HomeMy Public PortalAboutExhibit MSD 37 - MSD Consent DecreeCase: 4:07-cv-01120-CEJ Doc. #: 159 Filed: 04/27/12 Page: 1 of 97 PageID #: 1515
IN THE UNITED STATES DISTRJCT COURT
FOR THE EASTERN DISTRlCT OF MISSOURl
EASTERN DIVISION
UNITED STATES OF AMERJCA, )
)
and )
)
THE STATE OF MISSOURl, )
)
Plaintiffs, )
)
and ) No. 4:07-CV-1120 (CEJ)
)
MISSOURl COALITION FOR THE ) CONSENT DECREE
ENVIRONMENT FOUNDATION, )
)
Plaintiff/Intervenor, )
)
v. )
)
THE METROPOLITAN ST. LOUIS )
SEWER DISTRJCT, )
)
Defendant. )
)
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XXI. MODIFICATION ............................................ Page 82 of 93
XXII. TERMINATION ............................................. Page 84 of 93
XXIII. PUBLIC PARTICIPATION ................................... Page 85 of 93
XXIV. SIGNATORIES/SERVICE .................................... Page 85 of 93
XXV. INTEGRATION/APPENDICES ................................. Page 86 of 93
XXVI. FINAL JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 87 of 93
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WHEREAS, Plaintiffs, the United States of America, by the authority of the Attorney
General of the United States and through the undersigned attorney, acting at the request and on
behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and
the State of Missouri, by the authority of the Attorney General of Missouri, acting at the request
and on behalf of the Missouri Department of Natural Resources ("MDNR"), jointly filed a
Complaint on June 11, 2007, seeking injunctive relief and civil penalties against the
Metropolitan St. Louis Sewer District ("MSD"), pursuant to Sections 309(b) and (d) of the
federal Clean Water Act ("CWA"), 33 U.S.C. §§ 1319(b) and (d), for MSD's alleged discharges
of pollutants in violation of Section 301(a) ofthe CWA, 33 U.S.C. § 1311(a), including those
discharges of untreated sewage from its Combined Sewer Overflows and at least 300
Constructed Sanitary Sewer Overflows, and for alleged violations of conditions established in
the National Pollutant Discharge Elimination System ("NPDES") permits issued to MSD by
MDNR, as authorized by the EPA under Section 402(b) ofthe CWA, 33 U.S.C. § 1342(b). In
addition, the United States also alleged a claim under Section 504(a) of the CWA, 33 U.S.C. §
1364(a), requiring MSD to take such actions as may be necessary to abate the imminent and
substantial endangerment to the health of persons presented by MSD's sewer system, resulting
from discharges of untreated sewage to homes, yards, parks, playgrounds, and streets.
WHEREAS, the State of Missouri is a Plaintiff to this action pursuant to Section 309(e) of
the CWA, 33 U.S.C. § 1319(e).
WHEREAS, Plaintiff-Intervenor Missouri Coalition for the Environment Foundation
("Coalition") filed a motion to intervene, and when its motion was granted by the Court on
August 29, 2007, filed its Complaint in Intervention against MSD for its alleged violations of
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Sections 301(a) and 308 ofthe CWA, 33 U.S.C. §§ l311(a) and 1318, and certain NPDES
Permits, following its issuance on April 12, 2007 of a 60-day notice of intent to sue pursuant to
Section 505 ofthe CWA, 33 U.S.C. § 1365.
WHEREAS, Defendant MSD is a municipal corporation and political subdivision of the
State of Missouri established under the Constitution of Missouri.
WHEREAS, MSD is responsible for wastewater collection and treatment, and stormwater
management, throughout all of St. Louis City and 90 percent of St. Louis County --a service
area of93 municipalities covering approximately 525 square miles and a population of
approximately 1.4 million.
WHEREAS, MSD was created by operation of the Missouri Constitution and by area voters
in 1954 to coordinate regional, watershed-based management ofthe area's sewer and stormwater
handling and treatment demands. Since MSD's formation, it has consolidated over 79 different
public and private sewer collection systems, and assumed control of over 35 treatment facilities.
MSD consolidated the operations of these treatment facilities into the seven treatment plants that
it operates today. Portions of these sewer collection systems are over 150 years old. MSD
operates these treatment plants under authorization of Missouri State Operating Permits issued
byMDNR.
WHEREAS, MSD has developed a Long Term Control Plan to address Combined Sewer
Overflows based upon current water quality standards.
WHEREAS, on October 29, 2009, EPA issued a determination that new or revised water
quality standards are needed to protect for recreational uses for the segment of the Mississippi
River flowing from river mile 189.2 to river mile 160.6 to which MSD's CSO Outfalls
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Green infrastructure can supplement redevelopment efforts, add green space to cities, increase
recreational opportunities, increase groundwater recharge, improve air quality, increase property
values, enhance urban quality of life, and improve human health. MSD's program focuses on
combined sewer areas within St. Louis County and City. These same areas represent some of the
most economically~distressed portions of the St. Louis community.
WHEREAS, Defendant MSD does not admit any liability to the United States, State, or
Coalition arising out of the transactions or occurrences alleged in their Complaints.
WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds,
that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation
between the Parties and this Consent Decree is fair, reasonable, and in the public interest, and
that there is no just reason for delay.
NOW THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED,
ORDERED, AND DECREED as follows:
I. JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of this action, pursuant to Sections
309(b), 504(a), and 505(a) ofthe CWA, 33 U.S.C. §§ 1319(b), 1364(a), and 1365(a), and 28
U.S.C. §§ 1331, 1345 and 1355, and over the Parties. Venue lies in this District, pursuant to
Sections 309(b) and 505(c) ofthe CWA, 33 U.S.C. §§ 1319(b) and 1365(c), and 28 U.S.C.
§ 1391(b), because it is the judicial district where MSD is located and where the alleged
violations occurred. For purposes of this Decree, or any action to enforce this Decree, MSD
consents to the Court's jurisdiction over MSD, this Decree, and any such action, and further
consents to venue in this judicial district.
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II. APPLICABILITY
2. The provisions of this Consent Decree shall apply to, and be binding upon MSD and its
officers, directors, employees, agents, servants, successors, assigns, and all persons, firms and
corporations under contract with MSD to perform obligations of this Consent Decree; upon the
United States and its agencies, departments, representatives, employees, successors, and assigns;
and upon the Coalition and its affiliated organizations, employees, successors, and assigns.
3. No transfer of ownership or operation of any portion of its publicly owned treatment
works, including any portion of its Sewer System, whether in compliance with the procedures of
this Paragraph or otherwise, shall relieve MSD of its obligation to ensure that the provisions of
this Decree are implemented. At least thirty (30) days prior to any transfer of ownership or
operation of is publicly owned treatment works and/or Sewer System, MSD shall provide a copy
of this Consent Decree to the proposed transferee and shall simultaneously provide written
notice of the prospective transfer, together with a copy of the proposed written agreement, to the
United States, the State, and the Coalition, in accordance with Section XVII ("Notices").
4. MSD shall provide a copy of this Consent Decree to the Board of Trustees and their
successors, and managers. MSD shall post the Consent Decree on its website and intranet
website and direct all current employees and new employees to read the Consent Decree. MSD
shall direct any contractor or consultant retained to perform work required under this Consent
Decree to its website and direct them to read the Consent Decree. Any action taken by an entity
retained by MSD to implement MSD' s duties under this Consent Decree shall be considered an
action of MSD for purposes of determining compliance with this Consent Decree. This Consent
Decree shall not limit MSD's rights to take all appropriate action against any such person or
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entity that causes or contributed to MSD's act or failure to act.
III. PURPOSE
5. The express purpose of the Parties entering into this Consent Decree is for MSD to take
all necessary measures to meet the goals and objectives of the CW A; to achieve and maintain
compliance with the CWA and the Missouri Clean Water Law and the regulations promulgated
thereunder, and the terms and conditions ofMSD's Missouri State Operating Permits; to meet
the objectives of the EPA's April 19, 1994 CSO Control Policy, 59 Fed. Reg. 18688 ("CSO
Policy"), which is incorporated by reference into Mo. Code Regs. Ann. Tit. 10, § 20-7.015(10);
to Eliminate all Constructed SSO Outfalls; and to achieve the goal of eliminating all known
SSOs.
IV. DEFINITIONS
6. Terms used in this Consent Decree that are defined in the CW A, the Missouri Clean
Water Law, the implementing regulations promulgated under these laws, or MSD's Missouri
State Operating Permits shall have the meanings assigned to them in the CW A, the Missouri
Clean Water Law, implementing regulations, or MSD's Missouri State Operating Permits unless
otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent
Decree, the following definitions shall apply:
a. "Achievement of Full Operation" shall mean completion of construction and
installation of equipment or infrastructure, and completion of contractually required acceptance
testing, such that the equipment or infrastructure has been placed in full operation, and is
expected to both function and perform as designed.
b. "Appendix D" shall mean the attached Appendix entitled "CSO Control Measures,
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Design Criteria, Performance Criteria, and Critical Milestones" and any modifications and/or
extensions approved by EPA pursuant to Paragraphs 55, 58-63 of this Consent Decree.
c. "Approved Supplemental Remedial Measures Plan" shall mean any Supplemental
Remedial Measures Plan approved in accordance with Section VI.E, or established through
Dispute Resolution pursuant to Section XIV of this Consent Decree.
d. "Asset Management" shall mean a continuous process of managing infrastructure,
capital assets, and operation to deliver optimized customer service and to protect health and the
environment while minimizing costs over the assets' lifetimes.
e. "Bid Year" shall mean the date that a notice to proceed with construction has been
issued and remains in effect for the CSO Control Measure. For CSO Control Measures with
multiple phases or packages, the Bid Year shall mean the date the notice to proceed has been
issued and remains in effect for the first construction phase or package.
f. "Building Backup" shall mean a wastewater backup occurring into a building which is
caused by blockages, flow conditions, or malfunctions within the Sewer System. Building
Backup does not include wastewater backups resulting from (i) flow conditions caused by
overland flooding or (ii) blockages, flow conditions, or malfunctions of a Private Lateral.
g. "Bypass" shall mean the intentional diversion of waste streams from any portion of a
Wastewater Treatment Facility, as defined by 40 C.F.R. § 122.41(m).
h. "Coalition" shall refer to the Plaintiff-Intervenor in this action, Missouri Coalition for
the Environment Foundation and its affiliated organizations.
i. "Combined Sewer Overflow" or "CSO" shall mean any discharge from the Combined
Sewer System at a point prior to the headworks of a Wastewater Treatment Facility.
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aa. "Excessive Infiltration/Inflow" or "Excessive III" shall have the meaning set forth in the
definition at40 C.F.R. § 35.2005(b)(16).
bb. "Force Main" shall mean a pipe that receives and conveys under pressure, wastewater
from the discharge side of a pump within the Sewer System.
cc. "Gravity Sewer Line" or "Gravity Sewer Pipe" shall mean a pipe that receives, contains
and conveys wastewater not normally under pressure, that is intended to flow unassisted under
the influence of gravity.
dd. "Infiltration" shall mean water other than wastewater that enters the Sewer System, as
defined by 40 CFR § 35.2005(b )(20).
ee. "Inflow" shall mean water other than wastewater that enters the Sewer System, as
defined by 40 CFR § 35.2005(b)(21).
ff. "III" shall mean the total quantity of water from Inflow and Infiltration without
distinguishing the source.
gg. "MSD" shall mean the defendant Metropolitan St. Louis Sewer District.
hh. "MSD's Missouri State Operating Permits" shall mean the following operating permits
issued to MSD by the State of Missouri pursuant to its authority to administer the NPDES
program as an approved State program under Section 402(b) ofthe CWA: Nos. M0-0025178,
effective December 30, 2005 and revised January 27, 2006; M0-0025151, effective date
December 30,2005 and revised January 27, 2006; M0-0004391, effective date December 30,
2005 and revised March 31, 2006; M0-0086126, effective date March 23,2001 and revised
November 10, 2005; M0-0025160, effective date December 30, 2005; M0-0101362, effective
date January 26, 2007; M0-0127949, effective date February 28, 2007; and any such operating
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permit which succeeds Permit Nos. M0-0025178, M0-0025151, M0-0004391, M0-0086126,
M0-0025160, M0-0101362, and M0-0127949 issued by the State of Missouri to MSD, or
extended, modified or reissued operating permit by the State, as well as any future federally
approved, or extended, modified or issued operating permit.
11. "MOD" or "mgd" means million gallons per day .
.U· "MDNR" shall mean the State of Missouri Department ofNatural Resources, a part of
the executive branch of the State of Missouri, subject to supervisory, rulemaking, and
adjudicative authority of the Missouri Clean Water Commission as described in Chapter 644
RSMo.
kk. "Non-Capacity Related SSO" shall mean any discharge from any portion ofMSD's
Sanitary Sewer System that is the result of the inability of that portion(s) of the Sewer System to
convey or treat flows due to a blockage, structural failure, or other maintenance related defect as
well as any third party actions or naturally occurring events related to or resulting in an overflow
from the Sanitary Sewer System.
II. "Paragraph" shall mean a portion of this Consent Decree identified by Arabic numerals.
mm. "Parties" shall mean the United States, the Coalition, and MSD.
nn. "Performance Criteria" shall mean the Performance Criteria specified in Appendix D.
oo. "Post-Construction Monitoring Program" shall mean the Post-Construction Monitoring
Program set forth in Appendix E, as well as any additional post-construction monitoring or
modeling activities included in any Approved Supplemental Remedial Measures Plan, and any
modification approved by EPA pursuant to Paragraph 60 of this Decree.
pp. "Private Lateral" shall mean any portion of the Sewer System, not owned by MSD, used
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to convey wastewater from a building or buildings to that portion of the Sewer System owned by
MSD.
qq. "Pumping Station" or "Pump Station" shall mean MSD-owned facilities that contain
pumps that lift wastewater from a lower to a higher hydraulic elevation, including all related
electrical, mechanical, and structural systems necessary to the operation of that pumping station
within the Sewer System.
rr. "Receiving Stream" or "Receiving Water" shall mean surface water body that receives
discharge from the Wastewater Treatment Facilities and/or Sewer System, including but not
limited to the Mississippi River, Missouri River, Meramec River, River Des Peres, and their
tributaries.
ss. "Sanitary Sewer Overflow" or "SSO" shall mean any overflow, spill, diversion, or
release of wastewater from or caused by MSD's Sanitary Sewer System. This term shall
include: (i) discharges to surface waters of the State or United States from MSD's Sanitary
Sewer System and (ii) any release of wastewater from MSD's Sanitary Sewer System to public
or private property that does not reach waters of the United States or the State.
tt. "Sanitary Sewer System" shall mean the portion of the Sewer System designed to convey
only sewage, and not stormwater, from residences, commercial buildings, industrial plants and
institutions for treatment at a Wastewater Treatment Facility.
uu. "Section" shall mean a portion of this Consent Decree identified by a Roman numeral
and/or upper case letter.
vv. "Sewer System" shall mean the wastewater collection and transmission system owned or
operated by MSD, including all pipes, Force Mains, Gravity Sewer Lines, Pumping Stations, lift
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stations, interceptors, diversion structures, manholes and components thereto, designed to collect
and convey municipal sewage (domestic, commercial and industrial) to MSD's Wastewater
Treatment Facilities or to a Combined Sewer Outfall or Constructed SSO Outfall. The Sewer
System includes both the Sanitary Sewer System and the Combined Sewer System.
ww. "State" shall mean the State of Missouri.
xx. "Subsection" shall mean a portion of this Consent Decree identified by capital letters.
yy. "Surface Water(s)" shall mean water(s) of the United States as defined by 40 C.F.R.
§ 122.2.
zz. "United States" shall mean the United States of America, acting on behalf of the EPA.
aaa. "Wastewater Treatment Facilities" and "WWTFs" shall mean the wastewater treatment
facilities (or water reclamation facilities) and all components of any such wastewater treatment
facilities operated by MSD, including, but not limited to:
(1) Bissell Point Wastewater Treatment Plant, Missouri State Operating Permit M0-
0025178, located in the City of St. Louis, at 10 East Grand Avenue, St. Louis, Missouri 63147;
(2) Lemay Wastewater Treatment Plant, Missouri State Operating Permit M0-0025 I 51,
located in St. Louis County, at 201 Hoffmeister A venue, St. Louis, Missouri 63125;
(3) Missouri River Wastewater Treatment Facility, Missouri State Operating Permit M0-
0004391, located in St. Louis County, at 3455 Creve Coeur Mill Road, St. Louis, Missouri
63146;
(4) Fenton Wastewater Treatment Facility, Missouri State Operating Permit M0-0086126,
located in St. Louis County, at 75 Opps Lane, Fenton, Missouri 63026;
(5) Coldwater Creek Wastewater Treatment Facility, Missouri State Operating Permit MO-
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0025160, located in St. Louis County, at 13798 Old Halls Ferry Road, Blackjack, Missouri
63034;
(6) Grand Glaize Wastewater Treatment Plant, Missouri State Operating Permit M0-
0101362, located in St. Louis County, at 1000 Grand Glaize Parkway, St. Louis, Missouri
63088;and
(7) New Lower Meramec Wastewater Treatment Facility, Missouri State Operating Permit
M0-0127949, located in St. Louis County, 7981 Fine Road, St. Louis, Missouri 63129.
bbb. "Watershed" shall mean a section ofMSD's Sewer System that is a distinct
drainage or wastewater collection area and designated as such by MSD.
V. REMEDIAL MEASURES AND SCHEDULES FOR SANITARY SEWER SYSTEM
7. MSD shall continue to carry out assessments and engineering analyses necessary to
identify all measures needed to ensure that MSD's POTW complies with the requirements of the
Clean Water Act and the Missouri Clean Water Law and the regulations and policies
promulgated thereunder, and MSD's Missouri State Operating Permits issued by the MDNR, and
then shall implement engineered measures to Eliminate all Constructed SSO Outfalls and with
the goal of Eliminating all known SSOs.
8. MSD's plans, programs, and other submittals shall be based upon good engineering
practices and industry standards, using the following documents as guidance, as applicable:
a. EPA's Handbook: Sewer System Infrastructure Analysis and Rehabilitation,
EPA/625/6-911030, 1991 (hereafter "EPA Handbook");
b. National Association of Sewer Service Companies Sewerage Rehabilitation
Manual; and
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c. Water Environment Federation Manual of Practice FD-6 Existing Sewer
Evaluation and Rehabilitation, Third Edition.
A. Sanitary Sewer System Characterization Report
9. No later than one month from the Effective Date, MSD shall submit to EPA and the
State, with a copy to the Coalition, a report updating the characterization ofMSD's existing
Sanitary Sewer System. To the extent that data and information are available, the Sanitary
Sewer System Characterization Report shall include the following information:
a. A Constructed SSO Outfall Inventory identifying all Constructed SSO Outfalls that
are known within the Sanitary Sewer System. MSD shall create the Constructed SSO Inventory
by updating MSD's May 5, 2009 "Bypass Database" spreadsheet with current information
including, but not limited to, any new or previously unknown Constructed SSO Outfalls, changes
in the physical attributes of Constructed SSO Outfalls, changes in Constructed SSO Outfall
status using either the term 'Existing' or 'Eliminated,' and all known project elimination
numbers and names. In no case shall MSD alter the number of Constructed SSO Outfalls by
deleting an individual Constructed SSO Outfall or otherwise reduce the overall combined
number of existing and Eliminated Constructed SSO Outfalls from the Constructed SSO Outfall
Inventory. However, Constructed SSO Outfalls that were listed in the May 5, 2009 bypass
database, but are not Constructed SSO Outfalls based upon current information or were
mislabeled will be identified as such with an explanation in the Constructed SSO Outfall
Inventory.
b. GIS layers of the Sewer System that identify the locations of all Constructed SSO
Outfalls, Watersheds, WWTFs, Pumping Stations, Force Mains, wastewater storage facilities,
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tunnels, known gravity lines, as well as an excel list of the locational information of all known
SSOs and Building Backups, that occurred during the preceding five years identifying the
cause( s ), if determined, of the known SSOs and Building Backups.
c. Identification of the date and duration, if known, of each Constructed SSO during
the two years preceding the Date of Lodging. For the purposes of this Sanitary Sewer
Characterization Report, MSD shall summarize discharge events previously submitted within
MSD's "Quarterly Constructed SSO Bypass Reports" identifying events required pursuant to
Paragraph 25 of EPA's Amended Administrative Order, issued May 22, 2007, and amended
again on July 2, 2008. MSD shall summarize the events by grouping all past discharge events by
specific location (i.e. BP number) such that cumulative number of discharges from individual
locations are evident.
d. Pursuant to the above-referenced EPA's Amended Administrative Order, MSD
shall continue to perform the following measures until a Constructed SSO Outfall is eliminated:
i. MSD shall post signs as depicted in Appendix A on all streams, creeks,
drainage ditches, and swales receiving Constructed SSO discharges. Postings must be at all
surface discharge locations and within one hundred (1 00) feet downstream of all discharge
locations. Signs must also be posted at approximately one hundred (1 00) yard intervals at public
access points located within two (2) miles downstream from the discharge. Signs must be placed
on both sides of stream and must be placed so as to be visible to the public from both banks. The
signs must be visible to the public approaching the stream from land. Any parks, golf courses or
other recreation areas within the posting area must have signs permanently displayed.
ii. MSD shall perform monthly inspections of Constructed SSO locations to
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ensure each sign is in place, unobstructed, and in good condition.
iii. Inspection of all downstream signs shall be at least three (3) times during the
recreation season in March, June, and September.
iv. Missing, damaged, or obstructed signs must be replaced or corrected within 24
hours of discovery. The signs must be a minimum of 18" by 24".
v. A copy of the sign must be included annually (near the beginning of the
recreation season) in customer bill inserts with an explanation of why the signs have been
installed.
e. The EPA agrees to terminate its above-referenced Amended Administrative Order
by issuing a notice of termination to MSD within thirty (30) days of the Effective Date of this
Consent Decree.
B. Early Elimination Proiects for Constructed SSOs
10. No later than December 31,2012, MSD shall Eliminate all Constructed SSO Outfalls
identified in Appendix B.
11. Each year as part of its Annual Report required by Paragraph 73, MSD shall submit to
the EPA and the State, with a copy to the Coalition, a schedule that identifies Constructed SSO
Outfalls (excluding those associated with the early Elimination projects referenced in Paragraph
10 above) which may be Eliminated prior to MSD's submission of the Sanitary Sewer Overflow
Control Master Plan as required by Section V.F. Any Constructed SSO Outfalls that are
Eliminated prior to MSD's submission of the Sanitary Sewer Overflow Control Master Plan will
be not be identified in the Master Plan.
12. Starting in January 2011 until December 31,2013, MSD shall expend at least $30
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c--~--c------------------------------------
million to construct applicable and accepted engineering methods for reducing Inflow and
Infiltration, including, but not limited to, sewer pipelining and/or replacement projects. All of
the $30 million shall be spent in the following areas:
a. Areas identified to have Constructed SSOs which will be scheduled for Elimination
between 2023-2033. The following areas are initially identified as the areas in which the last
Constructed SSOs will be Eliminated: Gravois Creek, Deer Creek, and the University City
Watersheds;
b. The following areas which contain a high concentration of low-income customers
experiencing high occurrences of Building Backups: Watkins Creek, Spanish Lake, Baden,
Harlem, University City, and Maline Watersheds; and
c. Following the completion of known cost effective controls in areas identified in
subparagraphs 12(a) and (b) above, MSD shall prioritize 1/1 reduction projects that will reduce
Building Backups and/or sewer system overflows. MSD shall annually evaluate projects that are
in areas identified in subparagraphs 12(a) and (b) above before prioritizing projects in
accordance with this subparagraph 12( c).
13. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, a description
of the methods used for reducing Inflow and Infiltration, the number of miles of sewer pipelining
and replacement projects, if applicable, as well as the specific locations and costs for each
project undertaken in those areas identified in Paragraph 12( a), (b), and (c) above for the
preceding calendar year.
C. Sewer System Evaluation Survey
14. MSD shall perform a Sewer System Evaluation Survey ("SSES") of its Sanitary Sewer
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System in accordance with the requirements of Paragraphs 14-18 below, and consistent with
good engineering practices, industry standards, and the standard references listed in Paragraph 8
above. The results of this SSES shall accompany the Sanitary Sewer Overflow Control Master
Plan required by Section V.F. The SSES shall be used to develop the remedial measures in that
Sanitary Sewer Overflow Control Master Plan. The SSES shall:
a. identify study areas with Excessive III, which are causing and/or contributing to
SSOs and Building Backups;
b. identify and quantify sources of I/I within the study areas determined to have
Excessive III rates.
c. identify known SSOs within each Watershed;
d. identify storm water Cross Connections and found unauthorized direct connections;
e. identify physical and/or structural conditions of pipes, manholes and structures of
the Sanitary Sewer System that contribute to SSOs and Building Backups; and
f. identify the physical conditions and design constraints afForce Mains and
Pumping Stations, including failure of individual pumps, lack of redundant pumps, and lack of
alternative power sources that contribute to SSOs and Building Backups.
15. The SSES shall include the following elements:
a. Data Management: A description of the data management approach that MSD will
use to organize, analyze, and report all known data to be used and all of the data that MSD will
be collecting in accordance with this Paragraph;
b. Quality Control/Quality Assurance: A description of the quality assurance and
quality control methodology MSD will follow to ensure the accuracy and reliability of data
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collected in accordance with this Paragraph;
c. Data Review: MSD shall review known data concerning SSOs, Building Backups,
sewage flows, WWTFs flows and capacity, and Sewer System attributes for purposes of
supporting the SSES and identifying any additional data needed to conduct the SSES in
accordance with this Section V.C.;
d. Rainfall Gauges: MSD shall use a network of rain gauge stations in accordance
with good engineering practices and the applicable standard references listed in Paragraph 8
above;
e. Flow Monitoring Eguipment: Flow data shall be collected using a system of
permanent and/or temporary flow monitors placed at locations in the Sewer System necessary to
allow the characterization of flow from each Watershed service area. All temporary flow
monitors and all new permanent flow monitors installed after the Effective Date of the Consent
Decree shall concurrently measure flow level and velocity from which system flow rates shall be
calculated. Where feasible and as part ofMSD's long-term flow monitoring equipment
maintenance/replacement activities, existing permanent flow monitors that measure flow level
only shall be replaced with monitors that measure flow level and flow velocity simultaneously
unless the Constructed SSO Outfall is scheduled to be eliminated within two years of the
equipment maintenance/replacement. In the event MSD cannot obtain accurate velocity data
within six months of installation, the equipment will revert to the level-only monitoring setup.
f. Rainfall and Flow Monitoring: MSD shall carry out dry and wet weather rainfall
and flow monitoring as needed to satisfy the requirements of this Paragraph. Dry weather
monitoring shall be carried out so as to allow the characterization of base flows and Infiltration
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rates. Wet weather monitoring shall be carried out following flow events of sufficient duration
and intensity to understand system response due to wet weather events and identify if and where
Excessive Ill exists within specific areas of its Sewer System.
16. The locations, types and rationale for placement of rain gauges, flow monitors, and any
other equipment required by this Section and a discussion of how Doppler radar will be
employed (if appropriate) shall be included in the SSES. MSD' s flow and rainfall monitoring
network required in Paragraph 15( d), (e), and (f) shall be designed, installed, operated and
maintained to provide representative data of sufficient quality for use in the development of the
Hydraulic Model as required by Section V.D. and the Capacity Assurance Evaluation as required
by Section V .E. Monitoring site selection, equipment selection and installation, calibration,
maintenance, and data quality assurance checks shall be carried out to optimize monitoring
accuracy, and shall conform with good engineering practices, using the appropriate references
listed in Paragraph 8 above. The flow monitoring and rainfall data shall be used to investigate
Watersheds for further flow monitoring and physical investigation activities, as described below.
17. As part of its SSES, MSD shall also perform further investigative activities in those
specific areas of its Sewer System determined to have Excessive III and any areas determined to
contribute to known SSOs, Building Backups, and WWTF capacity limitations. The
investigative activities shall locate and allow estimation of the wet weather flows associated with
individual sources ofl/1, or shall identify all physical conditions and/or design constraints of the
Sewer System, including Force Mains and Pump Stations, that cause or contribute to known
SSOs, Building Backups, and WWTF capacity limitations. Based on the results of the rainfall
and flow monitoring, the investigative activities shall include as appropriate:
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a. Further flow monitoring to isolate sources of III;
b. Smoke testing;
c. Visual inspections of pipes and manholes;
d. Dye testing;
e. Night flow isolation;
f. CCTV inspection to identify sewers in need of repair, rehabilitation, or
replacement; and
g. External building inspections.
18. The further investigative activities required by Paragraph 17 shall be sufficient to allow
characterizations of material defects that allow inflow, infiltration, or exfiltration in study areas
with Excessive 1/1, SSOs, Building Backups, and WWTF capacity limitations. The further
investigative activities required by Paragraph 17 shall also support the development of the
Capacity Assurance Evaluation required by Subsection V.E. and the identification of remedial
measures necessary to satisfy the objectives of the Capacity Assurance Evaluation.
D. Hydraulic Model
19. MSD shall continue to use the most current software version of the computerized
hydraulic model of its Sanitary Sewer System ("Model") that has been tested and verified by
MSD to produce accurate results. MSD shall continue to use and develop the Model in the
assessment of the hydraulic capacity of the Sanitary Sewer System, and in the identification of
appropriate remedial measures to address all capacity and condition limitations identified in its
Sanitary Sewer System, including the impacts of Force Mains and Pumping Stations. MSD shall
continue to develop the Model to provide a detailed understanding of the response of its Sanitary
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-~·~·------·-··----------------------------
Sewer System to wet weather events and an evaluation of the impacts of proposed remedial
measures and removal or reduction ofl/1 flow, as follows:
a. MSD shall use its best efforts to configure the Model to accurately represent
MSD's Sanitary Sewer System, including the impacts of Force Mains and Pumping Stations, in
accordance with currently accepted engineering practices. MSD may model its Sanitary Sewer
System in different levels of detail, and on various schedules as necessary to identify hydraulic
restrictions within the system. MSD's Model shall include (i) gravity sewers twelve inches in
diameter or greater and (ii) all gravity sewers that go to known Constructed SSO Outfalls.
b. MSD shall configure the Model using adequate, accurate, and sufficiently current
physical data for its Sanitary Sewer System.
c. MSD shall calibrate using two data sets and verify the Model with one additional
independent event, including rainfall data, metered hydrographs and Sanitary Sewer System flow
data, to the extent data is available and reliable, as outlined in Section 6.2.2.2 of the USEPA
report, EPA/600/R-071111, "Computer Tools for Sanitary Sewer System Capacity Analysis and
Planning," October 2007.
20. MSD shall develop and submit as part of its Sanitary Sewer Overflow Control Master
Plan required in Section V.F., documentation of the Hydraulic Model for each Watershed, which
shall include:
a. A description of the Hydraulic Model, including the brand name of the Model and
its capabilities;
b. Digitized map(s) and schematics that identify and characterize the portions
(including the specific gravity sewer lines, Pumping Stations, and Force Mains) of the Sanitary
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Sewer System included in the Hydraulic Model;
c. Identification of input parameters, constants, assumed values, and outputs; and
d. A summary of activities undertaken to configure, calibrate, and verify the
Hydraulic Model.
E. Capacity Assurance Evaluation
21. MSD shall submit as part of its Sanitary Sewer Overflow Control Master Plan required
by Section V.F., a Capacity Assurance Evaluation which shall include the following information:
a. Determination of existing flows for each Watershed within the Sanitary Sewer
System;
b. Average and peak daily dry weather flow;
c. Peak wet weather flow and peaking factors (the ratio of peak flow to average dry
weather flow);
d. Identification of portions of the Sanitary Sewer System experiencing levels of
Excessive III that cause or contribute to SSOs, Building Backups, Bypasses, and/or overloading
of the WWTFs;
e. Identification of the estimated peak flow capacities of modeled portions ofthe
Sanitary Sewer System with inadequate capacity to convey peak wet weather flows, and
identification of the nominal peak flow capacities of unmodeled portions of the Sanitary Sewer
System suspected of having inadequate capacity to convey peak wet weather flows. In the case
of the Sanitary Sewer System, adequate capacity is the ability ofthe sewer, Force Main,
Pumping Station, or structure to convey peak wet weather flows without experiencing
surcharging sufficient to cause SSOs, including failure of the largest pump in any Pumping
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Station and/or primary power failure to any Pumping Station, pursuant to MSD's current
methodology as ofthe Date of Lodging. In case of inadequate capacity, and the Sewer System is
being replaced, the replacement sewer shall be designed to a 1 0-year design storm condition;
f. Identification of any inadequate capacity in the WWTFs. In the case of the
WWTF s, inadequate capacity is the inability to provide full treatment, without bypass, to all
flow reaching the WWTF, and to discharge those flows in full compliance with the applicable
MSD's Missouri State Operating Permits in effect at the time of Capacity Assurance Evaluation
is conducted;
g. Capacity Assurance Evaluation shall account for projected population and flow rate
growth through 2035; and
h. Summaries of the number and length of sewer segments surcharged due to
inadequate capacity or backwater conditions, and the number of structures that the model
estimates will overflow (including Constructed SSO Outfalls) under each condition investigated.
22. The Capacity Assurance Evaluation shall assess existing and future capacity of the
Sanitary Sewer System to ensure the ability to convey predicted peak flows. MSD shall give
priority in this Capacity Assurance Evaluation to the elimination of Constructed SSO Outfalls
and known SSOs.
F. Sanitary Sewer Overflow Control Master Plan
23. No later than December 31,2013, MSD shall submit to EPA and the State for review
and for EPA's approval, with a copy to the Coalition, in accordance with the requirements of
Section VII, a Sanitary Sewer Overflow Control Master Plan ("Master Plan") describing (1) the
results of the SSES in accordance with the requirements of Section V.C., Hydraulic Model in
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accordance with the requirements of Section V.D., and the Capacity Assurance Evaluation in
accordance with the requirements of Section V.E., and (2) the specific measures that will result
in the Elimination of all Constructed SSOs Outfalls, all known SSOs, and Building Backups,
and/or that are necessary to ensure that there is adequate capacity in the Sanitary Sewer System
to collect, convey, and treat anticipated peak wet weather flows under current and projected
future conditions as defined in Paragraphs 21 (e) and (g) above.
24. In its Master Plan, MSD shall also include remedial measures to address capacity
limitations and to eliminate bypassing within its Sanitary Sewer System, which may include
removal of Ill sources (identifying the anticipated III removal rates used in the development of
Master Plan); increases in the capacities of sewer pipes, Force Mains, and Pumping Stations
(including redundant pumps and/or alternative power supplies) in both Sanitary Sewer System
and Combined Sewer System; construction of storage or equalization basin facilities; increases
in wastewater treatment capacity; and WWTF upgrades and repair measures.
25. MSD shall also provide in its Master Plan a flow metering plan and a list of locations of
flow meters to be installed on the sanitary trunk sewers which convey major flow into the
Combined Sewer System.
26. The Master Plan shall provide a schedule of specific projects for the Elimination of all
Constructed SSO Outfalls and the goal of eliminating all other known SSOs as expeditiously as
possible. The schedule shall provide for the Elimination of at least 85% of the Constructed SSO
Outfalls and the goal of eliminating all other known SSOs no later than December 31, 2023. The
calculation of the 85% figure shall be based upon the May 5, 2009 bypass database and any
additional Constructed SSOs Outfalls subsequently discovered by MSD. Included within the
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85% figure shall be the eleven Constructed SSO Outfalls: BP-591; BP-155; BP-170; BP-348;
BP-349; BP-198; BP-443; BP-545; BP-008; BP-451; and BP-621 which must be Eliminated by
the construction of at least 2 holding tanks, linear storage, and/or other appropriate solutions no
later than December 31, 2023. MSD shall identify dates for initial design, commence
construction, complete construction, and placement in service for each remedial measure and
Elimination project. In proposing the timing and order of Elimination projects, MSD shall set
priorities among projects based upon (i) potential for human health and environmental impact
risks; (ii) frequencies of activation; (iii) estimated volumes; and (iv) technical engineering
judgment.
27. In its Master Plan, MSD may propose, subject to EPA approval, to schedule the
Elimination of no more than 15% of the Constructed SSO Outfalls (excluding the eleven
Constructed SSO Outfalls identified in preceding paragraph) later than December 31, 2023, but
only if based upon a demonstration of technical need to delay the specific Elimination project,
but in no event shall the Elimination project be completed later than December 31, 2033.
Technical need shall refer to project sequencing, acquisition of property rights and other legal
requirements, utility coordination and relocation of capital projects by other municipal entities,
unknown soil or other conditions, natural unknown impediments, and other similar issues, but
shall not include financial feasibility.
28. The Master Plan shall provide estimated capital, O&M (if applicable), and present value
costs for each identified remedial measure and Elimination project. Such costs shall be provided
in consistent, year-specific dollars.
29. Upon approval by EPA, MSD shall implement the remedial measures and Elimination
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projects in the approved Master Plan in accordance with a schedule in a format set forth in
Appendix C, and Paragraphs 26 and 27 of this Consent Decree. The approved schedule shall
become an enforceable part of this Consent Decree.
30. In accordance with the format of Appendix C and Paragraphs 26 and 27 of this Consent
Decree, MSD may request that a numbered SSO(s) be rescheduled from the 5-year designated
grouping in the approved Master Plan, Appendix C, to a later or earlier designated 5-year
grouping, provided that the total cumulative number of SSOs to be removed as of any date in the
Master Plan Appendix C does not decrease.
a. Any request made pursuant to this Paragraph shall be made in writing pursuant to
Paragraph 71 with copies to the State and Coalition and all documentation necessary to support
the request for modification. Such request shall include the specific SSO project(s) to be moved
to earlier/later years, an explanation for the proposed modification, anticipated schedule for such
modification, and the identification of the specific SSO projects to be substituted with an
explanation of how the proposed modification will ensure that the total cumulative number of
SSOs to be removed by any date as required in the Master Plan Appendix C does not decrease.
b. If EPA disapproves MSD's proposal, MSD may invoke Informal Dispute
Resolution in accordance with Paragraph 113. The Formal Dispute Resolution and judicial
review procedure set forth in Paragraphs 114 to 120 shall not apply to Paragraphs 30(a)-(d).
c. If the dispute is not resolved by Informal Dispute Resolution, then the position
advanced by the United States shall be considered binding; provided that MSD may, within 30
days after the conclusion of the Informal Dispute Resolution period, appeal the decision to the
Director, Water, Wetlands, and Pesticides Division, EPA Region 7.
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d. EPA's Region 7 Division Director may approve or disapprove, or approve upon
conditions or in a revised form, the proposed modification of the Master Plan, Appendix C. The
determination of EPA's Region 7 Division Director shall be in her/his discretion and shall be
final. MSD reserves the right to file a motion seeking relief in accordance with the Federal
Rules of Civil Procedure 60(b ).
G. Capacity, Manaeement, Operations, and Maintenance Proeram Plan
31. No later than six (6) months from the Effective Date, MSD shall submitto EPA and the
State for review and for EPA's approval, with a copy to the Coalition, in accordance with the
requirements of Section VII, a comprehensive Capacity, Management, Operations, and
Maintenance ("CMOM") Program Plan for its Sewer System. MSD shall incorporate an Asset
Management process into the CMOM program such that the program shall maintain a service
level (e.g. X number of Building Backups per X number of customers during one year period)
based upon an accepted industry standard. The CMOM program shall also categorize assets
according to risk levels and respectively set maintenance, inspection, and
rehabilitation/replacement levels according to the risk imposed to maintain the service level.
The CMOM Program Plan shall contain an identified service level that MSD shall use its best
efforts to obtain. The CMOM Program Plan shall include, at a minimum, the following Asset
Management Performance Standards:
a. Procedures for inspecting Gravity Sewer Lines:
i. MSD shall conduct an internal inspection of each Gravity Sewer pipe that
experiences a blockage resulting from a blocked main or dry weather SSO, using CCTV or other
appropriate inspection methods (excluding Iamping) as soon as is practicable and shall also
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perform CCTV inspection in concert with the permanent repair, rehabilitation, and/or
replacement of sewer pipes as required pursuant to Paragraph 31 (d);
ii. MSD has CCTV' d approximately 1,340 miles of its Sewer System from 2005 to
2010, coupled with data analysis which identified 97% of all Building Backups are related to 12"
or less diameter non-PVC sewer pipe;
iii. Until approval of the Master Plan required by Section V.F., MSD shall CCTV
approximately 120 miles of 12" or less diameter non-PVC sewer pipe per year. MSD shall also
CCTV an additional 280 miles per year until the entire Sewer System is televised. CCTV priority
shall be non-PVC sewer pipes 12" or less diameter, non-PVC sewers greater than 12" diameter,
and all other PVC and CIPP sewer pipes greater than 20 years old;
iv. MSD shall maintain inspection reports and video of sewer pipes exhibiting a
class No.4 and 5 defect(s), which represent the highest categories of risk, and a representative
sampling of other inspection reports and logs of non-PVC sewer pipes for tracking long-term
pipe wall deterioration; and
v. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, the
location and number of miles of sewer pipe inspected by CCTV during the preceding calendar
year. If the Annual Report indicates that MSD has not achieved the required mileage of CCTV
inspection, the Annual Report shall identify and discuss the reasons why the mileage
requirement was not achieved.
b. Procedures for cleaning Gravity Sewer Lines:
i. MSD' s program for prioritizing the cleaning of Gravity Sewer lines shall be
based upon an Asset Management approach and risk categorization which shall consider at a
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minimum: age, material, trouble history calls, location, and internal inspection results;
ii. MSD has cleaned over 6,000 miles of its Sewer System between 2005 and 2010
and has cleaned all of its 12" or less diameter non-PVC sewer pipe between 2008 and 2010.
MSD shall continue to clean all of its 21" or less diameter non-PVC sewer at a minimum of once
every five years. For all PVC and CIPP sewer pipes and sewer pipes 21" or less diameter, MSD
shall ensure that each sewer pipe is cleaned at least once every ten years. Sewer pipes with a
diameter larger than 21" shall be routinely inspected and cleaned as necessary to prevent loss of
hydraulic capacity;
iii. MSD shall continue to maintain computerized logs describing the techniques
for each sewer cleaned and identifying the debris removed. Debris identification shall include, at
a minimum, grease, roots, and grit. This identification process shall be used to identify risk of
sewer blockage, and shall feed into other inspection programs; and
iv. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, the
number of miles and locations of sewer pipes that were cleaned during the preceding calendar
year. If the Annual Report indicates that MSD has not achieved the required mileage of sewer
pipe cleaning, the Annual Report shall identify and discuss the reasons why the mileage
requirement was not achieved.
c. Procedures for inspection, repair, rehabilitation, and replacement of Sewer System
manholes:
i. MSD's program shall include routine inspections and incorporate the use of
conventional dig and repair in place technologies;
ii. No later than three months from the Effective Date, MSD shall inspect 75,000
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manholes, including the manholes inspected between 2008 through the Effective Date. MSD
shall continue to inspect no less than 15,000 manholes annually thereafter with the goal of all
manholes every 10 years. Inspection shall include the evaluation and repair as necessary of
manhole frame-to-adjustment-to-manhole-barrel seals in its Sanitary Sewer System;
iii. MSD shall permanently repair, rehabilitate, and/or replace at least 1,500
manholes annually; and
iv. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, the
number of annual inspections, the number of manhole frame adjustments, and the number of
manholes that were permanently repaired/rehabilitated/replaced during the preceding calendar
year. If the Annual Report indicates that MSD has not achieved the required number of manholes
inspected and/or repaired, rehabilitated, and replaced, the Annual Report shall identify and
discuss the reasons why these requirements were not achieved.
d. Procedures for ensuring that permanent repair, rehabilitation, and/or replacement of
sewer pipes are properly designed and constructed to prevent overflows and reduce sources of
infiltration and inflow, including:
i. MSD has permanently repaired approximately 280 miles of non-PVC sewer
pipes between 2005 and 2010. Pursuant to Paragraph 12, MSD shall permanently repair,
rehabilitate, and/or replace at least $15 million of sewer pipe in the Sewer System annually until
the Master Plan is submitted. The sewer pipelining, repair and/or replacement projects required
in Paragraph 12 shall count towards the requirements in this subparagraph and any sewer
pipelining, repair, and/or replacement projects performed pursuant to this subparagraph shall
count towards the requirements set forth in subparagraph 31 ( d)(ii) be low;
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ii. MSD shall continue to permanently repair, rehabilitate, and/or replace at least
90 miles of sewer pipe in the Sewer System annually for the first ten years after the Effective
Date, and thereafter at least 65 miles annually;
iii. MSD shall permanently repair all acute defects (i.e., those defects that have
caused or substantially increase the risk of a SSO, including conditions leading to imminent
structural collapse or that would create repeated blockages) within one ( 1) year of discovery of
the defect. MSD shall maintain a log listing discovered acute sewer line defects in need of
expeditious repair or replacement, the date MSD discovered the acute defect, and the date of
project completion. Permanent repair means the correction of a structural defect in a manhole to
manhole pipe segment such that the repaired segment has the same or greater life expectancy as
the remainder of the pipe segment; and
iv. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, the
locations and number of miles of sewer pipes that were repaired/rehabilitated/replaced, and a
summary of all acute defects repaired during the preceding calendar year. If the Annual Report
indicates that MSD has not achieved the required mileage of sewer pipe
repair/replacement/rehabilitation, the Annual Report shall identify and discuss the reasons why
the mileage requirement was not achieved.
e. MSD shall develop and periodically update a standard procedure flow diagram and
training materials for maintaining a system documenting customer complaints, work orders,
updates to equipment inventory, as well as including standard problem coding and response
procedures.
f. MSD shall develop and periodically update a standard procedure flow diagram and
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training materials to be followed by MSD personnel for the evaluation, operation, preventive and
routine maintenance, and emergency response ofMSD's Sewer System, including Force Mains
and Pump Stations.
g. MSD shall continue to refine procedures for adequately training MSD collection
system operators which currently is a two (2) year training program upon hiring. If outside
contractors are hired, MSD shall ensure they have sufficient knowledge and ability to promptly
identify and address problems in its Sewer System with priority given to those problems which
could lead to Non-Capacity Related SSOs;
h. MSD shall develop and periodically update a standard procedure flow diagram and
training materials for developing and implementing a root control program that addresses, at
minimum, scheduling and performing corrective measures including both short-term mitigation
of root intrusion (i.e., routine maintenance) and rehabilitation of the areas in which root intrusion
has caused recurring blockages (i.e., sewer replacement or relining), and a proposal that includes
scheduled inspection and/or increased cleaning of known problem areas;
i. MSD shall develop and periodically update a standard procedure flow diagram for
developing and implementing routine and preventative maintenance program for Pump Stations
that include:
1. MSD shall determine the criticality and risk of failure for each Pump Station
based upon Asset Management principles, considering, at a minimum: daily flows, age, installed
redundancy, alternate power supply, 5-year trouble and maintenance history, location, population
affected, and environmental concerns;
ii. MSD shall conduct comprehensive inspections no less than monthly for all
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Pump Stations, no less than twice per month for pump stations between 1 MOD to 5 MOD in
peak hydraulic capacity, and no less than weekly for pump stations greater than 5 MOD in peak
hydraulic capacity;
iii. MSD shall use SCADA to continuously monitor station performance; and
iv. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, how
many Pump Stations were inspected, as well as the location and capacity of those Pump Stations
inspected during the preceding calendar year.
j. MSD shall develop and periodically update a standard procedure flow diagram for
incorporating and implementing a method for corrective and emergency Pump Station response
to operational failures that include:
i. Problem detection through continuous SCADA monitoring, including alarms
transmitted to 2417 occupied system control centers indicating SCADA malfunctions, high wet
well, individual pump failure, primary power failure, and back-up power failure;
ii. MSD shall develop and maintain a Pump Station inventory listing, including,
but not limited to, installed redundant pump capacity, provisions for quick connection of
emergency pumps, on-site alternative power system, provisions for quick connection of
emergency portable power systems, storage, pumping system controls and alarm systems,
lightning protection, criticality rating, pump size, and hydraulic capacity; and
iii. MSD shall create and maintain a list of backup portable pumping equipment
and portable generators available for Pump Stations that rely on redundant storage only to
prevent overflows during periods of pumping equipment malfunction or primary power outage.
k. MSD shall develop and periodically update a standard procedure flow diagram for
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maintaining a method for inspection and repair of Force Mains that include the following
elements:
i. Incorporate an Asset Management approach and risk categorization scale that
classifies each of the 125 miles of Force Main as either High, Medium, or Low risk that shall
consider at a minimum: daily flows, age, material, size, maintenance history, location including
population affected, and environmental concerns;
ii. Incorporate a defined and recurring visual and nondestructive inspection
techniques (e.g., pressure testing, acoustic leak detection, external inspection via test pits,
electrical resistivity and soil acidity testing, replacement of spent anode packs), critical part
inventories, and emergency response procedures such that the following criteria are met:
Classification of Frequency of Visual Frequency ofNon-Critical Parts
Force Main Inspection Destructive Testing Inventory and
Inspection Emergency Response
Procedures
High-Risk Annually Once every three Required
years
Medium-Risk Once every two years Once every six years Required
Low-Risk Once every five NIA N/A
years
iii. MSD shall repair all defects identified during either the visual and/or
nondestructive inspections within one (1) year of discovery of the defect; and
iv. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, the
locations and number of miles of Force Mains that were inspected and/or repaired during the
preceding calendar year. If the Annual Report indicates that MSD has not achieved the required
number of miles of Force Mains that were inspected and/or repaired, the Annual Report shall
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identify and discuss the reasons why the mileage requirement was not achieved.
32. If, in any year, MSD CCTV inspects, cleans, repairs, rehabilitates, or replaces more
pipes, manholes or Force Mains than stated above, MSD may bank the excess to be applied
against a future year's requirement in the same category. As part of its Annual Report required
by Paragraph 73, MSD shall identify the number of miles MSD proposes to bank for each
category and document the basis for MSD's position that it has exceeded the mileage or activity
requirements in this Consent Decree. The banking account for each individual category will
constitute the immediate past three (3) years, provided that once banked miles have been used
they cannot be used in any subsequent year.
33. CMOM Program Plan Implementation: MSD shall implement the revised CMOM
Program Plan within 90 days of receipt of EPA's approval ofthe CMOM Program Plan. MSD
shall annually review its CMOM Program Plan and update the program as necessary to ensure
that the program is achieving the service levels contained in the approved CMOM Program Plan.
In its Annual Report, MSD shall submit any proposed changes to the Asset Management
Performance Standards (e.g., various mileage requirements), subject to EPA's approval. IfMSD
does not meet its service levels as set forth in its CMOM Program Plan, MSD shall submit in its
Annual Report for EPA's approval proposed revisions to its CMOM Program Plan that are
necessary to achieve the service levels. Upon approval of revised Asset Management
Performance Standards, said approved, revised standards shall supersede previously approved
standards.
H. Fats. Oil and Grease Control Pro&ram Plan
34. No later than three months from the Effective Date, MSD shall submit to EPA and the
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State for review and for EPA's approval, with a copy to the Coalition, in accordance with the
requirements of Section VII, a Fats Oil & Grease ("FOG") Control Program Plan to ensure that
grease accumulations are not restricting the capacity of the Sewer System contributing to SSOs.
35. The FOG Control Program Plan shall include the following elements:
a. Identification ofthe specific departments ofMSD that will lead investigations
associated with grease blockages;
b. Development of appropriate sections for inclusion in the standard operating
procedures in the FOG Program Plan for locating and preventing FOG accumulations;
c. Development of maintenance guidance for FOG commercial establishments
including best management practices. This guidance shall expressly state that the FOG
commercial establishments shall comply with the applicable plumbing code requirements. MSD
shall provide the FOG maintenance guidance to FOG commercial establishments when MSD
conducts an inspection of these establishments;
d. Development of performance guidelines for FOG control equipment at new and
existing FOG commercial establishments. MSD shall provide the FOG performance guidelines
to public entities who are responsible for the plumbing code requirements of these commercial
establishments;
e. Both periodic and random FOG equipment inspections, including scheduled
inspections of known problem areas;
f. Implementation of FOG best management practices;
g. Development of FOG prevention measures including notification of pretreatment
staff and/or FOG control staff, as appropriate, of recurring grease blockages;
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h. Implementation of Hauled Waste Receipt Program;
1. Enforcement procedures for non-compliant facilities;
j. Development of Residential and Commercial Establishments FOG Outreach and
Education Program consisting, at a minimum, of the following elements:
1. MSD shall distribute informational FOG Door Hangers to residents living
immediately upstream of each grease SSO after such an event;
ii. MSD shall annually prepare and distribute FOG information or inserts with
sewer bills so that it is visible to reader;
iii. MSD shall prepare and maintain a FOG education information page on its web
site; and
tv. MSD shall evaluate the most appropriate method of educating high density
residential dwellings (i.e. apartment buildings and condominium and townhome complexes) of
the impacts of FOG on the sewer system.
k. A list of FOG commercial and industrial establishments;
I. A list of enforcement actions taken against non-compliant facilities within the last 5
years;
m. MSD's current schedule for periodic and random FOG equipment inspections and a
listing of inspections that have taken place within the past 5 years;
n. MSD shall review new commercial and industrial sewer connection permit
applications to ensure applicant has adequate FOG removal or control equipment; and
o. MSD shall submit as part of its Annual Report pursuant to Paragraph 73,
summaries of FOG inspections and enforcement actions taken by MSD during the preceding
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calendar year.
36. FOG Control Program Plan Implementation: MSD shall implement the revised FOG
Control Program Plan within 90 days of receipt ofEPA's approval of such Plan.
I. Certification of Leeal Authority
37. MSD hereby certifies in accordance with Section of XVIII that as to the POTW,
including the Sewer System, it has sufficient legal authority to:
a. Control Excessive Ill from private and public sources;
b. Require that sewers and connections be properly designed and constructed;
c. Ensure that there is proper installation, testing and inspection of new and
rehabilitated sewers;
d. Allow and require implementation of the general and specific prohibitions of the
pretreatment program as defined in 40 C.F.R. § 403.5;
e. Prohibit Inflow and provide mechanisms for requiring its removal; and
f. Control the introduction of fats, oil, and grease from commercial institutions and
establishments.
38. The legal authority may be in the form of sewer use ordinances, service agreements,
contracts or other legally binding mechanisms.
J. Private Infiltration and Inflow Reduction Proeram
39. No later than six months from the Effective Date, MSD shall submit to the EPA and the
State, with a copy to the Coalition, a plan describing in detail the proposed remedial actions
working in coordination with the public entities within MSD boundaries and the public regarding
prohibited discharges of storm waters, Surface Waters, ground waters, roof runoff, Excessive Ill
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to the Sanitary Sewer System.
40. Where a Private Lateral, or other connection to that lateral, is a major source of 1/1 that
causes or contributes to a capacity-related SSO or Building Backup from the Sanitary Sewer
System, MSD shall, within sixty days of the date ofthe identification of such a lateral, notify the
owner(s) of the lateral(s) that the lateral(s) is a significant source ofl/1 and that the owner(s)
shall take action consistent with MSD's legal authority to repair, rehabilitate, replace, terminate,
or take other appropriate action with regard to the lateral. If the owner(s) of the lateral(s) fail to
take appropriate steps to repair, rehabilitate, replace, terminate, or other appropriate action with
regard to the lateral(s), MSD shall, within six months of the owner(s)' failure to remedy the
problem, either take remedial action to repair, rehabilitate, replace, terminate the lateral(s), or
other appropriate action.
41. MSD shall appropriately enforce the portions of its Sewer Ordinance (Ordinance
No.l2559) related to Section V.J. ofthis Consent Decree. The plan required in Paragraph 39
above shall also include a summary of the types of actions taken by MSD to ensure compliance
with its Sewer Ordinance (Ordinance No.l2559).
42. MSD shall evaluate its "Abandonment of Sanitary Sewer Services" in the document
entitled MSD Rules and Regulations and Engineering Design Requirements, February, 2006,
with regards to whether the regulation is sufficient to reduce effectively ongoing 1/1 following
abandonment of a lateral that may cause or contribute to an SSO or Building Backup from the
Sanitary Sewer System. The evaluation shall focus on the location at which lateral sewer lines
should be plugged. The primary objective should be to eliminate Ill from abandoned sewer lines
that are not properly maintained and may be damaged (due to age or modification of the existing
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property). No later than six months from the Effective Date, MSD shall provide the results of
the evaluation to the EPA and the State, with a copy to the Coalition.
K. Revised Non-Capacity Related SSO Response Plan
43. No later than three months from the Effective Date, MSD shall provide to EPA and the
State for review and for EPA's approval, with a copy to the Coalition, a revised Non-Capacity
Related SSO Response Plan that results in Non-Capacity Related SSOs being responded to and
halted as rapidly as possible.
44. The Non-Capacity SSO Response Plan shall provide procedures for responding to Non-
Capacity Related SSOs and minimizing the environmental impact and potential human health
risk from contact with sewage. The Non-Capacity Related SSO Response Plan shall include, but
not be limited to:
a. A detailed description of the actions MSD will undertake to provide required notice
to the public, federal, state or local agencies/authorities of the SSO;
b. A detailed response plan to
notification,
i. provide an onsite response team, normally within four (4) hours of receiving
ii. minimize wastewater volumes escaping from MSD's Sewer System,
iii. minimize environmental impacts and human health affects,
iv. provide clean-up procedures, and
vi. Receiving Stream monitoring, where appropriate, and data capture and
documentation procedures.
45. MSD shall implement the revised Non-Capacity Related SSO Response Plan within 60
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days of receipt of EPA's approval of such Plan. MSD shall provide notice and certify to EPA,
with copies to the State and the Coalition, in accordance with Sections XVII and XVIII, that the
Non-Capacity Related SSO Response Plan has been fully implemented. The Non-Capacity
Related SSO Response Plan shall be updated and implemented as appropriate. Any substantive
updates, changes or revisions to the Non-Capacity Related SSO Response Plan shall be subject
to EPA's review and approval in accordance with Section VII.
L. Buildine Backup Response Plan
46. No later than three months from the Effective Date, MSD shall provide to EPA and the
State for review and EPA's approval, with a copy to the Coalition, in accordance with the
requirements of Section VII, a Building Backup Response Plan that (a) results in Building
Backups being responded to and, if determined to be a Building Backup, halted as expeditiously
as practicable, and (b) results in appropriate measures being implemented to address Building
Backup recurrence.
4 7. The Building Backup Response Plan shall provide procedures for responding to
Building Backup calls to minimize the potential human health risk from contact with sewage.
The Building Backup Response Plan shall include, but not limited to:
a. Standard Operating Procedures to be followed by MSD personnel in responding to
Building Backup calls shall include MSD personnel recording information and responding to the
calls, generating a service request, and providing onsite response, if necessary. If determined to
be a Building Backup, the backup will be eliminated within four (4) hours of receiving notice or
as quickly as possible if extenuating circumstances exist. If onsite response is given then MSD
shall provide building occupants and/or owners with the Building Backup clean-up guide as
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required by Paragraph 47(c), as well as provide information on the prevention ofBuilding
Backups, backup prevention devices, and the possibility of monetary reimbursement if occupants
and/or owners may be eligible as determined by MSD.
b. A description of the actions MSD shall undertake to educate the public through
appropriate and current methods, including MSD website, brochures, door hangers, billing
inserts or other methods regarding Building Backups, including how to report Building Backups
to MSD, protection from contact with raw sewage during cleanup, potential health effects and
safety issues related to contact with raw sewage, professional clean up assistance, the availability
ofMSD's Building Backup clean-up guide as required by Paragraph 47(c), and the availability
of Building Backup monetary reimbursement and/or MSD's Sewer Separation Program ("SSP"),
as appropriate.
c. A revised Building Backup clean-up guide produced in multiple languages to be
made available on MSD website and distributed to property owners or residents if onsite
response is given by MSD. This clean-up guide shall provide recommended clean-up procedures
necessary to disinfect and/or remove items potentially contaminated by the Building Backup.
The clean-up guide shall also provide descriptions of potential health affects and safety issues
resulting from contact with sewage, as well as provide information on how to minimize
exposure.
d. A Building Backup Prevention Program that describes MSD's activities and
programs to prevent the occurrence of Building Backups through, for example, MSD's SSP
which includes the installation and maintenance of individual grinders, pump stations and
sewerage back-flow preventers and the referral of customers to local lateral repair programs to
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address Building Backups. The Building Backup Prevention Program shall also provide:
1. A summary of completed and ongoing SSP activities;
ii. Annual inspection and maintenance of SSP projects;
iii. An assessment of SSP effectiveness in reducing Building Backups on an
individual residential unit basis and its overall effectiveness in reducing the number of Building
Backup events throughout MSD's jurisdictional boundary;
iv. Anticipated changes regarding SSP use, availability to the public, ongoing
maintenance activities and responsibilities, and type(s) of equipment; and
v. A summary of how the SSP installation and maintenance procedures will be
communicated to the customers.
48. MSD shall implement the Building Backup Response Plan within 60 days of receipt of
EPA's approval of such Plan or resolution of a dispute concerning the Building Backup
Response Plan pursuant to Section XIV. The Building Backup Response Plan shall be updated
and implemented on a regular basis, as appropriate. Any substantive updates, changes or
revisions to the Building Backup Response Plan shall be subject to EPA's review and approval
in accordance with Section VII.
M. Cityshed Mitigation Program
49. MSD shall continue its Cityshed Mitigation Program to mitigate the effect of wet
weather surcharging and overland flooding of the combined sewer system (Citysheds). This
program may consist of but is not limited to sewer separation, relief sewers, sewer separation
program ("SSP") for individual properties, control/detention of wet weather flows, relocation of
existing residents, and mapping of flood prone areas. MSD shall maintain a regular annual
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program with the goal of spending $230 million over the life of the Consent Decree.
50. MSD shall submit as part of its Annual Report pursuant to Paragraph 73, a description
of projects and project costs associated with the City shed Mitigation Program performed during
the previous annual period, and provide a summary of accumulated annual costs toward the
associated spending goal. Said projects shall be independent for financial accounting purposes
from any other section of this Consent Decree, including appendices or any modifications
thereof.
VI. IMPLEMENTATION OF CSO CONTROL MEASURES
AND POST -CONSTRUCTION MONITORING
A. Implementation of CSO Control Measures
51. MSD shall construct and implement the CSO Control Measures in accordance with the
descriptions, Design and Performance Criteria, and the dates for Bid Year and Achievement of
Full Operation for each CSO Control Measure set forth in Appendix D.
B. Post-Construction Monitorine Proeram
52. MSD shall perform the Post-Construction Monitoring Program set forth in Appendix E
in accordance with the provisions and schedule set forth therein.
C. Achievement of Performance Criteria
53. By the specified date for Achievement of Full Operation for each specified CSO
Control Measure set forth in Appendix D, MSD shall achieve the Performance Criteria specified
in Appendix D for the specific CSO Control Measure. The procedures set forth in the Post-
Construction Monitoring Program at Appendix E shall be used to determine whether MSD has
achieved the Performance Criteria specified in Appendix D.
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D. Compliance with MSD's Missouri State Operatine Permits
54. MSD shall at all times comply with the requirements set forth in EPA's CSO Policy to
ensure that no discharges from Combined Sewer Overflows occur (i) during dry weather, (ii)
anywhere other than at locations designated within MSD's Missouri State Operating Permits, or
(iii) at any time when MSD is not in full compliance with the Nine Minimum Controls set forth
in MSD's Missouri State Operating Permits.
E. Supplemental Remedial Measures Plan
55. If, following Achievement of Full Operation of any specific CSO Control Measure(s),
information becomes available, including information developed as a result of the Post-
Construction Monitoring Program, that MSD:
a. Did not construct all CSO Control Measures in accordance with the Design Criteria
set forth in Appendix D;
b. Has not achieved the Performance Criteria pertaining to the specific CSO Control
Measure(s) set forth in Appendix D; or
c. Is not complying with all requirements ofMSD's Missouri State Operating Permits
in effect pertaining to CSO discharges and secondary treatment bypasses;
then MSD shall, within 90 days of receipt of notice from EPA, submit to EPA and the State for
review and for EPA's approval, with a copy to the Coalition, (1) a plan for performing
supplemental remedial measures to achieve compliance and additional post-construction
monitoring and modeling ("Supplemental Remedial Measures Plan") and (2) a request for the
extension of the deadline for the Achievement of Full Operation for the CSO Control Measure at
issue to allow for implementation of supplemental remedial measures. The Supplemental
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Remedial Measures Plan shall include a description of the remedial measures that MSD will take
to ensure that compliance will be achieved; a schedule that is as expeditious as possible for
design, construction, and implementation of the measures; a description of additional post-
construction monitoring and modeling needed to assess whether MSD has achieved compliance;
and a schedule for performing such monitoring and modeling.
56. Upon demonstration by MSD that water quality standards for dissolved oxygen cannot
be met solely due to reasons other than remaining CSO discharges (e.g., Mississippi River
backwater effects), MSD shall not be required to propose supplemental remedial CSO Control
Measure(s), provided that the Post-Construction Monitoring Program has demonstrated
compliance of the constructed CSO Control Measure(s) with the Performance Criteria set forth
in Appendix D.
57. Upon receipt of EPA's approval of the Supplemental Remedial Measures Plan, or upon
resolution of any disputes in accordance with Section XIV (Dispute Resolution), MSD shall
implement the Approved Supplemental Remedial Measures Plan (including additional
monitoring and modeling) in accordance with the schedule and terms set forth therein.
58. a. Should MSD determine, following Achievement of Full Operation of all CSO
Control Measures required under Paragraph 51, and upon completion of the Post-Construction
Monitoring Program required under Paragraph 52 and set forth in Appendix E, that MSD has not
achieved the Performance Criteria set forth in Appendix D, and cannot achieve the Performance
Criteria in the absence of additional remedial measures that MSD maintains would be cost
prohibitive, technically infeasible, or otherwise inappropriate, MSD may propose to the Director,
Water, Wetlands, and Pesticides Division, EPA Region 7, a modification of the Performance
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Criteria. The Performance Criteria review process set forth in this Paragraph shall be the
exclusive means by which MSD may seek modification of Performance Criteria.
b. Any proposal by MSD to modify the Performance Criteria under this Paragraph
shall be in writing and shall include:
1. a certification in accordance with Section XVIII that MSD has properly
designed and constructed the CSO Control Measures to achieve the Performance Criteria
consistent with accepted industry standards;
ii. a post-construction monitoring report prepared consistent with Appendix E
which demonstrates that MSD has not achieved the Performance Criteria;
iii. a detailed description of additional remedial measures that would be required
to achieve the Performance Criteria, including the projected costs of such measures;
iv. a detailed discussion of the reasons MSD believes that additional remedial
measures would be cost prohibitive, technically infeasible, or otherwise inappropriate; and
v. the text of the proposed modification of the Performance Criteria.
c. If EPA disapproves MSD's proposal, MSD may invoke informal dispute resolution
in accordance with Paragraph 113. The formal dispute resolution and judicial review procedures
set forth in Paragraphs 114-120 shall not apply.
d. If a dispute is not resolved by informal dispute resolution, then the position
advanced by the United States shall be considered binding; provided that MSD may, within 30
days after the conclusion of the informal dispute resolution period, request a meeting with the
Director in person to review MSD's proposal. EPA may retain one or more independent
consultants to assist it in its evaluation ofMSD's proposal. The Coalition may submit a position
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paper and attend the in-person meeting.
e. 1. Following the meeting described in Paragraph 58( d), the Director shall issue
a written initial determination recommending approval, disapproval, or approval subject to
conditions or revisions ofMSD's proposal, and shall immediately transmit such determination to
the EPA Region 7 Regional Administrator and MSD.
ii. MSD may appeal the initial determination within 30 Days to the Regional
Administrator by submitting any documents that MSD deems relevant and appropriate. During
the pendency of any such appeal, the Parties shall seek to reach agreement on any issues upon
which they disagree.
iii. The Regional Administrator may approve or disapprove, or approve upon
conditions or in a revised form, the proposed modification of the Performance Criteria. The
determination of the Regional Administrator shall be in her/his discretion and shall not be
subject to judicial review, except that, if she/he approves a modification of Performance Criteria,
the modification shall not be effective until a modification of the Consent Decree is approved by
the Court in accordance with Paragraphs 59 and 136 of the Consent Decree.
59. Any proposed modification of the Consent Decree resulting from a modification of
Performance Criteria pursuant to Paragraph 58 shall be subject to public notice and comment
pursuant to 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold its
consent to any such proposed modification of the Consent Decree if public comments received
disclose facts or considerations which indicate that the modified Consent Decree would be
inappropriate, improper, or inadequate.
60. The approved L TCP and CSO Control Measures in Appendix D address all permitted
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known CSOs in MSD's Bissell Point and Lemay Missouri State Operating Permits. If water
quality standards for indicator bacteria for the 28.3 mile segment of the Mississippi River water
body between the Meramec River and North Riverfront Park in St. Louis change and are
incorporated into MSD's Missouri State Operating Permits for Lemay and Bissell Point, MSD
shall submit to EPA and the State for review and for EPA's approval, with a copy to the
Coalition, an update to its Long Term Control Plan that shows existing controls meet the new
water quality standards or proposes additional controls that are anticipated to meet the new water
quality standards. MSD shall also submit to EPA and the State for review and for EPA's
approval, with a copy to the Coalition, proposed changes to the Design and Performance Criteria
and Critical Milestones for the CSO Control Measures in Appendix D as necessitated by the
revised L TCP, and proposed changes to the Post-Construction Monitoring Program in Appendix
E as necessitated by the revised LTCP. MSD may invoke dispute resolution if it disagrees with
EPA. MSD shall implement the approved, revised LTCP.
61. MSD may request that the Design Criteria for the CSO Control Measures listed in
Appendix D be revised if it can demonstrate that the requested revision (1) reflects good
engineering practice and (2) will continue to achieve the Performance Criteria specified in
Appendix D. The Design Criteria review process set forth in this Paragraph shall be the
exclusive means by which MSD may seek modification of Design Criteria:
a. Any request by MSD for modification made pursuant to this Paragraph shall be
made in writing to EPA pursuant to Paragraph 71, with copies to the State and the Coalition,
with all documentation necessary to support the request for modification, including all
information relevant to the two criteria set forth above.
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b. If EPA disapproves MSD's proposal, MSD may invoke Informal Dispute
Resolution in accordance with Paragraph 113. The Formal Dispute Resolution and judicial
review procedure set forth in Paragraphs 114 to 120 shall not apply to Paragraph 6l(a)-(f).
c. If the dispute is not resolved by Informal Dispute Resolution, then the position
advanced by the United States shall be considered binding; provided that MSD may, within 30
days after the conclusion of the Informal Dispute Resolution Period, appeal the decision to the
Director, Water, Wetlands, and Pesticides Division, EPA Region 7.
d. EPA's Region 7 Division Director may approve or disapprove, or approve upon
conditions or in a revised form, the proposed modification of the Design Criteria. The
determination of EPA's Region 7 Division Director shall be in her/his discretion and shall be
final. MSD reserves the right to file a motion seeking relief in accordance with the Federal
Rules of Civil Procedure 60(b ).
e. If EPA approves a greater than 20% revision of Design Criteria, the modification
shall not be effective until a modification of the Consent Decree is approved by the Court in
accordance with Paragraph 136 of the Consent Decree.
f. Any proposed modification of the Consent Decree resulting from a greater than
20% modification of Design Criteria pursuant to Paragraph 61 shall be subject to public notice
and comment pursuant to 28 C.F.R. § 50.7. The United States reserves the right to withdraw or
withhold its consent to any such proposed modification of the Consent Decree if public
comments received disclose facts or considerations which indicate that the modified Consent
Decree would be inappropriate, improper, or inadequate.
62. If MSD experiences significant adverse changes to its financial circumstances or other
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financial or budgetary issues, MSD may request a modification of a CSO Control Measure
and/or CSO Critical Milestone in this Consent Decree and Appendix D. The request for
modification shall be made in writing to the United States, with copies to the State and the
Coalition, and shall:
a. Provide a detailed discussion of the significant adverse change to MSD's financial
circumstances or other financial or budgetary issues;
b. Specify which CSO Control Measure and/or CSO Critical Milestone cannot be
complied with;
c. Propose a revised CSO Control Measure and/or CSO Critical Milestones that are
expeditious as possible; and
d. Include all documents and information supporting the request.
MSD shall provide such additional information requested by the United States as is reasonably
necessary to assist in evaluating the modification request. If the Parties agree on a proposed
modification to the Consent Decree, the modification shall be incorporated into an amended
consent decree that shall be subject to court approval after public notice and comment in
accordance with Section XXIII.
63. If the Parties do not agree that a modification proposal under Paragraph 62 above is
warranted, and MSD believes modification is appropriate, MSD reserves its rights to file a
motion pursuant to FRCP 60(b) seeking modification of a CSO Control Measure and/or CSO
Critical Milestone in this Consent Decree and Appendix D; provided, however, that the United
States reserves its rights to oppose any such motion and to argue that such modification is
unwarranted. Such a motion by MSD shall not relieve MSD of its obligations pursuant to
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Sections V and VI, unless the Court orders otherwise, and MSD shall continue with timely
implementation of the CSO Control Measures until the Court rules on any motion described in
this Paragraph in a manner that modifies MSD's obligations under this Decree.
VII. REVIEW AND APPROVAL PROCEDURES
64. After review of any plan, report or other item that MSD is required to submit for
approval to EPA pursuant to this Consent Decree, EPA shall: (a) approve the submission, in
whole or in part; (b) approve the submission upon specified conditions; (c) disapprove, in whole
or in part, the submission, providing comments identifying deficiencies and directing MSD to
modify the submission; or (d) any combination of the above. If EPA partially approves,
disapproves the submission, in whole or in part, or if EPA approves it upon specified conditions,
EPA shall notify MSD in writing of those portions of the submission that EPA disapproves or
approves upon specified conditions. The State and the Coalition shall have forty·five (45) days
from the date ofMSD's submission to provide EPA with any written comments. If a time
constraint imposed by this Consent Decree does not allow forty· five (45) days for the State and
the Coalition to provide written comments to EPA, EPA shall notify the State and the Coalition
of the reasonable time period in which they may provide written comments to EPA, and the State
and Coalition shall provide any written comments within that reasonable time period. EPA
agrees to consider any written comments by the State and Coalition that are received by EPA
within the time frames described in this Paragraph.
65. In the event of approval, or approval upon conditions by EPA, MSD shall proceed to
take any action required by the plan or other item as approved by EPA, except as provided in
Paragraph 68.
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66. Upon receipt of notice of disapproval, partial approval, or conditional approval of a
submission pursuant to Paragraph 64 above, MSD shall within sixty (60) days, if no other time
frame is specified in the notice, address the disapproved portions of the plan, report or other item
and resubmit the plan or other item for approval, subject to MSD's right to dispute resolution
pursuant to Section XIV.
67. EPA may take any of the actions described in Paragraph 64 above with respect to any
resubmitted document. In the event that EPA disapproves a resubmitted plan, report or other
item, or portion thereof, EPA may again require MSD to address the disapproved portions and
resubmit the plan within sixty (60) days of receipt of the disapproval. IfMSD fails to timely
submit the plan or again does not address the disapproved portions, MSD shall be deemed out of
compliance with this Consent Decree. MSD shall within ten (10) business days, unless a longer
period is specified by EPA, proceed with any action required pursuant to the approved
resubmitted plan, or MSD may initiate dispute resolution in accordance with Section XIV of the
Consent Decree. If the Court upholds EPA's disapproval or approval upon conditions, stipulated
penalties shall accrue for such violation from the date on which the resubmitted submission was
originally required.
68. MSD shall proceed, if directed by EPA, to take any action required by any approved
portion ofMSD's submission or resubmission, unless such action is directly dependent upon any
unapproved portion of the submission or resubmission and MSD invokes its right to dispute
resolution pursuant to Section XIV of the Consent Decree. Implementation of any approved
portion of a submission shall not relieve MSD of any liability for stipulated penalties for not
implementing the unapproved and/or conditionally approved portion(s).
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69. Any stipulated penalties applicable to the original submission shall not be payable
unless the first resubmission, as set forth in Paragraph 67 above, is untimely or is disapproved in
whole or in part so as to require another resubmission; provided that, if the original submission
was so deficient as to constitute a material breach ofMSD's obligations under this Consent
Decree, the stipulated penalties applicable to the original submission shall be due and payable
notwithstanding any subsequent resubmissions.
70. All plans, reports, and other items required to be submitted to EPA under this Consent
Decree shall, upon approval by EPA pursuant to Section VII, be enforceable under this Consent
Decree. In the event EPA approves or approves upon conditions a portion of a plan, report, or
other item required to be submitted to EPA under this Consent Decree, the approved portion
shall be enforceable under this Consent Decree, unless such action is directly dependent upon an
unapproved portion of the submission or resubmission and MSD invokes its right to dispute
resolution pursuant to Section XIV.
71. EPA agrees to use its best efforts to expeditiously review and comment on submittals
that MSD is required to submit to EPA for approval pursuant to the terms and provisions of this
Consent Decree. If EPA cannot complete its review of a submittal within ninety (90) days of
receipt of the submittal, or within the time period otherwise provided in this Consent Decree,
EPA shall so notifY MSD before the expiration of the applicable review period. If EPA fails to
approve, provide comments or otherwise act on a submittal within ninety (90) days of receipt of
the submittal, or within the time period otherwise provided in this Consent Decree, MSD shall be
granted an extension by EPA equal to the number of days that EPA's approval was untimely to
complete any dependent subsequent milestones.
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addressed in this Annual Report pursuant to Paragraph 73 and Appendix C;
e. A summary of the status and progress toward achievement of the Performance
Criteria set forth in Appendix D within the previous calendar year, and a projection of the work
to be performed pursuant to Appendix D during the current calendar year. Notification to EPA
of any anticipated delay in performance shall not, by itself, excuse the delay;
f. A report summarizing the results and progress of the Post-Construction Monitoring
Program in accordance with the specific requirements set forth in Appendix E;
g. A description of the enhanced III source elimination projects, the number of miles
of sewer pipelining and replacement projects, as well as the specific locations and costs for each
project for the preceding calendar year, as required by Paragraphs 12-13;
h. Development and status of implementation of Section V.G. (Capacity,
Management, Operations and Maintenance Program) and Section V.H. (Fats, Oil and Grease
Control Program Plan);
i. A progress report summarizing the results and progress of the implementation of
the Supplemental Environmental Project in accordance with the specific requirements set forth in
Section X;
j. Copies of all unpermitted CSO discharge reports submitted to MDNR during the
previous calendar year;
k. Copy of the Nine Minimum Control Annual Report required to be submitted under
its NPDES Permits; and
I. Description of projects and project costs associated with Cityshed Mitigation
Program performed during the previous annual period, and provide a summary of accumulated
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annual costs toward the associated spending goal, as required by Section V .M.
74. All reports required to be submitted in this Section shall contain a certification signed
by a responsible official of MSD in accordance with Section XVIII.
75. MSD shall maintain copies of all written submissions required pursuant to this Section
until five years after the date of termination of this Consent Decree.
76. MSD shall post on its website all written submissions required pursuant to this Section
upon submission of report to EPA, State, and the Coalition. The GIS layers shall not be placed
on the website. Each submission shall remain on the website or by link or other accepted
method for three (3) years.
77. Any information provided pursuant to this Consent Decree may be admissible evidence
in any proceeding to enforce the provisions of this Consent Decree as permitted by law.
IX. CIVIL PENALTY
78. Within thirty (30) Days after the Effective Date of this Consent Decree, MSD shall pay
to the United States a sum of $1,200,000.00 as a civil penalty, together with interest accruing
from the 3 P1 day after the Effective Date at the rate specified in 28 U .S.C. § 1961 as of the
Effective Date. This payment to the United States shall be made by FedWire Electronic Funds
Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be
provided to MSD, following the Effective Date, by the Financial Litigation Unit of the U.S.
Attorney's Office for the Eastern District of Missouri, Ill S. lOth Street, 20th Floor, St. Louis,
Missouri 63102 (phone number 314-539-2200). At the time of payment, MSD shall send a copy
of the EFT authorization form and the EFT transaction record, together with a transmittal letter,
which shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in
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United States of America and the State of Missouri v. Metropolitan St. Louis Sewer District, and
shall reference the civil action number, 4:07-CV-1120 (CEJ), and DOJ case number 90-5-1-1-
08111, to the United States in accordance with Section XVII ofthis Decree (Notices); by email
to acctsreceivable.ClNWD@epa.gov; and by mail to:
EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, Ohio 45268
79. MSD shall not deduct any penalties paid under this Decree pursuant to this Section or
Section XI ("Stipulated Penalties") in calculating its federal income tax.
X. SUPPLEMENTAL ENVIRONMENTAL PROJECT
80. MSD shall implement a Supplemental Environmental Project ("SEP") providing for the
decommissioning of septic tanks and/or connection of residences to MSD 's sewer system, as
well as the repair or replacement of defective residential private laterals. The SEP shall be
completed in accordance with the SEP Plan set forth in Appendix F and this Consent Decree, or
any approved alternate SEP proposal in accordance with Appendix F. The purpose of the SEP is
to secure significant environmental protection and improvements with the implementation of the
project identified in the SEP Plan that are not otherwise required by law. MSD shall complete
this SEP described in Appendix F no later than five (5) years from the Effective Date of this
Consent Decree, or any approved extension of SEP completion date in accordance with
Appendix F.
81. MSD is responsible for the satisfactory completion of the SEP in accordance with the
requirements of this Consent Decree. MSD may use contractors or consultants in planning,
designing, inspecting, and implementing this SEP.
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"" -·--~·-~-·------------------------------
82. With regard to the SEP, MSD certifies the truth and accuracy of each ofthe following:
a. All cost information provided to EPA in connection with EPA's approval ofthe
SEP is complete and accurate and that MSD in good faith estimates that the cost to implement
the SEP is at least $1 ,600,000.00;
b. As of the date of executing this Decree, MSD is not required to perform or develop
the SEP by any federal, state, or local law or regulation; and is not required to perform or
develop the SEP by agreement, grant, or as injunctive relief in this or any other case in any
forum.
c. The SEP is not a project that MSD was planning or intending to construct, perform,
or implement other than in settlement of the claims resolved in this Decree;
d. MSD has not received, and will not receive credit for the SEP in any other
enforcement action or proceeding; and
e. MSD will not receive any reimbursement for any portion of the SEP from any other
person.
83. Beginning with the first full year after the commencement of the implementation of the
SEP, and continuing every year thereafter until the SEP is completed, MSD shall include in its
Annual Report to EPA, as required under Section VIII herein, an update on the SEP
implementation progress and those actions taken to complete the SEP in the preceding year, the
actions planned to implement the SEP in the forthcoming year, any current foreseeable delays in
implementing the SEP, the action being taken to address such delays, and an itemized accounting
of the costs expended for the preceding period and to date.
84. Within one hundred and twenty (120) days after the SEP's date of completion as
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required in Paragraph 80, MSD shall submit to EPA and the State with a copy to the Coalition a
SEP Completion Report. The SEP Completion Report shall contain the following information
for the SEP:
a. A detailed description of the SEP as implemented;
b. A description of any problems encountered in completing the SEP and the solutions
thereto;
c. An itemized list of all eligible SEP costs expended, along with documentation of
such costs;
d. Certification that the SEP has been fully implemented in accordance with the SEP
Plan and the provisions of this Consent Decree; and
e. A description of the environmental and public health benefits resulting from
implementation of the SEP.
85. Following receipt of the SEP Completion Report, EPA shall notify MSD whether or not
MSD has satisfactorily completed the SEP. If MSD has not completed the SEP in accordance
with this Consent Decree, stipulated penalties may be assessed under Section XI of this Decree.
86. Disputes concerning the satisfactory performance of the SEP and the amount of eligible
SEP costs may be resolved under the Dispute Resolution provisions in Section XIV. No other
disputes arising under this Section shall be subject to Dispute Resolution.
87. Each submission required under this Section shall be signed by an official with
knowledge of the SEP and shall bear the certification language set forth in Section XVIII.
88. Any public statement, oral or written, in print, film, or other media, made by MSD
making reference to the SEP under this Decree shall include the following language: "This
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project was undertaken in connection with the settlement of an enforcement action, United
States. State of Missouri. and the Missouri Coalition for the Environment Foundation v.
Metropolitan St. Louis Sewer District, No. 4:07-CV-01120-CEJ, taken on behalf of the U.S.
Environmental Protection Agency, the State, and the Coalition under the Clean Water Act."
89. For federal income tax purposes, MSD agrees that it will neither capitalize into
inventory or basis nor deduct any costs or expenditures incurred in performing the SEP.
XI. STIPULATED PENAL TIES
90. Failure to Submit Timely and Complete Documents. MSD shall be liable to the United
States for stipulated penalties, as set forth below, for each Day MSD fails to timely submit a
report or other submittal required under Sections V, VI, VIII, X, and/or Appendices of this
Consent Decree or fails to make any required material changes to those documents per EPA's
comments within the required time frames. "Timely submit" shall mean the report or submittal
is made by the date specified in this Consent Decree, including Appendices. "Timely submit"
shall further mean that the report or submittal includes all of the elements pertaining to the report
or submittal as set forth in this Consent Decree, including Appendices.
Period of Noncompliance
1st to 30th day
31st to 60th day
More than 60 days
91. Remedial Requirements.
Penalty per Violation per Day
Five Hundred Dollars ($500.00)
One Thousand Dollars (1 ,000.00)
Fifteen Hundred Dollars ($1,500.00)
a. MSD shall be liable to the United States for stipulated penalties as set forth below
for each Day for each violation MSD fails to satisfy any of the remedial requirements of Sections
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V and VI and the Appendices B, C, D, and E of this Consent Decree. The stipulated penalties
for failure to meet each such requirement shall be as follows:
Period of Noncompliance
I st to 30th day
31st to 60th day
Penalty per Violation per Day
One Thousand Dollars (1 ,000.00)
Two Thousand Dollars (2,000.00)
More than 60 days Four Thousand Dollars ($4,000.00)
b. IfMSD is liable for a stipulated penalty pursuant to Paragraph 9l(a), MSD shall
also be liable for a stipulated penalty of $2,000.00 for each Constructed SSO per day resulting
from an uncompleted Constructed SSO Elimination project pursuant to Appendices B, C, and the
approved Sanitary Sewer Overflow Control Master Plan.
c. IfMSD is liable for a stipulated penalty pursuant to Paragraph 9l(a), MSD shall also
be liable for a stipulated penalty for each SSO, excluding Constructed SSOs and Building
Backups, resulting from uncompleted remedial requirements of Sections V, VI, or Appendices
B, C, and D, unless caused by acts of vandalism or Mississippi River backflow, as follows:
Unknown volume or less than 1,000 gallons
1,001 to 9,999 gallons
$500.00
$1,000.00
Greater than 10,000 gallons $2,000.00
d. IfMSD is liable for a stipulated penalty pursuant to Paragraph 91(a), MSD shall
also be liable for a stipulated penalty of One Thousand Dollars ($1 ,000.00) per day for each
Building Backup, resulting from uncompleted remedial requirements of Sections V, VI, or
Appendices B, C, and D. MSD shall be allowed credit for any payments paid by MSD under its
Wastewater Backup Insurance and Reimbursement Program against any stipulated penalty
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assessed for Building Backup.
e. IfMSD is liable for a stipulated penalty pursuant to Paragraph 9l(a), MSD shall
also be liable for a stipulated penalty of One Thousand Dollars ($1,000.00) per day for each dry
weather CSO (excluding Building Backups) resulting from uncompleted remedial requirements
of Sections V, VI, or Appendix D, unless caused by acts of vandalism or Mississippi River
backflow related issues.
92. Bypasses.
a. For any bypass at Coldwater Creek, Missouri River and New Lower Meramec
Wastewater Treatment Facilities that is prohibited by MSD's State Operating Permits in effect on
December 28, 20 I 0, MSD shall be liable for a stipulated penalty of one thousand dollars
($1 ,000) per bypass per day until MSD completes the remedial measures found in Section V, the
approved Sanitary Sewer Overflow Control Master Plan, and Appendix C to upgrade treatment
capacity at the above-referenced Wastewater Treatment Facilities ..
b. For any bypass at Coldwater Creek, Missouri River and New Lower Meramec
Wastewater Treatment Facilities that is prohibited by 40 CFR § 122.41 (m) and occurs after MSD
was required to complete the remedial measures found in Section V, the approved Sanitary
Sewer Overflow Control Master Plan, and Appendix C to upgrade treatment capacity at the
above-referenced Wastewater Treatment Facilities, MSD shall be liable for a stipulated penalty
of one thousand dollars ($1,000) per bypass per day only when the bypass results from MSD's
failure to complete the remedial measures found in Section V, the approved Sanitary Sewer
Overflow Control Master Plan, and Appendix C.
c. For any bypass at all other Wastewater Treatment Facilities that is prohibited by 40
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CFR § 122.41(m) and MSD's State Operating Permits, MSD shall be liable for a stipulated
penalty of five hundred dollars ($500) per bypass per day.
93. MSD shall be liable to the United States for a stipulated penalty of $3,500.00 for each
day that MSD is late in paying the civil penalty required under Section IX.
94. Delays in Completion ofSEP.
a. MSD shall be liable for stipulated penalties for failure to complete the SEP by the
deadline set forth in Section X as follows:
Period ofNoncompliance
1st to 30th day
31st to 60th day
More than 60 days
Penalty per Violation per Day
Five Hundred Dollars (500.00)
Fifteen Hundred Dollars (1 ,500.00)
Three Thousand Dollars ($3,000.00)
b. In the event that the United States rejects the SEP Completion Report as required in
Section X, MSD shall be subject to pay $500.00 per day until an acceptable SEP Completion
Report is submitted to EPA.
c. If the total amount expended on implementing the SEP is less than $1,600,000.00,
MSD shall be subject to a stipulated penalty equal to the difference between the amount spent
and $1 ,600,000.00.
95. Stipulated penalties shall automatically begin to accrue on the first day MSD fails to
comply with the requirements of this Consent Decree which are subject to stipulated penalties
under this Section XI, and shall continue to accrue through the final day of the correction of the
noncompliance or completion of the activity, but need not be paid except as provided in this
Section XI.
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96. Stipulated penalties shall be paid within thirty (30) days of EPA's written demand for
payment of stipulated penalties, or as provided in the resolution of a dispute in accordance with
Paragraph 120. Stipulated penalties shall be paid to the United States in accordance with the
payment procedures detailed above in Section IX. Copies of any checks, transmittal documents,
and the transmittal letters shall be sent simultaneously to U.S. DOJ and EPA.
97. MSD shall pay stipulated penalties owing to the United States in the manner set forth
and with the confirmation notices required by Section XVII, except that the transmittal letter
shall state that the payment is for stipulated penalties and shall state for which violation(s) the
penalties are being paid.
98. The United States may, in its unreviewable exercise of its discretion, reduce or waive
stipulated penalties otherwise due under this Consent Decree.
99. If MSD fails to pay stipulated penalties according to the terms of this Consent Decree,
MSD shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961, accruing
as of the date payment became due. Nothing in this Section shall be construed to limit the
United States from seeking any remedy otherwise provided by law for MSD's failure to pay any
stipulated penalties.
100. Subject to the provisions of Section XII of this Consent Decree ("Effect of
Settlement/Reservation of Rights"), the stipulated penalties provided for in this Consent Decree
shall be in addition to any other rights, remedies, or sanctions available to the United States for
MSD's violation of this Consent Decree or applicable law or permits. Where a violation of this
Consent Decree is also a violation of Section 301 or 402 of the CWA, 33 U.S.C. §§ 1311 and
1342, and the regulations promulgated thereunder, MSD shall be allowed a credit, for any
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stipulated penalties paid, against any statutory penalties imposed for such violation.
XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS
I 0 I. This Consent Decree resolves the claims for civil penalties and injunctive relief for
the violations alleged in the Complaint and for the violations and injunctive relief for the
violations alleged in the Complaint-in-Intervention filed by the Coalition in this action through
the Date of Lodging.
I 02. The United States and the Coalition further reserve all rights, as allowed by law,
against MSD with respect to any violations by MSD that occur after the Date of Lodging, and/or
for any violations of the CWA or Missouri Clean Water Law or other applicable state law not
specifically alleged in the Complaint and Complaint in Intervention, whether they occurred
before or after the Date of Lodging.
I03. The United States further reserves all legal and equitable remedies that it has
available to enforce the provisions of the Consent Decree, except as expressly stated in
Paragraph I 0 I. The Consent Decree shall not be construed to limit the rights of the United
States to obtain penalties or injunctive relief under the CWA and the Missouri Clean Water Law
or implementing regulations, or under other federal or state laws, regulations, or permit
conditions, except as expressly specified in Paragraph I 0 I. The United States further reserves
all legal and equitable remedies to address any imminent and substantial endangerment to the
public health or welfare or the environment arising at, or posed by, MSD's Sewer System,
whether related to the violations addressed in this Consent Decree or otherwise.
I 04. This Consent Decree is not and shall not be construed as a permit or a modification
of any permit, under any federal, State, or local laws or regulations. MSD is responsible for
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achieving and maintaining complete compliance with all applicable federal, State, and local
laws, regulations, and permits; and MSD's compliance with this Consent Decree shall not be a
defense to any action commenced pursuant to any such laws, regulations, or permits. The United
States and the Coalition do not, by their consent to the entry of this Consent Decree, warrant or
aver in any manner that MSD's compliance with any aspect of this Consent Decree will result in
compliance with provisions ofthe CWA, the Missouri Clean Water Law, or with any other
provisions of federal, State, or local laws, regulations, or permits.
105. MSD's duty to comply with the terms of this Consent Decree is not conditioned on
the receipt of any federal, State or local funds. Failure to comply is not excused by lack of
federal or state grant funds, or by the processing of any applications for the same. Application
for construction grants, State revolving loan funds, or any other grants or loans, or delays in
processing or receipt of federal, state or local funds caused by inadequate facility planning or
plans and specifications on the part of MSD shall not be cause for extension of any required
compliance date in this Consent Decree.
106. This Consent Decree does not limit or affect the rights of the Parties against any
third parties not party to this Consent Decree, nor does it limit the rights of third parties not party
to this Consent Decree, against MSD, except as otherwise provided by law. This Consent
Decree shall not be construed to create rights in, or grant any cause of action to, any third party
not party to this Consent Decree. For purposes of this Section XII only, the State is not a "third
party." MSD reserves any and all claims and defenses to any claims it has not expressly waived
or released in this Consent Decree.
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XIII. FORCE MAJEURE
107. "Force majeure," for purposes of this Consent Decree, is defined as any event
arising from causes beyond the control of MSD, of any entity controlled by MSD, or of MSD's
contractors, that delays or prevents the performance of any obligation under this Consent Decree
despite MSD's best efforts to fulfill the obligation. The requirement that MSD exercise "best
efforts to fulfill the obligation" includes to identify reasonably foreseeable force majeure events
and to use best efforts to address the effects of any such event (a) as it is occurring and (b) after
it has occurred to prevent or minimize any resulting delay to the greatest extent possible. "Force
Majeure" does not include unanticipated or increased expenses or costs associated with
implementation of this Decree, changed financial circumstances, or other financial or budgetary
issues.
I 08. Failure to apply for a required permit or approval, or to provide in a timely manner
all information required to obtain a permit or approval necessary to meet the requirements of this
Consent Decree, are not Force Majeure events. However, the failure to obtain a necessary
permit in a timely fashion is an event of Force Majeure where the failure of the permitting
authority to act is beyond the control ofMSD, and MSD demonstrates that it has taken all steps
available to it to obtain the necessary permit or approval.
109. MSD shall provide written notice to the EPA and the State, with a copy to the
Coalition, in accordance with Section XVII ("Notices"),within thirty (30) days of the time MSD
first knew of, or by the exercise of due diligence, should have known of, a claimed force majeure
event. The written notice shall identify the obligation and any directly related obligation(s) that
will be delayed, the anticipated duration of the delay, the causes for the delay, MSD's past and
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proposed actions to prevent or minimize any delay, a schedule for carrying out those actions, and
MSD's rationale for attributing any delay to a force majeure event. Failure to comply with the
above requirements shall preclude MSD from asserting any claim of force majeure for that event
for the period of time of such failure to comply, and for any additional delay caused by such
failure.
110. If the United States after consultation with the Coalition determines that a force
majeure event has occurred, the United States may agree to extend the time for MSD to perform
the obligation(s) under this Consent Decree that are affected by the force majeure event for the
time necessary to complete those obligations. An extension ofthe time for performance of the
obligations affected by the force majeure event shall not, by itself, extend the time for
performance of any other obligation not related to the obligation for which the force majeure
applied. Where the United States after consultation with the Coalition agrees to an extension of
time necessitated by the force majeure event, the appropriate modification shall be made
pursuant to Section XXI of this Consent Decree ("Modification").
111. If the United States after consultation with the Coalition determines that a force
majeure event has not occurred, or does not agree to the extension of time sought by MSD, the
United States' position shall be binding, unless MSD invokes Dispute Resolution under Section
XIV ("Dispute Resolution"). In any such proceeding, MSD shall have the burden of
demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or
will be caused by a force majeure event, that the duration of the delay or the extension sought
was or will be warranted under the circumstances, that best efforts were exercised to avoid and
mitigate the effects of the delay, and that MSD complied with the requirements of this Section
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XIII. If MSD carries this burden, the delay at issue shall be deemed to not be a violation by
MSD of the affected obligation of this Consent Decree identified to the EPA and the Court.
XIV. DISPUTE RESOLUTION
112. The Court shall retain jurisdiction for the purpose of adjudicating, in the manner
provided in this Section, all disputes between the Parties, which may arise under this Consent
Decree. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution
procedures of this Section shall be the exclusive mechanism to resolve disputes among the
Parties arising under or with respect to the terms of this Consent Decree.
113. Informal Dispute Resolution. Any dispute subject to Dispute Resolution under
this Consent Decree shall first be the subject of informal negotiations among the Parties. The
dispute shall be considered to have arisen when MSD or the Coalition sends the other Parties a
written Notice of Dispute. Such Notice ofDispute shall state clearly the matter in dispute. The
period of informal negotiations shall not exceed thirty (30) Days from the date the dispute arises,
unless that period is modified by written agreement of the Parties. Ifthe Parties cannot resolve a
dispute by informal negotiations, then the position advanced by the United States, after
consultation with the State, shall be considered binding unless, within thirty (30) Days after the
conclusion of the informal negotiation period, MSD or the Coalition invokes formal dispute
resolution procedures as set forth below or the Parties agree in writing to attempt to resolve the
dispute through mediation. EPA shall provide MDNR notice of the informal dispute resolution
negotiation and the opportunity to comment to EPA on the position advanced by the United
States within the informal negotiation period.
114. Formal Dispute Resolution. MSD or the Coalition may invoke formal dispute
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resolution procedures, within the time period provided in the preceding Paragraph, by serving on
all other Parties a written Statement of Position regarding the matter in dispute. The Statement
of Position shall include, but need not be limited to, any factual data, analysis, or opinion
supporting MSD or the Coalition's position and any supporting documentation relied upon by
MSD or the Coalition.
115. A Party other than the Party that invoked the formal dispute resolution process of
these Paragraphs 114-116 may also serve a Statement of Position within 30 days after service of
the Statement of Position that invoked the formal dispute resolution process of these Paragraphs
114-116 unless the Parties agree in writing to a longer time period. A Statement of Position
served pursuant to this Paragraph shall be accompanied by supporting materials, including but
need not be limited to, any factual data, analysis, or opinion supporting that position and any
supporting documentation relied upon by the proponent of the statement.
116. The United States, after consultation with the State, shall serve its respective
Statement of Position within 45 Days after service of the latter ofMSD's or the Coalition's
Statement of Position unless the Parties agree in writing to a longer time period. The United
States' Statement of Position shall include, but need not be limited to, any factual data, analysis,
or opinion supporting that position and any supporting documentation relied upon by the United
States. The United States' Statement of Position shall be binding unless MSD or the Coalition
files a motion for judicial review of the dispute in accordance with the following Paragraph.
117. MSD or the Coalition may seek judicial review of the dispute against the United
States by filing with the Court and serving on the United States, in accordance with Section
XVII of this Consent Decree ("Notices"), a motion requesting judicial resolution of the dispute.
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The motion must be filed within sixty (60) days of receipt of the United States' Statement of
Position pursuant to the preceding Paragraph. The motion shall contain a written statement of
MSD's or the Coalition's position on the matter in dispute, including any supporting factual data,
analysis, opinion, or documentation, and shall set forth the relief requested and any schedule
within which the dispute must be resolved for orderly implementation of the Consent Decree.
118. The United States shall have sixty days in which to respond to MSD' s or the
Coalition's motion. MSD or the Coalition may file a reply memorandum, to the extent permitted
by the Local Rules.
119. In any dispute brought under this Section XIV, MSD or the Coalition shall have the
burden of proof, and the standard and scope of review shall be that provided by applicable law.
The United States reserves the right to argue that its position is reviewable only on the
administrative record and must be upheld unless arbitrary and capricious or otherwise not in
accordance with law.
120. The invocation of dispute resolution procedures under this Section shall not, by
itself, extend, postpone, or affect in any way any obligation of MSD under this Consent Decree,
unless and until final resolution of the dispute so provides. Stipulated penalties with respect to
the disputed matter shall continue to accrue from the first Day of noncompliance, but payment
shall be stayed pending resolution ofthe dispute, as follows:
a. If the dispute is resolved by informal dispute resolution before appeal to this Court,
MSD shall be subject to pay accrued penalties (and interest), if any, determined to be owing
within sixty (60) days of the agreement or the receipt of the United States' final position in
writing.
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b. If the dispute is appealed to this Court and the United States prevails in whole or in
part, MSD shall be subject to pay all accrued penalties (and interest) determined to be owed
within sixty (60) days of a final decision or as decided by the court.
XV. RIGHT OF ENTRY AND RECORD RETENTION
121. The EPA and its representatives, including attorneys, governmentally authorized
contractors, and governmentally authorized consultants, shall have the right of entry into the
premises of any MSD property at all reasonable times, upon presentation of credentials, to:
a. monitor the progress of activities required under this Consent Decree;
b. verify any data or information submitted to the United States or the State in
accordance with the terms of this Consent Decree;
c. obtain samples and, upon request, splits of any samples taken by or on behalf of
MSD. Upon request, EPA shall provide MSD splits of any samples taken by EPA, as well as
copies of documents collected, photos taken, or other non-privileged information collected
during any facility visit;
d. observe performance tests;
e. obtain documentary evidence, including photographs and similar data; and
f. assess MSD's compliance with this Consent Decree.
122. MSD shall retain and shall instruct its contractors and consultants to retain copies
of any reports, plans, permits, and documents submitted to EPA pursuant to this Consent Decree,
as well as any underlying research and data used to develop said reports, for a period of five (5)
years from the date of submission. Where a contractor or consultant fails to retain such
documents, and MSD can demonstrate that the contractor's missing or destroyed documents
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contained the same information as documents in the possession of MSD, MSD shall not be liable
for the contractor's failure to retain such documents. This information-retention requirement
shall apply regardless of any contrary MSD, corporate or institutional policies or procedures. At
any time during this information-retention period, upon request by the United States, MSD shall
provide copies of any research and data underlying any of the reports, plans, permits, and
documents submitted to EPA pursuant to this Consent Decree. Upon written request by the
Coalition, MSD agrees to provide copies of research and data underlying the reports, plans,
permits and documents submitted to the United States pursuant to this Consent Decree. The
Coalition agrees to treat these documents as confidential.
123. At the conclusion of the information-retention period provided in the preceding
Paragraph, MSD shall notify the United States and the Coalition at least ninety (90) Days prior
to the destruction of documents, records, or other information subject to the requirements of the
preceding Paragraph and, upon request by the United States or upon the written request of the
Coalition, MSD shall deliver any such documents, records, or other information to the EPA and
Coalition. If MSD has not been contacted by any Party ninety (90) days after notification, then
MSD may destroy said documents, records or information.
124. MSD may assert that information required to be provided under this Section is
protected as Confidential Business Information ("CBI") under 40 C.F .R. Part 2. As to any
information that MSD seeks to protect as CBI, MSD shall follow the procedures set forth in 40
C.F.R. Part 2.
125. This Consent Decree in no way limits or affects the EPA or the State's right to
enter or access the property of MSD, to conduct inspections, to require monitoring, and to obtain
Page 77 of 93
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--------·~-----·------------------------------------------
901 North 51h Street
Kansas City, Kansas 66101
fax number: 913-551-9246
To the State:
Chief Counsel
Agriculture and Environment Division
State of Missouri Office of Attorney General
207 W. High Street
Jefferson City, Missouri 65102
and
Chief, Water Pollution Compliance and Enforcement Section
Missouri Department ofNatural Resources
P.O. Box 176
1101 Riverside Drive
Jefferson City, Missouri 65101
and
Director, St. Louis Regional Office
Missouri Department ofNatural Resources
7523 South Lindbergh Blvd.
St. Louis, Missouri 63125
To the Coalition:
Kathleen Logan Smith
Executive Director
Missouri Coalition for the Environment
6267 Delmar Blvd. #2E
St. Louis, Missouri 63130
and
Maxine I. Lipeles
Elizabeth J. Hubertz
Interdisciplinary Environmental Clinic
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, Missouri 63130
Page 80 of 93
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ToMSD:
Executive Director
Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103-2555
General Counsel
Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103-2555
Director of Engineering
Metropolitan St. Louis Sewer District
2350 Market Street
St. Louis, Missouri 63103-2555
130. The United States, MSD, State, and Coalition, upon written notice to the others
listed in preceding Paragraph, may change its designated notice recipient or notice address
provided in preceding Paragraph. In the event that MSD and the Coalition reach a mutual
agreement that MSD no longer has the obligation to provide the Coalition with copies of
documents, information, notices, proposals or other items due to the Coalition under the terms of
this Decree, MSD and the Coalition shall modify the Decree in accordance with Section XXI to
reflect said mutual agreement.
131. Notices submitted pursuant to this Section shall be deemed submitted on the date
they are postmarked and sent by first class mail, certified mail, or return receipt requested.
XVIII. CERTIFICATION
132. Each report, plan, or other document submitted by MSD pursuant to this Consent
Decree or Appendices shall be signed by an official ofMSD and include the following
certification:
I certify under penalty of law that this document and all attachments were
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prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and evaluate the
information submitted. The information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the possibility
of fine and imprisonment for knowing violations.
This certification requirement does not apply to emergency or similar notifications where
compliance would be impractical.
133. MSD shall not object to the admissibility into evidence of any report, plan, notice,
or any other document prepared in accordance with this Consent Decree or the information
contained in said reports in any proceeding to enforce this Consent Decree.
XIX. EFFECTIVE DATE
134. The Effective Date of this Consent Decree shall be the date upon which this
Consent Decree is entered by the Court.
XX. RETENTION OF JURISDICTION
135. The Court shall retain jurisdiction over this case until termination of this Consent
Decree, for the purpose of resolving disputes arising under this Decree or entering orders
modifying this Decree, pursuant to Sections XIV and XXI, or effectuating or enforcing
compliance with the terms of this Decree.
XXI. MODIFICATION
136. The terms of this Consent Decree, including any attached appendices, may be
modified only by a subsequent written agreement signed by all the Parties. Where the
modification constitutes a material change to this Decree, it shall be effective only upon approval
by the Court.
137. Unless otherwise provided herein, any disputes concerning modification of this
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Decree shall be resolved pursuant to Section XIV of this Decree ("Dispute Resolution"),
provided the Party seeking the modification bears the burden of demonstrating that it is entitled
to the requested modification in accordance with Federal Rule of Civil Procedure 60(b).
138. It is the intention of the Parties to this Consent Decree that MSD shall have the
opportunity, consistent with applicable law, to conform compliance with this Consent Decree to
any modification in EPA's regulations or national policies governing SSOs, CSOs, or bypassing;
to conform compliance with this Consent Decree to any applicable new or revised water quality
standards that have been approved or promulgated by EPA in accordance with 33 U.S.C. Section
1313( c) and 40 C.F .R. Sections 131.21 and 131.22; and to conform compliance with this
Consent Decree to any new or more stringent requirements that are included in MSD's Missouri
State Operating Permits pertaining to MSD's WWTF and Sewer System. Consequently, upon
issuance of any new federal law or state law or regulation that is as or more stringent than
current federal law or regulation or national policy governing SSOs, CSOs, or bypassing; upon
EPA approval or promulgation of new or revised water quality standards in accordance with 33
U.S.C. Section 1313(c) and 40 C.P.R. Section 131.21 and 131.22; or upon the issuance of a
permit that contains new or more stringent requirements pertaining to MSD's WWTF or Sewer
System, MSD may request modification of this Consent Decree (including requests for
extensions of time) from the United States to conform this Consent Decree to such regulation,
national policy, new or revised water quality standard or permit. Upon MSD's request, the
United States and MSD shall discuss the matter. If the United States and MSD agree on the
proposed modification to the Consent Decree, they shall prepare a joint motion to the Court
requesting such modification.
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··-·---· -~-------------------------
139. If the United States and MSD do not agree, and MSD still believes that
modification of this Consent Decree is appropriate, MSD may file a motion seeking such
modification in accordance with Federal Rule of Civil Procedure 60(b ); provided, however, that
nothing in this subparagraph is intended to waive the United States' rights to oppose such motion
and to argue that such modification is unwarranted.
140. Following the filing of a motion under Rule 60(b ), stipulated penalties shall accrue
due to MSD's failure, if any, to continue performance of obligations under the Consent Decree
that are necessarily the subject of the Rule 60(b) motion; provided, however, that such penalties
need not be paid if the Court resolves the motion in MSD's favor, and MSD shall comply with
the Consent Decree as modified.
XXII. TERMINATION
141. MSD may serve upon the United States, with a copy to the Coalition, a Request for
Termination, together with all necessary supporting documentation, certifying that MSD has
satisfied all of its obligations under the Decree including:
a. Completion of all requirements of Sections V and VI (Remedial Measures for SSS
and CSS) of this Decree, including Appendices B, C, D, and E and that it has achieved and
maintained satisfactory compliance with this Consent Decree and MSD's Missouri State
Operating Permits for a period of twelve (12) consecutive months following completion of its
requirements under Sections V and VI;
b. Compliance with all other requirements of this Consent Decree; and
c. Payment in full of all civil penalties, costs of litigation, any accrued stipulated
penalties, and any accrued interest as required by this Consent Decree.
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142. After MSD submits a Request for Termination, if the United States after
consultation with the Coalition determines that the Decree may be terminated, the Parties shall
submit, for the Court's approval, a joint stipulation terminating the Decree.
143. If the United States after consultation with the Coalition determines that the
Consent Decree can not be terminated, MSD may invoke Dispute Resolution under Section XIV
of this Decree. However, MSD shall not seek Dispute Resolution under Paragraph 114 (Formal
Dispute Resolution) of Section XIV of any dispute regarding termination, until at least 120 days
after service of its Request for Termination. This Consent Decree shall remain in effect pending
resolution of the dispute by the Parties or the Court in accordance with the dispute resolution
provisions under Section XIV of this Decree.
XXIII. PUBLIC PARTICIPATION
144. This Consent Decree shall be lodged with the Court for a period of at least thirty
(30) Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United
States reserves the right to withdraw or withhold its consent if the comments regarding the
Consent Decree disclose facts or considerations indicating that the Consent Decree is inappro-
priate, improper, or inadequate. MSD consents to entry of this Consent Decree without further
notice and agrees not to withdraw from or oppose entry of this Consent Decree by the Court, or
to challenge any provision of the Decree, unless the United States has notified MSD in writing
that the United States no longer supports entry of the Decree.
XXIV. SIGNATORIES/SERVICE
145. Each undersigned representative ofMSD and the Coalition, and the Assistant
Attorney General for the Environment and Natural Resources Division of the Department of
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Justice, on behalf of the United States, certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and legally bind the Party he or she
represents to this document.
146. This Consent Decree may be signed in counterparts.
14 7. MSD agrees to accept service of process by mail or courier service to the address
set forth in Section XVII ("Notices") with respect to all matters arising under or relating to this
Consent Decree and to waive the formal service requirements set forth in Rules 4 and 5 of the
Federal Rules of Civil Procedure and any applicable Local Rules of this Court including, but not
limited to, service of a summons.
XXV. INTEGRATION/ APPENDICES
148. This Consent Decree and its Appendices constitute the final, complete, and
exclusive agreement and understanding among the Parties with respect to the settlement
embodied in the Decree and supersedes all prior agreements and understandings, whether oral or
written, concerning the settlement embodied herein. Other than deliverables that are
subsequently submitted and approved pursuant to this Decree, no other document, nor any
representation, inducement, agreement, understanding, or promise, constitutes any part of this
Decree or the settlement it represents, nor shall it be used in construing the terms of this Decree.
149. The following appendices are attached to and incorporated into this Consent
Decree:
"Appendix A" is Public Warning Sign Posted on Constructed SSO Outfalls;
"Appendix B" is a list of the Constructed SSO Outfalls to be eliminated no later than
December 31, 20 12;
Page 86 of 93
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Missouri. and Missouri Coalition for the Environment Foundation v.
Metropolitan St. Louis Sewer District, No. 4:07-CV-1120 (E.D. Mo.).
FOR THE MISSOURI COALITION FOR THE ENVIRONMENT FOUNDATION:
~l&oo.~~:d DATE:~~ KAHLEENLooA£l iT
Executive Director
Missouri Coalition for the Environment Foundation
6267 Delmar Blvd., Suite 2E
St. Louis, MO 63130
~1 ~ DATE:fRb'0/tl EUZATHi.ifUBERTZ
Clinic Attorney
Interdisciplinary Environmental Clinic
Washington University School ofLaw
Campus Box 1120
St. Louis, MO 63130
Page 92 of 93
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Case: 4:07-cv-01120-CEJ Doc. #: 159-4 Filed: 04/27/12 Page: 9 of 9 PageID #: 1623
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 1 of 6 PageID #: 1624
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 2 of 6 PageID #: 1625
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 3 of 6 PageID #: 1626
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 4 of 6 PageID #: 1627
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 5 of 6 PageID #: 1628
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Case: 4:07-cv-01120-CEJ Doc. #: 159-5 Filed: 04/27/12 Page: 6 of 6 PageID #: 1629
1
Appendix F
Supplemental Environmental Project Plan
This Appendix F describes the Supplemental Environmental Project (SEP) to be
performed and funded by MSD as required by the Consent Decree. MSD shall spend at least
One Million Six Hundred Thousand Dollars ($1,600,000) and perform certain additional
functions as set forth herein to implement this SEP. No part of this SEP expenditure shall
include federal or state funds, including federal or state low interest loans, contracts, or grants.
SEP Overview:
Inadequate or failing septic systems present both public health and environmental risks
that can be avoided by connection to public sewers. Many homeowners do not want to connect
because of the upfront capital costs associated with public sewer. This financial obstacle is
particularly acute for low income residents. Leaking private laterals contribute inflow and
infiltration to the sewer system that may contribute to sewer overflows and bypasses at the
wastewater treatment facilities.
The SEP shall include the implementation of a Sewer Connection & Septic Tank Closure
Program (Program) for homeowners that qualify for MSDs Low Income Assistance program.
The Program shall include 1) the installation of a sewer service line (i.e. lateral) and public
sewer line if needed to the homes of participating property owners, removal as needed of their
septic tank from operation by capping, filling, or other means as determined and approved by
MSD and consistent with local ordinances, and 2) the replacement, rehabilitation or repair as
necessary of private lateral lines. The Program is a no cost construction program for only low-
income eligible residential property owners (1) who elect to close their septic tank and connect
to a public sewer, or (2) where MSD finds contributions of I/I to the sewer system for a defective
private lateral.
The Program is voluntary and will be available to low-income eligible residents of
owner-occupied, single family homes that are on properties not connected to a public sewer or
for those who are connected to a public sewer and have a defective private lateral. In MSDs
service area, it is estimated that 8,000 10,000 homes are still on septic systems.
SEP Budget
Based on a one million six hundred thousand dollar ($1,600,000.00) budget, at an
average cost of three thousand dollars ($3,000.00) per home, the Program is anticipated to assist
five hundred and thirty-three (533) residents; however, this number may vary depending on the
cost of construction. This Program provides no cost construction to households that would
qualify for MSDs low income assistance program as if they are connected to the public sewer
Case: 4:07-cv-01120-CEJ Doc. #: 159-6 Filed: 04/27/12 Page: 1 of 2 PageID #: 1630
1/$15,000 represents the approximate cost of installing public sewer line, if needed.
2
system. The construction costs at the outset will range from approximately $2,000 - $15,000,1/
based on the construction and repair needs. SEP funds shall not be used for MSDs
administrative expenses.
Project Processing
MSD will use a streamlined project approach to enhance implementation, while
providing appropriate management oversight. The processes shall include:
1. MSD to verify applicants income, property ownership, occupancy, and current
billing status;
2. Upon approval of eligibility, owners required to sign a waiver allowing MSD to
work on owners private property;
3. MSD will contract directly to have all work performed;
4. MSD will inspect all work and be responsible for all permitting and inspections
required by other authorities; and
5. Acceptable Program costs shall include the costs of equipment and materials,
labor costs for Repair/Replacement/Removal Services and/or services associated
with the same, but shall not include administrative costs.
Alternative SEP
To the extent MSD is unable to complete the SEP Program described in this SEP Plan
due to lack of homeowner participation, MSD may submit the following requests to EPA:
1. MSD may request additional time from EPA to complete the above described
SEP. Such request shall be made at least sixty (60) days prior to the final completion date as set
forth above. However, if EPA denies the request for additional time, then MSD shall continue to
implement the SEP and be subject to stipulated penalties as set forth in Section XI of this
Consent Decree. If MSD is granted additional time to complete the SEP, the SEP shall be
deemed in compliance as described above.
2. MSD may propose an alternate and similar SEP proposal and schedule to EPA
equal in cost to the difference in the amount MSD has expended on the SEP as described above
to date, and $1,600,000.00. Such request shall be made no later than four (4) years from the
Effective Date of the Consent Decree. EPA may approve the alternate SEP proposal and
schedule for immediate implementation. If EPA approves an alternate SEP and schedule, the
SEP shall be deemed in compliance upon completion of the alternate SEP. If EPA does not
approve the alternate SEP proposal, MSD shall be subject to stipulated penalties as set forth in
Section XI of this Consent Decree.
Case: 4:07-cv-01120-CEJ Doc. #: 159-6 Filed: 04/27/12 Page: 2 of 2 PageID #: 1631