U.S.

Department of Justice
Environment and Natural Resources Division
90-5-1-1-10396
Environmental Enforcement Section
P.O. Box 7611
Washington, DC 20044

Telephone (202) 514-5271

Facsimile (202) 514-8865
Facsimile (202) 514-0097

VIA EMAIL AND FEDERAL EXPRESS

November 2, 2015
Confidential Settlement Communication
Subject to Fed. R. Evid. 408
Jose de la Fuente
Lloyd Gosselink - Attorneys at Law
816 Congress Avenue, Suite 1900
Austin, TX 78701
(512) 322-5800
Re: United States v. City of Corpus Christi, Texas (S.D. Tex.) offer of settlement
pursuant to Executive Order 12,988
Dear Mr. de la Fuente:
I write in response to the injunctive relief proposals submitted by the City of Corpus
Christi (City) in August of 2014 and March and April of 2015, our subsequent conversations,
and the Citys supporting submissions (City Submissions).
As you are aware, the United States and the City have been engaged in negotiations since
early 2012 in an effort to resolve the Citys lengthy history of CWA violations. 1 We have made
some progress in reaching an agreement on the terms necessary to avoid litigation over the Citys
CWA violations, and we are willing to accept some of the Citys most recent proposals to further
this effort. However, it appears that we have reached an impasse, particularly with respect to the
compliance deadlines for the necessary remedial measures. The Citys proposed compliance
horizon, which runs as long as 17 years for some projects, is simply too long and not supported
by the Citys recent Financial Capability Assessment (FCA).
Since 2007, the City has violated effluent limits at its six waste water treatment plants
(WWTPs) more than 120 times. These violations include exceedances of the Citys NPDES
permit limits for flow, enterococci, fecal coliform, total suspended solids, biological oxygen
demand, ammonia, nitrogen, copper, residual chlorine, and pH. During this same period, raw
sanitary sewage overflowed from the Citys wastewater collection and treatment systems and
into peoples homes and City neighborhoods more than 7,000 times. Sanitary sewer overflows
(SSOs) are known to contain a variety of pathogenic substances that are harmful to public
health and the environment. In addition, elevated levels of enterococci bacteria have been found
in the waters surrounding Corpus Christi, some of which are water quality impaired for bacteria.
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As we have discussed, the Citys FCA does not conform to the relevant Environmental
Protection Agency (EPA) guidance and does not support the Citys proposed schedule for
resolving the Citys ongoing CWA violations. The City improperly included inflation or
escalation costs. The City improperly included costs associated with capital projects the City
has declined to obligate itself to complete as part of a consent decree (CD) with the United
States. The City also improperly included costs associated with work scheduled after the
proposed conclusion of the CD. An analysis, which is based on the City Submissions, but
conforms to the EPA guidance, makes clear that the City is capable of implementing the
requirements for remediating the wastewater collection and treatment system on a much shorter
schedule.
Given our apparent impasse, the United States is prepared to file an action in federal
court seeking injunctive relief and civil penalties from the City for its CWA violations. The
complaint will allege that: (1) the City violated its Texas Pollutant Discharge Elimination System
(TPDES) permits by discharging untreated sewage from unauthorized locations; (2) the City
failed to properly operate and maintain its wastewater collection and treatment system, as
required by its TPDES Permits; (3) the City violated effluent limitations for WWTP discharges
contained in its TPDES Permits; (4) the City discharged untreated wastewater into waters of the
United States and water in the State without a permit, in violation of 33 U.S.C. 1311 and
analogous State law; and (5) the Citys SSOs present an imminent risk of substantial harm to
public health by causing or contributing to high levels of bacteria at beaches surrounding the
City, thus giving rise to a claim for injunctive relief pursuant to the governments emergency
powers under CWA Section 504, 33 U.S.C. 1364.
The United States provides the settlement terms outlined in this letter in an effort to avoid
this litigation. The City must first commit, in writing, to finalize a CD consistent with these
terms. The City must also commit to an expeditious schedule for incorporating the core terms
outlined in this letter into the latest draft CD sent by the United States on April 28, 2015 (Draft
CD). If we do not receive the Citys commitments on or before January 8th, 2016, we are
prepared to file a complaint against the City for its CWA violations.
Settlement Terms 2
Where we felt it would be helpful, this letter sets forth the United States case teams
understanding of the Citys position so that it is clear what we are willing to recommend as part
of a settlement, or what changes are proposed. In the event that a description provided in this
letter differs from what the City intended to convey, the United States proposal should be read
to include only the elements described in this letter. The majority of timeframes presented below
are given as times from the Effective Date of the Consent Decree. These timeframes are to be

Please note that the terms contained in this letter are the recommendations of the United States
case team and are subject to the ultimate approval/disapproval of the EPA and Department of
Justice managers who are authorized to approve/disapprove settlements on behalf of the United
States.
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converted to dates certain starting from the time that the parties reach agreement in principle on
the terms laid out below.
Prioritization of Cleaning and Condition Assessment Work
In an effort to resolve the United States claims without litigation, we are willing to
recommend adopting much of the Citys risk assessment methodology for prioritizing the CDs
compliance requirements for cleaning and condition assessment (Prioritization System). This
risk assessment methodology prioritizes these compliance requirements based on areas of the
City facing the highest rates of SSOs. The proposed Prioritization System divides the Citys
system into 1,650 neighborhoods (which have similar pipe ages and soil conditions) and
determines the total length of sewer mains in each neighborhood. The City will then determine
the number of relevant SSOs that occurred in each neighborhood by taking the master list of
SSOs beginning in 2010 and removing those SSOs that were not caused by City-owned gravity
mains or that are considered non-structural and non-O&M (e.g., minor leakage during repair or
operational activities). The City will then calculate a relative risk score for each neighborhood
by dividing the percentage of total collection system SSOs that occurred in a neighborhood by
the percentage of total collection system pipe in that neighborhood. For example, if 4% of total
SSOs occurred in a neighborhood, and that neighborhood has 2% of total system pipe feet, then
its relative risk would be 2 (meaning it has twice the average risk). The City will prioritize
cleaning and condition assessment work across neighborhoods based upon their relative risk
scores while level loading the work across the entire time period of the settlement. Using
cleaning as an example, the City would clean the same number of pipe miles in each year for the
life of the CD, but those neighborhoods with the highest relative risk scores would be cleaned in
the earliest years of the CD.
We are willing to recommend that the United States adopt this methodology for
prioritizing the cleaning and condition assessment work, provided that the City agrees to the
following conditions: The City must update the risk assessment calculations for each
neighborhood on the date of CD entry. These updated relative risk scores will be used for
purposes of prioritizing the cleaning and condition assessment work under the CD. The
neighborhoods must then be level-loaded across 8 years, with the neighborhoods with the highest
relative risk scores falling earliest in the schedule. The cleaning and condition assessment work
will be performed in accordance with the requirements described below.
Capital Improvement Plan (CIP) Renewal Program
The United States cannot agree to the Citys proposed Renewal Program under which it
would commit to spending $2 million per year on remedial activities in the early years of the CD.
The Citys proposal does not achieve the primary purpose of the CIP section of the CD: ensuring
that previously planned capital improvement work is not delayed or canceled as a result of the
Citys other CD compliance obligations.
However, we are willing to recommend an alternative to the CIP procedure set out in
Paragraph 11 of the Draft CD in an effort to resolve our differences. The United States has
reviewed the Citys most recent CIP and identified three projects that must be included as
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enforceable compliance requirements of the CD. These three projects are listed in Appendix B
to this letter. Please note that this list is based on information currently available to the United
States and is subject to modification if our understanding about the nature, scope, or timing of
these projects, or the Citys CIP, changes.
Waste Water Treatment Plant (WWTP) CIP
Paragraph 12 of the Draft CD includes language regarding WWTP CIP and remediation.
This paragraph must remain intact, except that it must be updated to include a deadline for
submitting the Oso WWTP Remedial Measures Plan by no later than April 1, 2016. That plan
must provide for completing the Oso remedial work within three years of the approval of the
plan. The City also must update the list of proposed projects to be included in the appendix
associated with this section of the CD.
Cleaning
As explained above, we are willing to recommend much of the Citys proposed
Prioritization System. In an effort to reach agreement on this issue, we are willing to recommend
an 8-year schedule for systematic cleaning of the Citys entire small diameter system. This work
will be sequenced using the Prioritization System. This will result in the cleaning of all small
diameter pipe with a relative risk greater than 1 in the first few years of CD implementation. The
City will inspect all large diameter pipes on an 8 year schedule and clean those with a capacity
loss of greater than 15% (as determined by a methodology acceptable to all parties).

Capacity
We cannot agree to the Citys most recent proposal that the final capacity remedial
measures plan not be due until 6.5 years after the CD effective date. Based on a detailed review
of the Citys proposal, the United States believes that this can be done significantly faster. It
appears that the parties are close to reaching agreement regarding the CDs capacity assessment
and remediation process, though significant differences remain with regard to the schedule. The
Draft CD included proposed language covering a capacity assessment and capacity remedial
measures program at Paragraphs 15-16, though the portions that would establish completion
deadlines for the various deliverables were left blank. The final CD must retain the language in
the Draft CD and include the following deadlines:
a.
b.
c.
d.
e.
f.

Complete Field Investigations

Projected Capacity Constraints Analysis
Capacity Assessment Summary Report
Remedial Measures Alternatives Analysis
Capacity Remedial Measures Plan
Complete Remedial Activities

24 months from Effective Date

27 months from Effective Date
33 months from Effective Date
42 months from Effective Date
48 months from Effective Date
10 years from Effective Date

Condition
The United States cannot agree to the Citys most recent proposal that allows 4.5 years
before the condition assessment report must be submitted and 5.5 years before the remedial
measures plan must be submitted. As we have made clear each time this issue has been raised,
the United States believes that the condition assessment and remedial work must be done on a
rolling basis starting from the consent decrees effective date. In addition, any settlement of the
United States CWA claims against the City must include the following compliance requirements
regarding condition assessment and remediation:
Regarding gravity sewer lines: The City must implement a condition assessment and
remediation plan that requires it to assess and remediate structural defects in its entire smalldiameter gravity system (including pipes and manholes) in a sequence determined by the
Prioritization System, with repairs occurring as needs are identified. We are prepared to
recommend that the Citys proposed pipe condition rating structure (categorizing pipes on an AE scale, with E being the most seriously degraded) be used to prioritize the condition remediation
work. The City must submit an annual report that includes information on condition assessments
conducted in the reporting year and the remedial efforts slated to take place in the following 2
years. Any category E defects, and category D defects requiring remediation, must be
remediated within 2 years of the due date of the annual report covering the year in which they are
discovered. Emergency situations (including but not limited to any pipe experiencing a current
SSO or in a current state of structural collapse) must be addressed on an immediate basis.
However, the City may defer any condition related non-emergency work on any pipe identified
by the Hydraulic Model as having a potential capacity constraint until such time as that pipe is
either (1) scheduled for remediation as part of the capacity program or (2) it is determined that
there is no actual capacity constraint for that pipe. Pipes for which work has been deferred but
which are later found not to have actual capacity constraints must be identified in the Capacity
Assessment Summary Report and remediated within 2 years of that reports submission. Pipes
for which work has been deferred and which are found to have actual capacity constraints must
be identified in the Capacity Remedial Measures Plan and any deferred condition defects must be
remediated within the first 2 years of that reports submission. Except for pipe installed or
rehabilitated in the last ten years and pipe inspected by CCTV in the last five years, all non-PVC
pipe must undergo CCTV inspection as part of the condition assessment process. All
assessments must be completed within 8 years, according to the Prioritization System, and all
remedial work must be completed within 10 years of the CDs effective date. Large-diameter
pipe and manholes must be addressed on an accelerated schedule as a significant portion of the
condition assessment work for large diameter pipe and manholes has already been completed.
All assessments must be completed within 3 years and all category E defects, and all category D
defects requiring remediation, must be remediated within 2 years of the due date of the annual
report covering the year in which they are discovered.
Regarding force mains: The City must conduct a condition assessment for all force mains
by walking all lines, inspecting all air valves, and reviewing maintenance and SSO records. For
all non-PVC force mains, the City must conduct an analysis comparing pipe replacement with
cathode protection. Within 2 years of the CD effective date, the City shall provide a condition
assessment and remedial measures plan for EPA review and approval. All cathode protection
5

work must be completed within 3 years of the date of EPA approval of the remedial measures
plan. All force main repair or replacement must be completed within 10 years of the Effective
Date.
Regarding lift stations: We cannot agree to the Citys proposed 4.5 year schedule for
providing a lift station assessment report and 5.5 year schedule for providing a lift station
remediation plan. However, we would be willing to recommend the Citys proposal to conduct
lift station inspections using a check list to be agreed upon and incorporated as an appendix to
the CD. The assessment and remediation process must occur on a rolling basis starting as of the
effective date. The City must level load the review process over the first 5 years after the
effective date and include the findings and remedial plans associated with its checklist reviews
with the annual condition remedial reports submitted for the collection system. All projects must
be completed within 10 years of the effective date. Any existing lift station related CIP projects
must be included in the CIP section of the CD as enforceable requirements. The parties must
also reach agreement on the criteria that the City will use to inspect lift stations.
Capacity, Management, Operations and Maintenance (CMOM)
Paragraphs 17-19 of the Draft CD include language covering CMOM, though the
portions that would establish the due date of the CMOM Plan were left blank. That language
would require the City to submit a CMOM Plan for EPA review and approval by a date certain
that contains all of the elements included in an outline to be included as an appendix to the CD.
The most recent proposed outline was sent by the City on November 11, 2014. The United
States cannot agree to the Citys request that it be allowed five years before submitting a CMOM
plan, with no opportunity for EPA review and approval. The Citys CMOM plan must be
submitted for EPA review and approval by no later than 12 months after the CDs effective date.
With the addition of this due date, The United States believes the language in Paragraphs 17-19
remains appropriate as drafted. An updated outline is included as Appendix C to this letter.
Fats, Oils, and Grease (FOG)
Paragraphs 20-22 of the Draft CD include language covering FOG. The United States
believes this language remains appropriate as drafted.
SSO Response Plans
Paragraph 23 of the Draft CD includes language covering SSO Response Plans. The
United States believes this language remains appropriate as drafted.
Lift Station Power Failure Response Plans
Paragraph 24 of the Draft CD includes language covering lift station power failure
response plans. The United States believes this language remains appropriate as drafted.

WWTP Consolidation
We are willing to recommend that a settlement of the United States CWA claims include
a contingency to account for the possibility that the City will consolidate two or more of its
existing WWTPs. However, we cannot agree to the Citys most recent proposal that allows for
an automatic extension of all deadlines for remedial work in the Allison, Greenwood, and Oso
basins by 2 years (for a total of 17) should the City provide notice of intent to consolidate within
3.5 years of CD entry.
In the interest of resolving the United States CWA claims against the City, we are
willing to recommend a CD provision with the following terms: should the City elect to
consolidate two or more of its existing WWTPs and notify EPA of this intent within 2 years of
the effective date of the CD, it may submit to EPA for review and approval a plan for performing
that consolidation. This plan may modify the completion dates for WWTP CIP projects,
capacity remedial work, and condition remedial work in the basins affected by the consolidation.
Each proposed change to an existing completion deadline must be backed by an engineering
justification (e.g., a line or lift station will be made obsolete or need replacement because of the
rerouting of flows). In no event shall any deadline contained in the CD be extended by more
than two years because of the consolidation work.
Third-Party Review of Deliverables
Paragraphs 25-29 of the Draft CD includes language covering third-party review of
deliverables. The United States believes this language remains appropriate as drafted.
Civil Penalty
In order to resolve the United States CWA claims against the City, we are prepared to
recommend that the City pay a total civil penalty in the amount of $2,178,000. This penalty was
calculated using the municipal provisions of EPAs CWA settlement policy.
Supplemental Environmental Projects (SEPs)
While the parties previously deferred all substantive discussion of SEPs until the amount
of the civil penalty was established, the United States understands that the City does intend to
propose one of more SEP for consideration. Given that the United States penalty demand has
now been made, the City is encouraged to present any SEP proposal that it may have.
Public Outreach
Should the parties reach consensus on the injunctive relief necessary to resolve the Citys
CWA violations, we believe that an open house style public meeting should be held in Corpus
Christi. This meeting would be staffed by representatives of the City and the United States. The
intent would be to present both the problems that precipitated this enforcement action and the
proposed solutions to the public in a visually and linguistically accessible manner. We would
also solicit feedback based on the information provided.
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Sincerely,
/s/ Brandon Robers
Brandon Robers
Anna E. Grace
Trial Attorneys

cc (via email): Rusty Herbert, Esq., EPA Region 6

Robert D. Fentress, Esq., EPA Headquarters
Mark Steinbach, Esq., Office of Texas Attorney General
Jennifer Cook, Esq, TCEQ

Appendix A
(Schedule Summary)

SCHEDULE SUMMARY
1. CIP

Complete by deadlines in CIP

2. WWTP Projects
a. All WWTPs except Oso
b. Oso
i. Plan
ii. Work Complete

Complete by deadlines in appendix

April 1, 2016
3 years from plan approval

3. Power Outage Response Plans

90 days from Effective Date

4. CMOM Plan

12 months from Effective Date

5. Cleaning

8 years from Effective Date

6. Capacity
a. Complete Field Investigations
b. Projected Capacity Constraints Analysis
c. Capacity Assessment Summary Report
d. Remedial Measures Alternatives Analysis
e. Capacity Remedial Measures Plan
f. Complete Remedial Activities

24 months from Effective Date

27 months from Effective Date
33 months from Effective Date
42 months from Effective Date
48 months from Effective Date
10 years from Effective Date

7. Condition
a. Assess SD Gravity Pipes
b. Assess LD Gravity Pipes
c. Assess SD Manholes
d. Assess LD Manholes
e. Lift Stations
f. Force Mains
i. Plan
ii. Complete cathode protection
iii. Complete Pipe Repair/Replace
g. LD Gravity Pipe and Manhole remediation
h. Complete All Remedial Activities
8. Option for WWTP Consolidation Proposal

10

8 rolling annual reports/plans

3 years from Effective Date
8 rolling annual reports/plans
3 years from Effective Date
5 rolling annual reports/plans
2 years from Effective Date
3 years from plan approval
10 years from Effective Date
5 years from Effective Date
10 years from Effective Date
2 years from Effective Date

Appendix B
(CIP Projects to be Included in CD)

11

CIP PROJECTS TO BE INCLUDED IN CD

CIP Item
Laguna Shores Road
Force Main
Replacement

Completion
Date in CIP
FY 2016

McBride Lift Station

and Force Main
Improvements

FY 2017

Sharpsburg Lift
Station Upgrade & Up
River Road Force
Main Rehabilitation

FY 2016

Notes from CIP

Total cost

Completion
Date
Last day of
FY 2016

"This project will increase operational

efficiencies and protect against overflows,
preventing enforcement action from the
Texas Commission on Environmental
Quality."
"The project is essential to reduce longterm operational cost and to alleviate
potential Texas Commission on
Environmental Quality violations with lift
station failures and resulting overflows."

$6,223,000

$4,300,000

Last day of
FY 2017

"The Sharpsburg Lift Station presently

experiences near overflow conditions in
extreme wet weather conditions Work
will reduce potential overflows in the
area and minimize enforcement actions by
the Texas Commission on Environmental
Quality."

$2,387,000

Last day of
FY 2016

Total

$12,910,00

12

Appendix C
(CMOM Outline)

13

CMOM OUTLINE
I.

Table of Contents

II.

List of Appendices

III.

Capacity, Management, Operations and Maintenance (CMOM)

a.

Narrative describing CMOM program

i. Sewer Collection System description
ii. Purpose/intent of CMOM document

b.

Representation of Citys organizational structure

c.

Description of information management activities

i. Computerized maintenance management system description
ii. Customer Service tracking system
iii. Mapping/GIS

d.

Description of CMOM programs and ongoing activities

i. Cleaning
2. Narrative describing preventative (or proactive) maintenance
cleaning program
3. Ongoing cleaning program description with criteria for revisit
frequencies
a. Small diameter cleaning
b. Large diameter cleaning
c. Hotspot cleaning program
ii. Fats, Oils, and Grease (FOG)
1. Narrative referencing FOG Manual
2. Program description
iii.
SSO Emergency Response
1. Narrative referencing SSORP Manual
Program description and Training
iv.
Lift Stations
1. Narrative referencing Lift Station Response Plan
2. Program description
v.
Ongoing Condition Assessment
1. Narrative describing Condition Assessment efforts
2. Program description with criteria to be used to determine
ongoing inspection frequencies
a. Inspection methods [CCTV or other methods]
b. Small diameter
c. Large diameter
d. Manholes
e. Force mains
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vi.

vii.

f. Lift stations including Preventative Maintenance

schedules
Ongoing Capacity Assessment
1. Narrative describing Capacity Assessment
a. SSO event assessment
b. Hydraulic modeling
2. Ongoing Program description including timeframes for
reevaluation
CMOM Updates in Annual Reports
1. Updates to CMOM

e. Narrative referencing Citys construction standard

i.
Ordinances/Codes
ii
Design Criteria
iii
Construction inspection
f.

Citys Performance Indicators to be used for self-evaluation of performance of

major CMOM program elements and including ongoing Cleaning, Capacity
Assessment, and Condition Assessment. [City will provide the list of criteria used
for self-evaluation, but will not be obligated to meet specific indicator targets as
a requirement of the consent decree].

15