United States of America, et al. v. City of Mount Vernon, 18 Civ. 5845 (CS)

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I.
Re: United States of America, et al. v. City of Mount Vernon, 18 Civ. 5845 (CS)

Dear Judge Seibel:

 

Acting United States Attorney for the Southern District Court Audrey Strauss.

WHITE PLAINS, NY and MOUNT VERNON, NY — February 26, 2021 —We write jointly on behalf of plaintiffs United States of America (the “United States”), State of New York, and Basil Seggos, as Commissioner of the New York State Department of Environmental Conservation (together, with the State of New York, “New York”) to respectfully request, pursuant to Part 2.A of Your Honor’s Individual Practices, a pre-motion conference regarding the United States and New York’s anticipated motion to enforce the City of Mount Vernon’s compliance with the Court’s Order, dated September 21, 2020. See ECF No. 74. Despite numerous attempts by plaintiffs to ensure the City’s compliance with the terms of the Court’s Order, the City continues to miss deadlines and has not yet completed work regarding its municipal separate storm sewer system (“MS4”) that is long overdue under the Order.

Additional Court Intervention is Necessary to Enforce the City of Mount Vernon’s Obligations Relating to Its MS4

As the Court is aware, the United States and New York sought a remedial order from the Court, following years of the City’s non-compliance with its obligations under its MS4 Permit. Following summary judgment briefing, the Court entered a comprehensive remedial order containing detailed compliance obligations and reporting requirements. See generally ECF No. 74. Under the Order, this Court retains jurisdiction to, among other things, “enforc[e] compliance with the terms of this Order.” Id. ¶ 29. Although the City has taken some measures to comply, numerous outstanding issues remain.

Beginning shortly after the Order’s first set of deadlines in November 2020, EPA has held meetings with the City’s representatives to monitor the City’s compliance. Following these meetings, the United States has twice written the City of its concern that the City was already missing deadlines, and underscored the urgency and need for timely compliance. See Ex. A (December 11, 2020 letter to the City detailing concerns); Ex. B (January 19, 2021 letter to the City again detailing concerns). The United States has warned the City that if it remained in non- compliance, plaintiffs would be compelled to seek judicial intervention. See Exs. A & B.

Most recently, on February 5, 2021, the United States and New York received reporting submissions from the City—which were due on January 31, 2021—that identify continuing non-
Case 7:18-cv-05845-CS

Document 83 Filed 02/17/21 Page 1 of 4

[Type text] U.S. Department of Justice
United States Attorney Southern District of New York
86 Chambers Street
New York, New York 10007
By ECF

Honorable Cathy Seibel
United States District Judge
The Hon. Charles L. Brieant Jr.
Federal Building and United States Courthouse 300 Quarropas St.
White Plains, NY 10601
February 17, 2021

II.
compliance issues.1 Although the submissions are incomplete and we have requested additional documentation and information from the City, it is nevertheless evident that the City is not in compliance with the Court’s Order. Given its history of non-compliance, coupled with the City’s current inability to meet Court-ordered deadlines, the United States and New York are compelled to seek judicial relief.

Current Issues of Non-Compliance

Because the City has not provided required documentation, nor submitted an annual report or semi-annual report that adheres to the requirements of the Order, see ECF No. 74 ¶¶ 21, 24, the United States and New York are unable to ascertain the full scope of non-compliance. However, based on the submissions received to date, as well as discussions with the City’s representatives, the United States and New York believe that the City has failed to meet at least the following obligations:

 Failure to Properly Implement a Capacity, Management, Operation and Maintenance Program (“CMOM”) for its Sanitary Sewer System (Paragraph 18): The City is in violation of the Order’s requirement that it “implement [its] EPA-approved CMOM citywide.” ECF No. 74 ¶ 18. The City has recently suffered significant sewage overflows— which resulted in notices of violation by New York. See Ex. C (November 17, 2020 notice of violation regarding sewage spill at Edison Avenue and Leona Lane) & Ex. D (December 8, 2020 notice of violation regarding sewage spill at West Lincoln Avenue).2 Had the City been in compliance with the Order’s requirement to implement the CMOM, these recent sewage overflows could have been prevented because, among other things, the City would be properly conducting daily pump station inspections, properly maintaining pump stations, upgrading its alarm system, and responding to complaints within one hour.

 Maintenance of Equipment (Paragraph 14): The City is in violation of the Order’s requirement to “implement” its illicit discharge, detection, and elimination (“IDDE”) program “with available equipment” by November 21, 2020, and to “maintain, in service, equipment necessary to properly operate and maintain its storm sewer and sanitary sewer collection systems.” ECF No. 74 ¶ 14. The City has represented that it needs two machines to properly implement its program: an “SL-RAT” and a “Spider.” It acquired the SL-RAT on January 22, 2021, two months after the deadline, and still has not acquired the Spider. Moreover, the City has not started using the SL-RAT machine it did acquire. See Ex. E (City of Mount Vernon (MS4) Municipal Separate Storm Sewer System Annual Report) at 7 (“One of the major challenges that [the] City of Mount Vernon has is the lack of equipment and software needed for implementation.”). A further critical lack of equipment, as of February 10, 2021, arises from the fact that the City’s sewer truck is inoperable due to tire damage, and the City asserts that it cannot purchase new tires because the City’s Comptroller Deborah Reynolds has not paid a past due invoice owed to the City’s tire supplier. As a result, City employees must travel to job sites using their personal vehicles. Without the equipment necessary to operate and maintain its storm sewer and sanitary sewer collection systems, the
1 Notably, the City was required to file its annual report with the Court on January 31, 2021, and has not yet done so. See ECF No. 74 ¶ 21.
2 See also https://newyork.cbslocal.com/2021/02/04/mount-vernon-aging-sewer-system/.
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City is not only violating the Order, but failing to address the conditions leading to illicit discharges.

 Enforcement Actions (Paragraph 5): The City is in violation of the Order’s requirement that, by January 21, 2021, it “perform on-site inspections and make a determination regarding whether or not to initiate enforcement actions” for numerous addresses within the City with sources of sanitary waste entry into the MS4 system. ECF No. 74 ¶ 5 & Appendix A. While the City has identified certain enforcement actions, see Ex. E at 9-10, the City’s annual report does not address whether it has inspected and made determinations regarding whether or not to initiate enforcement actions for the vast majority of the addresses listed on Appendix A of the Order.

 Adequate Funding (Paragraph 16): The City is in violation of the requirement that, by December 21, 2020, it provide adequate funding to comply with the Order. See ECF No. 74 ¶ 16. In the January 31, 2021 annual report provided to the United States and New York, the City explained that “[t]his past September 2020, the City established a contract with M. Zonzini Pipeline Services, Inc. to complete emergency sewer repairs as needed. Unfortunately, the City Comptroller has failed to remit payment for an outstanding balance of $176,158.80 to M. Zonzini, therefore we have been unable to complete the required construction projects with corresponding deadlines in a timely manner.” Ex. E at 4. In a communication received from the City on February 10, 2021, it also identified three additional “sewer-related vendors” who have not been paid for outstanding invoices, including a September 30, 2020 invoice for $77,750 owed to Green Mountain Pipeline Services Inc. The City also informed the United States and New York on February 10, 2021 that the City’s Comptroller has not paid DPW employees for emergency overtime compensation since November 6, 2020, although DPW employees have continued to work. The City has also blamed its failure to have necessary equipment available on funding issues. Finally, even where funding clearly is available, the City has failed to use it effectively. The City previously obtained a $1.6 million grant from New York, and the City received $410,482.00 of that grant from New York already. The City has sought reimbursement for a part of the remaining grant amount, however the entire $410,482 must first be expended by the City, after which the City can seek reimbursement for the remainder of the grant.

 Overlook Street Outfall Repair Work (Paragraph 9.b): Because of the outstanding invoice from M. Zonzini discussed above, the City has not been able to schedule M. Zonzini to repair 100 linear feet of sanitary sewage lines for Outlook Street, as required under the Order. See ECF No. 74 ¶ 9.b. In addition, although the City has represented that it completed the required storm sewer repair portion of the required work, the City is in violation of the Order’s requirement that it provide documentation to the United States and New York to allow confirmation. See id. ¶ 24(h).

 Washington Street Outfall Repair Work (Paragraph 9.d): The deadline for completion of this work was December 21, 2020. On February 10, 2021, the City represented that the work was completed on February 8, 2021. The City is in violation of the Order’s requirement that it provide documentation to the United States and New York to allow confirmation. See ECF No. 74 ¶ 24(h).

 Inspections of currently identified impaired outfalls (Paragraphs 3 & 4). The City is in violation of the Order’s requirement that it provide documentation of its completion, by
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December 21, 2020, of inspections (either visual or televised) of the currently identified impaired outfalls and identify all sources of illicit discharges. See ECF No. 74 ¶ 3. For at least 34% of the sewer lines, for which visual inspections were conducted rather than televised inspections, the City has not provided the required documentation regarding those visual inspections. See id. ¶¶ 21, 24(g).

 Staffing (Paragraph 15): This City has violated (and may still be in violation) of the Order’s requirement that by November 21, 2020, the City was required to designate or hire a Stormwater Coordinator, “who is a full-time employee of the City dedicated solely to overseeing and coordinating implementation of [the City’s] Storm Water Management Program, [the City’s] obligation to implement and enforce an IDDE Program, and the [City’s] compliance with the MS4 General Permit and this Order.” See ECF No. 74 ¶ 15. While the City represented that it posted a job listing regarding this position in November, the City’s annual report does not indicate that this position was filled or provide any confirmation of whether this position has been filled. See id. ¶ 21 (annual report must describe the City’s compliance or non-compliance with the terms of the Order); see also Ex. E. We learned on February 10, 2020, that the Stormwater Coordinator “position is allocated for within the 2021FY Annual Budget, and upon adoption will be filled,”—in other words, it has not yet been filled— and that in the interim, the City has an employee within the Sewer Bureau who is the acting Stormwater Coordinator; however, the City has not provided the United States with who the acting Stormwater Coordinator is, nor explained how this employee—who apparently had other duties until recently—is complying with the requirements of the Order. See ECF No. 74 ¶ 15 (requiring City to “identify a local point of contact for public concerns”); ¶ 24(b) (annual reporting of “completion of milestones”).
The United States and New York are gravely concerned about the continuing non- compliance issues and seek the Court’s intervention to enforce the City’s obligations to ensure clean water for the City and State’s citizens. Accordingly, we respectfully request a pre-motion conference with the Court regarding an anticipated motion to enforce the Court’s Order.

We thank the Court for its consideration of this request. Respectfully submitted,
AUDREY STRAUSS

United States Attorney for the Southern District of New York
By: /s/ Natasha W. Teleanu NATASHA W. TELEANU Assistant United States Attorney (212) 637-2528
Attorney for the United States of America
LETITIA JAMES
Attorney General for the State of New York

By: /s/ Abigail Rosner ABIGAIL ROSNER Assistant Attorney General (212) 416-8922

Attorney for the State of New York and DEC
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eHeziUnited States of America, et al. v. City of Mount Vernon, 18 Civ. 5845 (CS)

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