Feds Get Consent Decree Over Mount Vernon Storm Sewer Pollution

MOUNT VERNON, NY — The federal government has reached a binding agreement with Mount Vernon to take concrete steps to mitigate water pollution caused by the city's aging and inadequate sewer system.

Damian Williams, the United States Attorney for the Southern District of New York, and Lisa F. Garcia, the Regional Administrator for Region 2 of the EPA, announced this week that the United States and the State of New York have entered into a civil consent decree with Mount Vernon to resolve ongoing litigation regarding the city's non-compliance with Clean Water Act requirements for municipal storm sewers, which has caused raw sewage to be discharged into the Bronx and Hutchinson Rivers.

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"This important settlement provides a path forward for the City of Mount Vernon to comply with the Clean Water Act, protect water quality, and address the needs of its residents who are living with the unlawful discharge of sewage and illicit pollutants," Williams said announcing the settlement. "My Office remains committed to protecting human health and the environment in overburdened and underserved communities such as Mount Vernon, and beyond."

Garcia said that the deal will be a win for the people of Mount Vernon as well as the environment.

"The people of Mount Vernon deserve a safe and functioning sewage system," Garcia said. "By engaging the city and state we have come up with an enforceable agreement that sets a schedule to reduce pollution and protect public health. This settlement embodies EPA’s commitment to environmental equity and working with communities to tackle the long-standing challenge of aging water infrastructure."

The Clean Water Act generally prohibits discharges of pollutants into navigable waters, unless in compliance with a permit. Many municipalities, like Mount Vernon, operate "municipal separate storm sewer systems" (or "MS4s") that carry storm water and discharge it without treatment into nearby waters. Because separate storm sewer systems do not treat the water they discharge, a municipality is required by its MS4 permit to maintain a program for identifying and eliminating any sewage or other illicit pollutants flowing into the storm sewers.

According to the allegations in a June 28, 2018, complaint, the consent decree filed on Tuesday, and other court records:

In June 2018, the United States sued Mount Vernon, alleging that since at least January 2012, the city had failed to comply with these permit obligations and, as a result, had allowed raw sewage to flow into its storm sewer system and then to be discharged into the Hutchinson and Bronx Rivers. The complaint also alleged that Mount Vernon had failed to comply with two EPA Administrative Orders issued to compel the city's adherence to these requirements. New York State joined the United States as co-plaintiff in this lawsuit.

In September 2020, the District Court granted the governments’ motion for summary judgment and entered an order requiring Mount Vernon to take concrete steps to come into compliance with Clean Water Act MS4 requirements. However, after the court order was entered, Mount Vernon repeatedly missed deadlines and reporting obligations, leading the governments to obtain a slew of subsequent court orders compelling compliance and imposing financial sanctions against the city.

Despite this need for enforcement efforts, as reflected in the consent decree, federal officials said the city has made progress on its compliance obligations. Much work, however, remains to be done, according to those same officials. New York State has provided or committed to provide significant financial assistance to Mount Vernon to fund repairs to the city’s sewers.

The consent decree, filed with the court on Tuesday, provides a path forward for compliance in light of these developments, including by requiring Mount Vernon to perform sewer system repairs that the city estimates will cost in excess of $100 million.

SEE ALSO:

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• Feds Sue Mount Vernon To Force Sewer Cleanup

There are now a number of other requirements that the enforceable consent decree provides the city fulfill:

• Mount Vernon must construct two pump stations designed to eliminate identified sources of potential infiltration to the MS4.

• Mount Vernon must either eliminate all other sources of illicit discharges within 30 days of identifying them or submit a binding plan for EPA’s and New York State’s approval for addressing specific sources that require a longer period to eliminate.

• Immediately upon identifying sanitary sewer overflows that could cause illicit discharges into the MS4, Mount Vernon must take steps to mitigate those overflows.

• Mount Vernon must complete a Sewer System Evaluation Survey and submit for EPA’s and New York State’s approval a Sewer System Corrective Action Plan (SSCAP) "that addresses structural, operational, and maintenance issues for each of the conditions identified in the Sewer System Evaluation Survey." The SSCAP will be binding and enforceable under the consent decree.

• Mount Vernon must implement its updated Stormwater Management Program Plan for its MS4 and its Capacity, Management, Operation, and Maintenance program for its sanitary sewers.

• Mount Vernon must keep its mapping of sewer system outfalls current.

• Mount Vernon must continue to engage engineering and financial experts to help manage its sewer system compliance.

• Mount Vernon must undertake transparency and environmental justice measures, including by “evaluat[ing] any potential adverse impacts of construction, repairs, and other actions undertaken pursuant to [the Consent Decree] on overburdened and underserved populations” and “mitigat[ing] any such potential adverse impacts of construction, repairs, and other actions . . . to the maximum extent possible consistent with such work.”

The consent decree also provides for a $200,000 civil penalty to resolve the governments’ claims for civil penalties for the violations alleged in the initial complaint. Of that, $100,000 will be paid to the United States. $100,000 will be owed to New York State with payment suspended unless Mount Vernon fails to comply with the consent decree.

In the consent decree, Mount Vernon also admits and accepts responsibility for current and historic wrongs that led to the current situation.

Since at least 2013, Mount Vernon has not been in compliance with the permit applicable to its MS4 because it has not fully implemented and enforced an Illicit Discharge Detection and Elimination Program.

The city has failed to provide funding, equipment and staffing levels necessary to implement and enforce an Illicit Discharge Detection and Elimination Program. Mount Vernon submitted annual reports months later than the deadlines in June 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, and 2022. The city did not submit accurate information in its 2017 and 2018 Annual Reports regarding its completions of the Outfall Reconnaissance Inventory.

The city di not adequately inform the public about the hazards of illegal discharges and did not select and implement measures to reduce the amount of pollutants of concern in storm water discharges.

The city did not comply with two administrative orders issued by the EPA to compel Mount Vernon compliance with the General Permit and the Clean Water Act and the Mount Vernon MS4 has discharged and at times continues to discharge untreated sewage into the Bronx and Hutchinson Rivers.