Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 1 of 30
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`UNITED STATES DISTRICT COURT FOR THE
`DISTRICT OF MASSACHUSETTS
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`
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`CONSERVATION LAW FOUNDATION, INC.,
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` Plaintiff,
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` v.
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`MASSACHUSETTS WATER RESOURCES
`AUTHORITY,
`
` Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`
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`Case No. ___________
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALITIES
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`INTRODUCTION
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`1. The Massachusetts Water Resources Authority (“MWRA”) is responsible for
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`monitoring and treating the polluted wastewater of over 5,500 hospitals, manufacturers, and
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`other industrial users in Greater Boston before it is discharged into Massachusetts Bay.
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`2. MWRA’s responsibility, conferred by the United States Environmental Protection
`
`Agency (“EPA”), is essential to water quality protection under the National Pretreatment
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`Program.
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`3. Over 200 times, MWRA failed to issue the required enforcement responses to its
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`industrial users that violated pollutant parameters like cyanide, lead, and mercury, and other
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`permit conditions.
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`4. MWRA’s failures to enforce are even more extensive and pervasive than publicly-
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`available information shows.
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`5. MWRA’s noncompliance with its EPA-approved Enforcement Response Plan and its
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`federal permit violates the Clean Water Act, contributes to water quality degradation, and harms
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`Conservation Law Foundation’s (“CLF”) members.
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`
`
`1
`
`
`
`UNITED STATES DISTRICT COURT FOR THE
`DISTRICT OF MASSACHUSETTS
`
`
`
`CONSERVATION LAW FOUNDATION, INC.,
`
` Plaintiff,
`
` v.
`
`MASSACHUSETTS WATER RESOURCES
`AUTHORITY,
`
` Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`Case No. ___________
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALITIES
`
`INTRODUCTION
`
`1. The Massachusetts Water Resources Authority (“MWRA”) is responsible for
`
`monitoring and treating the polluted wastewater of over 5,500 hospitals, manufacturers, and
`
`other industrial users in Greater Boston before it is discharged into Massachusetts Bay.
`
`2. MWRA’s responsibility, conferred by the United States Environmental Protection
`
`Agency (“EPA”), is essential to water quality protection under the National Pretreatment
`
`Program.
`
`3. Over 200 times, MWRA failed to issue the required enforcement responses to its
`
`industrial users that violated pollutant parameters like cyanide, lead, and mercury, and other
`
`permit conditions.
`
`4. MWRA’s failures to enforce are even more extensive and pervasive than publicly-
`
`available information shows.
`
`5. MWRA’s noncompliance with its EPA-approved Enforcement Response Plan and its
`
`federal permit violates the Clean Water Act, contributes to water quality degradation, and harms
`
`Conservation Law Foundation’s (“CLF”) members.
`
`
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`1
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`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 2 of 30
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`6. CLF seeks declaratory judgment, injunctive relief, issuance of a civil penalty, and other
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`relief with respect to MWRA’s violations of the Clean Water Act, 33 U.S.C. §§ 1251, 1311(a),
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`1342, 40 CFR § 403, and its National Pollutant Discharge Elimination System (“NPDES”)
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`permit.
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`JURISDICTION AND VENUE
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`7. Plaintiff brings this civil suit under the citizen suit provision of Section 505 of the Clean
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`Water Act, 33 U.S.C. § 1365.
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`8. This Court has subject matter jurisdiction over the parties and this action pursuant to
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`Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1); 28 U.S.C. § 1331 (an action
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`arising under the Constitution and laws of the United States); and 28 U.S.C. §§ 2201 and 2202
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`(declaratory judgment).
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`9. On February 23, 2022, Plaintiff notified MWRA and its agents of its intention to file
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`suit for violations of the Clean Water Act, in compliance with the statutory notice requirements
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`of Section 505(b)(1)(A) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A), and the
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`corresponding regulations located at 40 C.F.R. § 135.2. A true and accurate copy of Plaintiff’s
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`Notice Letter (“Notice Letter”) is attached as Exhibit 1. The Notice Letter is incorporated by
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`reference herein.
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`10. Defendant received the Notice Letter. Return receipts attached as Exhibit 2.
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`11. Plaintiff also sent copies of the Notice Letter to the Administrator of the EPA, the
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`Regional Administrator of EPA Region 1, the Citizen Suit Coordinator, and the Massachusetts
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`Department of Environmental Protection (“MassDEP”).
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`12. Each of the addressees identified in paragraph 11 received the Notice Letter. Ex. 2.
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`2
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`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 3 of 30
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`13. More than sixty days have elapsed since Plaintiff mailed its Notice Letter, during which
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`time neither EPA nor the Commonwealth of Massachusetts has commenced an action to redress
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`the violations alleged in this Complaint. 33 U.S.C. § 1365(b)(1)(B).
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`14. The Clean Water Act violations alleged in the Notice Letter are of a continuing nature,
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`ongoing, or reasonably likely to re-occur. The Defendant remains in violation of the Clean Water
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`Act.
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`15. Venue is proper in the United States District Court for the District of Massachusetts
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`pursuant to Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the
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`sources of the violations are located within this judicial district.
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`PARTIES
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`PLAINTIFF
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`16. CLF is a nonprofit, member-supported, regional environmental advocacy organization
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`dedicated to protecting New England’s environment.
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`17. CLF has a long history of working to protect the health of New England’s water
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`resources, including addressing sources of wastewater pollution.
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`18. CLF has over 6,300 members in New England.
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`19. CLF members use and enjoy the beaches and waters of Boston Harbor and
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`Massachusetts Bay for recreational and aesthetic purposes, including but not limited to
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`swimming, boating, fishing, and observing wildlife.
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`20. CLF members use the waters of Boston Harbor and Massachusetts Bay for scientific
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`and occupational purposes, including but not limited to studying marine ecology, metals,
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`microbes, and marine mammals.
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`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 4 of 30
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`DEFENDANT
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`21. MWRA is a Massachusetts public authority established by an enabling act passed in
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`1984. Mass. Gen. Laws Chapter 372, (1984).
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`22. MWRA provides wholesale water and sewer services to 3.1 million customers and over
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`5,500 large industrial users throughout eastern and central Massachusetts. MWRA,
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`“Comprehensive Annual Financial Report,” available at
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`https://www.mwra.com/finance/documents/CAFR/CAFR_20-21-FINAL.pdf.
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`23. In fiscal year 2021, MWRA’s customer service revenues were approximately $781.4
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`million, and MWRA’s total operating expenses were approximately $291.4 million.1 Id.
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`24. MWRA’s total assets as of June 30, 2021 were approximately $7.1 billion. Id.
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`25. MWRA is the authority that oversees and coordinates the preliminary primary and
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`secondary treatment to its wastewater flows at the Deer Island and Clinton Treatment Plants.
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`26. MWRA is the “person,” as defined by 33 U.S.C. § 1362(5), responsible for the
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`violations alleged in this Complaint.
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`27. An “Industrial User” is “...a source of discharge of Industrial Waste to a Sewerage
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`System.” 360 CMR 10.004.
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`28. MWRA’s Deer Island Treatment Plant, located at 190 Tafts Ave., Winthrop, MA
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`02152, is a Publicly Owned Treatment Works (“POTW”) as defined by the Clean Water Act and
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`federal regulations. 33 U.S. Code § 1292(2)(A) (defining POTW); 40 CFR § 403.3(q) (same).
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`29. EPA issued NPDES Permit No. MA0103284 to MWRA for the operation of the Deer
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`Island Treatment Plant. NPDES Permit attached as Exhibit 3.
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`1 The operating expenses exclude depreciation.
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`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 5 of 30
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`STATUTORY AND REGULATORY BACKGROUND
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`THE CLEAN WATER ACT
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`30. The objective of the Clean Water Act is “to restore and maintain the chemical, physical
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`and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1972).
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`31. The Clean Water Act prohibits the addition of any pollutant to navigable waters from
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`any point source except as authorized by a NPDES permit applicable to that point source. 33
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`U.S.C. §§ 1311(a) and 1342.
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`32. The Clean Water Act’s implementing regulations define the “discharge of a pollutant”
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`as “[a]ny addition of any ‘pollutant’ or combination of pollutants to ‘waters of the United States’
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`from any ‘point source.’” 40 C.F.R. § 122.2; see also 33 U.S.C. § 1362(12).
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`33. A “pollutant” is any “solid waste,” “chemical wastes, biological materials,” “wrecked or
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`discarded equipment, rock, sand,” or “industrial … waste” discharged into water. 33 U.S.C. §
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`1362(6).
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`34.
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` The Clean Water Act defines navigable waters as “the waters of the United States,
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`including the territorial seas.” 33 U.S.C. § 1362(7). “Waters of the United States” are further
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`defined by EPA regulations. 40 C.F.R. § 120.2.
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`35. Massachusetts Bay is a “Water of the United States” as defined by the Clean Water Act
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`and EPA regulations. See 33 U.S.C. § 1362(7); 40 C.F.R. § 120.2.
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`36. “Point source” is defined broadly to include “any discernible, confined and discrete
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`conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from
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`which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
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`THE NATIONAL PRETREATMENT PROGRAM
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`37. In implementing the Clean Water Act, EPA established the National Pretreatment
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`Program to address indirect discharges from industries to POTWs.
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`38. The National Pretreatment Program was established, in part, because of the known
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`negative effects of wastewater to receiving waters—and to curb the potential harm to human and
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`aquatic life, as well as to land. 40 CFR § 403.1.
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`39. EPA states: “[t]he national pretreatment program is designed to … reduce conventional
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`and toxic pollutant levels discharged by industries and other nondomestic wastewater sources
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`into municipal sewer systems and into the environment.” EPA, “Procedures Manual for
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`Reviewing a POTW Pretreatment Program Submission,” 1–4, available at
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`https://www.epa.gov/npdes/national-pretreatment-program-approval-authority-documents.
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`40. Regarding the National Pretreatment Program, EPA states: “Some pollutants are not
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`amenable to biological wastewater treatment at POTWs and can pass through the treatment plant
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`untreated. This pass through of pollutants affects the receiving water and might cause fish kills or
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`other deleterious effects.” EPA, “Introduction to the National Pretreatment Program,” at iii,
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`available at https://www.epa.gov/sites/default/files/2015-
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`10/documents/pretreatment_program_intro_2011.pdf.
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`41. Regarding the National Pretreatment Program, EPA states: “Even when a POTW has
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`the capability to remove toxic pollutants from wastewater, the pollutants can end up in the
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`POTW’s sewage sludge, which might then be processed into a fertilizer or soil conditioner that is
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`land-applied to food crops, parks, or golf courses or elsewhere.” Id.
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`42. “Pass Through” is defined as “a Discharge which exits the POTW into waters of the
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`United States in quantities or concentrations which, alone or in conjunction with a discharge or
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`discharges from other sources, is a cause of a violation of any requirement of the POTW’s
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`NPDES permit, including an increase in the magnitude or duration of a violation).” 40 CFR §
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`403.3(p).
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`43. Regarding Pass Through, EPA states: “...toxic pollutants can pass through the treatment
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`plant into the receiving stream, posing serious threats to aquatic life, human recreation, and those
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`consuming fish and shellfish from the waters. Pass through can make waters unswimmable or
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`unfishable, in direct opposition to the goals of the CWA. It can also interfere with the biological
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`activity of the treatment plant, causing discharges of untreated or inadequately treated sewage.”
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`EPA, “Introduction to the National Pretreatment Program” at 1-3.
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`44. The National Pretreatment Program requires certain POTWs to develop pretreatment
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`programs for pollutants from Industrial Users. 40 CFR § 403.8(a).
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`45. A pretreatment program is subject to EPA approval and incorporated into the POTW’s
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`NPDES permit. 40 CFR § 403.8(b)-(c).
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`46. POTWs regulate Industrial Users’ wastewater discharges, including requirements to
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`pretreat or otherwise control pollutants in its wastewater. 40 CFR § 403.8(f)(1).
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`47. The National Pretreatment Program requires POTWs to “develop and implement
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`procedures to ensure compliance with the requirements of a Pretreatment Program.” 40 CFR §
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`403.8(f)(2).
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`48. According to EPA, “[t]he POTW must be able to respond to challenges by industrial
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`users, to protect its investment in the treatment plant, to ensure the beneficial uses of its waters,
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`and to protect the health and welfare of its citizens.” EPA, “Procedures Manual for Reviewing a
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`POTW Pretreatment Program Submission,” 1–4, available at
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`https://www.epa.gov/npdes/national-pretreatment-program-approval-authority-documents.
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`49. The National Pretreatment Program requires POTWs to develop and implement
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`enforcement response plans to investigate and respond to instances of Industrial User
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`noncompliance. 40 CFR § 403.8(f)(5).
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`50. A POTW’s enforcement response plan “shall contain detailed procedures indicating
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`how a POTW will investigate and respond to instances of industrial user noncompliance.” 40
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`C.F.R. § 403.8(f)(5) (emphasis added).
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`51. To combat prohibited discharges, “each POTW... shall develop and enforce specific
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`limits to implement the prohibitions listed in … this section. Each POTW with an approved
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`pretreatment program shall continue to develop these limits as necessary and effectively enforce
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`such limits.” 40 C.F.R. § 403.5(c)(1).
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`52. Massachusetts state regulations, 360 CMR 10.00, govern the discharge of sewage,
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`drainage, substances, and wastes into any sewer under MWRA’s control.
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`53. Massachusetts state regulations, 360 CMR 2.11, establish the enforcement options
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`available to the MWRA when Industrial Users are in violation of the sewer use regulations, 360
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`CMR 10.00.
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`FACTUAL BACKGROUND
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`54. MWRA’s Deer Island Treatment Plant is located in Winthrop, Massachusetts, on a
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`peninsula in Boston Harbor.
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`55. Each day, MWRA discharges millions of gallons of effluent from the Deer Island
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`Treatment Plant to Massachusetts Bay. Ex. 3 at 1.
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`56. Massachusetts Bay is adjacent to Cape Cod Bay and the Gulf of Maine.
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`57. Effluent from the Deer Island Treatment Plant is carried through a tunnel and released
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`to Massachusetts Bay through an outfall.
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`58. The effluent from MWRA’s Deer Island Treatment Plant contains, among other things:
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`arsenic, cyanide, mercury, lead, copper, and zinc.
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`59. Ocean currents can carry the effluent from the Deer Island Plant’s outfall in all
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`directions.
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`60. Ocean currents can carry the effluent from the Deer Island Plant’s outfall into Boston
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`Harbor and the inner coastal waters and beaches along the Massachusetts coast. Surface current
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`maps attached as Exhibit 4.
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`61. MWRA’s discharges to Massachusetts Bay are governed by an EPA-issued NPDES
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`Permit. Ex. 3 at 1.
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`62. Sludge is made up of the heaviest components of wastewater which settle at the bottom
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`of treatment tanks. MRWA, “Recycling Wastewater Sludge into Fertilizer” available at
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`https://www.mwra.com/03sewer/html/sewssc.htm.
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`63. MWRA processes the wastewater sludge at its facility into fertilizer pellets which it
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`sells under the names New England Fertilizer and Bay State Fertilizer. Id.
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`64. MWRA acknowledges that “[c]opper levels in MWRA’s fertilizer pellets have
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`sometimes exceeded the most-stringent state standards for reuse.” MWRA, Toxic Reduction and
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`Control, “Which pollutants create the most concern for TRAC?” available at
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`https://www.mwra.com/03sewer/html/trac.htm#pretreatment.
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`65. In 2019, “man-made chemicals known commonly as PFAS — or per- and
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`polyfluoroalkyl substances — [were] detected in [MWRA’s] fertilizer — chemicals that have
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`been linked to low infant birth weights, increased cancer risk, and immune system changes,
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`among other health effects….” Christopher Gavin, “‘Forever chemicals’ were found in MWRA
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`fertilizer. Here’s what to know,” Boston.com, Dec. 3, 2019, available at
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`https://www.boston.com/news/local-news/2019/12/03/forever-chemicals-mwra-fertilizer-what-
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`to-know/.
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`66. “Bay State Fertilizer is purchased wholesale by golf courses and landscapers throughout
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`New England and has been available locally through garden centers and nurseries since 1995.”
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`MRWA, “Recycling Wastewater Sludge into Fertilizer.”
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`67. “Many communities within the MWRA sewerage district use the fertilizer on their
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`parks, athletic fields, and municipal landscaping.” Id.
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`MWRA’S PRETREATMENT PROGRAM
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`68. MWRA’s NPDES permit includes an EPA-approved industrial pretreatment program.
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`Ex. 3 at 22.
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`69. MWRA’s industrial pretreatment program includes an Enforcement Response Plan,
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`which EPA approved in 1992. MWRA’s Enforcement Response Plan attached as Exhibit 5.
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`70. The Enforcement Response Plan defines how MWRA will investigate and respond to
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`instances of Industrial User noncompliance. Ex. 5 at 1.
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`71. The Enforcement Response Plan states that “[e]ach instance of noncompliance will be
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`met with an enforcement response.” Ex. 5 at 5 (emphasis added).
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`72. The “cornerstone” of the Enforcement Response Plan is the Enforcement Response
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`Guide (“Guide”). Ex. 5 at 1.
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`73. The Guide “sets forth the criteria, procedure, responsibilities, and time frames for
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`selecting and initiating an enforcement response for violations of MWRA Sewer Use Rules and
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`Regulations.” Ex. 5 at 1.
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`74. Neither the Enforcement Response Plan nor its Guide authorizes the MWRA to decline
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`to take an enforcement action in response to an Industrial User’s noncompliance. Ex. 5.
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`75. The required enforcement response “may be formal or informal as indicated in the
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`Enforcement Response Guide.” Ex. 5 at 5.
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`76. MWRA Enforcement Section staff are responsible for “[r]esponding to instances of
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`noncompliance in accordance with MWRA regulations and the Enforcement Response Guide.”
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`Ex. 5 at 2.
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`77. Once alerted to a violation, MWRA Enforcement Section staff “determine what type of
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`enforcement action is appropriate according to the Enforcement Response Guide.” Ex. 5 at 4.
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`78. “When determining the appropriate response,” MWRA staff review “a variety of
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`criteria,” including but not limited to: the magnitude and duration of the violation, the effect of
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`the violation on the receiving water and/or the POTW, and the Industrial User’s compliance
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`history and/or good faith. Ex. 5 at 6.
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`79. The Guide’s “options reflect the MWRA’s authority to take enforcement action against
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`Industrial Users that have violated or threaten to violate the MWRA Sewer Use Regulations.”
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`80. The Plan states: “Compliance Staff will take one or more of the enforcement options
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`described above to respond to instances of noncompliance with the MWRA’s Sewer Use
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`Regulations.” Ex. 5 at 8.
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`81. The Plan’s “enforcement approach is progressive, that is, violations are addressed at the
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`lowest level possible. Where an industrial user’s response to an enforcement action is
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`unacceptable to the MWRA, the MWRA will escalate its enforcement responses until the
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`industrial user has returned to compliance.” Ex. 5 at 9.
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`82. The Guide lists pretreatment program violations and escalating schedules of
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`enforcement actions. Ex. 5 at 9-15.
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`83. The Guide provides “a range of enforcement responses from which enforcement
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`personnel will select an appropriate enforcement response for a specific violation.” Ex. 5 at 9.
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`84. A Notice of Violation (“NOV”) is an informal enforcement response and is appropriate
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`“when responding to relatively minor or infrequent instances of noncompliance.” Ex. 5 at 6
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`(emphasis added).
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`85. The escalating schedule of formal enforcement responses include: Notice of
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`Noncompliance (“NON”), Order or Compliance Schedule (“Order”), Cease and Desist Order
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`(“C&DO”), Supplemental Order to Comply (“SOC”), Enforcement Order (“EO”), Penalty
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`Assessment Notice (“PAN”), Notice of Proposed Permit Revocation (“NPPR”), and Revocation
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`of Permit or Denial of Permit/Permit Renewal, Emergency Suspension of Service, Criminal
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`Prosecution—each with an increasing level of severity as relates to a violation. Ex. 5 at 6-7.
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`86. The Enforcement Response Plan states that “[t]he standard escalation path for continued
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`or recurring violation is as follows: Notice of Violation à Notice of Noncompliance à Penalty
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`Assessment Notice and Supplemental Order à Notice of Proposed Permit Revocation.” Ex. 5 at
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`9.
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`87. For exceedances of discharge limits, the Guide identifies the appropriate enforcement
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`response depending on the “nature of the violation” by the Industrial User:
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`Table 1: Discharge Violations2
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`Nature of Violation
`Isolated, 1st or 2nd violation (non-
`consecutive or different parameters)
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`Enforcement Response Option
`Notice of Violation within 10 working days
`of discovery
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`Repeated or frequent violations
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`Notice of Noncompliance/Order within 45
`days of receipt of results of repeat sampling
`following Notice of Violation; Penalty
`Assessment Notice and Supplemental Order
`to Comply within 60 days of noncompliance
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`2 Ex. 5 at 10.
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`Significant Noncompliance
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`with Notice of Noncompliance/Order; Notice
`of Proposed Permit Revocation; civil referral
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`Notice of Noncompliance/Order within 60
`days of significant noncompliance
`determination; Penalty Assessment Notice
`and Supplemental Order to Comply within
`60 days of discovery of continuing violations
`after Notice of Noncompliance/Order or
`Ruling; Notice of Proposed Permit
`Revocation within 60 days of noncompliance
`with Supplemental Order to Comply
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`88. For Industrial Users’ sampling and reporting violations, the Guide identifies the
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`appropriate enforcement response(s) depending on the noncompliance and the nature of the
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`violation:
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`Table 2: Sampling and Reporting Violations3
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`Noncompliance
`Sampling or
`reporting deficiencies
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`Nature of Violation
`Isolated or infrequent
`(1st or 2nd violation)
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`Enforcement Response Option
`Notice of Violation withing 10
`working days of discovery
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`Frequent (3rd violation in
`the last 2 years) or
`persistent
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`Complete failure to
`sample or report
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`Significant
`Noncompliance
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`Notice of Noncompliance/Order
`within 45 days; Penalty Assessment
`Notice within 60 days of violation of
`Notice of Noncompliance/Order
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`Notice of Violation withing 10
`working days of discovery of failure
`to receive report; Notice of
`Noncompliance/Order within 45
`days of noncompliance with Notice
`of Violation; Penalty Assessment
`Notice and Supplemental Order to
`Comply within 60 days of
`compliance due date with Notice of
`Noncompliance Order; Notice of
`Proposed Permit Revocation
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`3 Ex. 5 at 11.
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`89. The Plan states that Penalty Assessment Notices “will be issued when a user violates a
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`NON and/or Order, and may be issued for other violations that the MWRA deems serious….” Ex
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`5 at 11.
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`90. Significant Noncompliance includes: “[a]ny discharge of a pollutant that has caused
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`imminent endangerment to human health, welfare or to the environment or has resulted in the
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`POTW’s exercise of its emergency authority under paragraph (f)(1)(vi)(B) of this section to halt
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`or prevent such a discharge.” 40 CFR § 403.8(f)(2)(viii) (defining “significant noncompliance”).
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`91. In the Enforcement Response Plan and its Guide, a Notice of Noncompliance is the
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`least severe enforcement option available for an instance of significant noncompliance. See Ex. 5
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`at 10.
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`92. Neither the Enforcement Response Plan nor its Guide identifies a Notice of Violation as
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`an enforcement option for significant noncompliance with a discharge limit. See Ex. 5 at 10.
`
`93. The Guide states that second step for an Industrial User in significant noncompliance
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`with a discharge limit is to issue a “PAN and SOC within 60 days of discovery of continuing
`
`violations after NON/Order or Ruling.” Ex. 5 at 10.
`
`HISTORY OF MWRA’S ENFORCEMENT AND RECORD-KEEPING
`
`
`94. Since January 2017, MWRA has taken no enforcement action in response to at least 70
`
`instances of noncompliance by Significant Industrial Users (“SIUs”),4 including 15 instances of
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`significant noncompliance by SIUs.
`
`95. On at least 123 occasions, SIUs were in significant noncompliance due to their
`
`discharge limits violations in fiscal years 2017–2021. MWRA, 2017–2021 Industrial Waste
`
`Reports, available at
`
`
`4 See MWRA, “SIU Definition,” available at https://www.mwra.com/03sewer/html/siudef.pdf; 40 CFR §
`403.3(v).
`
`
`
`14
`
`
`
`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 15 of 30
`
`https://www.mwra.com/annual/tracindustrialwastereport/industrialwastereports.htm (hereinafter
`
`“IWRs”).
`
`96. Of the 123 instances of significant noncompliance with discharge limits by SIUs from
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`2017–2021, MWRA issued only 40 Notices of Noncompliance. IWRs.
`
`97. On information and belief, MWRA has regularly failed to escalate its enforcement
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`responses for repeated discharge violations of the same parameter and/or in a consecutive year as
`
`required by its Enforcement Response Plan.
`
`98. Publicly available information shows that since 2017, MWRA has failed to escalate its
`
`enforcement for repeated violations by SIUs in at least 46 instances.
`
`99. Trends in the enforcement data indicate that the actual number of failures to escalate
`
`enforcement is well above 46 instances:
`
`a. In fiscal years 2017–2021, there were at least 123 instances of significant
`
`noncompliance with discharge limits by SIUs, each of which requires a minimum
`
`of a Notice of Noncompliance, yet MWRA issued only 40 Notices of
`
`Noncompliance—and only five responses more severe — to SIUs. IWRs.
`
`b. In fiscal years 2017–2021, MWRA issued over 300 warnings in response to
`
`gas/oil separator violations, and there is no record that MWRA issued any
`
`response other than a warning letter for any gas/oil separator violations from
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`2017–2021, indicating either: not one Industrial User repeated a gas/separator
`
`violation in five years or MWRA did not escalate its responses for repeat
`
`violations.5 IWRs.
`
`
`5 The Guide contains a schedule of enforcement for gas/separator violations that includes escalating
`responses for continued violations. Ex. 5 at 15-16.
`
`
`
`15
`
`
`
`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 16 of 30
`
`c. In fiscal year 2018, MWRA did not take any enforcement response more severe
`
`than a Notice of Noncompliance for any of its thousands of Industrial Users. 2018
`
`IWR at 3, 6.
`
`100. MWRA issued penalties for only a small fraction of the instances of noncompliance by
`
`Industrial Users.
`
`101. Over five years, from 2017–2021, SIUs have been in significant noncompliance due to
`
`discharge violations on at least 123 occasions, but MWRA issued only one Penalty Assessment
`
`Notice to an SIU.
`
`102. Over five years, from 2017–2021, MWRA issued only 23 Penalty Assessment Notices
`
`to any of its Industrial Users, including both SIUs and non-significant Industrial Users.
`
`103. Over four years, from 2018–2021, MWRA issued only five penalty assessments to any
`
`of its Industrial Users, including both SIUs and non-significant Industrial Users.
`
`104. In fiscal year 2017, MWRA collected a total of $122,750 in penalties: $100,000 from
`
`one SIU; $15,000 from another SIU; and the remaining penalties were $1,000 or less.
`
`105. In fiscal year 2018, MWRA collected one penalty of $1,000.
`
`106. In fiscal year 2019, MWRA collected $14,000, of which $5,000 was paid by one SIU.
`
`107. In fiscal year 2020, MWRA collected $50,000 in penalties, of which $14,000 was paid
`
`by one SIU and the remainder was an Industrial User’s outstanding penalty from a prior year.
`
`108. In fiscal year 2021, MWRA collected no penalties.
`
`109. MWRA must provide EPA with an annual report that “briefly describes the POTW’s
`
`program activities … and must include, at a minimum,” information on Industrial Users that are
`
`in significant noncompliance. 40 C.F.R. § 403.12(i).
`
`
`
`16
`
`
`
`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 17 of 30
`
`110. Pursuant to 40 C.F.R. § 403.12(i), MWRA creates “Industrial Waste Reports,” which is
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`submitted to EPA and publicly available on MWRA’s website. E.g., 2018 IWR at 1.
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`111. In its Industrial Waste Reports, MWRA identifies which SIUs are in significant
`
`noncompliance, but it does not list what parameter or parameters the SIU violated, or when an
`
`SIU was in non-significant noncompliance.
`
`112. In its Industrial Waste Reports, MWRA states when an enforcement action was sent to
`
`an SIU, but it does not identify which violation or violations the enforcement action addressed.
`
`113. The only “informal” enforcement action that MWRA includes in the Industrial Waste
`
`Reports are Notices of Violation. IWRs.
`
`114. If MWRA takes informal enforcement actions other than Notices of Violation, it does
`
`not report them to EPA or the public. See IWRs.
`
`115. Failure to include information in the Industrial Waste Reports makes it impossible for
`
`EPA or the public to verify that MWRA has responded to each instance of Industrial Users’
`
`noncompliance because: (i) SIU non-significant noncompliance is not included; and
`
`(ii) there is no information indicating which enforcement action is tied to which instance of
`
`noncompliance.
`
`116. Failure to include information in the Industrial Waste Reports makes it impossible for
`
`EPA or the public to verify that MWRA has complied with the Enforcement Response Plan in
`
`every instance because: (i) there is no information as to what parameter was violated; and (ii)
`
`there is no information regarding SIUs’ non-significant noncompliance. Neither EPA nor the
`
`public have enough information in Industrial Waste Reports to determine whether particular
`
`instances of noncompliance were repeated and therefore required an escalated enforcement
`
`response.
`
`
`
`17
`
`
`
`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 18 of 30
`
`117. Failure to include information in the Industrial Waste Reports makes it impossible for
`
`EPA or the public to verify that MWRA has complied with the Enforcement Response Plan in
`
`every instance because: (i) there is no information as to what parameter was violated; (ii) there is
`
`no information regarding SIUs’ non-significant noncompliance; and (iii) there is no way to
`
`determine which previous enforcement actions were taken with respect to which noncompliance
`
`and thus required penalty assessments for continued noncompliance. Neither EPA nor the public
`
`have enough information in the Industrial Waste Reports to determine whether particular
`
`instances of noncompliance required penalties and whether MWRA issued the required penalty.
`
`DEFENDANT’S VIOLATIONS OF THE CLEAN WATER ACT
`
`118. MWRA discharges wastewater to the Massachusetts Bay from the Deer Island
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`Treatment Plant pursuant to its NPDES Permit, which contains “effluent limitations, monitoring
`
`requirements and other conditions.” Ex. 3 at 1.
`
`119. A violation of a NPDES Permit is a violation of the Clean Water Act. 33 U.S.C. §§
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`1311(a), 1342(k).
`
`120. MWRA’s NPDES Permit states:
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`d. In Section 14(b): “The permittee shall develop and enforce specific effluent limits
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`(local limits) for Industrial User(s), and all other users as appropriate, which
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`together with appropriate changes in the POTW Treatment Plant’s Facilities or
`
`operation, are necessary to ensure continued compliance with the POTW’s
`
`NPDES permit, or sludge use or disposal practices.” Ex. 3 at 22.
`
`e. In Section 15(a): “MWRA shall implement an industrial pretreatment program
`
`(IPP) as required by 40 CFR Part 403. The industrial pretreatment program shall
`
`
`
`18
`
`
`
`Case 1:22-cv-10626-AK Document 1 Filed 04/27/22 Page 19 of 30
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`be operated in accordance with MWRA’s approved pretreatment program plan
`
`and 40 CFR Part 403.” Ex. 3 at 22.
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`f. Section 15(a)(iii): MWRA shall “[o]btain appropriate remedies for
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`noncompliance by any industrial user with any pretreatment standard and/or
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`requirement; and maintain an adequate revenue structure for continued
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`implementation of the Pretreatment Program.” Ex. 3 at 23.
`
`121. MWRA’s EPA-approved Enforcement Response Plan requires MWRA to:
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`g. take enforcement action when an Industrial User is in noncompliance, supra ¶¶
`
`68–93;
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`h. take elevated enforcement action when an Industrial User is in significant
`
`noncompliance, supra ¶¶ 68–93;
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`i. escalate enforcement action when an Industrial User repeats noncompliance,
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`supra ¶¶ 68–93;
`
`j.
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`issue penalties when an Industrial User meets certain criteria, supra ¶¶ 68–93.
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`122. Publicly-available information shows MWRA has failed to take an enforcement action
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`following Industrial User noncompliance at least 70 times in the past five years. Supra ¶¶ 94–
`
`117.
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`123. On information and belief, further investigation will show that the enfo
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