Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 1 of 19
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`UNITED STATES OF AMERICA, and
`COMMONWEALTH OF
`PENNSYLVANIA, DEPARTMENT OF
`ENVIRONMENTAL PROTECTION
`
`
`Plaintiffs,
`
`
`v.
`
`BUCKS COUNTY WATER AND
`SEWER AUTHORITY,
`
`
`Defendant.
`
`Civil Action No. 21-cv-5578
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`
`
`
`
`
`
`
`
`
`COMPLAINT
`
`Plaintiffs, the United States of America, by the authority of the Attorney General of the
`
`United States and through the undersigned attorneys, acting at the request and on behalf of the
`
`United States Environmental Protection Agency (“EPA”), and the Commonwealth of
`
`Pennsylvania, Department of Environmental Protection (“Commonwealth,” “PADEP”, or “the
`
`department”) (collectively “Plaintiffs”), allege as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for injunctive relief and civil penalties brought against the
`
`Bucks County Water and Sewer Authority (“BCWSA” or “the Authority”) pursuant to Sections
`
`309(b) and (d) of the federal Clean Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d), the
`
`Pennsylvania Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S.
`
`§§ 691.1-691.1001 (“Clean Streams Law”), the Pennsylvania Sewage Facilities Act, Act of
`
`January 24, 1966, P.L. 1535, as amended, 35 P.S. §§ 750.1-750.20a (“Sewage Facilities Act”),
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 2 of 19
`
`
`
`Section 1917-A of the Administrative Code of 1929, P.L. 177, as amended, 71 P.S. § 510-17
`
`(“Administrative Code”), and the rules and regulations promulgated thereunder, for the
`
`Authority’s illegal discharges of pollutants in violation of Sections 301(a) and 402(a) of the
`
`CWA, 33 U.S.C. §§ 1311(a) and 1342(a) and Sections 3, 201, 202, 401, and 402 the Clean
`
`Streams Law, 35 P.S. §§ 691.3, 691.201, 691.202, 691.401, and 691.402.
`
`JURISDICTION, VENUE, NOTICE, AND AUTHORITY
`
`2.
`
`This Court has jurisdiction over the subject matter of this action pursuant to
`
`Sections 301 and 309(b) and (d)) of the CWA, 33 U.S.C. §§ 1301 and 1319(b) and (d), and 28
`
`U.S.C. §§ 1331, 1345, and 1355.
`
`3.
`
`This Court has supplemental jurisdiction over Pennsylvania’s state law claims
`
`alleged herein pursuant to 28 U.S.C. § 1367(a) because the state claims are so related to the
`
`federal claims as to form part of the same case or controversy.
`
`4.
`
`Venue is proper in the Eastern District of Pennsylvania pursuant to 28 U.S.C.
`
`§§ 1391(b) and 1395(a) and Section 309(b) of the CWA, 33 U.S.C. § 1319(b), because it is the
`
`judicial district where the Authority is located and where the alleged violations occurred.
`
`5.
`
`Notice of the commencement of this action has been provided to the
`
`Commonwealth of Pennsylvania, pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
`
`6.
`
`The Commonwealth has joined in this action in accordance with Section 309(e) of
`
`the CWA, 33 U.S.C. § 1319(e).
`
`7.
`
`Authority to bring this action is vested in the Attorney General of the United
`
`States under Section 506 of the CWA, 33 U.S.C. § 1366, and 28 U.S.C. §§ 516 and 519.
`
`8.
`
`PADEP is the state agency that is charged with the duty and the authority to
`
`administer and enforce the Clean Streams Law, Section 1917-A of the Administrative Code, and
`
`
`
`2
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 3 of 19
`
`
`
`the rules and regulations promulgated thereunder, and which has been authorized to administer
`
`the National Pollutant Discharge Elimination System (“NPDES”) permit program under Section
`
`402 of the Clean Water Act, 33 U.S.C. § 1342. PADEP is a “state water pollution control
`
`agency” and “person” as defined in Section 502(1) and (5) of the Act, 33 U.S.C. § 1362(1) and
`
`(5). The Commonwealth has authority to join in this Complaint, pursuant to Sections 601 and
`
`605 of the Clean Streams Law, 35 P.S. §§ 691.601 and 691.605.
`
`DEFENDANT
`
`9.
`
`The Authority is a Pennsylvania Municipal Authority created under the
`
`Pennsylvania Municipality Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended,
`
`53 Pa.C.S. §§ 5601-5623 (“Municipality Authorities Act”).
`
`10.
`
`The Authority is a municipal water and sewer authority that provides sewerage
`
`services to municipalities in the Eastern District of Pennsylvania. It is run by a Board of
`
`Directors appointed by the Bucks County Commissioners and acts as a separate legal authority
`
`from the rest of the Bucks County government.
`
`11.
`
`The Authority exists under the laws of the Commonwealth of Pennsylvania with
`
`its office located at 1275 Almshouse Road, Bucks County, Warrington, Pennsylvania 18976.
`
`12.
`
`Defendant is a “person” within the meaning of CWA § 502(5), 33 U.S.C.
`
`§ 1362(5), and Section 1 of the Clean Streams Law, 35 P.S. § 691.1, and a “municipality” within
`
`the meaning of Section 502(4) of the Act, 33 U.S.C. § 1362(4) and Section 1 of the Clean
`
`Streams Law, 35 P.S. § 691.1.
`
`
`
`
`
`
`
`3
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 4 of 19
`
`
`
`STATUTORY AND REGULATORY BACKGROUND
`
`13.
`
`The CWA is a comprehensive statute designed “to restore and maintain the
`
`chemical, physical, and biological integrity of the Nation’s waters.” Section 101(a) of the
`
`CWA, 33 U.S.C. § 1251(a). To achieve that goal, Section 301(a) of the CWA, 33 U.S.C.
`
`§ 1311(a), prohibits the “discharge of pollutants” except as in compliance with an NPDES permit
`
`issued by the EPA or an authorized state pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
`
`14.
`
`The CWA defines the phrase “discharge of pollutants” to include “any addition of
`
`any pollutant to navigable waters from any point source.” Section 502(12) of the CWA, 33
`
`U.S.C. § 1362(12).
`
`15.
`
`“Navigable waters” means “the waters of the United States.” 33 U.S.C.
`
`§ 1362(7). In turn, “waters of the United States” has been defined to include, inter alia: (i) all
`
`waters which are currently used, were used in the past, or may be susceptible to use in interstate
`
`or foreign commerce; (ii) all interstate waters; and (iii) tributaries to such waters. See, e.g., 40
`
`C.F.R. §§ 122.2 (1993).
`
`16.
`
`“Pollutant” within the meaning of the CWA includes “solid waste . . . sewage,
`
`garbage, sewage sludge . . . biological materials . . . and . . . industrial, municipal, and
`
`agricultural waste discharged into water.” Section 502(6) of the CWA, 33 U.S.C. § 1362(6).
`
`17.
`
`The CWA defines the term “point source” to mean “any discernible, confined and
`
`discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit . . .
`
`from which pollutants are or may be discharged.” Section 502(14) of the CWA, 33 U.S.C.
`
`§ 1362(14).
`
`
`
`4
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 5 of 19
`
`
`
`18. Section 402(a) of the Act, 33 U.S.C. § 1342(a), provides that the Administrator of
`
`the EPA may issue NPDES permits to authorize the discharge of pollutants into waters of the
`
`United States, subject to the conditions and limitations set forth in such permits.
`
`19. Section 402(b) of the Act, 33. U.S.C. § 1342(b), provides that a state may
`
`establish its own permit program, and after receiving EPA’s authorization of that program, may
`
`issue NPDES permits within its jurisdiction.
`
`20. On or about July 1, 1978, the Administrator of EPA authorized the
`
`Commonwealth to issue NPDES permits in Pennsylvania under the CWA, and the
`
`Commonwealth, through PADEP, does so in accordance with its Clean Streams Law, 35 P.S.
`
`§ 691.1 et seq. The Commonwealth’s authority to issue such permits, pursuant to Section 402(b)
`
`of the CWA, 33 U.S.C. § 1342(b), has been in effect at all times relevant to this Complaint.
`
`21. EPA retains concurrent enforcement authority pursuant to Section 402(i) of the
`
`Act, 33 U.S.C. § 1342(i).
`
`22.
`
`Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes the EPA to
`
`commence a civil action for appropriate relief, including a permanent or temporary injunction,
`
`when any person violates, among other things, Section 301 of the CWA, 33 U.S.C. § 1311, or
`
`violates any permit condition or limitation implementing such sections in a NPDES permit
`
`issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
`
`23.
`
`Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28
`
`U.S.C. § 2461 note (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of
`
`1996, 31 U.S.C. § 3701 note (Pub. L. 104-134, Sec. 31001(s)), and the Federal Civil Penalties
`
`Inflation Adjustment Act Improvements Act of 2015, 28 U.S.C. § 2461 note (Pub. L.114-74,
`
`Section 701)) as reflected in the Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R.
`
`
`
`5
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 6 of 19
`
`
`
`Part 19, EPA may seek civil penalties of up to $32,500 per day for each violation occurring
`
`between April 1, 2008 and January 11, 2009, of up to $37,500 per day for each violation
`
`occurring after January 12, 2009 and through November 2, 2015, and up to $54,833 per day
`
`where penalties are assessed on or after January 15, 2019, pursuant to CWA section 309(d), 33
`
`U.S.C. § 1319(d), and 40 C.F.R. § 19.4; and for civil penalties of up to $10,000 per day for such
`
`Clean Streams Law violations, pursuant to Section 605 of the Clean Streams Law, 35 P.S.
`
`§ 691.605.
`
`24.
`
`As to the Commonwealth, Section 3 of the Clean Streams Law, 35 P.S. § 691.3
`
`provides that it is against public policy and it is a public nuisance to discharge sewage into
`
`waters of the Commonwealth, which causes or contributes to pollution or causes a danger of
`
`pollution.
`
`25.
`
`Sections 201 and 202 of the Clean Streams Law, 35 P.S. §§ 691.201 and 691.202,
`
`prohibit the discharge of sewage by any person or municipality into any waters of the
`
`Commonwealth except in compliance with a permit issued under Section 202 of the Clean
`
`Streams Law, 35 P.S. § 691.202.
`
`26.
`
`Sections 401 and 402 of the Clean Streams Law, 35 P.S. §§ 691.401 and 691.402,
`
`make it unlawful or a nuisance to place anything in a water of the Commonwealth that would
`
`constitute pollution or to conduct an activity that is contrary to a regulation or a permit issued by
`
`the department that is required by the rules and regulations promulgated under the Clean Streams
`
`Law.
`
`27.
`
`Section 92a.2 of the regulations adopted by the Pennsylvania Environmental
`
`Quality Board, 25 Pa. Code § 92a.2, defines “discharge” as “an addition of any pollutant to
`
`surface waters of this Commonwealth from a point source.”
`
`
`
`6
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 7 of 19
`
`
`
`28.
`
`Section 92a.2 of the regulations adopted by the Pennsylvania Environmental
`
`Quality Board, 25 Pa. Code§ 92a.2, defines “pollutant” as “a contaminant or other alteration of
`
`the physical, chemical, biological or radiological integrity of surface water that causes or has the
`
`potential to cause pollution as defined in section 1 of the State Act (35 P. S. § 691.1).”
`
`29.
`
`Section 1 of the Clean Streams Law, 35 P.S. § 691.1, states that “sewage” “shall
`
`be construed to include any substance that contains any of the waste products or excrementitious
`
`or other discharge from the bodies of human beings or animals.”
`
`30.
`
`Section 1 of the Clean Streams Law, 35 P.S. § 691.1, states that “[w]aters of the
`
`Commonwealth” “shall be construed to include any and all rivers, streams, creeks, rivulets,
`
`impoundments, ditches, water courses, storm sewers, lakes, dammed water, ponds, springs and
`
`all other bodies or channels of conveyance of surface and underground water, or parts thereof,
`
`whether natural or artificial, within or on the boundaries of this Commonwealth.”
`
`31.
`
`Section 91.34 of the regulations adopted by the Pennsylvania Environmental
`
`Quality Board, 25 Pa. Code § 91.34, require that persons engaged in the impoundment,
`
`production, processing, transportation, storage, use, application or disposal of pollutants,
`
`including sewage, take necessary measures to prevent those pollutants from directly or indirectly
`
`reaching waters of the Commonwealth.
`
`32.
`
`Section 92a.9 of the regulations adopted by the Pennsylvania Environmental
`
`Quality Board, 25 Pa. Code § 92a.9, provides that an NPDES permit satisfies the permit
`
`requirement of Sections 202 of the Clean Streams Law, 35 P.S. § 691.202.
`
`33.
`
`Section 601 of the Clean Streams Law, 35 P.S. § 691.601, provides in pertinent
`
`part:
`
`
`
`7
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 8 of 19
`
`
`
`
`34.
`
`Any activity or condition declared by this act to be a nuisance or which is
`otherwise in violation of this act shall be abatable in the manner provided
`by law or equity for the abatement of public nuisances.
`
`Section 611 of the Pennsylvania Clean Streams Law, 35 P.S. § 691.611, provides
`
`in pertinent part:
`
`It shall be unlawful to fail to comply with any rule or regulation of the
`department or to fail to comply with any order or permit or licenses of the
`department, to violate any of the provisions of this act or rules and
`regulations adopted hereunder, or any order or permit or licenses of the
`department, to cause air or water pollution, or to hinder, obstruct, prevent
`or interfere with the department or its personnel in the performance of any
`duty hereunder or to violate the provisions of 18 Pa. C.S. Section 4903
`(relating to false swearing) or 4904 (relating to unsworn falsifications to
`authorities). Any person or municipality engaging in such conduct shall be
`subject to the provisions of Sections 601, 602, and 605.
`
`Section 605 of the Clean Streams Law, 35 P.S. § 691.605, provides in pertinent
`
`
`35.
`
`part:
`
`In addition to proceeding under any other remedy available at law or equity for
`a violation of provision of this act, rule, regulations, order of the department, or
`condition of any permit issued pursuant to this act, the department, after
`hearing, may assess a civil penalty upon a person or municipality for such
`violation. Such a penalty may be assessed whether or not the violation was
`willful. The civil penalty so assessed shall not exceed ten thousand dollars
`($10,000) per day for each violation.
`
`
`36.
`
`Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14, provides, in pertinent
`
`part, that any discharge of untreated or partially treated sewage to the surface of the ground or
`
`into waters of the Commonwealth, except as approved by the Department under Sections 202 or
`
`207 of the Clean Streams Law, 35 P.S. §§ 691.202 or 691.207, or permitted by local agency
`
`under Section 7.3 of the Sewage Facilities Act, 35 P.S. § 750.7c (regarding permitting of
`
`individual residential spray irrigation systems), constitutes a nuisance and shall be abatable.
`
`
`
`8
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 9 of 19
`
`
`
`37.
`
`Section 1917-A of the Administrative Code, 71 P.S. § 510-17, provides, in
`
`pertinent part, that PADEP shall have the power and its duty shall be:
`
`a) To protect the people of this Commonwealth from unsanitary conditions and
`other nuisances, including any condition which is declared to be a nuisance by
`any law administered by the department;
`
`b) To cause examination to be made of nuisances, or questions affecting the
`security of life and health, in any locality, and, for that purpose, without fee or
`hindrance, to enter, examine and survey all grounds, vehicles, apartments,
`buildings, and places, within the Commonwealth, and all persons, authorized
`by the department to enter, examine and survey such grounds, vehicles,
`apartments, buildings and places, shall have the powers and authority conferred
`by law upon constables;
`
`
`c) To order such nuisances including those detrimental to the public health to be
`abated and removed; [and]
`
`
`d) For the purpose of collecting or recovering the expense of the abatement or
`removal of a nuisance, to file a claim, or maintain an action, in such manner as
`may now or hereafter be provided by law, against the owner or occupant of the
`premises upon or from which such nuisance shall have been abated or removed
`by the department.
`
`
`GENERAL ALLEGATIONS
`At all relevant times, the Authority has owned and/or operated wastewater
`
`38.
`
`
`
`treatment plants (“WWTPs”) and their associated separate sanitary sewer systems for the
`
`collection and conveyance of the sewage flows for treatment prior to discharge.
`
`39.
`
`The Authority operates several hundred miles of sewer pipes. It owns and
`
`operates treatment plants and owns portions of and operates wastewater collection and
`
`conveyance systems that are separate sanitary sewer systems and not combined with the storm
`
`water collection systems, and also conveys flows to other WWTPs, and which serve the citizens
`
`of the following:
`
`
`
`9
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 10 of 19
`
`
`
`a. Richland Service Area includes the following municipalities: Richland Township
`
`and Richlandtown Borough.
`
`b. Upper Dublin Service Area includes the following municipalities: Upper Dublin
`
`Township and Springfield Township.
`
`c. New Hope-Solebury Service Area includes the following municipalities: New
`
`Hope Borough and Solebury Township.
`
`d. Central Bucks Service Area includes the following: Plumstead Township,
`
`Doylestown Township, Doylestown Borough, New Britain Borough, New Britain
`
`Township, Warrington Township, and portions of Buckingham Township and
`
`Bedminster Township.
`
`e. Neshaminy Service Area includes the following municipalities: Middletown
`
`Township, Bensalem Township, and Langhorne Borough.
`
`40.
`
`Some of the foregoing service areas convey flows to WWTPs owned and operated
`
`by other authorities who hold NPDES permits. PADEP has issued BCWSA NPDES Permit
`
`Number PA0021181, on or about June 18, 2014, with an expiration date of June 30, 2019;
`
`NPDES Permit Number PA0021172, on or about December 22, 2014, with an expiration date of
`
`December 31, 2019; NPDES Permit Number PA0051250, on or about April 15, 2013, with an
`
`expiration date of April 30, 2018; and NPDES Permit Number PA0029441, on or about
`
`November 4, 2014, with an expiration date of November 30, 2019 (collectively “NPDES
`
`Permits”). The permits can be found here: https://www.dep.pa.gov/Business/Water/CleanWater/
`
`Pages/Wastewater-Reports.aspx.
`
`41.
`
`The NPDES Permits have been effective and in substantially the same form since
`
`2008.
`
`
`
`10
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 11 of 19
`
`
`
`42.
`
`The Authority’s sanitary sewer systems include gravity sewers, force mains,
`
`pump stations, manholes, other real and personal property, and appurtenances, thereto, designed
`
`to convey sanitary wastewater (including sewage).
`
`43.
`
`Parts of the BCWSA-owned system conveys wastewater to several wastewater
`
`treatment plants that discharge to the Delaware River and several of its tributaries which are
`
`waters of the United States and waters of the Commonwealth.
`
`44.
`
`BCWSA’s five service areas have historically all suffered from SSOs. Since
`
`2014, BCWSA service areas have reported SSOs, as detailed in Exhibit 1 attached hereto. Of
`
`those, over 100 have occurred in Plumstead Township. In that timeframe, multiple SSOs have
`
`also occurred in Bensalem, Richland, Doylestown Borough, Middletown, Upper Dublin, and
`
`New Hope/Solebury.
`
`45.
`
`On June 17, 2008, BCWSA and PADEP entered into a Consent Order and
`
`Agreement (“2008 Consent Order and Agreement”) relating to SSO problems in Plumstead
`
`Township, which is attached as Exhibit 2 hereto. As recited in the 2008 Consent Order and
`
`Agreement, SSOs had been occurring there since at least 2002. As part of its obligations set
`
`forth in the 2008 Consent Order and Agreement, BCWSA paid to PADEP a civil penalty of
`
`$73,000, and agreed to perform certain corrective actions to resolve those specifically identified
`
`violations of the Clean Streams Law, which occurred from May 2002 to February 2008.
`
`46.
`
`In the 2008 Consent Order and Agreement, BCWSA agreed to eliminate SSOs in
`
`the Plumstead Township sanitary sewer collection system by, among other things, implementing
`
`an inflow and infiltration abatement program and by instituting a corrective action plan that
`
`PADEP had approved. See Exhibit 2 at 3 ¶ 3.
`
`
`
`11
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 12 of 19
`
`
`
`47.
`
`BCWSA also agreed to pay stipulated civil penalties into the Commonwealth’s
`
`Clean Water Fund for, among other violations, future SSOs that might occur in areas of
`
`Plumstead Township from June 17, 2008 until eighteen months after BCWSA’s receipt WQM
`
`Permit No. 090408. See Exhibit 2, at 6, ¶ 5.a.2.
`
`48.
`
`Since the 2008 Consent Order and Agreement became effective, SSOs from the
`
`BCWSA’s sewage system continued to occur in Plumstead Township.
`
`49.
`
`Pursuant to Section 5.a.2 of the 2008 Consent Order and Agreement, see Exhibit
`
`2, the provision that required BCWSA to pay stipulated civil penalties for SSOs occurring in
`
`Plumstead Township expired on April 2, 2014.
`
`50.
`
`Pursuant to the 2008 Consent Order and Agreement, BCWSA paid $205,000 of
`
`stipulated civil penalties into the Commonwealth’s Clean Water Fund for specific SSOs
`
`occurring in Plumstead Township from June 17, 2008, until PADEP notified BCWSA on April
`
`2, 2014, of the conclusion of the stipulated penalty period for SSOs.
`
`51.
`
`PADEP also assessed a civil penalty of $9,797.00, through a separate Consent
`
`Assessment of Civil Penalty, entered into between PADEP and BCWSA on October 18, 2017,
`
`for an SSO from the Big Oak Interceptor, occurring on March 6, 2017, in Middletown Township.
`
`52.
`
`Despite the requirements of the CWA and the work that BCWSA undertook
`
`pursuant to the 2008 Consent Order and Agreement, over 100 SSOs have occurred in Plumstead
`
`from BCWSA’s sewage systems to waters of the United States and the Commonwealth since
`
`January 1, 2014.
`
`53.
`
`Sewage, commercial and industrial wastes, and their constituents, are “pollutants”
`
`within the meaning of Section 502(6) of the CWA, 33 U.S.C. § 1362(6) and cause “pollution,” as
`
`
`
`12
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 13 of 19
`
`
`
`defined by Section 1 of the Clean Streams Law, 35 P.S. § 690.1, when discharged into waters of
`
`the Commonwealth, unless in accordance with a permit.
`
`54.
`
`The pump stations, force mains, manholes, and other points from which the
`
`pollutants were discharged constitute “point sources” within the meaning of Section 502(14) of
`
`the CWA, Section 33 U.S.C. § 1362(14).
`
`55.
`
`The NPDES Permits issued to BCWSA and listed in Paragraph 40 do not allow
`
`for SSOs. Part B. I. Management Requirements H. Sanitary Sewer Overflows (SSOs) sites: “An
`
`SSO is an overflow of wastewater, or other untreated discharge from a separate sanitary sewer
`
`system (which is not a combined sewer system), which results from a flow in excess of the
`
`carrying capacity of the system or from some other cause prior to reaching the headworks of the
`
`sewage treatment facility. SSOs are not authorized under this permit. The permittee shall
`
`immediately report any SSO to DEP in accordance with Part A III.C.4 of this permit.”
`
`56.
`
`BCWSA’s SSOs are a result of multiple causes including, among other things,
`
`excessive infiltration and inflow (“I/I”) and inadequate flow capacity in its collection system to
`
`convey that I/I, as well as other maintenance-related issues.
`
`57.
`
`SSOs typically contain harmful pollutants including microbial pathogens, oxygen-
`
`depleting substances, an excessive amount of nutrients such as nitrogen and phosphorous, and
`
`toxics.
`
`COUNT I
`
`Sanitary Sewer Overflows
`
`58.
`
`Paragraphs 1 through 57 are re-alleged and incorporated herein by reference.
`
`59. On over 250 different occasions between January 6, 2014 and the present,
`
`BCWSA has discharged untreated sewage and other pollutants from point sources within its
`
`
`
`13
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 14 of 19
`
`
`
`collection and conveyance systems, including without limitation manholes, pump stations,
`
`and sewer lines. See Exhibit 1. These SSOs are not permitted or otherwise authorized by
`
`Part B.I.H of the NPDES Permits, the CWA, or the Clean Streams Law.
`
`60. Upon information and belief, BCWSA continues to discharge pollutants
`
`containing untreated sewage from its separate sanitary sewer collection systems, especially
`
`during periods of wet weather and high flows.
`
`61.
`
`Each day of such discharge constitutes a separate violation of Section 301(a)
`
`of the CWA, 33 U.S.C. § 1311(a) and of Sections 3, 201, 202, 401, and 402 of the Clean
`
`Streams Law, 35 P.S. §§ 691.3, 691.201, 691.202, 691.401, and 691.402, 25 Pa. Code
`
`§ 91.34; and Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14.
`
`62.
`
`Pursuant to Sections 309(b) and (d) of the CWA, 33 U.S.C. § 1319(b) and (d),
`
`Sections 601, 605, and 611 of the Clean Streams Law, 35 P.S. §§ 691.601, 691.605, and
`
`691.611, and Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14, BCWSA is liable for
`
`permanent injunctive relief and for civil penalties.
`
`63.
`
`BCWSA is liable for civil penalties of up to $32,500 per day for each violation
`
`occurring between April 1, 2008 and January 11, 2009, of up to $37,500 per day for each
`
`violation occurring after January 12, 2009 and through November 2, 2015, and up to $54,833 per
`
`day where penalties are assessed on or after January 15, 2019, pursuant to CWA section 309(d),
`
`33 U.S.C. § 1319(d), and 40 C.F.R. § 19.4, and for civil penalties of up to $10,000 per day for
`
`such Clean Streams Law violations, pursuant to Section 605 of the Clean Streams Law, 35 P.S.
`
`§ 691.605.
`
`64. Unless enjoined by an order of the Court, BCWSA will continue to discharge
`
`pollutants and/or operate its sewage systems in a manner not authorized by its Permits in
`
`
`
`14
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 15 of 19
`
`
`
`violation of Section 301(a) of the CWA, 33 U.S.C. § 1311(a), and of Sections 3, 201, 202,
`
`401, and 402 of the Clean Streams Law, 35 P.S. §§ 691.3, 691.201, 691.202, 691.401, and
`
`691.402, and Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14, and 25 Pa. Code
`
`§ 91.34.
`
`COUNT II
`
`Failure to Properly Operate and Maintain BCWSA’s Sanitary Sewer System
`
`The allegations in the foregoing paragraphs are hereby re-alleged and
`
`65.
`
`incorporated herein.
`
`66.
`
`BCWSA’s NPDES permits, Water Quality Management permits, the Clean
`
`Streams Law, and the regulations promulgated by the department require BCWSA to
`
`properly operate and maintain all facilities and systems of treatment and control (and related
`
`appurtenances).
`
`67.
`
`BCWSA did not conduct adequate preventative maintenance, including
`
`failing to regularly seal and/or line its sewers, perform root control, clean and maintain
`
`collection systems, conveyance systems, and manholes. These failures have contributed to
`
`excessive infiltration and inflow of rainwater into the sewer system, a contributing factor to
`
`SSOs. BCWSA has failed to undertake adequate corrective measures to eliminate such SSOs.
`
`Additionally, BCWSA has acquired certain of its sewage systems or taken responsibility for
`
`operating them but has not adequately characterized the condition of the acquisitions to identify
`
`conditions that can cause SSOs.
`
`68.
`
`The history of SSOs in BCWSA’s sewage systems, is further evidence of poor
`
`operation and maintenance. Many SSOs were due to blockages, broken pipes, tree root
`
`
`
`15
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 16 of 19
`
`
`
`infiltration, and the accumulation of fats, oil, and grease, all indicative of operation and
`
`maintenance practices below industry standards.
`
`69.
`
`BCWSA’s history of sanitary sewer backups, i.e., wastewater backups into
`
`buildings caused by blockages or other malfunctions in BCWSA’s collection system, is likewise
`
`indicative of BCWSA’s failure to properly operate and maintain its sanitary sewer system in
`
`accordance with its permits, the Clean Streams Law, and the regulations promulgated,
`
`thereunder. Such sanitary sewer backups expose residents to viruses, bacteria and other
`
`pathogens when they come into contact with raw sewage creating a significant public health risk.
`
`70.
`
`Pursuant to Sections 309(b) and (d) of the CWA, 33 U.S.C. § 1319(b) and (d),
`
`Sections 601, 605, and 611 of the Clean Streams Law, 35 P.S. §§ 691.601, 691.605, and
`
`691.611, and Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14, BCWSA is liable for
`
`permanent injunctive relief and for civil penalties.
`
`71.
`
`BCWSA is liable for civil penalties of up to $32,500 per day for each violation
`
`occurring between April 1, 2008 and January 11, 2009, of up to $37,500 per day for each
`
`violation occurring after January 12, 2009 and through November 2, 2015, and up to $54,833 per
`
`day where penalties are assessed on or after January 15, 2019, pursuant to CWA section 309(d),
`
`33 U.S.C. § 1319(d), and 40 C.F.R. § 19.4 (as adjusted over time as required by the Federal Civil
`
`Penalties Inflation Adjustment Act of 1990 (28 U.S.C. § 2461 note; Pub. L. 101-410), as
`
`amended by the Debt Collection Improvement Act of 1996, and most recently, by the Federal
`
`Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. § 2461 note;
`
`Pub. L.114-74, Section 701); and for civil penalties of up to $10,000 per day for such Clean
`
`Streams Law violations, pursuant to Section 605 of the Clean Streams Law, 35 P.S. § 691.605.
`
`
`
`16
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 17 of 19
`
`
`
`72. Unless enjoined by an order of the Court, BCWSA will continue to discharge
`
`pollutants and/or operate its sewage systems in a manner not authorized by its permits and/or
`
`in violation of Section 301(a) of the CWA, 33 U.S.C. § 1311(a), and of Sections 3, 201, 202,
`
`401, and 402 of the Clean Streams Law, 35 P.S. §§ 691.3, 691.201, 691.202, 691.401, and
`
`691.402, and Section 14 of the Sewage Facilities Act, 35 P.S. § 750.14, and 25 Pa. Code
`
`§ 91.34.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs the United States of America and the Commonwealth of
`
`Pennsylvania respectfully request that this Court provide the following relief:
`
`1.
`
`A permanent injunction enjoining Defendant BCWSA from any and all
`
`ongoing and future violations of the CWA and the Clean Streams Law by ordering
`
`compliance with the CWA and the Clean Streams Law;
`
`2.
`
`A permanent injunction directing Defendant BCWSA to take all steps
`
`necessary to come into permanent and consistent compliance with the prohibition on
`
`unpermitted discharges and/or operate its sewage systems in a manner consistent with
`
`its permits and in accordance with Section 301(a) of the CWA and in Sections 3, 201, 202,
`
`401, 402, 601, and 611 of the Clean Streams Law, 35 P.S. §§ 691.3, 691.201, 691.202,
`
`691.401, 691.402, 601.601, and 691.611, and Section 14 of the Sewage Facilities Act, 35
`
`P.S. § 750.14, and 25 Pa. Code § 91.34;
`
`3.
`
`A judgment assessing civil penalties against Defendant BCWSA and in
`
`favor of the United States and the Commonwealth of Pennsylvania, of up to $32,500 per
`
`day for each violation occurring between April 1, 2008 and January 11, 2009, of up to
`
`
`
`17
`
`

`

`Case 2:21-cv-05578-GEKP Document 1 Filed 12/22/21 Page 18 of 19
`
`
`
`
`
`$37,500 per day for each violation occurring after January 12, 2009 and through November
`
`2, 2015, and up to $54,833 per day where penalties are assessed on or after January 15,
`
`2019, pursuant to CWA section 309(d), 33 U.S.C. § 1319(d), and 40 C.F.R. § 19.4 (as
`
`adjusted over time as required by the Federal Civil Penalties Inflation Adjustment Act of
`
`1990 (28 U.S.C. § 2461 note; Pub. L. 101-410), as amended by the Debt Collection
`
`Improvement Act of 1996, and most recently, by the Federal Civil Penalties Inflation
`
`Adjustment Act Improvements Act of 2015 (28 U.S.C. § 2461 note; Pub. L.114-74, Section
`
`701); and for civil penalties of up to $10,000 per day for such Clean Streams Law
`
`violations, pursuant to Section 605 of the Clean Streams Law, 35 P.S. § 691.605;
`
`4.
`
`5.
`
`Order Defendant BCWSA to mitigate the effects of each of its violations;
`
`Award the United States and the Commonwealth of Pennsylvania
`
`their costs and disbursements in this action; and
`
`6.
`
`Grant to the United States and the Commonw