HomeMy Public PortalAboutSecond Material Amendment to Consent Decree (06/22/2018)1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED STATES OF AMERICA, )
et al., )
)
Plaintiffs, )
) No. 4:07CV1120 HEA
v. )
)
THE METROPOLITAN ST. LOUIS )
SEWER DISTRICT et al., )
)
Defendants
)
)
SECOND MATERIAL AMENDMENT TO CONSENT DECREE
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 Clean Water Act (“CWA”) Consent
Decree entered by this Court on April 27, 2012 (Dkt. #159) and subsequently modified by
non-material modifications, Dkt ##161 and 165, and (first) material amendment at Dkt.
#164;
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 storage tunnel,
Upper River Des Peres Storage Tunnel Serving Lemay Outfalls 064, 066 to 096, 099 to 102,
167,
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178 and 180, providing 30 million gallons of storage and resulting in no more than 94
million gallons of untreated overflow during four or less overflow events in a typical year,
and achieving full operation by June 30, 2034, (2) a CSO storage tunnel, River Des Peres
Tributaries Storage Tunnel Serving Lemay CSO Outfalls 103, 104, 105, 106, 111, 117 to
128, 130, 131, 134, 136 to 140, 166 and 176, providing 28 million gallons of storage and
resulting in four or less overflow events in a typical year, and achieving full operation by
June 30, 2030, (3) a CSO treatment unit with 100 million gallons per day capacity
providing equivalent of primary clarification, solids/floatables disposal, and disinfection
and resulting in four or less overflow events in a typical year, and achieving full operation
by December 31, 2030 and (4) a CSO storage tunnel, Lower & Middle River Des Peres
Storage Tunnel Serving Lemay CSO Outfalls 008 to 032, 036, 037, 039, 041 to 044, 048,
050, 052, 053, 054, 057, 058, 061, 063, 163, 170 to 173, and 181
providing 231 million gallons of storage and resulting in no more than 1,412 million
gallons of untreated overflow during four or less overflow events in a typical year and
achieving full operation by December 31, 2030. See Appendix D, Consent Decree, as
modified by Second
Agreed Non-Material Consent Decree Modification, Dkt. #165, at ¶ 1.b. However, the
Parties have agreed to extend the critical milestones, including bid years and the
achievement of full operation, for each of these storage tunnels and treatment unit by an
additional three to seven years, as set forth in the revised Appendix D below (hereafter
“Proposed Amendment”). The final date for achievement of full operation for all CSO
Control Measures called for in the Consent Decree will be extended by five years from
June 30, 2034 to June 30, 2039;
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WHEREAS, the Parties agree that this Proposed Amendment is necessary because
MSD currently incinerates 68,000 tons of sewage sludge annually, utilizing multiple
hearth incinerators. The Federal Plan Requirements for Sewage Sludge Incineration Units
Constructed on or before October 14, 2010, set forth at 40 C.F.R. Part 62, Subpart LLL
(“SSI Rule”), issued by EPA in 2016, require MSD to replace its multiple hearth
incinerators. The replacement of these incinerators will occur in fiscal years 2021 – 2026
timeframe and is estimated to cost approximately $360 million in 2017 dollars. These
incinerator improvements were not scheduled to be expended in the fiscal years 2021 –
2026 and have placed an additional financial burden on MSD ratepayers. By the end of
fiscal year 2020, the MSD ratepayers will have experienced rate increases of 10% or more,
on average, for the last 8 years. The requirements imposed by the 2016 SSI Rule will
cause the ratepayers to experience even higher rate increases because the work will have to
be done at or around the same time as the peak of the Consent Decree program.
EPA considered the projected residential indicator when evaluating this request by
MSD to amend the Consent Decree. The residential indicator assesses the impact of
projected costs on the median residential household by measuring the average cost of
wastewater bills relative to median household income in the service area to help determine
the financial capability of an entity to implement the necessary control measures. EPA’s
“Combined Sewer Overflows - Guidance for Financial Capability Assessment and
Schedule Development” provides that a residential indicator greater than 2% signals a
“High” financial impact on residents, meaning that the community is likely to experience
economic hardship in complying with the federal water standards. This Proposed
Amendment will allow the MSD ratepayers to experience single digit rate increases for the
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remainder of the Consent Decree program while allowing the projected residential
indicator in the City of St. Louis to remain below 2.5% at least until fiscal year 2028 and
possibly through the life of the Consent Decree program. Without the Proposed
Amendment, the residential indicator in the City of St. Louis is expected to exceed 2.8% by
fiscal year 2030. The residential indicator for the entire District is expected to stay below
1.8% with this amendment, whereas it is expected to peak near 2.0% without the Proposed
Amendment.
WHEREAS, the Parties also agree that MSD will construct and implement the
following additional CSO Control Measure: Green Infrastructure in Lemay Service Area
to capture runoff from existing or future impervious areas on properties and, if possible,
adjacent impervious streets and alleys, to a designed drainage area of at least 80 acres to
reduce untreated overflow volume to the River Des Peres during the typical year by at
least 8 million gallons, with at least a minimum expenditure of $20 million for the River
Des Peres CSOs;
WHEREAS, this additional CSO Control Measure – Green Infrastructure in the Lemay
Service Area - will reduce an additional 8 million gallons of CSO discharges per year from
entering the River Des Peres. Acceleration of the schedule for the sewage sludge
incinerator improvements will result in a reduction of approximately 2,109 tons of air
emissions each year;
WHEREAS, Paragraph 60 of the Consent Decree provides that if MSD experiences
adverse changes to its financial circumstances or other 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;
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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.
NOW THEREFORE, with the consent of the Parties, IT IS HEREBY ADJUDGED,
ORDERED, AND DECREED as follows:
1. Except as specifically modified herein and by non-material modifications, Dkt.
##161 and 165, and (first) material amendment, Dkt. #164, 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 Upper River Des Peres Storage Tunnel, River Des
Peres Tributaries Storage Tunnel, CSO Treatment Unit, and Lower & Middle River Des
Peres Storage Tunnel as set forth at pages 3, 5, and 6 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):
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CSO Control
Measure
Description Design Criteria Performance
Criteria
Critical Milestones
Upper River Des
Peres Storage
Tunnel serving
Lemay Outfalls
064, 066 to 096,
099 to 102, 167,
178 and 180
Deep storage
tunnel, near-surface
facilities, pump
station, sewer
separation and
consolidation
sewers
Provide storage
volume of 30
million gallons in
deep tunnel system
to capture flows
from Lemay CSO
Outfalls 064, 066 to
096, 099 to 102,
167, 178 and 180
When incorporated
with other River
Des Peres CSO
controls, reduce
overflows to 4
events or less, and
94 million gallons
of untreated
overflow volume in
the typical year (1)
Bid Year – 2028
2032
Achievement of
Full Operation –
6/30/2034
6/30/2039
River Des Peres
Tributaries Storage
Tunnel serving
Lemay CSO
Outfalls 103, 104,
105, 106, 111, 117
to 128, 130, 131,
Storage /
Conveyance tunnel,
near-surface
facilities, pump
station, sewer
separation and
Conveyance tunnel
with storage volume
of 28 million
gallons to capture
flows from Lemay
CSO Outfalls 103,
104, 105,106, 111,
When incorporated
with other River
Des Peres CSO
controls, reduce
overflows to 4
events or less to
River Des Peres
Bid Year – 2024
2028
Achievement of
Full Operation –
6/30/2030
6/30/2035
134, 136 to 140,
166 and 176
consolidation
sewers
117to 128, 130, 131,
134, 136 to 140, 166
and 176
main channel in the
typical year (1)
CSO Treatment
Unit
Enhanced High
Rate Clarification
facility
100 MGD capacity
providing equivalent
of primary
clarification,
solids/floatables
disposal, and
disinfection
When incorporated
with other River
Des Peres CSO
controls, reduce
overflows to 4
events or less in the
typical year (1)
Comply with
applicable Missouri
Operating Permit.
Bid Year – 2027
2034
Achievement of
Full Operation –
12/31/2030
12/31/2037
Lower & Middle
River Des Peres
Storage Tunnel
serving Lemay
CSO Outfalls 008
to 032, 036, 037,
Deep storage
tunnel, near-surface
facilities, pump
station, sewer
separation and
consolidation
Provide storage
volume of at least
231 million gallons
in deep tunnel
system to capture
flows from Lemay
When incorporated
with other River
Des Peres CSO
controls, reduce
overflows to 4
events or less in the
Bid Year – 2021
2027
Achievement of
Full Operation –
12/31/2030
12/31/2037 039, 041 to 044, sewers CSO Outfalls 008 to typical year (1), and
048, 050, 052, 053, 032, 036, 037, 039, untreated overflow
054, 057, 058, 061, 041 to 044, 048, volume to the River
063, 163, 170 to 050, 052, 053, 054, Des Peres of 1,412
173, and 181 057, 058, 061, 063, million gallons from
163, 170 to 173, and the Lower & Middle
181 River Des Peres
Storage Tunnel and
the River Des Peres
Tributaries Storage
Tunnel combined.
3. The CSO Control Measure of the Green Infrastructure in the Lemay Service Area
shall be added at page 9 of Appendix D of the Consent Decree as follows:
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CSO Control
Measure
Description Design Criteria Performance
Criteria
Critical Milestones
Green
Infrastructure in
Lemay Service
Area
Storm water
retrofitting and
greening of
properties in
Lemay service
area
Capture runoff from
existing or future
impervious areas on
properties and, if
possible, adjacent
impervious streets and
alleys, in accordance
with MSD's 2017
Material Modification
B.
Beginning January
1, 2018, apply green
infrastructure to a
designed drainage
area of at least 80
acres to reduce
untreated overflow
volume to the River
Des Peres during the
typical year by at
least 8 million
gallons, with a
minimum
expenditure of $20
million for the River
Des Peres CSOs.
Bid Year – 2018
Achievement of
Full Operation –
12/31/2039
4. 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.
5. Each undersigned representative of MSD, the Coalition, EPA, 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
terms and conditions of this Amendment and to execute and legally bind the Party he or
she represents to this Amendment.
6. This Amendment shall be lodged with this Court for a period of at least 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 this
Amendment disclose facts or considerations indicating that this Amendment is
inappropriate, improper, or inadequate. MSD consents to entry of this Amendment as
proposed without further 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
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United States has notified MSD in writing that the United States no longer supports entry
of the Amendment.
7. 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.
8. This Agreement may be executed in counterparts, and its validity shall not be
challenged on that basis.
Dated and entered this 22nd day of June, 2018.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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