Case 3:09-cv-00128-WTL-WGH Document 280 Filed 02/18/16 Page 1 of 5 PageID #: 3730 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION UNITED STATES OF AMERICA And THE STATE OF INDIANA, Plaintiffs, v. THE CITY OF EVANSVILLE, INDIANA And EVANSVILLE WATER AND SEWER UTILITY BOARD, Defendant. Case No. 3:09-cv-128 WTL-WGH NOTICE OF LODGING THIRD AMENDMENT TO CONSENT DECREE The United States of America, by and through its undersigned attorneys, hereby lodges the accompanying proposed Third Amendment to Consent Decree ( Third Amendment with this Court, pending solicitation of public comment. 1. The United States and the State of Indiana entered into a Consent Decree with the City of Evansville and the Evansville Water and Sewer Utility Board ( Evansville that this Court approved on June 22, 2011 (the 2011 Decree. The 2011 Decree required Evansville to take various steps to ensure compliance with the federal Clean Water Act and corresponding state law. 2. Paragraph 124 of the 2011 Decree allows modifications to that Decree only by a written agreement signed by all of the Parties, and where the modification constitutes a
Case 3:09-cv-00128-WTL-WGH Document 280 Filed 02/18/16 Page 2 of 5 PageID #: 3731 material change to the Decree, such modification is effective only upon approval by the Court. This proposed Third Amendment would make a material modification to the 2011 Decree; thus the parties shall seek Court approval of the modification. 1 Additionally, the United States will solicit public comment on the proposed changes in advance of formally seeking Court approval, consistent with Department of Justice policy. 3. Among other things, the 2011 Decree required Evansville to develop and implement an Integrated Overflow Control Plan ( IOCP to control Combined Sewer Overflows and Sanitary Sewer Overflows from its sewer system. 4. Since entry of the 2011 Decree, Evansville has been developing its IOCP in consultation with the U.S. Environmental Protection Agency ( EPA and the Indiana Department of Environmental Management ( IDEM. Evansville submitted its proposed IOCP to EPA and IDEM on January 15, 2016. The control plan alternative that Evansville selected under that proposed IOCP would require an array of sewer system and wastewater treatment plant improvement projects, at an estimated cost of more than $700 million. 5. The Third Amendment would extend the 2011 Decree s deadline for implementing Evansville s IOCP, requiring completion by no later than May 31, 2041. In addition, the Third Amendment requires Evansville to implement a series of Non-IOCP Capital Investment Projects, the construction of which must commence at various times between 2020 and 2035, and all of which must be completed by May 31, 2040. 1 The parties previously executed two non-material modifications to the Consent Decree that were filed with the Court on April 23, 2012 and November 30, 2012 [Dkt. Nos. 180 and 233, respectively]. As those modifications did not constitute material changes to the Decree, Court approval under Decree Paragraph 124 was not sought by the parties. - 2 -
Case 3:09-cv-00128-WTL-WGH Document 280 Filed 02/18/16 Page 3 of 5 PageID #: 3732 6. Pursuant to Department of Justice policy, the United States will publish notice of the lodging of the proposed Third Amendment in the Federal Register to commence a 30-day public comment period. The Court should not sign the proposed Third Amendment until the public has had an opportunity to comment and the United States has addressed those comments, if any. 7. The United States may withhold its consent to the proposed Third Amendment if the comments disclose facts or considerations which indicate that the proposed Third Amendment is improper, inappropriate, inadequate, or not in the public interest. 8. At the conclusion of the public comment period, the United States will: (i file with the Court any written comments received pertaining to the proposed Third Amendment; and (ii either notify the Court of its withdrawal of the proposed Third Amendment, or respond to comments received and request this Court to approve and enter the proposed Third Amendment. Respectfully Submitted, FOR THE UNITED STATES OF AMERICA JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice DATE: February 18, 2016 s/nigel B. Cooney NIGEL B. COONEY Trial Attorney, Environmental Enforcement Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 202-514-3145 JOSEPH MINKLER United States Attorney Southern District of Indiana - 3 -
Case 3:09-cv-00128-WTL-WGH Document 280 Filed 02/18/16 Page 4 of 5 PageID #: 3733 THOMAS KIEPER Assistant United States Attorney Southern District of Indiana 10 West Market Street, Suite 2100 Indianapolis, IN 46204-3048 - 4 -
Case 3:09-cv-00128-WTL-WGH Document 280 Filed 02/18/16 Page 5 of 5 PageID #: 3734 CERTIFICATE OF SERVICE I hereby certify that on February 18, 2016, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system which will send notification of such filing to the following: For the City of Evansville: David L. Jones City of Evansville / djones@joneswallace.com Anthony Scott Chinn -- Faegre Baker Daniels / scott.chinn@faegrebd.com James Patrick Hanlon -- Faegre Baker Daniels / jphanlon@faegrebd.com Anne Kramer Ricchiuto -- Faegre Baker Daniels / anne.ricchiuto@faegrebd.com Kevin M. Kimmerling -- Faegre Baker Daniels / kevin.kimmerling@faegrebd.com Larry E. LaTarte, Jr -- Faegre Baker Daniels / larry.latarte@faegrebd.com Timothy Moriarty -- Faegre Baker Daniels / timothy.moriarty@faegrebd.com Edward S. Griggs -- Faegre Baker Daniels / sean.griggs@btlaw.com Susan Parker Bodine Barnes & Thornburg / susan.bodine@btlaw.com Erika K. Powers Barnes & Thornburg / erika.powers@btlaw.com For Environmental Management Corporation: Mark E. Miller Bowers Harrison / mem@bowersharrison.com Cory A. Kuhlenschmidt Bowers Harrison / cak@bowersharrison.com Katherine Nicole Worman Bowers Harrison / knw@bowersharrison.com John A. Sheehan Clark Hill PLC / jsheehan@clarkhill.com Clifford R. Whitehead Bowers Harrison / crw@bowersharrison.com Service was also made via email to the following: In addition, service has been made via email to the following: For the United States of America: Thomas E. Kieper U.S. Attorney s Office, S.D. Ind. / tom.kieper@usdoj.gov Randall M. Stone U.S. DOJ / randall.stone@usdoj.gov Nicole Cantello U.S. EPA Region 5 / cantello.nicole@epa.gov Joanna Citron Day U.S. EPA OECA / Joanna.day@epa.gov Nigel B. Cooney U.S. DOJ / nigel.cooney@usdoj.gov For the State of Indiana: Patricia Orloff Erdmann Indiana Attorney General s Office / patricia.erdmann@atg.in.gov s/nigel B. Cooney - 5 -