Source: http://www.post-journal.com, October 2, 2011
By: Jason Rodriguez
As far back as 1990, Widrig Avenue resident Dennis McCullough has been especially wary of poor weather.
He said that his house is situated at a crossroads of city plumbing. McCullough said a 15-inch waste water line, coming down Hallock Street, turns onto his road, and flows into an 8-inch line that runs between his and his neighbors’ house to Kenmore Avenue.
His concern is a result of the “inflow and infiltration” of the waste water system, which means the excess storm water leeches into the sewer line.
“Every time we get a lot of rain in a short period of time, the sewer system cannot handle the amount of rain and sewage that goes into the sewer line,” he said. “When we have a lot of storm water and sewage there is a bottleneck at this manhole, where sewage and storm water raise the manhole cover and it dispenses into the street or back into the storm drain.”
He added that there is so much pressure the sewage also enters his home and those of his neighbors.
According to the BPU webpage for waste water, cracked pipes and manhole covers with holes permit a degree of rain water to enter the normal flow of sewage toward its destination of proper treatment. But it adds that “many homes in this area have their roof downspouts and footer drains improperly draining into the sanitary sewer rather than the storm sewers. In times of wet weather, this extra volume of water, multiplied by many homes, could overflow the sanitary sewers causing the system to back up and relieve itself at the point of least resistance, which could be the homeowner’s basement.”
SMALL CLAIMS FILED
“This has been going on for 20-plus years,” said McCullough, referring to the existing city sewer lines’ inability to cope with inflowing and infiltrating storm water.
In April 1994, he recovered $2,371.33 from the city of Jamestown in a small-claims suit. A letter from the city’s liability agent, Slone-Melhuish Insurance, added that other services for “debris removal and liming of (McCullough’s) backyard, cleaning services and appliance repair” were paid directly to contractors in addition to the claim.
McCullough said he began a new suit after the sewer problems were not solved by the city and another episode of severe backup occurred in May 2004. He said the Board of Public Utilities, led by board counsel William Wright, filed a motion to dismiss the claim.
“My belief and my understanding is that the BPU tried to expense me out of this claim, by filing motions where it would be prohibitive of me to continue on,” he said.
For four years, McCullough said he rotated through a series of local and appellate courts. Ultimately, in 2008 he was awarded a second settlement in the amount of $4,000, credited from the BPU’s Waste Water Operating Fund.
As his legal process continued, McCullough and 13 other residents of Widrig Avenue signed a petition, dated April 21, 2005, that appealed for an immediate response and a “plan of action” from the city, BPU and the county Health Department.
“As taxpayers of this city, we demand that the city stop putting bandaids on the sore, but fix the problem once and for all,” the petition states. “The city needs to fix the sewer lines to prevent this overflow into the water system and our homes.”
NEW LAWSUIT
Said McCullough: “Every time we try to deal with the BPU and ask them to resolve our issues, they have chosen to either fight us and hopefully it will go away, or totally ignore us.”
Following the region’s widespread flooding in June 2009, he joined with two of his neighbors, Cheryl Foti and Cynthia Loftus, in a complaint against the city and BPU, filed in the Western New York District of federal court.
The suit, filed by attorney Charles Ritter of Duke, Holzman, Photiadis & Greens LLP, charges that sewage overflows from the defendants’ sewage treatment system on two occasions in 2009 violated the federal Clean Water Act and state Environmental Conservation Law. Documents submitted thereafter refer to a DEC “Order on Consent” from 2006 that was handed down to prevent future violations. The order “acknowledges that certain residents in the city have been subjected to sewer backups into their basements, and that such backups constitute a ‘public health nuisance.'”
The trio of plaintiffs state damages that include “the amount that the value of the Real Property has decreased because of the violations and the ongoing risk of further violations.”
The city of Jamestown and the BPU recruited Michael McClaren and Nelson Perel, Mike Saar, BPU deputy general manager, stated in a responsive declaration on Sept. 20, 2010, that the utility company had been working since 2006 to cover the pick and pry holes on manhole covers around the Widrig Street area.
“Such sums are more wisely used to address sewer system overflow issues by working in a cooperative fashion with engineers from the DEC rather than defend against this meritless legal action,” he stated.
The subsequent motion to dismiss the case states that the assertion that the manhole cover was lifted by surging sewage, thereby allowing sewer to enter navigable waters, were “not supported by any facts.” It added the BPU has maintained to a “schedule of compliance” from the 2006 order on consent, and also to a five-year State Pollution Discharge Elimination System permit that it embarked the next year.
A letter from the DEC confirmed it has responded to particular complaints from McCullough and his neighbors.
“We received calls from citizens asserting that basement backups of sewage occurred on Widrig Avenue on June 20, 2009. … In light of the problems in this area, we ask you to move this area forward in the timeline for corrective action,” it states.
But in their response, the BPU stated that since October 2009, it had not received any complaints or “otherwise have reason to suspect that there have been any outflows from the Widrig Avenue manholes.” It also provided a letter from the DEC in August 2010, stating its approval of a BPU engineering report that details plans for further drainage rehabilitation work.
When contacted by The Post-Journal, BPU General Manager David Leathers provided a written statement:
“The city and the BPU have been named in a lawsuit brought by three residents of Widrig Avenue, alleging violations of the Clean Water Act. Together, the city and the BPU will vigorously defend this action as organizations representing our taxpayers and ratepayers.”
Leathers followed by stating it is the practice of the city and the BPU not to comment on items of current litigation.
BPU APPEAL
On Aug. 15, 2011, federal Magistrate Judge Hugh Scott recommended that all points in the BPU’s motion to dismiss the lawsuit were denied.
Among its submitted assertions, the defendants attempted what the court termed a “permit shield” defense, because the alleged Clean Water Act violations occurred while it was under compliance with the state DEC’s SPDES permit. But the court looked unfavorably on the BPU’s failure to notify the DEC about the lapses in June 2009, required either “verbally within twenty-four hours, or in writing within five days.” In fact, the DEC was informed about the sewage backups by residents of Widrig Avenue.
The judge ruled that seepage into storm water drains, eventually reaching the Chadakoin River, did constitute navigable waters, and that there remained a reasonable likelihood of future violations of state and federal environmental law.
“This cost us a lot of money to do this, hire a firm out of Buffalo, and they fought us on the whole thing,” McCullough said in the aftermath of the ruling. “But we won I believe what is the first step – the federal court saying they have enough information and ‘we are denying motion to dismiss in its entirety. … I don’t think the BPU wants us to go to jury trial.”
After a two-week window and an extension to file, the BPU attorney submitted the objection to the recent recommendation. The BPU stated the primacy of carrying out its to-be-completed consent order with the state DEC.
“Based on (prevailing) compliance history, the two alleged isolated sewer system overflow events that form the basis for this action fail to justify any need for this Clean Water Act citizen suit action,” it stated, adding that since the 2006 order, “Jamestown has worked diligently to develop and implement approved plans to address sewer system overflow issues under the Schedule of Compliance. The DEC continues to exercise its enforcement authority to make sure that Jamestown is on track to eliminate SSOs.”
But in comments to The Post-Journal, McCullough said the issue is much larger than the BPU has been willing to admit so far:
“In my opinion, for Mike Saar, a qualified engineer from the BPU, to state that plugging holes on a manhole cover should stop the sewer backups and prevent sewer water from going down the storm drains is ludicrous.”
He said the BPU needs to get serious about investigating their sewer system infrastructure, including the overall amount of storm water that is being processed at the sewer treatment plant. McCullough said while it is clear that rainfall has not been as severe as the episodes in 2009, the faulty system remains in place and a critical backup could occur again.
Ritter, the plaintiff attorney, filed a reply Sept. 29 to the defendant objections, stating “the court should adopt the report and recommendation in all respects.” Their replay adds the defendants “bear a heavy burden” to establish that no more sewer overflows would occur in the future.