Miami-Dade Legislative Item
File Number: 130946
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File Number: 130946 File Type: Resolution Status: Adopted
Version: 0 Reference: R-393-13 Control: Board of County Commissioners
File Name: RESOLUTION APPROVING AND AUTHORIZING EXECUTION Introduced: 5/14/2013
Requester: Water & Sewer Department Cost: Final Action: 5/21/2013
Agenda Date: 5/21/2013 Agenda Item Number: 8O1
Notes: Title: RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF CONSENT DECREE BETWEEN MIAMI-DADE COUNTY, THE UNITED STATES OF AMERICA, STATE OF FLORIDA AND FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PROVIDING FOR SETTLEMENT OF ALLEGED VIOLATIONS OF FEDERAL AND STATE ENVIRONMENTAL LAWS RELATING TO THE COUNTY SEWAGE SYSTEM WITH AN ESTIMATED COST OF $1.6 BILLION IN CAPITAL IMPROVEMENTS OVER A 15-YEAR PERIOD, $15 MILLION FOR IMPLEMENTING MAINTENANCE AND MANAGEMENT PROGRAMS, $2 MILLION FOR A SUPPLEMENTAL ENVIRONMENTAL PROJECT TO BE FUNDED IN WHOLE OR IN PART USING BUILDING BETTER COMMUNITIES GENERAL OBLIGATION BOND FUNDS, $825,000.00 FOR MONITORING BY FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AND $978,100.00 FOR CIVIL PENALTY
Indexes: NONE
Sponsors: Audrey M. Edmonson, Co-Prime Sponsor
  Juan C. Zapata, Co-Prime Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Board of County Commissioners 5/21/2013 8O1 Adopted P
REPORT: First Assistant County Attorney Abigail Price-Williams read the foregoing proposed ordinance into the record. Chairwoman Sosa opened the public hearing and called for persons wishing to appear before the Commission in connection with this proposed ordinance. After hearing no one, she closed the public hearing. Hearing no questions or comments, the Commission proceeded to vote on the foregoing proposed ordinance as presented.

County Attorney 5/14/2013 Assigned Henry N. Gillman

Office of the Chairperson 5/14/2013 Assigned County Attorney 5/21/2013
REPORT: WASD-CAO-Henry G-Settlement Agreement-Commissioner Edmondson and Zapata are Co-Prime Sponsors

Office of the Chairperson 5/14/2013 Assigned Alina Tejeda-Hudak

Legislative Text


TITLE
RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF CONSENT DECREE BETWEEN MIAMI-DADE COUNTY, THE UNITED STATES OF AMERICA, STATE OF FLORIDA AND FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PROVIDING FOR SETTLEMENT OF ALLEGED VIOLATIONS OF FEDERAL AND STATE ENVIRONMENTAL LAWS RELATING TO THE COUNTY SEWAGE SYSTEM WITH AN ESTIMATED COST OF $1.6 BILLION IN CAPITAL IMPROVEMENTS OVER A 15-YEAR PERIOD, $15 MILLION FOR IMPLEMENTING MAINTENANCE AND MANAGEMENT PROGRAMS, $2 MILLION FOR A SUPPLEMENTAL ENVIRONMENTAL PROJECT TO BE FUNDED IN WHOLE OR IN PART USING BUILDING BETTER COMMUNITIES GENERAL OBLIGATION BOND FUNDS, $825,000.00 FOR MONITORING BY FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AND $978,100.00 FOR CIVIL PENALTY

BODY
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by reference,

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board hereby approves the Consent Decree between Miami-Dade County, the United States of America, State of Florida and Florida Department of Environmental Protection for settlement of alleged violations of federal and state environmental laws related to the County’s sewage system, with an estimated cost of $1.6 billion in capital improvements over a 15-year period, $15 million for implementing maintenance and management programs, $2 million for a supplemental environmental project to be funded in whole or in part using Building Better Communities General Obligation Bond Funds, $825,000.00 for monitoring by Florida Department of Environmental Protection and payment of $978,100.00 for a civil penalty; in substantially the form attached hereto and made a part hereof; and authorizes the Mayor and County Attorney to execute same for and on behalf of Miami-Dade County.

HEADER
Date:

      To: Honorable Chairwoman Rebeca Sosa
and Members, Board of County Commissioners

From: Carlos A. Gimenez
Mayor

R. A. Cuevas. Jr.
County Attorney

Subject: Resolution Authorizing the Execution of a New Consent Decree Between Miami-Dade County, the United States of America, the State of Florida and Florida Department of Environmental Protection

..RECOMMENDATION
It is recommended that the Board of County Commissioners (Board) approve the attached resolution authorizing the execution of the attached Consent Decree between Miami-Dade County, the United States of America, the State of Florida and Florida Department of Environmental Protection, requiring the County to undertake and complete the Compliance Requirements specified in the new Consent Decree in order to comply with the Federal Clean Water Act and federal and state laws, regulations, and permits, with the goal of eliminating sanitary sewer overflows and prohibited bypasses. Approval of the Consent Decree by the Board will enable the parties to file the Consent Decree with the Court as the proposed resolution of all issues in the lawsuit. Project schedules commence when the Consent Decree is filed with the Court.

Upon Board approval, I, Mayor Carlos A. Gimenez, will effectuate this resolution by approving and filing it with the Clerk of the Board. This will allow the attached resolution to become effective immediately.

SCOPE
This item has county wide significance as it consists of repairing and rehabilitating sewer facilities throughout the County.

FISCAL IMPACT/FUNDING SOURCE
The fiscal impact to the County consists of the following estimated amounts over a 15-year period: (1) approximately $1.6 billion in capital improvement expenditures to the sewer system that includes project management, design, permitting, procurement and construction of the capital improvements; (2) $15 million for upgrading the Water and Sewer Department’s (WASD) operations maintenance, management and reporting programs funded from WASD’s operating revenues; (3) $825,000.00 for outside monitoring of the new Consent Decree by the Florida Department of Environmental Protection paid from WASD’s operating revenues; 4) a one-time civil penalty payment of $978,100.00 paid from WASD’s operating revenues and 5) approximately $2 million over a five-year period for the cost of a supplemental environmental project paid from General Obligation Bonds (GOB).

TRACK RECORD/MONITOR
WASD’s Deputy Director of Regulatory Compliance and Capital Improvements, Douglas Yoder, and Juan Carlos Arteaga, Assistant Director for Capital Improvements and Development will oversee the fulfillment of the new Consent Decree requirements.


BODY
On January 13, 1994, a First Partial Consent Decree was entered by the United States District Court for the Southern District of Florida to resolve claims involving compliance with the Clean Water Act that were brought by the United States against the County in Case Number 93:1109 CIV-Moreno. The First Partial Consent Decree required, among other things, construction of the 102-inch force main that conveys untreated sewage beneath Biscayne Bay from the mainland to the Central District Wastewater Treatment Plant. On September 12, 1995, a Second and Final Partial Consent Decree was entered into by the United States and the County to resolve all remaining issues in the case. The requirements of the First Partial Consent Decree and Second and Final Partial Consent Decree (“Existing Consent Decrees”) focused on providing additional capacity in the sewer collection system to prevent capacity-related sewage overflows.

From Fiscal Year 1995 to Fiscal Year 2011, WASD has spent approximately $1.8 billion upgrading its wastewater infrastructure and achieving significant progress in implementing and improving Capacity, Management, Operations and Maintenance Programs in order to comply with the requirements of the Existing Consent Decrees. As a result, the number and volume of capacity-related sewage overflows have been reduced. Specifically, there were no capacity-related overflows between 2002 and October 2011, even though the service area population increased and Hurricanes Rita, Wilma and Katrina struck South Florida.

However, in the past five years, a number of failures of aging pipelines have resulted in numerous sanitary sewer overflows. Additionally, the treatment standards have not been met on several occasions at the wastewater treatment plants due to equipment failures. Moreover, the Environmental Protection Agency conducted compliance evaluation inspections of the Central District Wastewater Treatment Plant and found several violations of the Clean Water Act Permit. Each of these violations is either a violation of the Clean Water Act or of the respective permit.


PROPOSED FEDERAL AND STATE ENFORCEMENT ACTION
In order to address these more recent compliance issues, on February 29, 2012, the United States, through the Environmental Protection Agency and the Department of Justice, presented the County with a draft proposal for a new Consent Decree and advised the County that a complaint would be filed against it in federal court. On December 13, 2012, the United States, the State of Florida and the Florida Department of Environmental Protection filed a complaint against the County for violations of the Clean Water Act and other federal and state laws, regulations and permits, Case Number 12-CV-24400-FAM.

WASD staff and representatives from the Department of Regulatory and Economic Resources (RER) and the County Attorney’s Office have been engaged in extensive, good faith negotiations with representatives from the Environmental Protection Agency, the Department of Justice, and the Florida Department of Environmental Protection in order to establish the terms of the new Consent Decree to satisfy the complaint and address compliance issues. Updates regarding the progress and drafts of the new Consent Decree were sent to the Board on November 21, 2012 and on May 3, 2013 (copies of updates attached). The new Consent Decree will entirely replace and supersede the terms and provisions of the Existing Consent Decrees, which will both be terminated at the same time the new Consent Decree is approved by the Court. In light of the foregoing, the County believes that the new Consent Decree is the best course of action. In the absence of an agreement, the United States and the Florida Department of Environmental Protection could seek a court order imposing more stringent requirements and timetables than those contained in the new Consent Decree.

THE NEW CONSENT DECREE
The requirements of the new Consent Decree include a number of operational and maintenance improvements in accordance with the Environmental Protection Agency’s Capacity, Management, Operations and Maintenance Program guidelines that update existing WASD programs, such as operations and maintenance procedures and staffing, overflow response plans, spare parts inventories, information management systems, and financial assurance. The guidelines are attached to the Consent Decree in Appendix C. These requirements, known as deliverables, will involve submission of a series of plans and reports and the implementation of those plans.

The new Consent Decree also requires the Board to approve three ordinances following review and approval by the Environmental Protection Agency and Florida Department of Environmental Protection. The required ordinances are as follows:

The first ordinance is an amendment to Section 24-42.3 of the County Code to incorporate the criteria in Appendix A of the new Consent Decree relating to certification of sanitary sewer system collection, transmission and treatment capacity. This amendment will provide greater flexibility in managing capacity at pump stations and will support development. The WASD system has more than 1000 pump stations, more than any other sewer system in the continental United States. These stations convey sewage from the collection basins to the treatment plants. Under the Second and Final Partial Consent Decree and the Code of Miami-Dade County, whenever the pumps at a given station run for 10 hours or more per day averaged monthly over the course of a year, the pump station is considered to be “over capacity” and is placed in moratorium, so that no additional flows are permitted to be introduced into that collection basin until repairs or upgrades are completed. This restriction prevents new connections or even increased usage of existing connections. In basins where no actual overflows have occurred, the required amendment will allow approval of development projects, whether new connections or increased usage of an existing connection, that would result in small additional flows to the basin above the current limit of 10 hours while necessary upgrades to the pump station facilities are being made. These provisions will reduce the potential adverse impacts to Cities and the unincorporated areas under the current consent decree.

The second ordinance will amend Section 24-42.2 of the County Code as outlined in Appendix B to the new Consent Decree and applies the Capacity, Management, Operations and Maintenance Program requirements to “Volume Sewer Customers,” which are municipal utilities served by WASD. The Volume Sewer Customers will be required to submit a Plan of Compliance that must include: a sewer overflow response plan; information management system program; sewer system asset management plan; gravity sewer system operation and maintenance program; pump station operations and preventative maintenance program; and force main operations, preventative maintenance and assessment/rehabilitative program. WASD and RER staff met with the Volume Sewer Customers in October of 2012 to discuss the requirements of the new Consent Decree that affect the Volume Sewer Customers and Appendix B.

The third ordinance is an amendment to the County’s grease trap ordinance, Sections 24-15.3 and 24-18 of the County Code. The amendment will implement the requirements in Paragraph 19(a) of the new Consent Decree relating to the discharge of grease into the sewer systems. The ordinance will require, among other things, a characterization study to identify sources of fats, oil and grease that cause problems in the wastewater collection and transmission system and establish various standards including control device management, operations and maintenance standards that address onsite record keeping requirements, cleaning frequency and cleaning standards. The ordinance will also establish compliance inspection protocols and a fats, oil and grease disposal manifest system that prohibits commingling of fats, oil and grease with septic tank waste. The County will be responsible for enforcing each of these ordinances.

SYSTEM UPGRADES
The new Consent Decree includes a list of upgrades to the sewer collection system, pump stations, and treatment plants that are necessary to improve the reliability of the entire system as described in Appendix D of the new Consent Decree. These capital projects span a 15-year time frame, with initial emphasis on pipelines and pump stations. Work at the treatment plants must be carefully sequenced to ensure that sewage flows can be handled while the repairs are made. The total cost of these improvements is estimated to be about $1.6 billion. The removal of a project identified in bold in Appendix D will require court approval. In September 2012, WASD held three public workshops to inform and receive input from the community and environmental justice groups regarding the capital improvement projects listed in Appendix D of the new Consent Decree.

IMPLEMENTATION
The County will need to retain consultants to assist in program management, planning, design, construction, and construction management of the capital improvement projects listed in Appendix D of the Consent Decree. These costs are typically 8 percent to 10 percent of construction costs and are included within the $1.6 billion amount identified for capital improvements. This public/private partnership model has been very effective in the past for timely delivery of WASD’s largest single capital project, the High Level Disinfection project at the South District Plant. To provide greater transparency in the implementation of the new Consent Decree, every document submitted to the Environmental Protection Agency and the Florida Department of Environmental Protection will be posted on WASD’s website and kept in a public document repository. Additionally, any person may register with WASD to receive an electronic notice of the submissions.

FINANCING
The new Consent Decree includes required work that will have a clear financial impact on the system. The County agrees to fund each of the upgrades and programs required by the new Consent Decree. This is expected to require rate increases at various intervals beginning with an eight (8) percent water and sewer retail rate increase. Additionally, financing of the requirements of this Consent Decree will be achieved by a combination of WASD’s Sewer Renewal and Replacement Fund, Building Better Communities General Obligation Bonds and WASD Revenue Bonds. The new Consent Decree requires a financial analysis program to effectively track the sufficiency of funds to implement the Compliance Requirements. Such program shall also track and report any transfer of sewer funds for any purpose not related to management, operation, maintenance or capital improvement of the sewer system. The County must provide thirty (30) days advanced written notice to the United States and the Florida Department of Environmental Protection of the intent to transfer such funds. However, such transfers to be tracked and reported do not apply
to administrative reimbursements or funds internally used within WASD.

CIVIL PENALTIES
Following court approval of the new Consent Decree, the County shall pay a cash civil penalty of $978,100.00 to be shared between the Department of Justice and the Florida Department of Environmental Protection.

SUPPLEMENTAL ENVIRONMENTAL PROJECT
In lieu of a higher cash civil penalty, the County will perform a supplemental environmental project that involves the installation of sewers in an industrial and commercial area within the Green Technology Corridor east of N.W. 37 Avenue and north of the Miami River. The amount of the project is approximately $2 million and will be funded with Building Better Communities General Obligation Bonds designated for sewer projects. This project will reduce contamination potentially reaching the Miami River, and it will provide economic development opportunities in an area in great need of jobs. Since the subject area is designated as an Enterprise Zone, companies located within the Green Technology Corridor that employ at least 25 percent of their workforce from residents of the Enterprise Zone may be eligible to seek a refund of connection charges pursuant to Section 2-348 of the County Code.

COMPLIANCE MONITORING
Under an existing State Consent Order requiring the County to upgrade the South District Wastewater Treatment Plant to meet high level disinfection criteria, WASD is currently supporting a position at the Florida Department of Environmental Protection to monitor WASD’s compliance with the terms of the agreement. Under the new Consent Decree, WASD will continue to support a position at the Florida Department of Environmental Protection to monitor compliance with the new Consent Decree at a maximum rate of $55,000.00 per year for a total of $825,000.00 over a 15-year period.

After execution by the County, the United States, and the State of Florida, the new Consent Decree will be filed in Case Number 12-CV-24400-FAM for approval by the U.S. District Court for the Southern District of Florida. The approval process includes a 30-day public comment period. The Court will consider comments received during the comment period and the arguments of the Intervening environmental group in deciding whether to approve the new Consent Decree.

If the Board approves this action, the County will be obligated to comply with the new Consent Decree as set forth above. Following approval by the U.S. District Court, the Court will provide oversight of the new Consent Decree, and failure to comply with the terms could result in Court enforcement including sanctions and orders. Additionally, any sewage discharges will subject the County to stipulated penalties, which range from $500.00 to $10,000.00 depending on overflow volumes and when the overflows occur during the duration of the new Consent Decree. Additional civil penalties could be required by the Environmental Protection Agency and Florida Department of Environmental Protection for sewage discharges, depending on the nature and consequence of the violations. Stipulated penalties on a daily basis may also be assessed for failure to timely submit deliverables or to meet deadlines to complete rehabilitation projects.

Based upon the County’s potential liability exposure, the cost of litigation, and settlements reached in similar consent decrees across the country, the terms and penalty amounts provide a reasonable basis for settlement.



Therefore, it is in the best interest of Miami-Dade County to enter into this new Consent Decree, and it is respectfully requested that the attached resolution and the new Consent Decree with the United States, the State of Florida and the Florida Department of Environmental Protection be approved.



__________________________
Alina T. Hudak
Deputy Mayor



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