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A consent decree between the City of Fort Smith and the Environmental Protection Agency (EPA) and Arkansas Department of Environmental Quality (ADEQ) regarding the city's violation of the Clean Water Act (CWA) due to Sanitary Sewer Overflows (SSOs) from its Wastewater Collection and Transmission Systems (WCTS). The decree includes the city's agreement to prioritize and complete capacity remedial measures, hydraulic analyses, and operational improvements at each pump station to prevent SSOs. The city also agrees to provide detailed descriptions of these measures and a schedule for their completion, as well as notifications to EPA and ADEQ if any projects are deemed unnecessary.
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Case2:14-cv-02266-PKH Document3-1 Filed01/02/ Page 1 flf 147
PageiD #: 28
and
Plaintiffs,
v.
Defendant.
Case 2:14-cv-02266-PKM Document 3-1 Filed 01/02/15 Page 2 of
PagelD #: 29
Sections and Articles
Pa e s
A. Introduction
B. Article One: Sewer System Condition Assessments ........................................... 17
C. Article Two: Condition Remedial Measures ....................................................... 21
Article Three: Pwnp Station/Force Main Evaluation Report .............................. 23
E. Article Four: Capacity Assessment and Hydraulic Modeling ............................. 27
F. Article Five: Capacity Remedial Measures Plan ................................................. 31
G. Article Six: Capacity-Related Remedial Measures Projects Identified in
Appendices El and E
.......................................................................................... 33
H. Article Seven: Development of a Capacity, Management Operation and
Maintenance Program
........................................................................................... 34
Introductian
........................................................................................................... 34
WCTS Maintenance Activities Until Full CMOM Implementation..................... 34
FOG Control Program Component ....................................................................... 34
FOG Program Reporting
....................................................................................... 37
Root Control Program Component
....................................................................... 3 S
Root Control Program Reporting
.......................................................................... 38
Gravity Sewer Line Cleaning Component ............................................................ 38
Cleaning Program Reporting
................................................................................ 41
Continuing Sewer System Assessment Program Component .............................. 41
Case2:14-cv-02266-PKH Document3-1 Filed01IO2f15 Page 4 of
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XX. NOTICES ..............................................
......................................................................
104
~Yi. EFFECTIVE DATE ........................................................................................................
lOb
XXTI. RETENTION OFJI3RISDICTTON
................................................................................ l Ob
XXIII. MODiFICATION
...........................................................................................................
106
XXIV. TERMINATION
............................................................................................................
10~
XXV. CONTINGENT LIABILITYOF THE STATEOF ARKANSAS ................................ 108
~XVI. PUBLICPARTICII'ATI4N
..........................................................................................
108
XXVII. SIGNATORIESISERVICE
...........................................................................................
149
XXVIII. INTEGRATION/APPENDICES
..................................................................................
109
~~IX, FiNAL JUDGMENT ...................................................................................................
111
iv
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the City ofFortSmith, .Arkansas ("City")owns and operates a Publicly
Owned Treatment Works("POTW") asdefined at 40 C.F.R. § 4033 that includes two
Wastewater Treatment Plants {"WWTPs") and twoWastewater Collection andTransmission
Systems ("WCTS")collectively serving the WWTPs;
theState ofArkansas isaparty to
this action pursuant to Section 309(e) of
theClean Water Act ("CWA"), 33 U.S.C.§ 1319{e);
City dischargespollutants
intonavigable waters of the United Statesand
Waters of the State ofArkansas fromtheP StreetW'WTP (locatedat I3 North P Street in Fort
Smith), and theMansard W~VTP (located in FartSmith witha mailing address of 1609 North 9~'
Terrace, Barling, Arkansas), pursuant to National Pollutant DischargeElimination System
{"NPDES") Permit No. AR ("the PStreetPermit"), effective Maxch 1, 2012,and
Permit No. AR ("theMansard Permit"}, effectiveFebruary 1, 2009;
Plaintiff,United Statesof America, by the authority of the Attorney General
cif the United Staxes and throughits undersigned counsel,acting at the request and on behalf of
the Administrator ofthe United States Environmental Protection Agency ("EPA") and pursuant
to Section 309{a) ofthe CWA, 33 U.S.C. §1319{a),and theCo-Plaintiff Stateof Arkansas,
acting at the request and on behalf of the Arkansas Departnnent ofEnvironmental
Quality
by the authority of the Attorney General, pursuant toArk. Cade Ann.§ 25-16-'702(e)
andin accordance withCWA Section 309(e}, 33 U.S.C.§1319(e), and through its undersigned
counsel, jointly filed a Complaint against City seeking injunctive reliefand acivil penalty;
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2:14-cv-42266-P~H
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ascontinued implementation
ofits Wastewater
Management Plan, the City
asserts that it has entered into contracts and expended over $203,463, on the design and
construction ofPOTW improvements
including upgrading of both WWTPs; development and
continued maintenance
of aWCTS hydraulic model; completion of WCTS evaluation studies on
certain collector sewers;replacement
orrehabilitation
ofcertain collector sewers; construction of
certain interceptor
sewers;construction
ofthe Sunnymede wet weather pump station and
equalization
{"EQ")storage facility; current construction of the Zero Street wet weather pump
station and EQ storage faczIity; and completion ofconstruction of theMill Creek wet weather
pump station and EQ facility, resulting in what the City believes isasignificant reduc#ion of
SSOs initsWCTS;
Fort Smith's POTWisa separate sanitary sewer system and the Parties
nevertheless
agree to utilize EPA's "Combined Sewer Ovezflovvs
Guidance far Financial
Capability Assessment
and Schedule Development,"
EPA 8320B-97-004, published February,
herein;
notwithstanding
City's development and continued implementation
of i#s
Wastewater
Management Plan, EPAalleges that City has not made sufficient progress and
remains innoncompliance
with #s NPDES Pernuts and the CWA, particularly
in the area of
SSQs;
City does not admit any liability arisingout ofthetransactions
or
occurrences
alleged in the Plaintiffs' Complaint and alleges that: (1) City's operation of its
in
fact was consistent with the then current
NPDES Permits issued by the State; (2) City
Case
2:14-cv-02266-PKH Document 3-1 Filed01/02/15 Page 8 of 147 PagelD #: 35
notified EPA and the State
that itsWas#ewater Management Planand itsimpiementa~ionwere
consistent with principlesofaffordability; and{3) EPAdidnot notify City not to implement the
Wastewater Management Planandsubmittals by the City pursuant to the Plan; and
V~JHEREAS theParties recognize, andtheCourtby entering this Consent Decree finds,
thatthisConsent Decree has beennegotiated
by
the Partiesiregood faith and will avoid
prolonged andcomplicated litigation amongtheParties, and that this Consent Decree is fair,
reasonable, andinthepublic interest.
NOW, THEREFORE,
before the taking ofanytestimony, withouttheadjudication or
admission ofanyissueof factorlaw except as provided in Section I, below,and with the consent
oftheParties,IT ISHEREBY ADJUDGED, ORDERED,AND DECREED as follows:
I. JURISDICTION AND VENUE
This Courthasjurisdiction over fhesubjectmatter of this action, pursuant to 28 U.S.C.
§§I331, 1345, 1367(a) and 1355, andSections 309{b)ofthe CWA, 33 U.S.C. §1319(b),and
overtheParties. Venueliesin this Districtpursuant to Section309(b) of the CWA, 33 U.S.C. §
1319{b), and 28 U.S.C. §§ 1391 {b) and1395(a), because Cityislocated inthisjudicial district,
andthe violationsalleged in theComplaint are alleged to have occurred in this judicial district.
Forpurposes of this Decree, Citydoesnotcontest the Court's jurisdictionoverthis actionor
over theCity, and does notcontest venueinthis judicialdistrict.
upon which relief maybe granted pursuant ~o Sections 301 and 309 of theCWA, 33 U,S.C. §§
1311 azid1319.
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and to each engineer, Consultant andContractor alreadyretained (and to beretained in the
future) to
perform any activitiesrequixed bythisConsent Decree upon the execution of any
contractrelating tosuch activities.
Inanyaction toenforce this Consent Decree, City shall notraise as a defense the failuxe
by any of its officials, employees, agents,Consultants orContractors totake any actions
necessa~.~yy tocomply with the provisions of this Consent Decree.
meanings given to those terms in the CWA andthe regulationspromulgated thereunder. The
following terms used inthis Consent Decree shall be defined as follows:
a "ADEQ" shall mean the ArkansasDepartnnent ofEnvironmental
Quality,and any
successor departments oragencies ofthe State of Arkansas;
b. "Annual Report" shallmeanthereport tobe submitted annually pursuant to Section
Xofthe ConsentDecree;
c. "Appendix" shallmeanan attachmentto this Consent Decree which contains details
ofcompliance actions tobeundertaken pursuant to this Decree;
d. "Article" shall mean aportionof SectionV("Comprehensive Remedial
Requirement" Section) of this Consent Decree;
e. "Basin" shall mean a section ofaSewershed thatis adistinctwastewater collection
area,anddesignated byFort Smithas such;
f. "Building/Private
PropertyBackup" sha11 mean a wastewater backup into a building
6
Case2:14-cv-02266-PKH Document 3-1 Filed 01102/ Page 11 at 147 PagelD #: 38
andlor a wastewater overflow onto privateproperty that iscaused by blockages, flaw
conditions orother malfunctions inthe WCTS. "Building/Private Property
Backup"
does nat include a wastewater
backupinto abuilding and/ora wastewater overflow
onto priva#e property
that is caused solely by ablockage orother malfunction ofa
Private Service Lateral or otherpiping orconveyance system that Fort Smith does not
ownoroperate;
g. "Calendar Year" shall mean the 12 -month period starting on January 1 and ending on
December 31 ofa given year;
h. "Capacity Constraint" shallmean those discretecomponents,
or groups of
components of theWCTS thatare determined bythe City,. consistent with Section V,
Article Four ("Capacity Assessment and Hydraulic Modeling") ofthis Consent
Decxee tohave capacity deficiency issues thathave caused orsignificantly
contributed to previous capacity -related SSOs; that are likelyto cause orsignificantly
contribute to future capacity -related SSOs;and/or that are identified as overflow
locations for anystorm event presented inSection V,Article Four, Paragraph 30;
i, "City" or "Fort Smith" shall mean the CityofFort Smith.,Arkansas;
j. "Cleazx WaterAct" or"CWA" shall meanthe federal Clean Water Act found at 33
k. "CM4M"
or"Capacity, Management,
Operations, and Maintenance" sha11mean a
program of accepted industry practices to properly manage, operate and maintain
sanitary sewer collection, transmission
andtreatment systems, investigate capacity
7
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q. "Cross -Connection" shall meanany constructed. connection, whether by pipe or any
other means, between anypartof theWCTS andany partofastorm water drainage
system that iscapable ofconveyingflow between the two systems;
r, "Date of Entry" shall mean the actualdate thefederal districtcourt judge signs and
approves thisConsent Decree,after thepublic comment period expires, and after the
United States files a motion for entry andamemorandum in supportthereof;
s. "Dateof Lodging" sha11mean the date the United States files a copy of this Consent
Decree signed byall Parties with the District Court, along with theComplaint, przor
to submitting theConsent Decreefor publication inthe Federal Register to provide an
opportunity for publicreview and comment thereon;
t, "Day" or "Days" shall mean a calendar day or calendar days unless expressly stated
tobea business day or business days. In computingany periodoftime under this
Consent Decree, where the last Day wouldfallon aSaturday, Sunday, ora federal ox
State holiday, the period shall rununtil the closeof thenext business day;
u. "Defendant" shallmean the City of Fort Smith, .Arkansas;
v. "Deliverable" shallmean any written document required to beprepared and/or
submitted byor onbehalf of Fort Smith pursuant to this Consent Decree;
w. "Direct Discharge" shallmean asewer pipeinstalled toconvey wastewater from a
sanitary sewer for release into theenvironment;
x. ".EPA" shall mean the United StatesEnvironmental
Protection Agency and any
successor departments
or agencies of ithe United States;
0
Case2:14-cv-02266-PKH Document 3-1 Filed01./Q2/15 Page 14 of 147 PagelD#: 41
y."Equalization Facilities"or "EQ Facilities" shallmean #hose components of the
WCTS designated, designed or intended forthe temporary storageofwet-weather
wastewater flows;
z, "FQG"shall mean fats, oilandgrease,whether petroleum -based, mineral -oil-based,
animal -basedor vegetable-based;
aa. "FOG Control Device" shallmean anygreaseinterceptor, grease trap,oxother
mechanism, device,or proc,~ssthatattaches toorisapplied towastewater plumbing
fixturesandlorPrivate ServiceLines tocollect,contain, orremove FOG from the
wastewater streamof aFOGGenerator prior to discharge into the WCTS;
bb, "FOG Control Program" ar"Fats, Oiland GreaseControl Program"shall mean Fort
Smith's program to control dischargeofFOG intotheWCTS as developedand
approved underSection V,Article Seven,Paragraph 37 ofthis ConsentDecree;
cc. "F(3G Generator" shall- mean anyfood serviceestablishment orfood-processing
establishmentthat discharges FOG into the WCTS, provided, however, that those
establishments covered bytheCity's industrial user program shall not be considered a
FOGGenerator forthe purposes ofthis Consent Decree;
dd. "Force Main" sha11 meanany pipethat receivesandconveys, underpressure,
wastewaterfrom the discharge side of a pump. A Force Main is intended to convey
wastewater under pressure;
ee. "Gravity Sewer Line" shallmean a pipethat receives, contains and conveys
wastewater notnornnally underparessure, but intended toflowunassisted under the
10
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Waterand AirPollution ContrasAct, Ark. Code Ann. § 8-4-10, et seq., for the
Mansard P4TW andanyfuture extended, modified or reissued permit;
operated by
City andthat is located in Fort Smith with an address of 1 b09North 9~'
Terrace, Barling, Arkansas;
mm. "MGD" or "mgd"sha meanmillion gallons perday;
nn. "Month" shall mean one calendarmonth runningfrom anumbered day to the same
numbered day of the following calendar month,regardless ofwhether theparticular
month has 28,29, 30 or 31 days. Ifatriggering eventwould occuron a day of the
mon#h that doesnotexist (forexample, February30), then theevent shall bedue on
the fastdayof thefollowing month(forexample Mazch 1);
oo. "NASSCO" shall meantheNational Association of Sewer Service Companies;
pp. "P StreetPermit" shall meanNPDES permitnumber AR issued #o City
pursuantto Section 402 of the Clean Water Act, 33 U.S.C. § 1342, and the Arkansas
Water andAirPollution Control Act, Ark.Code Ann. § $-4-10, et seq., for the P
Street POTW and anyfuture,extended, modified orreissued permit;
qq. "PStreet WWTP" shall meanthepublicly ownedtreatment works thatisowned and
operated byCity andthatis located at 13 North PStreet inFort Smith, Arkansas;
rr, "PACP" sha11 mean the NASSCO Pipe Assessment andCertification Program;
ss. "Paragraph" shallmean a portion ofthis Decree identified by an Arabic numexai or a
letter;
12
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tt. "Parties" shall meanthe City, the United States, and the State of Arkansas;
uu. "Pipe Segment" shall mean the portion of a
Gravity Sewer Lineextending from
manhole
to
manhole;
°w."Plaintiffs" shallmean the United States and the State of Arkansas;
ww. "Private ServiceLine" shallmean asewerline which isnot owned or operated by
City, butwhich conveys wastewater fromabuilding to a main line of the WCTS;
~. "Private Service Line Release" shall mean anyspill, release,or diversion ofsewage
from a Private ServiceLine toanylocation otherthanthe WCTS caused solely by a
blockage or othermalfunction in that Service Line, even if therelease does not reach
Waters oftheState arwaters ofthe UnitedStates;
yy. "Pump Station°° or "Pumping Station"shall meanfacilities owned oroperated by Fort
Smith that contain pumps thatlift wastewater fromaLower toa higher hydraulic
elevation, including all relatedelectrical, mechanical, and structural systems
necessary tothe operationof that Pump Station within the WCTS;
zz. "Recurring
PrivateService Line Release" shall mean a Private Service Line Release
thathasoccurred within three(3) Years ofa prior Private Sezvice Line Release at the
same location;
aaa."Recurring SSO," "R.ecurring Dry-Weather SSO," and "Recurring Wet -Weather
SSO."A"Recurring
SSO"shall mean any SSO that has occurred within three (3)
~.'eazs ofa prior SSO thax occurred at the same location underany weather conditions
(wet ordry). A"Recurring Dry-Weather
SS4" shall mean an SS(J that has occurred
13
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wastewater collection axeaand designated as such by City for the P Street WWTP and
theMansard WWTP;
~f£ "State ofArkansas" or"State" shall mean the State of Arkansas acting onbehalf of
ggg. "Sub -basin" shall mean a section ofa Basinthat isadistinctwastewater collection
areaand designated byFortSmith as such;
4i
~ubparagraph" shallmean a portion of this Consent Decree identified by a lower
caseletterfollowed byaperiod;
iii, "Tabulation" shall mean adocument in a format containing text searchable cells or
fields that isalsosortable bydata category;
jjj. "United States" shall meantheUnited Statesof America,acting onbehalf ofEPA;
kkk."'V~astewater
Treatment Plant" or "WWTP" shall mean the Mansard or P Street
wastewater treatment plantsand components thereof;
Collection and Transmission Sys#em" ar "WCTS" shall mean the
sanitary sewer collection, retention andtransmission sys#ems for both the Massard
Sewershed andtheP StreetW'WTP Sewershed, including ail pipes,Force
Mains, Gravity Sewer Lines, Pump Stations, EQ Basins, manholes andappurtenances
thereto, that areowned oroperated byCity at any time from theDafie ofbodging of
this Consent Decreeuntil itstermination under SectionXXIV;
mn:zm."Waters ofthe State" shall mean all streams, lakes, marshes,ponds, watercourses,
waterways,
wells, springs, irrigation systems,drainage systems, and ail other bodies
15
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of accumulations ofwater, surface and underground, natural andartificial, public or
private, whichare con#ainedwithin, flowthrough, or border upon the State of
Arkansas, oranyportion oftheState ofArkansas, as defined in Ark. Code Ann. §
and
gum.. "Year" shall mean atwelve monthperiod regardlessof the beginningdate. In the
event a
triggered event shallbe due on a year ending date that does nat exist (fox
example,February 29 in same years), then the event shall be due an thefirst day of
the followingmonth (forexample, March 1).
A. Introduction
Thefollowing nineArticles constitute theactions that City shall undertake or continue to
undertake toachieve the Objectives ofthisConsent Decree, as stated in Section II. City sha
implement allongoingWCTS investigatians, analyses, and Remedial Measures consistent with
sound engineering practices, City's best professionaljudgment, industry standards, and the
guidance manuals identified in
this Sectionof theConsentDecree. Subject tothe provisions of
this Consent Decree, allactions required underSection VofthisConsent Decree shall be
completed nolaterthan twelve (12) gears after the Date of Lodging, except those ongoing
actions identified underSection V,Article Seven ("Development ofaCapacity, Management,
Operation and Maintenance Program") thatshall continueafter texmination of this Decree, under
Section XXIVofthis ConsentI3ecree.
ib
