Where Henrico County has a history of noncompliance, but it argued that it was unlikely to violate the terms of a permit in the future because it had complied with the permit for 10 consecutive months, the court found that plaintiffs had sufficiently alleged a state of intermittent violation at the Henrico Water Reclamation Facility.
Chesapeake Bay Foundation Inc., and James River Association bring this citizen suit against Henrico County, alleging violations of the Clean Water Act at the Henrico County Water Reclamation Facility, including disregard for the terms of its permit issued under the Virginia Pollution Discharge Elimination System.
Henrico’s violation of its permit has resulted in the commonwealth’s imposition of four separate consent orders in the last 28 years. In light of violations in the previous four years, and frustrated that the state’s enforcement efforts have not resolved Henrico’s violations, plaintiffs bring this citizen suit. Henrico has filed a motion to dismiss.
Diligent prosecution bar
Henrico first moves to dismiss the complaint for lack of subject matter jurisdiction due to the diligent prosecution bar of 33 U.S.C. § 1319(g)(6). First, the parties contest whether the diligent prosecution bar operates to preclude only civil penalty actions, or also bars actions seeking injunctive or declaratory relief.
In light of the plain language of this provision, the court preliminarily concludes that, should the diligent prosecution bar apply here, it would only preclude plaintiffs’ claims for civil penalties. As plaintiffs seek injunctive relief as well, those claims may proceed unimpeded by § 1319(g)(6)(A).
To avoid the jurisdictional bar of § 1319(g)(6)(A), the statute requires, among other things, that plaintiffs establish that they gave their Aug. 11, 2021, notice of intent to sue “prior to commencement” of Virginia Department of Environmental Quality, or DEQ’s, enforcement action. Henrico argues that DEQ had commenced its prosecution of the enforcement action “at least as of June [24,] 2020,” when it conducted an enforcement conference with Henrico.
The court finds that DEQ’s notices of violation or NOV, issued to Henrico between September 2018 and June 2020 did not constitute commencement. The fact that the NOVs used conditional language describing possible future enforcement actions and that DEQ issued six NOVs serially over a period of almost two years – without pursuing resolution through a consent order or adversarial action – persuade the court that the NOVs alone did not amount to commencement.
In contrast, the court finds that the June 24, 2020, enforcement conference supplements the NOVs to create the hallmarks of commencement that the NOVs lacked on their own. Accordingly, DEQ’s enforcement action commenced with its June 2020 enforcement conference, over one year before plaintiffs noticed their intent to sue.
Plaintiffs can still avoid the jurisdictional bar of § 1319(g)(6)(A) if they can establish that DEQ did not diligently prosecute its enforcement action. Plaintiffs argue that DEQ did not diligently prosecute its action against Henrico because: (1) DEQ had not executed the 2021 consent order at the time that plaintiffs filed their citizen suit, (2) the 2021 consent order will not bring Henrico into compliance with its permit, because it does not include a deadline for compliance, and appears similar to previous consent orders that have proven ineffective and (3) the 2021 consent order does not address the concerns reflected in plaintiffs’ complaint. These arguments prove unavailing. Because DEQ commenced and diligently prosecuted its administrative enforcement action against Henrico before plaintiffs gave their notice of intent, § 1319(g)(6) bars plaintiffs’ claims for civil penalties.
Wholly past violations
Henrico moves to dismiss Counts One and Two for lack of subject matter jurisdiction and failure to state a viable claim, arguing that those counts concern wholly past violations. Henrico argues that, at the time of the filing of plaintiffs’ suit, Henrico had maintained compliance with the permit for 10 consecutive months. Henrico contrasts that clean record to the preceding period of time, in which it had violated the permit in 10 out of 14 months, to show that the violations have no real likelihood of repetition. Plaintiffs counters that 10 months of compliance cannot overcome Henrico’s 28-year history of serial non-compliance.
The court finds that plaintiffs have sufficiently alleged a state of intermittent violation at the Henrico Water Reclamation Facility. In addition to a history of serial noncompliance, Henrico and DEQ themselves appear to express doubt that the effluent limit violations remain wholly in the past.
Defendant’s motion to dismiss granted in part, denied in part.
Chesapeake Bay Foundation Inc. v. County of Henrico, Case No. 3:21-cv-752, April 11, 2022. EDVA at Richmond (Novak). VLW 022-3-162. 32 pp.