Feds, Virginia allege Worcester contractor contaminated waterways

By Nicholas Malfitano | Apr 21, 2015

PHILADELPHIA – The United States and the Commonwealth of Virginia have filed litigation against a contractor and materials producer they allege contaminated waterways in Pennsylvania, Maryland and Virginia during the course of its construction activities between 2004 and 2006.

The lawsuit, filed Thursday by the U.S. Department of Justice at the request of the U.S. Environmental Protection Agency (EPA), claims Allan Myers, a contracting and material company based in Worcester, Penn., violated the Clean Water Act by discharging pollutants into storm water during construction activities in three states, failed to submit the necessary information required to obtain a permit for such construction activities in a timely fashion and failed to comply with the terms and conditions of a permit for those same construction activities.

The defendants in the complaint include Allan Myers and its wholly owned subsidiaries, Allan Myers, LP, Allan Myers MD Inc., and Allan Myers VA, Inc.

Due to Allan Myers basing its operations in the Eastern District of Pennsylvania and a number of the company’s alleged violations occurring there, the plaintiffs feel the Eastern District is the proper venue in which to consider the matter.

According to the lawsuit, the Clean Water Act is “designed to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” and the EPA defines storm water discharge associated with industrial activity “to include storm water discharges from construction activities including clearing, grading and excavation that result in the disturbance of: (1) five or more acres of total land area; or (2) less than five acres of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more.”

In addition, the suit says any entity seeking to engage in such construction activity must apply for a National Pollutant Discharge Elimination System (NPDES) permit, per the EPA and applicable federal laws such as the Clean Water Act, and must likewise apply for identical NPDES permits in the individual states where such construction activity will be conducted, per those states’ similar laws.

Further, a central tenet of the information required to obtain NPDES permits is a storm water pollution prevention plan, which outlines best management practices the applicant intends to utilize to prevent erosion of soil or silt and sediment from leaving the site of the proposed industrial activity and polluting nearby waterways, the suit says.

The lawsuit claims Allan Myers failed to apply for both those federal and state NPDES permits, or to submit any such storm water pollution prevention plan describing how it would maintain the integrity of the land and water systems surrounding the sites where it would perform its construction work.

The suit claims the EPA, acting in conjunction with state and county authorities in Pennsylvania, Maryland and Virginia, conducted numerous inspections at Allan Myers construction sites in those states and counted 14 sites where storm water pollutants allegedly could be or were released from the industrial area. The suit claims a total of 608 violations of NPDES permits allegedly occurred at these same 14 construction sites between July 19, 2004 and July 28, 2006.

These alleged violations included“the addition of pollutants, including rock, sand, cellar dirt, industrial waste, and other pollutants to streams, creeks, and other water bodies that are waters of the United States.".

The plaintiffs seek Allan Myers be bound to the terms and provisions of the Clean Water Act, by mandating the “development and implementation of storm water pollution prevention plans, the application of best management practices to minimize or eliminate discharges of pollutants from its sites, and the implementation of corporate policies designed to achieve and assure compliance with the Applicable Permits and the Act.”

Further, the plaintiffs are seeking Allan Myers face monetary penalties of $32,500 per day for any violation occurring during March 12, 2004, to Jan. 12, 2009, and a secondary monetary penalty of $37,500 per day for each violation occurring thereafter, per the Clean Water Act, the implementation of regulations for said penalties, plus costs and disbursements to the United States of America and the Commonwealth of Virginia and any relief which the Court deems just and proper.

In this case, the United States is represented by Deputy Section Chief Nathaniel Douglas and Trial Attorney Joshua Van Eaton, both of the Environmental Enforcement Section and Environmental & Natural Resources Division of the U.S. Department of Justice; Zane David Memeger, United States Attorney for the Eastern District of Pennsylvania; Margaret L. Hutchinson, Civil Division Chief of the United States Attorney’s Office for the Eastern District of Pennsylvania; and Stacey L.B. Smith, Assistant United States Attorney for the Eastern District of Pennsylvania.

The Commonwealth of Virginia is represented by Mark R. Herring, Attorney General of Virginia; John W. Daniel II, Deputy Attorney General; Lynne C. Rhode, Senior Assistant Attorney General; and David C. Grandis, Assistant Attorney General.

United States District Court for the Eastern District of Pennsylvania case 2:15-cv-01992

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