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
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]-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.
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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
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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.
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! 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.
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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
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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
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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.
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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
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