July 2015, Vol. 70, No. 7

Editor's Log

EPA: Continuing Education

Mention the United States Environmental Protection Agency (EPA) and most active participants in the underground construction infrastructure industry cringe in fear and/or disgust.

To many, the EPA represents onerous rules or intrusive regulations. What pipeline transmission, telecom or electric contractor hasn’t been forced to deal with extensive environmental mediation requirements? In urban areas, gas, electric distribution/telecom contractors are constantly checking job sites for toxic soils or enacting mitigation measures to avoid storm runoff issues. Every time a directional drill sets up, they have to be prepared to test or dispose of drilling fluids for fear of contamination.

But for the sewer, storm water or water department of any city, EPA conjures up an even more frightening image with visions of a complicated legal process, mounds of paperwork, extensive and expensive engineering work. This ultimately leads to reaching an agreement to correct your system problems in a timely fashion all the while trying to find the money to pay for the work – somewhere. (Of course, for sewer contractors, a city under consent decree often generates much more work so they tend to greet the EPA with a somewhat different and more positive perspective.)

The sad thing is that all of the legal woes and embarrassment are generally avoidable. I had a detailed and enlightening conversation with an attorney from the U.S. Justice Department. His group was tasked with drafting legal cases against cities that were out of compliance with various EPA standards and ultimately negotiating the consent decrees. Business is booming, he said. Their department has doubled in size to keep up with the accelerated enforcement procedures generated by the surging and expanding EPA investigations into city systems.

I asked the lawyer how often cities put up a prolonged fight against the legal proceedings. “Rarely,” he replied. How often do cities win the legal battle? “Almost never.”

The attorney explained that when the justice department is called in, they meticulously prepare the legal documents for a formal filing while cities scramble to find a way out. But by the time the Justice Department does file the legal paperwork, city attorneys have explored all options and reached the inevitable conclusion that their city, just like thousands of others, must comply. Municipal management is briefed of the situation and 99 percent of the time the white flag is raised. “Cities’ know they are out of compliance so our filing is no surprise,” the Justice Department lawyer told me. “They know they don’t have a legal leg to stand on. The only course of action they have left is to try and negotiate terms that are acceptable to the EPA while trying to minimize impacts on a city – and its budget – the best they can.”

Many hailed fundamental changes by Congress some years back that disallowed the EPA from defining specific corrective actions that a city must undertake to address the scope of issues included in the consent decree. But the fact was that not much else changed. While the EPA can’t specify how a municipality must address repairs, they can still define a problem and establish end results that must be achieved to fulfil the terms of the consent decree. A city can choose its own methodologies to fix system problems, but those problems still must be adequately addressed according to a specific time frame and spending plan. Bottom line, the EPA retains all of its teeth.

The message to city managers, mayors and councils is clear. Listen to your public works department experts and avoid major legal issues that often lead to even worse situations than if they would have addressed their problems in the first place. Cities should skip the middle man (EPA). Find a money solution whether it involves rate hikes, creative dedicated funding arms, state revolving loan funds, grants or even private money. Then address your problems immediately. Those issues that are likely to get a city into trouble with the EPA will only get worse. In the end, the EPA will find you.

Cities’ can address their problems the easy way and on their own terms, or the hard way and under the EPA’s terms. The fallout from an EPA Consent Decree not only leads to years or decades of struggling to achieve predefined levels of compliance and progress deadlines, but also to public embarrassment and worse, disillusioned community taxpayers who had no idea there was a problem yet now are faced with bearing the burden of the cost for city council negligence. We have a fundamental trust issue with our governments at all levels now. Why should we insist on making that distrust worse at the grass roots level?

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