TRANSMITTAL LETTER FOR BOARD MEETING OF NOVEMBER 17, 2011
COMMITTEE ON JUDICIARY
Mr. David St. Pierre, Executive Director
Title
Authority to enter into a consent decree with the United States and the State of Illinois to settle alleged violations of the Clean Water Act and the District’s NPDES Permits
Body
Dear Sir:
The District holds National Pollutant Discharge Elimination System (“NPDES”) permits for the Calumet, North Side and Stickney Wastewater Reclamation Plants (“WRP”) issued by the Illinois EPA pursuant to Section 402 of the Act, 42 U.S.C. § 1342 and 35 Ill. Adm. Code § 309.101 et seq. In addition to controlling discharges from the WRPs those permits impose conditions upon discharges directly from the combined sewer systems tributary to the WRPs (hereinafter “combined sewer overflows,” or “CSOs”).
In compliance with those NPDES permits, the District developed the Tunnel and Reservoir Project (“TARP”) as the District’s Long Term Control Plan to control CSOs. Illinois EPA approved TARP as the District’s Long Term Control Plan on June 28, 1995, and prior to and following that approval the District has diligently prosecuted the construction of TARP. All TARP tunnels were completed and in operation by 2006. Construction of Phase II of TARP, the Thornton Composite Reservoir and the McCook Reservoir, continues with the Thornton Composite Reservoir scheduled to commence operation on December 31, 2015 and the McCook Reservoir scheduled to commence operation of Stage 1 on December 31, 2017 and of Stage 2 on December 31, 2029.
The U.S. Environmental Protection Agency has alleged that discharges from the District’s CSO systems have and continue to violate the following permit requirements: (1) the requirement to provide the equivalent of primary treatment for at least ten times the average dry weather flow for the average design year and (2) the prohibition on discharging pollutants into waters of the United States that cause or contribute to violations of applicable water quality standards for dissolved oxygen, solids, and floatables. Illinois EPA has joined the federal agency in alleging the stated water quality violations.
At its meeting on April 21, 2011 the Board authorized the then Acting Executive Director to execute a settlement agreement intended to resolve those claims. Subsequent to the District’s execution of that settlement agreement the United States and the State advised the District that they wished to include certain additional terms in the settlement agreement. Specifically, among the additional items requested was a commitment to advance the use of Green Infrastructure within the District’s service area.
At the Board’s direction, the District’s negotiating team has conducted negotiations with the government parties on additional points. Those negotiations have now produced a proposed revised Consent Decree for entry by the U.S. District Court for the Northern District of Illinois. If agreed to by the District, the United States and the State of Illinois and subsequently entered by the court that consent decree would resolve the federal and state claims associated with discharges from the District’s combined sewer system. The MWRD does not admit any liability arising out of the transactions or occurrences alleged in the complaint.
The terms of the original proposed consent decree are summarized in the Transmittal Letter placing that matter on the Board’s agenda for its meeting of April 21, 2011. A copy of that transmittal letter is attached.
Key terms of the original proposed consent decree, including the TARP construction schedule, performance criteria, floatables control, post-construction monitoring and termination remain unchanged in the proposed revised decree. Material changes and additions are as follows.
Civil Penalty and Supplemental Environmental Project
The consent decree imposes a total civil penalty of $675,000, of which $350,000 is payable to the U.S. Treasury and $325,000 is payable to the State of Illinois. These amounts are unchanged from the original consent decree.
The original consent decree, however, would have required the District to expend an additional $325,000 on a Green Infrastructure Supplemental Environmental Project (“SEP”) in lieu of an additional civil penalty. While the proposed revised consent decree continues to require that Green Infrastructure project, the project is no longer characterized as a SEP and there is now no SEP included in the revised consent decree. No additional civil penalty is sought or imposed by the consent decree on account of this change.
Additional Green Infrastructure Program
In addition to the existing Green Infrastructure project described above, Appendix E has been expanded to require the District to develop a substantial program to advance the use of Green Infrastructure within the District’s service area. This Program is designed and intended to allow the District to make flexible use of its engineering expertise and other resources to accomplish a culture change -- from a culture that presumes that solutions will be found in traditional built-infrastructure to one that is open to and that actively encourages all stakeholders to consider and, where appropriate, to embrace the use of Green Infrastructure solutions. This Program consists of the following elements.
• An expanded rain barrel program with the requirement to distribute fixed numbers of low- or no-cost rain barrels within the District’s service area on a schedule established in the appendix.
• A requirement to complete the $325,000 Green Infrastructure project(s) contained in the original decree within one year of the effective date of the decree; to evaluate the design specifications, installation processes and procedures employed; and to document those findings.
• Development within one year of the effective date of the decree of a Green Infrastructure Plan. The Plan must include the following elements:
o Development of a Comprehensive Land Use Policy for land owned by the District, including:
§ Guidelines/requirements to obligate lessees of MWRD land for public use to incorporate Green Infrastructure on such leaseholds; and
§ An incentive program to encourage development of Green Infrastructure projects on MWRD-owned land leased for private use.
o A description of available Green Infrastructure control measures, their performance expectations and typical maintenance requirements.
o Provision of administrative and technical assistance to communities within the District’s service area to facilitate implementation of Green Infrastructure practices, with MWRD to dedicate at least one MWRD employee full time equivalent position to providing such assistance.
o Identification, by itself or in collaboration with other stakeholders, of opportunities for the development of Green Infrastructure within the District’s service area, including:
§ Establishing partnerships and collaborating with other stakeholders (including municipal and governmental entities; business and commercial entities; non-governmental organizations; members of the public; and other interested parties) to plan and implement Green Infrastructure projects;
§ Establishing a public participation process to elicit public comment regarding the selection, conceptual design and location of Green Infrastructure projects, including measures designed to engage people living in neighborhoods with greater pre-existing needs and vulnerabilities;
§ Establishing criteria and processes to prioritize the selection of locations and specifications for Green Infrastructure projects, including consideration of (1) Green Infrastructure control measures to reduce flooding and basement backups; (2) land ownership that readily accommodates permanent Green Infrastructure control measures; and (3) Green Infrastructure control measures with the capacity to improve socio-economic conditions in the MWRD service area.
• Completion, by itself or in collaboration with other stakeholders, of substantial Green Infrastructure projects within the District’s service area. Appendix E contains requirements for the design retention capacity of projects required to be completed at milestones of 5, 10 and 15 years after the effective date of the consent decree.
Recognition of Schedule to Complete Reservoirs
Revised Appendix E also provides for the District to develop, by itself or in collaboration with other stakeholders, additional Green Infrastructure retention capacity in the event that it receives one or more extensions of enumerated TARP construction schedule deadlines under the Contingency section of the decree. (Such extensions are available for market-driven variations in the rate of mining and construction delays on Corps-controlled projects.) One or more such grants of extensions of deadlines associated with the Thornton Composite Reservoir or the McCook Reservoir, Stage 1, respectively, would trigger a one-time obligation to provide a specified amount of additional retention capacity by use of Green Infrastructure. Each such grant of an extension of deadlines associated with the McCook Reservoir, Stage 2 would trigger a separate obligation to provide a specified amount of additional retention capacity by use of Green Infrastructure.
Additional Reporting Requirements
Revised Appendix E also provides for reporting on the Rain Barrel program, the $325,000 Green Infrastructure project(s) required under the original decree, the District’s Comprehensive Land Use Policy, progress of the Watershed Management Ordinance for Cook County, and the implementation status of projects required to provide the required design retention capacities established in the Appendix.
Settlement Process
As described in the April 21, 2011 transmittal letter, settlement of an enforcement action with the United States is unlike settlement of commercial litigation. Consistent with the practice of the United States in its settlement of all federal environmental claims, the sequence of events that will lead to entry of the proposed consent decree here is as follows:
• Negotiating teams reach agreement on settlement terms [COMPLETED];
• District's Board of Commissioners reviews, approves and authorizes execution of the proposed consent decree;
• U.S. (Department of Justice and EPA) and State of Illinois (Office of the Attorney General; IEPA) review, approve and execute proposed consent decree;
• EPA files complaint and simultaneously lodges fully executed consent decree with the court;
• Public notice period of at least 30-days to receive comments on lodged consent decree;
• EPA develops a written response to comments and files in support of its motion for entry of the consent decree; and
• Court enters decree.
The District has been informed by the governments that each government official who is listed as a signatory of this proposed revised Consent Decree has reviewed the terms of settlement contained therein and has pre-approved this consent decree.
The General Counsel requests that the Board authorize the District to enter into a consent decree with the United States of America and the State of Illinois to resolve alleged violations of the Clean Water Act and the District’s NPDES permits, and that the Board authorize the Executive Director to execute a consent decree consistent with the decree presented to the Board and the terms and conditions set forth herein.
Requested, Ronald M. Hill, General Counsel, RMH:bh
Respectfully Submitted, Terrence J. O’Brien, Chairman Committee on Judiciary
Disposition of this agenda item will be documented in the official Regular Board Meeting Minutes of the Board of Commissioners for November 17, 2011
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