In a recent court filing, the City of Martinsville stated that it may need to raise wastewater rates by 25 percent and/or close its regional wastewater treatment facility if a permit issued to the Henry County Public Service Authority is allowed to stand.
Those and other assertions are contained in the city’s opposition to a motion to dismiss a suit it filed in the Richmond City Circuit Court on July 5 against the PSA, the Virginia State Water Control Board (VSWCB), the Department of Environmental Quality (DEQ) and Michael Rolband, director of both agencies.
In the case, the city is appealing a May 6 permit that clears the way for the PSA to reopen the Lower Smith River Wastewater Treatment Plant in Axton.
According to its appeal documents, Martinsville would suffer “an actual or imminent injury” as a result of the permit, because it would undermine the city’s ability to fund and maintain its regional wastewater treatment plant that was developed jointly with the county.
“Martinsville relies on the revenue from the sewer rates to fund” the wastewater plant’s operation, the filing stated. Funds are then used to pay for daily operations, maintenance and repairs, and capital improvement projects.
“The substantial revenue derived from serving the wastewater needs” of the county “is essential to the continued existence and operation” of Martinsville’s regional wastewater plant, the suit states.
The filing includes a brief history of the city’s sewage disposal facility. It states the city has owned and operated the facility since the 1960s. Wastewater from the city and county has been treated in the city’s facility since around 1973, and in 2005, the PSA deactivated its two wastewater plants – one of which was the Lower Smith River Wastewater Treatment Plant, and became a customer of the city’s regional facility.
“Martinsville has made significant investment in the operation and maintenance of its regional facility to ensure that it has adequate capacity to treat wastewater” from the two localities, the filing stated. It added that the county uses nearly 50 percent of the facility’s existing capacity.
The city alleges the DEQ and the SWCB violated state law by “failing to consider and make a determination regarding the feasibility of combined or joint treatment facilities” and failed to seek advice from local, regional or state planning authorities when making a determination.
The two agency’s “failure to comply” also was in violation of state statute, according to the filing, which also alleges violation of another law by the two agencies failure to prevent water quality alterations contrary to the public interest.
The 13-page appeal asks the court to find the DEQ and SWCB “acted unlawfully in issuing the case decision and permit,” according to the suit. Also, the court is asked to set aside the case decision and the permit, reprimand both state agencies and award Martinsville reasonable costs and attorney’s fees.
In two filings– a demurrer and motion to dismiss, both dated July 26, the PSA asked the court to dismiss the city’ appeal, citing several errors in the city’s filing, its failure to meet the standing requirements of law and sovereign immunity, which generally limits judicial interference with the workings of government.
On Sept. 9, the Office of the Attorney General filed a Memorandum of Understanding (MOU) for both of the PSA’s filings, and stated the city failed to state a cause of action against the SWCB, DEQ or Rolband. The 16-page filing concluded the city’s appeal failed to “designate and demonstrate an error of law subject to review” by the court.
In Martinsville’s Oct. 11 filing, the city states its opposition to the PSA’s motion to dismiss.
After restating its the basis for the appeal, the city filing states that “without the monies from the” PSA, “Martinsville will, at best, be forced to increase rates for its customers. At worst, it may need to close its plant. … The rate increase could be as high as 25%, which will harm Martinsville’s customers, especially those living in disadvantaged communities.”
The filing notes that 56.85 percent of Martinsville’s population are “persons of color, which is well above the statewide average of 37.80” percent. “Martinsville also has a substantial low-income population,” the filing states, and alleges “environmental impacts will result from the construction and operation of an additional wastewater system.”
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