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HomeMy Public PortalAboutBox 521 - Timeline of eventsCONFWENT1AL ATT►OANE'Y GUENT PRIVILEGE TIMELINE; of Events .associated %%ith City of .MIcCall's Wastewater Treatment Facility's NPDES Permit 1. l'hc City of McCall holds NPDES permit number ID-002023-1 issued by the United States Environmental Protection Agencv ("EPA"), which allows the City of McCall to discharvc to the North Fork of the Payette Riper ("NFPR") treated effluent from the wastewater treatment facility. The Citv of McCall has discharged effluent to the NFPR since prior to 1972. Significant improvements in wastewater treatment technology were implemented in 1081 by the Cit, or McCall as part of its ongoing efforts to improve the efficiency of its operations. Additional improvements under the City or MMcCall's newly issued NPDES permit are currently being implemented. ?. The NPDES permit under which the City of McCall was operatinu was issued on August 1, 1988, By its terms that permit was scliedulcd to expire on August 2, 1993. In January 1993, an application was filed for renewal of the City of titcCalI's NPDES permit. The EPA did not immediately issue a new permit. Instead, the EPA administratively extended the City of McCall's NPDES permit pending a decision on the City of McCall's application. 4. Also in .January of 1993, at about the time application was made for renewal of the Cit. of McCall's NPDES permit. the City of McCall also submitted, through its engineers 1 ]-U-B, a draft Wastewater Treatment Facility Plan Report ("Facility Plan") with the Idaho Department of Health and Welfare. Division of Environmental Quality ("DEQ") for its review and approval. j The draft Facility Plan selected as the preferred alternative a high rate land application system as the method of disposing of the treated effluent- Rather than appro\ ing or disapproving the Facility Plan or the high rate land application system. DEQ required the City of McCall to study a number of different alternatives, including the Maki alternative, the o\ cr-the-hill alternative. and a slow rate land application system- On July 14, 1995, the Cascade Reservoir Association (CRA.) filed a lawsuit under the Clean Water Act in federal court against the City o1 McCall and EPA. A copy of the Complaint is attached- The CRA alleged that the city w as in continuing violation of the Clean Water _act since August 2, 1993 and sought penalties of S25 000:day against the City - The CRA's complaint also sought to compel the EPA to issue a new VPDES permit- The lawsuit was staved in the fall of 1995 by agreement of the EPA and CRA. based upon the EPA's agreement to issue a new NPDLS permit. O. In or about October of 1995, the DL:Q issued a draft Cascade Reservoir Phase 1 JVarcrs-he(' Management Plan, which was the functional equivalent of a Total Maximum Daily Load ("TMDL") required under Section 303(d) of the Clean 'Water Act, 33 U.S.C. sI 1313(d), for the Cascade Reservoir ("P/an/T IDL")- The Cascade Reservoir required development of a TMDL because it had been identified as a high priority water quality limited segment pursuant to 30 (d) of the C\VA. The particular nutrient of concern was identified as phosphorous. In the October 1995 draft of (Plan/TlfDL), the DEQ recommended as necessary a 95% reduction in phosphorus loading from the City of N1cCall's wastewater treatment facility. 7. On or about February 1, 1996 DEQ prepared a lintel Pinar, I'MDL and submitted it to the EPA for approval. The final Plan: TNIDL. required the City of McCall to eliminate 100% of its phosphorus loading from the City of McCall's wastewater treatment plant, This requires a zero (0) discharge of effluent from the wastewater treatment facility- into the NFPR, t he final Platt TMDL failed to explain how a 100Q.. reduction from the City of N1eCall's wastewater facility would affect the condition of the Cascade Reservoir water quality or whether water quality standards goal for the Cascade Reservoir could be achieved by such a reduction. 8. On February 15, 1996 the EPA issued a draft NPDES permit for public comment. 9 On March 18, 1996 the City of McCall submitted comments to the EPA on the draft NPDES permit. As directed by the EPA's notice of publication, the City of McCall also - 3 - submitted at the same time its comments to the DEC) for the DEQ's consideration in certifying the permit under Section 401 or the Clean Water Act, 33 U.S.C. 1341. 19. On or about April 12, 1996 The Regional Administrator for DEQ issued the Section 401 Water Quality Certification ("y 401 Certification"). :lrnongg other things the DEQ requited 100% elimination of all discharces from the City or 1IcCaII's wastewater treatment facility to the NFPR b\ Januar\ 1, 1999. Suggested that slow rate land application combined with winter storage is or might be the only technology acceptable to the DEQ to achieve this 100% reduction. and railed to evaluate the cost effectiveness of its preferred alternative or of any other alternatives, specifically including liigh rate land application. Under this ti 401 Certification, discharge to agricultural lands ihrou tth the J-Diteli project w•as considered to comply with the rero discharge to the N FPR. 11. On or about Mav 13, 199C), the EPA approved the final Plan I MDL for the Cascade Reser\oir Watershed. 12. On May 17. 1996 the City of \lcCall petitioned the State of Idaho Board of Ilealtli and Welfare appealing. the Section 401 Certification decision and requesting a stay of the decision. The Cascade Reservoir Association ("CRA") petitioned to intervene in the City of McCall's appeal. The C'RA was granted status as an intervenor in the administrative appeal. 4 ! 3. On or about July 12, 1996 the EPA issued the Final NPDES Permit No. ID- 002023-1 to the City of .McCall. In re!imce on the approved PiairTMD1. and the State Water Quality Certification, the final NPDES permit required the City to eliminate 100°A% of the discharges From the City of .\1cCall's wastewater treatment Facility on or before January 1, 1999. Failure to comply with the terms and conditions of the NPDES permit could expose the City of McCall to substantial penalties including up to S25,000.00 per day in civil penalties. up to S50,000.00 per day in criminal penalties for repeated violations and as much as S 125,000.00 in administrative penalties. See 33 U.S.C. ti 1319(6,(d) and (g). The City of McCall could also be subject to Citizen Suits and related costs. See 33 [r.S.C. ti 1365. Sec also item No. 4 above. Uri August 12, 1996 the City of McCa1I filed a request for evidentiary hearing before Rcg=ion X. Environmental Protection Agency, contesting certain terms of the NPDES permit. I'he nature of the City of McCall's request to the Region X was to reconsider and contest those portions of the NPDES permit which incorporated (I) the PLW/TMDL submitted to the EPA by the State of Idaho on February 1. 1996 and approved by the EPA on May 13, 1996 and () the Section 401 Certification issued by the State of Idaho. In particular, the requirement for limitation of 100% of the discharge and the January 1. 1999 deadline tverc contested. In tiling its request for evidentiary hearing the City of McCall souC7ht to have the EPA review - its decision to incorporate provisions of DEQ's Section 401 Water Quality Certification. 15. On August 26, 1996, the CRA was allowed to Intel-Nene in the adminislratke proceeding hel«re the DFQ concerning the § 401 Certification. 1 O. On August 29, 1996, the CRA's federal Clean Water Act lawsuit against the City and the EPA was dismissed with prejudice. 4o tines or penalties were assessed against the City. The EPA paid CRA's attorney fees. 17. On July .8, 1997, Chuck Clark, Regional Administrator for Region X of the EP.-1. denied the City of McCall's request for an evidentiary hearins. The C'it,.• of McCall objected to the issuance of the final NPDES permit, in part, for incorporating requirements of the State's certification. The EPA responded that the City's ohjections were not suhject to EPA's review, but must to be pursued hel'ore the appropriate State board. 18. On August 28. 1997, the Lily of McCall pursuant to 40 C.F.R. § 124.91 filed with the Environmental Appeal Board, EPA, a Notice of Appeal and Petition for Review of EPA Region X's July 28. 1997 decision denying the request for hearing. -(6- 19. On No‘ember 25, 1997 the Enk ironmeittal Appeal Board denied the City of McC all's request for review. The City of McCa11 was advised that the EPA could not modify- those conditions in NPDES permit which ‘ ere. required by DEQ's § 401 Certification and that the EPA was not permitted ro review they 401 Certification's requirements. The City of v1cC'al1 was instructed to pursue modifications to the 5 401 Certification through the stare administrative process. If successful there, the City of \1cCali was instructed to file a request to modify the NPDES permit to reflect revisions to DEQ's ti` 401 Certification through the procedure estahlished by 40 C.F.R. § 1550). During. 1997 and 1998. the City of McCall and its then engineers, J-17-B, held extensive negotiation sessions \1.ith the DEQ and the CRA over proposed modifications to the TNIDL, the permit and the 5 401 Certification. The CRA was adamantly opposed to any extensions of time and opposed to any alternative other than winter storage. J-1 -13 argued for a high rate land application system in Iien of winter storage. The DEQ and CRA both opposed a high rate system. Ultimately. the City agreed to construct the winter storage cells as the DEQ and CRA insisted. The DEQ and CR.A also pushed to have the J-Ditch delivery system covered by DEQ's land application permit process. The DEQ determined not. to force the J-Ditch to go through that process, although appropriate discharge requirements to the J- Ditch are subject to revision after the J-Ditch has been in operation. 2 I. On .Iuly 27, 1998 the City of McCall and the DEQ entered into a Consent Order agreeing that the I)FQ would modify the 4 401 Certification. -file Consent Order provided: The .1-Ditch ‘voulcd be operation by the beginning of the 1998 irrigation season (the J-Ditch consists of a pipeline from the City's wastewater treatment plant to a mixing station, operated by the City, and a pipeline converging water from the mixing stations to agricultural lands operated by the Lake IlTigation District of Valley County): the required winter storage would consist of multiple cells constructed in phases with the first cell operational by October 1, 1999 and the second cell operational by October 1, 2000; discharges to the NFPR would be eliminated by Ocloher 1, 1999 except as allov,ed under the NPDES permit and modilied y 401 Certification; the City of McCall shall provide documentation by June 1, 2000, certifying that discharges to the NFPR have been eliminated; a force majeure clause forgives violations of the requirements of the Consent Order as a result of events beyond the City of McCall's control including difficulties encountered in ohtaining financing for the improvements to the waste water treatment facility, i.e., J-Ditch and water storage cells. The 8 Consent Order authorized amendment to the 3 401 Certification to reflect the terms of the Consent Order. �?- The CRA objected to the Consent Order's time lines and force majeure clause. The have voiced those objections both to DEQ and the EPA. �- On August 28, 1998 the DEQ administrative appeal was dismissed by order of the hearing officer. The CRA had ten days to file an objection or to further appeal. The appeal period has expired and the order is final. 24. On October 8. 1998 the DEQ, consistent \\,ith the Consent Order, issued a Revised § 401 Certification for NPDES Permit No. ID-002023-1. The Revised § 401 Certification specifically vacates and supersedes the April 12, 1996, § 401 Certification. Section III.A.1.b of the Revised § 401 Certification alters the Final Limitations by cxtendin,z the date to cease all discharges to the North Fork of the Payette River to October 1, 1999. Section III. A.1.c of the Revised y 401 Certification alters the emergency discharge limitations. Section III. A.? of the Revised § 401 Certification alters the monitoring requirements. Section 111.A. 3 of the Revised § 401 Certification alters the compliance schedule. The revised compliance schedule provides for a revised construction schedule for the Winter Storage Facilities, as set forth in the Consent Order. Finally, Section III.A.4 of the Revised 401 Certification alters the modification clause. All of these 9 modifications were made to provisions that were incorporated into the NPDES permit under the DEQ's April 12. 1996 4 401 Certification. No changes to EPA -mandated provisions were made by tho revised 401 Certification. ?�. In October, 1998. the Bureau of Reclamation recei\ed funding from Congress for S3.5 million to finish construction of the second phase ❑f the winter storage lagoons. This funding is significant because of the force majeure clause of the Consent Order. It excuses performance only if the City cannot ❑btain outside funding to meet the current schedule. The force majeure clause does nor contemplate the City not using available funding. Some other force majeure event would have to trigger a delay in the schedule. 26. On November 11, 1998, the City of McCall requested that the EPA, pursuant to 40 C.I .R. ti 155(b), modify (he NPDES Permit No. ID-002023-1 to include all ❑f revisions contained in the DEQ's Revised y 401 Certification. Tlie Request for Modification is pending. - 10 - Fannin for Winter S1oraL!e Subject: Funding for Winter Storage Date: Wed, 29 Jul 1998 07:33:25 -0700 From: "Brian D. Olson" <city.managergmccall.id,us> To: planncr,4 mecall.id.us Date: Thu, 23 Jul 1998 15:36: 00 -0600 From: 'Albert P. Barker x-32-11 " <apbtihteh.com > >Sender: aph c hteh.com >Or-gani ation: Hawley 7roxell Ennis c: Hawley To • cry. manager r mccall. idus .'abject: I'uncling fur FVinter Storage =Brian- Ouestion.s: 1. Are there conditions in the funding agreement with the BuR that > u e must start work by a certain date or complete work by a certain date? Are >there any strings attached on location of the use? 1 have not seen the BoR >agreement. 2. Corn you get a letter from Kempthorne's office on the current )status of the fiinding far the second cell? I am thinking of including that >inforrnation in the filing with the Hearing Officer to show that we are engaged in a good faith effort to obtain the necessary funding. A letter juror his office would be the be.st way to put that in front of the Hearing > Officer•. 3. 1 haven't received any financial information from Bill Jarocki. 1 sent him by email, min email, f rr and mailing addrcs.ses. Did you ever hear •back fron2 hire? Do you have a phone number where 1 can reach him? ? 1. The property acquisition is critical in my opinion. We nrusl have >a site as soon as possible. We need it to comply with the new Consent Order deadlines. l•Ve must have the site to hid and award the Design/Build contract. >Awarding (and even bidding) a contract without controlling the site could subject the City to significant legal exposures. If Seubert doesn't work from >a technical standpoint, we have to move quickly on another property. >Depending on the strings that IioR has attached to its last limding, failure Ito get started this fall could jeopardize funding of the entire project. Albert 1 of 1 7/29 98 9:07 AM