2 environmental organizations sue Henrico County over 'series of pollution violations' involving James River

Frustrated by what they termed “a series of pollution violations over many years” involving Henrico County’s sewer system, two environmental organizations Monday filed a lawsuit against the county in U.S. District Court, seeking legal action to protect the health of the James River and a number of its tributaries.

The suit filed in the Eastern District Court of Virginia by the Chesapeake Bay Foundation and James River Association alleges that repeated failures of the Henrico Water Reclamation Facility in Varina since its 1989 opening have resulted in millions of gallons of raw sewage – 66 million gallons in the past five years alone – escaping into the James and feeder streams and creeks, in violation of the federal Clean Water Act. (A third organization, the Environmental Integrity Project, also is part of the suit but not named formally as a plaintiff.)

“The continued operation of the Henrico WRF in this manner presents a significant threat to the chemical, physical, and biological integrity of the James River and its tributaries,” the suit reads. The plaintiffs sent a notice of intent to sue – required by the CWA at least 60 days before a suit is actually filed – to Henrico officials Aug. 11.

In a press release and during a press conference Monday, representatives of the organizations said they took legal action in an effort to force the county to address the problem expeditiously – something they said hasn’t occurred to date, despite more than 40 violation notices and four separate consent orders from the Virginia Department of Environmental Quality.

“Action is needed to protect our streams, our river, and public health from the serious pollution violations in Henrico County,” James Riverkeeper and Senior Advocacy Manager with the James River Association Jamie Brunkow said in a statement. “Local communities deserve waterways that are safe for swimming and fishing, but for at least 30 years Henrico County has allowed sewage and bacteria to plague local streams.”

Later during the press conference, Brunkow attributed the sewage releases to “critical failures with an inadequate or crumbling sewer infrastructure across Henrico County.”

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The lawsuit filed against Henrico alleges that between September 2016 and June this year, nearly 240 individual overflows caused by the county’s system dumped more than 66 million gallons of raw, untreated sewage into the James River and its tributaries – most of that amount (49 million gallons) in 2018, when rain levels were higher than normal in the region. Between Jan. 1 and Oct. 7 this year, the sewer system allowed 1.2 million gallons of raw sewage into the James and its tributaries, according to DEQ data compiled by JRA and CBF. The county, like all localities in the state, is required to report overflows and other violations to the DEQ, which also receives reports of potential violations from citizens.

"Henrico County, through its operation of the Henrico Water Reclamation Facility, has contributed an exorbitant amount of pollutants to the James River basin over the last 30 years," said CBF attorney Taylor Lilley. "Henrico has jeopardized the health of the James River and its tributaries and posed significant health risks to surrounding communities."

A sanitary sewer system, like the one in use in Henrico, carries only sewage and not stormwater; such systems only overflow when there is a defect or blockage. Some other localities, like Richmond, have older "combined" sewer systems that carry both stormwater and sewage in the same pipes. In Richmond, during times of heavy rain, the system intentionally overflows, spilling sweage into the river (more than 3 billion gallons in 2018 alone, according to DEQ data).

Last year, the HWRF significantly exceeded its sediment pollution levels, which Brunkow said is affecting water quality, wildlife and the ability of citizens to safely use the waterways.

Monday afternoon, Henrico officials responded to the lawsuit with this statement, provided to the Citizen by Public Relations Director Ben Sheppard: “Henrico County is dedicated to protecting the health of the public and is deeply committed to environmental stewardship in Central Virginia and the Chesapeake Bay. The county is reviewing this lawsuit and looks forward to a full presentation of the facts through the legal process.”

Henrico has been fined twice by the DEQ – in 2003 ($25,500) and 2010 ($29,500) for violations related to sewage overflows that released higher than allowable limits of various pollutants (including nitrogen, suspended solids, ammonia, and chlorine) into the waterways.

Between September 2016 and June this year, 42.3 million gallons of the raw sewage that overflowed into local waterways went to the Tuckahoe Creek during 18 separate overflow incidents, according to the data collected and presented in the lawsuit.

The most egregious incident occurred Oct. 11, 2018, when 25.4 million gallons of raw sewage were reported to have flowed into the Tuckahoe Creek, according to the lawsuit. That incident came a little less than five months after an May 17 overflow that sent 7.25 million gallons of raw sewage into the creek.

Other overflow incidents during the same time period affected a wide variety of waterways, including the Chickahominy River, Gillies Creek, Upham Brook, North Run, Almond Creek, Horse Swamp Creek, Kanawha Canal, Broadwater Creek, Meredith Branch, Lake Overton, Deep Run and others.

"These problems are quite widespread across Henrico County," Brunkow said. "That's why we're taking this legal action – to call on Henrico County to step up and to ensure a long-term solution is in place to protect the river and our local communities."

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On Aug. 25, Henrico and Virginia DEQ officials signed a fifth proposed consent order (stemming from violations) that would result in the county being fined more than $207,000. But, that order hasn't yet been finalized, according to the lawsuit, and doesn’t name any necessary long-term projects or system-wide improvements.

As a result, officials from the CBF and JRA said they filed their lawsuit Monday in an attempt to force the county to conduct a comprehensive review of the sewer system to determine the scope and cost of repairs and to establish a firm completion date for that work – something that they said doesn’t exist currently.

“Because Henrico County has not fixed this problem to protect the public, we had no alternative but to take legal action,” Environmental Integrity Project attorney Sylvia Lam said. "Other cities and counties have been required to provide public notice when the sewage overflows occur in local creeks and streams. This consent order doesn't include that. . . [but] Henrico should be required to do the same in order to protect public health. Members of the public aren't aware that the waterways they use. . . are contaminated with raw sewage from overflows."

Representatives from the organizations involved with the suit continue to talk with Henrico officials, Lilley said, and hope to speak with DEQ officials, too, to find a comprehensive solution to the issue, ideally before the case goes to court.

"Taking a piecemeal approach for 30-odd years hasn’t gotten us anywhere," Lilley said.