Case 1:22-cv-00506-CMH-TCB Document 1 Filed 05/09/22 Page 1 of 19 PageID# 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`POTOMAC RIVERKEEPER, INC.,
`3070 M Street NW
`WASHINGTON, DC 20007,
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`Plaintiff,
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`v.
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`CITY OF ALEXANDRIA, VIRGINIA,
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`Defendant.
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`Civil No. ______________
`1:22-cv-506
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
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`I.
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`INTRODUCTION
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`1.
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`This action is a citizen suit brought under section 505 of the Clean Water Act
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`(“CWA”) and section 7002 of the Resource Conservation and Recovery Act (“RCRA”) as
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`amended. 33 U.S.C. § 1365; 42 U.S.C. § 6972. Plaintiff Potomac Riverkeeper, Inc. (“Plaintiff”
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`or “Potomac Riverkeeper”) seeks a declaratory judgment, injunctive relief, the imposition of
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`civil penalties, and the award of costs and attorney’s fees for the City of Alexandria’s
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`(“Defendant” or the “City”) repeated and ongoing violations of sections 301(a) and 402 of the
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`CWA, 33 U.S.C. §§ 1311(a) and 1342, by unlawfully discharging pollutants from a point source,
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`a stormwater outfall located at the eastern end of Oronoco Street in Alexandria, Virginia (the
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`“Outfall”), into the Potomac River, a water of the United States, without a permit and for the
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`generation and disposal of solid waste contributing to an imminent and substantial endangerment
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`to human health and the environment in violation of Section 7002(a)(1)(B) of the RCRA, 42
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`U.S.C. § 6972(a)(1)(B).
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`II.
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`JURISDICTION AND VENUE
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`2.
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`This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question), 33 U.S.C. § 1365(a) (CWA jurisdiction), and 42 U.S.C. § 6872(a) (RCRA
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`jurisdiction). The relief requested is authorized pursuant to 33 U.S.C. §§ 1319(d) and 1365(a),
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`42 U.S.C. § 6972(a), and 28 U.S.C. §§ 2201 and 2202.
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`3.
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`Pursuant to section 501(b)(1)(A) of the CWA, 33 U.S.C. §1365(b)(1)(A), and
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`section 7002(c) of RCRA, 42 U.S.C. § 6972(c), on March 13, 2019, Potomac Riverkeeper
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`notified the Defendant of its intent to file suit against the Defendant for its violations of the
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`CWA and the RCRA (“Notice Letter”). Potomac Riverkeeper served this notice on Justin
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`Wilson, the Mayor of the City, and Joanna Anderson, the Deputy City Attorney for the City.
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`Potomac Riverkeeper also provided such notice to Andrew Wheeler, then Acting Administrator
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`of the U.S. Environmental Protection Agency (“EPA”); Cosmo Servidio, then Region III
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`Administrator for the U.S. EPA Region 3; Yon Lambert, AICP, Director, Department of
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`Transportation & Environmental Services of the City of Alexandria; and David K. Paylor,
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`Director, Virginia Department of Environmental Quality (“VDEQ”). A copy of the Notice
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`Letter is attached as Exhibit A.
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`4.
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`More than sixty days have passed since the Notice Letter was served and neither
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`EPA nor the Commonwealth of Virginia has commenced and diligently prosecuted a civil or
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`criminal action in a court to require Defendant’s compliance with the CWA and the RCRA. The
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`CWA and the RCRA violations identified in the Notice Letter are of a continuing nature, are
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`ongoing, or are reasonably likely to re-occur. Defendant thus remains in violation of the CWA
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`and the RCRA.
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`5.
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`Venue in this District is proper pursuant to 33 U.S.C. §§ 1365(c)(1), 1391 and 42
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`U.S.C. § 6972(a), because Defendant is located in this District, the CWA violations originated in
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`this District, and the RCRA disposal of solid waste and resulting imminent and substantial
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`endangerment originated in this District.
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`III. PARTIES
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`6.
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`Plaintiff Potomac Riverkeeper is a nonprofit, membership-based environmental
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`advocacy organization founded in 2000 for the purpose of ensuring stronger enforcement of
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`federal, state, and local clean water protections in the Potomac River. Since 2015, Potomac
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`Riverkeeper has been a member of the Potomac Riverkeeper Network, an organization with
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`more than 2,000 members that includes three Riverkeepers, one each for the Upper Potomac and
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`Lower Potomac (where the Outfall is located), and a third for the Shenandoah River. Potomac
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`Riverkeeper and its members work to protect and restore the water quality of the Potomac River
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`and its tributaries, which is critical to the almost six million people whose drinking water comes
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`from that river, as well as those who use the River and its tributaries for recreation. Potomac
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`Riverkeeper’s office is located at 3070 M Street NW, Washington, DC 20007.
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`7.
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`Defendant City of Alexandria is a municipality organized and existing pursuant to
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`Title 15.2 of the Code of Virginia.
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`8.
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`At all relevant times, Potomac Riverkeeper and the City are and were “persons”
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`as that term is defined by the CWA, 33 U.S.C. § 1362(5), and by the RCRA, 42 U.S.C. §
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`6903(15).
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`IV. BACKGROUND ON THE POTOMAC RIVER
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`9.
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`The Potomac River (the “River”), a navigable water of the United States,
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`originates at the Fairfax Stone in West Virginia and forms the boundaries of Virginia, Maryland,
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`and the District of Columbia before entering into the Chesapeake Bay. The River is an important
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`waterway for public drinking water, for recreational use by people who travel in interstate
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`commerce, and for its support of recreational fishing.
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`V.
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`STANDING
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`10.
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`To achieve its goals, Potomac Riverkeeper implements educational programs,
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`river cleanups, a volunteer water quality monitoring program, environmental initiatives,
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`recreational activities, and environmental law enforcement efforts throughout the Potomac River
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`watershed. Potomac Riverkeeper’s work has helped communities in Maryland, Pennsylvania,
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`Virginia, West Virginia, and the District of Columbia. Its successes range from compelling a
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`Virginia sewage treatment plant to reduce its annual nutrient pollution by 60,000 pounds to co-
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`authoring a U.S. Geological Survey report on intersex fish and fish kills.
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`11.
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`Potomac Riverkeeper’s members include individuals concerned about the
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`protection and restoration of the Potomac River, its tributaries, habitats, and resources, who are
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`dedicated to preserving and improving the cultural, historic and environmental resources of the
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`Potomac River. Potomac Riverkeeper’s members fish, kayak, bird, walk and participate in other
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`recreational activities throughout the Potomac River watershed, including in the area of the
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`Outfall, and drink water from the Potomac River.
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`12.
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`Potomac Riverkeeper’s members use, enjoyment, and appreciation of the River
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`has been and will be harmed, reduced, and degraded by the ongoing discharges from the Outfall
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`and the resulting environmental impacts.
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`VI. LEGAL BACKGROUND
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`13.
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`Congress passed the Clean Water Act in 1972 to “restore and maintain the
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`chemical, physical, and biological integrity of the nation’s waters.” 33 U.S.C. § 1251(a). The
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`CWA further declared that “it is the national goal that the discharge of pollutants into the
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`navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1).
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`14.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any
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`pollutant by any person” into waters of the United States, except in compliance with the terms of
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`a National Pollutant Discharge Elimination System (“NPDES”) permit, issued by the EPA or an
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`authorized State pursuant to Section 402(b) of the CWA, 33 U.S.C. § 1342.
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`15.
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`The NPDES permit program in Virginia is administered by the Virginia
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`Department of Environmental Quality (“VDEQ”) pursuant to EPA authorization under Section
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`402(b) of the CWA.
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`16.
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`“Discharge of a pollutant” is defined as “any addition of any pollutant to
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`navigable waters from any point source.” 33 U.S.C. § 1362(12).
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`17.
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`“Navigable waters” is defined as “waters of the United States, including the
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`territorial seas,” 33 U.S.C. § 1362(7), where ”waters of the United States” is defined to include
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`“[t]he territorial seas, and waters which are currently used, or were used in the past, or may be
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`susceptible to use in interstate or foreign commerce, including waters which are subject to the
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`ebb and flow of the tide. . . .” 40 C.F.R. § 120.2(1).
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`18.
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`“Pollutant” includes a wide range of items, such as “solid waste, . . . sewage,
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`garbage, sewage sludge . . . chemical wastes, biological materials . . . [and] industrial waste.” 33
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`U.S.C. § 1362(6).
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`19.
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`“Point source” is defined as “any discernible, confined and discrete conveyance,
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`including but not limited to any pipe, ditch, or channel . . .from which pollutants are or may be
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`discharged.” 33 U.S.C. § 1362(14).
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`20.
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`The CWA allows citizens to bring an enforcement action in federal district court
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`against any “person,” defined to include any State, municipality, commission, or political
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`subdivision of a State, or any interstate body (33 U.S.C. § 1362(5)), committing an ongoing
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`violation of the CWA, so long as the citizen provides sixty days of notice of any alleged
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`violations prior to commencing suit. See 33 U.S.C. § 1365(a)-(b).
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`21.
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`The Resource Conservation and Recovery Act (“RCRA”) regulates the storage,
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`transportation, treatment, and disposal of solid and hazardous wastes.
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`22.
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`A “solid waste” is defined as any “garbage, refuse, . . . and other discarded
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`material, including solid, liquid, semisolid, or contained gaseous material from industrial,
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`commercial, mining, and agricultural operations. . . . .” 42 U.S.C. § 6903(27).
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`23.
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`RCRA allows “any person” to file suit against any other person, defined to
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`include “the United States and any other governmental instrumentality or agency,” who was or is
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`a “past or present generator . . . who has contributed or who is contributing to the . . . present
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`handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which
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`may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C.
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`§ 6972(a)(1)(B).
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`24.
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`To file suit against a defendant whose conduct contributes to an “imminent and
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`substantial endangerment” pursuant to this section, a citizen plaintiff does not have to
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`demonstrate that the defendant’s actions violated RCRA’s Subtitle C or D regulatory programs.
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`Instead, one filing suit under RCRA’s imminent and substantial endangerment provision need
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`only show that the defendant’s past or ongoing disposal of solid waste is contributing to
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`conditions that may present an imminent or substantial endangerment to human health or the
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`environment.
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`25.
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`“Waste may present an imminent and substantial endangerment to health or to the
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`environment if the danger of harm is immediate” though “the threat’s impact need not be felt
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`until later, since the statute specifically considers waste that may present endangerment.”
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`307 Campostella, LLC v. Mullane, 143 F. Supp. 3d 407, 414 (E.D. Va. 2015) (citing Meghrig v.
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`KFC W., Inc., 516 U.S. 479, 485-86 (1996)).
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`26.
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`Under RCRA’s citizen suit provision, this court is authorized “to restrain any
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`person who is contributing or has contributed” to an imminent and substantial endangerment and
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`to “order such person to take any other such action that may be necessary” or both. 42 U.S.C. §
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`6972(a)(2).
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`VII. FACTS
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`27.
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`In about 1851, the City built a manufactured gas plant (“MGP”) at the corner of
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`Oronoco Street and North Lee Street to produce natural gas from coal to be used by local
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`residents and businesses for heat and light. The City owned and operated the MGP until 1930,
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`when it sold its interest to the Alexandria Gas Company. The Alexandria Gas Company
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`operated the plant for another sixteen years, eventually closing the plant in 1946. The plant was
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`subsequently demolished, and various businesses used the remaining buildings until the site was
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`redeveloped in the mid-1970s.
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`28.
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`The MGP generated large volumes of coal tar and creosote wastes in connection
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`with its production of coal-derived natural gas. These wastes accumulated in a large plume of
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`chemicals under the MGP site, extending to the north under Oronoco Street.
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`29.
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`In 1975, just prior to the redevelopment of the former MGP site, a 44 x 72-inch
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`diameter storm water pipe was installed beneath the centerline of Oronoco Street adjacent to the
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`former plant site. The pipeline extends past the northern edge of the former MGP site and runs
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`eastward to the River where it discharges via the Outfall into the River. The Outfall is
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`approximately five feet in diameter. The area where the Outfall discharges into the River is
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`bounded to the north by the Robinson Terminal North pier (the “Pier”). Coal tar and creosote
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`wastes from the MGP site have continually entered the Outfall pipe and discharged into the
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`River throughout the period of 1975 to the present, contaminating both the River and sediments
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`near the Outfall and under the Pier.
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`30.
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`The City installed absorption booms near the Outfall in 1979 at the request of the
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`U.S. Coast Guard as well as a floating containment boom in 2000. However, documents and
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`visual observations demonstrate that those booms are poorly maintained and have failed to
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`contain the contamination.
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`31.
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`The City and the Outfall are currently subject to the VDEQ Phase II Municipal
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`Separate Storm Sewer System Permit VAR040057 (“MS4 Permit”) as provided in 9 VAC § 25-
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`890-40. This is a general Clean Water Act permit that authorizes the discharge of municipal
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`stormwater, so long as the permit holder complies with all applicable regulations and permit
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`terms. However, the MS4 Permit expressly prohibits non-stormwater discharges from the storm
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`sewer system unless they are authorized by a separate, individual Virginia Pollutant Discharge
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`Elimination System (“VPDES”) permit. “Stormwater” is defined as “precipitation that is
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`discharged across the land surface or through conveyances to one or more waterways and that
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`may include stormwater runoff, snow melt runoff, and surface runoff and drainage.” 9 VAC §
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`25-870-10. There is no VPDES individual permit issued by VDEQ allowing non-stormwater
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`materials to be discharged into the River at or in the vicinity of the Outfall.
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`32.
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`The Outfall, is a “point source” within the meaning of the CWA from which coal
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`tar and creosote wastes have been illegally discharged into the River in violation of CWA section
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`301(a) and the MS4 Permit. 33 U.S.C. § 1362(14) (“[t]he term ‘point source’ means any
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`discernible, confined and discrete conveyance, including but not limited to any pipe [or] conduit
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`. . . from which pollutants are or may be discharged.”)
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`33.
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`Coal tar and creosote wastes have also migrated through the soil and stormwater
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`pipe bedding material and continue to seep up from the River sediments near the Outfall, which,
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`in combination with the same types of materials discharging from the Outfall, has resulted in
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`observable iridescent chemical sheens on the surface of the River, contamination of River
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`sediments, and a noticeable odor of creosote.
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`34.
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`Coal tar is a by-product of the process of using coal to produce natural gas.
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`Creosote is a distillation product of coal tar. Both coal tar and creosote contain polycyclic
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`aromatic hydrocarbons (“PAHs”), a large group of organic chemicals, many of which are
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`classified as probable human carcinogens. PAHs belong to a group of persistent organic
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`chemicals that do not dissolve in or easily mix with water. Both coal tar and creosote are known
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`as non-aqueous phase liquids (“NAPL”). They (and their constituent chemicals and degradation
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`products) are “pollutants” within the meaning of the CWA, and both (and their constituent
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`chemicals and degradation products) are “solid waste” within the meaning of RCRA when
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`discarded. Coal tar and creosote wastes are solid wastes under RCRA. The City generated and
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`has disposed of, and continues to dispose of, these solid wastes into the Potomac River. The
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`continued presence of these solid wastes in the surface water and sediments of the Potomac
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`River presents an imminent and substantial endangerment to human health and the environment.
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`35.
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`Humans can be exposed to coal tar and creosote compounds through inhaling its
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`fumes, contact with the skin, or ingesting soil or water containing the compounds. Once people
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`are exposed to coal tar and creosote compounds, they can suffer adverse health effects, including
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`cancer, liver and kidney damage, irritation of the respiratory tract, or damage to the skin and
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`corneas.
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`36.
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`Benthic and aquatic organisms can also be exposed to coal tar and creosote
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`compounds that are in surface waters and sediments. Exposure to these compounds can inhibit
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`growth and prevent root growth in aquatic plants. Invertebrates exposed to coal tar and creosote
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`compounds can suffer from reduced shell deposition, decreased growth rates, impaired
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`reproduction, and increased susceptibility to infectious disease. Coal tar and creosote
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`compounds in aquatic sediments can be toxic to invertebrates found in the area such as mollusks,
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`crustaceans, insect larvae, and aquatic oligochaetes (earth worms). In surface water and
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`sediments, coal tar and creosote compounds can also be toxic to fish embryos, causing reduced
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`hatching success, the development of skeletal and heart deformities, and other physical
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`abnormalities. Such adverse effects on aquatic organisms negatively impact the River’s
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`ecosystem and diminish the River’s ability to support the recreational and other activities
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`enjoyed by Potomac Riverkeeper members.
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`37.
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`PAHs are present in the soil and groundwater upgradient of the Outfall, the water
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`that has discharged and that continues to discharge from the Outfall, and sediments in the River
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`near the Outfall, including under and to the north of the Pier. Documents prepared by or on
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`behalf of the City indicate that PAH concentrations detected near the Outfall site are a potential
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`danger to humans as well as to aquatic organisms and the animals that feed on them.
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`38.
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`In March 2000, the City applied to have the Outfall site entered into VDEQ’s
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`Voluntary Remediation Program (“VRP”) to avoid a threatened enforcement action by the EPA.
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`The Outfall was accepted into the VRP in May 2000 and assigned VRP Site Number 00241. A
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`sediment investigation was conducted to determine the lateral and vertical extent of sediment
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`impacts from the Outfall site. A site characterization report produced in January 2001 estimated
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`that the impact from the coal tar and creosote wastes associated with the Outfall extended
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`approximately 750 feet along the shore of the River next to Founders Park to the south,
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`approximately 500 feet to the north, and eastward for approximately 175 feet.
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`39.
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`A follow-up sediment study conducted a decade later in June 2011 to provide a
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`basis for developing a remedial strategy re-delineated the lateral and vertical extent of sediment
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`impact. Several samples, including a sample taken to the north of the Pier, revealed total PAH
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`(tPAH) concentrations in excess of the Probable Effect Concentration (“PEC”) limit of 22.8
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`mg/kg established by MacDonald et al. 2000 that is recommended by the Wisconsin Department
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`of Natural Resources and applied by VDEQ. A PEC is a consensus-based sediment quality
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`guideline concentration above which harmful effects to benthic organisms are likely to be
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`observed.
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`40.
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`The City’s 2013 revised Remedial Action Plan (“RAP”) submitted to VDEQ
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`recommended the removal of highly-impacted sediments having tPAH concentrations in excess
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`of the PEC limit. Moreover, the revised RAP noted that the design and implementation of an
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`effective remedy for impacted sediments requires the successful elimination of migrating coal tar
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`residues feeding groundwater seeps within the Outfall area.
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`41.
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`In 2016 and 2017, Potomac Riverkeeper took subsequent samples of discharges
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`from the Outfall pipe as well as sediments near the Outfall, which confirmed ongoing PAH
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`discharges in violation of the MS4 Permit and tPAH PEC exceedances in sediments.
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`42.
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`In August 2017, the City submitted to VDEQ and received approval for a revised
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`RAP designed to remove contaminated sediments from the Outfall area and to eliminate the
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`visible sheens coming from the Outfall or in the area of the River to be remediated. To
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`accomplish that goal, the revised RAP established the following remedial approach: (i) dredging
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`and removal of the top 1-3 feet of sediments; (ii) placement of a reactive mat in the area around
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`the Outfall to contain future seeps; (iii) installation of a cap of clean sand over the dredged area;
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`(iv) post-remedy environmental monitoring and reporting requirements; and (v) a commitment
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`by the City to amend the RAP to address appropriate remediation underneath the Pier.
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`43.
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`The City commenced and completed the dredging project in February 2018.
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`Shortly thereafter, however, Potomac Riverkeeper’s members observed significant erosion of the
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`gravel bottom at the point where the Outfall discharges into the River. Over the course of the
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`next several months, Potomac Riverkeeper’s members observed a chemical sheen discharging
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`from the Outfall, on the surface of the River near the Outfall, and on the River banks nearby. For
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`example, a Potomac Riverkeeper member’s visual inspection of the Outfall on January 24, 2019
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`revealed iridescent sheens discharging from the pipe and seeping from the
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`bulkhead/embankment surrounding the pipe, and in February 2019, Potomac Riverkeeper
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`observed sheens on top of the water both inside and outside of the floating containment booms
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`surrounding the Outfall.
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`44.
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`On or about March 19, 2019, Potomac Riverkeeper served the City with a Notice
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`Letter of its intent to bring suit to stop the City’s ongoing illegal discharge of coal tar and
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`creosote waste into the River and to stop the City’s illegal contribution to an imminent and
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`substantial endangerment to human health and the environment.
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`45. More than two and a half years after Potomac Riverkeeper’s Notice Letter,
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`Potomac Riverkeeper’s members have continued to observe discharges of coal tar and creosote
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`waste from the Outfall, as demonstrated by iridescent sheens observed and photographed near
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`the Outfall, including when members visited on March 17, 2021, October 6, 2021, October 26,
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`2021, January 1, 2022 and February 4, 2022. See Exhibits B-G. Potomac Riverkeeper’s
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`members have also recorded video of iridescent sheens floating in the water, covering sediments,
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`and seeping into the River as recently as February 4, 2022. Potomac Riverkeeper’s members
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`also have observed more than 40 barrels stored in a fenced-in area at the end of Oronoco Street
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`(see Exhibit H), a number of which contain liquid NAPL that the City removed from the ground
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`that is the source of the iridescent sheens seen in the River.
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`46.
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`In addition to the evidence of ongoing discharges into the River, sediment
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`samples taken in 2019 from the Outfall area, under the Pier, and to the north of the Pier
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`reconfirmed the existence of tPAH concentrations above the PEC.
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`47.
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`The containment booms and turbidity curtain against the Pier were battered and
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`damaged by hundreds of logs that rendered them ineffective at containing the sheens (see Exhibit
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`B); and as of September 2021, the turbidity curtain was dislodged and went missing from the
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`site. The City has installed a new turbidity curtain, but as of February 4, 2022, its functionality
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`has also been compromised by debris and logs. See Exhibit I.
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`48.
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`Samples taken from the Outfall in April 2021 revealed elevated levels of
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`naphthalene and benzene, a carcinogenic volatile organic compound. These naphthalene
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`concentrations were more similar to samples taken from 2016-2018, rather than samples taken
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`from 2019-2020, demonstrating that the City has not resolved what the City referred to as “very
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`minor issues” with respect to continuing discharges of these kinds of materials from the Outfall
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`to the River.
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`49. Moreover, a report of October 2021 stormwater sampling prepared by the City’s
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`environmental consultant found that concentrations of benzo(a)anthracene, a component of
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`NAPL, exceeded Virginia’s criterion for “all other surface waters” (see 9 Va. Admin. Code § 25-
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`260-140, established for all surface waters not designated as a public water supply to protect
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`human health from toxic effects through fish consumption) in samples collected at the Outfall
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`and in the stormwater pipe discharging to the River at the manhole closest to the River.
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`50.
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`In addition to the ongoing illegal CWA discharges, nearly four years after the
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`August 2017 submission to VDEQ of the revised RAP, in which the City committed to amending
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`the RAP to remediate contaminated sediments under the Pier, the City still has not submitted
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`such an amendment. Nor does the City appear to have any other plan to address the
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`contaminated sediments under the Pier. By August 2018, the Pier owner provided the City with
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`correspondences and permits indicating that it had the necessary state and federal approvals to
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`stabilize the Pier, as well as its own sampling results that confirmed PAH exceedances of the
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`PEC in several areas. Aside from the Pier owner’s sampling efforts, sediment samples taken
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`under and to the north of the Pier in 2000, 2016, 2018, and 2019 also confirm PAH
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`concentrations in excess of the PEC. These contaminated sediments under and to the north of
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`the Pier have not been removed and therefore continue to present an imminent and substantial
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`endangerment to human health and the environment.
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`51.
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`The City is currently in the midst of a Combined Sewer Overflow (“CSO”)
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`project that requires the City to remediate the discharge of sewage at all of its combined sewer
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`outfalls and to construct an underground tunnel system to bring combined sewage to the
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`wastewater treatment facility of AlexRenew, the City’s sanitation authority. The Pier owner is
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`currently a party to an agreement with AlexRenew that permits AlexRenew to utilize the
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`Robinson Terminal North property as a staging area for the CSO project. This agreement runs
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`through 2024. The Pier owner has advised Potomac Riverkeeper that he will permit the City to
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`remove the Pier and dredge the surrounding area. Doing so now is advisable from both an
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`environmental and a financial perspective because the City currently has access to the property
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`and will have the necessary hauling equipment on site in connection with the CSO project.
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`VIII. CLAIMS FOR RELIEF
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`A. Count 1: CWA Citizen Suit
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`52.
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`Plaintiff realleges and incorporates herein the foregoing allegations of this
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`Complaint, and further alleges as follows:
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`53.
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`On or about March 9, 2019, in accordance with the applicable federal statutes and
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`regulations, Potomac Riverkeeper served its Notice of Intent to File Suit under the CWA by
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`registered mail, properly addressed and postage prepaid, to the City as well as the appropriate
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`federal and state officials. A copy of this Notice Letter is attached hereto as Exhibit A.
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`54.
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`Section 301(a) of the CWA, 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 pursuant to a
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`NPDES permit issued under Section 402 of the CWA, 33 U.S.C. §1342.
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`55.
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`The City’s ongoing discharge of coal tar and creosote constituents into the
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`Potomac River from the Outfall is a prohibited discharge of pollutants from a point source into
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`navigable waters of the United States under the CWA. Because the City does not have an
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`individual NPDES permit from VDEQ that authorizes the ongoing discharge of coal tar and
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`creosote wastes, the City is in violation of Section 301(a) of the CWA, 33 U.S.C. §1311(a).
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`56.
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`The ongoing discharges of coal tar and creosote constituents into the Potomac
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`River from the Outfall are not authorized by the City’s MS4 Permit. Among the obligations
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`imposed on the City under the MS4 Permit is the duty to detect and eliminate “illicit discharges.”
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`This requires the City to prohibit non-stormwater discharges from the storm sewer system that
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`are not otherwise permitted by a separate, individual VPDES permit. As the ongoing discharge
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`of coal tar and creosote wastes are “illicit discharges,” and not “stormwater” discharges, the
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`continuance of such discharges constitute a violation of the MS4 Permit.
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`57.
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`The Defendant is subject to injunctive relief under CWA section 505(a), 33
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`U.S.C. § 1365(a).
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`58.
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`Pursuant to sections 309(d) and 505(a)(1) of the CWA, 33 U.S.C. §§ 1319(d) and
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`1365(a)(1), Defendant is liable for civil penalties of up to $56,460 per day for each violation of
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a) for the discharge of unpermitted pollutants into
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`the Potomac River without an individual NPDES permit from 1975 until the illegal discharge is
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`eliminated.
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`B. Count 2: RCRA Citizen Suit
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`59.
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`Plaintiff realleges and incorporates herein the foregoing allegations of this
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`Complaint, and further alleges as follows:
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`60.
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`On or about March 9, 2019, in accordance with the applicable federal statutes and
`
`regulations, Potomac Riverkeeper served its Notice of Intent to File Suit under the RCRA by
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`registered mail, properly addressed and postage prepaid, to the City as well as the appropriate
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`federal and state officials. A copy of this Notice Letter is incorporated by reference and attached
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`hereto as Exhibit A.
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`61.
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`Coal tar and creosote waste, when discharged to the River and sediments in the
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`River, are solid wastes under RCRA.
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`62.
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`The City has generated and still is generating coal tar and creosote waste from the
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`MGP area that discharged and is discharging into the River, and is present in River sediments
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`under and to the north of the Pier.
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`63.
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`The City is a “person” under the RCRA who has contributed to and/or is
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`contributing to the past or present handling, storage, treatment, transportation or disposal of solid
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`waste in the area near the Outfall in and adjacent to the River.
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`64.
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`An imminent and substantial endangerment to health or the environment may be
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`presented and is in fact presented as a direct and proximate result of the City’s contribution to the
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`handling, storage, treatment, transportation or disposal of hazardous waste in the River near the
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`Outfall and the area adjacent to the River near the Outfall.
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`65.
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`A citizen suit under the RCRA is not precluded by Potomac Riverkeeper’s citizen
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`suit in connection with the City’s ongoing violation of section 301(a) of the CWA. As described
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`above, the City is in violation of the CWA in connection with its ongoing illegal discharge of
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`coal tar and creosote waste from the Outfall into the River. Additionally, the City is also