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EPA's sewer overflow settlement: not the worst deal ever, but pretty darn close

Ann Alexander

Posted March 21, 2012 in Curbing Pollution, U.S. Law and Policy

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The settlement deal that the U.S. EPA has cut with the Metropolitan Water Reclamation District over the District’s Chicago River sewage dumps is not the worst deal in the world.  For instance, that time the Red Sox owner traded Babe Ruth to New York to finance a production of No, No, Nanette – that was definitely worse.  And let’s not forget that business with the Dutch, Manhattan, and $24, although it was actually the Dutch who got pantsed on that one. 

But whether or not EPA’s settlement with the District merits a place in the birthright-for-pottage hall of fame, it is safe to say that rarely has so much time been spent bargaining away so much to get so little in return.  As explained in a comment letter concerning the deal that NRDC and its partner organizations sent to EPA’s lawyers at the Justice Department today, EPA has powerful leverage against the District, which has with little question been violating the Clean Water Act and causing widespread damage with its sewage dumps into the Chicago River after every heavy rain.  Yet after a solid decade of negotiations, EPA has finally cut a settlement deal boldly imposing on the District the obligation to…well, actually, keep on doing pretty much what it’s been doing all along.  In contrast to the tough settlement requirements it has imposed in other US cities, EPA has traded away its strong legal case in exchange for a promise from the District to simply carry on with its current grindingly slow work to address the sewage overflows – without even requiring a showing that the work is going to solve the problem. 

The story leading up to all this dates back more than a century.  Chicago and many of its surrounding communities early in their history constructed combined sewer systems, meaning that raw sanitary sewage (i.e., flushed toilets) and stormwater runoff are combined in the same system of pipes leading to sewage treatment plants – and are dumped out together into the Chicago River after a heavy rain when the treatment plants can’t handle the flow.  To address this rather nasty problem, the District’s engineers in the late 60s devised the Tunnel and Reservoir Plan (or “TARP”; then called the “Chicago Underflow Plan,” now popularly known as the Deep Tunnel) to store the combined sewage until it could be treated.  TARP is a system of underground tunnels (completed in 2006) and three reservoirs (one is complete, two others are under construction) that store billions of gallons of stormwater overflow.  It really was a visionary plan, but as with most visionary plans the problem lay in the execution.  In 1972, when TARP was adopted as the solution, MWRD said it would be complete by 1982.  Three decades later, that estimated completion date has slipped to 2029.  And counting.  There is every reason to believe it will slip again, since the District decided to rely on a private mining operation to dig out the last two reservoirs at a pace dictated by the changeable market for quarry stone.   

EPA had the opportunity to impose a firm hand on the TARP implementation process and steer it in a better direction, by imposing a faster schedule with hard deadlines, and requiring the District to demonstrate that TARP is actually is going to remedy the overflows to the extent required by law.  Indeed, EPA took that opportunity in negotiations with many other communities around the nation.  In Cleveland, Fort Wayne, Kansas City, Indianapolis, and St. Louis, to name a few, EPA’s combined sewer overflow settlements have set fairly aggressive deadlines for completion of the remedy, and provided detailed numeric performance criteria and post-construction monitoring requirements.    Which makes it all the more odd that in the settlement with the District, EPA simply adopted wholesale the District’s current timetable for 2029 completion of TARP – including its built-in excuse for not meeting even that distant deadline in the event the private mining company digging out the reservoir can’t sell enough stone.  Potential opportunities to actually expedite the process, for example by requiring the District to dig the hole if the mining company doesn’t do it fast enough, were never fully priced out and vetted.  And it’s not as though cost is really the issue – EPA has determined that Chicagoland’s sewer rates are considerably lower than in most of the communities where the Agency is imposing more stringent requirements.

While EPA and the District deserve some credit for including green infrastructure – that is, natural systems for controlling stormwater such as green roofs and permeable pavement – in the settlement agreement, even the green infrastructure provisions are essentially identical to the District’s current limited steps toward implementing it.  The District recently committed to spend $1 million looking into green infrastructure solutions, which we support as a good start, and the proposed settlement requires expenditure of $325,000 to this end.  By contrast, other cities’ settlement decrees require tens of millions of dollars or more to be spent on green infrastructure implementation.  We believe that, especially with the current trend toward stronger and more frequent storms, extensive use of green infrastructure is going to be necessary to bring Chicagoland’s flooding and sewer overflow problems under control.

And so, if the settlement takes effect, EPA will have spent its efforts to provide our region with little more than business as usual.  And business as usual has given us a contaminated river and destructive flooding as the District grinds on with its painfully slow and ever-slipping TARP implementation schedule. 

Chicagoland residents can still hope, however, in the fact that EPA’s and the District’s decision to settle is not the final word on the matter.  Settlements of this nature, called “consent decrees,” must be evaluated by a court and judged to be fair and in the public interest before they take effect.  Our comments filed today make it pretty clear where we stand on that question.  And that the consequences of EPA’s bad deal are likely to be considerably worse than even the Curse of the Bambino.  And will likely take about as long to fix. 

 

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Comments

Phil G.Mar 22 2012 10:25 AM

Have you actually checked to see how many years some of the other cities, such as Kansas City, have to comply with their consent agreements? Kansas City has until around 2030.

Including this information would be beneficial to your readers. The projected completion of the Chicago project, while far into the future, is on par with other major metropolitan areas.

Ann AlexanderMar 22 2012 10:31 AM

Phil, thanks for your comment. That issue is covered in great detail in the comments, which are linked in the blog post. See in particular the discussion starting on p. 32. See also the chart on p. 58, comparing the consent decree to other cities' decrees (including Kansas City's). A key fact to remember is that in the other communities being allowed comparable completion dates, they are starting their process from scratch. MWRD, on the other hand, has been working on this since 1972, and originally said they were going to be done by 1982. The completion date has chronically and repeatedly slipped since then, and the CD does nothing to change that. I has a built-in mechanism to allow it to keep slipping further indefinitely.

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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