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Pittsburgh Flushes Sewer Authority Lawsuit

(CN) - The Pittsburgh Water & Sewer Authority may dismiss claims that a $15 million redevelopment project violates the Clean Water Act, a federal judge ruled.

The Pennsylvania Department of Environmental Protection issued a permit to Pittsburgh and its Water & Sewer Authority in September 2004, authorizing storm-water discharge from small municipal storm sewer systems into the Monongahela, Allegheny and Ohio Rivers.

Pittsburgh violated its own ordinances to comply with the permit, according to Citizens for Pennsylvania's Future (PennFuture), a nonprofit environmental advocacy group.

Though the laws of 2007 and 2010 required storm-water management site plans for publicly funded development projects, a Buncher Co. plan for real estate near the Allegheny River strayed from those requirements, PennFuture claimed.

The project, for which Pittsburgh received a $15 million assistance grant from Gov. Tom Corbett, was approved as consistent with Pittsburgh's storm-water management regulations on May 3, 2012, according to PennFuture.

PennFuture claims it sent Pittsburgh an expert report of the plan's failure to comply with permit ordinances, asking for the withdrawal or suspension of the May 3 consistency letter, and for a meeting with the city and Buncher to resolve the issues.

The environmentalists then sued Pittsburgh, alleging that in failing to enforce the ordinances, the city violated the permit, and therefore the Clean Water Act and Pennsylvania Clean Streams Law.

U.S. Magistrate Judge Robert Mitchell refused to dismiss the claims against the Water & Sewer Authority in December 2012.

Mitchell later dismissed the authority's third-party complaint against Buncher, which alleged breach of contract for refusing to defend the authority in connection with PennFuture's lawsuit.

The defendants moved for summary judgment on PennFuture's complaint, arguing that the 2010 ordinance is not a requirement for compliance with the permit.

Mitchell partially granted the defendants' motion on April 7, finding that violating the 2010 ordinance does not violate the permit itself.

"Looking at the plain language of the [National Pollution Discharge Elimination System] NPDES permit, as is required, it in no way imposes a condition that if the ordinances are violated that this results in a violation of the permit itself," the opinion in Pittsburgh states. "Nowhere in the permit does it explicitly say that it is a violation for a failure to enforce an ordinance enacted pursuant to the permit's terms. We will not implicitly read this requirement into the permit, which sets forth various ways in which the permit is violated or the action or inaction of the permittee would impose penalties on the permittee. Although the permit states 'Any storm-water management program approved by the [Pennsylvania Department of Environmental Protection] DEP becomes part of the applicant's Authorization to Discharge[,] under this permit,' it does not say that a violation of such an ordinance enacted thereunder constitutes a violation of the permit."

The court refused to hear the purported violations of the Pennsylvania Clean Streams law.

"The parties have not briefed this issue under Pennsylvania law, this court has not determined the validity of such a claim, the discovery conducted at this point can be used in a state court proceeding, and the claim involves inherent state law interests (the Commonwealth's right to monitor and regulate its own waters) to which there are no extraordinary circumstances to justify exercising supplemental jurisdiction over," Mitchell wrote.

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