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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 )
)
)
THIRD 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 by (first) and second material amendments at Dkt. ##164
and 171.
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;
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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,
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, 2039, and (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, 2035. See Appendix
D, Consent Decree, as modified by Second Material Amendment to Consent Decree, Dkt. #171,
at ¶ 2;
WHEREAS, Paragraph 61 of the Consent Decree provides 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 practices and (2) will
continue to achieve the Performance Criteria set forth in Appendix D.
WHEREAS, this Proposed Amendment replaces the Upper River Des Peres Storage Tunnel
and the River Des Peres Tributaries Storage Tunnel with a single storage tunnel (called the
“Upper River Des Peres and River Des Peres Tributaries Storage Tunnel”), providing at least 58
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 December
31, 2037.
WHEREAS, the Parties agree that this Proposed Amendment reflects good engineering
practices by reducing the impacts of large tunnel construction projects on nearby communities,
increasing constructability and operational/maintenance benefits, and achieving the same
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Performance Criteria as the original two CSO storage tunnels. The construction of a single
storage tunnel will reduce the construction impacts to the local communities of University City
and Richmond Heights. A single storage tunnel will reduce the number of tunnel shafts and
eliminate the dewatering pump station in University City. In turn, this will reduce the number of
residential properties that need to be purchased and limit the impacts of construction. Similarly,
Richmond Heights would also see the elimination of a tunnel shaft in a highly residential area
(Claytonia Terrace and Lovella Avenue). The majority of the single storage tunnel will be
constructed in the right of way of Big Bend Boulevard, reducing the need for easement
acquisition and allowing for easier access and hauling in and out of the construction areas. And,
the operational and maintenance benefits include one pump station and one tunnel rather than
multiple of each, thereby simplifying operation and maintenance, and allowing more flexibility
to manage flows within the CSO system during heavy rainfalls. The consolidation of tunnel
projects by MSD will continue to achieve the same Performance Criteria - reduce overflow
events to four or less in the typical year in both the Upper River Des Peres and the River Des
Peres main channel, and reduce overflow to 94 million gallons of untreated flow volume per year
in the Upper River Des Peres. Once constructed, the single storage tunnel would also have a
storage volume of at least 58 million gallons – which is the aggregate of storage volumes of the
original two tunnels.
WHEREAS, the single storage tunnel accelerates the achievement of full operation for the
larger of the two tunnels, the original Upper River Des Peres Storage Tunnel, from June 30, 2039
to December 31, 2037 (as well as the project bid year from 2032 to 2029), but delays the benefits
that would have come with the construction of the River Des Peres Tributaries Storage Tunnel
from June 30, 2035 to December 31, 2037. However, MSD is addressing the delayed benefits by
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removing two CSO outfalls in the River Des Peres Tributaries Storage Tunnel service area
significantly earlier than required under the Consent Decree and thereby reducing CSO volumes
and demands on the combined sewer system in this area. One CSO outfall (L-111) will be
removed by June 2029 and the other CSO outfall (L-106) will be removed by March 2030,
which is six and five years, respectively, sooner than required by the Consent Decree. MSD will
also continue to promote the use of green infrastructure by storm water retrofitting and greening
of properties in this same service area. Moreover, the original Upper River Des Peres Storage
Tunnel serves a community with environmental justice concerns. EPA uses an environmental
justice screening and mapping tool (called “EJ Screen”) that utilizes standard and nationally-
consistent data to highlight places that may have higher environmental burdens and vulnerable
populations. The tool combines environmental and demographic information to create a single
environmental indicator (called an “EJ Index”) – such as proximity to traffic – that can help
identify communities that may have a high combination of environmental burdens and
vulnerable populations. This community has EJ Index above the 80th percentile for both Traffic
Proximity and Hazardous Waste Proximity. This Proposed Amendment will lessen the traffic
and reduce the construction impacts to this area and will accelerate by two years the timeframe
for when this community will see the benefits of the single storage tunnel capturing CSO
volumes.
WHEREAS, 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 -
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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. Based on information provided by MSD and on MSD’s projected costs, this Proposed
Amendment will allow the MSD ratepayers to experience single digit rate increases for the
remainder of the Consent Decree program while allowing the projected residential indicator in
the City of St. Louis as well as the entire District to remain below 2% through the life of the
Consent Decree.
WHEREAS, Paragraph 62 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;
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. 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.
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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 by (first) and second material amendments, Dkt. ##164 and 171, 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: Upper River Des Peres Storage Tunnel and River Des Peres
Tributaries Storage Tunnel as set forth at pages 3 & 5 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
Upper River Des
Peres and River
Des Peres
Tributaries Storage
Tunnel serving
Lemay Outfalls
064, 066 to 096,
099 to 106, 111,
117 to 128, 130,
131, 134, 136 to
140, 166, 167, 176,
178, and 180
Deep
storage/conveyance
tunnel, near-surface
facilities, pump
station or direct
connection to
LMRDP control
measure, sewer
separation and
consolidation
sewers
Provide storage
volume of 30 at
least 58 million
gallons in deep
tunnel system to
capture flows from
Lemay CSO
Outfalls 064, 066 to
096, 099 to 106 ,
111, 117 to 128,
130, 131, 134, 136
to 140, 166, 167,
176, 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 to
the Upper River
Des Peres in the
typical year(1) and
reduce overflows to
4 events or less in
the River Des Peres
main channel
during the typical
year. (1)
x Bid Year – 2032
2029
x Achievement of
Full Operation –
6/30/2039
12/31/2037
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
Storage /
Conveyance tunnel,
near-surface
facilities, pump
station, sewer
separation and
consolidation
sewers
Conveyance tunnel
with storage volume
of 28 million
gallons to capture
flows from Lemay
CSO Outfalls 103,
104, 105,106, 111,
117to 128, 130, 131,
134, 136 to 140, 166
and 176
When incorporated
with other River
Des Peres CSO
controls, reduce
overflows to 4
events or less to
River Des Peres
main channel in the
typical year (1)
x Bid Year – 2028
x Achievement of
Full Operation –
6/30/2035
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3.The following confirming changes to the top of page 3 of Appendix E, Post Construction
Monitoring, shall also be amended as follows (deletions are indicated in strikeout text and
additions are indicated in bold and italicized text):
Upper River Des Peres and River Des Peres Tributaries:
x Storage tunnel to store flows from CSO Outfalls to the Upper River Des
Peres.
x Tunnel to convey/store flows to Lemay WWTF
River Des Peres Tributaries:
x Tunnel to convey/store flows to Lemay WWTF
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 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 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
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agreement and un derstanding among the P arties with respect to this Amendment to the Consent
Decree, and this Amendment supersedes all prior agreements and u nderstandings, whether oral
or written concerning the Amendment embodied herein.
8. This Agreement ma y be executed in counterparts, and its validity shall not be challenged
on that basis.
Dated and entered this ___ day of ________, 2023.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
17th January
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The undersigned party hereby consents and certifies that it is authorized to consent to
the terms and conditions of this Third Material Amendment to Consent Decree in the
matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-
01120-HEA (E.D. Mo.).
FOR THE UNITED STATES OF AMERICA:
TODD KIM
Assistant Attorney General
United States Department of Justice
Environment and Natural Resources Division
Date:_____________________________________________
KATHRYN 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
8/5/22 KATHRYN
MACDONALD
Digitally signed by
KATHRYN MACDONALD
Date: 2022.08.05 06:59:34
-04'00'
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The undersigned party hereby consents and certifies that it is authorized to consent to
the terms and conditions of this Third Material Amendment to Consent Decree in the
matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-
01120-HEA (E.D. Mo.).
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII:
Date:_______________ _________________________________
LESLIE HUMPHREY
Regional Counsel
United States Environmental Protection Agency
Region 7
11201 Renner Road
Lenexa, Kansas 66219
Date:_______________ _________________________________
ELIZABETH HUSTON
Senior Counsel
A United States Environmental Protection Agency
Region 7
11201 Renner Road
Lenexa, Kansas 66219
6/29/22
6/27/22
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The undersigned party hereby consents and certifies that it is authorized to consent to
the terms and conditions of this Third Material Amendment to Consent Decree in the
matter of United States, et al. v. Metropolitan St. Louis Sewer District, No. 4:07-cv-
01120-HEA (E.D. Mo.).
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE:
Date: ____________________ ________________________________________
JOSEPH G. THEIS
Acting Director, 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
Date: ____________________ ________________________________________
LOURDES BUFILL
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
6/30/22
6/3/22
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5/26/2022
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