# Opposition Brief — Bylinski v. City of Allen Park > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0726%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 1037 ## Text i des: | Supreme Court, U8 ' G3 eS See a, QS j 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 RU RINE. « 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. | . } - a ; i 4 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) 4b 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: Ke 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: A. 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 Ee 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 oo an a ee eked . judgment is rendered, the owner of the judgment or any per- son knowing the facts, acting on behalf of the owner, may make an affidavit showing that the village against which a judgment is pending and unsatisfied, has no available assess- ing officer within the jurisdiction, and file it with the clerk of the court wherein the judgment is written. The officer who makes the certified transcript shall attach thereto a copy of the affidavit, the correctness of which copy shall also be certi- fied to in the certificate. Any party receiving the certified transcript of judgment and affidavit may file it with the super- visor of the township in which the village, having no assess- ing officer is located. The supervisor shall assess the amount of the judgment with costs and interest, upon the taxable property of the village, which is without an assessing officer, and thereafter the same steps and proceedings shall be had in the premises as though it were a judgment against the town- ship within which the village is located, except that it shall be assessed against the property within the corporate limits of the village only. (3) When judgment is recovered against any county or the board of supervisors or any county officer in an action prosecuted by or against him in his name of office, the judg- ment unless reversed shall be levied and collected as other county charges, and when collected shall be paid by the county treasurer to the person to whom the judgment has been adjudged upon the delivery of a proper voucher therefor. RRb MICHIGAN COMPILED LAWS ANNOTATED CHAPTER 324, NATURAL RESOURCES AND ENVI- RONMENTAL PROTECTION ACT NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT ARTICLE IL. POLLUTION CONTROL CHAPTER 1. POINT SOURCE POLLUTION CONTROL SEWAGE DISPOSAL AND WATERWORKS SYSTEMS PART 43. WATERWORKS SYSTEMS, SEWERS, AND DISPOSAL PLANTS Current through PA. 1998, No. 35 324.4307. Bonds, issuance, sale, interest, term, denomination, payment, taxation Sec. 4307. (1) In accordance with and to the extent authorized by law, when the department, the department of publ’. health, or a court of competent jurisdiction in the state has ordered, or when the department has issued a permit for, the installation, construction, alteration, improvement, or op- eration of a sewage sy tem, solid waste facility, or water- works systein in a local unit of government, and the plans for the facility or system have been prepared and approved by the state department or commission having the authority by law to grant the approval, the legislative body or the respective legislative bodies of the local unit or units of government may issue and sell the necessary bonds for the construction, installation, alteration, operation, or improvement, including the treatment works, and other facilities as may be ordered or set forth in the permit as being necessary to provide for the effective operation of the system. This provision shall be « papel e Qa RES as geet ARS fare. TR eee ee 89b construed to allow a local unit of government the option of selling bonds under a department order or permit, or of taking or permitting the matter to go into court and selling bonds un- der a court order. The bonds shall bear interest at a rate not to exceed the maximum rate permitted by the municipal fi- nance act, Act No. 202 of the Public Acts of 1943, being sec- tions 131.1 to 139.3 of the Michigan Compiled Laws, and be payable in not more than 40 years from the date of issuance. The legislative body or the respective legislative bodies shall determine the denomination of the bonds and the date, time, and manner of payment. The amount of the bonds either is- sued or outstanding shall not be included in the amount of bonds which the local unit or units of government are author- ized to issue under any statutes of this state or charters. Local units of government issuing bonds under this section may raise a sum annually by taxation as the legislative body or re- spective legislative bodies consider necessary to pay interest on the bonds, and to pay the principal as it falls due. The an- nual amount may be in excess of the authorized annual tax rate fixed by the statutes or charters. *42340 (2) Except as otherwise provided in this part, all bonds issued under this section shall be issued and sold in conformity with Act No. 202 of the Public Acts of 1943. Court ordered bonds do not require approval of the electors and are not subject to section 5(g) of Act No. 279 of the Pub- lic Acts of 1909, being section 117.5 of the Michigan Com- piled Laws, as to publication of notice, petition, and referendum. Bonds other than court ordered bonds issued un- der this part require approval of the electors at a general or special election only if an appropriate petition is filed in ac- cordance with the law. 90b CONSTITUTION OF THE STATE OF MICHIGAN OF 1963 ARTICLE IX. FINANCE AND TAXATION MCL Const. 1963, Art. 9, | 6 (1992) | 6. Real and tangible personal property; limitation on general ad valorem taxes; adoption and alteration of separate tax limi- tations; exceptions to limitations; property tax on school dis- trict extending into 2 or more counties. Section 6. Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, quali- fied under Section 6 of Article II of this constitution, voting on the question. The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds approved by the electors or other evidences of indebtedness approved by the electors or for the payment of assessments or contract ob- ligations in anticipation of which bonds are issued approved 91b by the electors, which taxes may be imposed without limita- tion as to rate or amount; or, subject to the provisions of Sec- tion 25 through 34 of this article, to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limita- tions of which are provided by charter or by general law. In any school district which extends into two or more coun- ties, property taxes at the highest rate available in the county which contains the greatest part of the area of the district may be imposed and collected for school purposes throughout the district. HISTORY: Const. 1963, Art. [X, | 6, Eff. Jan. 1, 1964;--Am. Initiated Law, approved Nov. 7, 1978, Eff. Dec. 23, 1978. 92b CONSTITUTION OF THE STATE OF MICHIGAN OF 1963 ARTICLE IX. FINANCE AND TAXATION MCL Const. 1963, Art. 9, | 31 (1992) | 31. Levying tax or increasing rate of existing tax; maximum tax rate on new base; increase in assessed valuation of prop- erty; exceptions to limitations. Sec. 31. Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an exist- ing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Government voting thereon. If the definition of the base of an existing tax is broadened, the maximum authorized rate of taxation on the new base in each unit of Local Government shall be reduced to yield the same estimated gross revenue as on the prior base. If the assessed valuation of property as finally equal- ized, excluding the value of new construction and improve- ments, increases by a larger percentage than the increase in the General Price Lev «I from the previous year, the maximum authorized .ate applied thereto in each unit of Local Govern- ment shail be reduced to yield the same gross revenue from existing property, adjusted for changes in the General Price Level, as could have been collected at the existing authorized rate on the prior assessed value. The limitations of this section shall not apply to taxes im- posed for the payment of principal and interest on bonds or other evidence of indebtedness or for the payment of assess- ments on contract obligations in anticipation of which bonds 93b are issued which were authorized prior to the effective date of this amendment. HISTORY: Add. Initiated Law, approved Nov. 7, 1978, Eff. Dec. 23, 1978. bi a i a * : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0726%3A2. Public record. Not legal advice.