Polluters and protectors: Combined sewer system authorities and urban waterway restorations

Natural Resources Journal

Volumn 45, Issue 3, 2005, Pages 539-586

  Bohannon, Paul ^a   Lin, Patricia E ^a  

^a Andrews Kurth LLP ^*

Author keywords

[No Author keywords available]

Indexed keywords

INDUSTRIAL WASTE; POLLUTION; SEWER NETWORK;

EID: 33645285614     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (220)

1. U.S.C. §§ 9601 et seq. (2000).
2. U.S.C. 1251 et seq. (2000).
3. Office of Water, U.S. Envtl. Prot. Agency, Combined Sewer Overflow (CSO) Control Policy 8 (1994) [hereinafter CSO Control Policy].
4. See, e.g., N.Y./N.J. Harbor Estuary Program, Factsheet No. 3: Combined Sewer Overflows in the New York/New Jersey Harbor Estuary 1, available at http://www.hudsonriver.org/hep/pdf/hep_cso.pdf (last visited June 28, 2005).
5. See id.
6. See, e.g., U.S. Envtl. Prot. Agency, Combined Sewer Overflow Management Fact Sheet: Sewer Separation 1 (1999) [hereinafter Sewer Separation Fact Sheet];
7. N.Y./N.J. Harbor Estuary Program, supra note 4, at 1.
8. See Sewer Separation Fact Sheet, supra note 6, at 1;
9. N.Y./N.J. Harbor Estuary Program, supra note 4, at 1.
10. Richard H. Sullivan et al., U.S. Envtl. Prot. Agency, EPA-600/2-77-017d, Sewer System Evaluation, Rehabilitation and New Construction: A Manual of Practice 34 (1977).
11. Id. at 35.
12. Id.
13. U.S. Envtl. Prot. Agency, Report to Congress: Implementation and Enforcement of the Combined Sewer Overflow Control Policy 1-2 (2001) [hereinafter 2001 Report to Congress on CSOs].
14. see id., fig. 1.1,
15. For diagram of combined sewer system structures, 15 and N.Y./N.J. Harbor Estuary Program, supra note 4, at 1.
16. Fed. Water Pollution Control Admin., U.S. Dep't of the Interior, Problems of Combined Sewer Systems 50 (1967).
17. See, e.g., Clinton Bogert Assocs., City of Newark CSO Discharge Characterization Study: Monitoring Program Proposal and Work Plan 4 (1996). The City owns the regulators located in the City, but these regulators are operated and maintained by the PVSC.... Knife gates are remotely operated. When the Plant flow approaches 480 mgd, the PVSC operator closes the gate at one or more of the points of interception until plant flow stabilizes at 480 mgd. The gates are reopened after the rain has ended. The sequencing is based on the operators assessment of the amount of throttling required for the specific rainfall. There are provisions for manual operation of the gates if the telemetry fails.
18. U.S. Dep't of Health, Educ., & Welfare, Pollutional Effects of Stormwater and Overflows from Combined Sewer Systems 1 (1964).
19. See 2001 Report to Congress on CSOs, supra note 11, at 2-2.
20. See id. at 2-2 to 2-3.
21. Office of Wastewater Mgmt., U.S. Envtl. Prot. Agency, Combined Sewer Overflows Demographics, available at http://cfpub.epa.gov/npdes/cso/ demo.cfm (last visited June 15, 2005) [hereinafter CSO Demographics];
22. cf. 2001 Report to Congress on CSOs, supra note 11, at 2-3 (reporting that 772 communities have NPDES permits for CSOs);
23. John Heilprin, EPA Says Early Sewer Systems Below Federal Standards, Nando Times, Jan. 29, 2002 (on file with author) (reporting that 772 communities rely on combined sewer systems).
24. CSO Demographics supra note 17;
25. cf. David Whitman, The Sickening Sewer Crisis, U.S. News & World Rep., June 12, 2000, available at http://www.usnews.com/usnews/news /articles/ 000612/archive_016392.htm (last visited June 28, 2005) (reporting that 42 million people depend on combined sewer systems);
26. 2001 Report to Congress on CSOs, supra note 11, at 2-3 (discussing EPA's 1993 estimation that 43 million people are served by combined sewer systems).
27. 2001 Report to Congress on CSOs, supra note 11, at 2-3;
28. Whitman, supra note 18.
29. Whitman, supra note 18.
30. 33 U.S.C. § 1251(a) (2000).
31. Id.
32. Id. § 1321.
33. See generally id. §§ 1311-1387.
34. Id. § 1342(a).
35. Id.
36. U.S. Envtl. Prot. Agency, NPDES Permit Program Basics Frequently Asked Questions, at http://cfpub1.epa.gov/npdes/faqs.cfm (last visited June 15, 2005).
37. Id.
38. 33 U.S.C. § 1317 (2000).
39. Id.
40. CSO Control Policy, supra note 3, at 1.
41. Id. at 9.
42. Id. at 13-14.
43. See Federal Water Pollution Control Act § 303(d), 33 U.S.C. § 1313 (2000).
44. 40 C.F.R. § 130.7 (2004).
45. Sweeney, supra note 44, at 2004-05;
46. Nagle, supra note 47, at 1511.
47. N.J. Tpk. Auth. v. PPG Indus., Inc., 197 F.3d 96, 105 (3d Cir. 1999)
48. (citing Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281,286 (2d Cir. 1992)).
49. 42 U.S.C. § 9607(a)(1)(2000).
50. Id. § 9607(a)(2).
51. Id. § 9607(a)(3).
52. Id. § 9607(a)(4).
53. Id.
54. United States v. Alcan Aluminum Corp., 964 F.2d 252,266 (3d Cir. 1992).
55. Id.
56. This is not to deny that a defendant, under section 107(b), may seek to escape liability by demonstrating that release and the resulting damages or costs were caused solely by an act of God, an act of war, or a third party who is unreleased to the defendant. Thus, a defendant might escape liability if there is truly no nexus between the defendant's conduct and the release that causes response costs, but as an affirmative defense, it is the defendant who bears the burden of proof on that defense, not the plaintiff, and it will only succeed if the defendant can show, among other things, that the release and the resulting damages are entirely attributable to God, war, or third parties. As indicated infra, sewer system operators have used this defense with mixed results.
57. 42 U.S.C. § 9601(16) (2000).
58. Id. § 9607(a)(4)(C).
59. U.S. Envtl. Prot. Agency, Natural Resource Damages: A Primer, at http:// www.epa.gov/superfund/programs/nrd/primer.htm (last visited July 10, 2005).
60. Id.
61. Id.
62. Superfund: Number and Value of Natural Resource Damage Claims, Hearing Before the House Subcomm. on Water Res. & Env't, Comm. on Transp. & Infrastructure, 104th Cong. 7 (1995) (statement of Peter F. Guerrero, Director, Environmental Protection Issues, Resources, Community, and Economic Development Division) ("To date, natural resource damage settlements have been relatively low-accounting for a small percentage of what responsible parties have agreed to pay for Superfund cleanups. However, federal and state officials told us of three future settlements that could involve hundreds of millions of dollars."), available at http://archive.gao.gov/t2pbat1/154662.pdf (last visited Aug. 25, 2005).
63. See Resource, Cmty., & Econ. Dev. Div., Gen. Accounting Off., Superfund: Outlook for and Experience with Natural Resource Damage Settlements 2 (1996) available at http://www.gao.gov/archive/1996 /rc96071.pdf (last visited Aug. 25, 2005);
64. U.S. Envtl. Prot. Agency, Natural Resource Damage Assessment Sites, at http://www.epa.gov/superfund/programs/nrd/nrdsites.htm (last visited Aug. 25, 2005).
65. 42 U.S.C. § 9601(9)(A) (2000).
66. Westfarm Assocs. Ltd. P'ship v. Wash. Suburban Sanitary Comm'n, 66 F.3d 669, 679-80 (4th Cir. 1995) (rejecting sewer authority's argument that Congress's inclusion of "any pipe into a sewer or publicly owned treatment works" in the definition of "facility" means that Congress intended to exclude sewers and POTWs from the definition).
67. Artesian Water Co. v. New Castle County, 659 F. Supp. 1269, 1280 (D. Del. 1987) ("Proper usage dictates that the phrase 'the owner and operator' include only those persons who are both owners and operators. But by no means does Congress always follow the rules of grammar when enacting the laws of this nation.")
68. (citing United States v. Md. Bank & Trust Co., 632 F. Supp. 573, 578 (D. Md. 1986));
69. see also New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985);
70. United States v. Conservation Chem. Co., 619 F. Supp. 162, 186-87 (W.D. Mo. 1985);
71. United States v. Northeastern Pharm. & Chem. Co., 579 F. Supp. 823, 848-49 (W.D. Mo. 1984).
72. 42 U.S.C. § 9607(a)(4) (2000).
73. Westfarm, 66 F.3d at 678.
74. Id. at 679-80.
75. 42 U.S.C. § 9601(10) (2000). The term "federally permitted release" means (A) discharges in compliance with a permit under section 1342 of Title 33, (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a permit issued or modified under section 1342 of Title 33 and subject to a condition of such permit, (C) continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 1342 of Title 33, which are caused by events occurring within the scope of relevant operating or treatment systems... (J) the introduction of any pollutant into a publicly owned treatment works when such pollutant is specified in and in compliance with applicable pretreatment standards of section 1317(b) or (c) of Title 33 and enforceable requirements in a pretreatment program submitted by a State or municipality for Federal approval under section 1342 of Title 33....
76. Id.
77. Id. § 9607(j).
78. Id. § 9607(b)(3).
79. Lincoln Props., Ltd. v. Higgins, 823 F. Supp.1528,1539-44 (E.D. Cal. 1992).
80. Id. at 1543 ("One who opposes assertion of the third party defense must show something more than a mere contractual relationship.' Thus, a landowner is precluded from raising the third-party defense only if the contract between the landowner and the third party somehow is connected with the handling of hazardous substances.")
81. (quoting Westwood Pharm. v. Nat'l Fuel Gas Distribution Corp., 964 F.2d 85,89 (2d Cir. 1992);
82. see also Shapiro v. Alexanderson, 743 F. Supp.268,271 (S.D.N.Y. 1990).
83. Lincoln Props., 823 F. Supp. at 1543-44.
84. Id. at 1544.
85. Westfarm Assocs. Ltd. P'ship v. Wash. Suburban Sanitary Comm'n, 66 F.3d 669, 682 (4th Cir. 1995).
86. Id. at 674.
87. Id. at 683.
88. Id. at 679 (rejecting argument that "the fact that the Clean Water Act... and the Resource Conservation and Recovery Act... permit certain levels of hazardous materials, including PCE, to be discharged into sewer systems, demonstrates that Congress could not have intended to make sewer systems operators liable for the foreseeable sewer leaking of the PCE which was permitted to be in the pipes in the first place").
89. Cf. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1202-03 (2d Cir. 1992) ("It does not follow that because the environmental risk posed by household waste is deemed insufficient to justify the most stringent regulations governing day-to-day handling that the environmental harm caused when that risk is realized is insufficient to require holding liable those responsible for that harm....").
90. Superfund Program; Interim Municipal Settlement Policy: Request for Public Comment, 54 Fed. Reg.51,071 (Dec. 12, 1989).
91. Id.
92. Id. at 51,074.
93. See Rena I. Steinzor, The Legislation of Unintended Consequences, 9 Duke Envtl. L. & Pol'y F. 95, 108 (1998)
94. (citing Rena I. Steinzor & Linda Greet, In Defense of the Superfund Liability System, 27 Envtl. L. Rep. 10,286 (1998)).
95. Superfund Program; Interim Municipal Settlement Policy: Request for Public Comment,54 Fed. Reg. at 51,074.
96. Id. at 51,074-75.
97. Id. at 51,075-76.
98. U.S. Envtl. Prot. Agency, Announcement and Publication of the Policy for Municipality and Municipal Solid Waste;
99. CERCLA Settlements at NPL Co-Disposal Sites, 63 Fed. Reg. 8197,8198 (Feb. 18, 1998) ("Consistent with the 1989 Policy, the Agency will continue its policy to not generally identify MSW generators/ transporters as PRPs at NPL sites....").
100. Superfund Program; Interim Municipal Settlement Policy: Request for Public Comment, 54 Fed. Reg. at 51,074-75.
101. Id. at 51,075 n.8. The term "site-specific" information refers to information pertaining to a particular Superfund site. "Site-specific" information does not generally include, for example, "general studies" conducted by EPA or other parties which draw general conclusions about whether MSW or sewage sludge typically contain a certain percentage of hazardous substances, unless the "general study" includes "site-specific: information obtained from the PRP or superfund site in question.
102. Id.
103. Id. at 51,074. The term "municipal solid waste" refers to solid waste generated primarily by households, but may include some contribution of wastes from commercial, institutional and industrial sources as well. As defined under the Resources Conservation and Recovery Act (RCRA), MSW contains only those wastes which are not required to be managed as hazardous wastes under Subtitle C of RCRA (e.g., non-hazardous substances, household hazardous wastes (HHW), or small quantity generator (SQG) wastes). Although the actual composition of such wastes varies considerably at individual sites, MSW is generally composed of large volumes of non-hazardous substances (e.g., yard waste, food waste, glass, and aluminum) and may contain small quantities of household hazardous wastes (e.g., pesticides and solvents) as well as small quantity generator wastes.
104. 102 Cong. Rec. E1981 (1991) (extension of remarks of Rep. Torricelli).
105. 103 Cong. Rec. S5947 (1993) (statement of Sen. Lautenberg).
106. Id.
107. 103 Cong. Rec. E277 (1993) (extension of remarks of Rep. Torricelli).
108. The Toxic Cleanup Equity and Acceleration Act of 1991, S. 1557, 102d Cong. § 3(1) (1991).
109. Id. § 3(m).
110. Id. § 3(n).
111. 103 Cong. Rec. S5947 (1993) (statement of Sen. Lautenberg).
112. S.343,103d Cong.(1993);
113. H.R.870, 103d Cong.(1993).
114. The Toxic Cleanup Equity Act of 1993, S. 965, 103d Cong. § 3(c) (1993).
115. See Steinzor, supra note 91, at 103 (noting that Rep. James Florio, who sponsored CERCLA in the House of Representatives, "clearly understood that the legislation applied to state and local governments").
116. Peter R. Hinckley, State and Municipal Sewer System Authority Liability Under CERCLA: Who Should Pay for the Cleanup of Hazardous Industrial and Commercial Sewer Discharges?, 22 B.C. Envtl. Aff. L. Rev. 89, 126 (1994) ("By exempting a municipal sewer system authority even though it may be directly responsible for contamination, the Equity Act gives municipalities too much protection. The Equity Act's broad exemption ...would...permit a responsible party to avoid liability.").
117. Scott Allen, Closing in on a Healthy Harbor, B. Globe, Mar. 15, 2000, at A1
118. Id. ("Condoms were 'Charles River whitefish,' while tampon applicators were 'beach whistles.'").
119. Judith E. McDowell, Contaminated Sediments in the Marine Environment, NorEaster, 1999, at http://seagrant.gso.uri.edu/noreaster/noreaster99/ Noreaster99.html (last visited Aug. 28, 2005).
120. Allen, supra note 111.
121. Id. ("[I]ts treatment plants on Deer Island and Nut Island, which were so poorly designed they flooded during modest rainstorms, [sent] raw sewage directly into the harbor.").
122. Id. ("The MDC and Governor Michael Dukakis tried for years to build a less costly treatment plant.").
123. Id. ("[A]ttorney Bill Golden in 1982...accidentally jogged through grease and other sewage debris that had floated onto Wollaston Beach from the nearby Nut Island treatment plant. Incensed, Golden sued the Metropolitan District Commission, which ran the sewer system before the MWRA. It was the first of several suits aimed at forcing a cleanup of the harbor.").
124. Mass. Water Resources Auth., The Boston Harbor Case, MWRA Online, June 21, 2005, at http://www.mwra.state.ma.us/02org/html/court.htm (last visited Aug. 28, 2005).
125. Allen, supra note 111. [T]he US government had stopped funding sewage plant construction, leaving customers of the newly formed MWRA to foot the multi-billion-dollar bill.... [T]he MWRA had the difficult task of doubling customers' rates in the agency's first four years, while trying to find a location for unwanted sewage treatment facilities....In 1992, the MWRA ended double-digit rate increases through budget cuts and federal aid secured by the state's congressional delegation.
126. Id.
127. See Mass. Water Resources Auth., Combined Sewer Overflows, MWRA Online, at http://www.mwra.state.ma.us/03sewer/html/sewcso.htm (3 Phase CSO Plan Overview) (last visited Aug. 28, 2005).
128. Id.
129. Id.
130. News Release, Mass. Water Resources Auth., Boston Harbor Welcomes People "Back to the Beaches" (Aug. 21, 1998) (on file with author) [hereinafter MWRA News Release].
131. Id.
132. News Release, The Virtual Flyshop, Inc., Boston Harbor Clean-up Complete, Expansion Talks Begin (Aug. 31, 2000) (on file with author).
133. MWRA News Release, supra note 123 ("Cooperation is the key to ensuring that Boston Harbor resources remain.... With environmental groups keeping a watchful eye, state agencies making large scale improvements, and individual contributions, Boston Harbor will continue to be an environmental success story....").
134. U.S. Envtl. Prot. Agency & Or. Dep't of Envtl. Quality, Portland Harbor 1 (Dec. 2000), available at http://yosemite.epa.gov/R10 /CLEANUP.NSF/ph/ fact+sheets/$ FILE/1200porthar.pdf (last visited Aug. 29, 2005) [hereinafter Portland Harbor Listing Brochure].
135. Id.;
136. U.S. Envtl. Prot. Agency, NPL Site Narrative for Portland Harbor, at http://www.epa.gov/oerrpage/superfund/sites/npl/nar1606.htm (last visited Aug. 29, 2005) [hereinafter Portland Harbor Site Listing];
137. U.S. Envtl. Prot. Agency, Fact Sheet: Portland Harbor 1 (Apr. 1999), available at http://www.epa.gov/r10earth/offices/oec/ptlndh3.pdf (last visited Aug. 29, 2005) [hereinafter Portland Harbor Fact Sheet].
138. Portland Harbor Listing Brochure, supra note 127, at 1;
139. Portland Harbor Fact Sheet, supra note 128.
140. Kim Murphy, Polluted Willamette River Sullies Image of a Green Oregon, L.A. Times, Apr. 8, 2000, available at http://www.commondreams.org/ headlines/040800-03.htm (last visited Aug. 28, 2005).
141. Portland Harbor Site Listing, supra note 128.
142. Id.
143. Cf. Portland Harbor Listing Brochure, supra note 127, at 2.
144. U.S. Envtl. Prot. Agency & Or. Dep't of Envtl. Quality, Portland Harbor: Superfund Fact Sheet 2 (May 2001), available at http:/ /yosemite.epa.gov/ R10 /CLEANUP.NSF/ph/fact+sheets/$FILE /Portland%20Harbor.pdf (last visited Aug. 29, 2005).
145. Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 982 (9th Cir. 1995).
146. Id.
147. Vera Catz, State of the City Address 2001 (Jan. 26, 2001) (on file with author).
148. See Bureau of Envtl. Servs., City of Portland, Willamette River Projects: Reducing Combined Sewer Overflows (July 26, 2001) (on file with author) ("Portland's CSO program is on schedule and within budget. By the end of 2000, Portland will remove about 53% of the CSO overflow volume from the Willamette River and Columbia Slough and will have spent about $300 million dollars. Portland has already controlled or eliminated eight Willamette River CSO outfalls.").
149. U.S. Envtl. Prot. Agency, NPL Site Narrative for Lower Duwamish Waterway, at http://www.epa.gov/superfund/sites/npl/nar1622.htm (last visited Aug. 29, 2005) [hereinafter Lower Duwamish Waterway Site Listing].
150. Id.
151. Int'l Inst. for Geo-Information Sci. & Earth Observation, Conflict Resolution and Collaborative Spatial Decision-Making, Case Study Background: the Duwamish Waterway (June 29, 2001) (on file with author).
152. Lower Duwamish Waterway Site Listing, supra note 139
153. Duwamish Coalition, Overview of the Cleanup Process, § 2.1 Regulatory Jurisdiction - Who's in Charge of Site Cleanups (June 29, 2001) (on file with author).
154. Id. § 2.2, tbl. 2-3;
155. Superfund Cleanup Proposed Along Duwamish River, The Sun (Bremerton, Wash.), Dec. 7, 2000, at http://web.kitsapsun.com/news/2000/december/ 120789227.html (last visited July 15, 2005));
156. Pam Johnson, Lower Duwamish River Likely to Become Superfund Site, Sound & Stratis (People for Puget Sound, Seattle, Wash.), Dec. 2000, at 6, available at http://pugetsound.org/index/cms-filesystem-action?file=news letters/sound§raits_2000_12.pdf (last visited Aug. 29, 2005).
157. Superfund Cleanup Proposed Along Duwamish River, supra note 144 ("Boeing resisted because company executives maintained that the three-year clock had already run out, while the trustees believe the clock has not started yet ....")
158. see also Johnson, supra note 144 ("Negotiations failed when the Boeing Company could not agree to language protecting the rights of the Natural Resources Trustees....").
159. See, e.g., Wastewater Treatment Div., King County Dep't of Natural Res. & Parks, Norfolk CSO Sediment Remediation Project, at http:// dnr.metrokc.gov/WTD/duwamish/norfolk.htm (last visited Aug. 28, 2005) (discussing Norfolk CSO cleanup project).
160. See United States v. City of Seattle, No. C90-395 WD (W.D. Wash. 1991).
161. Executive Off. of Envtl. Aff., Merrimack River Watershed, at http:// www.mass.gov/envir/water/merrimack/merrimack.htm (last visited Nov. 30, 2005).
162. Lowell Nat'l Historical Park, U.S. Dep't of the Interior, The Merrimack River 2, available at http://www.nps.gov/lowe/River.pdf (last visited Aug. 29, 2005).
163. Id.
164. Id. ("Sometimes diseases [would spread] downstream from one river city to another.").
165. Id. ("Manchester, New Hampshire, stopped regularly discharging raw sewage only in 1992.").
166. Id. ("Salt, grease, trash, and pesticides run off into the river from cities and suburbs alike....[P]oor monitoring allows violation of toxics regulations....Aging treatment plants need updating. Riverside vegetation buffers are often lacking. And...mercury is found in the Merrimack [River].").
167. Id.
168. U.S. Envtl. Prot. Agency, A Phase I Inventory of Current EPA Efforts to Project Ecosystems 157-60 (1995), available at http://www.epa.gov/docs/ ecoplaces/ecosystems.pdf (last visited July 15, 2005).
169. Press Release, U.S. Envtl. Prot. Agency, EPA Orders Lawrence Sewer District to Control Sewage Discharged into Merrimack (June 25, 1999), available at http://www.epa.gov/NE/pr/1999/062599a.html (last visited July 15, 2005);
170. Roger Talbot, Research of River Needed, Cities Say, Union Leader (Manchester, N.H.), Apr. 26, 2000, at A1, available at http:// www.theunionleader.com/pages/water9.htm (last visited July 15, 2005).
171. Talbot, supra note 156.
172. Id.
173. Id. (quoting Mayor James A. Rurak of Haverhill, Massachussetts).
174. Communities Band Together to Study Pollution in Merrimack River, Foster's Daily Democrat (Dover, N.H.), July 6, 2001, available at http:// premium1.fosters.com/2001/news/july/06/nh0706a.htm (last visited July 15, 2005) ("Nashua and Manchester in New Hampshire and Lowell, Lawrence and Haverhill in Massachusetts will each pay $100,000 to the river study. That matches a $500,000 grant from the U.S. Army Corp of Engineers.").
175. Press Release, U.S. Senate Committee on Environment and Public Works, Smith Requests Funding for Environmental Protection Agency Water Projects in Manchester, Nashua and Jaffrey (June 1, 2001) (on file with author);
176. see also N.H. Dep't of Envtl. Servs., WD-WEB-9, Environmental Fact Sheet: Combined Sewer Overflows (CSOs) (2003), at http:// www.des.state.nh.us/factsheets/wwt/web-9.htm (last visited July 15, 2005) ("In May of 1995, the City of Manchester completed its Long Term Control Plan (LTCP) for CSOs....In 1999, the City began implementing Phase I of its CSO Facility Plan that will take approximately 10 years to complete....In 1992, the City of Nashua completed a study of CSOs....The City has recently begun the design and construction of combined sewer separation projects to separate all sources of stormwater flow into its collection system.").
177. Press Release, supra note 161.
178. Talbot, supra note 156.
179. Merrimack River Watershed Council, Inc., About Us (July 31, 2001) (on file with author).
180. About the Passaic, at http://www.passaicriver.com/about.htm (last visited Aug. 29, 2005).
181. Id.
182. Highlands Task Force Action Plan, A Report to Governor James E. McGreevey and the New Jersey Legislature 26 (Mar. 2004) (on file with author).
183. Id.
184. Timothy J. Iannuzi et al., A Common Tragedy: History of an Urban River 44-47 (2002).
185. Id. at 49.
186. Div. Sci., Research & Tech., Public Meeting - Responses to Comments & Questions, at http://www.state.nj.us/dep/dsr/response-other.htm (last updated July 2, 2004).
187. See generally Killam Assocs., Passaic Valley Sewerage Comm'rs, Interim Sewer System Inventory and Assessment Report for the Towns of Harrison and Kearny, the Borough of East Newark, and the Cities of Newark and Paterson 2,4,6,8-9 (Feb. 1996) (unpublished report, on file with author) [hereinafter Sewer System Inventory].
188. Norman F. Brydon, The Passaic River: Past, Present, and Future, 278-79 (1974).
189. Passaic Valley Sewerage Comm'rs, Overview Tour of the Passaic Valley Sewerage Commissioners 330 Million Gallons Per Day Secondary Wastewater Treatment Plant, at http://www.pvsc.com/about/about.htm (last visited Aug. 29, 2005).
190. See id.;
191. Clinton Bogert Assocs., supra note 13, at 4.
192. S.A. Lubetkin, Chief Engineer's Ann. Rep. to Passaic Valley Sewerage Comm'rs., 1971, at 1 [hereinafter 1971 Annual Report].
193. Id.
194. Id. at 58.
195. Memorandum from George T. Cowhead, Jr., Newark office, New Jersey Dep't Envtl. Protection to Central File of New Jersey Dep't Envtl. Protection (Dec. 5, 1966) (on file with author).
196. Sewer System Inventory, supra note 172, at V-14.
197. See id.
198. Clinton Bogert Assocs., City of Newark, New Jersey Feasibility Study: Pollution Abatement Program (revised Jan. 24, 1979) (on file with author).
199. Charles A. Manganaro Consulting Eng'rs, PC, Passaic Valley Sewerage Comm'rs, Combined Sewer System Facilities Inventory and Assessment Analysis 3-2 to 3-21 (Feb. 1996).
200. Sewer System Inventory, supra note 172, at V-15 (citing data from 1976 inspections).
201. Id. at V-14.
202. Elson T. Killam Assocs., Inc., Passaic Valley Sewerage Commissioners' Combined Sewer Overflow Facility Plan, Phase I, at 1-3, 8-5 (Dec. 1983).
203. See Charles A. Manganaro Consulting Engineers, PC, supra note 183, at 4-1.
204. Michael D. Andolino, Weekly Summary of Inspections by Inspectors, Week of February 27, to March 2, 1956, at 3 (1956) (Passaic Valley Sewerage Commissioners internal report).
205. Killam Assocs., City of Newark: Sewer System Inventory and Assessment Report, app. A, inspection rep. 022 (Feb. 1996) (unpublished report, on file with author).
206. Ass'n Metro. Sewerage Agencies, Approaches to Combined Sewer Overflow Control: A CSO Assessment Report (1994).
207. See 1971 Annual Report, supra note 176, at 130-31.
208. Elson T. Killam Assocs., Inc., Passaic Valley Sewerage Commission, Heavy Metals Source Determination Study, in Compliance with Ocean Dumping Permit No. II NJ003 Interim Section 9(c), § VII (Aug. 15, 1978) (unpublished report, on file with author).
209. U.S. Envtl. Prot. Agency, EPA-440/1-79-300, Fate of Priority Pollutants in Publicly Owned Treatment Works: Pilot Study (1979).
210. CFM, Inc., Passaic Valley Sewerage Commission, Report upon Investigation of Organic Priority Pollutants in the Influent to the Passaic Valley Sewerage Commissioners Treatment Plant 8-10 (May 1986).
211. U.S. Envtl. Prot. Agency, National Sewage-Sludge Survey (Oct. 1989).
212. See Passaic Valley Sewerage Commissioners, Domestic Wastewater Sludge Report (Dec. 1991-Jan. 1992).
213. Elson T. Killam Assocs., Pasaic Valley Sewerage Comm'rs, Report upon Overflow Analysis (1976).
214. Total Maximum Daily Loads (TMDLs) for Copper, Mercury, Nickel and Lead in New York-New Jersey Harbor, 59 Fed. Reg. 41,293 (Aug. 11, 1994).
215. U.S. Envtl. Prot. Agency, Total Maximum Daily Loads: 2002 Section 303(d) List Fact Sheet for New Jersey, at http://oaspub.epa.gov/waters/ state_rept.control?p§ate=NJ (last visited July 15, 2005).
216. U.S. Envtl. Prot. Agency, Region 2 Superfund: Passaic River Study Area, at http://www.epa.gov/region02/superfund/pass_ou2.htm (last visited Aug. 30, 2005).
217. See Passaic River Restoration Initiative, Fact Sheet, at http:// www.prri.org (last visited Aug. 30, 2005);
218. U.S. Envtl. Prot. Agency, Land Revitalization: Urban Rivers Restoration Initiative, at http://www.epa.gov/oswer/landrevitalization/urbanrivers (last visited Nov.1,2005).
219. U.S. Envtl. Prot. Agency, Region 2 Superfund: Passaic River Sediment Data, at http://www.epa.gov/Region2/superfund/sedsamp.htm (last visited Aug. 30, 2005).
220. Cf. Passaic River Restoration Initiative, supra note 201.