The Conservation Law Foundation (CLF) has filed a civil suit in U.S. District Court under the citizen suit enforcement provisions of the Federal Water Pollution Control Act against Murray’s Auto Recycling of Londonderry.
The suit was filed April 30 and seeks declaratory judgment, injunctive relief, and “other relief the Court deems appropriate” to correct Murray’s alleged violations of the federal Clean Water Act.
According to CLF, those violations “include continuous and ongoing unauthorized discharges of polluted stormwater runoff” from Edward J. Dudek’s Murray’s Auto Recycling, Inc.’s automobile salvage yard facility at 55 Hall Road, as well as his alleged failure to comply with the U.S. Environmental Protection Agency’s (EPA) Multi-Sector General Permit for Stormwater Discharges Associated With Industrial Activity (MSGP).
The suit alleges that Dudek violated Section 301(a) of the Clean Water Act, which prohibits the discharge of any pollutant into waters of the United States from a “point source,” unless the discharge complies with various sections of the Clean Water Act. Among other things, that Section prohibits discharges not authorized by, or in violation of, the terms of a valid National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to the Clean Water Act.
The suit alleges Dudek is allowing rainwater to trickle off the cars in his auto recycle yard and enter surface water without a permit.
The suit also alleges that Dudek does not have the necessary permit and notes that industrial dischargers are required to file a complete and accurate Notice of Intent to be covered by the MSGP.
The suit states that industrial dischargers must also develop and implement a Stormwater Pollution Prevention Plan prior to filing a Notice of Intent. The plan must identify and evaluate sources of pollutants associated with industrial discharges from the facility, and identify and implement effective Best Management Practices to control pollutants in stormwater discharges in a manner that achieves the substantive requirements of the permit.
CLF had provided Dudek with a 60-day notice of intent to take legal action on Jan. 27. The notice, sent by certified mail, is a “Notice of Violations and Intent to File Suit.”
That letter alleges that Dudek’s business is discharging stormwater “directly associated with the auto salvage site at 55 Hall Road…to the waters of the4 United States with a permit.” It also alleges Dudek Auto failed to obtain coverage under any Clean Water Act permit. It explains that stormwater comes from “precipitation events” and flows across the ground and pavement. “Stormwater from industrial facilities, contaminated with pollutants, is then conveyed into nearby waterbodies,” the letter states, adding that Dudek’s business is required to apply for coverage under a Clean Water Act discharge permit “in order to discharge lawfully.”
The letter notes that each day the facility is operated with permit coverage or discharges stormwater without a permit is a separate violation of the Clean Water Act., and can result in a penalty of up to $32,500 per day for each violation between March 15, 2004 and Jan. 12, 2009, and up to $37,500 per day for each violation occurring after Jan. 12, 2009. CLF intends to seek the full penalties allowed.
During the 60-day notice period, CLF stated its willingness to discuss remedies. The letter was signed by Attorney Zachary Griefen of the CLF in Montpelier, Vt. He also filed the lawsuit.
Storm water leaving the auto junkyard is alleged to be polluting Little Cohas Swamp, Little Cohas Brook, and the Merrimack River, all of which are protected by the Clean Water Act, according to Londonderry Conservation Commission member Mike Speltz.
But according to Dudek, it’s all about money.
“They’re going after junkyards all over the country looking for money,” he claimed on Tuesday, May 27. “It’s just not me, it’s all over the place. There’s actually two other junkyards in New Hampshire and I know of at least three others in Massachusetts that they just settled with. I was speaking with somebody from American Metals Market, a trade magazine from around the country, and they were on the phone with me today and she says they’re all over the place suing everybody. It’s not just junkyards – my attorney also represents a sand and gravel company and they got the same exact lawsuit, only they changed the words from auto recycling to sand and gravel.”
Dudek said that if any water runs off a business property to a U.S. waterway, the company could be subject to this lawsuit.
Dudek asked why he never received a letter asking where his “water runoff” permit was. “If they was so concerned that this was a problem that we didn’t send in our permits, why didn’t they send us a letter?” he said of the EPA. “If they had sent us a simple letter saying, ‘Hey where’s your water runoff permit?’ I would have got right on it. We have the DES on our property all the time, doing test wells, checking our wells, and making sure everything’s good, and then we get this. We try to do everything the right way here. It’s very aggravating, very frustrating.”