts to manage,
`
`repair and rehabilitate its systems are insufficient. According to an analysis of SSOs in
`
`Gadsden commissionedby Plaintiffs, the rate of SSOs and the nature of these SSOs
`
`suggests a systemic inflow andinfiltration problem caused by the Board’s failure to
`
`properly operate and maintain its POTWs. Further support for this conclusion is
`
`provided in the Notice Letter.
`
`The Board’s Inaccurate Reporting
`
`77.
`
`The East River and West River NPDESpermits impose several reporting
`
`requirements on the Board in the event of a sanitary sewer overflow. Forinstance, the
`
`Board must report to ADEM thecause, location, and ultimate destination of each sanitary
`
`sewer overflow.
`
`78.
`
`Part I.C.2.e of the West River NPDES Permit and Part I.C.2.f of the East
`
`River NPDESpermit require that “The Permittee shall keep an updated record ofall
`
`19
`
`
`
`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 20 of 59
`
`known wastewater discharge points that are not authorized as outfalls, including but not
`
`limited to SSOs.”
`
`79.
`
`Further, Part 1.C.2.e.5 of the West River NPDES Permit and Part I.C.2.£.5
`
`of the East River NPDES permitalso state that the Board shall report to ADEM annually,
`
`for each unpermitted instance of a discharge, “the ultimate destination of the flow (e.g.,
`
`surface waterbody, municipal separate storm sewer to surface waterbody).”
`
`80.
`
`The Board hasfailedto state the ultimate destinations of multiple sanitary
`
`sewer overflows reported to ADEM.
`
`81.
`
`The Board repeatedly reports that sanitary sewer overflows discharge to
`
`storm drains and drainage ditches but fails to provide the name ofthe surface water that
`
`receives the flow from the storm drain or drainage ditch.
`
`82.
`
`The failures to accurately report these sanitary sewer overflows constitute
`
`violations of the Board’s NPDESpermits and the Clean Water Act.
`
`83.
`
`The Board hasfailed, and continuesto fail, to describe the ultimate
`
`destinations for its discharges.
`
`84,
`
`Moreover, Plaintiffs are informed and believe that the Board has failed to
`
`report several sanitary sewer overflows to ADEMat all. Plaintiffs have received
`
`complaints from community members of sanitary sewer overflows that the Board has
`
`failed to report to ADEM.
`
`85.
`
`This failure to report likewise constitutes a violation of its NPDES permits
`
`and the Clean Water Act.
`
`20
`
`
`
`Case 4:22-cv-00130-CLM Document1 Filed 02/01/22 Page 21 of 59
`
`86.
`
`Furtherdetails related to these unpermitted discharges are set forth in
`
`Exhibit A, Figures 1 and 3, and incorporated byreference.
`
`87.
`
`Additionally, the NPDES permits require the Board to conduct sampling
`
`for most pollutants at East River POTW Outfall 0011 and West River POTW Outfall
`
`0011 more frequently than monthly, and report on results
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