LITIGATION UPDATE MAMWA JANUARY 26, 2005

1
EXCELLENCE IN ENGINEERING SINCE 1946
2
Federal/State Dynamics Play Out in Kentucky

• CSO Control Strategies and Key Developments Among
  CSO Communities
• April 26-27, 2007
• Chicago, IL

3

• Map of CSO communities

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CSO Communities in KY

• Community CSOs Population
• Louisville MSD 115 430,000
• SD1 74 335,000
• Frankfort 15 50,611
• Owensboro 8
  54,000
• Paducah 11 34,500
• Ashland 8 30,000
• Henderson 14 29,500

5
CSO Communities in KY

• Community CSOs Population
• Pikeville 3 10,000
• Pineville 3 9,100
• Maysville 11
  8,950
• Prestonburg 1
  4,800
• Catlettsburg 17 4,100
• Morganfield 2 3,850
• Harlan 1 3,786
• Worthington 3
  2,168
• Vanceburg 5
  2,038
• Loyall 6 1,322

6
Chronology

• May 2004 USEPA submits 308 Requests to several
  KY CSO communities.
• August 2004 Joint USEPA/KDOW compliance
  inspections of several communities.
• April 2005 Lou MSD Joint Federal/State CD
• October 2005 SD1 Joint Federal/State CD
• June 2006 KDOW Inspections of communities
• May 2006 KDOW initiates Consent Judgment
  process with remaining communities.

7
Federal/State Actions

• Louisville MSD April 2005
• Joint State/Federal Order filed in Federal Court
  (LaJuana Wilcher, Cabinet Secretary)
• SD1 Filed October, 2005
• special interest group challenged schedule
• decree entered by the Court on 4/18/07

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What about the smaller communities?

• EPA enforcement guidance contemplates larger
  systems or where national interests implicated.
• OECA indicated HERE last year that EPA may be
  close to done with CSO enforcement and smaller
  systems will be dealt with by the States

9
City of Frankfort, KY

• Notice of Draft Consent Judgment
• November 2006
• 30 day public comment period
• State Action

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Key Elements

• Activities necessary to comply with 1994 CSO
  Policy
• Activities necessary to eliminate recurring
  SSOs.
• Implementation of a CMOM program
• Public Notice

11
Key Elements

• Fully implement LTCP by 12/30/2026
• Eliminate all recurring SSOs within 8 years from
  entry of judgment.
• Pay a 50,000 civil penalty
• Public Notice

12
USEPA weighs in

• and now the federal environmental agency wants
  Frankfort to justify the deadlines in the
  judgment.
• Federal agencies contacted the state between
  Christmas and New Year with the new requirement.
• State-Journal 1/11/07

13
USEPA weighs in

• The city must present documentation within about
  two weeks to prove why the deadlines in the
  consent judgment are fair specifically eight
  years to eliminate sanitary sewer overflows and
  17 to implement a long-term control plan.
• State-Journal 1/11/07

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Key Issue

• Timeframes/schedules for LTCP
• Regulators being very aggressive.
• Inconsistency between regulatory agencies
  states and EPA Regions.
• Schedule dependent on
• Ability to pay
• Constructability sequencing, plan, design,
  financing, permitting, construction

15
Memo to KDOW

• Once the permittee has completed development
  of the long-term CSO control plan and the
  selection of the controls necessary to meet CWA
  requirements has been coordinated with the
  permitting and WQS authorities
• FR pg. 18696

16
MEMO TO KDOW

• the permitting authority should include, in an
  appropriate enforceable mechanism, requirements
  for implementation of the long-term CSO control
  plan as soon as practicable.
• FR pg. 18696

17
MEMO TO KDOW

• Implementation Schedule
• The permittee should include all pertinent
  information in the long term control plan
  necessary to develop the construction and
  financing schedule for implementation of CSO
  controls.
• FR pg. 18694

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KDOW MEMO

• Schedules for implementation of the CSO
  controls may be phased based on the relative
  importance of adverse impacts upon WQS and
  designated uses, priority projects identified in
  the long-term plan, and on a permittees
  financial capability.
• FR pg. 18694

19
MEMO TO KDOW

• Without having a well defined plan developed, it
  does not seem appropriate to try to establish a
  completion deadline.

20
Example Decrees

• Federal Consent Decrees
• Youngstown, OH
• Bangor, ME
• South Portland, ME
• Numerous Region 5 Decrees that are pending
  incorporate this approach.

21
Status

• Appears that KDOW is now considering a variety of
  approaches regarding LTCP schedule. No decision
  made yet.

22
Status

• CJs finalized by July 2007???
• State being very aggressive

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Conclusion

• Stick to the national CSO Policy.
• Be wary of agreeing to an end date for your
  program when your program is not yet
  well-defined.
• States should lead enforcement actions where they
  are willing and able
• EPA OW needs to designate a new National CSO
  Program Manager.

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Contact Information
John Lyons Strand Associates, Inc. 513-861-5600