"It's an issue that some feel has stagnated at the hands of city government for decades, but the EPA isn't expected to allow Lexington's sewer and storm water problems to slide down the drain much longer.
The city is currently working with the U.S. Environmental Protection Agency to address a series of potential violations of the federal Clean Water Act that were identified by the EPA during an inspection of the city's sewer system in January 2004. Similar scenarios have played out in medium and large cities across the country in recent years, costing municipalities hundreds of millions in remediary expenses.
And while it is still unclear when a final decision will be handed down from the EPA, Lexington's bill could arrive not long after the winners of November's mayoral and city council races settle into their chairs.
It is difficult to speculate at this point on what direct implications the EPA's actions could have for local businesses that discharge under the city's National Pollutant Discharge Elimination System (NPDES) permit, which regulates the release of pollutants into American waters under the authorization of the Clean Water Act. As the city awaits the EPA's next move, the Urban County Council's storm water committee has identified $117 million in storm water projects warranting immediate attention, from redoing culverts to condemning homes, said Councilman Kevin Stinnett. Yet only $250,000 has been budgeted toward fixing these items. While a $3 million bond was recently secured to cover the cost of solving some of the bigger problems on the list, more than $100 million in self-acknowledged, unresolved problems with the city's storm water sewer system remains.
In the meantime, this month the Fayette County Neighborhood Council plans to send Lexington government and the EPA notice of its intent to file suit against the city in federal court in November for alleged violations of the Clean Water Act (see the related op-ed on page 30). It is an effort to win FCNC a seat at the table as the city and the EPA negotiate an expected settlement agreement on how to remedy the shortcomings of Lexington's storm water and sanitary sewer systems, FCNC's legal counsel Scott White said.
Officials from the city, the EPA, and the U.S. Department of Justice were unable to comment on the negotiations between Lexington and the EPA while they are still underway. According to correspondence between the LFUCG and the EPA concerning the EPA's 2004 inspection, however, the agency's early observations found that Lexington fell short in a variety of areas.
Specifically, the EPA found the following:
Ordinances related to the city's Storm Water Management Program were "confusing" and the responsibility for implementing those ordinances overlapped between LFUCG divisions. The result of this, according to the EPA, has been "little or no enforcement of the ordinances in place to ensure compliance with the Storm Water Management Program."
Lexington had not addressed the need to control several contaminants being discharged by its storm sewer system into stream segments already found to be polluted beyond acceptable water quality standards.
For stream segments found to be too contaminated for designated uses, which can include water supply, swimming, fishing, or aquatic habitat uses, LFUCG has not proposed projects that will mitigate the situation.
Fines issued by the city against non-compliant facilities ranged from $50 to $100, and stop-work orders were not used effectively.
Inspections conducted by the LFUCG at construction sites were deemed inadequate.
While LFUCG has identified 37 KPDES-permitted industrial facilities as potential sources of illicit discharges, it has not established a database of industrial facilities without KPDES permits that may be discharging into the system.
While the city's retention and detention basins are regularly inspected, basins are constructed with concrete lined channels, which the EPA says "are not conducive to flood control, sediment retention, or ground water discharge," and the EPA's recommendation calls for them to be retrofited to provide water quality controls.
Based on a review of an October 2003 findings report from an investigation of the Chevy Chase area alone, the city's sanitary sewers cross-connect with the storm sewers at six points, creating the potential for overflow sewage to spill into the city's storm sewers. Similar cross connections are suspected to exist in the Ashland, Tremont and Huguelet areas as well.
Municipal landfills, hazardous waste treatment, disposal and recovery facilities and other industrial facilities "are not monitored, inspected and controlled by LFUCG," in regard to storm water discharges and pollutant sources.
Why did Lexington fall short? According to the EPA's initial findings, it primarily comes down to money.
"EPA is concerned that there are several program elements that are not being implemented or completed due to budget shortfalls, lack of funding, and/or personnel requirements," according to EPA documents on the inspection.
And to an extent, documents from the city accede that more needs to be done. A December 2005 letter from LFUCG's then Commissioner of Public Works Jay Whitehead in response to the EPA's information requests stated, "Due to the general nature of the current KPDES permit, there is no baseline to determine minimum program requirements, although LFUCG recognizes improvements should be made in current industrial monitoring and stream monitoring programs."
And as the city's planning commission considers expanding its urban services boundary to open more outlying acreage in the county for development, some organizations feel that such an expansion would only increase pressure on a storm water and sewer system already overburdened and under threat of impending EPA sanctions.
"The Alliance feels that that is really the ten-thousand pound gorilla in the room and that it has to be brought to the table in this comprehensive plan process," said Knox van Nagell, executive director for Fayette Alliance. "Whatever the planning commission decides to do, in-so-far as land use is concerned, it can potentially have 15- to 20-year land use ramifications for our county that directly implicate sewer and storm water. So we feel like the EPA and our current sewer and storm water problems have to be included in the discussion."
Recent EPA settlement and penalty amounts
Louisville-Jefferson County Metropolitan Sewer District
20-year consent decree with the Kentucky Division of Water (KDOW) and the Environmental Protection Agency (EPA.) Court settlement: $2.5 million in Supplemental Environmental Projects (SEPs), $1 million Kentucky fine, $500 million in projects.
Northern Kentucky Sanitation District No. 1
$880 million over 20 years in joint consent decree with KDOW & EPA. $637,000 in SEPs, $467,400 in civil penalties.
Knoxville, Tenn.
$530 million, $334,000 in civil penalties, $2 million in SEPs.
Cincinnati, Ohio
$1.5 billion in 20-year consent decree. $1 million in attorneys' fees for citizens.
Birmingham, Ala.
Approximately $3 billion in infrastructure improvements.
Atlanta, Ga.
$3.2 billion for improvements.
Washington, D.C.
$1.4 billion in infrastructure improvements, $250,000 civil penalties and $2 million in SEPs (including $1.7 million in storm water projects).