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REGULAR MEETING JUNE 28, 2010 <br /> <br /> <br /> <br />(No Date) <br /> <br />Dear Mayor Luecke: <br /> <br />In 2005, over 100 communities in Indiana had illegal combined sewer overflows (CSOs) <br />and EPA was on a path to take enforcement actions against a number of these Cities. At <br />that time IDEM and EPA worked out a plan to work together with the CSO communities <br />to develop and implement long term control plans (LCTPs) to reduce or eliminate the <br />water pollution caused by the CSO events. EPA insisted on keeping the lead for 10 <br />communities of federal interest: Anderson, Elkhart, Evansville, Gary, Hammond, <br />Indianapolis, Jeffersonville, Mishawaka, Mount Vernon, and South Bend. IDEM took <br />the lead on the remaining 98 communities. At this time, all of the IDEM lead <br />communities and four of the federal lead communities (Anderson, Indianapolis, <br />Jeffersonville and Mount Vernon) are meeting their legal obligations to address their <br />CSOs. <br /> <br />In the summer of 2005, senior management from U.S. EPA, IDEM, and the U.S. <br />Department of Justice met with you and the Mayors of Elkhart and Mishawaka to express <br />out desire to work with your cities to adequately address CSO issues in the South Bend, <br />Mishawaka, Elkhart, area. Now, five years later, we believe that Elkhart and Mishawaka <br />would enter into legally enforceable agreements to implement acceptable LTCPs, but do <br />not want to proceed until South Bend also has an acceptable plan. Because of the lack of <br />an agreement with South Bend, U.S. DOJ has assigned additional legal resources to the <br />South Bend case and is preparing a complaint to file. While negotiations can continue <br />after a complaint is filed, there is generally more time pressure and less flexibility in <br />settling once the complaint is filed. <br /> <br />There are a number of cost components that become more significant once a complaint is <br />filed. <br /> <br />1. There will be additional legal costs to the City to answer the complaint and prepare for <br /> trial. <br /> <br />2. The formal penalty calculation will include recovering the estimated savings from not <br /> coming into compliance as quickly as possible. <br /> <br />3. There will be gravity based penalties for past discharge violations associated with <br /> CSOs. <br /> <br />4. The terms of any Consent Decree will likely be less favorable to the City as the issues <br />move towards litigation rather than negotiation. <br /> <br />I am not able to estimate the specific future costs for delays in your program to address <br />CSOs, but federal clean water act penalties can be up to $27,500 per day per unpermitted <br />discharge and penalties assessed in federal CSO Consent Decrees are often in the <br />millions of dollars. <br /> <br />Thank you for helping IDEM protect Hoosiers and our environment by continuing to <br />pursue your CSO LTCP. <br /> <br />Sincerely, <br /> <br /> <br />Thomas W. Easterly, Commissioner <br /> <br />Indiana Department of Environmental Management <br /> <br /> <br /> <br /> <br /> <br /> 13 <br /> <br />