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Amendment to Consent Decree (10/10/13)Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 1 of 11 PagelD #: 1683 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, et al., Plaintiffs, v. THE METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant. ) ) ) ) ) No. 4:07-cv-01120 (CD) ) ) ) ) ) ) ) WHEREAS, the United States of America ("United States"), the Missouri Coalition for the Environment Foundation ("Coalition"), and the Metropolitan St. Louis Sewer District's ("MSD") (collectively "Parties") are parties to a Consent Decree entered by this Court on April 27, 2012 (Dkt. # 159); WHEREAS, the Consent Decree requires, among other things, that MSD construct and implement certain 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 to the Consent Decree; WHEREAS, the Consent Decree requires that MSD construct (1) a CSO treatment unit at Bissell Point Outfal1051 with 94 million gallons per day capacity providing equivalent of primary clarification, solids/floatables disposal, and disinfection and resulting in no more than Page 1 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 2 of 11 PagelD #: 1684 six million gallons of untreated overflow during four or less overflow events in the typical year, and (2) a storage tank at Bissell Point Outfall 052, providing for storage capacity of one million gallons and resulting in no more than 20 million gallons of untreated overflow during four or less overflow events in the typical year. However, the Parties have agreed to replace these two CSO Control Measures with a single storage facility to accommodate overflow from both Bissell Point Outfalls 051 and 052 (hereafter "Proposed Amendment"). This single storage facility will provide expandable storage capacity of 12.5 million gallons and result in no more than 84 million gallons of untreated overflow during four or less overflow events in a typical year. All stored flow will receive secondary treatment at the Bissell Point wastewater treatment plant, as compared to just primary treatment for the flow from Outfall 051 as required under the original Consent Decree. The Critical Milestones for this new CSO Control Measure for Outfalls 051 and 052 will be unchanged and remain with a Bid Year of 2017 and Achievement of Full Operation of December 31, 2020; WHEREAS, the Parties agree that this Proposed Amendment is necessary because recent design -level modeling using additional flow meter data acquired since the completion of the LTCP modeling indicates higher CSO volumes and higher peak flow rates from Outfalls 051 and 052 than was originally modeled in the LTCP, which served as the basis for the selection of the CSO Control Measures for these outfalls in Appendix D of the original Consent Decree; WHEREAS, as a result of the higher flow rates and CSO volumes, the engineering analysis showed that it is now more costly to pump and treat the flow than it is to store the flow from Outfalls 051 and 052. In addition, the Proposed Amendment will result in lower pollutant loadings to Maline Creek and increased operational efficiencies of a below -grade storage facility, as compared to a treatment system; Page 2 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 3 of 11 PagelD #: 1685 WHEREAS, Paragraph 136 of the Consent Decree provides that the Consent Decree, including any attached appendices, may be modified only by a subsequent written agreement signed by all Parties. Where the modification constitutes a material change to the Consent Decree, the modification shall be effective only upon approval by the Court; WHEREAS, the Parties have agreed, pursuant to Paragraph 136 of the Consent Decree, to this Proposed Amendment to the Consent Decree; WHEREAS, this Proposed Amendment made herein constitutes a material change to the Consent Decree, requiring Court approval under Paragraph 136 of the Consent Decree; and WHEREAS, the Parties recognize, and the Court by entering this Amendment finds, that this Amendment has been negotiated by the Parties at arm's length and in good faith and that this Amendment is fair, reasonable, and in the public interest. Page 3 of II Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 4 of 11 PagelD #: 1686 NOW THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows: 1. Except as specifically modified herein, all provisions of the Consent Decree entered by the Court on April 27, 2012 (Dkt. # 159) shall remain unchanged and in full force and effect. 2. The CSO Control Measures for Bissell Point Outfalls 051 and 052 as set forth at page 1 of Appendix D of the Consent Decree shall be amended as follows (deletions are indicated in strikeout text and additions are indicated in bold and italicized text): CSO Control Measure Description Design Criteria Performance Criteria Critical Milestones CSO Treat t- End- 04-A46Dcapacityr- Unit at-alascl{ Prai Outhall facility Y- eeiids/deatables- dispesalr and- disinfection and-6-million gallons-of- volume -it -the- tYPioalleaRii ComplyFwith- le FuLOperation-- 42/3142020 Missou t Bissell -Point Local storage Provide storage Reduce overflows • Bid Year — Oulfrll Sl gaTank facility volume of one 12.5 million to 4 events or less, and 20 04 million 2017 • Achievement Local Storage Facility for gallons, expandable to gallons of untreated overflow of Full Operation — Bissell Point accommodate volume In the 12/31/2020 Outfalls 031 and 052 storage requirements, if any, as determined In SSO typical yearn Control Master Plan 3. The Figure entitled "Malin Creek CSO Controls" on page 1 of Appendix D shall be replaced with Exhibit A. 4. The following confirming changes to Appendix E, Post -Construction Monitoring Program, shall also be made (deletions are indicated in strikeout text and additions are indicated in bold and italicized text): Page 4 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 5 of 11 PagelD #: 1687 a. On page 2 of Appendix E, the last sentence of the third paragraph will be amended as follows: Locations to be monitored in the Bissell Point service area include remaining CSO outfalls to Maline Creek, and major components of the CSO Control Measures including pump stations; and storage facilities." b. On page 3,of Appendix E under the heading for Maline Creek, the language will be amended as follows: Maline Creels; • Local Storage Facility for Walls 051 and 052 5. The effective date of this Amendment shall be the date upon which this Amendment is entered by the Court or the motion to enter this Amendment is granted, whichever occurs first, as recorded on the Court's docket. 6. Each undersigned representative of MSD (by MSD Ordinance No. 13277), the Coalition, and the Assistant Attorney General for the Environment and Natural Resources Division of the United States Department of Justice certifies that he or she is fully authorized to enter into the teens and conditions of this Amendment and to execute and legally bind the Party he or she represents to this Amendment. 7. This Amendment shall be lodged with this Court for a period of at least 30 days for public notice and comment ht accordance with 28 C.F.R. 50.7. The United States reserves the right to withdraw or withhold its consent if the comments regarding this Amendment disclose facts or considerations indicating that this Amendment is inappropriate, improper, or inadequate. Page 5 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 6 of 11 PagelD #: 1688 MSD consents to entry of this Amendment as proposed without farther notice and agrees not to withdraw from or oppose entry of this Amendment by the Court or to challenge any provision of this Amendment, unless the United States has notified MSD in writing that the United States no longer supports entry of the Amendment. 8. This Amendment to the Consent Decree constitutes the final, complete and exclusive agreement and understanding among the Parties with respect to this Amendment to the Consent Decree, and this Amendment supersedes all prior agreements and understandings, whether oral or written concerning the Amendment embodied herein. 9. This Agreement may be executed in counterparts, and its validity shall not be challenged on that basis. Dated and entered this Iv day of i._� u 2013. CAROL E. ACKSO UNITED S ATES DISTRICT JUDGE Eastern District of Missouri Eastern Division Page 6of11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 7 of 11 PagelD #: 1689 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Amendment to Consent Decree in the matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-01120-CEJ (E.D. Mo.). FOR THE UNITED STATES OF AMERICA: Date: 1 3 13 f J ROBERT G. DREHER Acting Assistant Attorney General United States Department of Justice Environment and Natural Resources Division Environmental Enforcement Section THRYN C. MACDONALD Senior Trial Attorney United States Department of Justice Environment and Natural Resources Division Environmental Enforcement Section P.O. Box 7611 Washington, D.C. 20044 Page 7 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 8 of 11 PagelD #: 1690 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Amendment to Consent Decree in the matter of' United Stales, et al_ v. Metropolitan St. Louis Sewer District, No. 4:07-tv-0l 120-CE l (E.D. Mo.). FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION V 1I: Date: (/.41-0j f DAVID COZADO Regional Counsel United States Environmental Protection Agency Region ? 11201 Renner Road Lenexa, Kansas 66219 EHUSTON Assistant Regional Counsel A United States Environmental Protection Agency Region 7 11201 Renner Road Lenexa, Kansas 66219 Page 8of11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 9 of 11 PagelD #: 1691 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Amendment to Consent Decree in the matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-01120-CEJ (E.D. Mo.). FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE: Date: W13 Date: le /IV/ 3 Date: C j L T I l ?, Date 7\5?1 C ILES AsslinlStrator Office o forcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington , D.C. 20004 SUS'AN SHINKMAN Director, Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20004 POL Director, W : p+' nforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.Cr.20004 S JOA NA CITRON DAY Attorney Advisor, Water Enforccl nt Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Page 9 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 10 of 11 PagelD #: 1692 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Amendment to Consent Decree in the matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-01120-CEJ (E.D. Mo.). FOR THE MISSOURI COALITION FOR THE ENVIRONMENT FOUNDATION: Date: jAl242043 nce: (0A0h3 Y� 17( HEATHER B. NAVARRO Executive Director Missouri Coalition for the Environment Foundation 6267 Delmar Blvd., Suite 2E St. Louis, Missouri 63130 ELIZABETH J. Clinic Attorney Interdisciplinary Environmental Clinic Washington University School of Law Campus Box 1120 St. Louis, Missouri 63130 Page 10 of 11 Case: 4:07-cv-01120-CEJ Doc. #: 164 Filed: 10/10/13 Page: 11 of 11 PagelD #: 1693 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Amendment to Consent Decree in the matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-01 I 20-CEJ (E.D. Mo.). FOR THE METROPOLITAN ST. LOUIS SEWER DISTRICT: Date: G Al !3 Date: SP / /i! BRIAN L. HOELSCHER Executive Director Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 ifeAlig nlifi/r1 SUS General Counsel Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 Page 11 of 11