Environmental groups that sued Henrico, alleging Clean Water Act violations, now challenging judge's ruling

The two environmental organizations that filed a citizen lawsuit in December against Henrico County, alleging that the county has repeatedly violated the Clean Water Act during the past three decades, now are challenging the decision of a federal judge who ruled in April that their suit could not subject Henrico to civil financial penalties because the county already was facing such penalties from the state.

In their suit, the plaintiffs – the Chesapeake Bay Foundation and the James River Association – alleged that Henrico committed “a series of pollution violations over many years” by allowing repeated failures of its sewer system and water reclamation facility in Varina, which resulted in tens of millions of gallons of raw sewage escaping into the James River and feeder streams and creeks. They sought the imposition of “equitable relief” – in essence, a court ruling requiring the county to take certain actions to address the pollution – and civil penalties, including the plaintiffs’ legal fees and the potential implementation of fines against Henrico from the state.

Henrico officials countered by filing a motion Jan. 6 requesting dismissal of the entire suit on grounds that the U.S. District Court lacked the proper jurisdiction to rule on it and that portions of the suit failed to state relevant claims under federal rules of civil procedure.

In an April 11 memorandum opinion, Judge David J. Novak of the U.S. District Court for the Eastern District of Virginia agreed in part with both sides, concluding that while the plaintiffs’ request for equitable actions of enforcement could proceed, no civil financial penalties could be levied against the county through the lawsuit.

The latter, he wrote, was because the Virginia Department of Environmental Quality already had begun its “prosecution” of Henrico for the failures of its sewer system – a process that involved such penalties. The Clean Water Act, he wrote, precludes a citizen lawsuit from seeking additional civil penalties in such a case if a government agency already had initiated “diligent prosecution” of CWA violations.

The plaintiffs, however, now are challenging that ruling ahead of a scheduled Aug. 16 settlement conference date established by Novak. They contend that in fact the state did not diligently prosecute Henrico because it hadn’t enacted any penalties against the county for its most recent violations by the time the lawsuit was filed, nor did the state’s subsequent prosecution actions address the concerns noted in the lawsuit or include deadlines for Henrico to comply with Clean Water Act standards.

Assuming the suit is not settled, it would proceed to a bench trial (during which a judge, not a jury, hears a case and issues a decision) beginning Dec. 12.

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In his April opinion, Novak wrote that the state’s prosecution process began June 24, 2020 – when the DEQ held an enforcement conference by phone with Henrico Public Utilities Director Bentley Chan in response to its issuance of six notices of Virginia Pollutant Discharge Elimination System permit violations against the county between Sept. 3, 2018 and June 3, 2020.

In the months after that phone call, the DEQ and Henrico officials negotiated and eventually agreed upon a consent order that required the county to:

• pay civil penalties of $207,680;
• complete a series of upgrades designed to prevent future pollution incidents to the Varina water reclamation facility by Dec. 15, 2028;
• complete 28 separate sewer rehabilitation projects, each with individually scheduled deadlines between Dec. 1 this year and Dec. 15, 2028. (Ten of the projects listed in the order actually were completed prior to the order’s effective date.)

In total, the work will cost the county more than $200 million, Henrico Deputy County Manager for Operations Steve Yob told the Citizen.

But CBF and JRA attorneys challenged Novak’s conclusion, filing a motion May 10 for reconsideration on the grounds that a “private, closed-door meeting” didn’t meet the legal definition of “commencement of an enforcement action.”

“If such a private meeting is to be considered adequate, the bar for citizen plaintiffs would be hidden from the public, imposing an undue burden,” they wrote in a challenge to the decision.

The plaintiffs also contend that since Henrico County Manager John Vithoulkas didn’t formally sign the order until Aug. 25, 2021 – two weeks after they notified the county of their intent to file a lawsuit – the DEQ’s prosecution hadn’t actually occurred yet. (The DEQ didn’t finalize the order until Dec. 14 last year – eight days after the CBF and JRA filed their suit.)

Novak disagreed, but following the plaintiffs’ motion for reconsideration gave them until May 27 to depose Chan about his initial enforcement conference call with the DEQ in June 2020. They did so and now have until May 31 to submit a supplemental brief in support of their earlier motion. Henrico then will have until June 14 to file a response to the motion and brief, and the plaintiffs will be able to respond once more by June 20.

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The civil penalties to which Henrico agreed in December required it to pay a fine of $51,920 by mid-January of this year and then to spend $155,760 on the completion of a supplemental environmental project by Oct. 1, 2024 that would include expanding the county’s public wastewater infrastructure to serve certain properties that currently use private septic systems.

The 18 remaining sewer rehabilitation projects Henrico is required to complete involve a variety of upgrades such as sewer pipe replacement, rehabilitation of sanitary sewer lines and relocation of sewer lines along various waterways including Upham Brook, Gillies Creek, Rocky Branch, Little Westham Creek, Almond Creek, Thorps Branch, Horsepen Branch and White Oak Swamp. The enhancements will address issues the aging system currently faces, such as leaky sewer lines.

Those improvements, as well as the ones planned at the water reclamation facility itself, should prepare the county’s system to handle wastewater effectively for decades to come, Yob told the Citizen.

“We believe in cooperation with the DEQ that we’ve got a good program and we’re going to get the facility up to meeting the needs of both the environment and our citizens,” he said.

The facility’s age (it opened in 1989) coupled with unprecedented rainfall (two of the three years during which Henrico had its most recent egregious violations were among the three wettest years in recorded history here, Yob said) created a unique set of circumstances that led to many of the violations documented in the lawsuit.

The suit alleged that between September 2016 and June 2021, 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. Henrico previously was 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 local waterways.

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.

Henrico's planned enhancements to its water reclamation facility include replacing all components of its primary clarifiers (the first filters that remove large wastewater materials), its secondary clarifiers (which remove smaller materials) and its final filters (the last layer of filtration that cleans the water before it is returned to the river), Yob said.

Other enhancements will include the installation of new motors, gear boxes and sludge-processing burners, he said. Much of the new material will be stainless steel, he said, which should last much longer than the current standard steel components in use. One challenge with the process is that the enhancements must be made while the system continues to operate, he said.

“I wish I could say that I could snap my fingers and those would be done, but it’s a little more complicated than that,” Yob said.

Many of the projects already had been identified as critical needs by county officials in the past, Yob said, “but certainly the fact that we now have an agreement with DEQ on a schedule and the actual items we are going to fix does lend some urgency to getting it done.”