Opposition Brief — Bylinski v. City of Allen Park

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| Supreme Court, U8 '

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No. 98-1734

In the |

Supreme Court of the United Steles——

October Term, 1998

GLORIA BYLINSKI, GLORIA BELLMAN, ALLAN COLLINS, DENNIS

COATES, DOUGLAS HAMMAR, ROBIN HAMMAR, SANDRA

HOLIDAY, STEVEN HOLIDAY, ROBERT JARRELL, ANISE PIERCE,

RICHARD PRESSEY, JIMMY SEACRIST, and MOLLY SEACRIST, and

all other persons similarly situated,

Petitioners,

CITY OF ALLEN PARK, a Michigan municipal corporation, CHARTER

TOWNSHIP OF BROWNSTOWN, a Michigan municipal corporation,

CITY OF ECORSE, a Michigan municipal corporation, CITY OF LINCOLN

PARK, a Michigan municipal corporation, CITY OF RIVER ROUGE, a

Michigan municipal corporation, CITY OF ROMULUS, a Michigan

municipal corporation, CITY OF SOUTHGATE, a Michigan municipal!

corporation, CITY OF TAYLOR, a Michigan municipal corporation,

Respondents

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

R. Craig Hupp

Counsel of Record

Bodman, Longley & Dahling

34th Floor

100 Renaissance Center

Detroit, Michigan 48243

(313) 259-7777

TABLE OF CONTENTS

Page

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Be EAR ar Lert ita oe Pm ee ae iii

an pranane te popin one apis Seether ti |

A. The Underlying Clean Water Act

Enforcement Suit Resulted in Specific Court

TN III in ccadiores bade java tcdensissscss l

B. Petitioners’ Complaint Requested the State

Circuit Court Enjoin the Respondents’

Assessors’ Compliance with the Final

Judgment’s Order That Real Property in a

Respondent’s Community Be Assessed If

Respondent Failed to Pay Voluntarily its Share

BP UME PT, naicid's vecwva cp vawdewdsacecccs 10

Sa. INE MUNN GUL C ceubualirdescauvevsesceess 11

D. Petitioners Have Mischaracterized Their

Posture on Appeal to Obtain Favorable Action

Be EE ok na Chin bd waksere eee hele Cokes bos bvbat 12

Reasons for Denying the Writ ..................0ceeeee: 13

I. THIS COURT SHOULD DENY THE

PETITION BECAUSE THERE IS NO

CONFLICT BETWEEN THE SIXTH AND

SEVENTH CIRCUITS REGARDING THE

APPLICATION OF THE ALL WRITS ACT,

28 U.S.C. § 1651, TO PROTECT THE

INTEGRITY OF A DISTRICT COURT

FOE «50 p40bNUSa AED adap dw U ORD D ON Sd Co dekebeS) 13

A. In This Case The Court Found Violations

Of Federal Law And The Necessity To Take

Certain Actions To Comply, While In

Winnebago County, No Violation Of Federal

Law Had Been Established. ..............00:eeee0: 15

B. This Case Involves a State Court

Proceeding Intended To Enjoin Compliance

With An Express Federal Court Order .............. 19

ll. THIS COURT SHOULD DENY THE

PETITION BECAUSE THE DISTRICT

COURT ALSO HAD AUTHORITY TO

REMOVE THE CASE PURSUANT TO ITS

RETENTION OF CONTINUING

JURISDICTION IN UNITED STATES v.

WAYNE COPUINET: (ibau isivisassccacccgn haquuanene We

Cosalesion .. .iccccadinsetses sk eis eee

Appendix

1994 Financing Plan & Final Judgment, United

States v. Wayne Coumty .......cccccccccccnsscceneesess lb

1994 Consent Decree, United States v Wayne

COURY occ cccusvccvassudceetes ehennp OvegiherNeuenD dies 21b

Class Action Complaint and Jury Deman, Bylinski

v Allon Pas& oiccivicie sudcdunced beeevestecnddesseiavestes 77b

Judgment Levy Act, Mich. Comp. L. § 600.6093 ...... 85b

Order Bond Act, Mich. Comp. L. ........ eee cece ees 88b

Mich Const. 1963, Art. 9, § 6 (as amended by

"Headice Amendment") ....scccvcscscrescssvevaessuves 90b

Mich Const. 1963, Art. 9, § 31 (as amended by

"Heading Am) 6uc sc acoicsnctctauechbiessdevesee 92b

TABLE OF AUTHORITIES

Page

Cases

American Axle & Mfg., Inc. v. City of

Hamtramck, 227 Mich. App. 135, 575

N. W.2d 296 (1997) ......cccccccrccccceeeceecseeseeeeess 7)

American Axle & Mfg., Inc. v. City of

Hamtramck, leave to appeal granted,

459 Mich. 939, 590 N.W.2d 65 (1999)... . 6c cceeeee eens 9

Bailey v. Muskegon Cty. Bd. of

Comm'rs, 122 Mich. App. 808, 333

N.W.2d 144 (1983) .....cc cc ceceeceeeeceeewereeneeeneeees 8

Bylinski v. City of Allen Park, 8 F.

Supp. 2d 965 (E.D. Mich. 1998) .....------++: ioe¥en 12, 24

City of Detroit v. City of Highland

Park, 878 F. Supp. 87 (E.D. Mich.

DEED ba binsduceecaepbevevevecesgsoveose bacco tas edeeanas §

Dunn y. Carey, 808 F.2d 555 (7th Cir

BN | o. ccvcvepedduvntecssebveblecsdorcdercvccscceveeucs 18

Garden City Osteopathic Hosp. v. HBE

Corp., 55 F.3d 1126, 1130 (6th Cir.

GODS) cnvcccccccsstecevecocscsccceccocetccccesessecoess 9

In re Application of County Collector of

Winnebago County, Illinois, 96 F.3d

890 (7th Cir. 1996) .... ccc cc cece eect eee ereeeeeenee passim

In re VMS Securities Litigation, 103

F.3d 1317 (7th Cir. 1996) ........- cece cece eee eeeees 14, 20

Martin v. Wilks, 490 U.S. 755 (1989) «2... ec cee ee eee eens 23

Missouri v. Jenkins, 495 U.S. 33 (1990) ......6.cceeeeees 18

People Who Care, 961 F.2d 1335, 1338

(Fils Che POSE) sinc cccevescccccsdtongedescsacesscccceesses 17

Roosevelt Park v. Norton Twp., 330

Mich. 270, 47 N.W.2d 605 (1951) ..... cc cceeee eee eeeeees 7

Sable v. General Motors Corp., 90 F.3d

B7E CGB CAR, FOE. vc ds cnteccnkersssecusessonvvaveces ese 14

Smith v. Scio Twp., 173 Mich. App.

381, 433 N.W.2d 855 (1988) ........cccceee eee eeeeeeeeees 8

Striff v. Mason, 849 F.2d 240 (6th Cir.

RODE is <ovpicces vices cabeadbanbbeibenaeseneeeccaese 14, 23

Taxpayers United v. City of Detroit,

196 Mich. App. 463, 493 N.W.2d 463

(TGSE) dv ci cdcdccavseverdactbsssudeneresscescccesconenees 8

United States v. City of New York, 972

F.2d 464 (26 Cor, 1992) occvccccvcscvccccccsesesacees 14, 21

United States v. Wayne County, No.

SF Pen 6 dweedc tn sudeds ceenecabendzewscssnsane passim

Vanguards of Cleveland v. City of

Cleveland, 23 F.3d 1013 (6th Cir. 1995) ..........00 eee 23

White v. National Football League, 41

F.3d 402 (8th Cir. 1994), cert. denied,

SIS EIS SLAP ER TOD dvlesentveaetbawkenkahcned canes 14, 21

Yonkers Racing Corp. v. City of

Yonkers, 858 F.2d 855 (2d Cir. 1988),

cert. denied, 489 U.S. 1077 (1989) ..........c cece eee eees 21

Constitutional Provisions

Ast. D Boek, SORE SE .acccpcakliinvhe ccd detusveavesecvess 8

Statutes

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SE UBC. BGG Aiken Fen eet ie edie VE 12, 13

a a iad EE hi OC OES” cad aadosdeset dines shana sande 4

SS RR i CA OO. 0. vaasddgcensebaes hanwebieks 1,4

DO Ailes. OAR earls onc cetenecee coved bkaveneotaveceess 2

Fe Ee FONT elives cbduscbescveVewks obanesectsdert 2,3

BE MA ERED aus) varnes hea semindtknth stad ani 2,17

Matias: Ut ROMEED lat kare ond Genccisidinn ct vitae bh sabe ake 17

FF a CRO Fis ET RAINE an eet 17

Mich. Comp. L. §§ 324.3101, ef seg. 2.2.2... 6. cc ceeeeceeee l

Mich. Comp. L. § 324.3115 ............ ie caeas cheat y

DERE LOGUE. 1. BS WOIEE Wick cccndactecwticnnesicdveds 8

eee. COMED. Te. BGG cccccovvonvdsVecccubevaees 7,8

STATEMENT OF THE CASE

Although Petitioners assert that the facts of this case

are “simple” and “undisputed,” their Statement of the Case

omits material facts and includes a mischaracterizations of

Petitioners’ legal posture in this Court. Further, a proper

understanding of the decisions in the courts below depends

upon understanding the nature and purpose of two orders

issued by the federal district court in a related underlying

case. Consequently, Respondents will add the necessary

factual context omitted in the Petition.

Petitioners reside in the communities governed by

Respondents in Wayne County, which is located in

southeastern Michigan. Respondents own and operate

sewage and storm drainage systems and have a contract with

the government of Wayne County under which Wayne

County's operates a wastewater treatment plant to process the

sewage and storm drainage from Respondents and other

communities and units of local government.

A. The Underlying Clean Water Act Enforcement Suit

Resulted in Specific Court Orders to Respondents

In 1987, in the United States District Court for the

Eastern District of Michigan, the United States

Environmental Protection Agency (USEPA) and the

Michigan Department of Natural Resources (MDNR) sued

Wayne County, Respondents, and the other units of

government who owned, operated or used the wastewater

treatment plant, alleging that the defendants violated the

Clean Water Act, 33 U.S.C. §§ 1301, ef seg., and Michigan

environmental law, Mich. Comp. L. §§ 324.3101, ef seq.

(known as “Act 245"), by discharging pollutants into a

navigable stream known as Ecorse Creek, either as direct

discharges or as untreated overflows from the treatment plant.

The case, captioned United States v. Wayne County, No.

87-CV-70992, was assigned to the Honorable John Feikens.

The Clean Water Act prohibits discharges to

navigable waters of the United States without a National

Pollutant Discharge Elimination System Permit (NPDES

Permit). 33 U.S.C. §1311. The United States may bring an

enforcement action against those who discharge without a

permit and seek civil and criminal penalties against negligent

and intentional discharges. 33 U.S.C. §1319. The Clean

Water Act also provides that the district court “shall have

jurisdiction to restrain such violations and to require

compliance.” 33 U.S.C. §1319(b). Michigan environmental

law includes similar provisions. Mich. Comp. L. § 324.3115.

In particular, the plaintiffs in United States v. Wayne

County alleged that the defendants had discharged pollutants

in excess of the limits imposed by an NPDES Permit issued

to Wayne County. USEPA and MDNR also alleged that the

operation of the wastewater treatment plant violated state law

and that individual community's sewer systems occasionally

discharged into Ecorse Creek without an NPDES Permit.

The defendants to United States v. Way.ie County did

not dispute that the plant violated its NPDES Permit or that

there were unpermitted sewer and stormwater discharges on

occasion into Ecorse Creek. Under the supervision of the

district court, they engaged in a process to study, plan, design,

construct, and finance sewer and drainage system

improvements that would bring the plant, as well as the sewer

systems that it served into compliance with federal and state

law. As part of this process, in 1993, an environmental

consultant filed a report and plan with the district court (1993

Project Plan). That plan specifically identified sources of

illegal discharges and documented violations of the plant’s

NPDES Permit. It created a plan and a construction schedule

to bring the plant and its associated sewer systems into

compliance with federal and state law. The parties and the

district court accepted the factual findings made in the 1993

Project Plan, thereby conceding all of the requisite elements

for violations of 33 U.S.C. § 1319, and Mich. Comp. L. §

324.3115.

In February 1994, the district court lodged a Consent

Decree (entered in May, 1994), Resp. App., p. 21b, which

required that the parties adopt the 1993 Project Plan, set

pollution limits for the discharge of effluents during the

interim when the treatment plant and sewer improvement

projects (Improvements) were under construction, and

established penalties for failure to comply with the

construction schedule to achieve full compliance with federal

and state law. The Consent Decree ordered Respondents and

the other defendants to carry out the 1993 Project Plan.

Although, as in the case of all consent decrees, the

parties “voluntarily” executed the agreement, to describe the

Consent Decree as “voluntary” or a private contractual

undertaking, is not consistent with the facts of United States

v. Wayne County. The defendants, including Respondents,

engaged in years of litigation, eventually admitting facts

supporting criminal and civil sanctions under the Clean

Water Act. The Consent Decree, at § 26, Resp. App., p. 56b,

imposed a $413,000 civil penalty. Throughout this long

period of litigation, the district court was deeply involved in

forcing the parties through the complex process of achieving

compliance with federal law. The Consent Decree was not a

i See erence re |

device for avoiding a judicial process that would lead to

findings of liability for violating federal law; it was the

culmination of a judicial process determining that federal and

state law had been violated.

In March 1994, the district court entered a Financing

Plan and Final Judgment (Final Judgment). Resp. App., p.

lb. The Final Judgment, Resp. App., p.3b, found that:

"* * * it is immediately necessary and

imperative for the public health and welfare of

the present and future residents of Wayne and

the Downriver Communities that the

improvements for the [wastewater treatment]

System required by the Consent Decree and

the Project Plan (the ‘Improvements'’) be

planned, designed, acquired, constructed and

financed to service the #Downriver

Communities, as a part of the System * * *."

The Final Judgment, Resp. App., p. 13b, also stated:

"9. Need for the improvements.

"This Court specifically finds, based on its

review of the applicable law and the Project

Plan, that (i) the Improvements are needed to

comply with the Federal Water Pollution

Control Act' and Act 245; and (ii) the

installation, construction, a!teration,

The Clean Water Act amended the Federal Water Pollution

Control Act, 33 U.S.C. § 1251, et seq., by adding sections which

are codified at 33 U.S.C. §§ 1301, et seg

improvement and operation of the Downriver

Sewage Disposal System, as described with

the Improvements, have been ordered in

accordance with the Consent Decree, Act 320,

Act 245 and the Federal Clean Water Act."

(Footnote added.)

Thus, in making its findings of fact in its Final Judgment, the

district court determined that Wayne County and

Respondents, among others, had violated federal and state

environmental law, although the district court did not use

language of “liability” in its order. As noted, the district

court had imposed a $413,000 penalty in the Consent Decree.

The Final Judgment ordered Wayne County to act as the

agent for Respondents to supply the planning, design,

acquisition and construction of the sewer improvements.

This was done for several reasons. Wayne County has a large

public works department capable of carrying out the $250

million project, the improvements included projects spanning

several communities, and Wayne County has access to bond

financing which the individual communities do not have.

At the time of the Final Judgment in 1994, the parties to

the Wayne County case estimated that the cost of the

improvements would be $230,000,000. According to current

estimates, the cost now is $250,000,000. On behalf of

Respondents and the other defendants/judgment debtors

under the Final Judgment, Wayne County obtains bond

financing for the improvements in the 1993 Project Plan

through the Michigan Water Pollution Control Revolving

Loan Fund, which provides opportunities for pooled bond

financing at advantageous rates, made possible by federal

subsidies. The capital costs for the improvements are paid on

iii i

an ongoing basis, with Wayne County issuing new bonds

each year to pay for those improvements scheduled for the

following year. The first bonds were sold in 1994.

a ee to)

The Final Judgment, § 8, Resp. App., p. 8b, provides that

"{e]ach Downriver Community is hereby ordered to pay its

portion of the local-share costs of the Improvement... ."

This payment is made though a process of annual

assessments by Wayne County to recover each Respondent's

share of annual bond payments. /d. Each Respondent pays a

different amount based on the projects constructed in its

community and the Respondent's contributions to sewer

flows and overflows. /d Each year, after Wayne County

determines the cost of upcoming improvements and

calculates the share of such cost for each Respondent,

Respondents hold public hearings at which Wayne County's

determinations are reviewed. Once the costs and construction

schedule are finalized, the district court issues a

supplementary order to the Final Judgment ordering each

community to pay its share. To date, the district court has

issued twelve supplementary orders. The improvements are

more than 85% complete.

The Final Judgment specifically provides that the

defendants are free to choose how to raise the payn.ents

which the Final Judgment requires. Final sudgment, 411,

Resp. App., p. 15b. The Final Judgment, § 8, Resp. App., p.

7b-8b, directs each community to pay its share in cash.

The Final Judgment contains an enforcement mechanism

if the voluntary payments in cash are not made. At {J 8(a) to

8(c), Resp. App., pp. 8b to 12b, the Final Judgment orders

that if a community fails to pay cash when due, an assessment

must be made against the property in community on behalf of

Wayne County pursuant to Mich.Comp. L. § 600.6093, Resp.

App., p. 85b, (providing that a local tax assessor must levy

taxes to the extent necessary to satisfy judgments against the

local government) (known as the Judgment Levy Act). That

statute provides the sole means under Michigan law enforce a

judgment against a municipality. Roosevelt Park v. Norton

Twp., 330 Mich. 270, 47 N.W.2d 605 (1951).

Petitioners suggest that the Final Judgment encourages

the violation of the Headlee Amendment and reflects the

district court's disregard for state law and contains an express

intent to violate Michigan tax limits. In this connection, it is

worth noting that several of the defendants in Wayne County

have paid their assessments in cash when due and a

court-ordered assessment was not required. Hence, the Final

Judgment, whatever it else it does, does not require the

judgment be paid by assessments against property. The

court-ordered assessment is thus a last resort enforcement

mechanism for the benefit of the district court, plaintiffs,

~Wayne County and the general public because it provides an

enforceable means to obtain funds to cure violations of

federal law if a defendant community fails to pay its share

voluntarily. The language cited by Petitioners which

supposedly identifies an intent to violate Michigan tax law,

Petition, p. 4, was a waiver by the defendant communities of

their right to make a separate challenge to any court-ordered

assessment and nothing more.

Enforcement of Final Judgment thus may require in some

circumstances the assessment of local property taxes, and that

enforcement mechanism has been used with regard to

Respondents here. Such property assessments may implicate

Michigan law. Under the Michigan Constitution, municipal

government has limited authority to raise property tax rates.

See sci

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According to Art. 9, Secs. 6 and 31 of the Michigan

Constitution as amended by the "Headlee Amendment,"

Resp. App., p. 90b, and p.92b, respectively, no municipality

may levy taxes above a specified millage limit without a vote

of the electors unless the authority to levy the tax was granted

by statute before the Headlee Amendment was enacted in

November 1978.

In ordering an assessment to enforce payment if voluntary

payment was not forthcoming, Judge Feikens relied on (in

part) two Michigan statutes passed many years before the

Headlee Amendment was adopted. Mich. Comp. L. §

324.4307 (providing that local units of government may

impose taxes beyond limits of their taxing authority as

established by statute or charter for the purpose of funding

bonds that are used to pay for court-approved improvements

to sewage systems) (known as the Court Order Bond Act,

Resp. App., p. 88b; and Mich. Comp. L. § 600.6093 (the

Judgment Levy Act discussed above).

In 1994, when the district court in United States v. Wayne

County entered its orders, every decision in federal and state

court addressing the Headlee Amendment's “grandfather”

clause had held that the clause's interpretation depended upon

its plain language: if the statute authorizing the challenged

iax predated the Headlee Amendment, the tax was not subject

to the Headlee Amendment's millage election requirement.

See, e.g., City of Detroit v. City of Highland Park, 878 F.

Supp. 87 (E.D. Mich. 1995); Taxpayers United v. City of

Detroit, 196 Mich. App. 463, 493 N.W.2d 463 (1992); Smith

v. Scio Twp., 173 Mich. App. 381, 433 N.W.2d 855 (1988);

Bailey v. Muskegon Cty. Bd. of Comm'rs, 122 Mich. App.

808, 333 N.W.2d 144 (1983). In 1997, three years after the

entry of the Final Judgment, a Michigan court made the first

and so far only departure from this interpretation of the

Headlee Amendment. In American Axle & Mfg., Inc. v. City

of Hamtramck, 227 Mich. App. 135, 575 N.W.2d 296 (1997),

the Michigan Court of Appeals adopted a radically different

interpretation of the Headlee Amendment, holding that the

grandfather clause in the Headlee Amendment applied to the

tax levy itself, not to the statute authorizing the tax levy.

That decision cannot be “backdated” to support Petitioners’

claims that the Final Judgment contradicted Michigan law

when it was entered. Further, Judge Feikens considered

whether American Axle was correctly decided as a matter of

Michigan law and found it was not, which finding is not

appealed here. The district court was not and is not required

to follow American Axle because a federal court is not bound

by an intermediate state court's ruling on state-law issues.

Rather, it must determine how the highest court in a state

would resolve the issue if presented with it. Garden City

Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th

Cir. 1995). The Michigan Supreme Court granted

discretionary review to consider the legality of the American

Axle opirion. American Axle & Mfg., Inc. v. City of

Hamtramck, leave to appeal granted, 459 Mich. 939, 590

N.W.2d 65 (1999).

Finally, as a part of the Final Judgment, the district court

enjoined any party from conducting any kind of proceeding

that would interfere with the implementation of its orders.

That injunction has never been enforced against any person.

This suit has proceeded because neither Respondents have

moved for nor has the district court considered sua sponte,

staying this suit pursuant to the injunction on the Final

Judgment.

B. Petitioners’ Complaint Requested the State Circuit

Court Enjoin’ the Respondents’ Assessors’

Compliance with the Final Judgment’s Order That

Real Property in a Respondent’s Community Be

Assessed If Respondent Failed to Pay Voluntarily its

Share of the 1993 Project Plan.

On March 4, 1998, Petitioners filed this case in the

Circuit Court for Wayne County, Michigan, alleging that

Respondents had violated Michigan law by levying

assessments in compliance with the Final Judgment.

Petitioners sought a refund of all taxes paid in excess of those

limits as well an injunction preventing Respondents from

continuing to levy any assessments pursuant to the 98 (a) to

following:

"1. This matter is necessary to ... enjoin the

imposition and further collection from

Plaintiffs by way of an illegal and

unconstitutional property tax assessment of a

March 14, 1994 judgment fi.e., the final

Judgment]... ."

**# **

maf = On March 14, 1994, Judge District

Court Judge John Feikens entered judgment

against Defendants imposing upon Defendants

a portion of the costs of [the] Improvements . .

*e*#e*

“24. On or about 1995 Defendants began

assessing the costs of the judgment against

Plaintiffs by placing on Plaintiffs’ respective

real and personal property tax bills a tax

described as ‘EPA Judgment’... .”

Class Action Complaint and Jury Demand, {§ 1, 23 and 24,

Resp. App., pp.77b, 78b, 81b, 82b.

Petitioners did fail to mention in their pleading that the

tax objected to was specifically ordered by 498(a)- (c) of the

Final Judgment.

C. Procedural History

Respondents removed this case to the district court,

where it was assigned to Judge Feikens. Petitioners moved to

remand the case and for the recusal of Judge Feikens. The

district court denied both motions.

Thereafter, Respondents moved for summary judgment

on three grounds: that (1) as a matter of federal law, federal

district courts could, in the limited circumstances of this case,

override state law to compel compliance with federal law;

(2) as a matter of Michigan law, Respondents had not

violated the Headlee Amendment because the taxes they

levied to satisfy their obligations under the Financing Plan

and Final Judgment were authorized by both the Court Order

Bond Act and the Judgment Levy Act before the Headlee

Amendment was passed; and (3) in any event, Petitioners’ suit

was barred by laches. The district court granted the motion

and dismissed the case giving as alternative grounds all three

of Respondents’ legal arguments as grounds for dismissal.

Bylinski v. City of Allen Park, 8 F. Supp. 2d 965 (E.D. Mich.

1998).

Petitioners appealed the denial of their motion to remand

and the grant of summary judgment. The Sixth Circuit

affirmed the district court's rulings, holding that the district

court had removal jurisdiction by virtue of its continuing

jurisdiction in the Wayne County case and under the All

Writs Act, 28 U.S.C. §1651. With respect to the merits, it

held that Petitioners’ suit was barred by laches.

D. Petitioners Have Mischaracterized Their Posture on

Appeal to Obtain Favorable Action on Their Petition

Here Petitioners take the anomalous position of

challenging the removal of this case to federal court while

abandoning any appeal of the adverse rulings on the

substantive merits of their case. Thus Petitioners have

conceded that the Sixth Circuit was right on the merits. In

making this concession, they have also effectively conceded

that the district court was right on the merits as well,

including its holding that the subject assessment is permitted

under state law and does not violate the Headlee Amendment.

Yet, throughout their Petition, Petitioners argue that the

judgment assessment at issue was unconstitutional under

Michigan law. Although they have abandoned that argument,

they improperly urge this Court to consider that argument in

deciding to grant their Petition. The removal issue raised by

Petitioners must be decided on its own merits alone, not in

light of underlying state constitutional issues that Petitioners

abandoned.

REASONS FOR DENYING THE PETITION

The district court held that 28 U.S.C. § 1651 and 28

U.S.C. § 1331 were proper bases for removal. It also held

that Respondents were entitled to summary judgment

because: (1) the district court in the Wayne County case had

the authority to enter appropriate orders to effect its

judgment; (2) in complying with the Final Judgment,

Respondents had not violated the Headlee Amendment to the

Michigan Constitution; and (3) Petitioners’ claims were

barred by laches because they waited until long after the

bonds were sold to challenge the financing plan in the Final

Judgment.

The Sixth Circuit affirmed the district court's decisions

with respect to removal and laches, but did not address any

questions of Michigan law. Petitioners have challenged only

the jurisdictional ruling of the Sixth Circuit and have not

appealed the rulings on the substantive issues.

I. THIS COURT SHOULD DENY THE PETITION

BECAUSE THERE IS NO CONFLICT

BETWEEN THE SIXTH AND SEVENTH

CIRCUITS REGARDING THE APPLICATION

OF THE ALL WRITS ACT, 28 U.S.C. § 1651,

TO PROTECT THE INTEGRITY OF A

DISTRICT COURT JUDGMENT.

Petitioners argue for the grant of a writ of certiorari by

insisting that the Sixth Circuit's decision below creates a

division of opinion among the circuit courts, specifically

between the Sixth and Seventh Circuits. In fact, no circuit

split on this issue exists. The circuit courts agree that the All

Writs Act is a proper instrument by which a district court can

take jurisdiction of an otherwise unremovable state-court

action when doing so is necessary to protect the integrity of

its orders. See, e.g., In re VMS Securities Litigation, 103 F.3d

1317 (7th Cir. 1996); White v. National Football League, 41

F.3d 402 (8th Cir. 1994), cert. denied, 515 U.S. 1137 (1995);

United States v. City of New York, 972 F.2d 464 (2d Cir.

1992).

Petitioners can assert the existence of a conflict only by

mischaracterizing a decision of the Seventh Circuit, which is

not inconsistent with the opinion of the Sixth Circuit here. Jn

re Application of County Collector of Winnebago County,

Illinois, 96 F.3d 890 (7th Cir. 1996). In any event, to the

extent that Winnebago County, when issued, was inconsistent

with the opinion of the Sixth Circuit, it has been reframed in

the context of VMS Securities, supra.

Here, the Sixth Circuit clearly stated its position on the

question whether the All Writs Act could provide sufficient

basis for federal jurisdiction to protect the integrity of a

district court's orders. It held that the All Writs Act gives

district courts the authority to remove an otherwise

unremovable state court case for the purpose of effectuating

and preventing the frustration of orders that it had previously

issued in exercise of jurisdiction otherwise obtained. his

ruling is consistent with earlier opinions of the Sixth Circuit.

See, e.g., Striff v. Mason, 849 F.2d 240 (6th Cir. 1988); Sable

v. General Motors Corp., 90 F.3d 171 (6th Cir. 1996). There

is no question that the district court had jurisdiction of the

Clean Water Act claims in United States v. Wayne County

pursuant to that authority.

This ruling does not, as Petitioners suggest, conflict with

the ruling of the Seventh Circuit in Winnebago County,

supra. To be sure, in that case the Seventh Circuit reversed a

district court's ruling that the All Writs Act could be the sole

basis for obtaining jurisdiction of a case raising only state

constitutional issues; but there are crucial procedural and

factual differences between Winnebago County and this case.

These differences eliminate any suggestion of dispute

between the Sixth and Seventh Circuits.

In Winnebago County, the taxpayers affected by the

excess levies filed objections in state court. The defendant

school district intervened in these state-court proceedings and

removed each of these cases to the district court, where it

sought the dismissal of the objections. The district court

allowed removal, citing the All Writs Act as authority.

Eventually, the district court granted relief in favor of the

school district. The tax objectors appealed that ruling to the

Seventh Circuit.

A. In This Case The Court Found Violations Of Federal

Law And The Necessity To Take Certain Actions To

Comply, While In Winnebago County, No Violation

Of Federal Law Had Been Established.

In Winnebago County, the defendant issued bonds to pay

for improvements contained in a Second Interim Order issued

by the court, and it funded the bonds by levying taxes in

excess Of state-law limits. At the time of the consent decree

and tax levy, the defendant had not admitted liability for the

alleged discrimination, and the district court had made no

findings with respect to the allegation. The Seventh Circuit

held that jurisdiction to remove the state court case depended

heavily on a finding that violations of federal law had

occurred and that the order at issue was needed to address the

violations. Lacking such findings by the district court, the

Seventh Circuit reversed that court’s decision on removal.

In reaching that decision, the Seventh Circuit reasoned as

follows.

First, the Seventh Circuit held that the All Writs Act did

not provide unlimited jurisdiction on the federal courts.

Winnebago County, 96 F.3d at 900. Rather, its purpose was

to give district courts an adaptable instrument that they could

use to protect the integrity of their orders in a variety of

situations. /d. But Seventh Circuit did hold, using negative

phrasing, that the All Writs Act does properly serve as a sole

basis for district court jurisdiction to protect the terms of a

consent decree when the relief sought in state court

implicates the authority of the district court itself. Jd. at

900-903. That is, where a the relief sought in state court does

not implicate the authority of the district court to enforce its

consent decree, the All Writs Act does not provide a

sufficient basis for the assertion of federal jurisdiction, but

the converse is also true.

The Winnebago County court then analyzed the various

types of consent decrees to answer the question whether a

state court action implicates the authority of the district court.

Some consent decrees simply validate settlement agreements

between the parties reflecting, in effect, a district court's

recognition of a private contract. The validity of such

consent decrees depends entirely upon the parties’ authority to

enter into them. /d. at 901. But other consent decrees relate

to enforcement of federal law which under most federal

Statutes is the prerogative of the federal courts. For example,

a federal Clean Water Act enforcement action with regard to

unpermitted discharges to a publicly owned treatment works

“shall be brought in the district court for the United States,"

33 U.S.C. § 1319(f), as must citizen suits under the Clean

Water Act, 33 U.S.C. § 1365(a). These latter consent decrees

are usually entered following a finding of liability or

"necessity" by the district court under statutes such as 33

U.S.C. §§ 1319(b) & (f).Winnebago County at 901-02.The

court defined “necessity” as “a finding by the district court

that specific terms of a consent decree are necessary to

remedy the violation of a legal wrong.” /d. at 902, n. 17.

The Winnebago County court noted that, in its prior

opinion in the underlying discrimination case:

“We posed the interesting question of whether

the finding [of liability] could be made on

abbreviated proceedings, before the

conclusion of litigation. Where a violation is

clear, ‘consent’ is ‘no more than knuckling

under to the inevitable [and] is more like an

adjudication than a contract.”

Id. at W' n.15 (citations omitted) (quoting the underlying

case, People Who Care, 961 F.2d 1335, 1338 (7th Cir. 1992).

In light of this difference between types of consent

decrees, the Seventh Circuit held that the All Writs Act did

not provide sufficient authority for the district court to

remove the state-court case as a means of protecting the

Second Interim Order. Winnebago County, 96 F.3d at 900-03.

The court went on to note that:

“Dunn and our other precedent discussing the

legal effects of consent decrees strongly

indicate that, in a case such as this where a

consent decree was entered without findings

of liability or ‘necessity,’ the All Writs Act

does not permit the removal of a third-party

action claiming that a party to the consent

decree acted without authority under state

law."

Id. at 901-02 (footnotes omitted) (emphasis added) (citing

Dunn vy. Carey, 808 F.2d 555 (7th Cir. 1986)).

The Seventh Circuit distinguished this situation, however,

from one in which a district court relies upon the All Writs

Act to take jurisdiction of a case that threatens the integrity of

a consent decree which is based upon a finding a liability or

necessity. Such a case would implicate the district court's

jurisdiction, and the Seventh Circuit did not dispute that All

Writs Act was designed to address such an implication. /d. at

903-04. Indeed, the Winnebago County court noted that,

while it was considering the removal of the tax objectors’ suit,

the underlying discrimination claim had proceeded and the

district court had made findings of liability for the school

district and had developed a remedial scheme. Citing this

Court's opinion in Missouri v. Jenkins, 495 U.S. 33 (1990),

the Seventh Circuit noted that state law could not stand in the

way of a remedy designed to ensure compliance with feueral

law. Winnebago County, 96 F.3d at 903-04.

In contrast, the Wayne County case presents a situation in

which the district court had made findings of liability and

necessity in its Final Judgment. See discussion supra. There

was never any question that the Respondents in this case had

violated the Clean Water Act or that the improvements to the

wastewater treatment system were necessary to bring that

system into compliance with the federal Clean Water Act.

The district court formalized the finding of those violations in

its Final Judgment and the holding that the Improvements

were necessary to correct these violations. The

implementation of the Consent Decreeand the Financing Plan

in the Wayne County case was pursuant to these findings of

violations of the Clean Water Act and of the necessity of the

1993 Project Plan to cure the violations.

B. This Case Involves a State Court Proceeding

Intended To Enjoin Compliance With An

Express Federal Court Order

Winnebago County arose in connection with a separate

case brought in federal district court where the plaintiffs

alleged that a school district discriminated against students on

the basis of race. The parties to the discrimination case

entered into a consent decree, which the district court

described as a "Second Interim Order" and which required the

adoption of costly remedial measures but which did not

specify the mechanism by which the school district would

fund the remedies. When the district court invoked the All

Writs Act to take jurisdiction of otherwise unremovable state

cases, it had not issued any orders that would have been

directly countermanded by granting the relief requested in the

state cases

The Seventh Circuit pointed out:

“After cerefully reviewing the terms of the

Second Interim Order, we conclude that the

order did not require the school district to levy

the taxes at issue in this case. Although the

order directed the school district to fund

remedial programs, it explicitly, left the

manner of funding the remedial relief

completely in the discretion of the school

district... . The district court’s observation

and conclusion as to the legality of the levies

under the Tort Immunity Act simply cannot be

read as an order compelling the schoo! district

to impose taxes under the Act.“

Winnebago County, 96 F.3d at 898-99.

Here, Judge Feikens specifically ordered Respondents to

levy the taxes if they had not otherwise complied with his

order to pay for the sewer improvements. Final Judgment,

{8(a) - (c), Resp. App., pp. 8b-12b. When Petitioners

challenged the district-court-ordered levy to finance the

improvements, they were directly challenging the district

court's authority to impose those requirements. To make that

challenge, they asked the Michigan circuit court in their

state-court complaint to enjoin Respondents’ assessors from

complying with § 8 of the Final Judgment, which orders the

assessor to impose the challenged assessment. This is clear

from the pleadings of the Class Action Complaint and Jury

Demand, {J 1, 23 and 24. Resp. App. pp. 77b ef seq.,

discussed above.

In other words, if the district court here had not removed

Petitioners' case, Respondents’ tax assessors faced the

prospect of being ordered by the federal court to assess the

tax and by the state court to not assess the tax. There can be

no more direct conflict between the orders of state and federal

courts.

In this respect the Sixth and Seventh Circuits agree, as do

other Circuit Courts of Appeal. See, eg, In re VMS

Securities Litigation 103 F.3d 1317 (7th Cir. 1996); White v.

National Football League, 41 F.3d 402 (8th Cir. 1994), cert.

denied, 515 U.S. 1137 (1995); United States v. Citv of New

York, 972 F.2d 464 (2d Cir. 1992); Yonkers Racing Corp. v.

City of Yonkers, 858 F.2d 855 (2d Cir. 1988), cert. denied,

489 U.S. 1077 (1989).

USEPA vy. City of New York provides a valuable parallel

to this case. The Second Circuit upheld the removal of a state

court action challenging the legality of sludge management

contracts that the defendant city entered into pursuant to a

consent decree with USEPA to resolve a Federal Ocean

Dumping Ban Act enforcement action. The plaintiffs there

had alleged that the contracts were illegal under the general

municipal law because the city had failed to submit contracts

for competitive bidding. The circuit court concluded that the

removal of the state court case was necessary to protect the

integrity of the federal consent decree.

““** A decision by a state court canceling the

contracts would jeopardize the ability of the

City to comply with the timetables contained

in the federal consent decree. The City would

be forced, on an emergency basis, to seek

alternative means of disposing of the

enormous quantities of solid waste generated

every day.”

City of New York, 972 F.2d at 469.

Here, interference by Petitioners with the

district-court-ordered financing plan using the state court as a

vehicle would have required the Respondents “on an

emergency basis, to seek alternative means of [raising]

enormous quantities of [cash]” to meet the payment

obligations on nearly $200 million in bonds which had been

sold. That would unquestionably have interfered with

Respondents’ abilities to construct the Improvements and

cure the Clean Water Act violations according to the schedule

in the Consent Decree!

In summary, the district court here had subject-matter

jurisdiction because of the relief sought in the state court suit

and properly denied remand of this case, as the Sixth Circuit

recognized.

I. THIS COURT SHOULD DENY THE PETITION

BECAUSE THE DISTRICT COURT ALSO

HAD AUTHORITY TO REMOVE THE CASE

PURSUANT TO ITS RETENTION OF

CONTINUING JURISDICTION IN UNITED

STATES v. WAYNE COUNTY.

Petitioners also argue that the Sixth Circuit erred in ruling

that the terms of the Consent Decree in Wayne County

provided jurisdiction for removal of Petitioners’ state court

case. In making this argument, Petitioners invoke the

principle that a court's decree can only affect the substa.tive

rights of the parties to the decree, not the substantive rights of

non-parties. Of course, as discussed extensively above, this

argument is decisively rejected by the Winnebago County

opinion, the case upon which Petitioners place almost

exclusive reliance in their arguments regarding the All Writs

Act. Respondents certainly do not question that principle as

limited by Winnebago County, but point out it has no

application here. By taking jurisdiction of Petitioners’ case,

the district court did not affect Petitioners’ substantive rights;

it only affected the forum in which those rights were

adjudicated. The district court in this case addressed and

resolved Petitioners’ state law claim on its merits.

On this point, Petitioners principally question the Sixth

Circuit's reliance upon Vanguards of Cleveland v. City of

Cleveland, 23 F.3d 1013 (6th Cir. 1995), to support the

proposition that a district court's authority to enforce a

consent decree provided the court with continuing

jurisdiction to adjudicate state-court suits where the relief

requested in the state-court suit would affect the consent

decree. Petitioners contend that the Sixth Circuit read

Vanguards too broadly. They argue that the holding of

Vanguards must be interpreted in light of this Court's opinion

in Martin v. Wilks, 490 U.S. 755 (1989), which disapproved

Striff v. Mason, 849 F.2d 240 (6th Cir. 1988), a case that,

inter alia, considered a district court's authority to assert

continuing jurisdiction over cases affecting its consent

decrees.

This argument fails because Martin did not reverse the

Sixth Circuit's holding in S#riff regarding continuing

jurisdiction. S*riff reached two legal conclusions: that the

district court had jurisdiction to remove the state court action

arising out of its power to oversee enforcement its order, and

that the action should be dismissed pursuant to the

"impermissible collateral attack" rule. Martin addressed only

the latter conclusion. Martin, 490 U.S. at 763 n. 3. That rule

had provided that the entry of a consent decree between two

parties could preclude third parties from bringing claims that,

if granted, would undermine the consent decree. See Martin,

supra. Thus, the impermissible collateral attack rule

effectively allowed two parties to a consent decree to prevent

non-parties from having a hearing on their substantive rights.

The rule effectively gave res judicata effect to all consent

decrees, whether those decrees were the product of

freely-made bargains made when the question of liability was

unclear or the product of the kind of coercion imposed by the

recognition that the court has made or inevitably wil: make a

finding of liability.

In this case, the impermissible collateral attack rule has

not be used to bar Petitioners from their day in court.

Petitioners have had a hearing on their substantive rights

under the Headlee Amendment. The district court held that

the Final Judgment in Wayne County did not abridge

Petitioners’ state constitutional rights. It also ruled that

Petitioners had waived those rights by delaying their assertion

of them. Bylinski, 8 F. Supp. 2d at 971-75. Although those

state law issues could have been appealed here, Petitioners

have abandoned them

Given Petitioners’ misapplication of the holdings of Striff

and Martin, they have no basis for their argument that the

Sixth Circuit wrongly applied Vanguards to this case.

Vanguards and Striff stand for the proposition that, as an

incident of their authority to issue consent decrees, district

courts may assert continuing jurisdiction to protect the

integrity of those decrees including removing state court

actions which may interfere with the enforcement of such

decrees. This proposition was not affected by Martin's

rejection of the impermissible collateral attack rule and is

good law. The Sixth Circuit did not err in basing its ruling

upon it.

CONCLUSION

Petitioners contend that this Court should grant their

petition for a writ of certiorari because the district court in

this case exceeded its jurisdiction and destroyed their rights

under state law. In fact, the district court did not act outside

its authority in any way. In the Wayne County case, the

district court concluded that a massive sewer and treatment

plan construction project was essential to obtain compliance

with the Clean Water Act and entered an order as to the

financing of those improvements. A compliance plan without

enforceable financing is a nullity. The Wayne County case

was brought exactly because voluntary compliance, i.e.,

funding of improvements which were recognized to be

needed in order to come into compliance with the Clean

Water Act, had not occurred.

Only after the Improvements neared completion and

about $200 million in bonds were sold, did Petitioners

asserted rights under the Michigan constitution. They asked

the state court to enjoin the heart of the financing plan: the

imposition of an sssessment in those communities which had

failed to pay for their part of the Improvements. The district

court ruled that it should assert jurisdiction over those claims

so that if relief were appropriate, such relief could be granted

in a manner consistent with the court’s orders in the Wayne

County case. It then ruled that those claims had no merit.

These rulings correspond with all of the fundamental

principles of federalism and federal jurisdiction, principles

upon which the circuit courts are in agreement.

Consequently, this Court should deny the petition for a writ

of certiorari.

Dated: May 30, 1999

Respectfully submitted,

R. Craic Hupp

CHARLES N. Raimi

PauL R. BERNARD

Counsel of Record

Bodman, Longley & Dahling LLP

Attorneys for Respondents

100 Renaissance Center

34th Floor

Detroit, Michigan 48243

(313) 259-7777

UNITED STATES OF AMERICA and FRANK J. KELLEY,

ATTORNEY GENERAL FOR THE STATE OF MICHIGAN,

EX REL, MICHIGAN NATURAL RESOURCES

COMMISSION, AND DIRECTOR OF THE MICHIGAN

DEPARTMENT OF NATURAL RESOURCES, Plaintiffs, -v-

WAYNE COUNTY, MICHIGAN; CITY OF ALLEN PARK;

CITY OF BELLEVILLE; TOWNSHIP OF BROWNSTOWN;:

CITY OF DEARBORN HEIGHTS; CITY OF ECORSE; CITY

OF LINCOLN PARK; CITY OF RIVER ROUGE; CITY OF

RIVERVIEW; CITY OF ROMULUS; CITY OF

SOUTHGATE; CITY OF TAYLOR; TOWNSHIP OF VAN

BUREN; CITY OF WYANDOTTE;

SOUTHGATE-WYANDOTTE RELIEF DRAINAGE

DISTRICT; AND ECORSE CREEK POLLUTION

ABATEMENT DRAIN, Defendants.

CIVIL ACTION NO. 87-70992

U'wITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

DOWNRIVER SEWAGE DISPOSAL SYSTEM 1994

FINANCING PLAN AND FINAL JUDGMENT

RE: 1994 COURT-ORDERED IMPROVEMENTS

WHEREAS, this, Matter having been brought on for

hearing on notice of this Court and this Court being fully

advised in the premises; and

WHEREAS, the County of Wayne, Michigan

("Wayne"), acting by and through its then Board of Supervisors

and pursuant to the authority conferred upon it by Act 185,

Public Acts of Michigan, 1957, as amended ("Act 185"), did,

by resolution duly adopted by a two-thirds (2/3) vote of the

Board of Supervisors, establish a Department of Public Works,

now known as the Department of Public Services, Division of

Public Works, in and for Wayne for the administration of the

powers conferred upon Wayne by Act 185; and

WHEREAS, Wayne is now a Charter County with all

powers provided under Act 293, Public Acts of Michigan 1966,

as amended, including the powers conferred by statute and

charter on its County Executive (the "CEO"); and

WHEREAS, pursuant to Section 16 of Act 261, Public

Acts of Michigan 1966, as amended, all references to county

supervisors or county boards of supervisors in any act are

deemed to mean county commissioners and county boards of

commissioners anu, in a Charter County, a county commission;

and

WHEREAS, pursuant to Section 2(5) of Act 185 the

CEO has all authority, powers, and duties conferred by Act 185

upon a department of public works and is under the general

control of the County Commission; and

WHEREAS, Wayne, pursuant to the authority of Act

185 entered into a contract dated March 1, 1962, which contract

has been amended from time to time, (the "Downriver

Agreement"), with certain communities within Wayne County

for the purposes of establishing a Wastewater Control System

commonly known as the Downriver Sewage Disposal System

(the "System") to address the immediate public health and

welfare needs of all or a portion of the residents of those

communities, namely the cities of Allen Park, Belleville,

Dearborn Heights, Ecorse, Lincoln Park, River Rouge,

Riverview, Romulus (then a Township), Southgate, Taylor

(then a Township) and Wyandotte and the Townships of

Brownstown and Van Buren (referred to collectively as the

"Downriver Coramunities"); and

WHEREAS, in order to operate the System in

accordance with law, including sewerage systems of

Downriver Communities tributary to the System, it is necessary

to obtain a National Pollution Discharge Elimination System

Permit (an "NPDES Permit") issued pursuant to the Michigan

Water Resources Commission Act, Act 245, Public Acts of

Michigan, 1929, as amended, and the Federal Clean Water Act,

33 U.S.C. 1251, et. seq.; and

aE eee

WHEREAS, additional regulations and requirements

have recently been enacted by the USEPA with respect to the

disposition and disposal of sludge, a by-product of wastewater

treatment, (the "503 Regulations") that will require additional

improvements and emission control systems be planned,

designed and installed at the System's sewage disposal

treatment plant; and

WHEREAS, this Court noticed for entry a certain

Consent Decree on February 11, 1994, (the "Consent Decree")

in this action, requiring that certain improvements to the

System be planned, designed, acquired, constructed and

financed all in accordance with a certain schedule attached as

Exhibit A and a certain Project Plan dated May 1, 1993, titled

"Wayne County Downriver Collection System," which has

been summarized in Exhibit B and a "Project Plan for Sanitary

Sewer Improvements; City of Riverview" (collectively, the

"Project Plan"). The Project Plan has been formulated by the

defendants working with the assistance of the Court-Appointed

Monitor, the Court-Appointed Expert Witness and Master and

in consultation with the USEPA and MDNR; and

WHEREAS, it is immediately necessary and imperative

for the public health and welfare of the present and future

residents of Wayne and the Downriver Communities that the

improvements for the System required by the Consent Decree

and the Project Plan (the "Improvements") be planned,

designed, acquired, constructed and financed to service the

Downriver Communities, as a part of the System: and

WHEREAS, the consulting engineers for Wayne

estimate a total cost of approximately Two Hundred Thirty

Million Dollars ($230,000,000) to plan, design, acquire,

construct and finance all of the Improvements (including the .

1994 Improvements and the Local Jurisdiction Improvements,

as hereinafter defined) and Wayne and certain of the

Downriver Communities intend to file applications with The

Michigan Water Pollution Control Revolving Loan Fund

Program (the "Revolving Loan Fund") and The Michigan

Municipal Bond Authority (the "Authority") to finance

approximately Two Hundred Million Dollars ($200,000,000) of

the Improvements; and sik

WHEREAS, the consulting engineers for Wayne

estimate a total cost of approximately Thirty Million Dollars

($30,000,000) to plan, design, acquire, construct and finance

certain improvements to the System which are described in the

"Bond Amount" column and included in the "Total

Construction Costs” now on page | of Exhibit C, which

includes the cost of certain of the Local Jurisdiction

Improvements, all as required by the Consent Decree and the

Project Plan (collectively, the "1994 Improvements"), which

1994 Improvements (i) consist almost exclusively of the

preparation of engineering plans and (ii) are included within,

and not in addition to, the Improvements, of which it is

anticipated that approximately Twenty Five Million Dollars

($25,000,000) may become eligible for financing through the

Revolving Loan Fund and the Authority; and

WHEREAS, in order to meet the requirements of the

Consent Decree, the Downriver Communities and Wayne need

to plan, design, acquire and construct the 1994 Improvements

and the Downriver Communities desire to have Wayne as their

agent to supply the planning, designing, acquisition and

construction of the 1994 Improvements required for the System

and, if requested, to apply as their agent for loans from the

Revolving Loan Fund and the Authority and where necessary

receive the funds on behalf of the Downriver Communities; and

WHEREAS, in order to meet the requirements of the

Consent Decree, certain of the Downriver Communities need to

plan, design, acquire, construct and finance improvements to

local sewage systems which are under the jurisdiction and

control of each such Downriver Community (respectively, the

"Local Jurisdiction Improvements".) and in accordance with

this 1994 Financing Plan And Final Judgment Re: 1994

Court-Ordered Improvements (the "1994 Financing Plan And

Final Judgment") Wayne may contract with such Downriver

Communities as their agent to supply all or part of the planning,

designing, acquisition and construction of such Downriver

Communities’ respective Local Jurisdiction Improvements and

to apply as such Downriver Communities’ agent for loans trom

the Revolving Loan Fund and the Authority; and

WHEREAS, in order to meet the requirements of this

1994 Financing Plan And Final Judgment, the City of

Wyandotte ("Wyandotte") has agreed to pay to Wayne Six

Hundred Sixty Six Thousand Three Hundred Eighty Three

Dollars ($666,383), representing Wyandotte's estimated local

share of the cost of the 1994 Improvements ("Wyandotte's

Share") to be deposited by Wayne in a Construction Fund

Subaccount (as hereinafter defined).

WHEREAS, in order to meet the requirements of the

Consent Decree, the City of Riverview has commenced certain

local improvements (the "Riverview Improvements") in

accordance with the Project Pian for Sanitary Sewer

Improvements. City of Riverview, and has issued its bonds to

pay part of the costs of the Riverview Improvements and

intends to pay further costs of the Riverview Improvements.

NOW, THEREFORE, UPON CONSENT OF THE

PARTIES HERETO, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED AS FOLLOWS:

1. Approval of Project Plan for the 1994 Improvements.

As set forth in paragraph 4 of the Consent Decree, the United

States of America, acting through its Environmental Protection

Agency ("US EPA"), and the Michigan Department of Natural

Resources ("MDNR"), acting on behalf of the State of

Michigan, have conceptually approved the Project Plan and

hereby further approve (i) Wayne's proceeding with the

planning, designing, acquisition and construction of the 1994

{Improvements and (ii) the Riverview Improvements as

contemplated by the Project Plan. The Downriver

Communities approve the planning, designing, acquisition and

construction of the 1994 Improvements. Wayne approves the

planning, designing, acquisition, construction and financing of

the 1994 Improvements.

2. 4 Vv ¢

The 1994 Improvements to be designed will service the

Downriver Communities and their residents and are hereby

ordered to be immediately necessary to protect and preserve the

public health.

3. Wayne's Use of Rights-Of-Way. The Downriver

Communities hereby consent to the use by Wayne of the public

streets, alleys, lands and rights-of-way in the Downriver

Communities for the purpose of constructing, operating and

maintaining the 1994 Improvements and in order to evidence

and effectuate the foregoing consent, the Downriver

Communities will execute and deliver to Wayne such grants of

easement, right of way, license, permit, consent or other

agreement as may be required by Wayne.

4. Approval of the Estimated Cost for the 1994

Improvements. Wayne and the Downriver Communities

hereby approve the estimated cost for the 1994 Improvements

as prepared by the consulting engineers and as set forth in

Exhibit C attached hereto. Such estimated costs for the 1994

Improvements may include, but are not limited to, costs for all

surveys, plans, specifications, acquisition of property for

rights-of-way, physical construction necessary to acquire and

construct the 1994 Improvements the acquisition of all

materials, machinery and necessary equipment, contingency

allowance, and engineering, engineering supervision,

administrative and legal expenses necessary in connection with

the planning., designing, acquisition and construction of the

1994 Improvements.

5. Issuance of Bonds. Wayne, acting solely by its

County Commission, shall authorize the issuance of the bonds,

in a principal amount not to exceed Thirty Million Dollars

($30,000,000), plus (i) any amount required to fund the Reserve

Fund described in Section 14 and (ii) the principal amount of

any bonds to be issued by Wayne for any Local Jurisdiction

Improvements. The bonds issued hereunder shall be limited tax

general obligations of Wayne.

In addition to bonds issued in accordance with the

preceding paragraph, if the Judgment Payments (as defined in

Section 8(b) hereof) and the proceeds from tue sale of the

bonds are not sufficient to complete the 1994 Improvements,

Wayne may issue additional bonds (including any bonds sold to

the Authority) in an aggregate amount sufficient to complete

the 1994 Improvements.

6. t truct

the 1994 Improvements. Wayne will plan, design, acquire and

construct the 1994 Improvements on behalf of the Downriver

Communities and Wayne and for that purpose will take bids

and/or proposals for the planning, designing, acquisition and

construction thereof.

7 D river C ie be Beneficial

rs l n Improvement 1994

Improvements. While any bonds remain outstanding which

were issued by Wayne for any Local Jurisdiction

Improvements, each such Downriver Community shall be a

beneficial owner of its Local Jurisdiction Improvements and

each such Downriver Community shall operate, maintain and

administer its Local Jurisdiction Improvements as a part of its

local sewage disposal system and pay all costs thereof, so as to

keep all such facilities in proper repair and working order in

compliance with all applicable federal state and local

regulations, and Wayne shall have the right to inspect the Local

Jurisdiction Improvements at reasonable times to insure that

each Downriver Community's maintenance and operation is

appropriate. Each Downriver Community also shall be a

beneficial owner of the 1994 Improvements to the extent of its

allocable share of the cost of such 1994 Improvements.

8. Judgment Requiring Payment. Each Downriver

Community is hereby ordered to pay its portion of the

local-share costs of the Improvements, in accordance with the

allocations as set forth in Exhibit C. Except as otherwise

provided herein, each Downriver Community is hereby ordered

to pay its local - share costs of the 1994 Improvements, if any,

in cash, or as otherwise provided in Section 8(b), on or before

the closing date on the sale of the bonds described herein. Each

Downriver Community shall pay its portion of the local - share

costs of the Improvements (other than the 1994 Improvements)

in the amounts and at the time determined by Wayne to be

necessary to comply with the Consent Decree. To the extent

that a Downriver Community does not pay its local - share

costs of the Improvements (other than the 1994 Improvements)

at the times required by Wayne, Wayne shall collect such local

- share costs in a manner similar to Sections 8(a)-(c) below.

Wyandotte is hereby ordered to deposit Wyandotte's Share with

Wayne, to be held by Wayne in a subaccount oi the

construction fund (a "Construction Fund Subaccount") to be

maintained by Wayne in connection with the construction of

the 1994 Improvements and in accordance with Section 10(g).

Wyandotte shall be deemed to have paid the Wyandotte Share

in cash for purposes of this Agreement. It is the understanding

of the parties that Wayne shall, where appropriate, adjust the

allocations to properly reflect community cost apportionments

based on data collected during the 1995 flow monitoring and

after the subsequent reports have been completed. It is also the

understanding of the parties that receipt of these allocations

does not prevent any party from raising issues between itself

and other parties as to allocations of costs related to

construction. Any adjustments to the allocations described in

this paragraph shall be computed in accordance with the Cost

Allocation Methodology attached as Exhibit D.

(a) Filing of Judgment Against Certain Downriver

Communities. With respect to any Downriver Community that

does not pay its Judgment Payments (as defined tn Section 8(b)

hereof) in cash prior to the closing date for the sale of Wayne's

bonds, a certified copy of this 1994 Financing Plan And Final

Judgment shall be filed with the assessing officer of each

Downriver Community that is a city, and with the supervisor of

NS a ee Pe a ee |

each Downriver Community that is a township (collectively,

the "Assessing Officer"), pursuant to Section 6093 of Act 236,

Public Acts of Michigan 1961, as amended ("Act 236"), and

this 1994 Financing Plan And Final Judgment. The Judgment

Payments shall be assessed by the Assessing Officer of each

Downriver Community upon the taxable property of the

Downriver Community in the annual amounts required to be

paid hereunder; provided. however, that such annual

assessment shall not be required (i) to the extent that the

Downriver Community has provided to Wayne the resolution

required by Section B(c)(i) and paid the applicable Judgment

Payments at least forty five(45) days prior to the Levy Date for

such year or (ii) if proceeds from the issuance of a Downriver

Community's bonds or other evidences of indebtedness are paid

to an escrow account with terms satisfactory to Wayne and

solely for purposes of paying the Judgment Payments, then to

the extent that the amount in such escrow account is verified by

independent certified public accountants satisfactory to Wayne

to be sufficient to pay succeeding annual assessments of the

Judgment Payments. then such annual assessments of the

Judgment Payments shall not be required. Judgment Payments

received by Wayne under this subparagraph shall be held by

Wayne in an interest-bearing account (subject to any

restrictions imposed by state or federal law) and applied to the

next Judgment Payments due by such Downriver Community,

with any excess being retained in such account to be applied to

the next Judgment Payments due. The treasurer or collecting

officer of each Downriver Community charged with collection

and payment of such Judgment Payments is specifically

authorized and directed to pay said sums to Wayne, to apply on

the obligations of the Downriver Community as herein set

forth. In addition to the foregoing, Wayne shall have all other

rights and remedies provided by law to enforce the obligations

of the Downriver Community to make its Judgment Payments

and other payments required hereunder in the manner and at the

times required by this 1994 Financing Plan And Final

Judgment. The Downriver Community will not take any action

to reduce the right of Wayne to receive state-returned moneys

of such Downriver Community in the event of default. It is

eR ce Re

10b

hereby ordered that the rights of plaintiffs under Section 6093

of Act 236, to require the Assessing Officer to assess such

payments on the taxable property of the Downriver Community

with respect to the Improvements, are hereby assigned to

Wayne and any such payments received by plaintiffs from the

Downriver Communities shall be paid to Wayne. Wayne

acknowledges receipt of and accepts such assignment.

(b) Judgment Payments. Each Downriver

Community is hereby ordered to make the following payments

to Wayne (the "Judgment Payments") severally, and not jointly:

(i) in the case of a Downriver Community paying its local

share (as determined in accordance with pages 1-5 of

Exhibit C) of the cost of the 1994 Improvements in cash,

such cash amount, which shall be paid to Wayne on or

before the closing date for the sale of Wayne's bonds and

deposited in a Construction Fund Subaccount, together

with such Downriver Community's local share of all other

expenses, costs and fees incurred or charged by Wayne in

connection with the 1994 Improvements, at such times as

Wayne shall determine, including without limitation

expenses of planning, designing, acquiring and constructing

the 1994 Improvements, but excluding any expenses of

financing the 1994 Improvements; or

(ii) in the case of a Downriver Community not paying its

local share of the cost of the 1994 Improvements in cash, an

amount equal to its local share of the cost of the 1994

Improvements sufficient to allow Wayne to pay the

principal of and interest when due on Wayne's bonds

(including any bonds sold to the Authority), and to maintain

the Reserve Fund described in Section 14, all at such times

as Wayne shall determine, together with such Downriver

Community's local share of all other expenses, costs and

fees incurred or charged by Wayne in connection with the

1994 Improvements, at such times as Wayne shall determine,

including without limitation expenses of planning, designing,

llb

acquiring, constructing and financing (including bond discount

and credit enhancement) the 1994 Improvements; and

(iii) in the case of each Downriver Community, in addition

to the amounts described in Section 8(b)(i) or Section 8(b)(ii)

above, if Wayne determines that the actual cost of the 1994

Improvements exceeds the estimated cost of the 1994

Improvements, an amount equal to such Downriver

Community's local share of such increased costs of the 1994

Improvements within thirty (30) days after delivery by Wayne

of notice of such increase or, in the event Wayne issues its

bonds (including any bonds sold to the Authority) for such

increased costs, in annual installments in the manner provided

in Section 8(b)(ii) above.

The Downriver Communities are hereby ordered to pay the

Judgment Payments to Wayne without regard to whether the

1994 Improvements are actually completed or placed in

operation, and such Judgment Payments shall not be reduced by

any Downriver Community for any amounts that are

attributable to other claims or offsets among the parties.

Notwithstanding the preceding sentence, Wayne shall apply the

Judgment Payments it receives, in such manner as Wayne shall

determine, to the cost of the 1994 Improvements and Wayne's

expenses, costs and fees in connection with the 1994

Improvements.

Wayne shall, simultaneously upon the sale of the bonds, deliver

to each Downriver Community described in Section 8(a) a

complete schedule of the estimated Judgment Payments due in

calendar years 1994 and 1995. Within twenty-one (21) days

after such delivery, each Downriver Community shall provide

Wayne with a resolution of its governing body satisfactory to

Wayne resolving that:

(i) it has adequate funds available that shall be reserved to

pay such Judgment Payments; and/or

12b

(ii) to the extent that it does not have adequate funds

available to pay such Judgment Payments the Assessing Officer

shall assess taxes on the taxable property of the Downriver

Community on the Levy Date sufficient to pay such deficiency

and shall direct its treasurer or collecting officer to establish an

expenditure account to pay such deficiency and a revenue

account to receive taxes assessed for such Judgment Payments; ;

and |

(iii) its treasurer or collecting officer shall pay such .

Judgment Payments to Wayne as such amounts are collected.

The "Levy Date" for the Downriver Communities that

are (1) cities shall be July 1 or December | of each year, upon

Wayne's approval, and (ii) townships shall be December | of |

each year, unless otherwise changed by applicable Michigan

law. |

On March 1, 1995, and on March | of each succeeding .

year, Wayne shall deliver to each Downriver Community a ;

complete schedule of the estimated Judgment Payments due in

the following calendar year. On April 15, 1995, and on April 15

of each succeeding year, each Downriver Community shall

provide Wayne with a resolution in accordance with Sections

8(c)(1)-(i11) above.

If any arrangements due by any Downriver Comunity

hereunder are not paid when due, the amounts not so paid shall

be subject to a penalty, in addition to interest, of one percent (1

%) thereof for each month, or fraction thereof, that the same

remains unpaid after the due date. Failure of Wayne to notify

the Downriver Communities of any such Judgment Payments

shall not relieve the Downriver Communities of the obligation

to make such Judgment Payments.

(d) Surplus Proceeds. After completion of the 1994

Improvements and payment of all costs thereof, any surplus

remaining from the proceeds of sale of bonds and cash received

from any Downriver Community on or before the closing on

the sale of Wayne's bonds shali be used by Wayne pro rata on

13b

the basis of the local share allocations set forth on pages 1-5 of

Exhibit C for (i) reimbursement to those Downriver

Communities that paid cash on or before the closing on the sale

of Wayne's bonds, such amount to include such Downriver

Community's share of interest earned on such surplus or (ii)

credit to those Downriver Communities described in Section

8(a) toward the Judgment Payments next due Wayne by such

Downriver Communities.

9. Need for the Improvements. This Court

specifically finds, based on its review of applicable law and the

Project Plan, that (i) the Improvements are needed to comply

with the Federal Water Pollution Control Act and Act 245; and

(11) the installation, construction, alteration, improvement and

operation of the Downriver Sewage Disposal System , as

described with the Improvents, have been ordered in

accordance with the Consent Decree, Act 320, Act 245 and the

Federal Clean Water Act.

10. Actions to be Taken by Wayne. To provide for

the planning, designing, acquisition and construction of the

Improvements, and the financing thereof, Wayne is hereby

ordered pursuant to and in compliance with Act 320, and

solely by authority of its Board of Commission, to:

(a) Submit to the Board of Commission of

Wayne a resolution (the "Bond Resolution") providing for the

issuance of bonds in one or more series in the amount necessary

to finance the planning, designing, acquisition and

construction of the 1994 Improvements, and solely the 1994

Improvements, and to pay costs of issuance of the bonds, in the

aggregate principal amount not to exceed Thirty Million

Dollars ($30,000,000) (except as otherwise authorized pursuant

to this 1994 Financing Plan And Final Judgment). Such bonds

shall be payable and have such terms as provided in the Bond

Resolution and shall be secured as provided in this 1994

Financing Plan And Final Judgment. After due adoption of the

Bond Resolution, Wayne will take all necessary legal

procedures and steps necessary to effectuate the authorization,

14b

sale and delivery of said bonds, such legal procedures and steps

to include, without limitation, the right of Wayne to (i) file with

the Municipal Finance Division of the Michigan Department of

Treasury notices of intent to issue the bonds described herein

and to pay any related fees and to request an order, if

applicable, providing an exception for the bonds from prior

approval by the Department of Treasury and to request such

other waivers from the Department of Treasury as Wayne

deems necessary and (ii) file with the Authority such

documents as may be necessary to issue and sell Wayne's bonds

to the Authority.

(b) Take bids and/or proposals for and enter into

and execute final contracts for the planning, designing,

acquisition and construction of the Local Jurisdiction

Improvements, and the financing thereof, in accordance with

the plans and specifications therefor as approved by this 1994

Financing Plan And Final Judgment.

Wayne shall permit such Downriver Community to take bids

and/or proposals for and enter into and execute final contracts

for the planning, designing, acquisition and construction of the

Local Jurisdiction Improvements. and the financing thereof, in

accordance with the plans and specifications therefor as

approved by this 1994 Financing Plan And Final Judgment,

subject however, to final review and approval by Wayne.

(d) | Require and procure from the contractor or

contractors undertaking the actual construction and acquisition

of the Improvements necessary and proper bonds to guarantee

the performance of the contract or contracts and such labor and

material bonds as may be required by law, in such amount and

such forms as may be approved by Wayne.

(e) Require and procure from the contractor or

contractors undertaking the actual construction of the

Improvements insurance protecting both the Downriver .

Communities and Wayne from liability in connection with such

A eat IE RS

15b

construction. The cost of such insurance shall be considered to

be a part of the cost of the Improvements.

(f) Upon receipt of the proceeds of sale of the

bonds, comply with all provisions and requirements provided

for in the Consent Decree, the Bond Resolution and this 1994

Financing Plan And Final Judgment relative to the ,

disposition and use of the proceeds of sale of the bonds.

(g) In its discretion, temporarily invest any bond

proceeds or other funds held by it as permitted by law, and

investment income shall accrue to and follow the fund

producing such income. Neither Wayne nor the Downriver

Communities shall take any act or fail to take any act which

would make the interest on the bonds includible in gross

income for federal income tax purposes.

LI. ;

Nothing herein contained shall be construed to prevent the

Downriver Communities from using any combination of

the means and methods provided under law or other such funds

lawfully at their disposal for the purpose of providing funds to

meet their obligations under this 1994 Financing Plan And

Final Judgment.

12. Approval of Bonds: Use of Proceeds. The

Municipal Finance Division of the Michigan Department of

Treasury ("Treasury") has approved the financing of the

Improvements as contemplated by this 1994 Finencing Plan

And Final Judgment. Wayne, the Downriver Communities and

Treasury acknowledge that pursuant to Section 8(a) hereof: (i)

the Court has ordered assignments of plaintiffs’ rights under

Section 6093 of Act 236 to require the Assessing Officers of

the Downriver communities to assess the payments on the

taxable property of the Downriver Communities to Wayne and

(ii) the treasurer or collecting officer of each Downriver

Community charged with collection and payment of such

Judgment Payments is specifically authorized and directed to

pay said sums to Wayne unless the Judgment Payments are

16b

otherwise paid in accordance with Sections 8(a) or 11 hereof.

Wayne and the Down river Communities acknowledge that it is

the intent of some of the Downriver Communities to treat any

such assessments of taxes for the Judgment Payments as being

in excess of otherwise applicable charter, statutory and

constitutional limitations and have assured this Court that none

of them will hereafter object to the proposed treatment of such

Judgment Payments as being in excess of charter, statutory and

constitutional limitations. Treasury will not object to this

structure or challenge it in state or federal court. Wayne, the

Downriver Communities and Treasury will cooperate to the

extent within their power to cause the Revolving Loan Fund

and the Authority to purchase the bonds issued by Wayne and |

shall take all other actions and provide such other assistance as

may be necessary to permit Wayne to finance the

Improvements in accordance with this 1994 Financing Plan

And Final Judgment.

Wayne for itself and as agent for the Downriver

Communities, other than Wyandotte, is hereby authorized to

submit Parts I, II and III of the Application for Assistance to the

Revolving Loan Fund and the Authority with respect to the

1994 Improvements. Any proceeds received by Wayne from the

sale of bonds to the Revolving Loan Fund and the Authority

with respect to the 1994 Improvements shali (i) if permissible

under the Revolving Loan Fund, be paid to the Downriver

Communities to reimburse them for Judgment Payments made

by them to Wayne in accordance with Section 8(a)(i) and

directly related to the 1994 Improvements or (ii) be deposited

into the debt retirement fund established for the bonds

previously issued for the 1994 Improvements and used solely to

redeem, at the earliest possible opportunity, the outstanding

bonds directly related to those 1994 Improvements financed by

such subsequent bond issue. Wayne shall, within thirty (30)

days after any early redemption of bonds, furnish the

Downriver Communities with a complete schedule of the

known Judgment Payments due on the next succeeding due

date. If any Judgment Payments are not paid when due, the

Judgment Payments not so paid shall be subject to a penalty, in

17b

addition to interest, of one percent (1 %) thereof for each

month, or fraction thereof, that the same remains unpaid after

the due date. Failure of Wayne to notify the Downriver

Communities of any such Judgment Payments shall not relieve

the Downriver Communities of the obligation to make such

Judgment Payments.

Wayne and the Downriver Communities each declare

their official intent to issue bonds in the maximum principal

amount not to exceed Two Hundred Thirty Million Dollars

($230,000,000) to finance the costs of the Improvements

and each declare that they reasonably expect to be reimbursed,

without interest, for advances made by them towards the cost of

the Improvements. Wayne and the Downriver Communities, at

the present time, each have determined that there are no funds

from sources other than the bonds anticipated herein that are

reasonably expected to be reserved, allocated on a long-term

basis or otherwise set aside by them, or by any member of a

controlled group (as defined in Treasury Regulation

§1.150-1(e)) in which they are a member, if any, pursuant to

their budget or financial policies with respect to the

expenditures for the Improvements expected to be reimbursed

from the proceeds of the bonds. Notwithstanding the above,

each Downriver Community shall not be obligated to allow

Wayne to finance its share of the cost of such Improvements in

the above described manner, but may elect to pay its share of

the cost of such Improvements in cash.

13. Revenue Sharing. To the extent permitted by

law, in the event a Downriver Community described in Section

8(a) fails for any reason to pay to Wayne at the times specified

by Wayne County its Judgment Payments or any other ainounts

ordered to be paid by the provisions of this 1994 F inancing

Plan And Final Judgment (a "Default"), Wayne shall

immediately give notice of such Default and the amount

thereof, in writing, to the Treasurer of the Downriver

Community, the Treasurer of Wayne, the Treasurer of the State

of Michigan and such other officials charged with the

disbursement to the Downriver Community of funds returned

by the State and now or hereafter available for pledge under

any applicable state law, as provided in this Section. If such

Default is not corrected within ten (10) days after such

notification, such official charged with disbursement to the

Downriver Community of the aforesaid funds is by these

presents specifically authorized by the Downriver Community

to withhold from the aforesaid funds the maximum amount

permitted by law and not previously pledged by such

Downriver Community as is necessary to cure said Default and

to pay said sums so withheld to Wayne to apply on the

obligations of the Downriver Community as ordered herein.

Any such moneys so withheld and paid shall be considered to

have been paid to the Downriver Community within the

meaning of the Michigan Constitution of 1963, the purpose of

this provision being solely to authorize and pledge voluntarily

the use of said funds in such amounts as may be permitted by

law owing to the Downriver Community to meet any past-due

obligations of the Downriver Community due under the

provisions of this 1994 Financing Plan And Final Judgment.

14. Reserve Fund. Wayne shall (subject to

restrictions imposed by state or federal law) maintain a reserve

fund in an amount determined by Wayne (the "Reserve Fund").

Wayne shall make the initial payment to the Reserve Fund out

of proceeds from the sale of Wayne's bonds. Future payments

to the Reserve Fund shall be made, at such times as Wayne

shall determine, by the Downriver Communities that are not

paying their Judgment Payments in cash on or before the

closing date on the sale of Wayne's bonds, so that each such

Downriver Community will have in the Reserve Fund an

amount equal to the total Reserve Fund required by the first

sentence of this Section multiplied by a fraction, the numerator

of which is such Downriver Community's share of the

outstanding Judgment Payments and the denominator of which

is the total outstanding Judgment Payments. Wayne shall

withdraw from the Reserve Fund such amounts as may be

necessary to meet the principal and interest payments due on

Wayne's bonds if the Judgment Payments received by Wayne

are insufficient to make such payments. Upon any such

19b

withdrawal from the Reserve Fund, the Reserve Fund shall be

restored by Wayne and Wayne shall be reimbursed severally,

and not jointly, by each Downriver Community responsible for

such insufficiency to the extent of its share of such

insufficiency. Notwithstanding the preceding sentence, the

Reserve Fund may be used to pay the principal and interest due

on Wayne's bonds in the final year of maturity.

15. Future Changes. It is ordered that the structure

for Wayne's bonds in this 1994 Financing Plan And Final

Judgment shall govern future financings of the Improvements,

except as otherwise ordered by this Court, and so long as any of

such bonds shall remain outstanding and unpaid, this structure

shall not be subject to any alteration or revision which would in

any manner materially adversely affect either the security of

the bonds or the prompt payment of principal or interest

thereon.

16. Entry of Judgment. Each Downriver Community

shall adopt a resolution authorizing the entry of this 1994

Financing Plan And Final Judgment.

17. Successors and Assigns. This 1994 Financing

Plan And Final Judgment shall inure to the benefit of and be

binding upon the parties hereto and their respective successors

and assigns, Except as expressly modified herein, the terms and

conditions of the Downriver Agreement shal! remain in full

force and effect.

18. iverview rovements. The City of

Riverview is ordered to construct the Riverview improvements

and to issue its bonds for that purpose.

19, ransfer of Downriver Collection and Treatment

System. Nothing contained in this 1994 Financing Plan And

Final Judgment shall be construed as a prohibition against the

transfer of the Downriver Collection and Treatment System

from Wayne to the Downriver Communities, or any other

entity, including an authority created for that purpose, for the

20b

construction, operation and maintenance of said System. Any

such transferee of such System will be a successor of

Wayne and will be fully bound as to the terms and conditions of

this 1994 Financing Plan And Final Judgment, including any

obligations issued hereunder.

20. Final Order. This 1994 Financing Plan And Final

Judgment (i) shall be contingent upon entry by the Clerk of the

Court of the Consent Decree and (ii) shall be a final order upon

which the parties may not appeal and which covers all claims

by be plaintiffs against the defendants relating to the subject

matter hereof. If there is any conflict between the terms of the

Consent Decree and this 1994 Financing Plan And Final

Judgment, the terms of the Consent Decree shall

control.

21. Continuing Jurisdiction of Court. This Court

shall retain jurisdiction with respect to any matter which may

arise which may involve the interpretation of the terms of this

1994 Financing Plan and Final Judgment or affect the rights of

any party arising out of this 1994 Financing Plan and Final

Judgment.

22 Counterparts. This 1994 Financing Plan And

Final Judgment may be executed in several counterparts.

23. MDNR is signing this 1994 Financing Plan And

Final Judgment solely ‘or purposes of effectuating the

provisions us Section 1.

24. ‘Treasury is signing this 1994 Financing Plan

And Final Judgment solely for purposes of effectuating the

provisions of Sections 12 and 15.

IN WITNESS WHEREOF, the parties hereto

have caused this instrument to be executed as of the day and

year first above written.

JOHN FEIKENS/U.S.D.J./E.D. OF MICHIGAN

21b

UNITED STATES OF AMERICA and FRANK J. KELLEY,

ATTORNEY GENERAL FOR THE STATE OF MICHI-

GAN, EX REL, MICHIGAN NATURAL RESOURCES

COMMISSION, AND DIRECTOR OF THE MICHIGAN

DEPARTMENT OF NATURAL RESOURCES, Plaintiffs,

-v- WAYNE COUNTY, MICHIGAN; CITY OF ALLEN

PARK; CITY OF BELLEVILLE; TOWNSHIP OF BROWN-

STOWN; CITY OF DEARBORN HEIGHTS; CITY OF

ECORSE; CITY OF LINCOLN PARK; CITY OF RIVER

ROUGE; CITY OF RIVERVIEW; CITY OF ROMULUS:

CITY OF SOUTHGATE; CITY OF TAYLOR; TOWNSHIP

OF VAN BUREN; CITY OF WYANDOTTE;

SOUTHGATE-WYANDOTTE RELIEF DRAINAGE DIS-

TRICT; AND ECORSE CREFK POLLUTION ABATE-

MENT DRAIN, Defendants.

CIVIL ACTION NO. 87-70992

UNITED STATES DISTRICT COURT FOR THE EAST-

ERN DISTRICT OF MICHIGAN

CONSENT DECREE

pb FBR Oe Ie 3

I JURISDICTION AND VENUE ................. 4

I] Pg. MS GRIER eS oy ae vee a 5

Il MRM oe oro 5o6 coo susks iach ss 6

IV. COMPLIANCE PROGRAM ..............cc00:. 9

V. SEIEVLATED PENALTIES .........cceccccce. 29

VI. PCR IIIRAEEE, vibe sh adisecdes (> exncde coerve BS

VI. REPORTING REQUIREMENTS .............. 37

Ps ee is cp conc cle es cacoe saves 40

IX. OE RR as pou vbsca daedacv’ 43

X. RPE ION ons cccccccvecceverccs 46

22b

XT RA ee a 47

XII. DIVISION OF RESPONSIBILITY

AMONG DEFENDANTS .............006:005 48

XII. APPROVAL AND FACILITY

COMATOTIOTION io Ci ane a 48

XIV PUMDING Sha ie ee 49

XV. OIE tccisse banechiousess cancers ane 50

XVI FAILURE OF COMPLIANCE .............6+: 50

XV NOTA PRR Ce oo ee, 50

XVIII NON-WAIVER PROVISIONS ................ 51

XIX CONTINGENT LIABILITY OF STATE OF

MICHIGAN |... s+: essa eee

XX | RESOLUTION OF COUNTERCLAIMS....... 53

XXl CORSO Ge ee

XXH MODIMICATION | ..5.06.00:3. Gla

XXII EFFECTIVE DATE AND CONTINUING

JURISDICTION OF THE COURT ............. 54

XXIV TERMINATION Aaa, 54

XXV . PUBLIC COMMENT oo 2s 56

WHEREAS, Plaintiffs, the United States of America,

on behalf of the United States Environmental Protection

Agency (“EPA”), and Frank J. Kelley, the Attorney General

for the State of Michigan, ex re!, Michigan Natural Resources

Commission et al., filed the Complaint herein on March 18,

1987, against Defendant Wayne County, Michigan (the

“County”), alleging that the County has violated the clean

Water Act, 33 U.S.C. § 1251 et seq. (the “Act”), the

23b

Michigan Water Resources Commission Act (“WRCA”),

MCL 321.1 et seq., and the terms and conditions of National

Pollutant Discharge Elimination System (“NPDES”) Permit

No. M10021156. WHEREAS, on October 26. 1988,

Plaintiffs filed the First Amended Complaint (“Complaint”),

which added claims alleging violations of the Act, 33 U.S.C.

§ 1251 et seq., the WRCA, MCL 321.1 et seq., and the terms

and conditions of NPDES Permit No. M1002] 156, against

the City of Allen Park, City of Belleville. 1 ownship of

Brownstown, City of Dearborn Heights, City of Ecorse, City

of Lincoln Park, City of River Rouge, City of Riverview, City

of Romulus, City of Southgate, City of Taylor, Township of

Van Buren, and City of Wyandotte (hereinafter referred to

collectively as the “Downriver Communities”), and against

the Southgate-Wyandotte Relief Drain Drainage District and

the Ecorse Creek Pollution Abatement Drain Drainage

District (hereinafter referred to collectively as the “Drainage

Districts’),

WHEREAS, Defendant Wayne County is a Charter

County Corporation organized and existing under the laws

and constitution of the State of Michigan.

WHEREAS, Defendant Wayne County owns and op-

crates a wastewater treatment facility located at 797 Central

Ave., in Wyandotte, Michigan known as the Wayne County-

Wyandotte Wastewater Treatment plant (the “WWTP” or the

“plant”) pursuant to a contract entered into by the Defendants

dated March 1, 1962, under Act 185. 1957.

WHEREAS, each of the other Defendants is either a

municipal corporation in Wayne County, Michigan, which

collects and delivers sewage to the plant or is a public corpo-

ration in Wayne County which collects and delivers sewage

to the plant.

24b

WHEREAS, the United States, the State of Michigan,

and all Defendants consent to the entry of this Consent De-

cree in full and final settlement of this action, without the ad-

judication of any issue or the taking of any testimony.

NOW, THEREFORE, and upon consent of the parties

hereto, it is hereby ORDERED, ADJUDGED AND DE-

CREED as follows:

I. JURISDICTION AND VENUE

|. This Court has jurisdiction over the parties and the

subject matter of this action under 28 U.S.C. SS 1331, 1345

and 1355, and Section 309 of the Act, 33 U.S.C. § 1319. The

Court has pendent jurisdiction over the State’s claims under

the WRCA, since the alleged violations of the WRCA arise

from a common nucleus of operative facts shared with the

Federal claims. The complaint states claims against the De-

fendants upon which the Court can grant relief under the Act

and the WRCA.

Il. APPLICABILITY

2. A. This Consent Decree shall apply to and be

binding upon the United States, on behalf of EPA, the State

of Michigan, on behalf of the Michigan Natural Resources

Commission and the Michigan Department of Natural Re-

sources (“MDNR”), and the Defendants and their agencies,

officers, directors, agents, servants, employees, successors

and assigns, and ali persons, firms and corporations in active

concert or participation with them.

B. Nothing contained in this Consent De-

cree shall be construed as a prohibition against transfer of the

Downriver Collection and Treatment System from the County

of Wayne to the Downriver Communities or to another entity,

ee ee a eee

pets ol ae

Sane aa SRR Rea AER SM RR ale gtk Nala ll ie eal ola al

Sain TUMOR esate cas CARA, Seas aed Va

25b

including an authority created for that purpose, for the con-

struction, Operation and maintenance of said System. Any

such transferee of the Downriver System will be a successor

of the County of Wayne for the purposes of this Consent De-

cree and the obligations issued thereunder.

€. Transfer by all Defendants. If the

Downriver Communities create an entity to undertake the

County’s obligations under the Decree, and the County trans-

fers its obligations under this Decree to any such new entity

or by any other method, the Downriver connunities (a/k/a

"transferrors"), as well as the transferee, must certify to plain-

tiffs that such entity or other transferee possesses the techni-

cal, managerial, and financial resources and expertise needed

to comply with the terms of this Decree. Such certifications

shall be enforceable by either Plaintiff under this Decree and

failure to provide reguired certification or failure in fact by

any transferee to comply with this Decree shall remain a vio-

lation of the Decree by the transferror(s) except the County of

Wayne which would no longer be liable under this Decree

and either Plaintiff may pursue the transferror(s) for any re-

lief, penalty, or enforcement allowed under the Decree.

D. The undersigned signatories for each Party

certify that, together, they: (1) are fully authorized to bind le-

gally such Party to the terms and conditions of this Consent

Decree, and (2) had the benefit of legal counsel in the course

of deciding to sign this Decree.

[il. DEFINITIONS

3. Unless otherwise defined herein, terms used in

this Consent Decree shall have the meanings given them in

the Clean Water Act and the Michigan Water Resources

Cormnission Act, in the regulations promulgated thereunder,

26b

and in NPDES Permit No. M10021156, including any revi-

sions, modifications and successors thereto.

For purposes of this Consent Decree the following

definitions shall apply:

A. | “Bypass” means the intentional diversion of

waste streams from any portion of a sewage collection or

treatment system, except as authorized by an applicable

NPDES Permit

B. “Complaint” means the Amended Complaint

filed in this action on October 26, 1988.

C. “Combined sewage” means a combination of

wastewater from residences, businesses, institutions and in-

dustries to which is (by design) intentionally added surface or

storm waters.

D. “Defendants” means Wayne. County and the

Downriver communities.

E. “Downriver Collection and Treatment System”

means the pipes and structures, including channels, conduits,

manholes, pumping stations and appurtenances, and treat-

ment facilities, required to collect, transport and treat domes-

tic and industrial wastes of the Downriver Communities that

are tributary to the WWTP and including the WWTP as well

as the “Local Sewer System.”

¥ “Downriver Cormnunities” means the follow-

ing thirteen communities or entities, plus the two following

drainage districts, all of which are Defendants in this action:

the City of Allen Park, City of Belleville, Township of

Brownstown, City of Dearborn Heights, City of Ecorse, City

CASH 2 WB aoeb DRA AT deca SA WASORS valiant y ab ty

27b

of Lincoln Park, City of River Rouge, city of Riververview

City of Romulus, City of Southgate, City of Taylor, Town-

ship of Van Buren, City of Wyandotte, Southgate- Wyandotte

Relief Drainage District, and Ecorse Creek Pollution Abate-

ment Drain.

G. “Dry weather flows” means wastewater flows

(domestic, industrial, corrunercial and institutional), includ-

ing infiltration, except those defined as wet weather flows un-

der this Decree.

H. “Enhanced primary treatment” means primary

treatment enhanced through preaeration or mechanical floc-

culation with chemical addition,

I, “Excessive”, when used in reference to infiltra-

tion and inflow, means the quantities of infiltration/inflow

which can be economically eliminated from a sewer system

by rehabilitation, as determined by a cost-effectiveness analy-

sis that compares the costs of correcting the

infiltration/inflow conditions with the total costs of transpor-

tation and treatment of the infiltration/inflow.

J. “Headworks” means wastewater treatment

plant preliminary treatment works. including pumping,

screening and grit removal.

K. “Infiltration” means the water entering a sewer

system and service connections from the ground, through

such means as, but not limited to, defective pipes, pipe joints,

connections, and manhole walls.

Li. “Intlow" means the water discharged into a

sewer system, including service connections, from such

sources as, but not limited to, roof leaders, cellars. yard and

area drains, foundation drains, cooling water discharges,

drains from springs and swampy areas, manhole covers, cross

connections from storm sewers and combined sewers. catch

basins, storm waters, surface run-off, street wash w aters, and

drainage.

28b

M. “Infiltration/Inflow” and “I/IT” mean the total

quantity of water from both infiltration and inflow.

N. “Local Sewer System” means the portion of

the Downriver collection and Treatment System including

pipes and structures, channels, conduits, manholes, pumping

stations and appurtenances, for the collection and transport of

domestic and industrial wastewaters that are tributary to the

Downriver Collection and Treatment System, but which are

owned and operated by entities other than Wayne County.

O. “NPDES Permit” means National Pollutant

Discharge Elimination System Permit No. M10021156, is-

sued to Wayne County in its own right and as agent for the

Downriver Communities, and any NPDES permit issued to

any other party Defendant to this civil action concerning

treatment or discharge of wastewater in the Downriver Col-

lection System, and all revisions, modifications and succes-

sors to any of the NPDES permits covered by this definition.

P. “operational” means the stage where construc-

tion has been completed and facilities have been put into op-

eration and are meeting their design standards and any

applicable effluent or other limitations.

Q. “overflow”, “Combined Sewer overflow”, and

“CSO”, each means the discharge of combined sewage to a

surface water, or the discharge of water from a pipe or con-

duit used for transporting combined sewage for treatment.

R. “Plaintiffs” means the United States, on behalf

of EPA, and the State of Michigan, on behalf of the Michigan

Natural Resources Commission and the Michigan Depart-

ment of Natural Resources (“MDNR")..

S. “Primary treatment” means the quiescent sedi-

mentation of wastewater with skinning, collection, and re-

moval of settled sludge, floating debris and grease.

}

;

29b

T, “SSES” means Sewer System Evaluation Sur-

vey, a report specifying the elimination of infiltration and in-

flow that is cost effective, and the sewer rehabilitation and

other improvements necessary to eliminate this infiltration

and inflow,

U, “Secondary treatment” means biochemical

treatment of wastewater after primary treatment using bacte-

ria to consume the organic waste as set forth in 40 CFR Part

133.

V. “Unpermitted”, when used in reference to by-

pass and overflow, means bypass and overflow events that

are not expressly allowed under a NPDES permit or under 40

CFR 122.4l(m).

W. “Upset” means an exceptional incident in

which there is unintentional and temporary non-compliance

with technology based permit effluent limitations because of

factors beyond the reasonable control of the permittee. An

upset does not include non-compliance to the extent caused

by operational error, improperly designed treatment facilities.

inadequate treatment facilities, lack of preventive mainte-

nance, or careless or improper operation. See 40 CFR Section

122.41(n).

X. “Wayne County” means the County of Wayne,

a Michigan charter County Corporation acting pursuant to the

authority of the Wayne County Charter and applicable State

law,

¥ “Wet weather flows” means wastewater flows

(domestic, industrial, commercial and institutional), including

infiltration and inflow, that occur as a result of a precipitation

or snow melt event. For purposes of this Decree, wet weather

flow shall include the period of time after the end of the rain-

fall event during which the system continues to transport or

treat rainfall induced flows.

30b

IV. COMPLIANCE PROGRAM

4, Completion of all Planning, Design, Construc-

tion, and Performance Activities Specified in Attachment A.

lhe facilities recommended in the multi-volume, project plan

dated May |, 1993, titled “Wayne County Downriver Collec-

tion System,” in combination with Riverview's separately-

submitted plan, entitled “Project Plan for Sanitary Sewer Im-

provements, City of Riverview” (collectively known as the

“Project Plan”), are deemed submitted to Plaintiffs and

hereby approved by Plaintiffs, and Defendants shall, as set

forth herein, take all measures necessary to assure compliance

with the Project Plan and this Consent Decree, Defendants

acknowledge that this approval does not constitute approval

for State Revolving Fund (“SRF”) loan assistance under Act

317, 1988, or approval of plans and specifications under Act

98, 1913, and Defendants acknowledge that this approval,

like all others under the Decree, is governed by paragraph no.

51 herein. Defendants shall commence and complete all ac-

tivities -- including but not limited to planning, design, reha-

bilitation, contracting, construction, and performance

certification -- listed in Attachment A hereto (a/k/a “Wayne

County Downriver Collection and Treatment System; Engi-

neering Project Schedule; December 15, 1993,”) and, except

as specified differently in the text of this Decree, Defendants

shall cormnence and complete all the activities listed in At-

tachment A by the deadlines set in Attachment A. In some in-

stances items listed in Attachment A are described in more

detail in the Consent Decree. In those instances, Defendants

shall commence and complete all activities by the deadlines

established in this Decree. If in any instance a deadline im-

posed in the text of this Decree conflicts with deadline estab-

lished by Attachment A, the date set in the text of this Decree

shall control. If in any instance Attachment A provides for

some activity not only a “start” or “finish” date but also a

“late start” or “late finish” date, the earlier date shall be

iIb

deemed the deadline imposed by the Decree, unless the text

of the Decree provides otherwise

‘, Sewer Rehabilitation and Elimination of I/

A newer System Evaluation Surveys

(SSES) and Flow Monitoring Reports. Pursuant to paragraph

no. 11 below, Plaintiffs shall review all SSES’s submitted by

Detendants, all of which have been submitted.

B. After SSES Approval. Within 180 days

after approval of the SSES's, Defendants shall submit to

Plaintiffs proposed Rehabilitation Plans and Specifications

lor Wayne County and the following Downriver Communi

ties: City of Allen Park, City of Belleville, lownship of

Brownstown, City of Dearborn Heights, ( ‘ity of Ecorse, City

of Romulus, City of Southgate, City of Taylor, and lownship

of Van Buren. The Rehabilitation Plans and Specifications

shall be consistent with the recommendations set forth in the

approved SSES Reports, and shall eliminate excessive [/I.

G On or before October 1, 1995, Defen-

dants shall complete the facilities and measures described in

the approved Rehabilitation Plans and Specifications, and

shall provide to the Plaintiffs, for each Defendant listed in

subparagraph B of this paragraph, (1) a written certification

by a Professional Engineer that all the facilities and measures

contained in the Rehabilitation Plans and Specifications have

been completed in accordance with the provisions of the

Plans and Specifications and this Consent Decree and, (2)

upon request, supporting documentation.

D), On or before April 1, 1995, Defendants

shall submit to Plaintiffs a proposed Project Certification

Flow Monitoring Program (“FMP”), including a cost estimate

32b

and schedule for implementation of the FMP. The FMP shall

be developed to measure remaining flows and provide input

to the Downriver Hydraulic Model to verify or refine the pro-

posed size of the Storage-Transport system (paragraph no. 7

below). Upon approval by Plaintiffs, Defendants shall imple-

ment the FMP.

E. On or before April 1, 1996, Defendants

shall submit to plaintiffs a Report identifying in detail the

findings of the completed FMP and making recommendations

as to the sizes necessary for the Storage-Transport System to,

at a minimum, transport all wastewater up to the design flow

of the Downriver Collection and Treatment System for treat-

ment without bypass or overflow to achieve and maintain

continuous compliance with NPDES Permits, Clean Water

Act and WRCA.

6. Upgrade of Wayne County-Wyandotte _

Treatment Plant (“WWTP”)

A. Wayne County shall, on or before Feb-

ruary 1, 1994, submit to Plaintiffs a proposed Wayne County-

Wyandotte WWTP Improvement/Expansion Program

(“WWTP Improvement/Expansion Program”) which shall set

forth how Wayne County shall achieve, among other things,

the following:

(i) Installation of improvements to

the high purity oxygen system

so as to meet final NPDES dis-

solved oxygen (DO) and phos-

phorus limits by May 1, 1994.

To accomplish this require-

ment, Wayne County shall, at a

minimum, renovate the existing

pressure swing absorption sys- |

tem by May 1, 1994.

(11)

(ili)

(iV)

(Vv)

33b

An evaluation of the new chlo-

rine flash mix eductor system

and a determination of the ef-

fectiveness of the mixer on dis-

infection and total residual

chlorine (TRC) to be completed

and submitted to Plaintiffs in a

report by January 31, 1994.

(See subparagraph 6.B below.)

At a minimum, completion of

installation of WWTP Dechlori-

nation Facilities for TRC by

June 1, 1996, and achievement

of a TRC of 0.5 mg/1 by June 1,

1996, Corrunencing June 1,

1996, the period of disinfection

specified in the final NPDES

permit limits shall be in effect.

Improvements to the chlorine

contact tank to meet final

NPDES limits for TRC by Octo-

ber 1, 1999.

Improvements to the WWTP to

increase reliability and perform-

ance of the facilities. Wayne

County shall meet final CBOD

& TSS NPDES permit effluent

limits on or before October 1.

1997,Wayne County shall

complete construction of

WWTP improvements to the ex-

isting facilities on or before Oc-

tober 1, 1997 to increase the

performance reliability of the

WWTP. These improvements

shall, at a minimum, include

mene ee oe eee

(vi)

(vii)

34b

improvements to the headworks,

solids handling facilities, and

maintenance facility.

Establish secondary treatment

capacity to provide secondary

treatment to a minimum of 100

MGD, with the goal of 115

MGD, by October 1, 1999. To

achieve this requirement, on or

before October 1, 1994, Wayne

County shall, at a minimum,

conduct a field stress test of the

secondary treatment facilities at

the WWTP for purposes of de-

termining the existing secon-

dary system capacity.

Following these tests, a basis of

design shall be prepared recom-

mending any necessary modifi-

cation to the Project Plan.

Provide WWTP facilities ex-

pansion including Chemically

Enhanced Primary Treatment

(C.E.P.T.) facilities to achieve

final NPDES limits by October

1, 1999, and an overall treat-

ment capacity for flows up to

146.5 MGD by October 1,

1999. To achieve this require-

ment, on or before October 1,

1999, Wayne County shall, at a

minimum, construct the expan-

sion to the WWTP needed to

consistently provide chemical]

enhanced primary treatment o

flows up to 146.5 MGD. Fur-

ther, by October 1, 1999, De-

fendants shall, at a minimum,

construct chemically enhanced

Pee ee matey pate

35b

treatment facilities, yard piping,

pump station renovation,

chemical feed equipment, and

an additional primary clarifier.

(viii) Provide for preliminary treat-

ment (screening, grit removal

and disinfection) of all flows

over 146.5 MGD, and meet all!

NPDES permit limits and con-

ditions, by October 1, 1999, To

achieve this requirement, on or

before October 1, 1999, Wayne

County shall, at a minimum,

construct measures to provide

such preliminary treatment and

discharge of flows in excess of

146.5 MGD. Further, Wayne

County shall, at a minimum,

construct a headworks facility,

and yard piping in accordance

with required approvals, and

make changes in plant opera-

tion so that only eine per-

mitted under its NPDES permit

occur. Wayne County shall

construct an outfall to the De-

troit River, as described in Sec-

tion Four of the Project Plan,

unless an alternative solution is

proposed by all the Defendants

and the Plaintiffs then approve

the proposed alternative

solution.

In the WWTP Improvement/Expansion Program, Wayne

County also shall include a schedule for completion of each

measure and each component within each measure. and shall

also include detailed cost estimates.

36b

B. Wayne County shall complete the chlorine re-

port referenced in paragraph 6.A (ii) above and submit it to

Plaintiffs by January 31, 1994. The report also shall include a

comparative analysis of the disinfection provided by the con-

tact in the outfall pipe, and of a sample held in the laboratory

for the similar contact period. The sampling procedures for

determining compliance with final permit limits for fecal

coliform shall be determined by Plaintiffs. In addition, in this

report Wayne County shall propose for approval by Plaintiffs

an interim total residual chlorine (TRC) limit, which Defen-

dants shall comply with commencing May 1, 1994, and con-

tinuing until the Dechlorination Facilities are completed.

c. Within thirty (30) days following the fixed

deadline for each required submission or activity as described

in the WWTP improvement/Expansion Program, Defendants

shall provide to plaintiffs (1) a written certification by a Pro-

fessional Engineer that all provisions specified in subpara-

graph nos. 6.A (i), (ii), (iii). (iv), (v), (vi), (vii), and (viii)

above herein have been completed and, (2) upon request by

Plaintiffs, supporting documentation. Written Certification

shall include the dates of completion of each requirement in

the WWTP Improvement/Expansion Program.

D. On or before October 1, 2000, Defendants shall

complete all construcuon and improvements set forth in the

WWTP Improvement/Expansion Program and provide to

Plaintiffs written. certification by a Professional Engineer of

this fact.

7. Regional Storage - Transport System

A. Defendants shall design and. build a regional

storage-transport system and various local collection system

relief sewer facilities in accordance with the approved FMP

Report and the provisions specified below. The storage-

ek eld

37b

transport system and relief facilities shall be of sufficient ca-

pacity such that the sewage will be transported for treatment

in compliance with the requirements of any applicable

NPDES permits, the Act, and the WRC A.

B. On or before October 1, 1996, Defendants shall

submit to Plaintiffs a Basis of Design for the final design of

the Wayne County Storage-Transport System Improvement

and Local Relief Program (“STP”), consistent with the ap-

proved FMP Report. The plan for the final design of the STP

shall include a cost estimate, a detailed description of each

component, and a schedule to complete each measure. The

schedule shall provide for commencement of construction on

or before October 1, 1998, and completion of construction by

no later than October 1, 2001. The STP shall be consistent

with the conclusions set forth in the FMP, including any

modifications directed by Plaintiffs, and shall identify STP

facilities to be constructed including:

(i) Storage tunnel pipe, sewers, diversion

structures from the existing collection

systems and flushing mechanisms for

solids removal;

(i1) On-line detention basins:

(iii) Local collection system relief sewers

where necessary; and

(iv) New Pump Station at the terminus of

the storage tunnel pipe.

C. Within one year after completion of

construction required under subparagraph A above, Defen-

dants shall provide to Plaintiffs written certification, by a pro-

fessional Engineer, that construction of the STP

improvements has been completed and that the collection and

38b

storage-transport systems are completely operational and per-

form as designed. Written certification shall include the dates

of completion of each requirement in the STP and any sup-

porting documentation requested by Plaintiffs.

8. Final Project Certification or CAP. On or before

October |, 2002, Defendants shall provide written certifica-

tion (reviewed and approved by a Certified Professional En-

gineer) that all construction and other improvements required

by this Consent Decree have been completed, are fully opera-

tional and that Defendants can now achieve full compliance

with the final effluent limits in the NPDES Permit, and all

other provisions of the NPDES permit, the clean Water Act

and the Water Resources Commission Act. If defendants can-

not certify such full compliance, Defendants shall, on or be-

fore October 1, 2002, propose a Corrective Action Program

(CAP) which identifies the additional facilities, equipment,

and improvements, with associated costs and an expeditious

implementation schedule, which Defendants will undertake to

achieve full compliance. In the proposed CAP Defendants

shall indicate which final effluent limits are not as yet achiev-

able and propose interim limits (if necessary) until the CAP is

completed. Upon approval of the CAP by the Plaintiffs, De-

fendants shall implement the CAP pursuant to the approved

schedule.

9. Effluent Discharge Limits

A. Interim. Commencing upon effective

date of this Decree and continuing through the deadlines for

meeting final limits as specified in paragraph no. 6, Defen-

dants shall comply with the interim effluent limits specified

in Attachment B hereto, which is incorporated herein by ref-

erence. As to any parameters listed in Attachment B but not

specifically addressed in paragraph no. 6, Defendants shall

39b

comply, upon the effective date of this Decree. with the in-

terim effluent limits specified in Attachment B.

B. Final Limits. Commencing on the dead-

lines specified in paragraph 6 for DO, phosphorus, CBOD,

[SS and TRC, and commencing October 1, 2002. for all

other parameters (or earlier or later as modified by paragraph

8), Defendants shall maintain compliance with all final efflu-

ent limits then in place under any NPDES Permit applicable

to the WWTP. In the case of NPDES permit limits that have

been appealed under any applicable provision of federal or

state law where such law allows such appeal, and where the

result of such appeal is imposition of a stay of the effluent

limit(s) by a court or administrative agency jurisdictionally

competent to issue such stay, the stayed limit(s) shall not be

considered final for purposes of this Decree until such Stay

has been lifted or otherwise dissolved. In such a situation.

Defendants shall continue to comply with the applicable in-

terim effluent limit. Pursuant to paragraph 8, the October 1,

2002, date for compliance with all other final effluent limits

(1.e., other than DO, phosphorus, CBOD, TSS and TRC) is

revised to the date when the Final Project Certification is sub-

mitted if such submission occurs prior to October 1, 2002:

the October 1, 2002, compliance date shall be extended pur-

suant to the terms of any approved CAP.

10. | Wastewater Treatment Bypasses and Their

Elimination

A. No Dry Weather Bypasses. Immedi-

ately upon lodging of this Consent Decree, Defendants are

prohibited from any and all bypassing of any aspect of the

Downriver Collection and Treatment System during dry

weather periods.

40b

B. Best Efforts to minimize interruption

of WWTP operations and any potential or resulting. bypass,

overflow, effluent exceedance or other harm, In conducting

the work required by this Decree, Defendants may from time

to time find it necessary than October 1, 2002, -- in which

case such bypass must be eliminated by that earlier date and

failure to do so shall constitute violation of this Decree. For

those bypass points allowed under this subparagraph, Defen-

dants must to the “maximum extent practicable” minimize

bypasses from these bypass points.

D. Bar on Bypasses After September 30,

2002: Commencing October 1, 2002, and at all times thereaf-

ter, Defendants shall not allow any bypass of any untreated

wastewater, except for emergency bypasses allowed pursuant

to 40 C.F.R. Section 122.41(m), or as further specified in

subparagraphs F.(i), F.(ii), or F.(iii), and subject to the condi-

tions and entitlements contained in those subparagraphs or

elsewhere in this paragraph 10. The decision to allow an

emergency bypass shall be made only by the central authority

pursuant to subparagraph G. below.

E. Duty to Remove or Seal Bypass Points.

On or before October 1, 2002, Defendants shall remove or

seal all unpermitted bypass points in the Downriver Collec-

tion and Treatment System, except those bypass points al-

lowed under the requirements, conditions, and entitlements of

subparagraph F. below.

F. Bypass Points Allowed and Conditions

for Allowance and Use After September 30, 2002, Per Sub-

paragraph 10.D. Subject to the conditions set out herein, De-

fendants may leave in place emergency bypass points on the

Downriver Collection and Treatment System. The conditions

and requirements for selection of these bypass points are set

out herein:

(1)

(ii)

(ili)

Bypass Points to Protect Treatment Plant and Down-

river Collection and Treatment System. Based on

flow data and any other technically pertinent infor-

mation (either extant or developed by Defendants

for purposes of this Decree), Defendants may use as

emergency bypass points on the Downriver Collec-

tion and Treatment System the discharge points

identified as nos. 8.0 and 10.1 in Attachment C to

the Decree. These two bypass points may be used

for the exclusive purposes of saving human life,

protecting public health, or mitigating severe dam-

age to the Downriver Collection and Treatment Sys-

tem, in the event of inflows in excess of the

capacities for which the Downriver Collection and

Treatment System will be upgraded by the design

and construction provided for under paragraph num-

bers 4 through 7 of this Decree. Any bypass using

any of the bypass points specified in this subpara-

graph F.i constitutes a bypass entitling Plaintiffs to

stipulated penalties under the stipulated penalty pro-

visions set out in the Decree, including but not lim-

ited, to Paragraph 19.

Nothing in this Decree shall be construed to require

Defendants to seal any of the emergency, sanitary

equalization basin bypasses identified in Attach-

ment C to the Decree as location nos. 2.0, 3.5, 4.0.

and 9.0 su long as such bypass point has been or is

approved in the course of issuing the necessary Act

98 construction permit for the sanitary equalization

basin that contains the bypass.

The emergency relief bypass points identified in At-

tachment C to the Decree as location nos. 2.1, 3.0,

and 3.1 may be maintained and used on the terms

set forth in Paragraph 10 of the Decree, including

42b

the following: these bypass points may be used for

the exclusive purposes of saving human life, pro-

tecting public health, or mitigating severe damage

to property. Any bypass using any of the bypass

points specified in this subparagraph F iii consti-

tutes a bypass entitling plaintiffs to stipulated penal-

ties under the stipulated penalty provisions set out

in the Decree, including but not limited to Para-

graph 19.

(iv) Any emergency bypass point allowed under sub-

paragraph F must be monitored, operated, and oth-

erwise handled in compliance with subparagraph G

below.

G. | Onor before October 1, 2002, Defen-

dants shall complete and implement the following require-

ments, and submit a report detailing the achievement of these

items:

(i) Designate a (single) central authority to

make the determination to operate any

and all bypasses;

(ii) Implement real time monitoring to dis-

play the status of the Downriver Tunnel

Sewer System to the central authority;

and

(iii) Prepare an evaluation of new and inno-

vative technology which could be im-

plemented in order to eliminate or

further reduce the need for maintaining

emergency bypasses.

43b

H. Nothing in this Decree shall be con-

strued to require that Defendants seal any Combined Sewer

Overflow (“CSO”) point including those identified in Attach-

ment C to this Decree as Nos. 1.0, 1.1, 6.0, 7.3, 10.0, 10.2.

and 11.0, during any time such point is permitted under a fi-

nal, effective, and valid NPDES Permit issued to any of the

Defendants, nor shall anything in the Decree be construed to

alter any independent requirement of law, regulation, order,

or permit directed at the control, operation, use, or closure of

any CSO.

11. Review of Plans and Reports

A. Plaintiffs shall review as expeditiously

as practicable all plans submitted by Defendants and shall ap-

prove, or disapprove and recommend modifications and/or

make comments, to each. Such plans and reports to be re-

viewed, include, but are not limited to: SSES’s, to ensure that

they, inter alia, address the results of the I/I Flow Analyses

that Defendants previously submitted to the State, including

the identification of locations and sources of I/I, and the most

cost-effective means to eliminate excessive I/I; Rehabilitation

Plans and Specifications; certifications of Completion of Im-

plementation of Rehabilitation Plans; the FMP; FMP Re-

ports; the proposed WWTP Improvement/Expansion

Program; the STP Plan; and any Corrective Action Plan.

MDNR shall have lead responsibility for providing Defen-

dants with comments from the Plaintiffs on such plans, and

unless indicated otherwise by MDNR or in a separate written

response from EPA, MDNR’s response shall be construed as

reflective of the Plaintiffs’ response. After receipt of any

comments, modifications or notification of reasons for disap-

proval by plaintiffs, and except as provided in paragraph D

below, Defendants shall expeditiously submit to Plaintiffs re-

vised plans or other documents which incorporate the modifi-

cations and address the comments received from Plaintiffs.

44b

B. Defendants shall submit these revised

plans and other documents by the date set forth in Plaintiffs’

comments or notification. If Defendants believe that the

specified time frame is insufficient, they may seek from

Plaintiffs additional time, based on a showing that such addi-

tional time will provide for completion as expeditiously as

practicable under the circumstances.

When each plan is approved, Defen-

dants shall carry out each and every provision of such plan in

accordance with the schedule therein. To the extent author-

ized in writing by Plaintiffs, Defendants may complete any

portions of the plans approved by Plaintiffs prior to approval

of the full plan.

D. If Defendants object to any disapproval,

comment or recommended modification by Plaintiffs to any

plan or other document required pursuant to this Consent De-

cree, then within thirty (30) days of receipt of a Plaintiff's

comment or reconmended modification, Defendants may pro-

pose to Plaintiffs an alternative.

If Plaintiffs reject the proposed alternative, then Defendants

shall either incorporate Plaintiffs’ modification or other

change or, within twenty (20) days of such rejection, file with

the Court a petition for dispute resolution pursuant to Section

X. below to determine the appropriate revision to the plan. In

any such dispute, Defendants shall bear the burden of estab-

lishing that their proposed alternative should be adopted in-

stead of Plaintiffs’ position.

12. Operation and Maintenance

A. The Defendants shall maintain and operate the

WWTP and the Downriver Collection and Storage System to

Yee

45b

minimize equipment breakdowns. interruptions of treatment.

and bypasses and overflows.

B. The parties recognize that interruptions in the

operation of the plant may be necessary during the period

when improvements to the plant are being made. Wayne

County shall make best efforts to schedule any necessary in-

terruptions to minimize the possibility and extent of any by-

pass, overflow, exceedances of effluent limitations, and

adverse environmental impacts.

C, Not later than ninety (90) days after the award

of contracts for construction on the WWTP Improvements

under paragraph no. 6 above, the County shall submit to

Plaintiffs for their approval a Plan for Construction. That

Plan shall identify the interruptions in treatment anticipated

throughout the construction activities, and measures to mini-

mize the number and duration of any interruptions and any

adverse impact of any interruption. Defendants shall modify

the Plan to address any comments received from Plaintiffs.

D. During construction, the County shall give at

least five (5) days notice to the MDNR of all planned inter-

ruptions of plant operations, by telephone call to the MDNR

Southeast Michigan District Office at (3 13) 953-1451, or, in

the alternative, at (313) 953-024 1, or, in the event neither of

the preceding numbers effects the necessary communication,

at any alternate number specified for that purpose by the

MDNR from time to time. A written report confirming the in-

terruption shall be delivered to EPA and MDNR within ten

(10) days of any bypass or interruption.

E. Nothing in this Section, including notification

under this Section, will excuse any failure by Defendants to

comply with any requirement of this Decree.

46b

F. Defendants shall submit to Plaintiffs for their

approval proposed Operation and Maintenance (“O & M”)

Manuals in accordance with the following schedule:

(i) October 1, 1999: O & M Manual for

the Wayne County-Wyandotte WWTP;

and

(ii) July 1, 1998: O & M Manuals for the

Local Sewer System and all other por-

tions of the Downriver Collection and

Treatment System.

G. Each of the O & M Manuals shall include, but

not be limited to, the following: mandatory training, routine

inspections, replacement of parts, and operation procedures.

H. Upon approval or modification by Plaintiffs,

Defendants shall implement the O & M manuals in accor-

dance with the schedules and other provisions therein.

I. Within thirty (30) days after approval of an O

& M Manual, Defendants shall submit to Plaintiffs for their

approval O & M Work Plans. In addition, on or before Octo-

ber | of each year, Defendants shall submit to Plaintiffs for

approval updated Work Plans containing the plan for imple-

mentation of the O & M program during the following calen-

dar year.

J. The Work Plans shall include, inter alia, the

following:

(i) a schedule for the systematic and regu-

lar inspection of the Downriver Sewage

Collection and Transport System, to en-

sure that the integrity of the system is

ee ee ee EE ee a gh Re Oe

pa ater A ic I OT aR a

47b

maintained and that it is operated in op-

timal conditions;

(ii) a schedule and method for rehabilita-

tion to remove all excessive

infiltration/inflow sources found during

the inspections;

(ili) identification of the mechanism that

will be used to ensure that sufficient

funds are available at all times to cor-

rect excessive I/I sources and/or struc-

tural defects within the sewage

collection and transport system;

(iv) development of a projected annual O &

M budget for the next five years includ-

ing projected funding sources; and

(v) development of an operational p!an

which includes a system inventory, ad-

ministrative controls, system mainte-

nance, and operational control strategy.

K. Upon approval by Plaintiffs, Defendants shall

implement the O & M Work Plans in accordance with the

schedules and other provisions therein.

L. On or before October |, 1996, Defendants shall

develop and submit to Plaintiffs a proposed System Monitor-

ing Program (SMP). The purposes of the SMP include but are

not limited to:

(i) Providing means to measure individual

community flow contributions and to

monitor community flows with respect

to allocated capacities in the facilities;

48b

(ii) Providing means to measure flow and

provide input to the Downriver Hy-

draulic Model on an annual basis to

verify and ensure the effectiveness of

the sewer rehabilitation program;

(iii) Providing means to alert the WWTP

operators of levels which indicate a po-

tential for system

overflows/bypasses;

(iv) Providing means to correlate clima-

tological data and the systems’ re-

sponses to wet weather events,

including events involving an overflow

or bypass.; and

(v) Providing means to track individual

commun: iy and County flow contribu-

tions for issuance of Act 98 sewer con-

struction permits.

M. Defendants shall submit to Plaintiffs a sum-

mary report of the SMP data annually or at such other inter-

vals as the parties determine necessary. Upon completion of

the construction required under paragraph nos. 5 - 7, Defen-

dants shall submit to Fiaintiffs a summary report of the SMP

data at least once per month. If any bypass occurs, an Event

Report shall be prepared summarizing the reasons for the oc-

currence and supporting climatological and other documenta-

tion. Submittal of a report shall not excuse any bypass or

overflow in violation of any NPDES permit, this Consent De-

cree, the Clean Water Act or the Water Resources Commis-

sion Act.

V. STIPULATED PENALTIES

49b

13. Accrual, Demand, and Timing of Payment.

Within 45 days receiving a written demand from either Plain-

tiff, Wayne County shall pay stipulated penalties imposed un-

der this Decree and addressed by the written demand.

Stipulated penalties under this decree begin to accrue on the

first day of violation, and accrue regardless of whether or

when Plaintiffs demand payment, but become due only upon

written demand by either Plaintiff as specified above. Any

written demand by either Plaintiff for stipulated penalties

shall be sent to each person or office listed in attachment D to

this Decree.

14.

Interim Effluent Limits. Commencing on the

lodging of this Consent Decree for all parameters except fecal

coliform and TRC, and commencing July 1, 1996 for fecal

coliform and TRC, if defendants fail to comply with any ef-

fluent limitation set forth by this Consent Decree in Attach-

ment B hereto, Wayne County shall pay stipulated penalties

as set forth in the table below for violation of each parameter.

Violation for |5 to 25% over |26 to 99% %100 or more

each interim limit jover interim [over interim

parameter limit limit

Daily Effluent |$400 per day {$1,500 per | $2,000 per

day day

7-day average |$1,000 per [$4,000 per $5,000 per

week week week

30 day $2,000 per ($7,500 per ($10,000 per

average month month month

15. Final Effluent Limits. If Defendants fail to

comply with any final effluent limitations by the dates set

50b

forth in Paragraph 9), Wayne County shall pay stipulated pen-

alties as follows for violation of each parameter:

Violation of Each Parameter Penalty

Daily Effluent Limitation $2000 per day

7-Day Average Limit $5000 per week

30-Day Average Limit $10,000 per month

16. Deadlines Related to Paragraph 7 Regional

Storage Transport Obligations that are Subject to Stipulated

Penalties. If defendants fail to meet the deadlines set forth be-

low that relate to the obligations of paragraph 7 of this De-

cree, Wayne County shall pay stipulated penalties as follows:

A. For failure to initiate “Segment 1, Community

Sewer Rehabilitation, Certification Flow

Monitoring Program,” pursuant to paragraph 5

requirements on or before September 1, 1995,

stipulated penalties shall apply as follows for

eacn day such initiation was delayed or

untimely:

Period of Failure to Comply Penalty Per Day of

Noncompliance

Ist to 15th da $ 1500 per day per violation

16th to 30th day $ 2500 per day per violation

after 30 days $ 4000 per day per violation

B. For each day after October 1, 1998, on which

the physical, on-site construction required un-

der paragraph 7 has not commenced, stipulated

penalties shall apply as follows:

WOR ses

i Tae

Slb

Period of Failure to Comply Penalty Per Day

of Noncompliance

Ist to 15th day $ 1500 per day per

violation

5th to 30th day $ 2500 per day per

After 30 days

violation

$ 4000 per day per

violation

For each day after October 1, 2001, on which

all construction called for under paragraph 7

has not been in all respects completed, stipu-

lated penalties as follows:

Period of Failureto Comply Penalty Per Day of

Ist to 15th day Noncompliance

16th to 30th day $ 1500 per day per violation

After 30 days $ 2500 per day per violation

17.

$ 4000 per day per violation

Deadlines Related to WWTP Obligation (Para-

graph 6 of this Decree) that are Subject to Stipulated Penal-

ties. If Defendants fail to meet the deadlines set forth below,

Wayne County shall pay stipulated penalties as follows:

If defendants fail to submit to plaintiffs com-

pleted, substantively adequate documents

called for under Paragraph 6.A, 6.B, or 6.C,

stipulated penalties shall apply as follows for

each day such document was submitted un-

timely or remains in an substantively inade-

quate state:

52b

Period of Failure to Comply Penalty Per Day of

Ist to 15th day pa acompliance ne

16th to 30th day 1500 per day per violation

After pe days in $ 2500 per day per violation

rian $ 4000 per day per violation

For each day after October 1, 1997, on which the

phy sical, on-site construction required by the approved

WWTP Improvement/Expansion Program has not com-

menced, stipulated penalties as follows:

Period of Failure to Comply Penalty Per Day of

Ist to 15th day Noncompliance

16th to 30th day $ 1500 per day per violation

After 30 days $ 2500 per day per violation

$ 4000 per day per violation

S For each day after October 1, 2000, on which

all construction set out in the approved WWTP

Improvement/Expansion Program has not been

completed in all aspects, stipulated penalties

shall apply as follows:

Period of Failure to Comply Penalty Per Day of

Ist to 15th day Noncompliance

16th to 30th day $ 1500 per day per violation

After 30 days $ 2500 per day per violation

$ 4000 per day per violation

18. Incomplete, Inadequate, and/or Untimely Sub-

mittal of Reports Under Paragraph No. 30. If any report or

other submittal required under paragraph 30 is improper, ei-

ther because the report or other submittal is untimely or be-

cause such submittal fails to meet the substantive

requirements of that paragraph, Wayne County shall pay

stipulated penalties for each day such submittal was untimely

or substantively incomplete or inadequate, or remained

Tt ae

ROSA teh ce 36, RNS

rs hs

wate

Rs alii BNE AS TACT NS

53b

incomplete or inadequate, pursuant to the stipulated penalty

schedule set out below:

Period of Failure to Comply Penalty Per Day of Noncompli-

ance Lither in Substance or

schedule for Submission

Ist to 15th day $ 250 per day per

violation

16th to 30th day $ 500 per day per

violation

After 30 days $ 1000 per day per

violation

19. Bypasses. If there are any bypasses in violation

of subparagraph 10.A, 10.D, 10.E, 10.F, as well as any by-

passes under subparagraph 10.F entitling Plaintiffs to stipu-

lated penalties, Wayne County shall pay stipulated penalties

as follows:

Nu.mber of Days Penalty Per Day

of Any Bypass of Noncompliance

Ist to 20th day $ 2000 per day per violation

21st to 35th day $ 4000 per day per violation

After 35th day $ 5000 per day per violation

For counting the number of days of bypass for

stipulated penalty purposes, each location

where a bypass occurs shall be considered as a

separate and distinct bypass. For counting

“days” of bypasses, twenty-four hour periods

(where the twenty-four hour period is triggered

by time at which a bypass commences at any

location) shall be used rather than calendar

days. For purposes of calculating stipulated

penalties, the number of days of all bypasses

54b

shall accumulate under one running tally for

the life of the Decree.

20. If Defendants fail to complete the certification re-

quirement set forth in paragraph a or to submit a completed,

substantively adequate Corrective Action Plan by October 1,

2002, Wayne County shall pay a stipulated penalty of $1,500

per day until such time that the obligation is fully satisfied.

r 4H Within thirty (30) days after any violation or po-

tential violation for which stipulated penalties accrue or may

accrue under this Decree (regardless of whether Defendants

believe that no stipulated penalty is due), Defendants shall

provide Plaintiffs written notification of the violation or po-

tential violation, and the stipulated penalties accrued or po-

tentially accrued (including a citation to the Decree paragraph

violated or potentially violated). Written notification under

this paragraph shall be independent of and in addition to any

other reporting requirement under this Decree.

22. All stipulated penalties due and payable under

this Consent Decree shall be paid by cashier’s or certified

check, or by electronic fund transfer in accordance with the

procedures set out paragraph 29 below. Of the payment, fifty

percent shall be paid to the State of Michigan, and fifty per-

cent to the United States.

23. Payments to the State shall be in the manner set

forth in paragraph no. 27, but provided that no installment or

time payment options apply to payment of stipulated penal-

ties and any untimely payment of stipulated penalties shall

accrue interest under 28 U.S.C. section 1961 for period from

the date the penalties were due until the time of actual

payment.

55b

24. Payments to the United States shall be payable

in the manner set forth in paragraph 27 below, but provided

that no installment or time payment options apply to payment

of stipulated penalties and any untimely payment of stipulated

penalties shall accrue interest under 28 U.S.C. Section 1961

for period from the date the penalties were due until the time

of actual payment.

25. The stipulated penalties provided for in this

Decree shall be in addition to any other remedies or sanctions

available to Plaintiffs by reason of Defendants’ failure to

comply with the requirements of this Decree, any applicable

NPDES Permit, the Clean Water Act, the WRCA, or the

regulations promulgated under the Act or the WRCA. The

United States and the State each reserve, without limitation,

their rights to seek monetary and injunctive relief pursuant to

the Act, the WRCA, or the contempt powers of the Court.

However, in any instance where the United States has de-

manded and timely received payment of stipulated penalties

so demanded, the United States will not then seek additional

civil penalty for that same violation under the civil penalty

provision of the federal Clean Water Act. Similarly, in any

instance where the State of Michigan has demanded and

timely received payment of stipulated penalties so demanded,

the State will not then seek additional civil penalty for that

same violation under the civil penalty provision of the

WRCA or the federal Clean Water Act. Prior to either Plain-

tiff's issuing a written demand for stipuiated penalties, that

Plaintiff considering issuing such a demand shall first consult

with its Co-Plaintiff to decide whether such stipulated penalty

demand should be issued. Neither Plaintiff shall issue such a

demand unless Plaintiffs decide that it shall be issued on be-

half of both.

VI. CIVIL PENALTY

56b

26. Wayne County shall pay a civil penalty of

$413,000.00, in resolution of the Plaintiffs’ civil judicial.

claims for penalties as alleged in the Complaint. The civil

penalty shall be paid in one of the two options set forth in the

following Subparagraphs 28.A and 28.B, and Defendants are

deemed to elect between them by their actions.

27. Split of Payment Between Plaintiffs. Payment

of fifty percent of the civil penalty (either of each installment

or of a one-time payoff) shall be to the United States, by

cashier’s or certified check (except as otherwise specified in

Section VI of this Decree) made payable to the “Treasurer of

the United States of America,” and tendered to the Office of

the United States Attorney for the Eastern District of Michi-

gan, 231 West Lafayette St., Detroit, Michigan 48226. The

check shall bear a notation to the civil docket number of this

action. Corcurrently with sending the check, a copy of the

check shall be sent to the EPA Region V Water Division, and

to the United States Department of Justice, at the addresses

specified in Section VIII of this Consent Decree. Payment of

fifty percent of the civil penalty (either of each installment or

of one-time payoff) shall be to the State of Michigan, by

cashier’s or certified check made payable to the “State of

Michigan,” and tendered to the Assistant-in-Charge, Environ-

mental! Protection Division, Office of the Attorney General,

P.O. Box 39212, Lansing, Michigan 48909. The check shall

bear a notation to the civil docket number of this action. Con-

currently with sending the check, a copy of the check shall be

sent to the Michigan Department of Natural Resources, Sur-

face Water Quality Division, compliance and Enforcement

Section, at the address specified in section VIII.

28. Options for Payment. Defendants must pay the

civil penalty by either one or the other of the options speci-

fied in this paragraph.

57b

A. Payment Option One. Defendants may

pay the civil penalty ($413,000) to Plaintiffs in lump

sum (fifty percent of the lump sum to each Plaintiff)

within sixty days of the entry of the Decree, and if De-

fendants make such payment within that time period,

where “making payment” means receipt of the checks

by Plaintiffs and / or confirmation of electronic fund

transfer, then Defendants are not obligated to pay any

interest on the civil penalty. If Defendants do not

make payment within the time described in this Sub-

paragraph 28.A, then they shall be deemed to have se-

lected Payment Option Two, below, including all

terms and conditions of Payment Option Two, includ-

ing but not limited to payment of interest.

B. Payment Option Two. Consistent with the in-

stallment schedule and acceleration provision set out

in this Subparayraph 28.B, Defendants shall have

through December 31, 1995 to pay the total civil! pen-

alty, with interest running on any and all unpaid bal-

ances that exist after January 1, 1994, and interest

shall accrue at the rate set out in 28 U.S.C. Section

1961. Defendants may pay any or all penalty amounts

in advance of the schedule set out herein without suf-

fering any additional penalty as a result of such early

payment. The schedule for installment payments is as

follows: one-half of the civil penalty, with any and all

accrued interest, shall be paid on or before December

31, 1994; and one-half of the civil penalty, with any

and all accrued interest, shall be paid on or before De-

cember 31, 1995. If any installment payment is not re-

ceived by Plaintiffs within 21 calendar days after its

due date (as set by the installment payment dates es-

tablished in this subparagraph), all remaining civil

penalty installments (including any and all interest)

58b

shall be immediately due, owing, and paid to

plaintiffs.

29. If Defendants elect to pay by electronic fund

transfer any portion of the civil penalty owed to the United

States or the State of Michigan, Defendants may do so. Upon

request, the United States and the State will supply Wayne

County with any coding or address information needed by

Defendants to effect an electronic fund transfer.

Vil. REPORTING REQUIREMENTS

30. Reporting on Compliance Activities:

A. Beginning with the first full calendar quarter

after entry of this Consent Decree, and for every calendar

quarter thereafter until termination of this Consent Decree in

accordance with Section XXIV. below, Defendants shall sub-

mit to Plaintiffs a written progress report. Each quarterly re-

port shall be submitted no later than the last day of the month

following the close of the quarterly reporting period. Each re-

port shall contain the following information for that quarter:

i. the status and progress of the prepara-

tion of plans and construction of im-

provements required under Section IV

above;

ii. a projection of the work to be per-

formed under Section IV during the

next two calendar quarter; and

iil. identification of any items that might

affect timely completion of require-

ments under Section IV above.

ee ee

* ae ee, i+

RS aera Baa ein we cad ag eRe

59b

Notification pursuant to this paragraph shall not excuse any

failure to timely perform any requirement of this Decree.

B. Within ten (10) days following the deadline for

any requirement under Section IV of this Consent Decree,

Defendants shall submit to Plaintiffs written notice that the

action has been taken or completed, as required. If the action

has not been taken or completed as required, Defendants shall

submit written notice to Plaintiffs stating the reasons for any

failure to timely complete a requirements and the probability

of meeting the next deadline in the schedule. The notice shall

also describe the actions to be taken or that are being taken to

return the program to schedule. Notification pursuant to this

paragraph shall not excuse any failure to timely perform any

requirement of this Consent Decree.

31. Reporting on Discharges

A. Defendants shall submit to Plaintiffs, post-

marked on or before the tenth day of each month, a Daily

Discharge Monitoring Report (“Daily Report”) for the plant

containing analytical test results obtained during the previous

monthly monitoring period, and Discharge Monitoring Re-

ports (“DMR”) for that period, as required in the NPDES Per-

mit. The Reports shall be in the format required by MDNR,

and shall contain data on the analysis of samples taken at the

frequency and location specified in the NPDES Permit.

B. In accordance with 40 C.F.R. Section

122.41(m), Defendants shall immediately notify the State and

EPA-Region V1 in writing, whenever a bypass of the WWTP

collection system, the storage-transport system, or the WWTP

occurs, including the requirement to submit, within five (5)

days after any such incident, a written report describing the

duration, volume and exact location of the incident, an

60b

explanation of conditions which resulted in the bypass, steps

taken to stop it, measures taken to eliminate further occur-

rence, and the results of any sampling and monitoring re-

quirements undertaken in response to the incident.

o Requirements concerning bypass incident re-

porting set forth in the preceding paragraph do not affect and

shall not serve as a justification for not complying with re-

quirements concerning bypass incidents as set forth in the

NPDES Permit.

D. Nothing in this Consent Decree affects the re-

porting requirements set forth in the NPDES Permit. Defen-

dants’ compliance with reporting requirements set forth in

this Consent Decree shall not serve as a justification for not

complying with any reporting requirement set forth in the

NPDES Permit.

Vill. SUBMITTALS

32. Reports, plans, notices, approvals, modifica-

tions and comments required pursuant to this Consent Decree

shall be submitted to the following persons at the addresses

below:

For Plaintiff the United States:

U.S. Environmental Protection Agency,

Region V

Water Division

Compliance Section SWCC-155

77 West Jackson Blvd.

Chicago, Illinois 60604,

U.S. Department of Justice

61b

Environment and Natural Resources

Division

Environmental Enforcement Section

P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044

DJ # 90-——5—1—-1—-2766;

For Plaintiff State of Michigan:

Michigan Department of Natural

Resources

District Supervisor, Surface Water

Quality Division

Southeast Michigan District Headquar-

ters 39000 Seven Mile Road

Livonia, Michigan 48152,

with a copy of the cover letter to

Assistant in charge

Natura! Resources Division

Office of the Attorney General

Stevens T. Mason Building, 8th Floor

P.O. Box 30028

Lansing, Michigan 48909,

and submittals under paragraph nos. 23, 27, 30, & 31 to

Michigan Department of Natural Resources

Surface Water Quality Division

Compliance and Enforcement Section

P.O. Box 30273

Lansing, Michigan 48909, and

Assistant-in-Charge

62b

at address above;

For the Defendants:

County of Wayne

Department of Corporation Counsel

415 Clifford

Detroit, MI 48226;

William J. DiBiasi, Esq.

Attorney for Brownstown Township

24825 Eureka Road

Taylor, MI 48180-5159;

Daniel J. Misteravich, Esq.

Attorney for Lincoln Park

2933 Fort Street

Lincoln Park, MI 48146;

Charles Brian James, Esq.

Attorney for Southgate

8623 N. Wayne Road, Suite 200

Westland, MI 48185-1137;

Allen J. Kovinsky, Esq.

Attorney for City of Taylor

2000 Town Center (Suite 900)

Southfield, MI 48076—1 100;

Randall A. Pentiuk

Attorney for City of Riverview

230 Superior Place (Suite 320)

20300 Superior Road

63b

Taylor, MI 48180; and

Randy L. Kalmbach

Attorney for Wyandotte

2241 Oak Street

Wyandotte, MI 48192-5317.

To substitute a recipient or change address information set

out in this paragraph, a party must serve on all parties and file

with the Court the name and address of the person or office to

be removed from this paragraph, as well as the name and ad-

dress of the person or office that is to be added to this para-

graph. Such changes shall be effective thirty days after

service to all parties and filing of proof of service with the

Clerk of the Court.

33. | Unless otherwise specified in this Consent De-

cree, reports, approvals, modifications, comments and notices

shall be given in writing, and shall be considered delivered on

the day postmarked by the U.S. Mail, with proper postage af-

fixed. If another means is used to deliver a report or notice, it

shall be considered delivered upon the date received at the

MDNR or EPA office or at the above addresses for

defendants.

34. All requirements in plans, reports and other

submittals that have been approved by Plaintiffs, including

schedules therein, shall be enforceable requirements of this

Consent Decree, except to the extent the performance of such

requirement is delayed by a finding of force majeure under

Section [X of the Decree or altered by agreement of the par-

ties or judicially under Section X (Dispute Resolution) of the

Decree, in which case the revised provisions will become en-

forceable requirements of the Decree.

64b

35. Appointment of Technical Coordinators.

Within 21 days after the entry of this Consent Decree, each of

the following shall appoint a Technical Coordinator: Wayne

County, MDNR, U.S. EPA, and one coordinator for all other

defendants. All parties shall advise all Technical Coordina-

tors of any matter any party believes to involve a technical

resolution or problem, and all Technical Coordinators desig-

nated under this paragraph shall be invited to participate in

any technical discussion commenced by any party to this De-

cree. The sole purpose of this paragraph is to encourage early,

coordinated participation of all parties on all technical mat-

ters. Nothing in this paragraph is intended to or shall be inter-

preted as delegations of settlement or approval authority by

any party or as a deviation of the rights or obligations other-

wise established for the parties by applicable law or this Con-

sent Decree. As counsel for any party deems appropriate,

such counsel may attend any meeting involving the Technical

Coordinators. If any party changes its Technical Coordinator,

it shall promptly notify all of the other parties.

IX. FORCE MAJEURE

36. A “force majeure” event for purposes of this

Consent Decree is any event that is caused by circumstances

beyond the reasonable control of the Defendants that delays

or prevents the Defendants from complying with the terms of

this Decree in a timely fashion including completing any

studies, programs plans, designs or failure to timely construct

the facilities as scheduled. Such events could include by way

of illustration and not limitation delays due to fires, strikes,

labor disputes, unforeseeable delays in transportation, unusu-

ally adverse weather conditions or unanticipated changed site

conditions encountered in the course of construction also de-

lays caused by the failure of the Plaintiffs to respond

promptly and comment on submittals made by the

65b

Defendants as required by the terms of this Consent Decree.

To the extent any such noncompliance with the terms of this

Consent Decree is due to a force majeure event, the Defen-

dants shall not be liable for any stipulated penalties set forth

in this Decree and the time for performance or compliance

with. the terms of this Decree shall be extended by the Plain-

tiffs to the extent appropriate. An extension of one (1) com-

pliance date due to a particular force majeure event will not

necessarily result in an extension of a subsequent compliance

date or other unrelated compliance date or dates.

37. Nothing in this section is intended to relieve

Defendants of their duty to use all due diligence to complete

the requirements of this Consent Decree in a timely matter.

Further, unanticipated or increased costs or expenses associ-

ated with compliance of this Consent Decree including

change in financial circumstances on behalf of the Defen-

dants shall not constitute a force majeure event; provided fur-

ther, however, that nothing in this paragraph is otherwise

intended to preclude Defendants from applying to the Court

for a specific enlargement of time under the provisions of

Sections IX, X and/or XXII of this Decree —— to the extent

the allegations and proofs supporting Defendants’ application

to the Court for the specific enlargement of time are relevant

to the provisions of Section IX, X, and/or XXII -- so long as:

(a) Defendants first requested the United States and the State

for the specific enlargement of time (and provided therewith

the allegations and proofs supporting the request) and (b)

Plaintiffs had rejected Defendants’ request.

66b

38. It shall be the duty of the Defendants to

promptly notify the Plaintiffs of any occurrence or circum-

stance which could result in noncompliance with the terms of

this Consent Decree as a result of a force majeure event

which under the circumstances is beyond the Defendants’

reasonable control and which could not be overcome by due

diligence. Such notification shall be in writing to the Plaintiff

s and shall describe the terms of this Decree that may be af-

fected by the occurrence, the nature of the noncompliance

that could result from the occurrence, the reasons for such oc-

currence and possible noncompliance that may, in the Opinion

of the Defendants, cause a violation of the terms of this De-

cree or result in any upset condition involving the terms of

any applicable NPDES permit.

39. If the Defendants and the Plaintiffs cannot

agree that the occurrence at issue is a force majeure event or

cannot agree on the terms of an appropriate extension of time

or other solution, the dispute shall be subject to the dispute

resolution procedures of section X, infra.

40. Further, without respect to whether or not a

given set of circumstance entitles the Defendants to certain

protection and relief related to the force majeure event, the

Defendant shall comply with the terms of this Consent De-

cree that are unaffected by the force majeure event, and the

Plaintiffs. shall retain the right to enforce the terms and. obli-

gations of this Decree that are unaffected by the force ma-

jeure occurrence.

X. DISPUTE RESOLUTION

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67b

41. — If in the opinion of any party there is a dispute

between Plaintiffs and Defendants with respect to the inter-

pretation of or compliance with this Consent Decree, such

dispute shall in the first instance be the subject of informal

negotiation between the Defendants and the Plaintiffs. That

party shall send a written notice to the other parties which

outlines the nature of the dispute and requests informal nego-

tiation to resolve the dispute. Such period of informal nego-

tiations shall not extend beyond thirty (30) days from the date

when the notice was sent, unless the parties agree otherwise.

In an emergency, either party may seek relief directly from

the Court prior to expiration of the informal negotiation pe-

riod, with the party moving for such relief bearing the burden

of proving that an emergency exists and that the position ad-

vocated by that party should be adopted under the terms

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.