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File #: 19-1843    Version: 1 Name: 10/7/19 -Varnum Amendment 5 for WWTP NPDES Permit
Type: Resolution Status: Passed
File created: 10/7/2019 In control: City Council
On agenda: 10/7/2019 Final action: 10/7/2019
Enactment date: 10/7/2019 Enactment #: R-19-445
Title: Resolution to Approve Fifth Amendment with Varnum LLP for Legal Services to Contest the National Pollutant Discharge Elimination System (NPDES) Permit for the Wastewater Treatment Plant ($90,000.00)
Attachments: 1. Varnum Amendment 4 Resolution, 2. Varnum Amendment 5
Title
Resolution to Approve Fifth Amendment with Varnum LLP for Legal Services to Contest the National Pollutant Discharge Elimination System (NPDES) Permit for the Wastewater Treatment Plant ($90,000.00)
Memorandum
Your approval is requested for the fifth amendment to the professional services agreement with Varnum LLP (Varnum) in the amount of $90,000.00 for legal services to contest the National Pollutant Discharge Elimination System (NPDES) permit issued by the Michigan Department of Environmental Quality (MDEQ) to the City's Wastewater Treatment Plant (WWTP).

The lengthy history of the City's contest of its NPDES permit, including its collaboration with the Chelsea, Dexter, and Loch Alpine WWTPs, was set out in detail in the cover memorandum for the resolution for the fourth amendment to the legal services agreement with Varnum LLP, a copy of which is attached.

The fourth amendment was intended to cover the contested case hearing and potential follow up activities that might be needed thereafter. Unfortunately, the follow up activities have become more extensive than anticipated.

The contested case resulted in a denial of the relief requested by the City and the other three WWTPs. The WWTPs had argued, and presented testimony to support their arguments, that the science on which the phosphorous limits in their NPDES permits and the TMDL on which they were based were flawed. The WWTPs appealed that decision to the Washtenaw County Circuit Court, which rejected the MDEQ's decision, and in lieu of reversal and remand, ordered MDEQ (now EGLE) to re-evaluate the Total Maximum Daily Load (TMDL) calculations for phosphorous.

The TMDL now proposed by EGLE is more stringent than the one that was the subject of the contested case, and its scientific basis is equally flawed. The proposed TMDL is currently subject to public comment. Unless EGLE revises it after comments, the City and the other WWTPs will need to consider options to challenge the TMDL, either at t...

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