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United States v. Metropolitan Water Reclamation District of Greater Chicago

United States District Court, Seventh Circuit

January 6, 2014

UNITED STATES OF AMERICA, and STATE OF ILLINOIS, Plaintiffs,
v.
METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendant.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

On the same day that the United States of America ("US" or the "government") and the State of Illinois ("Illinois") filed suit against the Metropolitan Water Reclamation District of Greater Chicago ("MWRD") for alleged violations of the Clean Water Act, the plaintiffs filed a proposed consent decree. After the deadline for public comment had passed and after the governments considered the public comments, the plaintiffs filed a motion for entry of the consent decree. Defendant MWRD also supports entry of the consent decree. Two sets of intervenors [(1) the "Alliance Group, " which consists of the Alliance for the Great Lakes and the Environmental Law & Policy Center and (2) the "NRDC Group, " which consists of the Natural Resources Defense Council, Sierra Club and Prairie Rivers Network] oppose entry of the consent decree. The parties have filed voluminous briefs and reams of exhibits, including deposition transcripts. The Court has held oral argument. For the reasons set forth below, the Court approves the consent decree.

I. Background

In most parts of the country, municipalities use separate sewer systems-one for storm water, one for sanitary waste water-to convey different types of waste water to treatment plants. The City of Chicago is different. Here, sanitary waste water, storm water and industrial waste water are all conveyed via one sewer system (a "combined sewer system") to sewage treatment plants where the water is treated (in theory, anyway) before being released into a water body.

A problem that a combined sewer system can face is insufficient capacity. Even if a combined sewer system has sufficient capacity to convey waste water in dry weather or during rain storms with an average amount of precipitation, it may not have sufficient capacity to convey waste water in the event of above-average precipitation. The water, however, must go somewhere. If it cannot flow into the sewers, it will remain on the streets and sidewalks or back up into basements, neither of which is desirable. Accordingly, combined sewer systems are designed to overflow (a process that is called "combined sewer overflow" or "CSO"). The combined sewer systems are designed to overflow at points along water bodies (called "CSO outfalls") so that the water has a place to go other than basements and streets.

Defendant Metropolitan Water Reclamation District of Greater Chicago ("MWRD") is the entity responsible for operating the waste water sewer system and the seven treatment plants that serve Chicago and the surrounding areas. MWRD serves an area of approximately 883 square miles, including the City of Chicago and 128 surrounding municipalities. A portion of that area uses combined sewer systems. For example, MWRD's three largest water treatment plants-the North Side water reclamation plant, the Calumet water reclamation plant and the Stickney water reclamation plant-receive water from combined sewer systems. (This case involves only those three plants.) These combined sewers lead to CSO outfalls where, during periods of time in which the combination of storm water and sanitary waste exceeds capacity, CSOs occur.[1] MWRD's CSO outfalls are located such that they release water into canals, channels, creeks or rivers ("Chicago Area Waterways"). None of MWRD's CSO outfalls discharge directly into Lake Michigan. Sometimes, however, the water levels in the Chicago Area Waterways become too high (which threatens flooding), so the gates between the Chicago River and Lake Michigan and/or the gates between the Calumet River and Lake Michigan are opened and water backflows into Lake Michigan. That happens, on average, once per year.

The history of the tunnel and reservoir plan

The capacity problem associated with combined sewer systems, which was exacerbated by post-World War II development, is not recent news to the City of Chicago. In the late 1960's, officials from the City of Chicago, together with officials from Cook County, the State of Illinois and the Metropolitan Sanitary District of Greater Chicago (as MWRD was then known) formed a Flood Control Coordinating Committee to study options for ameliorating flooding and the waste water discharge problems caused by the combined sewer system. The committee considered 23 alternatives and ultimately, in December 1972, recommended a system of tunnels and reservoirs that is now known as the Tunnel and Reservoir Plan ("TARP").

TARP is a system of tunnels and reservoirs that are designed to capture and store the combined sewer flow so that it is not released as CSOs at CSO outfalls. The idea is that when an excess quantity of combined sewer waste (excess in that it is greater than the capacity of the water reclamation plants) flows into the system, it flows into tunnels that lead to reservoirs that can store the excess flow until the water reclamation plants have capacity to treat the waste water. Once the nearby water reclamation plant has available capacity, the waste water is pumped from the reservoir to the water reclamation plant, where the waste water can be treated and safely released.

TARP includes 109.4 miles of tunnels in four separate systems: the Upper Des Plaines tunnel system, the Mainstream tunnel system, the Lower Des Plaines tunnel system and the Calumet tunnel system. Each tunnel system, in turn, leads (or will one day lead) to one of three reservoirs: the Gloria Majewski Reservoir ("Majewski"), the Thornton Composite Reservoir or the McCook Reservoir. These components of TARP are in various stages of completion.

The Upper Des Plaines tunnel system, which consists of 6.6 miles of tunnels with the capacity to store 71, 000, 000 gallons of waste water, is complete. That tunnel system leads to the Majewski Reservoir, which was completed in 1998. The Majewski Reservoir has the capacity to store 350, 000, 000 gallons of waste water.

The Mainstream tunnel system (which consists of 40.5 miles of tunnels that were finished in 1998) and the Lower Des Plaines tunnel system (which consists of 25.6 miles of tunnels that were completed in 2001) lead to the Stickney water reclamation plant. The tunnels, themselves, have combined storage capacity of 1, 605, 000, 000 gallons. Ultimately, the Mainstream tunnels and the Lower Des Plaines tunnels will connect to the McCook Reservoir. The McCook Reservoir is not finished; but, when it is, it will have capacity to store 10, 000, 000, 000 gallons of waste water until the water can be treated.

Finally, the Calumet tunnel system (which consists of 36.7 miles of tunnels that were finished in 2006) leads to the Calumet water reclamation plant. The tunnels, themselves, have storage capacity of 630, 000, 000 gallons. Ultimately, the tunnels will connect to the Thornton Composite Reservoir, where waste water can be stored until it can be pumped into the Calumet water reclamation plant for treatment. The Thornton Composite Reservoir is not finished; but, when it is, it will have the capacity to store 4, 800, 000, 000 gallons of waste water.

Construction of the various TARP components began in 1975. Thus far, construction has cost more than $3, 000, 000, 000.00. Of that, MWRD has spent approximately $1, 400, 000, 000.00. The rest of the money came from EPA construction grants and the Army Corps of Engineers.

It will be some time before the Thornton Reservoir and the McCook Reservoir are completed. Currently, the MWRD is having limestone mined from the sites to create rough holes, within which MWRD will construct the reservoirs. In the meantime, according to the complaint filed by the government, the MWRD continues to discharge CSOs in violation of its permits.

The governments' complaint

The Clean Water Act ("CWA") prohibits the "discharge of any pollutant" except in a manner that complies with provisions of the CWA. 33 U.S.C. § 1311(a). One of those exceptions is a discharge of pollutants in navigable waters in compliance with a permit issued under §402 of the Clean Water Act, 33 U.S.C. § 1342. That section "established the National Pollutant Discharge Elimination System (NPDES'), and requires dischargers to obtain a permit from the Environmental Protection Agency or an authorized state." Texas Ind. Prod. & Royalty Owners Assoc. v. EPA, 410 F.3d 964, 967 (7th Cir. 2005) (citing 33 U.S.C. § 1342(a)(1), (b)).

MWRD holds an NPDES permit (the "Calumet Permit") for its Calumet water reclamation plant, one (the "North Side Permit") for its North Side water reclamation plant and one (the "Stickney Permit") for its Stickney water reclamation plant. Each of these NPDES permits was issued on January 22, 2002 and took effect on March 1, 2002. The permits state that they expire on February 28, 2007, but the parties agree that the permits are still in effect, pursuant to Illinois law (5 ILCS 100/10-65(b)), until IEPA's final decision on new permits.

The Calumet Permit authorizes MWRD to discharge from 13 specified CSO outfalls, provided that MWRD meets certain terms and conditions. (Calumet Permit at 8-9). Similarly, the Stickney Permit authorizes MWRD to discharge from 15 specified CSO outfalls and the North Side Permit authorizes MWRD to discharge from 9 specified CSO outfalls, provided that it meets certain terms and conditions. (Stickney Permit at 8-9; North Side Permit at 9).

This case began when the United States and the State of Illinois filed a complaint alleging that MWRD had violated these three permits. In Count I (which plaintiffs label "Dissolved Oxygen"), plaintiffs allege that MWRD violated the terms of the Stickney Permit, the Calumet Permit and the North Side Permit with respect to dissolved oxygen. The Stickney Permit, the Calumet Permit and the North Side Permit authorize CSO discharges, but the discharges must "be treated... to prevent depression of oxygen levels below the applicable water quality standard." (North Side Permit at 9; Calumet Permit at 9; Stickney Permit at 9). In Count II (which plaintiffs label "Floatables"), plaintiffs allege that MWRD violated the terms of the Stickney Permit, the Calumet Permit and the North Side Permit by failing to treat the CSOs in a manner that would prevent the accumulation of sludge deposits, floating debris and solids. Those permits authorize CSO discharges, but the discharges must "be treated... to the extent necessary to prevent accumulations of sludge deposits, floating debris and solids..." (North Side Permit at 9; Calumet Permit at 9; Stickney Permit at 9).

Count III (which plaintiffs label "Permit Condition 10.1"), too, involves alleged violations of these three permits. The Stickney Permit, the North Side Permit and the Calumet Permit each states, as a condition of the authorization of the CSOs:

All combined sewer overflows and treatment plant bypasses shall be given sufficient treatment to prevent pollution and the violation of applicable water quality standards. Sufficient treatment shall consist of the following: All dry weather flows and the first flush of storm flows shall be transported to the main STP and shall meet all applicable effluent standards and the effluent limitations required from the main STP outfall. Additional flows, but not less than ten times the average dry weather flow for the design year, shall receive the equivalent of primary treatment and disinfection with adequate retention time.

(Special Condition 10.1/Calumet Permit at 9; Stickney Permit at 9; North Side Permit at 9). In Count III, the plaintiffs allege that MWRD violated Special Condition 10.1 of each permit by failing to provide treatment to and disinfection of a sufficient quantity of flows.

The proposed consent decree

The plaintiffs and the defendant have reached an agreement to settle this case with the entry of a proposed consent decree. The proposed consent decree outlines a number of obligations and projects MWRD has agreed to undertake.

Fine

First, MWRD has agreed to pay a penalty to both plaintiffs. If the consent decree is approved and entered by this Court, MWRD will pay the United States Department of Justice $350, 000.00. MWRD will pay the State of Illinois $325, 000.00. Thus, MWRD will pay a combined civil penalty of $675, 000.00.

TARP deadlines

Next, the proposed consent decree sets out the deadlines by which MWRD must complete TARP's final stages, which are the Thornton Composite Reservoir and the McCook Reservoir. Under the terms of the proposed consent decree, MWRD is to complete the mining for the Thornton Composite Reservoir by December 31, 2013. Before the Thornton Reservoir can become operational, MWRD must complete certain other projects. Those projects must be completed by December 31, 2015, and the Thornton Composite Reservoir must be operational by December 31, 2015.

The McCook Reservoir will be completed in two stages. MWRD is to complete the mining of Stage One (which will have capacity to store 3, 500, 000, 000 gallons of water) by December 31, 2016 and have Stage One operational by December 31, 2017. As for Stage Two (which will have capacity to store 6, 500, 000, 000 gallons of water), MWRD is to have the mining completed by December 31, 2028. The consent decree requires MWRD to have Stage Two of the McCook Reservoir operational by December 31, 2029.

MWRD has contracted with third parties to mine the limestone from the sites that will become the Thornton Composite Reservoir and the McCook Reservoir. Because third parties are doing the mining, it is possible that events beyond the control of MWRD could cause delays of the mining and that those delays could cause the MWRD to miss one or more of the deadlines (for completing the Thornton Composite Reservoir or the McCook Reservoir) set out in the consent decree. The consent decree calls any excavation delay beyond the deadlines in the consent decree a "contingency event" and sets out a process for how the parties to the consent decree would handle such an event, should it occur.

Apart from contingency events, the consent decree sets penalties that will be assessed if MWRD fails to meet the deadlines for operation of the Thornton Composite Reservoir and/or the McCook Reservoir. Those penalties are $1, 000.00 per day for the first through 30th day; $2, 000.00 per day for the next 30 days; and $5, 000.00 per day for each subsequent day.

Post-construction performance

The consent decree sets out operational standards that will apply to the two reservoirs (and their respective tunnel system(s)) after the reservoirs are operational.

For example, once the Thornton Composite Reservoir is operational, the Calumet water reclamation plant is required to provide full treatment to the Maximum Practical Flow (which the consent decree defines as "the maximum flow accounting for all hydraulic and hydrologic factors that can pass through the Calumet WRP, North Side WRP or Stickney WRP within the then existing capacity constraints of the applicable WRP and receive full treatment in compliance with the NPDES Permit(s) for the WRP(s) receiving the flow."). (Consent Decree at 10). The consent decree also requires that all flows that enter the Calumet TARP tunnels be conveyed to the Calumet water reclamation plant and be treated before being released (although the consent decree allows CSOs at one particular CSO outfall if the Cal Sag Tunnel is full). The consent decree sets out the same standards for the Mainstream/Lower Des Plaines Tunnels and the McCook Reservoir once it becomes operational (with exceptions allowing for CSOs at three particular CSO outfalls should particular tunnels be full).

Monitoring

The consent decree also requires MWRD to develop a plan for post-construction monitoring of TARP. Within one year after the entry of the consent decree, MWRD must develop and provide to EPA and IEPA (for their approval) a plan for monitoring CSO discharges in the Calumet tunnel and reservoir system (the system that leads to the Thornton Composite Reservoir). Among other things, the monitoring must determine whether MWRD's CSOs are in compliance with the Calumet NPDES Permit in effect at the time. Within five years after the entry of the consent decree, MWRD must develop and provide to EPA and IEPA (for their approval) a plan for monitoring CSO discharges in the Mainstream and Lower Des Plaines tunnel and reservoir systems ...


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