EPA says DeKalb County’s plan to end sewage spills need not be ideal; judge to decide
By David Pendered
The Biden administration has decided DeKalb County’s efforts to stop raw sewage from spilling into waterways don’t have to be ideal. They simply have to improve the current situation.
This issue is among those to be discussed Wednesday in U.S. District Court in Atlanta. A federal judge is considering terms of a proposed deal to grant DeKalb more time to fix its leaking sewerage. DeKalb failed to meet the original deadline of June 2020, as stated in the federal consent decree of 2011, and seeks an extension to Dec. 20, 2027.
The U.S. Justice Department contends in a brief that U.S. District Court Judge Steven Grimberg is not required to find the best solution to repair leaking sewerage. Instead, the judge simply has to find a solution that’s in the realm of “public interest.”
Here’s how the U.S. Justice Department defines the task facing the judge:
- “In assessing whether a proposed settlement is in the public interest: [t]he court should . . . bear in mind the flexibility of the public interest inquiry:
- [T]he court’s function is not to determine whether the resulting array of rights and liabilities ‘is the one that will best serve society,’ but only to confirm that the resulting settlement is ‘within the reaches of the public interest.’” [Emphasis supplied in the brief and original ruling.]
This language comes from a ruling antitrust case brought in 1995 by the U.S. government against Microsoft, Inc. The judge in the Microsoft case was to determine if an antitrust consent decree were “in the public interest,” according to the ruling by the U.S. Court of Appeals, in Washington.
The Justice Department, on behalf of the U.S. Environmental Protection Agency, appears to apply this provision of “within the reaches of the public interest” in various aspects of proposed terms to modify DeKalb’s federal consent decree.
For instance, Justice does not point out that DeKalb County failed to meet a December 2017 deadline for developing a particular tool to predict sewage spills. The deadline was in the original federal consent decree, and DeKalb still does not have the approved tool. The proposed modified consent decree does not cite a deadline for developing the tool.
There’s no debate that the county has completed part of the tool, by creating a mathematical model that predicts spills resulting from average or “static” sewage flow in pipes during dry weather.
However, DeKalb’s sewage system doesn’t tend to leak in dry weather. It leaks during rain events, when rainwater enters old and leaky sewer pipes, combining human waste with storm water, resulting in spills. .
The “dynamic” model that was to be created by 2017 was to incorporate the impact of rain events, making it possible to predict sewer capacity problems and sewer spills when the system is overloaded. .
The issue of the dynamic hydraulic model is a highlight of the only opposition to the judge’s acceptance of the proposed modified consent decree, which was submitted by the South River Watershed Alliance.
The South River Watershed Alliance is an approved intervenor in the case. The objection it has raised is cited in the paper filed by the Justice Department.
The alliance’s objection makes two requests of the judge:
- Appoint an independent third party to certify that the sewer system has capacity to handle sewage from any proposed house, building or other development. This, as opposed to allowing DeKalb to oversee sewer capacity certification;
- Keep the third-party monitor in place until a dynamic hydraulic model is created, approved by EPA and EPD, and put into routine use.
The South River Watershed Alliance’s response observes:
- “[T]here is no way to know how long the County will use the ‘Interim Sanitary Sewer Capacity Evaluation Program’ [the static hydraulic model] to approve new connections because the Revised Modification to Consent Decree has no deadline for EPA/EPD to approve the dynamic hydraulic models.
- “South River Watershed Alliance requests that an independent third-party oversee all capacity certifications until dynamic hydraulic models are used to calculate capacity.
- “This additional review will help prevent spills caused by new connections, even if such third-party oversight is hindered by the lack of an approved dynamic hydraulic model.”