Group Threatens Lawsuit Over Clean Water
By Sean Flynn
Published in Newport Daily News March 26, 2008
Four Newport residents and Environment Rhode Island have given the city and Earth Tech Inc., the operator of the city’s wastewater treatment plant, notice of their intent to file a lawsuit in federal court against them for violating the federal Clean Water Act.
“The City Council and city administration have been derelict for not doing anything about this pollution for years,” said Burt Hoffman, one of the plaintiffs. They all refer to themselves as plaintiffs although the lawsuit has not yet been filed.
Hoffman said city officials have one constant refrain: “If it didn’t rain, there wouldn’t be a problem.”
“Well, there is a problem,” he said. “The lawsuit is needed to get them to clean it up.”
The notice documents hundreds of illegal discharges of pollutants from the Newport wastewater treatment plant on Connell Highway and the combined sewer overflow (CSO) facilities on Wellington Avenue and Washington Street. The notice also says the city violates federal law with discharges of polluted stormwater from outfalls into Newport Harbor and from the moat around Easton’s Pond into Easton Bay.
The City Council will officially receive the notice at tonight’s meeting.
The National Environmental Law Center of Boston and the center’s staff attorney, Theresa Labriola, are representing Environment Rhode Island, a statewide, citizen-based environmental advocacy organization, and the four residents. The Law Center is a nonprofit litigation agency dedicated to enforcing anti-pollution laws.
“As a boater, I am greatly concerned with the quality of water in Narragansett Bay and, most importantly, Newport Harbor,” said Ted Wrobel, another of the residents behind the lawsuit. “It is a disgrace that my family must avoid swimming in the harbor and worry about falling into it.”
The other pending plaintiffs are David Wixted and Henry Rosemont Jr.
“The Department of Health discourages tourists and families from swimming, surfing and other full-body contact activities at Easton’s Beach and Atlantic Beach for a minimum of 24 hours after a heavy rainfall,” said Matt Auten, an advocate with Environment Rhode Island.
The city closed down the swimming beach at King Park in 2003 because it is too close to the Wellington Avenue CSO facility and there is a danger of fecal bacteria in the water, especially after heavy rains.
“People are kept out of the water because of partially treated sewage and contaminated stormwater entering Newport Harbor and Easton’s Bay,” Auten said.
The 32-page notice also lists multiple violations that occur when there are pollutants in the discharges from the wastewater treatment plant into Narragansett Bay. For example, the discharged effluent must have less than a certain “biological oxygen demand.” Organisms in the effluent use up oxygen in the water and take oxygen away from the fish. These are known as “BOD” violations.
Also, effluent can only have a certain amount of “total suspended solids.” When this amount is exceeded, it is called a TSS violation. The attached tables in the notice include multiple TSS violations.
When the wastewater treatment plant violates any of these standards, or others, it must report the violation to the state Department of Environmental Management, which oversees all discharge permits in Rhode Island.
Labriola said these reports were the source of many of the violations listed in the notice.
Newport pays Earth Tech more than $3 million a year to operate the wastewater treatment plant and CSO facilities, yet the Clean Water Act violations persist, according to the notice. Earth Tech is a subsidiary of Tyco International Inc., a global services firm with annual profits that exceed $800 million, according to the notice.
The notice cites additional violations by the city and Earth Tech, such as the failure to notify the public about combined sewer overflows, the failure to monitor ambient water quality in Newport Harbor and the lack of a long-term CSO control plan. The notices also alleges that the city’s CSO control plan, which still is under development, currently addresses only the Wellington Avenue CSO facility and not the one on Washington Street.
Labriola, Auten and the residents say the city and Earth Tech can avoid having the lawsuit filed if they negotiate an enforceable consent agreement with the plaintiffs that includes an enforceable timeline for compliance with the Clean Water Act. Hoffman said the consent agreement would be filed with federal court.
Labriola outlined some of the provisions such a consent agreement would need to have to avoid the filing of the lawsuit. A selection of these provisions include:
* Bringing the wastewater treatment plant into 100 percent compliance with discharge limitations. This could require expensive upgrades at the plant.
* All CSO discharges should receive primary treatment. The city would have to take necessary steps to minimize the discharge of pollutants from the Wellington CSO facility, specifically fecal coliform.
* “Notify the public of the occurrence of CSO events through daily postings at the outfalls, publication in the Newport Daily News, and on the city website, a public notification e-mailing list, and a CSO telephone hotline.”
* Institute a harbor-wide monitoring program to determine conditions that are potentially harmful for users due to CSO discharges.
* Eliminate all cross connections between sewer lines and stormwater lines in the city by a specified date.
* The city is working on a long-term control plan for the CSOs, but the plaintiffs want that process speeded up. At the completion of the plan, there should be no discharges from the Wellington CSO facility and no more than four a year from the Washington CSO facility.
* Install and operate an appropriate treatment facility at the Easton’s Pond moat to treat the polluted discharge before it enters Easton’s Bay.
“ Newport is an iconic coastal treasure that draws over three million visitors to the area each year,” Auten said. “We can, and must, solve the pollution problem with long-overdue technological upgrades and financial investment in the city’s wastewater and stormwater systems. We have met with city officials several times in the past few months and are hopeful that we can negotiate an enforceable solution to this problem.”
