Case 1:10-cv-04039-SDG Document 72-1 Filed 08/03/21 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, )

and the STATE OF GEORGIA, )
)
Plaintiffs, )
)
v. ) Civil Action No. 1:10-cv-4039-SDG
)
DeKALB COUNTY, GEORGIA, )
)
Defendant. )

PLAINTIFFS UNITED STATES AND STATE OF GEORGIA’S BRIEF IN

SUPPORT OF MOTION TO ENTER REVISED MODIFICATION TO
CONSENT DECREE

On October 21, 2020, Plaintiff the United States of America, by authority of

the Attorney General of the United States, acting at the request of the United States

Environmental Protection Agency (“EPA”), lodged with this Court a proposed

Modification to the 2011 Consent Decree, Oct. 21, 2020 (ECF 61-1) (hereinafter,

“MCD”) signed by the United States and the State of Georgia (collectively,

“Plaintiffs”), and the Defendant, DeKalb County (the “County”) (collectively, “the

Parties”). This brief is submitted in support of Plaintiffs’ Motion requesting entry

of the proposed Modification, with minor revisions to its Paragraphs 13 and 14, by

signing the revised Modification submitted as Attachment 1 to the brief, at the

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signature block on page 38. The revisions relate to renumbering certain

subparagraphs of Paragraph 65 of the original 2011 Consent Decree, which

erroneously contained two subparagraphs 65(d), and if amended by the lodged

MCD, would contain two subparagraphs 65(e). See Consent Decree, Dec. 20, 2011

(ECF 39) at 70 (hereinafter, “CD”); MCD at 33. The Modification should be

entered because it is fair, adequate, reasonable, in the public interest, and

consistent with the goals of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et

seq.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Wastewater Collection and Transmission System

This CWA case involves the County’s wastewater collection and

transmission system (“WCTS”) of its sanitary sewer system, which is designed to

collect and transmit sewage to wastewater treatment facilities for treatment.1 Under

the terms of the Consent Decree, “Spills” are unauthorized discharges of

wastewater from the WCTS that reach waters of the United States or the State, and

“sanitary sewer overflows” (“SSOs”) are a broader category of unauthorized

1
“WCTS” means all wastewater collection and transmission systems, including all
pipes, lift stations, Force Mains, Gravity Sewer Lines, manholes and other
appurtenances thereto which are owned or operated by the County, except for those
portions of a system or systems for which another entity is legally responsible for
maintenance. See CD at 17.

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discharges, including Spills, overflows of the WCTS, and building backups, that

may or may not reach waters of the United States or State. CD at 15-17. The

WCTS has continued to experience many Spills, even after entry of the Consent

Decree. MCD at 6.

B. Plaintiffs’ Complaint

This case began in 2010 with a Complaint, which asserted two claims under

the CWA with regard to the WCTS: (1) unauthorized discharges of untreated

sewage to waters of the United States, and (2) violations of the County’s National

Pollutant Discharge Elimination System permit operation and maintenance

provisions. Complaint, Dec. 13, 2010 (ECF 1). The State of Georgia, by and

through the Attorney General of Georgia, acting at the request of the Georgia

Department of Natural Resources, Environmental Protection Division (“EPD”),

asserted similar state claims under the Georgia Water Quality Control Act

(“GWQCA”), O.C.G.A. § 12-5-20 et seq.

C. Consent Decree Entered in 2011

In 2010, the Parties signed the Consent Decree, which was entered by the

Court on December 20, 2011.2 See Opinion and Order, Dec. 20, 2011 (ECF 38)

2
In April 2011, South River Watershed Alliance (“SRWA”) filed a motion to
intervene in this action, which the Court granted. See SRWA Motion to Intervene,

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(granting Plaintiffs’ Motion to Enter CD); CD at 98 (entered by the Court). The

Consent Decree’s injunctive relief provisions called for the development,

EPA/EPD review and approval, and implementation, of a suite of system-wide

Capacity, Management, Operations and Maintenance (“CMOM”) programs.3 The

Consent Decree also established a Priority Areas Sewer Assessment and

Rehabilitation Program (“PASARP”) with an eight and a half (8 ½) year deadline

(resulting in a June 20, 2020 deadline) by which the County was to assess and

rehabilitate all Priority Areas of the WCTS. CD ¶35(i). The Priority Areas total

approximately 831 miles of sewers, constituting approximately 33 percent of the

Apr. 7, 2011 (ECF 6); Opinion and Order Granting Motion to Intervene, May 11,
2011 (ECF 12). In its Order, the Court stated that given SRWA’s representations
that it did not anticipate engaging in discovery or motions practice and would not
use such tactics to delay entry of the Decree, it was unnecessary at that time to
place restrictions on SRWA’s participation in the action, but that Plaintiffs and
Defendant could revisit this issue if SWRA’s conduct warrants it. Opinion and
Order (ECF 12) at 5. SRWA objected to the Decree with regard to its concerns
about the Fats, Oils, and Grease Management Program, and the Court entered the
Decree over SRWA’s objection. See SRWA’s Mem. in Opp. to CD, Nov. 7, 2011
(ECF 29-1) at 7; Order Granting Motion to Enter CD, Dec. 12, 2020 (ECF 38).
3
The CMOM programs in the Consent Decree at Section VI include: a
Contingency and Emergency Response Plan; a Fats, Oils, and Grease Management
Program; a Sewer Mapping Program; a Maintenance Management System
Program; a Collection and Transmission Systems Training Program; a Flow and
Rainfall Monitoring Program; a Hydraulic Model; a Financial Analysis Program;
and an Infrastructure Acquisitions Program.

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WCTS.4 The Consent Decree further included an Ongoing Sewer Assessment and

Rehabilitation Program (“OSARP”), which ensures continuous assessment and

rehabilitation of the rest of the County’s WCTS. CD ¶38.

The Consent Decree provided for a civil penalty of $453,000 split evenly

between the United States and the State, and a stream cleanup Supplemental

Environmental Project (“SEP”) worth at least $600,000. CD ¶¶ 8, 47, App’x C

(SEP) (ECF 39-1). The County paid the penalty and performed the SEP.

The Decree may be modified only by a subsequent agreement signed by all

the Parties, and material changes must be approved by the Court. CD ¶105.

D. Procedural History

The County sought a modification to extend the PASARP timeframe. MCD

at 6. The Parties held their first meeting to negotiate a modification to the Consent

Decree in April 2019. On July 10, 2020, the Parties informed the Court that an

agreement in principle for a modification had been reached, subject to approval by

appropriate officials, public notice and comment, and court approval. Joint Status

4
DeKalb Co. Dep’t of Watershed Mgmt. Annual Report #9 at 9 available at
https://www.dekalbcountyga.gov/sites/default/files/users/user3551/DeKalb%20Co
unty%202020%20Annual%20Report%20No%209.pdf (last visited July 13, 2021).

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Report, July 10, 2020 (ECF 53).5 At the time the MCD was lodged with the Court

in October 2020, the United States informed the Court that, before seeking entry of

the proposed Modification, pursuant to 28 C.F.R. § 50.7, a notice of lodging of the

proposed Modification would be published in the Federal Register to solicit public

comment. Notice of Lodging, Oct. 21, 2020 (ECF 61).

Notice was published in the Federal Register on October 27, 2020. 85 Fed.

Reg. 68094 (Oct. 27, 2020). A thirty-day public comment period began on the date

the notice was published in the Federal Register and ran through November 26,

2020. In response to a request by a member of the public, the comment period was

extended through December 4, 2020. 85 Fed. Reg. 74388 (Nov. 20, 2020). During

this time, a copy of the proposed Modification was available on the DOJ website.

Thirty-nine public comments were received and reviewed by the Plaintiffs.

The comments (assembled in Attachments 2.a. and 2.b. hereto) are from

5
SRWA was not involved in the Parties’ settlement negotiations. (MCD at 8). This
is consistent with caselaw that holds there is no obligation to include an intervenor
in private settlement negotiations. United States et al. v. Lexington- Fayette Urban
County Gov’t, Civil Action No. 06-386-KSF, 2007 WL 2020246 at *4 (E.D. Ky.
July 6, 2007).

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individuals and community interest groups, including SRWA and the DeKalb

County branch of the NAACP.6

Pursuant to 28 C.F.R. § 50.7(b)(1), the United States reserved the right to

withdraw or withhold its consent to the proposed judgment if the comments

concerning the judgment disclose facts or considerations indicating that it is

inappropriate, improper or inadequate. MCD at 37. After review and consideration

of the public comments on the lodged Modification, the United States has

determined that entry of the Modification remains warranted and moves the Court

for entry of the Modification as revised, seeking the Court’s approval that it is fair,

reasonable, and consistent with the CWA. As discussed below, the comments do

not provide a basis to conclude that the proposed Modification is inappropriate,

improper, or inadequate. The State joins in the motion to enter the Modification.

II. TERMS OF THE MODIFICATION

A. Injunctive Relief

The Modification provides for: (1) the extension of the deadline for

PASARP completion and the addition of interim deadlines; (2) the implementation

of a Priority Fix List (“PFL”) requiring expedited rehabilitation of areas

6
Pursuant to the privacy provision of Appendix H of the Civil Local Rules of
Practice of Northern District of Georgia, home addresses listed in the comments
have been redacted to provide only the city and state.

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experiencing recurring SSOs; (3) the development and implementation of an

additional CMOM Program, the Capacity Assurance Program (“CAP”), which

establishes parameters for approving new or increased wastewater connections; (4)

the completion and use of a dynamic hydraulic model for evaluating the capacity

and rehabilitation needs of the WCTS; and (5) an increase in the County’s existing

reporting obligations.

PASARP— The Modification allows the County an additional seven and a

half (7 ½) years, until December 20, 2027, to achieve compliance with the

PASARP. The Modification cites reasons for the County’s failure to meet the

original June 20, 2020 deadline, including past County mismanagement and the

greater than anticipated amount of work needed to achieve compliance. MCD at 2-

3, 5-6.

Interim milestones have been added for the PASARP, requiring yearly work

on minimum linear footage of pipes, broken out by four project categories: simple

pipe review, simple pipe rehabilitation, complex pipe design, and complex pipe

rehabilitation. MCD App’x E (PASARP Definitions and Schedule) (ECF 61-3)

(hereinafter, “MCD App’x E”) at 2-3. In addition, certain remedial projects

throughout the system are identified for completion by December 31, 2021. MCD

App’x E at 4-7.

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Priority Fix List— The Modification establishes a list of priority locations

throughout the County of repeat SSOs that must be remediated on an expedited

schedule. MCD ¶8, adding CD ¶35(j).

The initial PFL, which lists areas known to have experienced repeated SSOs

since the December 2011 effective date of the Consent Decree, through June 30,

2020, identifies 103 priority work projects, 48 of which are in Priority Areas

identified under the PASARP and 55 of which are not in PASARP Priority Areas.

MCD App’x F (Priority Fix List) (ECF 61-4). Fifty percent of these locations must

be fixed within two years of entry of the Modification. MCD ¶8, adding CD ¶35(j).

The rest of these locations must be fixed within four years of the Modification

entry, with the exception of specific locations identified in a carveout that may be

eligible for an extension. Id. Under the carveout, the County may submit requests

to EPA/EPD for extensions for 21 specific locations listed in the Modification that

are particularly complex and may require more time for completion. Id. Any such

locations must nonetheless be fixed no later than December 20, 2027. Id.

The Modification provides for the addition to the PFL of locations that

experience two or more SSOs from specified causes in a rolling 12-month period,

and for deadlines for those to be fixed. Id. Based on recent SSOs, over 30

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additional locations would be added to the PFL and need to be fixed within 4 years

of being added to the PFL. See Attachment 4 at 10.

The CAP— The Modification adds another system-wide CMOM program,

the CAP, to manage proposed new sewer connections or increases in flow from

existing connections. MCD ¶4, modifying CD ¶29(b)-(c); MCD App’x D

(Capacity Assurance Program) (ECF 61-2) (hereafter “MCD App’x D”). The CAP

provides a mechanism for the County to perform capacity-enhancing projects in

capacity-limited areas and use a credit banking system to allow limited growth,

based on certain ratios that incentivize capacity-enhancing projects. MCD App’x D

at § 5. Also, if the County meets the two-year deadline to fix half of the initial PFL

locations by two years from the date of entry of the Modification, certain banking

credit ratios become more advantageous to allowing growth in the County,

providing the County additional incentive to meet its PFL deadlines. MCD App’x

D at § 5.3.7. If the County misses any subsequent PFL deadline, the ratios revert

back to the original ratios. Id.

Dynamic Hydraulic Model –A dynamic hydraulic model of the WCTS will

be used with the CAP. MCD at 7 and ¶4, modifying CD ¶29(b). The Parties

consider a dynamic model to be more accurate than the static model that the

County has been using. MCD at 5.

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Additional Reporting— The Modification increases reporting obligations to

allow EPA and EPD to more closely monitor the County’s compliance with the

Consent Decree. The Quarterly SSO Reports have been expanded to include more

information on SSOs and to include information with respect to the PFL. MCD ¶9,

modifying CD ¶56(a). The Semi-Annual and Annual Reports have also been

expanded to include information regarding PASARP annual minimum

rehabilitation requirements, and the Annual Reports also now require information

about PFL fixes. MCD ¶10, modifying CD ¶56(c). To allow increased judicial

oversight, the Modification requires the County to file all future Quarterly SSO

Reports and Semi-Annual Reports with the Court. MCD ¶10, modifying CD

¶57(e).

B. Civil Penalty

Plaintiffs determined that it is appropriate to assess, and the County agreed

to pay, an additional civil penalty which addresses the County’s failure to comply

with the original Consent Decree and also the prohibited Spills from its WCTS

through 2019. MCD at 7. The Modification provides for a $1,047,000 penalty to be

divided equally between the Plaintiffs. MCD ¶3.

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C. Stipulated Penalties

The Modification increases numerous stipulated penalties and adds new

provisions for which stipulated penalties may be assessed if they are violated. The

increases include the notable doubling of stipulated penalties for failure to meet the

PASARP deadline and more than doubling the stipulated penalties for Spills. MCD

¶13, modifying CD ¶65(b)-(d). The Modification adds stipulated penalties for

failure to comply with the PASARP interim deadlines and the PFL project

deadlines, for each new sewer service connection or increase in flow from an

existing sewer service connection authorized by the County in violation of the

CAP, and for inaccurate reporting of particular items in the County’s Quarterly

SSO Reports. MCD ¶14, adding CD ¶65(e)-(d).

The minor revisions in Attachment 1 relate solely to renumbering the

subparagraphs in Paragraph 65 of the Consent Decree.7 The Consent Decree

erroneously contains two subparagraphs 65(d): the first applies to Spills over

10,000 gallons, and the second is for failure to timely submit Quarterly, Semi-

Annual, and Annual Reports. The parties intended the Modification to increase

stipulated penalties in the first subparagraph 65(d), related to Spills over 10,000

7
The revisions also increase the number of pages of the Modification. Plaintiffs
have not refiled the Appendices to the Modification with Attachment 1 because the
revisions do not affect the Appendices.

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gallons. The revised Modification at Attachment 1 makes this clear by

renumbering the second subparagraph 65(d) as subparagraph 65(e); subparagraph

65(e) of the original Decree is then renumbered as subparagraph 65(f). See

Attachment 1 at 32-34.

The Modification also adds new stipulated penalty provisions, discussed

above as subparagraphs 65(e)-(j); however, because the Consent Decree already

contained a subparagraph 65(e), the lodged MCD added a second subparagraph

65(e). Attachment 1 renumbers the new stipulated penalty provisions as

subparagraphs 65(g)-(l). See Attachment 1 at 34-37.

ARGUMENT

I. STANDARD OF REVIEW FOR MOTION TO ENTER

In deciding whether to approve a consent decree, the district court must

evaluate whether the decree is fair, reasonable, and lawful, and in accord with

public policy and the public interest. Stovall v. City of Cocoa, Fla., 117 F.3d 1238,

1240, 1242, 1244 (11th Cir. 1997).8 District courts “should approve consent

decrees so long as they are not unconstitutional, unlawful, unreasonable, or

8
See also United States v. City of Miami, 664 F.2d 435, 441, n.13 (5th Cir. 1981)
(quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). In Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.

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contrary to public policy.” Id. at 1240; see also United States v. Georgia-Pacific

Corp., 960 F. Supp. 298, 299 (N.D. Ga. 1996) (“[T]he court should approve of the

settlement if it determines that the settlement is fair and reasonable, and resolves

the controversy in a manner consistent with the public interest.”). In environmental

cases, this standard is often framed in terms of whether the consent decree is fair,

reasonable, and consistent with the relevant statute’s goals. Id.; see also United

States v. Bay Area Battery, 895 F. Supp. 1524, 1528 (N.D. Fla. 1995).

A number of overarching principles apply to the determination of whether a

settlement meets this standard. First, the court should be guided by the strong

public policy that settlements are to be encouraged. D. H. Overmyer Co. v. Loflin,

440 F.2d 1213, 1215 (5th Cir. 1971) (“Settlement agreements are highly favored in

the law and will be upheld whenever possible…”); accord United States v.

Lexington-Fayette Urban County Gov’t, 591 F.3d 484, 491 (6th Cir. 2010); United

States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990); Aro Corp. v.

Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976). Settlements conserve the

resources of the courts, the litigants, and the taxpayers and “should . . . be upheld

whenever equitable and policy considerations so permit.” Id. This is particularly

true in disputes involving environmental violations “where voluntary compliance

by the parties . . . will contribute significantly toward ultimate achievement of

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statutory goals.” Kelley v. Thomas Solvent Co., 717 F. Supp. 507, 516 (W.D. Mich.

1989) (citation omitted).9

Second, the balancing of competing interests affected by a proposed

settlement to which the United States is a party “must be left, in the first instance,

to the discretion of the Attorney General.” United States v. Bechtel Corp., 648 F.2d

660, 666 (9th Cir. 1981); Bay Area Battery, 895 F. Supp. at 1528 (quoting Bechtel

Corp.). The presumption in favor of settlement is “particularly strong” when that

settlement “has been negotiated by the Department of Justice on behalf of a federal

administrative agency like EPA which enjoys substantial expertise in the

environmental field.” United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409,

1436 (6th Cir. 1991). Thus, where an agency committed to the furtherance of the

public interest has negotiated an agreement, there is a presumption of validity. See

Georgia-Pacific, 960 F. Supp. at 301 (“Entry of the Decree is supported by a long

line of caselaw which requires deference to a federal agency's discretion in

effecting a settlement in an area of complex legal and factual issues, and to the

sophistication of the parties who negotiated in good faith to achieve an expeditious

9
See also, e.g., United States v. City of Jackson, Miss., 519 F.2d 1147, 1151 (5th
Cir. 1975) (observing that settlements “maximize[] the effectiveness of limited law
enforcement resources” by permitting government to obtain compliance without
lengthy litigation).

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resolution of the United States' claims.”); see also Lexington-Fayette, 591 F.3d at

489 (holding that district court’s finding that the civil penalty in a CWA consent

decree could be better directed toward alleviating the conditions that violated the

CWA could not support the rejection of an otherwise proper settlement); United

States v. Hercules, LLC, Civil Action No. 2:18-cv-62, 2019 WL 6403416 at *6

(S.D. Ga. Nov. 27, 2019) (citing Cannons, 899 F.2d at 94 (“A district court, faced

with consent decrees executed in good faith and at arm’s length between the EPA

and counselled polluters, must look at the big picture, leaving interstitial details

largely to the agency’s informed judgment.”)).

Finally, the Modification must be reviewed in light of what it is – a

settlement of claims and not a final disposition after trial on the merits. See Bragg

v. Robertson, 83 F. Supp. 2d 713, 717 (S.D. W.Va. 2000). In reviewing a

settlement, the court determines “not whether the settlement is one which the court

itself might have fashioned, or considers as ideal, but whether the proposed decree

is fair, reasonable, and faithful to the objectives of the governing statute.”

Cannons, 899 F.2d at 84. The court does not have the power to itself modify a

settlement; it may only accept or reject the terms to which the parties have agreed.

See, e.g., Brooks v. Georgia State Bd. of Elections, 59 F.3d 1114, 1119-20 (11th

Cir. 1995) (finding “no authority for the proposition that a federal court may

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modify the terms of a voluntary settlement agreement between parties before a

decree has been entered”); Williams v. City of New Orleans, 694 F.2d 987, 993

(5th Cir. 1982), aff'd on rehearing en banc, 729 F.2d 1554 (5th Cir. 1984).

II. THE MODIFICATION IS FAIR, REASONABLE, AND CONSISTENT

WITH THE CWA

The Modification meets the standard for district court approval of a

settlement: it is fair, reasonable, and consistent with the CWA. Accordingly, the

Court should enter the proposed Modification.

A. The Proposed Modification is Fair.

A settlement is fair when it is the product of good-faith negotiations, reflects

the opinions of experienced counsel, and takes into account the possible risks

involved in litigation if the settlement is not approved. Georgia-Pacific, 960 F.

Supp. at 299 (citations omitted); United States v. District of Columbia, 933 F.

Supp. 42, 48 (D.D.C. 1996).

To determine whether a proposed settlement is fair, courts examine both

procedural and substantive components. Cannons, 899 F.2d at 86. An evaluation of

procedural fairness determines whether the negotiating process occurred in good

faith by informed, well-represented parties by measuring “candor, openness, and

bargaining balance.” Id. at 86. In general, courts find procedural fairness where the

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settlement was negotiated at arm’s length among experienced counsel. See, e.g.,

United States v. Montrose Chemical Corp. of Cal., 50 F.3d 741, 746 (9th Cir.

1995) (deference given to “affected parties . . . represented by experienced lawyers

[who] have hammered out an agreement at arm’s length and advocate its

embodiment in a judicial decree”); Cannons, 899 F.2d at 87; see also Akzo, 949

F.2d at 1435. Based on this standard, the Modification is fair, as it is the result of

over a year of good-faith, arms-length bargaining between the United States,

represented by the Department of Justice and counsel for EPA, the State,

represented by the Georgia Attorney General’s office, in consultation with EPD,

and the County represented by both in-house and outside counsel. See MCD at 8,

37-42. Furthermore “the manifested willingness of EPA to thoroughly consider” all

comments made with regard to the proposed settlement is a key indicator of

whether it was negotiated in good faith and is fair. See Akzo, 949 F.2d at 1435.

Substantive fairness applies the “concepts of corrective justice and

accountability: a party should bear the cost of the harm for which it is legally

responsible.” Cannons, 899 F.2d at 87. The proposed settlement reflects the

Parties’ careful and informed assessment of the merits of the Plaintiffs’ claims, the

costs, risks, and delays that litigation would entail and the benefits that will accrue

from an immediate start of the injunctive measures contained in the proposed

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Modification. District of Columbia, 933 F. Supp. at 48 (“Because the Agreement

ensures that immediate steps will be taken to fix operational and maintenance

deficiencies [at the facility], the environment will be protected and thus the

Agreement is fair in this respect.”); see also Akzo, 949 F.2d at 1436.

The Modification holds the County responsible for the alleged violations in

several ways. First, it must undertake extensive physical fixes. The Modification

calls for some quick, concrete steps, and long-term deadlines as well. Immediate

steps include several PASARP remedial projects due by the end of 2021, with half

of the initial PFL locations to be fixed within two years of the entry of the

Modification, and the bulk of the rest of the initial PFL locations within four years

of entry. MCD ¶¶7(i), 8(j), App’x E. Longer term deadlines include up to 21

complex initial PFL locations, and the final deadline for the PASARP work of

December 20, 2027. MCD ¶¶7(i), 8(j). The County has estimated that it will cost

over $1 billion in future costs to implement the requirements of the modified

Consent Decree.

The Modification also requires the County to pay a civil penalty of

$1,047,000. MCD ¶3. The proposed penalty is appropriate, given the County’s

years of numerous Spills and the circumstances leading to the County’s failure to

meet the June 2020 PASARP deadline in the Consent Decree.

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Furthermore, failure to satisfy obligations in the Modification would subject

the County to stipulated penalties, many of which are increased from those

contained in the Consent Decree. See Revised Modification, Attachment 1, ¶¶ 13-

14. Such penalties will serve as a deterrent against, and hold the County

accountable for, future violations. None of the public comments question the good

faith efforts of the Parties to negotiate an appropriate settlement in this case or

object to the size of the penalty. In light of the foregoing, the Modification is fair.

B. The Proposed Modification Is Reasonable.

A settlement is reasonable when it is “technically adequate” to accomplish

the goal of cleaning the environment and sufficiently compensates the public for

the alleged violations. See Georgia-Pacific, 960 F. Supp. at 299 (citing United

States v. Telluride Co., 849 F. Supp. 1400, 1402 (D. Colo. 1994)); District of

Columbia, 933 F. Supp. at 50 (citing Telluride, 849 F. Supp. at 1402); see also

Akzo, 949 F.2d at 1437 (An important criterion for the court to consider in

determining whether the proposed settlement is reasonable is its “likely

effectiveness as a vehicle for cleansing the [environment] . . . .”).

An extension of the PASARP completion date is reasonable at this time,

given the County’s late start in implementation, as well as the fact that the

assessment of the WCTS conducted pursuant to the Consent Decree revealed new

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challenges in areas not previously anticipated and that now require additional

attention. EPA, with the input of EPD, concluded that a revised PASARP deadline

of December 20, 2027 is acceptable and appropriate. An extension of the PASARP

deadline coupled with interim milestones is an appropriate means to place the

County on a realistic schedule and provide increased oversight by the Plaintiffs.

The Modification also adds additional remedial work, such as the PFL, which will

require rehabilitation of recurring SSO locations where the SSOs stem from certain

causes regardless of whether they are located in Priority Areas, and thus the

modified schedule provides adequate time for the County in light of its now larger

scope of work.

The other elements of the Modification are reasonable as well. The PFL is

tailored to address the most severe impacts of the County’s noncompliance on an

expedited basis. The use of a dynamic hydraulic model with the CAP provides the

means for the County to determine if it has capacity to add additional sewage flow,

with a banking credit system that provides incentives for the County to quickly and

effectively rehabilitate its WCTS. The enhanced reporting by the County will

allow greater oversight. The civil penalty, and the increased stipulated penalties for

future violations that may occur, help to deter further violations and delays in

achieving compliance. Moreover, the Modification ensures that the environmental

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benefits stemming from the injunctive relief will be immediately felt by its citizens

without the substantial expenditure of taxpayer and judicial resources that would

be necessitated by litigation.

As discussed in detail in the attachments, the commenters have raised

several issues concerning the proposed Modification. None of the comments, either

alone or in combination, casts serious doubt on the adequacy or reasonableness of

this settlement as a means to address the County’s violations. As discussed above,

the issue for this Court is not whether the Modification is the most favorable

settlement the Plaintiffs could have negotiated, but whether it is a reasonable

settlement. See Cannons, 899 F.2d at 84.

C. The Proposed Modification is Consistent with the Clean Water

Act and the Public Interest.

Finally, the proposed Modification is consistent with the purposes of the

CWA and serves the public interest. The role of the district court in reviewing an

environmental settlement is to determine whether it comports with the goals of

Congress. See Georgia-Pacific, 960 F. Supp. at 299. When Congress enacted the

CWA, the stated objective was “to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Civil penalties

play an important part in achieving this goal because they “deter future violations”

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of the CWA. Lexington-Fayette, 591 F.3d at 487-488, citing Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). As stated in

Informed Citizens United, Inc. v. USX Corp., 36 F. Supp. 2d 375, 378 (S.D. Tex.

1999), “the fundamental purpose of the Clean Water Act is to prohibit the

discharge of pollutants without a permit.”

Courts sometimes articulate this third prong of the motion to enter standard

as “consistent with the public interest.” See Georgia-Pacific, 960 F. Supp. at 299.

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: the 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.’”

United States v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995) (emphasis

in original; citations omitted).

The Modification is in line with the goal of the CWA, as it imposes interim

deadlines for the PASARP, adds additional injunctive relief directed at SSOs with

the PFL, and provides for a more accurate dynamic hydraulic model of the WCTS

to be used with a CAP, which incentivizes capacity-enhancing projects. Further, it

provides for a sizeable civil penalty for Spills through 2019, and increased

stipulated penalties for future noncompliance including Spills, providing redress to

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the public. The citizens of DeKalb County will benefit from this settlement

because it puts the County on a realistic, enforceable schedule to improve its

WCTS with an emphasis on addressing Priority Areas and recurring SSOs

identified on the PFL. The Modification sets the County on a well-defined path

toward compliance with the CWA and the GWQCA. The Modification more than

meets the requirement that it be “within the reaches of the public interest.” Id.

III. THE COMMENTS DO NOT PROVIDE ANY BASIS TO

DISAPPROVE THE MODIFICATION

The United States received 39 written public comments on the lodged

Modification.10 The public comment period affords an opportunity for the public to

point out facts and considerations indicating that the settlement is inappropriate,

improper, or inadequate. Nevertheless, several comments were supportive of the

Modification, including those by some County Commissioners and the DeKalb

County branch of the NAACP.

Intervenor SRWA’s submitted many questions, along with some comments,

available at pages 223-233 of Attachment 2.b. By its terms, the comment period

required by 28 C.F.R. 50.7 does not entail a question and answer session, but rather

the opportunity to comment on the terms of the proposed settlement. However,

10
Two commenters submitted comments which, while submitted shortly after the
public comment period expired, have been nevertheless considered as well.

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Plaintiffs provide detailed responses to SRWA’s questions and comments in

Attachment 3, which also reproduces SRWA’s comments and questions. The

remaining comments are organized into topics to which Plaintiffs respond in

Attachment 4.

After review and consideration of the public comments, the Plaintiffs

maintain that approval and entry of the Modification is warranted. The public

comments submitted do not provide a basis to conclude that the proposed

Modification is “inappropriate, improper or inadequate.” 28 C.F.R. § 50.7(b)(1).

CONCLUSION

For all the foregoing reasons, the proposed Modification should be

approved and entered by the Court, as it is fair, reasonable, and consistent with the

CWA. No proposed order is attached because the Modification, as revised as

described herein, contains a signature block for the Court on page 36 at

Attachment 1. The views of the commenters have been reviewed and considered.

None of the comments provides a basis to conclude that the proposed Modification

is “inappropriate, improper or inadequate.” 28 C.F.R. § 50.7(b)(1). Thus, entry of

the Modification is warranted and appropriate.

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CERTIFICATION PURSUANT TO LOCAL RULE 7.1(D):

I certify that the foregoing document has been prepared with one of the font and
point selections approved by the court in LR 5.1B: Times New Roman (14 point).

FOR THE UNITED STATES OF

AMERICA

Respectfully submitted,

TODD KIM
Assistant Attorney General
Environment and Natural Resources Div.
U.S. Department of Justice

Date: August 3, 2021 /s/ Valerie K. Mann

VALERIE K. MANN
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Div.
United States Department of Justice
P.O. Box 7611
Washington, D.C. 20044
Telephone: (202) 616-8756
Facsimile: (202) 514-0097
E-mail: Valerie.mann@usdoj.gov
OF COUNSEL:

Paul Schwartz
Associate Regional Counsel
U.S. EPA, Region 4

Nathan Stopper
Associate Regional Counsel
U.S. EPA, Region 6

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Respectfully submitted,

Kurt R. Erskine
ACTING UNITED STATES ATTORNEY
Trishanda L. Treadwell
Trishanda L. Treadwell
Assistant United States Attorney
Georgia Bar No. 356896
Richard Russell Federal Building
75 Ted Turner Drive SW
Suite 600
Atlanta, GA 30303
Telephone: (404) 581-6000
Facsimile: (404) 581-6181
Email: Trish.treadwell@usdoj.gov

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FOR PLAINTIFF STATE OF GEORGIA:

Respectfully submitted,

Christopher M. Carr
Attorney General

Date: August 3, 2021 /s Margaret Kemmerly Eckrote

MARGARET KEMMERLY ECKROTE
Georgia Bar No. 238709
Deputy Attorney General

ROBIN LEIGH
Senior Assistant Attorney General

/s Christopher R. Held
CHRISTOPHER R. HELD
Georgia Bar No. 987847
Assistant Attorney General
40 Capitol Square SW
Atlanta, GA 30334-1300
Telephone: (404) 458-3569
Email: peckrote@law.ga.gov
Email: cheld@law.ga.gov

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