Lexington, Ky. - U.S. District Judge Karl Forester has approved a $425,000 penalty levied against the Lexington Fayette Urban County Government (LFUCG) for violating the federal Clean Water Act, settling an issue that had delayed implementation of an Environmental Protection Agency Consent Decree addressing Lexington's deficient sewer systems.
Lexington was sued by the EPA and the state because the city's sanitary and storm sewer systems were discharging millions of gallons of untreated and partially treated sewage and other pollutants into Fayette County creeks and streams each year.
The consent decree came as the result of efforts by a group of concerned citizens who had dealt with the many consequences of an antiquated and worn out sewer system, noted Scott White, attorney for the group. White had earlier asked the court to vacate the penalty on the argument that those funds could be put to better use if applied directly to Lexington's mitigation projects. Last week, however, White requested that Judge Forester sign the decree, leaving the penalty intact. "We are pleased that a very good Consent Decree now exists that will mandate the City to operate a system that complies with the law and is not a threat to public health and safety. It was a long fight, but we are glad its over," he said.
"I'm pleased the Consent Decree has been signed as it resolves the EPA lawsuit," said Lexington's new mayor, Jim Gray. "While this step signals the end of the legal process to complete the settlement and resolve EPA's and the state's claims, it also signals the official beginning of our requirements under the settlement agreement."
Despite the delay in formal implementation, the city, under former Mayor Jim Newberry, had begun moving forward to clean up the city's sewage systems. "We've been working since 2008 as if the Consent Decree had been entered," said Mark York, spokesman for the city's Division of Water Quality. "So, we've actually been completing some of the more important capital projects within the sanitary sewers, doing our reporting to EPA on a quarterly and annual basis, preparing the plans, doing the sanitary sewer assessment process. All of that's been going on for the past two years."
The Consent Decree, signed by the city, the state and the EPA in 2008, requires Lexington to spend an estimated $250 million to $300 million in sanitary and storm sewer improvements over the next 11-13 years.
To date, the city has initiated $80 million in sanitary sewer improvements.
Nearly 20 requirements under the Consent Decree have been completed or are already underway.
Attorney White, however, plans to keep a watchful eye. "With the entry of the Consent Decree, we now have the tool necessary to make sure the City follows through with what it says it's going to do. We believe and expect that the new Mayor's administration will do the right thing in implementing and conforming with the Consent Decree," he said.
The Urban County Council has adopted several ordinances required under the agreement, including enactment of a water quality management fee, a more rigorous enforcement program, new stormwater control requirements for new development and industry, and new requirements for privately-owned retention and detention ponds. The council also approved an increase in the sanitary sewer fee to pay for improvements to the system.
"Probably one of the more significant things that we've done to this point during implementation is to completely revamp the erosion and sediment control program for construction sites - the silt fences, the retention ponds, the things that keep dirt from coming off of construction sites where all of the topsoil has been removed," said Charles Martin, Director of the Division of Water and Air Quality.
"We had several meetings with the Homebuilders Association. Council wanted us to come forward with a revised ordinance that they felt everyone could live with," he said.
A new North Elkhorn pump station went into service in 2008 and the new North Elkhorn force main went into service in 2009, at a cost of $15.8 million. A new South Elkhorn pump station and a new South Elkhorn force main, at a total cost of $15 million, were completed in 2010.
The South Elkhorn pump station, built in the 1980s, has been the number one overflow site in terms of frequency and duration of the overflows.
The old station was unable to handle large flows of sewage during wet weather events, sending raw sewage into the creek.
"We have been making repairs to the system ever since the Consent Decree was lodged," noted Martin. "We have been keeping track of those and I anticipate that we will be having discussions with the EPA over the coming months on whether we can bank those credits for what we have been doing all along. Since we've been doing the work, we're going to ask that we receive the benefit of that."
A "Capacity Assessment Program" has, in the meantime, been underway in prelude to a phase that will have direct impact on developers in Fayette County. "Probably the most painful thing for them moving forward is going to be the Capacity Assurance Program for the sanitary sewers. If we find that we don't have capacity under certain circumstances for a new development to connect (to the system) we will have to have a credit program in place that allows them to use credits to connect to that pipe. For example, if you were going to build a development and you needed 100 gallons per minute of capacity and it wasn't there, you may have to help us do rehab up to 600 gallons per minute to be able to get a sufficient amount of credits to do your 100. The concept is that it allows the development to move forward even though there is not enough capacity on the line, but it uses development to help rehab the system because you have to do more than what your needs are."
Martin said the distribution of credits to private developers is yet to be determined. "We have to develop a Capacity Assurance Program that outlines the details of how we go about doing that, how long somebody can hold those credits - you don't want somebody to just take them and hoard them. But that has to be approved by the EPA."
Martin explained that this aspect had not moved forward due to the delay in formal implementation of the Consent Decree. "Secondly, I think we all knew that this will be very difficult for the development community, in particular, and until we have the Capacity Assessment part of it done, there wasn't any sense in essentially pouring salt in wounds."
Martin anticipates presenting the findings of the assessment "very, very, soon."