Lexington Consent Decree – A Unique Enforcement Action (SSO & MS4 Violations)

In late 2006, the United States Environmental Protection Agency (USEPA) and the Kentucky Energy and Environment Cabinet (KyEEC), filed a civil action against the Lexington-Fayette Urban County Government (LFUCG), alleging violations of the Clean Water Act (CWA). In the civil action, USEPA and KyEEC alleged various sanitary sewer system violations, including sanitary sewer overflows (SSOs), un-permitted discharges, un-permitted bypasses and permit exceedances. USEPA / KyEEC also alleged various violations of LFUCG's Municipal Separate Storm Sewer System (MS4) permit.Over a 14-month period, USEPA, KyEEC and LFUCG negotiated the terms of a Consent Decree, which was to provide detailed remedial measures and appropriate implementation schedules for resolving the alleged CWA violations. At the beginning of the negotiations, the prior LFUCG administration invited a citizens group to attend negotiation sessions. Later, this group was asked to remove themselves from the negotiations. The citizens group subsequently filed a complaint in intervention but the Court refused to allow the group to participate in negotiations.In March 2008, a Consent Decree, signed by USEPA, KyEEC, and LFUCG was lodged in U.S. District Court, Eastern District of Kentucky, Central Division at Lexington. After consideration of public comments, as required by the CWA, the Court rejected the Consent Decree, issuing an opinion that the “penalties were too high and that the penalty money could be better applied to the work required under the Consent Decree”.The USEPA appealed this ruling to the Sixth Circuit Court of Appeals and the parties are in the process of submitting briefs. LFUCG has continued to implement remedial measures contained in the rejected Consent Decree, in accordance with the schedules contained in the Consent Decree, as lodged with the Court on March 14, 2008.