Most Consent Decrees addressing combined sewer overflow (CSO) related violations have been approved by the federal courts. However, the Northern District of Ohio U.S. District Court rejected a recent CSO decree proposed by the Department of Justice (DOJ) involving the city of Akron, OH.
The DOJ had brought an action against the city of Akron in February 2009. It alleged that Akron had been discharging pollutants in violation of its National Pollution Discharge Elimination System (NPDES) permit. The complaint alleged that through CSO discharges Akron had:
1) Violated its general affluent limitations;
2) Allowed dry weather overflows;
3) Allowed unpermitted discharges;
4) Committed bypass violations; and
5) Failed to monitor and report as required by this permit.
The DOJ and the city of Akron ultimately agreed to enter into a Consent Decree and submitted it to the court for approval. The court refused to approve the Consent Decree. It had undertaken a two-day fairness hearing in which it addressed various issues associated with the proposed decree. The court was clearly troubled by its view that the decree did not contain a completed schedule for construction and upgrades. In addition, the court argued that the decree was not a full resolution of the alleged violations and that it was effectively an agreement to agree (i.e. stating that there is currently no agreement on a full schedule of events to occur under the decree).