ITEM #: 9. DATE: 09/27/2021 AI #:500 |
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CITY COUNCIL ACTION REPORT
SUBJECT: |
SETTLEMENT AND DISMISSAL OF APPEAL OF AZPDES PERMIT AZ0022357 |
STAFF PRESENTER(S): |
Sarah Chilton, Deputy City Attorney |
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SUMMARY |
Agreeing to Settlement and Dismissal of the Appeal the City of Goodyear filed challenging the Terms of the Arizona Pollutant Discharge Elimination System (AZPDES) Permit No. AZ0022357. |
Recommendation |
ADOPT RESOLUTION NO. 2021-2181 AGREEING TO SETTLEMENT AND DISMISSAL OF THE APPEAL THE CITY OF GOODYEAR FILED CHALLENGING THE TERMS OF AZPDES PERMIT NO. AZ0022357; PROVIDING AUTHORIZATION AND AN EFFECTIVE DATE. (Sarah Chilton, Deputy City Attorney) |
FISCAL IMPACT |
As a result of the settlement, the city will no longer be incurring legal fees and costs associated with the appeal once all of the final documentation has been completed and filed. The city will be responsible for a one-time administrative processing fee for the cost of revising the city’s AZPDES permit, which is estimated to be between $3,000 and $3,500. There is no change to the annual fees for the city’s AZPDES permit as a result of this settlement, which remains at $2,500 per year for 1,000,000 to 9,999,999 gallons of discharge per day. |
BACKGROUND AND PREVIOUS ACTIONS |
Substantial amounts of Class A+ effluent are produced at the city’s 157th Avenue Wastewater Treatment Facility (the “Treatment Facility”). The city’s policy is to recharge effluent produced at the Treatment Facility into the city’s existing SAT site to satisfy the city’s renewable water supply requirements in its Designation of Assured Water Supplies. There are, however, times when the effluent cannot be discharged into the SAT site. When the effluent produced at the Treatment Facility cannot be recharged, the city discharges the effluent into the Buckeye Water Conservation Drainage (“BID”) canal pursuant to its Arizona Pollutant Discharge Elimination System (“AZPDES”) Permit issued by the Arizona Department of Environment Quality (“ADEQ”). The city’s AZPDES Permit allows discharges of class A+ effluent into the Gila River and into Buckeye Water Conservation Drainage District (“BID”) canal. Although the city’s AZPDES Permit allows effluent to be discharged into the Gila River, the city has directed its discharges into the BID canal because the standards for discharge into the Gila River are more stringent than those for discharge into the BID canal, making it difficult for the city to comply with the permit requirements for discharges into the Gila River. The reason for the difference in standards is based on the classifications of the two receiving waters (i.e. the Gila River and the BID canal, which feeds into the Hassyampa River) under the Clean Water Act. The renewal AZPDES permit issued by ADEQ, the BID canal was reclassified to the same classification that applied to the Gila River, and the same stringent standards for discharges into the Gila River now applied to discharges into the BID canal. Staff objected to the reclassification of the BID canal. In addition, assuming that the BID canal was properly reclassified, staff objected to the testing parameters included within the renewal permit. When the renewal AZPDES permit was issued, staff was aware that a case was winding its way through the courts challenging the rule pursuant to which the BID Canal had been reclassified. On May 24, 2021, the Goodyear City Council adopted Resolution 2021-2162 authorizing the retention of outside counsel specializing in environmental law and authorizing the appeal of the renewal AZPDES permit. The city’s outside counsel filed an appeal and requested an administrative hearing, which allowed the city to continue operating under the terms of the expired AZPDES permit. Following the filing of the appeal and request for an administrative hearing, numerous informal settlement meetings and discussions were held at the request of the city to discuss the city’s objections. After the final settlement meeting on August 11, 2021, ADEQ agreed to reissue the city’s renewal AZPDES permit with modified terms, including: (i) modifications to testing requirements that applied under the new classification of the BID Canal, which provided the city the most flexibility that provided the city the best chance of meeting the higher standards for discharges into the BID Canal; modifications to the levels of minerals allowed in the discharges as requested by the City of Goodyear; and terms that would allow lower standards to be imposed if, there was a ruling in the pending case that would result in discharges into irrigation canals being classified such that lower standards applied. Before the documentation could be prepared, a ruling in the pending court case was issued that resulted in the reinstatement of the rules in effect when the city’s expiring AZPDES permit was issued. In response, the state proposed a settlement pursuant to which the state would reissue the renewal AZPDES permit under the same terms as the expired AZPDES permit with both sides to bear their own costs and expenses for the appeal, including attorney’s fees. There will be an administrative processing fee, which is estimated to be between $3,000 and $3,500, for the reissuance of the revised AZPDES permit. The renewal AZPDES permit will be effective for a period of five (5) years for the renewal date. |
STAFF ANALYSIS |
Staff supports the settlement and dismissal of the appeal as set forth in Resolution 2021-2181. The revised permit that will be issued allows the city to continue its operations without the need for any operational changes, eliminates future costs and expenses if the appeal were to continue, and allows staff to focus its time and attention on other operational needs. |
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