"While Lexington's private negotiations with the state and the EPA over alleged violations of the federal Clean Water Act (CWA) continue, another Central Kentucky community has already started on the long road toward reparation.
The city of Winchester and Winchester Municipal Utilities (WMU) finalized their consent decree in April to address a complaint filed by the federal and state governments a year earlier, related to alleged CWA violations similar to Lexington's.
Winchester's consent decree calls for the elimination of 27 documented sanitary sewer overflows, or SSOs, which occur when wastewater escapes the sanitary sewer system at a location outside of the treatment plant, typically during peak wet weather conditions.
By comparison, Lexington has reported to the Division of Water 108 SSO events that occurred between January and April of this year due to mainline, or publicly owned, blockages or related to wet weather capacity, according to Charles Martin, director of the city's division of sanitary sewers.
Although it is still unclear when Lexington's negotiations will be concluded, Mayor Jim Newberry has already proposed some changes to help the city get its environmental house in order. In June, Newberry proposed a reorganization within city government that would create a Department of Environmental Quality to oversee sanitary sewers, storm water, solid waste and air and water quality management.
The reorganization was proposed as an effort to better use the city's resources and place more emphasis on Lexington's environment as a whole, and not specifically to address the more focused issues of storm water and sanitary sewers, said Don Kelly, the city's commissioner of public works.
However, the new department is expected to play a role in the city's future planning and development decisions and its overall efforts at improved regionalism, Kelly said.
"This is an effort to get ahead of the curve, instead of playing catch-up in future years," Kelly said.
The cost for Winchester
As a result of its consent decree, Winchester and WMU have committed to an estimated $35 million in capital improvements to eliminate all SSOs over the next 20 years, with more than 40 percent of that expense to be incurred in the
next four years.
"Better than $15 million worth of capital improvements will be required by 2011," said Vernon Azevedo, general manager of Winchester Municipal Utilities.
The $35 million estimate is in addition to the city's $23 million wastewater treatment plant currently under construction. The new plant was already underway prior to the city's settlement with the EPA, but it is expected to alleviate some of the city's most serious SSO concerns, Azevedo said.
Under the consent decree, the city and WMU will develop Capacity Management, Operation and Maintenance, or CMOM, programs, for oversight of the system, at an estimated cost of roughly $2 million for their initial development and several million annually for continued implementation, Azevedo said.
The city and WMU will pay a $75,000 penalty in two installments, with $40,000 paid in May and the remaining $35,000 due in September 2008. Also, a supplemental environmental project with a total cost of $230,000 must be conducted as part of the city's restitution. For this project, WMU will be implementing a treatment system for downtown Winchester's major storm sewer conduit.
"It is going to require a significant investment of public dollars," said Winchester Mayor Ed Burtner, who was not in office when the consent decree was negotiated. "It's going to require the community as a whole to approach developmental opportunities differently, to think about development differently, and we've got a lot of work in front of us."
"It's a huge financial burden for Winchester and the customers of Winchester Municipal Utilities, but it is our responsibility to comply with the terms of this consent decree, and we're going to do that," Azevedo said.
While the negotiations for Lexington's consent decree are still underway, Azevedo said he would expect it to contain many similar elements to those included in Winchester's agreement, including capital improvements, CMOM programs, a supplemental environmental project and a penalty fine.
As part of the consent decree, Winchester and WMU are required to submit a System Capacity Assurance Program to verify that the system has adequate capacity to handle existing and proposed service under peak wet weather conditions. With limited exceptions, any authorization of new or increased service will first need to be certified under the peak capacity guidelines established in the consent decree. As a result, Winchester's consent decree and resulting capital improvements will play a significant role in future planning and development decisions, and the same could be expected in Lexington.
Winchester and WMU will be required to provide both quarterly and annual progress reports to the EPA and the state, and possible penalties for failure to meet deadlines are also laid out in the consent decree, with fines ranging from $100 to $2,000 per day.
As an enterprise fund initiative of Winchester, WMU's operating funds come from the rates it collects, rather than tax money, Azevedo said. The utility is talking to state and federal legislators to use available grant money to help absorb the cost of improvements, but the majority of the expense is expected to fall on the shoulders of the users through a modified structure of rates, fees and charges. The specifics of that modified structure are yet to be determined, Azevedo said.
We don't expect grants to pay even the lion's share of it; we're going to be paying that ourselves," Azevedo said.
Roughly half of Winchester's customer base is classified as low to moderate income, which creates an additional challenge when restructuring the utility's rate system. While stormwater user fees have been discussed as a potential source of revenue for sewer projects in Lexington, Winchester is not presently considering such fees, although they are not out of the realm of possibility, Azevedo said.
"I think we have to approach this from the positive side, by saying we were in violation of federal law, and we have a moral obligation, a legal obligation and a civil obligation to comply with that law," Azevedo said. "And that's what we're going to do."
Action across the state
Lexington and Winchester are not alone. Currently the state's divisions of water and enforcement are developing consent judgements for 15 Kentucky communities to address both SSOs and combined sanitary overflows, or CSOs, and the areas of Louisville and Northern Kentucky are already working under a joint federal and state consent decree.
"We're getting very close to having them all done," said Gary Levy, environmental technologist and SSO coordinator for the state's Division of Water. "Sometime in the next several months, our attorneys will file complaints along with the agreement that we've reached with each community, and then those communities will begin the daunting task of trying to eliminate as many of those overflows as possible."
Combined sewer overflows, or CSOs, occur when stormwater and wastewater are mingled within the same system. While SSOs are illegal, CSOs are highly regulated by the government, and in recent years, the EPA has increased its efforts to reduce or eliminate them, Levy said.
The combined sewer overflow control policy was promulgated by the EPA in 1994, and many of the target dates for compliance were scheduled for 1999 or 2000. The recent run of legal action in many Kentucky communities has occurred as a result of failure to reach those targets, Levy said. In recent years, the EPA has shifted its emphasis to addressing wet weather wastewater problems, and as the only state in the EPA's Region 4 with an appreciable number of CSO communities, Kentucky's sanitary sewer issues have received a great deal of scrutiny.
"It should have been a priority earlier than it was, but it's definitely a priority now," Levy said.
Plans for addressing the SSOs will typically include attempts to reduce or eliminate as much of the wet weather overflow from the system as possible, because treatment of stormwater is too expensive, Levy said. Fixing the problems may call for cracking down on customers who are using the system improperly, as an outlet for roof drains or basement sump pumps for example, or it may require expanding the capacity of part or all of the collection system, Levy said.
Generally speaking, most communities are absorbing the costs for these fixes primarily through rate increases, Levy said, but they are also using grant money and low-cost loans through state infrastructure authorities. Also, a bill currently pending in Congress would appropriate more grant money for dealing with CSOs and other wet water overflows, Levy said.
"There's a whole range of controls that we're going to be using, and generally speaking, it will take those communities from 10 to 15 years to get everything put in place and to achieve some final compliance goal with the Clean Water Act," Levy said.