|
Allegheny County Municipalities Weigh
Sewer Agreements
By
Bradley S. Tupi, Esq.
Last October, representatives of the United States Environmental
Protection Agency ("EPA") came to Pittsburgh and met with municipalities
served by the Allegheny County Sanitary Authority ("ALCOSAN"). The EPA
representatives proposed "voluntary enforceable agreements" to address
wet weather overflows from local sewer systems.
Recently, two forms of the "agreements" have been circulated to local
municipalities. The Allegheny County Health Department ("ACHD") has
proposed an "Administrative Consent Order" to address Sanitary Sewer
Overflows ("SSOs") in municipalities with separate sanitary and storm
sewer systems. The Pennsylvania Department of Environmental Protection
("DEP") has proposed a "Consent Order and Agreement" to address Combined
Sewer Overflows ("CSOs") in municipalities with combined sewer systems.
Some municipalities have both kinds of systems, and so are considering
both draft agreements.
We offer the following observations about the draft agreements.
Order versus Agreement
EPA had led us to expect "voluntary enforceable agreements," but ACHD
and DEP have proposed fairly typical consent orders. If the
environmental regulators wish to avoid the expense and delay of orthodox
enforcement procedures, then they should be willing to negotiate with
municipalities over the terms of a mutually acceptable agreement. The
municipalities have considerable leverage to bargain for more favorable
terms than the regulators have proposed.
Admissions of Liability
Most voluntary settlement agreements state that the settlementis a
compromise of disputed issues and that by settling, a party is not
admitting liability. By contrast, most environmental regulatory orders,
even those negotiated on consent, contain admissions of fact by the
regulated party. Consistent with this practice, the SSO order and CSO
order recite "findings and determinations" by ACHD and DEP,
respectively. These provisions require the municipality to admit that it
has caused or contributed to illegal overflows. For some municipalities,
the statements are untrue. For all municipalities, the statements are
unwise. The regulators should not require such admissions of liability
in the context of a cooperative settlement agreement.
Cost Effectiveness
The overall cost of addressing sewer infrastructure problems in the
ALCOSAN service territory has been estimated at $3 billion. Of this
amount, $1 billion is expected to come from ALCOSAN and $2 billion from
the communities served by ALCOSAN. EPA’s demand for expenditures of this
magnitude has not been justified by any cost-benefit analysis. Municipal
officials in our region should be asking, Does the wet weather overflow
problem pose such a serious health threat as to warrant $3 billion in
spending? Will the proposed consent orders yield any measurable
improvement in water quality?
In considering the proposed consent orders, each municipality should
consult with its engineer about whether the proposed program of
assessment, flow monitoring, hydraulic capacity evaluation and sewer
pipe repairs will, in fact, be successful in eliminating wet weather
overflows. Perhaps our local tax dollars would be better spent on a more
focused effort designed to identify and prioritize the largest sources
of inflow and infiltration. What if municipalities spend millions of
dollars on their systems only to find that the source of the problem was
actually infiltration in private laterals?
Budgeting Concerns
Obviously, compliance with either of these proposed consent orders
will require substantial financial resources. The necessary resources
may or may not have been set aside in the current municipal budget.
Moreover, municipalities are struggling to formulate their budgets
because of the turmoil surrounding Allegheny County property
assessments. Each municipality must prepare an engineering estimate of
the likely compliance costs and negotiate accordingly.
Enforcement Concerns
EPA told us last Fall that it was delegating enforcement authority to
ACHD for SSOs and to DEP for CSOs. However, the draft consent orders
leave open the possibility that a municipality could, in fact, face
enforcement action from more than one regulatory body.
EPA indicated that municipalities that execute these agreements would
be free from tap restrictions under their present Corrective Action
Programs. The draft consent orders provide that municipalities may
"self-regulate" any new connections as long as they do not "exacerbate
the existing hydraulic overload." Arguably, any new connection to a
system that overflows in wet weather might be considered to "exacerbate"
the situation. Municipalities’ freedom from tap restrictions should be
made explicit in the draft consent orders.
Fines and Penalties
The ACHD and DEP consent orders provide for stipulated penalties in
the event that a municipality fails to meet a deadline. In both consent
orders, the penalties are $500 per day per violation. They accrue
automatically and without notice. Municipalities might demand a cure
period during which they might remedy any deficiency without penalty,
particularly if no overflows occurred during the period of alleged
violation. They might also demand that the imposition of any penalty
would require the regulatory body to issue a written notification.
The draft consent orders also give the regulators discretion to seek
additional remedies, including enforcement proceedings, civil penalties
and injunctive relief. These remedies are cumulative, which means that
the stipulated penalty does not cap the municipality’s liability. If a
municipality is going to stipulate to a penalty, the regulatory body
should agree that the stipulated amount would be the sole monetary
penalty.
One of the advantages to a municipality in executing the consent
order would be to avoid up-front penalties for any previous overflow
violations. Obviously, this is one of the enticements the regulators are
offering in the hopes of having municipalities execute these agreements.
Deadlines
The consent orders impose various deadlines, for example, the
completion of a physical survey of the collection system by March 1,
2005. We would suggest that all deadlines be keyed to the date of the
municipality’s execution of the consent order, so that if a particular
task contemplates three years of activity, the municipality will have
the full three-year period to comply.
The critical question with respect to the deadlines proposed by the
consent orders is whether they are feasible for the municipality. Before
agreeing to such a deadline, the municipality must assure itself that it
and its engineer can complete the necessary work by the specified date.
Obviously, the municipality must also make sure that it can generate
sufficient funding to accomplish the task within the period allotted.
Finally, the municipality should consider how it might cooperate with
its neighbors to achieve compliance in the most cost-effective manner
possible.
Hydraulic Capacity
EPA’s presentation last Fall suggested that evaluation of a system’s
hydraulic carrying capacity would be part of Phase II (Flow Monitoring).
Indeed, because flow monitoring would appear to be an important part of
assessing hydraulic capacity, this evaluation should be part of Phase
II. But the draft orders put hydraulic capacity in Phase I (Assessment).
This should be amended.
CMOM Regulations
EPA has written (but not yet published) sanitary sewer regulations
called "CMOM," which stands for Capacity, Management, Operation and
Maintenance. Paragraph 16 of the ACHD draft attempts to incorporate the
CMOM regulations. If and when the CMOM regulations are promulgated, the
municipalities will have to comply, so there is no need to paraphrase
those regulations in the SSO consent order. If the final CMOM
regulations differ from this Agreement, municipalities cannot satisfy
conflicting requirements. Therefore, Paragraph 16 of the SSO consent
order should be deleted.
Conclusion
These draft consent orders pose serious issues for Allegheny County
municipalities. Executing a consent order will obligate a municipality
to commit personnel and financial resources to complete assigned tasks
by specified deadlines. Failure to execute the consent orders may invite
enforcement action. We hope these comments will be of assistance to your
municipality in determining a course of action.
If you have any questions or comments about the subject of this
newsletter, please feel free to contact Brad Tupi at 412/594-5545 or via
e-mail at btupi@tuckerlaw.com.
1 Brad Tupi is an environmental lawyer and a
former township commissioner. He has served as Vice Chair of the
Southern Communities Basin Group and as a member of the Three Rivers Wet
Weather Demonstration Project Stakeholders Group.
2 This newsletter is not intended to constitute
legal advice. Your municipality should consult with its own solicitor
about the draft consent orders. Views expressed in this newsletter
reflect the personal observations of the author and not necessarily the
views of the Firm’s clients.
^ Back to top
_________________________________________________
< Back
|
