In Filing, WPCA Denies Fault In Sewage Spill

Who — or what — caused 2.1 million gallons of sewage to spill into the Mill River last summer?

Was it sulfuric acid? Deferred maintenance? Old and neglected pipes? Or was it an unavoidable, if unfortunate, accident — for which the regional sewer authority should not be blamed or penalized?

A federal lawsuit filed by the environmental advocacy nonprofit Save the Sound against the Greater New Haven Water Pollution Control Authority (GNHWPCA) seeks to answer those questions — and to convince the court to require that the regional authority take better care of its pipes.

That lawsuit, initially filed in February, has entered a new stage of legal debate now that GNHWPCA filed its first official response in the matter on Thursday.

In that briefing, the regional sewer authority denies all wrongdoing, and calls on the federal court to dismiss the matter entirely.

At the center of the case is a 2.1 million gallon spill of wastewater from the Whitney Avenue Pressure Sewer near the Eli Whitney Museum on July 6 and July 7, 2020.

Some of that sewage (“untreated,” according to Save the Sound; ​“partially treated,” according to the GNHWPCA) made its way into the nearby Mill River, causing New Haven, Branford, and East Haven to temporarily close its beaches and to warn its residents against fishing or swimming in the river.

GNHWPCA staffers, meanwhile, scrambled to stop the spill, reroute the sewage flow, and fix a collapsed sewer main.

Click here and here for detailed coverage of that incident when it occurred.

Save The Sound: Corrosion & Neglect

On Feb. 10, Save the Sound Staff Attorney Katherine Fiedler and Senior Legal Counsel Roger Reynolds filed a complaint in federal court against the GNHWPCA. In that lawsuit, the locally-based environmental nonprofit alleges that the regional sewer authority’s overall neglect and infrequent inspections of its sewer pipes led to last July’s ​“unlawful discharges of pollution” into the Mill River.

Click here to read their original complaint, which was first covered by the New Haven Register.

“Failure to perform routine and preventative maintenance of the pipes, manholes, and electrical and mechanical equipment in the wastewater collection system can result in discharges of raw and partially treated sewage at various locations in the wastewater collection and treatment system into receiving water bodies causing pollution and conditions detrimental to the public health and the environment,” the nonprofit’s attorneys wrote in their lawsuit. ​“Systemic inspections are necessary to identify areas of concern and to prioritize monitoring, maintenance, and rehabilitation or replacement.”

Those regular inspections and upkeep did not take place for this Whitney Avenue area of concern, they alleged. And the result was the sewage system failure on display last July.

In particular, Fiedler and Reynolds wrote, the GNHWPCA failed to pay close enough attention to evidence of a dangerous buildup of sulfuric acid in the Whitney Avenue pipes. That led to hydrogen sulfide corrosion, which in turn directly caused the sewer collapse and spill.

“The July 6 – 7, 2020 sewage spill was caused by hydrogen sulfide corrosion, which compromised the pipe and ultimately caused its failure,” they wrote. ​“Evidence of hydrogen sulfide corrosion was identified in the Whitney Avenue Pressure Sewer as early as 2014 during investigations conducted for the development of a Standard Operating Procedure (SOP). Based upon information and belief, the last known monitoring of the Whitney Avenue Pressure Sewer occurred in 2015, despite the fact that the SOP recommended annual monitoring and inspections.”

If the GNHWPCA had included this section of its pipes in its Hydrogen Sulfide Monitoring and Control Program six years ago, the nonprofit’s attorneys wrote, last July’s spill might not have happened.

Instead, sewage flowed into the Mill River, resulting in a host of harms to the people and wildlife that use the Long Island Sound.

The lawsuit accuses the GNHWPCA of violating the federal Clean Water Act.

It calls on the court to ​“enjoin the Defendant from discharging pollutants” pursuant to Section 505(a) of the Clean Water Act. And it also calls on the court to require the GNHWPCA to, among other mandates, implement its Whitney Avenue Pressure Sewer SOP in full, complete a full inventory of large diameter pipes, implement a prioritized ongoing condition assessment of large diameter pipes, develop and implement a prioritized asset management and rehabilitation program, pay a civil penalty not to exceed $56,460 per day per violation for all violations of the Clean Water Act occurring after November 2015, and award the plaintiff for the costs of litigation.

Sewer Authority: No Wrongdoing Here

On Thursday, GNHWPCA-hired attorneys Edward Heath, Christopher Hug, and Jenna Scoville of the Hartford firm Robinson + Cole filed an answer to Save the Sound’s Feb. 10 complaint.

In that answer, they denied all allegations of wrongdoing made against GNHWPCA.

Click here to read that answer in full.

The GNHWPCA’s attorneys admitted that, on July 6 and 7 of last year, ​“approximately 2.1 million gallons of partially treated wastewater leaked from the Whitney Avenue Pressure Sewer, a portion of which migrated into the Mill River.”

However, they did not concede that hydrogen sulfide corrosion was to blame. They denied that the authority has been neglecting its pipes.

“Insofar as the allegation of Paragraph 38 of the Complaint contains allegations about the specific cause or causes of the July 6 – 7, 2020 discharge, the Authority lacks knowledge or information sufficient to form a belief as to such allegations and, therefore, denies them,” the attorneys wrote in response to the nonprofit’s claims about hydrogen sulfide corrosion.

And while the authority’s National Pollutant Discharge Elimination System (NPDES) permit does indeed lack provisions ​“expressly authorizing the unanticipated leak and flow of untreated or partially treated sewage from the Whitney Avenue Pressure Sewer into the Mill River,” they wrote, they denied that the federal regulation cited by Save the Sound imposes such an ​“absolute prohibition” on untreated wastewater discharges — aka, sewage spills.

The regulation incorporated into the NPDES permit ​“provides exceptions for ​‘unanticipated, unavoidable, and necessary” circumstances, as well as other approved, essential maintenance activities.”

In response to Save the Sound’s first claim for relief in regards to ​“unauthorized discharges,” the GNHWPCA’s attorneys argue that the plaintiff has ​“failed to state a claim upon which relief can be granted.”

In response to the second claim for relief in regards to the authority’s alleged failure to comply with NPDES permit conditions, the defense attorneys argue that the complaint is ​“barred because the alleged violation or violations of the Clean Water Act is or are wholly past.”

And in response to the third claim for relief in regards to the authority’s actions and the subsequent spill allegedly resulting in a public nuisance, the defense attorneys claim that the complaint is ​“barred by the doctrine of diligent prosecution.”

The GNHWPCA’s attorneys call on the court to dismiss Save the Sound’s claims, enter a judgment in favor of the authority, and ​“grant such other and further relief as this Court deems proper.”