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CITIZENS COORDINATING COMM. ON FRIENDSHIP HTS.

May 24, 1983

CITIZENS COORDINATING COMMITTEE ON FRIENDSHIP HEIGHTS, INC., et al., Plaintiffs
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant v. THERMO CONTRACTING CORPORATION, Third Party Defendant


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE

 I. Background to this Lawsuit

 This action was filed under the citizen suits provision of the Clean Water Act (the Act), § 505, 33 U.S.C. § 1365 (1976), challenging the unauthorized discharge of oil and solids into the Little Falls Branch stream by the Washington Metropolitan Area Transit Authority (WMATA). Plaintiffs contend that WMATA's failure to obtain discharge permits violated sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§ 1311, 1342.

 Section 301(a) of the Act, 33 U.S.C. § 1311(a), provides:

 
Except as in compliance with this section and section [] . . . 1342 . . . of this title, the discharge of any pollutant by any persons shall be unlawful.

 Section 1342 establishes a national pollutant discharge elimination system (NPDES) to allow discharge of pollutants, notwithstanding Section 1311(a), to holders of NPDES permits. Section 505 of the Act, 33 U.S.C. § 1365, permits citizens, after giving 60 days notice, to commence a civil action against any person, including a governmental instrumentality or agency, "who is alleged to be in violation of (A) an effluent standard or limitation under this chapter . . . ."

 In January 1982, plaintiffs presented notice of the claimed violations and intent to sue to WMATA, WMATA's contractors, the owners of the Mazza Gallerie shopping center at 5300 Wisconsin Avenue, and the appropriate government agencies, alleging that WMATA's discharge of pollutants without an NPDES permit violated the Act. In addition, plaintiffs, ultimately joined by the owners of the Mazza Gallerie, alleged common law nuisance and negligence causes of action against WMATA for the discharges and odors which deprived plaintiffs of use and enjoyment of the stream and its environs, including parkland, yards, homes and the Mazza Gallerie shopping center.

 The unauthorized discharges came from a WMATA bus yard and the construction site of a subway tunnel along Wisconsin Avenue. Construction of the subway tunnel created cement and rock dust which was discharged, along with diesel fuel, into Little Falls Branch near the intersection of Drummond Avenue and Wisconsin Avenue. The diesel fuel seeped into the subway tunnel from an underground plume of oil formed by leaking underground storage tanks at WMATA's Wisconsin Avenue bus yard. Diesel fuel from this plume also seeped into a sump in the basement of the Mazza Gallerie, from which it was pumped into Jennifer Run Storm Sewer. The oil ultimately entered Little Falls Branch downstream from the tunnel discharge. Oil contained in the runoff from the bus yard and from inadequately run oil/water separators at the bus yard was also discharged into the storm sewer.

 Prior to receipt of the notification, WMATA was aware of the discharge problems and had undertaken a few remedial steps to abate the pollution. It had begun construction of an oil/gravity separator at the tunnel outfall designed to achieve an effluent of 30 mg./1, dug exploratory wells at the bus yard for recovering oil, and recognized responsibility to the Mazza Gallerie for underground oil seepage into its basement. WMATA provided many more commitments to clean up Little Falls Branch in the course of this litigation. See generally, Consent Decree between Plaintiffs and Defendant (filed Oct. 4, 1982); Declaration of Jeffrey G. Miller, paras. 22, 40 (filed Feb. 4, 1983). In contrast to WMATA's original position, a principal objective of the Consent Decree was to eliminate the odor caused by the discharge. Id. at Article VII.

 II. Negotiations and Injunctive Relief

 On March 15, 1982, plaintiffs filed this action. The parties began negotiations to reach a consent decree, but reached an impasse in June 1982 over technical solutions, control of odor, and award of damages and penalties. Several settlement conferences were held in chambers during the summer of 1982.

 In June 1982, plaintiffs sought a preliminary injunction to halt the proposed resumption of a washdown of the subway tunnel track drain which had resulted previously in milky white, sediment-laden discharges into Little Falls Branch. The Court granted a temporary restraining order on June 16 to halt the planned washdown. On June 24, the Court granted a preliminary injunction which permitted the ...


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