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Second Agreed Non-Material Consent Decree Modification for Lemay CSO Outfall 063 and RDP Storage Tunnels (Non-Material Modification A) (4/7/15)Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 1 of 11 PagelD #: 1694 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, et al., Plaintiffs, v. No. 4:07-cv-01120 (C E.I) THE METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant. SECOND AGREED NON -MATERIAL CONSENT DECREE MODIFICATION Background A. On April 27, 2012, the United States District Court for the Eastern District of Missouri, Eastern Division approved and entered a Consent Decree between the United States and the Missouri Coalition for the Environment Foundation ("Coalition") and the Metropolitan St. Louis Sewer District ("MSD") (collectively "Parties"), in a case captioned United States, et al. v. Metropolitan St. Louis Sewer District, Civil Action No. 4:07-cv-01120 (E.D. Mo.). B. The express purpose of the Consent Decree is for MSD to take all necessary measures to meet the goals and objectives of the CWA; to achieve and maintain compliance with the CWA and the Missouri Clean Water Law and the regulations promulgated thereunder, and the terms and conditions of MSD's Missouri State Operating Permits; to meet the objectives of the EPA's April 19, 1994 CSO Control Policy, 59 Fed. Reg. 18688, which is incorporated by reference into Page 1 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 2 of 11 PagelD #: 1695 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. C. Paragraph 51 of the Consent Decree requires, among other things, that MSD 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 to the Consent Decree. D. Appendix D, at page 6, requires that MSD construct and implement an in -sewer storage upstream of Lemay CSO Outfall 063 to provide 25 million gallons storage capacity within the existing sewer system to capture flows from the Lemay CSO Outfall 063 ("In -Sewer Storage"). Similarly, Appendix E, the Post -Construction Monitoring Program, refers to this in -sewer storage in the 29 foot horseshoe sewers under Forest Park, which is upstream of Lemay CSO Outfall 063. E. Appendix D, at page 6, also requires that MSD construct the Lower & Middle River Des Peres Storage Tunnel ("Storage Tunnel") to provide storage volume of 206 million gallons to capture flows from a variety of Lemay CSO Outfalls. F. The Parties have always understood that these two CSO Control Measures — the In - Sewer Storage and the Storage Tunnel — work together and are to be treated as one overall project when selecting and modifying the design criteria necessary to capture flows from the Lemay CSO Outfalls along the Lower and Middle River Des Peres and to meet the performance criteria. G. Paragraph 61 of the Consent Decree provides that 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 Page 2 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 3 of 11 PagelD #: 1696 performance criteria specified in Appendix D. H. Paragraph 61(e) also provides that if EPA approves a greater than 20 percent revision of design criteria, the modification shall not be effective until a modification of the Decree is approved by the Court in accordance with Paragraph 136 of the Decree. I. 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. J. The Parties have agreed, pursuant to Paragraphs 61 and 136 of the Consent Decree, to allow MSD to eliminate the In -Sewer Storage and to increase the storage volume of the Storage Tunnel by 25 million gallons to store the additional flow from the Lemay CSO Outfall 063 that was to be captured by the In -Sewer Storage. As a result, the design criteria for the Storage Tunnel will be increased from its original storage capacity of 206 million gallons to 231 million gallons, and thus representing no change in the design criteria necessary to capture flows from the Lemay CSO Outfalls along the Lower and Middle River Des Peres. The description and performance criteria, and critical milestones for this Storage Tunnel will remain the same as set forth in Appendix D. K. This proposed modification reflects good engineering practice and will continue to meet the required performance criteria, in accordance with Paragraph 61. For example, this proposed modification eliminates potential risks posed by the In -Sewer Storage, including risk of flooding and potential damage of the horseshoe sewers upstream of Outfall 063 due to surcharging of the sewers or failure of the storage dam systems to operate properly, as well as the risk of sedimentation and odors occurring within the horseshoe sewers beneath Forest Park as a result of Page 3 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 4 of 11 PagelD #: 1697 the stored sewage. In addition, by relocating the additional 25 million gallons of storage volume to the downstream tunnel, this storage volume can be used regardless of where it is raining in the Lemay combined sewer area served by the tunnel. Originally, the 25 million gallons of In -Sewer Storage would only be used when it rains in the upper portion of the Lemay combined sewer area upstream of Outfall 063. L. Because the proposed modification is less than 20 percent revision of the design criteria, the changes made herein constitute non -material Consent Decree modifications that do not require Court approval under Paragraphs 61 and 136 of the Consent Decree. The undersigned Parties anticipate that the United States will file this Second Agreed Non -Material Consent Decree Modification ("Agreement") with the Court as a non -material modification and an agreed supplement to the Consent Decree. The Parties hereby agree that this Agreement shall be effective on the date that it has been signed by all Parties. M. No action by the Court is required at this time. The Parties file this non -material modification to the Consent Decree with the Court in order to maintain a complete record of the Consent Decree and this modification thereto. Agreement 1. The Parties hereby agree to the following non -material modification to Appendices D and E of the Consent Decree: a. Delete the entire row entitled "In -sewer Storage Upstream of Lemay CSO Outfall 063" on page 6 of Appendix D. b. Delete "206" and replace with "at least 231" million gallons on page 6 of Appendix D under the heading for Design Criteria for the Lower & Middle River Des Peres Storage Tunnel. Page 4 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 5 of 11 PagelD #: 1698 c. Delete the phrase "Flow storage in 29-ft horseshoe sewers under Forest Park" on page 3 of Appendix E (Post -Construction Monitoring Program) under the heading for Lower and Middle River Des Peres, at the first bullet. 2. Except as specified herein, no additional provisions of the Consent Decree are modified, superseded, or altered in any way by this Agreement. 3. This Agreement may be executed in counterparts. Page 5 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 6 of 11 PagelD #: 1699 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification in the matter of United Stales, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv- 01 I20-CEJ (E.D. Mo.). FOR THE UNITED STATES OF AMERICA: Date: U `-f -C ? di Date: '' T'c$ THOMAS A.ARIANI, JR Deputy Chief United States Department of Justice Environment and Natural Resources Division Environmental Enforcement Section THR C. MA + i . NALD 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 6 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 7 of 11 PagelD #: 1700 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification 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 REGION VII: Date:. i Date: # - t-2t, I DAVID COZAD Regional Counsel United States Environmental Protection Agency Region 7 11201 Renner Road Lenexa, Kansas 66219 ETH HUSTON Assistant Regional Counsel United States Environmental Protection Agency Region 7 11201 Renner Road Lenexa, Kansas 66219 Page 7 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 8 of 11 PagelD #: 1701 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification 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: I 1 r Date: Virtis POLL Director, WaterEnforcement 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 JOANNA CITRON DAY Attorney Advisor, Water Enforcement 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 8 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 9 of 11 PagelD #: 1702 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification 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: 3 /5 , ATHER B. AVARRO Executive Director Missouri Coalition for the Environment Foundation 6267 Delmar Blvd., Suite 2E St. Louis, Missouri 63130 Date: ELIZABETH J. HUBERTZ Clinic Attorney Interdisciplinary Environmental Clinic Washington University School of Law Campus Box 1120 St. Louis, Missouri 63130 Page 9 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 10 of 11 PagelD #: 1703 The undo signed party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification in the matter of United States, et a1 v. Metropolitan St. Louis Sewer District, No. 4:07-cv-01120-CEJ (E.D. Mo.). FOR THE MISSOURI COALITION FOR THE ENVIRONMENT FOUNDATION: Date: HEATHER B. NAVARRO Executive Director Missouri Coalition for the Environment Foundation 6267 Delmar Blvd., Suite 2B St. Louis, Missouri 63130 Clinic Attorney Interdisciplinary Environmental Clinic Washington University School of Law Campus Box 1120 St. Louis, Missouri 63130 Page 9 of 10 Case: 4:07-cv-01120-CEJ Doc. #: 165 Filed: 04/07/15 Page: 11 of 11 PagelD #: 1704 The undersigned party hereby consents and certifies that it is authorized to consent to the terms and conditions of this Second Agreed Non -Material Consent Decree Modification 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 METROPOLITAN ST. LOUIS SEWER DISTRICT: Date: 4// /, Dom: y//is BRIAN L. HOELSCHER Executive Director Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 $L/L /21 SUSAN M. MYERS General Counsel Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103 Page 10 of 10