U.S. EPA Region 1 has slowly pursued enforcement cases against a large number of Massachusetts municipalities subject to stormwater permitting requirements of the small municipal separate storm sewer system program, known as MS4 systems, and the City of Haverhill is the latest target to settle.
In August 2016, the U.S. Department of Justice, the Commonwealth of Massachusetts, and the City of Haverhill agreed to a proposed Consent Decree resolving claims alleged by the EPA that the City was violating the stormwater provisions in the federal Clean Water Act. The City agreed to pay a $125,000 civil penalty, conduct a Supplemental Environmental Project at a cost of $176,000 for restoration of the Merrimack River riverbank, and perform a number of remedial measures described more fully below. Assuming that the Consent Decree is finalized by the U.S. District Court as proposed, the settlement continues a long slow process by EPA Region 1 to force Massachusetts municipalities to take more robust steps to address stormwater pollution, particularly in the area of enhanced Illicit Discharge and Detection Elimination (IDDE) programs. This may be of particular interest to municipalities working toward implementation of the recently issued 2016 General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (Small MS4 General Permit), scheduled to become effective in July 2017 but subject to four separate challenges currently pending in the D.C. Circuit and First Circuit Federal Courts of Appeals.
The Justice Department, on behalf of EPA, alleged that the City violated the terms and conditions of the City’s Wastewater Treatment Facility Permit (WWTF Permit) and the 2003 Small MS4 General Permit, and violated the requirements of the federal Clean Water Act. The City’s WWTF Permit authorized the discharge of wastewater from its wastewater treatment facility and from the City’s combined sewer outfalls, known as CSOs, to the Little River and Merrimack River. The Small MS4 General Permit authorized the discharge of stormwater from the City’s storm sewer system, and required, among other things, the implementation of a storm water management program, minimum control measures and an IDDE plan to detect and address non-storm water discharges, such as illegal dumping into the storm sewer system. The Justice Department’s Complaint alleged the following, going back as far as 2008:
- Discharge of untreated combined sewage from CSOs with concentrations of bacteria that caused or contributed to violations of water quality standards in the Merrimack and Little Rivers.
- Discharge of wastewater from one CSO during dry weather, in violation of a permit prohibition on the discharge of wastewaters from CSOs during dry weather.
- Bypass of secondary treatment when a feasible alternative existed, such as the use of auxiliary treatment facilities or retention of untreated wastes.
- Failure to properly operate and maintain all facilities and systems of treatment and control used to comply with the WWTF Permit by failing to periodically clean the entire collection system.
- As a result of sanitary sewer overflows, discharge of untreated wastewater, including raw sewage, from point sources within its collection system to waters of the United States, in violation of the federal Clean Water Act.
- Discharges of untreated wastewater containing pollutants from MS4 outfalls. The Small MS4 Permit does not authorize the discharge of non-stormwater from MS4 outfalls.
- Failure to implement the Small MS4 General Permit by not (i) implementing an IDDE plan, (ii) adopting an ordinance or other regulatory mechanism to require sediment and erosion control at construction sites, and (iii) adopting an ordinance or other regulatory mechanism to address post construction runoff from new development and redevelopment.
The proposed Consent Decree seeks to resolve these allegations through payment of a civil penalty, implementation of a Supplemental Environmental Project, and an extensive list of remedial measures to be conducted by the City over the course of the next 15 years. As proposed, the term of the decree would run until at least June 1, 2031, provided that the City has at that time completed all remedial measures, completed the Supplemental Environmental Project, and maintained continuous satisfactory compliance with the terms of the Consent Decree, the WWTF Permit, and the Small MS4 General Permit for a period of one year.
The remedial measures incorporated into the proposed Consent Decree include the development of a number of plans and programs addressing compliance with the Small MS4 General Permit and the City’s WWTF Permit, timelines for implementing the approved plans and programs, upgrading of facilities and treatment controls, and reporting to EPA and MassDEP. For example, under the terms of the proposed decree, the City would be required to address the following:
- Illicit Discharge Prohibition and Removal
- Submit a revised IDDE plan for the monitoring of MS4 outfalls and the investigation of sub-catchment areas.
- Adopt an ordinance or other regulatory mechanism prohibiting non-stormwater discharges into the MS4, and submit to EPA and to MassDEP an IDDE Enforcement Manual to assist with the detection and removal of non-stormwater discharges.
- Storm Sewer Outfalls and Building/Private Party Backups
- Comply with a 24-hour reporting requirement to EPA and to MassDEP for any storm sewer outfall and building/private party backup that occurs.
- Submit to EPA and to MassDEP an updated assessment of the capacity, operation, and maintenance of its collection system, and based on the deficiencies identified in the self-assessment, submit to EPA and MassDEP by January 31, 2017 a Capacity, Management, Operation, and Maintenance Corrective Action Plan.
- Submit an Emergency Response Plan to EPA and MassDEP setting forth procedures for responding to storm sewer outfall and building/private party backup.
- GIS Mapping
- Within one year, submit to EPA and MassDEP a GIS map of the MS4 system and other collection systems, including information on infrastructure, water resources and topographic features, operation and maintenance, investigations remediation, and capital projects.
- Construction Site Stormwater
- Adopt an ordinance or other regulatory mechanism requiring sediment and erosion control at construction sites, and another requiring the management of stormwater runoff at post-construction development and redevelopment.
- Develop a Construction Site program.
- CSO Monitoring
- Equip CSO outfalls with continuous meters.
- Submit notification within 24 hours of any CSO discharge to MassDEP, EPA, the Merrimark River Watershed Council, MA Division of Marine Fisheries, and Boards of Health for downstream communities.
- Submit an annual CSO activation report to EPA and MassDEP.
- CSO Planning and Plan Implementation
- Raise CSO regulator weirs.
- Submit a Final CSO Long-Term Control Plan.
- Stipulated Penalties
- Among others, for each day that a storm sewer outfall backup occurs, pay a stipulated penalty of $6,500, unless the City can show that it stopped the storm sewer outfall backup as soon as reasonably practicable, the City is in full compliance with the Consent Decree, and the City has complied with all reporting requirements for the storm sewer outfall backup.
The compliance requirements highlight EPA’s focus on key areas of concern in MS4 systems, all of which are addressed in the pending 2016 Small MS4 General Permit for Massachusetts: IDDE, management of construction sites, GIS mapping, and adoption of regulatory mechanisms by municipalities. The development and implementation of these compliance measures are certain to require extensive City resources and effort, not to mention substantial coordination with EPA and MassDEP.