By David Ball
Staff Writer
Amid reports of toxic algae blooms once again being sighted along parts of the St. Johns River, the St. Johns Riverkeeper announced Wednesday it was suing JEA over years of unmitigated sewage discharge into the river.
“We see continuing violations,” said Riverkeeper Neil Armingeon at the morning press conference in Riverside. “We’re talking 8.3 million gallons of raw material, most of it sewage ... We want JEA to operate these facilities in a legal way.”
Riverkeeper, which is the name of the non-profit group as well as the title of head advocate Armingeon, filed the suit in U.S. District Court Monday and claimed JEA’s Buckman and Arlington East wastewater treatment facilities continually violated the federal Clean Water Act.
Filing the exact same suit Wednesday was the Public Trust Environmental Law Institute of Florida, another non-profit group that recently partnered with Riverkeeper to produce a “Lower St. Johns River Compliance Report” detailing the biggest violators of the Clean Water Act. Public Trust President Warren Anderson said these lawsuits were the next logical step.
“There’s violation after violations after violation for two and a half years,” said Anderson. “I think it’s a very significant lawsuit against a very significant polluter.”
Riverkeeper General Counsel Michael Howle said his group actually sent notices of the alleged violations and of the group’s intent to sue in 2005 and again in 2006, far beyond the 60-day notice required under the Clean Water Act, but received no response from JEA.
“We invite JEA to start a dialogue on how this can be addressed,” said Howle. “But we’re going to follow the path through the courts until that happens. So far they’ve ignored us.”
JEA representatives did not return calls for comment on Wednesday. The Office of General Counsel would be tasked with defending JEA in court, although Ernst Mueller, head of litigation, and Tracy Arpen, head of environmental law, said they hadn’t seen or heard of the lawsuit yet.
“We look at the allegations,” Mueller said, “and we need to ascertain to what degree if any they are true. Normally, JEA is involved diligently in dealing with the EPA and Department of Environment Protection in an ongoing basis relating to these matters. We have to find out what happened and respond.”
Howle said the city will have 20 days to respond once it is served the notice. He said the federal case could take several years to resolve.
“We’re asking for civil penalties (fines) to be imposed,” said Howle. “We are also asking the judge to declare these are violations of the Clean Water Act and compel JEA to come up with a plan to resolve them.”
This isn’t the first time the Riverkeeper has sued JEA. In 2004, Howle, then a legal intern, and other Riverkeeper members discovered a broken JEA pipeline spewing effluent into a section of the river the media dubbed “Condom Creek” due to such floatables rising to the surface.
Riverkeeper sued, and JEA settled the case by repairing the pipe and paying hundreds of thousands of dollars for in-kind services such as environmental studies and vessel pump-outs for the Super Bowl in 2005.
In the current suit, the Riverkeeper claims the two JEA facilities experienced a total of 207 illegal discharges of raw sewage between 2001 and 2007, resulting in 8.3 million gallons of waste dumping into area waterways.
But the apparent Clean Water Act violations are just a part of the problem, Riverkeeper officials said. Another key issues is the DEP’s apparent failure to properly enforce and penalize these violations.
“Under the Clean Water Act, we are bringing the case directly against the polluter,” said Howle. “But in a lot of ways, DEP and their actions are being questioned.”
The groups’ compliance report stated that DEP allowed some JEA wastewater treatment facilities to operate with a “significantly out of compliance” designation for more than a year without penalty.
DEP Spokeswoman Jill Johnson hadn’t seen the report, but she said “we stand behind our enforcement record.”
Johnson provided the latest enforcement data for the two facilities named in the lawsuit, and it showed that $45,000 was assessed to JEA for a leak at the Arlington East facility that released 5 million gallons of wastewater into Hogpen Creek near the end of 2005. Total fines in 2006 were nearly $80,000 for six sewage spills, including some at Arlington East and Buckman.
Recently, DEP Secretary Michael Sole announced increased penalties and an overall “tougher stance” on the most serious environmental violations statewide. Johnson said the announcement was unrelated to the Riverkeeper report.
Still, Howle said his group fears these fines are simply associated with the cost of doing business for JEA and many of the largest polluters. And now, the only recourse is to bring them to court.
“One, the fines are marginal, and two, that is not the intent of the law,” said Howle. “We feel unless judicial action is taken, this won’t stop.”