September 28, 2016
Via Certified Mail, Return Receipt Requested
Mayor Rick Kriseman
City of St. Petersburg
St. Petersburg City Hall
175 5th St. N.
St. Petersburg, FL 33701
Mr. Claude D. Tankersley, P.E.
City of St. Petersburg
Public Works Administrator
1650 Third Avenue North
St. Petersburg, Florida, 33713
Re: Sixty-Day Notice of Violations of Clean Water Act and Notice of Intent to File Suit
Dear Mr. Kriseman and Mr. Tankersley:
I am writing on behalf of Suncoast Waterkeeper, Inc. (“SCWK”), Our Children’s Earth Foundation (“OCE”) and Ecological Rights Foundation (“ERF”) to notify you of serious and ongoing violations of the federal Clean Water Act (“CWA”) at the City of St. Petersburg’s publicly owned treatment works (“the POTW”) for the collection and treatment of sanitary sewage. The POTW includes the following wastewater treatment facilities (Facilities) and associated wastewater collection/transmission systems (Systems) serving the City of St. Petersburg and other portions of Pinellas County.
Albert Whitted Water Reclamation Facility 601 8th Ave. S.E.
Northeast Water Reclamation Facility 1160 62nd Ave. N.E.
Northwest Water Reclamation Facility 7500 26th Ave. N.
Southwest Water Reclamation Facility 3800 54th Ave. S.
St. Petersburg Master Reuse System 1650 Third Ave. N.
The purpose of this letter is further to provide notice of SCWK, OCE and ERF’s intent to file a civil action against the City of St. Petersburg (“St. Petersburg”) sixty days (60) days after the date of this letter.
I. IDENTITY OF PERSONS GIVING NOTICE AND THEIR COUNSEL
In accord with 40 C.F.R. section 135.3(b), OCE hereby gives notice of the names, addresses, and telephone numbers of the person giving notice, which are SCWK, OCE and ERF.
SCWK is a non-profit public benefit corporation with members throughout the Tampa Bay area, dedicated to protecting and restoring the Florida Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon these precious coastal resources. SCWK has been registered as a non-profit corporation in Florida since 2012 and has maintained its good and current standing in Florida since that time. SCWK is licensed member of Waterkeeper Alliance, Inc., an international non-profit environmental organization, made up of over 300 separate Waterkeeper programs, such as Suncoast Waterkeeper.
OCE is a non-profit public benefit corporation with members throughout the United States, including Florida and specifically the Tampa Bay area, dedicated to protecting the public, especially children, from the health impacts of pollution and other environmental hazards and to improving environmental quality for the public benefit. Another aspect of OCE's mission is to participate in environmental decisionmaking, enforce environmental laws (including via citizen suits), both federal and state, to reduce pollution, and to educate the public concerning those laws and their enforcement.
ERF is a non-profit public benefit corporation with members across the United States, including Florida and specifically the Tampa Bay area. Among other work it does, ERF focuses on protecting surface waters from pollution and degradation. ERF represents citizens who are striving to protect waterways from pollution and secure the multitude of public and private benefits that follow from clean, vibrant waters: safe drinking water, abundant and diverse wildlife populations, healthy recreational opportunities, and economic prosperity from commercial, sport and subsistence fishing; and other commercial activities that depend on clean water. To further its environmental advocacy goals, ERF actively seeks federal and state agency implementation of state and federal water quality related laws, and as necessary, directly initiates enforcement actions on behalf of itself and its members.
SCWK, OCE and ERF’s members use the ocean and bay waters and other waters adjoining and in St. Petersburg for body contact water sports and other forms of recreation, wildlife observation, aesthetic enjoyment, educational study, and spiritual contemplation. These SCWK, OCE and ERF members are concerned about water quality and are and will continue to be adversely affected by St. Petersburg’s sewage discharge violations. SCWK, OCE and ERF may be contacted at:
Suncoast Waterkeeper, Inc.
P.O. Box 1028
Sarasota, FL 34230
Tel: (941) 275-2922
Our Children’s Earth Foundation
1625 Trancas St. #2218
Napa, CA 94558-9998
Tel: (510) 910-4535
Or: 3701 Sacramento St., #194
San Francisco, CA 94118
Tel: (415) 342-0042
Ecological Rights Foundation
867 “B” Redwood Drive
Garberville, California, 95542.
Tel: (707) 923-4372.
SCWK, OCE and ERF has retained the following legal counsel to represent them in this matter:
Justin Bloom, Esq.
P.O. Box 1028
Sarasota, FL 34230
Tel: (941) 275-2922
Fax: (866) 574-2169
Christopher A. Sproul, Esq.
5135 Anza Street
San Francisco, CA 94121
Tel: (415) 533-3376
Fax: (415) 358-5695
Ecology Law Center
P.O. Box 1000
Santa Cruz, CA 95061
Telephone: (831) 454-8216
All communications should be addressed to legal counsel at the above addresses.
II. FACTUAL BACKGROUND
St. Petersburg is a municipality incorporated under the laws of the State of Florida and a person within the meaning of Section 403.031(5), Fla. Stat. St. Petersburg owns and operates the POTW and appurtenant collection system, which collectively is a publicly owned treatment works as defined in CWA section 212(2) and 40 C.F.R. section 125.58(s). The POTW and related collection system collects and treats sanitary sewage from St. Petersburg’s residents and businesses.
The CWA prohibits the discharge of pollutants by any person to waters of the United States except in compliance with a permit duly issued under the CWA. CWA § 301(a), 33 U.S.C. § 1311(a). The CWA authorizes EPA, or states with permit programs approved by EPA, to issue National Pollutant Discharge Elimination System (NPDES) permits allowing for the discharge of pollutants into waters of the United States. CWA § 402, 33 U.S.C. § 1342.
The stormwater element of the federal NPDES program is mandated by CWA § 402(p), 33 U.S.C. §1342(p), and implemented through federal regulations including 40 C.F.R. 122.26. EPA has approved the State of Florida’s Department of Environmental Protection (DEP) to administer an NPDES permit program in Florida. DEP is authorized under Section 403.0885 of the Florida Statutes (F.S.) and Rule 62-624 of the Florida Administrative Code (F.A.C.) to implement the NPDES program. As part of this program, DEP has determined that a Municipal Separate Storm Sewer System (MS4) permit is required for the operation of St. Petersburg’s stormwater systems.
DEP has issued MS4 Permit Number FLS000007-004 (the “MS4 Permit”) to the City of St. Petersburg. The MS4 Permit authorizes St. Petersburg to discharge stormwater to waters of the State in accordance with the approved Stormwater Management Program, effluent limitations, monitoring requirements, and other provisions as set forth in the permit. St. Petersburg is the owner and/or operator of the St. Petersburg MS4. See MS4 Permit § I.A. Specifically, St. Petersburg is required to effectively prohibit the discharge of non-stormwater into its storm sewer system. Id. § I.D. Additionally, St. Petersburg is required to implement procedures to prevent, contain, and respond to spills that may discharge into the MS4. See MS4 Permit, Illicit Discharges and Improper Disposal, §7(d).
St. Petersburg has repeatedly violated the CWA by discharging raw and partially treated sewage from the POTW collection systems without NPDES permit authorization. Additionally, St. Petersburg has repeatedly violated the MS4 Permit by allowing the discharge of non-stormwater into its storm sewer system.
A. St. Petersburg Sewage Spills
St. Petersburg has repeatedly spilled raw and partially treated sewage from its collection system that carries sewage to the POTW. Such raw and partially treated sewage has repeatedly overflowed or spilled from St. Petersburg sewer lines, manholes, pump stations, and various other POTW equipment/conveyances. A partial list of St. Petersburg’s sewage spills is attached as Exhibit 1 to this Notice Letter.
These spills have resulted from a variety of poor or inadequate system maintenance, operation, repair, replacement and rehabilitation practices. These poor practices have led to sewer line blockages (generally caused by build-up of grease, accumulation of sediment and debris, and root intrusion), unaddressed defects in sewer lines such as extensive line cracking, sags in lines, and misaligned joints; broken sewer lines, pump station equipment failures, undersized sewer lines or pump station pumping and/or storage capacity, and the overwhelming of system capacity due to excessive infiltration and inflow of storm water and groundwater during wet weather.
These spills have sent raw and partially treated sewage streaming into private residences and businesses, streets, storm drains, streams, Tampa Bay, and the Gulf of Mexico. These spills have repeatedly posed serious public health threats and created severe nuisance in exposing substantial numbers of people to raw and partially treated sewage. Raw and partially treated sewage contains a variety of human bacteriological, viral, and parasitic pathogens, and exposure to raw and partially treated sewage is well-known to cause various human illnesses. In addition to human waste, sanitary sewage contains various toxic chemicals from the solvents, detergents, cleansers, inks, pesticides, paints, pharmaceuticals and other chemicals discarded by households and businesses. Thus, St. Petersburg’s sewage spills pose a serious public health risk in exposing members of the public and SCWK, OCE and ERF’s members to sewage-borne pathogens and various toxic pollutants. These persistent, repeated sewage spills also have threatened harm to the sensitive freshwater and marine environments of St. Petersburg’s waters, as the pathogens and toxic pollutants in sewage can adversely affect freshwater and marine life.
III. VIOLATIONS OF THE FEDERAL CLEAN WATER ACT
- A. Sewage Spills
- 1. Violation of CWA Section 301(a)’s Prohibition On Unpermitted Discharges to Waters of the United States.
As noted above, St. Petersburg has repeatedly spilled raw and partially treated sewage from its sewage collection system. At least some of these sewage spills have flowed into waters of the United States. St. Petersburg does not and could not have NPDES permit authorization to discharge raw or partially treated sewage from its collection system to waters of the United States, which include the Gulf of Mexico, Tampa Bay, all wetlands adjacent to the Gulf of Mexico, and/or Tampa Bay, freshwater streams and other waters that are tributary to the Gulf of Mexico and/or Tampa Bay, and any wetlands adjacent to such tributaries. All such discharges of raw or partially treated sewage have thus constituted the unauthorized discharge of pollutants in violation of CWA section 301(a), which expressly provides:
Except as in compliance with this section and sections . . . 1342 [which provides for NPDES permit authorization for pollutant discharges] . . . the discharge of any pollutant by any person shall be unlawful. 33. U.S.C. §1311(a).
2. Sewage Discharges to St. Petersburg’s MS4 in Violation of the MS4 Permit
St. Petersburg’s sewage spills have flowed into St. Petersburg’s MS4. The MS4 Permit regulates discharges into the MS4. The MS4 Permit prohibits the discharge of non-stormwater (material other than stormwater) into the MS4. MS4 Permit, § I.D. Raw or partially treated sewage that is discharged into the MS4 is not stormwater. St. Petersburg violates the MS4 Permit every time a sewage spill from the St. Petersburg POTW discharges into the MS4. All the sewage spills that are identified in Exhibit 1 as having reached storm drains are examples of sewage spills that St. Petersburg has discharged into the MS4.
3. Dates and Locations of Violations
A partial list of St. Petersburg’s sewage spills, provided by way of example, is set forth as Exhibit 1 to this letter. This partial list indicates the date and location of these sewage spills and identifies whether these spills entered waters of the United States and/or the MS4. As noted, these above-described spills are illustrative of the types of sewage spills from St. Petersburg’s sewage collection system. Additionally, local news agencies have reported several spills and/or discharges of raw or partially treated sewage from St. Petersburg’s sewage collection system in June, July, August, and September 2016. These recent spills and/or discharges were the subject of a proposed Consent Order, OGC File No. 16-1280. On information and belief, SCWK, OCE and ERF have concluded that St. Petersburg has had additional sewage spills in the past five years, many of which have caused unpermitted discharge of sewage to waters of the United States and/or the MS4. This notice includes any additional sewage spills from the St. Petersburg For example, during recent wet weather in June, August and September,
The Facilities are individually permitted under the State of Florida Domestic Wastewater Facility Permit program (“State Permits”). The dates and locations of, and all other pertinent details concerning, St. Petersburg’s sewage spills are well known to St. Petersburg, as St. Petersburg is required to monitor and report these spills to the Florida Department of Environmental Protection. See State Permits, General Conditions, § IX.20.a.(4) and (b). Each of these spills that has caused pollutants to flow into waters of the United States constitutes a separate violation of CWA section 301(a).
OCE will include in its suit against St. Petersburg claims for additional violations when additional information becomes available. St. Petersburg has taken inadequate affirmative steps to eliminate its sewage spills, thus these violations are ongoing and will continue in the future.
IV. NOTICE OF INTENT TO SUE ST. PETERSBURG FOR VIOLATIONS OF THE CLEAN WATER ACT
SCWK, OCE and ERF contend that St. Petersburg has failed in the respects set forth above to comply with the requirements imposed by CWA section 301(a) and the State Permits. CWA section 505(b), 33 U.S.C. § 1365(b), requires that sixty (60) days prior to the initiation of a civil action under CWA section 505(a), a citizen must give notice of his/her intention to sue. 40 C.F.R. section 135.2 provides that, if the alleged violator is a State or local agency, service of notice shall be accomplished by certified mail addressed to, or by personal service upon, the head of such agency. This section further provides that a copy of the notice shall be mailed to the chief administrative officer of the water pollution control agency for the State in which the violation is alleged to have occurred, the EPA Administrator and the EPA Regional Administrator for the EPA Region in which such violation is alleged to have occurred. Accordingly, this notice is being sent to you as the Mayor of St. Petersburg. In addition, a copy of this notice is being sent to Claude D. Tankersley, Public Works Administrator. We are also sending copies to the EPA Administrator, the Regional Administrator of EPA Region 4, the Executive Director of the State Office of Water Quality, and the Executive Director of the Southwest Florida Water Management District (and a courtesy copy to the U.S. Department of Justice).
By this letter, pursuant to CWA section 505(a) and (b), 33 U.S.C. §1365(a) and (b), SCWK, OCE and ERF hereby put you on notice that after the expiration of sixty (60) days from the date of this Notice of Intent To File Suit, SCWK, OCE and ERF intend to file an enforcement action in federal court against St. Petersburg for the latter’s CWA violations.
SCWK, OCE and ERF intend to seek civil penalties and, in addition, injunctive relief preventing further CWA violations pursuant to CWA sections 505(a) and (d), 33 U.S.C. § 1365(a) and (d), and such other relief as is permitted by law. Pursuant to CWA section 309(d), 33 U.S.C. § 1319(d), and 40 C.F.R. section 19.4, each of the above-described CWA violations subjects St. Petersburg to a penalty of up to $32,500 per day per violation for all separate CWA violations. See 69 Fed. Reg. 7121 (Feb. 13, 2004).
In addition to the violations set forth above, this notice covers all ongoing CWA violations and violations evidenced by information that becomes available to SCWK, OCE and ERF after the date of this Notice of Intent to File Suit.
SCWK, OCE and ERF are interested in discussing effective remedies for the violations noted in this letter. If you wish to pursue such discussions in the absence of further litigation, we suggest that you initiate those discussions within the next 20 days so that they may be completed before the end of the 60-day notice period. Although SCWK, OCE and ERF are always interested in avoiding unnecessary litigation, they do not intend to delay the filing of a complaint in federal court if discussions are continuing when the notice period ends.
Gina McCarthy, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Heather McTeer Toney, Regional Administrator, EPA Region 4
Sam Nunn Atlanta Federal Center
61 Forsyth St. SW
Atlanta, GA 30303-8960
Southwest Florida Water Management District
2379 Broad St., Brooksville, FL 34604
Jonathan P. Steverson, Secretary
Ryan Matthews, Director Office of Water Quality
Florida Department of Environmental Protection
3900 Commonwealth Blvd., MS 46
Tallahassee, FL 32399-3000
 33 U.S.C. § 1292(2).
 Albert Whitted Water Reclamation Facility, Wastewater Permit No. FLA128830; Northwest Water Reclamation Facility, Wastewater Permit No. FLA128821; Northeast Water Reclamation Facility, Wastewater Permit No. FLA128856; Southwest Water Reclamation Facility, Wastewater Permit No. FLA 128848.