CCR2005227.
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COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #227-2005
RESOLUTION APPROVING SETTLEMENT RELATED TO
MAY, 2004 SANITARY SEWER OVERFLOWS OF
MILWAUKEE METROPOLITAN SEWERAGE DISTRICT
WHEREAS, In 2004 the State of Wisconsin notified this municipality and 27 other communities
that are tributary to the MMSD that it planned to file a lawsuit seeking penalties and affirmative
injunctive relief as a result of, in part, alleged violations of various water pollution control laws;
and
WHEREAS, The 28 communities have participated in settlement discussions and have
cooperated in negotiating the attached Stipulation and Order for Judgment in the threatened
lawsuit with the State of Wisconsin; and
WHEREAS, The Stipulation will be effective only if executed by substantially all parties and filed
with the Court on or before December 16, 2005; and
WHEREAS, This municipality's Attorney has reviewed the provisions of the attached Stipulation
and Order for Judgment and, upon consultation with representatives of the Engineer for this
municipality, has concluded that they are reasonable and that approval thereof would be in the
best interests of the City; and
WHEREAS, It is contemplated that the attached Stipulation and Order for Judgment will be filed
by the State with the Court simultaneously with a summons and complaint, to be followed by a
30-day public-comment period; and
WHEREAS, The Stipulation and Order for Judgment contains no admission of liability by this
Municipality's Governing Body ("MGB") or any other defendant.
NOW, THEREFORE, BE IT RESOLVED, By this elected governing body of this municipality
that the attached Stipulation and Order for Judgment is hereby approved and that this
municipality's Attorney is authorized to execute same on behalf of this municipality.
BE IT FURTHER RESOLVED That until said Stipulation is accepted and approved by the
Court, there shall be no comment on this pending litigation by the members of the MGB.
DATED THIS 22ND DAY OF NOVEMBER, 2005.
SPONSORED BY:
Mayor Charles H. Damaske
This is to certify that this is a true and accurate copy of Resolution #227-2005 which was
adopted by the Common Council of the City of Muskego.
~Ú\...3/;,~~ ~
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lerk- Treasurer ) --'- r /"
11/05
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STATE OF WISCONSIN CIRCUIT COURT
BRANCH
MILWAUKEE COUNTY
STATE OF WISCONSIN,
Plaintiff,
Case No. 2005-CX-000013
-vs-
Code No.
MIL WAUKEE METROPOLITAN SEWERAGE
DISTRICT, VILLAGE OF BAYSIDE, VILLAGE OF
BROWN DEER, CITY OF MILWAUKEE, VILLAGE
OF ELM GROVE, VILLAGE OF FOX POINT,
VILLAGE OF HALES CORNERS, VILLAGE OF
BUTLER, VILLAGE OF CALEDONIA, CITY OF
FRANKLIN, VILLAGE OF GERMANTOWN, CITY
OF GLENDALE, VILLAGE OF GREENDALE, CITY
OF GREENFIELD, VILLAGE OF MENOMONEE
FALLS, CITY OF MEQUON, COUNTY OF
MILWAUKEE, CITY OF MUSKEGO, CITY OF NEW
BERLIN, CITY OF OAK CREEK, VILLAGE OF
RIVER HILLS, CITY OF ST. FRANCIS, VILLAGE
OF SHOREWOOD, VILLAGE OF THIENSVILLE,
VILLAGE OF WEST MIL WAUKEE, CITY OF
CUDAHY, CITY OF WEST ALLIS, VILLAGE OF
WHITEFISH BAY, CITY OF WAUWATOSA AND
CITY OF BROOKFIELD,
Defendants.
STIPULATION AND ORDER FOR JUDGMENT
SIGNATURE PAGE
Dated this J.x. day of á ~
' 2005.
POBox 1348
VVaukesha, VVI 53188
262 548-1340
MWI 049297 JDOC
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
STATE OF WISCONSIN CIRCUIT COURT
BRANCH
MILWAUKEE COUNTY
STATE OF WISCONSIN,
Plaintiff,
Case No. 2005-CX-000013
v.
Complex Forfeiture: 30109
MILWAUKEE METROPOLITAN SEWERAGE DISTRICT,
VILLAGE OF BAYSIDE, VILLAGE OF BROWN DEER,
CITY OF MIL WAUKEE, VILLAGE OF ELM GROVE,
VILLAGE OF FOX POINT, VILLAGE OF HALES CORNERS,
VILLAGE OF BUTLER, CADDY VISTA SANITARY DISTRICT,
CITY OF FRANKLIN, VILLAGE OF GERMANTOWN,
CITY OF GLENDALE, VILLAGE OF GREENDALE,
CITY OF GREENFIELD, VILLAGE OF MENOMONEE FALLS,
CITY OF MEQUON, COUNTY OF MIL WAUKEE,
CITY OF MUSKEGO, CITY OF NEW BERLIN,
CITY OF OAK CREEK, VILLAGE OF RIVER HILLS,
CITY OF ST. FRANCIS, VILLAGE OF SHOREWOOD,
VILLAGE OF THIENSVILLE, VILLAGE OF WEST MIL WAUKEE,
CITY OF CUDAHY, CITY OF WEST ALLIS,
VILLAGE OF WHITEFISH BAY, CITY OF WAUWATOSA,
and CITY OF BROOKFIELD,
Defendants.
STIPULA nON AND ORDER FOR JUDGMENT
STIPULATION
WHEREAS, the Plaintiff State of Wisconsin has filed a civil complaint in this matter
against the Defendants in which they are alleged to have violated certain water pollution
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. control laws at various sanitary sewer and combined sewer outfall locations in Milwaukee
County, Wisconsin,
WHEREAS, the Tributaries (as hereinafter defined) have made substantial efforts
since 2002 to improve water quality in the Milwaukee metropolitan area, as shown on
Exhibit Al attached hereto, by reducing infiltration and inflow and upgrading sewer
systems, and
WHEREAS, the City of Milwaukee intends to continue implementing and
enforcing Chapter 120 (Storm Water Management) of the City of Milwaukee's Code of
Ordinances, and Chapter 13 of the Milwaukee Metropolitan Sewerage District's Rules
and Regulations within the combined sewer area for both new developments and
redevelopments, and intends to allow all property owners within its jurisdiction to
disconnect roof drains from the combined sewer system on the condition they take steps
to prevent flooding and safety hazards, and intends to continue its work on demonstration
projects involving the disconnection of such roof drains, all of which measures are
expected to reduce the future incidence of combined sewer overflows ("CSOs"),
WHEREAS, the Village of Shorewood, in addition to past actions it has taken to
reduce peak flows in the combined sewers during heavy rain fall events to reduce
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surcharging, intends to continue implementing and enforcing Article 3(B) of Chapter 9 of
the Shorewood Village Code for stormwater management for both new developments and
redevelopments, intends to continue implementing an extensive downspout disconnection
1
Please note that the Plaintiff will need to see and approve Exhibit A before signing the stipulation.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. project, and intends to continue promoting the construction of rain gardens and the
installation of rain barrels in the combined sewer area, all of which are expected to reduce
the incidence ofCSOs, and
WHEREAS, the State believes that, due to the unique circumstances of this case,
including the Tributaries' implementation of the remedial measures described herein, this
Stipulation is consistent with the missions of all parties to meet the requirements of the
Federal and State Clean Water Acts, including the elimination of sanitary sewer
overflows ("SSOS") and the further reduction ofCSOs without the imposition of penalties
against the Tributaries for the past violations alleged in the complaint, and
WHEREAS, the Plaintiff and the Tributaries desire and intend to resolve the
litigation between them by stipulation, without a judicial resolution of the allegations in the
complaint and without resolving the litigation pending between the Plaintiff and the
Defendant Milwaukee Metropolitan Sewerage District (hereinafter "MMSD"),
NOW, THEREFORE, the Plaintiff and the Tributaries enter into this stipulation and
hereby agree as follows:
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GENERAL PROVISIONS
1. The parties to this stipulation are the Plaintiff State of Wisconsin and the
Defendants the Village of Bayside, the Village of Brown Deer, the City of Milwaukee,
the Village of Elm Grove, the Village of Fox Point, the Village of Hales Corners, the
Village of Butler, the Caddy Vista Sanitary District, the City of Franklin, the Village of
. Germantown, the City of Glendale, the Village of Greendale, the City of Greenfield, the
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. Village of Menomonee Falls, the City of Mequon, the County of Milwaukee, the City of
Muskego, the City of New Berlin, the City of Oak Creek, the Village of River Hills, the
City of St. Francis, the Village of Shorewood, the Village of Thiensville, the Village of
West Milwaukee, the City of Cudahy, the City of West Allis, the Village of Whitefish
Bay, the City of Wauwatosa, and the City of Brookfield. Hereinafter in this Stipulation
these Defendants, i.e., all Defendants other than MMSD, may be referred to collectively
as the "Tributaries" or individually as "Tributary." This Stipulation shall apply only to
that territory served by MMSD at any time during the term of this Stipulation. The
Tributaries and the State of Wisconsin are collectively referred to herein as the "Parties"
and individually as a "Party."
. 2. This stipulation confirms the Tributaries' commitment to the goal of
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eliminating SSOs according to the requirements of the Federal Water Pollution Control
Act ("Act"), 33 V.S.C. ~ 1251, et seq., and federal implementing rules, and according to
the requirements of the Wisconsin Clean Water Act, Wis. Stat. ~ 283.01, et seq., and
state implementing regulations.
3. The Parties agree that nothing in this Stipulation shall be construed to
extend the applicability of the stipulation previously entered on May 29, 2002, in the
Milwaukee County Circuit Court case entitled State of Wisconsin v. Milwaukee
Metropolitan Sewerage District, Case No. 02-CV-2701 (hereinafter the "2002
Stipulation") between MMSD and the State to the Tributaries in the present action.
4. This Stipulation and judgment as approved by the Court shall apply to and
be binding on the parties and on the successors and assigns of the parties.
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State of Wisconsin's November 15,2005 Tributaries Only Draft Settlement Stipulation
. 5. Compliance by a Tributary with its obligations under this Stipulation shall
constitute full compromise, settlement and satisfaction of all of the Tributary's
(including its predecessors, successors, and all current and former officers, directors,
employees, trustees, and agents) civil, administrative and criminal liability for the
violations alleged against it in the complaint, or for violations the Plaintiff knew or
should have known about based on documented information as of the date the
Stipulation is approved by the Court. Except for matters covered by this Stipulation,
nothing herein relieves the Tributaries of their responsibilities to comply with any
federal, state, or local law, regulation or permit. A Tributary's payment of a stipulated
penalty for a non-exempt SSO during the term of this Stipulation, as provided for by
paragraph 33* of this Stipulation, shall constitute full compromise, settlement and
satisfaction of all of that Tributary's civil, administrative and criminal liability for such
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violation.
6. As between the Tributaries:
a. Each Tributary hereby agrees to release each other settling Tributary from
any and all claims, including claims for contribution, that it may- have
against another Tributary arising out of the 2004 events complained of by
the Plaintiff (hereinafter the "Contribution Release"); and
b. Each Tributary shall be liable for its own obligations, actions, and
omissions under this Stipulation and nothing contained herein shall be
construed to make one settling Tributary liable for the obligations, actions,
or omissions of any other settling Tributary.
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State ofWisconsin'sNovember 15,2005 Tributaries Only Draft Settlement Stipulation
. 7. Nothing in this Stipulation shall be construed to limit the authority of the
Plaintiff to undertake any action for injunctive relief against any person, including any
Tributary, in response to non-weather or climate-related conditions not addressed or
anticipated in the complaint or this Stipulation and which present an imminent and
substantial endangerment to the public health, welfare or the environment. Nothing in
this paragraph waives any rights of the Tributaries to assert defenses under applicable
law in the event the Plaintiff seeks injunctive relief pursuant to this paragraph in the
future.
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8. For purposes of this Stipulation the term "sanitary sewer overflow" (SSO)
means a discharge of sewage to waters of the state from a sanitary sewerage collection
system, owned or operated by one of the Tributaries or a sewerage system (as defined in
Wis. Stat. ~ 200.21(11)) owned or operated by MMSD. Each point at which such
discharge occurs shall be deemed a separate SSO, and each calendar day on which an
SSO occurs or continues from a specific point shall be deemed a separate SSO.
9. For purposes of this Stipulation the terms "infiltration," "inflow" and
"infiltration/inflow" (or "III") shall have the meanings indicated in Wis. Admin. Code
~ NR 110.03(14), (16) and (17).
10. This Stipulation shall not be modified except by written agreement of all
Parties affected by the modification and approval by the Court.
11. Nothing in this Stipulation shall waive the Tributaries' rights under Wis.
Stat. ~ 806.07. The Parties specifically agree that the subsequent enactment of federal or
state legislation which significantly impairs the Tributaries' financial ability to meet their
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
obligations under this Stipulation in light of all of their other governmental
responsibilities (hereinafter "Financial Impairment") shall be a sufficient basis for a
court to entertain a motion to reopen the judgment under Wis. Stat. ~ 806.07. Financial
Impairment, however, shall not automatically vacate this Stipulation, but instead shall
entitle the Tributaries to such relief as the court may order or the Parties may agree is
appropriate in light ofthe Financial Impairment.
12. Specific requirements in existing individual WPDES permits take
precedence over requirements otherwise applicable to all Tributaries in this Stipulation.
Nothing in this Stipulation prohibits the Wisconsin Department of Natural Resources
("DNR") from issuing, amending or modifying the terms of a WPDES permit applicable
to any Defendant, as required or permitted by state and federal law, or as subject to
requirements for public notice and comment. However, no permit may be issued,
amended, or modified by DNR that will avoid, alter, or otherwise amend the
requirements of this Stipulation or the DNR approved MMSD 2020 Facilities Plan.
13. The Court has jurisdiction over the parties and the subject matter of thi,s
action and shall retain such jurisdiction to enforce the terms of this Stipulation and order
for judgment until the Stipulation terminates.
14. This Stipulation embodies the complete and exclusive agreement and
understanding between the Parties as to the resolution of the claims alleged in the
complaint. Except as may be expressly stated within this Stipulation, no other meanings
or interpretations of terms in the agreement, or obligations or promises by a party, are to
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. be inferred by reference to any other oral or written statements by the Parties or their
representatives.
PUBLIC COMMENT
15. The parties to this Stipulation believe it to be fair, reasonable and adequate
and presently intend to request that the Court enter the proposed order for judgment
approving the stipulation. The parties to this Stipulation also agree, however, that the
Court should defer entering an order for judgment approving the Stipulation for a period
of at least thirty days after the Stipulation is filed and published so that the public may
review and comment upon the terms of the Stipulation. The Plaintiff shall publish a
Class I notice in the official newspaper of the State of Wisconsin describing the filing of
. this Stipulation, the availability of the Stipulation for review, and the opportunity to file
comments. During that thirty-day comment period the Plaintiffwill accept and consider
written comments regarding the Stipulation and thereafter file those written comments
with the Court and provide copies to the Tributaries forthwith. In addition to filing this
Stipulation with the Court, the Plaintiff shall make the Stipulation available for
inspection at the offices of the Wisconsin Department of Justice, the DNR, and on the
Internet web site of the Department of Justice, located at http://www.doi.state.wLus/.
Written comments regarding the Stipulation should be mailed to:
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Assistant Attorney General Thomas L. Dosch
Wisconsin Department of Justice
Post Office Box 7857
Madison, WI 53707-7857
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
16. The Plaintiff and the Tributaries reserve a right to withdraw from or
withhold their consent to entry of the proposed order for judgment if the public
comments received disclose facts or considerations which indicate the Stipulation and
proposed order for judgment will not result in achievement of the goals set forth in
paragraph 2, above. The Plaintiffs and the Tributaries' rights to withdraw from the
Stipulation shall terminate if not exercised in writing and filed with the Court within 45
days after the Stipulation is filed.
FLOW MONITORING SYSTEM, RAIN GAUGE SYSTEM AND PEAK FLOW
PERFORMANCE STANDARDS
17. The Plaintiff and the Tributaries agree that the establishment of appropriate
flow monitoring and rain gauge systems and peak flow performance standards for the
Milwaukee Metropolitan Sewerage District ("MMSD Activities") will be useful and
important parts of the Tributaries' efforts to avoid future SSOs. The Plaintiff and the
Tributaries further agree, however, that the only practical way for such MMSD
Activities to be successfully established and administered is if they are constructed and
managed by MMSD. To that end, the Tributaries agree that they will encourage and
support MMSD's continuing development, implementation, and management of flow
monitoring and rain gauge systems and peak flow performance standards. Each
Tributary retains all legal rights to object to and appeal any rules and standards
implementing such MMSD Activities.
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State of Wisconsin's November 15,2005 Tributaries Only Draft Settlement Stipulation
. ENFORCEMENT OF SEWER USE ORDINANCES
18. The Tributaries (other than Milwaukee County) shall maintain local sewer
use ordinances meeting, at a minimum, the standards established by Wis. Admin. Code
SS NR 128.20(5) and 162.08(4)(d). By March 1, 2006, or such other dates as may be
provided in applicable WPDES permits, and annually thereafter, each of these
Tributaries shall submit a report to MMSD and DNR documenting that Tributary's
actual and effective efforts to enforce its sewer use ordinance so as to identify and
remove illegal connections, including but not limited to downspouts and footing drains,
where applicable.
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WASTEWATER STORAGE CAPACITY IMPROVEMENT PROJECTS,
SEWER IMPROVEMENT PROJECTS, AND
SEWER MANAGEMENT PROJECTS
19. By no later than December 31, 2006, the Tributaries, except *,2 shall
complete the correction of all defects identified for correction in the 2010 Limited Sewer
Sèrvice Evaluation Survey and that are required to be corrected by current MMSD rules.
By no later than December 31, 2007, *3 shall complete the correction of all defects
identified for correction in the 2010 Limited Sewer Service Evaluation Survey and that
are required to be corrected by current MMSD rules. No later than December 31,2006,
however, *4 shall submit to the DNR an interim report describing in detail its progress
towards completing these corrections.
. 2
Insert the name of the single municipal exception.
3
Insert the name of the single municipal exception.
4
Insert the name of the single municipal exception.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. 20. By no later than September 30, 2006,- the Tributaries shall inspect
externally all sanitary sewer manholes to identify those subject to surface water ponding
and install as needed solid gasketed manhole covers and manhole frame seals to prevent
surface water inflow.
21. By no later than June 30, 2006, each of the Tributaries shall develop and
begin implementing a program under which it will internally inspect each of its sanitary
sewer manholes at least once every five years to identify defects which may contribute
to leakage. Furthermore, the program shall require, where cost-effective (as that term is
defined in Wis. Admin. Code S NR 110.03(11)), the correction of each such defect
within eighteen months of discovery unless demonstrated extraordinary circumstances
. indicate that a longer period, not to exceed twenty-four months from discovery, is
necessary.
MUNICIPAL CAPACITY, MANAGEMENT, OPERATION AND
MAINTENANCE ("CMOM") PROGRAM DEVELOPMENT AND
. IMPLEMENTATION
22. No later than June 30, 2009, all Tributaries shall develop and implement
Capacity, Management, Operation and Maintenance (CMOM) programs reflecting the
requirements of MMSD's regional CMOM program, as contemplated by paragraphs 6-7
of the settlement stipulation in the case of State of Wisconsin v. Milwaukee Metropolitan
Sewerage District, Milwaukee County Circuit Court Case No. 02-CV-2701.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
MILWAUKEE COUNTY
23. Milwaukee County shall complete and submit to the DNR a report
describing the findings of a complete Sewer System Evaluation Survey ("SSES") by no
later than one year from the effective date of this Stipulation.
24. By no later than December 31,2009, Milwaukee County shall certify to the
DNR that it has completed all necessary corrective actions to address "excessive
inflow/infiltration" as that term is defined in Wis. Admin. Code 9 NR 110.03(14),
identified in the SSES, provided, however, that if in the course of its taking corrective
action Milwaukee County discovers and demonstrates truly extraordinary problems
associated with correcting excessive inflow/infiltration, the deadline may be extended
accordingly to a date beyond December 31, 2009, which the Plaintiff and Milwaukee
County mutually agree upon.
HALES CORNERS
25. To alleviate a sewer capacity problem in the sanitary sewer which runs
under Highway 100 between Grange Avenue and Janesville Road, the Village of Hales
Comers ("Hales Comers") shall take the actions required by subparagraph a. and
subparagraph b., and do so within the indicated schedules:
a. By no later than December 31, 2007, replace the sanitary sewer running
under Highway 100 between Grange Avenue and Janesville Road,
provided:
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
i. That such work is performed in coordination with the resurfacing
of this road by the Wisconsin Department of Transportation (so as to
prevent more than one road project/closure to the public user);
11. That MMSD grants Hales Corners' July 26,2005 request to
connect a larger diameter replacement sanitary sewer to the MMSD
interceptor sewer; and
iii. That all other applicable governmental approvals for such work
(including any closure letters by the DNR, or the like) are granted.
Any delays in meeting this schedule due to unforeseeable delays in
obtaining such approvals or unreasonable delays by other governmental
agencies in issuing such approvals shall not constitute a failure by Hales
Corners to comply with the scheduled deadline, but in any such event the
parties shall attempt to negotiate an appropriate extension òf this deadline
and, failing agreement, the matter shall be subject to dispute resolution;
and
b. By no later than December 31,2007, relay the sagging eight-inch sewer in
West Grange Avenue identified in the May 24, 2005, Capacity Analysis &
Remediation Proposal, provided:
i. That such work is performed in coordination with the resurfacing
of Highway 100 between Grange Avenue and Janesville Road by the
Wisconsin Department of Transportation;
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. ii. That MMSD grant the July 26, 2005, request by Hales Comers to
connect a larger diameter replacement sanitary sewer (to replace the
sanitary sewer running under Highway 100 between Grange Avenue
and Janesville Road) to the MMSD interceptor sewer; and
iii. That all other applicable governmental approvals for such work
are granted.
Any delays in meeting this schedule due to unforeseeable delays in
obtaining such approvals or unreasonable delays by other governmental
agencies in issuing such approvals shall not constitute a failure by Hales
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Comers to comply with the scheduled deadline, but in any such event the
parties shall attempt to negotiate an appropriate extension of this deadline
and, failing agreement, the matter shall be subject to dispute resolution.
BAYSIDE
26. By no later than December" 31, 2006, the Village of Bayside ("Bayside")
shall provide the DNR with a plan for eliminating bypassing in sewer basin BA2.
Assuming DNR approval of the plan within sixty days after its receipt, Bayside shall
complete all approved corrective actions by no later than March 31, 2007. If the DNR
does not approve the plan the parties agree to work in good faith to resolve any disputes
about its adequacy. If, ninety days after Bayside submits the plan to the DNR, a dispute
about its adequacy remains unresolved, the matter may be submitted to dispute
. resolution as provided for in this Stipulation.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
27. By no later than December 31, 2006, Bayside shall upgrade all sewer lift
stations within the village, excluding the Ravine Lane lift station, to meet the
requirements of Wis. Admin. Code ch. NR 110.
VILLAGE OF BROWN DEER
28. On an annual basis, beginning no later than December 31, 2006, the Village
of Brown Deer ("Brown Deer") shall report to the DNR its progress of the lateral
grouting program documented in a letter to the DNR dated June 1, 2004, a copy of
which is attached hereto as Exhibit B. In each such report Brown Deer shall identify the
number of laterals sealed and the peak flow to dry weather flow ratio for the project
area. The program shall be completed by no later than December 31, 2009, and Brown
Deer shall provide DNR with a certification to that effect within thirty days after
completion.
CITY OF MILWAUKEE
29. By no later than June 30, 2006, the City of Milwaukee shall complete and
report its monitoring of, and by March 31, 2007, complete and report to the DNR its
capacity evaluations of, the following sewer basins owned by the City of Milwaukee
which experienced SSOs in 2004:
a. North 21 5t Street and West Hampton Avenue;
b. North 19th Place and West Fairmount Avenue;
c. North 20th Street and West Fairmount Avenue;
d. North 27th Street and West Villard Avenue;
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. e. North Green Bay Road and West Fairmount Avenue;
f. North 27th Street 300 feet north of West Villard Avenue;
g. West Congress Street and North 41st Street;
h. North 20th Street and West Hampton Avenue;
1. North 110th Street and West Harvest Lane;
J. West Toronto Street and North 36th Street;
k. West Metcalf Place and 95th Street;
1. North 31 st Street and West Capitol Drive;
m. South 92nd Street and West Howard Avenue;
n. South 72nd Street and South Honey Creek Drive;
. o. North 72nd Street and West Capitol Drive;
p. North 86th Street and West Center Street; and
q. South 99th Street and West Oklahoma Avenue.
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F or any of the basins where the City of Milwaukee determines that sewers it owns lack
adequate capacity, the City of Milwaukee shall submit to the DNR, no later than 120 days
after such determination, an action plan for providing sufficient capacity or taking other
reasonable and cost effective (as that term is defined in Wis. Admin. Code 9 NR
1l0.03(1l)) actions to reduce or eliminate overflows at such locations. Any such action
plan shall include a schedule within the City of Milwaukee's six-year capital
improvement program for implementation of all remedial measures. The DNR shall have
ninety days after receipt of the action plan in which to indicate DNR's approval,
conditional approval, or rejection of the action plan as inadequate. The schedule shall be
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. deemed adequate if it falls within the City of Milwaukee's six-year capital improvement
program. If DNR does not otherwise respond within this period the action plan shall be
deemed adequate for purposes of compliance with this Stipulation. If the DNR does not
approve the action plan as initially proposed by the City of Milwaukee, the parties agree
to work in good faith to resolve any disputes about its adequacy. If, ninety days after the
City of Milwaukee submits the action plan to the DNR a dispute about its adequacy
remains unresolved, the matter may be submitted to dispute resolution as provided for in
this Stipulation.
30. With respect to the MMSD-owned sewer located at North 35th Street and
West Roosevelt Drive where SSOs were experienced in 2004 and where the City Of
. Milwaukee is the tributary community, the City of Milwaukee shall:
a. Maintain flow monitoring at the current level in the vicinity of North 35th
Street and West Roosevelt Drive; and
b. Prepare an annual report for each calendar year and submit it to the DNR
by the following March 1 st which describes the condition of the sewer
system in this area and all corrective actions taken in the proceeding year.
This reporting requirement shall continue until these sewer sheds meet
performance standards adopted in the MMSD 2020 facility plan.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. VILLAGE OF WHITEFISH BAY
31. By no later than January 31, 2007, the Village of Whitefish Bay
("Whitefish Bay") shall submit to the DNR the results of its investigation into causes for
the SSOs in 2004 at:
a. North Newhall Street and East Chateau Place; and
b. North Diversey Boulevard and East Lancaster Avenue.
If that evaluation reveals a continuing problem of overflows at either site attributable to
Whitefish Bay, Whitefish Bay shall submit a plan for eliminating the problems (including
schedules for implementing the remedies) to the DNR for its approval by no later than
March 31, 2007. Any such plan shall include a proposed schedule for implementation of
. all remedial measures. The DNR shall have ninety days after receipt of the plan in which
to indicate DNR's approval, conditional approval, or rejection of the plan as inadequate.
If DNR does not otherwise respond within this period the plan shall be deemed adequate
for purposes of compliance with this Stipulation. If the DNR does not approve the plan
as initially proposed by Whitefish Bay, the parties agree to work in good faith to resolve
any disputes about its adequacy. If, ninety days after Whitefish Bay submits the plan to
the DNR a dispute about its adequacy remains unresolved, the matter may be submitted
to dispute resolution as provided for in this Stipulation.
32. By no later than December 31, 2008, Whitefish Bay shall complete the
DNR-approved sanitary sewer improvements identified in Whitefish Bay's five-year
. capital improvement plan (as revised May 2003).
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. PENALTIES FOR NONEXEMPT SSOs AND VIOLATIONS
OF THE STIPULATION WHICH MAY OCCUR
DURING THE TERM OF THE STIPULATION
33. The State releases each Tributary and Tributary Representatives from
liability for any violations of applicable law including, but not limited to, the provisions
of the Tributary's or MMSD's WPDES permits (as they may be amended, modified, or
reissued) resulting from SSOs up to the termination date of this Stipulation, unless the
SSO results from negligence in the operation of a Tributary's system or from a failure to
meet a deadline in this Stipulation (hereinafter "Nonexempt SSO").
34. Unless excused under paragraph 11 *5 or the Force Majeure section of this
Stipulation, the Tributaries shall be liable for stipulated penalties in the amounts set forth
. in this section for failures to comply with the terms of this Stipulation, subject to the
Dispute Resolution mechanism set forth in this Stipulation. The stipulated penalties
described below shall be inclusive of all applicable statutory surcharges and costs.
a. For each failure to comply with any scheduled deadline expressed in this
Stipulation, a p.on-complying Tributary shall pay $200 per .day of violation of this
Stipulation.
b. For Nonexempt SSOs, as follows:
1. For the first Nonexempt SSO, $1,000 for each calendar day with a
maximum of$5,000;
.
5
The TABOR provision.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
11. For the second Nonexempt SSO of a same or similar nature, $3,000
for each calendar day with a maximum of $9,000;
111. For any future Nonexempt SSO of a same or similar nature, $5,000
for each calendar day with a maximum of $50,000.
35. The Parties agree that this Stipulation is intended to constitute diligent
prosecution for purposes of all applicable environmental laws, including the Clean
Water Act.
36. Except as may be specifically provided otherwise in this Stipulation,
nothing in this Stipulation shall operate to resolve the Tributaries' liabilities, if any, for
violations of other laws, regulations or permits during the term of this Stipulation.
37. Any and all stipulated penalties shall be paid into a fund to support the
MMSD's Conservation Easement Program.
FORCE MAJEURE
38. If any event occurs that causes or ~ay cause a Tributary to violate any
provision of this Stipulation the Tributary shall notify the DNR in writing within
fourteen days (unless a specific requirement in its existing individual WPDES permit
provides a shorter period) from when it knew, or in the exercise of reasonable diligence.
under the circumstances should have known, that compliance with the Stipulation would
be prevented or delayed, describing in detail the cause or causes of the violation, the
anticipated length of the delay if applicable, the measures taken by the Tributary to
. prevent or minimize the delay and the timetable by which those measures will be
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. implemented. The Tributaries shall make reasonable efforts to identify events that cause
violations of this Stipulation and, in such events, the Tributaries shall adopt all
reasonable measures to minimize the effects of the violation and to avoid additional
violations. A Tributary's failure to so notify the DNR or to mitigate shall constitute a
waiver of any claim of Force Majeure as to the event in question.
39. In response to any request by the Plaintiff to seek stipulated penalties or
other sanctions for alleged violations of this Stipulation, a Tributary may raise the
question of whether it is entitled to a defense that its conduct was caused by
circumstances beyond its control, such as, by way of example and not limitation, acts of
God, strikes, acts of war or civil disobedience. In such event, the Tributary asserting this
. defense shall have the burden of proving that any delay or violation was caused by
circumstances beyond its control. Except in the event of "Financial Impairment," as that
term is used in paragraph 11 *6 of this Stipulation, which either a court determines or the
parties agree should operate to extend a deadline in this Stipulation, changed financial
circumstances or increased costs asso.ciated with the implementation of any action
required by this Stipulation shall not in any event. constitute circumstances entirely
beyond the control of the Tributary or serve as a basis for extending any compliance
deadline in this Stipulation.
40. A Tributary's compliance with this Stipulation shall not be contingent upon
the receipt of federal or state funds.
.
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The TABOR provision.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. DISPUTE RESOLUTION
41. Any good faith dispute that arises between the Plaintiff and a Tributary
with respect to the meaning or application of any requirement of this Stipulation shall
be, in the first instance, the subject of informal negotiations between those parties to
attempt to resolve such disputes. Unless a longer period is specifically provided for
elsewhere in this Stipulation, such period of informal negotiations shall not extend
beyond thirty days from the date when notice of a dispute is given by one party to the
others unless all parties to the dispute have agreed in writing to extend that period.
42. Within thirty days after the end of the informal negotiation period, any
disputing party may petition the Court for relief.
. 43. Any party to the dispute may request an evidentiary hearing for good cause.
The moving party shall bear the burden of proof except that Plaintiff must bear the
burden with respect to a disputed imposition of a stipulated penalty. No penalty shall be
imposed during the period of Dispute Resolution in the absence of bad faith.
ACCEPTANCE CONTINGENCY
44. This Stipulation shall be effective only if executed by substantially all Parties
and filed with the Court on or before December 16, 2005.
45. This Stipulation may be executed in counterpart.
.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. TERMINATION
46. This Stipulation shall terminate with respect to a Tributary after the
Tributary shows to the satisfaction of the Plaintiff, and the Plaintiff certifies to the Court,
that the Tributary has complied with its obligations under this Stipulation.
Dated this
_
day of ,2005
PEGGY A. LAUTENSCHLAGER
Attorney General
mOMAS L. DOSCH
Assistant Attorney General
State Bar # 1017026
Attorneys for Plaintiff State of Wisconsin
. Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-0770
[Insert Tributaries' signature pages]
.
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State of Wisconsin's November 15, 2005 Tributaries Only Draft Settlement Stipulation
. ORDER FOR JUDGMENT
This matter, State of Wisconsin v. Milwaukee Metropolitan Sewerage District, et
al., Case No. 2005-CX-000013, came before the Court on the stipulation for entry of
judgment entered into by the Plaintiff, by counsel, and the Tributaries, by counsel, and the
Plaintiff and Tributaries having notified the Court that, in the thirty days following the filing
of the stipulation and the related public notification, they received no comments causing
them to conclude that the stipulation is inappropriate, improper or inadequate and therefore
they have requested the entry of judgment contemplated by the stipulation. The Court
hereby accepts the foregoing stipulation of the Plaintiff and the Tributaries and orders that
judgment be entered accordingly, pursuant to the terms of the stipulation, which are to be
. incorporated into the judgment in their entirety.
day of ,2005
BY THE COURT:
Dated this
Milwaukee County Circuit Court Judge
.
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EXHIBIT A
III Reduction Efforts
1997 - 2005
4
1 2 3 Stormwater
Community III Investigation III Reduction Sewer Relay/Uograde Management Total
Bayside N/A N/A N/A N/A 0
Brookfield' 870,000 4,295,000 --- --- 5,165,000
Brown Deerz 74,048 1,109,478 97,500 2,303,940 3,584,966
Butler N/A N/A N/A N/A 0
Caddy Vista 18,865 140,988 276,075 --- 435,928
Cudahy 433,626 371,432 894,927 --- 1,699,985
Elm Grove 182,900 1,054,276 1,059,135 16,762,382 19,058,693
Foxpoine 276,321 1,646,215 147,000 896,671 2,966,207
Franklin4 140,041 722,146 --- --- 862,187
Germantown N/A N/A N/A N/A 0
Glendale 376,800 1,040,450 753,000 6,399,400 8,569,650
Greendale N/A N/A N/A N/A 0
Greenfield N/A N/A N/A N/A 0
Hales Comers 145,603 185,724 107,850 112,357 551,534
Menomonee Falls 555,329 1,176,188 4,408,200 528,300 6,668,017
Mequon' 913,051 1,058,100 6,051,600 2,950,945 10,973,7560
Milwaukee 6,072,679 40,499,774 7,479,938 5,777,885 59,830,276
MuskegoÓ 816,292 477,773 3,886,150 3,563,389 8,743,604
New Berlin' 1,596,313 12,186,561 542,289 2,328,572 16,653,735
I Includes costs for 1999-2005.
2
Type 2 costs include some expenses for Type 1.
3
Includes costs for 1998-2005.
4 Includes costs for 1999-2005.
5 Includes costs for 1999-2005.
6 Includes costs for 1999-2005.
7
Type 2 costs include some expenses for Type 1, Type 3 and Type 4.
,- . . .
Oak Creek 295,000 1,068,000 29,000 1,493,600 2,885,600
River Hills 151,747 288,504 --- --- 440,251
Shorewood 232,503 626,579 --- 533,390 1,392,472
St. Francis N/A N/A N/A N/A 0
Thiensvilleð 243,391 1,557,228 569,989 748,672 3,119,280
Wauwatosa 632,311 9,436,736 --- 6,606,972 16,676,019
West Allis9 20,548,000
West MilwaukeelU 156,900 234,600 103,900 --- 495,400
Whitefish Bay N/A N/A N/A N/A 0
0
Totals 14,183,720 79,175,752 26,406,613 51,006,475 191,320,560
MWI035824_1.DOC
8 Includes costs for 1999-2005.
9 Costs associated with the individual categories are not available. The Total Expenditures represent a combination of the 4 categories.
10 Type 2 costs include some expenses for Type 4. Includes costs between 1999 and 2005.
2