After reviewing documents related to the city of Atlanta’s second consent decree regarding a variety of reports the city is required to prepare and distribute, the Neighbor discovered some discrepancies in how Atlanta reports its major spills to the state. Consequently, the news outlet ran into some resistance from the city and the Georgia Environmental Protection Division (EPD).
Atlanta became a party to the second of its two sewer consent decrees Dec. 20, 1999, after the Chattahoochee Riverkeeper sued the city in 1994 over federal violations regarding pollution into the river and its tributaries.
The title of this decree is the First Amended Consent Decree (FACD) and the plaintiffs are the EPD and the Environmental Protection Agency (EPA).
The FACD came about due to Atlanta violating the Clean Water Act (CWA), the Georgia Water Quality Control Act (GWQCA) and permits issued by EPD which authorize Atlanta to discharge treated wastewater into the Chattahoochee River or South River.
Generally, Atlanta’s sanitary sewer pipe system collects and conveys wastewater to any of the city’s three permitted water reclamation centers (WRCs).
Leaks and spills from the sewer pipes are prohibited, and so is discharging inadequately treated wastewater from the WRC’s. U.S. District Judge Thomas W. Thrash retains jurisdiction over this decree just as he does for Atlanta’s first consent decree.
Dec. 5, 2017, Lewis Hays, EPD’s manager of watershed compliance, sent a notice of violation letter to Kishia Powell, commissioner of the Atlanta Department of Watershed Management.
Enclosed in the letter were several attachments which listed numerous water-quality and permit violations that occurred between September 2015 and September 2017.
Among the violations were several wet-weather major spills totaling 28.6 million gallons which occurred during the last few months of 2015 at the Intrenchment Creek WRC (IC-WRC).
Although the IC-WRC still carries “WRC” in its name, in 2015 this facility did not have a permit to discharge wastewater into Intrenchment Creek.
Powell presented information about the pending violations to the Atlanta City Council’s utilities committee Sept. 11, 2018.
Then, in a letter dated Jan. 30, EPD Director Richard Dunn acknowledged receiving Atlanta’s full payment of $365,513 for fines associated with the IC-WRC spills and the other violations. He included attachments which also showed the same IC-WRC’s 28.6 million gallons of spills that were in Hays’ earlier letter, and he included a copy of consent orders signed by Powell and himself.
A reporting discrepancy had not been discovered until the Neighbor compared the IC-WRC’s 28.6 million gallons of spills with the spill reports in Atlanta’s “FACD semi-annual status report, second half 2015, No. 64” (FACD-64).
This report summarized sanitary sewer spill events along with other important information which occurred during the last six months of 2015.
CWA regulations and Atlanta’s consent decrees require that reports like FACD-64 are signed and certified that “...the information submitted is, to the best of my knowledge and belief, true accurate and complete.”
In FACD-64, Atlanta reported only 3.5 million gallons of spills thereby creating a discrepancy because the city omitted the 28.6 million gallons of IC-WRC spills for which it was eventually fined by EPD.
Copies of FACD-64 were then sent to the EPD, EPA, the Riverkeeper and Thrash.
In an effort to resolve the discrepancy between the reported spills totaling 3.5 million gallons in FACD-64 and the 28.6 million gallons of spills which resulted in EPD’s fines, the Neighbor sent a question to Mayor Keisha Bottoms’ office and Commissioner Powell: Where in the FACD-64 are the 28.6 million gallons reported?
Michael Smith, a spokesman for Bottoms’ office, initially replied by saying, “The Atlanta Department of Watershed Management is in compliance with all NPDES (National Pollutant Discharge Elimination System) permits, as well as both consent decrees.”
The Neighbor then sent a second email to Smith asking for a direct answer to the original question.
And since the Neighbor had reason to believe there are discrepancies regarding reports which are required by Atlanta’s first consent decree and questions about the data in the monitoring reports which are required by the NPDES permits that are issued by the EPD, the Neighbor added some questions about Atlanta’s combined sewer program to the second email.
Smith did not respond to the second email and those additional questions.
The Neighbor also sent questions about spills and Atlanta’s combined sewer program, which were similar to the ones that were sent to Bottoms and Powell, to EPD spokesman Kevin Chambers for Dunn and to Dawn Harris-Young, a spokeswoman for the EPA’s Region 4.
Harris-Young did not return an email seeking comment. The EPD responded by having Hays explain why the inconsistency existed.
“The spills from the Intrenchment Creek WRC that you have highlighted in your image are outfall spills, and were erroneously included in Attachment A (Sanitary Sewer System Spills) of EPD-WP-8602,” he said. “They should be listed in Attachment B (Major Outfall Spills) instead. Outfall spills are permit violations and are not covered by consent decree(s).”
After sending Chambers a follow-up email with more questions, he only responded by saying he and the EPD declined to comment further.
Council members respond
Council members who were contacted only about Atlanta’s inaccurate spill reporting in FACD-64 said they would pass on the Neighbor’s concerns to the department of watershed management or others with the city.
“I’ve gone to the appropriate city attorney and requested a response; he said he’d take it to watershed,” said longtime District 7 Councilman Howard Shook, who represents part of Buckhead and previously chaired the council’s utilities committee, which has oversight of the department of watershed management.
The committee’s current chair is District 8 Councilman J.P. Matzigkeit, who represents part of Buckhead.
He said the issue occurred before he was elected in 2017 and took office the following January, when the department of watershed management was led by a different commissioner, Jo Ann Macrina.
“I shared your questions with the watershed department and they’re going to look into it,” Matzigkeit said, adding he feels that department is in better shape today than in 2015. “I have faith in the department of watershed management, and they over-report as has been my observation oftentimes. They’ll get with the EPD and compare notes.
“There’s a definition of what’s a spill and what’s not a spill. Their notes may not match. We’re spending $3.4 billion (as a city) to address this issue and we’re taking (these) consent decree(s) seriously and are putting a lot of resources into our infrastructure. I feel we’re taking appropriate action to address the problems outlined in the consent decree(s).”
Said council President Felicia Moore, “I think in reading it and understanding what the administration’s response is, it appears to me that it should probably be something I will pass on to J.P. I hope to get a response (from the department) or have them come to report (on it) at a (utilities) committee meeting.”
The same email sent to the EPA and EPD was also sent to Riverkeeper Executive Director Juliet Cohen and Jason Ulseth, the Riverkeeper’s riverkeeper. They did not directly answer all the Neighbor’s questions, but Ulseth said the EPA has thoroughly examined Atlanta’s sewer system compliance with the consent decrees and it’s following the rules.
“EPA’s Office of Inspector General conducted a comprehensive audit of the agency’s oversight of and the city of Atlanta’s compliance with the combined sewer system (CSS) consent decree in 2017-2018, finding that the city is ‘largely in compliance.’
“We continue to review the city’s quarterly status reports and annual reports regarding consent decree compliance. Additionally, we are conducting water-quality monitoring across the watershed, including downstream of a number of CSS treatment plant outfalls to track potential discharges of pollutants that violate water quality standards or the city’s permits.”
Ulseth also said the Riverkeeper continues to monitor the city’s sewer system.
“When the city has a discharge that exceeds its permit limits, they report it and clarify what standard was exceeded and what mechanical, personnel or situational conditions contributed to the violation,” he said. “If you have specific examples of when specific problems may have occurred, and what treatment processes failed in order to cause a bypass, we are interested in learning more.
“(The Riverkeeper) will continue to monitor the performance of the CSS and will be participating in the public process around renewing the CSS permit in 2020.”
Public entitled to know
Today’s water/sewer ratepayers may not know that, in the 1997 decision which led to Atlanta’s first consent decree, Thrash wrote, “... EPD’s acquiescence is no defense to Atlanta’s flagrant falsification of the monitoring reports. … The monitoring reports are public records and the public should be entitled to rely upon them in determining whether Atlanta is complying with the Clean Water Act.” (click here and search for “acquiescence”).
There is an indisputable discrepancy between the Atlanta executive branch’s statement and its refusal to provide answers to the Neighbor’s questions about spills and the city’s combined sewer program.
And Richard Dunn’s refusal to respond to the similar questions that the Neighbor sent to EPD is cause for serious alarm.
The EPA has an oversight role in regard to the EPD’s implementation of certain contractual agreements which authorize Georgia to issue permits, ensure compliance with environmental law and take enforcement actions.
The Neighbor has reason to believe that after Mary Walker, the EPA’s regional administrator for Region 4, which includes Georgia, and Scott Gordon, the EPA’s Region 4 deputy director of the enforcement and compliance assurance division, had been informed of many (not all) of the discrepancies involving Atlanta and EPD, they refused to accept new information, beyond that which had already been provided.
The Neighbor is looking closely to see if Bottoms and the watershed management and law departments are, in fact, submitting and distributing reports which are true, accurate and complete.
The information in various reports must include accurate data which shows Atlanta is in compliance with Georgia and federal water-law which protects public health; Atlanta is protecting water quality in waters of the state; and Atlanta is in compliance with both consent decrees and permits issued by the EPD.
Whether the Atlanta council will exercise its oversight responsibilities by obtaining written answers to the Neighbor’s questions sent to executive branch remains to be seen.
In order to begin to resolve any discrepancies, the answers should be certified, “...true, accurate, and complete...” by Bottoms, Powell and Mikita Browning of the department of watershed management, City Attorney Nina Hickson and attorneys Roger Bhandari and Patrick McShane of the law department.
Water/sewer rates in Atlanta are among the highest in the country plus there is a 1% municipal option sales tax.
Bottoms and the council can demonstrate their commitment to the public’s entitlement for “... determining whether Atlanta is complying with the Clean Water Act ...” by sending the certified answers to the Neighbor.