Bear Creek Recovery board members believe the city of Molalla has discharged pollutants into Bear Creek

In a second letter of intent, Bear Creek Recovery, a Molalla conservation group, provided notice last week to the city of Molalla of its intent to initiate a suit against the city, pursuant to the “Clean Water Act.”

The issue concerns the city’s wastewater treatment facility on Toliver Road, which is covered under the Oregon DEQ-issued National Pollutant Discharge Elimination System (“NPDES”) Waste Discharge permit. The conservation group sent the first warning letter to the city in January of its intent to sue.

The letter dated March 4 from Crag Law Center, a Portland-based lawfirm representing Bear Creek Recovery (BCR), states that the city of Molalla “has violated and continues to violate the express terms of the permit,” which sets specific requirements that the city must follow to ensure the protection of Oregon’s waters. According to the letter, failure to comply with the permit requirements and conditions is a violation of the Clean Water Act and is grounds for an enforcement action.

Bear Creek Recovery is a non-profit organization formed to advocate for and protect the environment of Bear Creek and the surrounding community. According to the letter, the group is working to protect the Bear Creek watershed from threats to environmental and public health.

Members of the BCR board of directors are Jeff Lewis, chairman; Harlan Shober, vice chairman; Susan Hansen, secretary; Patricia Ross, treasurer; Pat Conley and Mitchell Ross.

Hansen said the board believes that the city has discharged pollutants into Bear Creek, and the board is investigating suspected violations further. She said Bear Creek Recovery has asked for more information from DEQ and the city, but the group is filing the notice because they have questions about whether or not the former outfall at the treatment plant has been capped or if there has been discharge into Bear Creek.

The March 4 notice supplements a 60-day notice that the law firm sent to the city on behalf of Bear Creek Recovery Jan. 24. According to the letter, the violations identified in the current notice will be joined in any pending suit brought by BCR pursuant to the first notice upon the running of the 60-day statutory period, beginning upon receipt of the March 4 letter.

The letter states that unless the city “takes the steps necessary to remedy ongoing violations” of the Clean Water Act and the NPDES permit, BCR intends to file suit against the city of Molalla in the U.S. District Court immediately following the expiration of the required 60-day notice period, seeking injunctive relief and civil penalties in the amount of $37,500 per day per violation and for any additional, similar violations that BCR may discover subsequently.

The city was asked to specify any violations outlined in the notice that did not occur or were stated incorrectly.

Based on information available to Bear Creek Recovery, “the city has violated its NPDES

Permit by discharging wastewater effluent to Bear Creek through the discontinued outfall location.” The letter states that BCR has reason to believe the city discharged into Bear Creek in violation of its permit on at least the following dates:

• August 28, 2013

• August 29, 2013

• September 1, 2013

• September 3, 2013.

According to the letter, “Bear Creek Recovery believes these unpermitted discharges were necessitated by the pervasive violations cited in the January 24 notice regarding the city’s failure to properly maintain its facility and to reduce the inflow and infiltration problems in the system as required by the NPDES Permit.”

The first notice letter sent in January included detailed information regarding what Bear Creek sees as “the city’s inability to keep up with the influent levels to facility creating a risk of lagoon failure or overflow.”

The letter states that “because the discontinued Bear Creek outfall remains operational and because the city continues to fail to properly maintain and operate the facility in compliance with the permit, the city has violated and continues to violate the Clean Water Act.”

According to the March 4 letter, the “violations” are based upon information currently available to BCR.

“The city of Molalla has consistently violated and continues to violate the Clean Water Act and the NPDES Permit,” the letter states. “BCR intends to sue for all violations, including those yet to be uncovered and those committed after the date of the Notice of Intent to Sue. Due to the chronic and persistent nature of the City’s violations, there is more than a reasonable likelihood of ongoing violations in the future. However, litigation is not Bear Creek Recovery’s preferred method of resolving this matter. The purpose of the 60-day notice provision in the CWA is for alleged violators of the law to come into compliance, therefore avoiding the need for litigation.”

Contract Publishing

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