Mr. Kevin Dayton

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

September 2 7, 2004

Vice President of Government Affairs Associated Builders and Contractors, Golden Gate Chapter 4309 Hacienda Dr., Ste. 500 Pleasanton, CA 94588

Dear Mr. Dayton:

OFFICE OF WATER

This is in response to your July 30, 2004, Freedom of Information Act (FOIA) request, Reference Number HQ-RIN-01911-04. You requested any and all written correspondence to and from the Environmental Protection Agency (EPA) concerning any request for an exemption from Executive Order 13202, "Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects."

The Agency has only received one request for an exception to the provisions of Executive Order 13202. Attached is a copy of that request and the letter from the EPA Administrator that approved the request.

The response to your FOIA request was coordinated with the EPA Office of Grants and Debarment and Office of General Counsel. As a matter of record, we did not withhold any of the of documents that you referenced in your request.

Since you represent a public interest organization that publishes and disseminates information, and the request supports the news-dissemination function and is not for commercial use, there are no fees associated with the request.

Under the FOIA, you have the right to appeal my response to your request. The appeal should be submitted to EPA, Office of Environmental Information, Records, Privacy, and FOIA Branch (2822T), 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460. The appeal must be made in writing, and it must be received at this address no later than 30 calendar days from the date of this letter. The Agency will not consider appeals received after the 30-day limit. The appeal may include as much or as little related information as you wish, as long as it clearly identifies the determination being appealed, including the assigned FOIA request number, HQ-

Internet Address (URL)• http://www.epa.gov Recycled/Recyclable •Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 50% Poslconsumer content)

2

RIN-01911-04. For the quickest possible handling, the appeal letter and its envelope should be marked "Freedom of Information Act Appeal."

If you have any questions concerning this response, you can contact me at 202-564-0619.

Enclosures

Sincerely,

':t. I i1WI ( ~

Larry McGee, Team Leader, Grants and Special Projects Team Municipal Assistance Branch Municipal Support Division Office of Wastewater Management

cc: Steve Hoyge, Municipal Assistance Branch Sheila Frace, Municipal Support Division Sylvia Bell, Municipal Support Division Debbie Cash, Municipal Support Division Georgette Brown, Office of Wastewater Management Diane Jones, Office of Water Ellen O'Boyle, Office of Grants and Debartment Paul Versace, Office of General Counsel

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

Mr. Anthony P. Rivizzigno County Attorney County of Onondaga 421 Montgomery Street, 10th Floor Syracuse, NY 13202

Dear Mr. Rivizzigno:

MAY 8 2001

THE ADMINISTRATOR

This is in response to your letter dated April 19, 2001, in which you requested, on behalf of Onondaga County, New Yorlc, an exemption from Executive Order 13202 (Order) for the Onondaga County Lake Improvement Project. Your letter refers to this project as the Amended Consent Judgment Project (ACJ Project). Based on the statement of facts contained in your letter, I hereby grant Onondaga County's request for an exemption.

You requested an exemption from the terms of Executive Order 13202, "Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally Funded Construction Projects" (66 Fed. Reg. 11225, Feb. 22, 2001), for the ACJ Project based on Sections 5(a) and 5(c) of the Order. A project qualifies for an exemption pursuant to Section 5( c) if: { 1) a grantee or a construction manager had issued or was a party to, as of the date of the Order (Feb. 17, 2001 ), bid specifications, project labor agreements, or other co\ltrolling documents with respect to the project which contained the requirements or prohibitions set forth in Sections l(a) or (b) of the Order; and (2) at least one construction contract subject to such requirements or prohibitions had been awarded as of the date of the Order.

Your letter indicates that "[t]he ACJ project is subject to a project labor agreement (ACJ/PLA) that has been in effect since December 17, 1998." You further state that "[i]ndividual construction contracts containing the ACJ/PLA were awarded prior to the February 17, 2001 Executive Order." Based on these facts, I have determined that the ACJ Project qualifies for an exemption from Section 3 of the Order, pursuant to Section 5(c) of the Order. Because the ACJ Project qualifies for an exemption under Section S'(c), an exemption under Section 5(a) is not necessary.

cc: The Honorable James T. Walsh

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APR-24-2001 10:22

NICHOLAS J. PIRRO CotlNTT ltz&CVTIYS

Ot'°'1 CNTY DRAIN & SAN SYR

COUNTY OF ONONDAGA

• DEPARTMENT Ot:" LAW JOMH H. MUUtOY Ovte c:Drn"

"21 fllONTGOM~RY STR!:ET. !OT>< n.OOft

SYRACUSE. NCW YOltK I~

131~) '35·%170 ~ {3U) 'l5-S7l9

April 19, 2001

Christie Whitman, Administrator Office of the Administrator United States Environmental Protection Agency 1200 Pennsylvania A venue Washfrlgton, DC 20460

Re: Onondaga Cowity Lake Improvement Project Application for Exemption

315 435 5023 P.02/15

ANTHONY P. RIVIZ21CNO C_w,.,. ATtOAiofY

Executive Order 13202 of February 17. 2001 As Amended April 6. 2001

Dear Administrator Whitman:

Please accept this letter and the enclosed memorandum. as an application for exemption on behalf of Onondaga Cottnty from the terms of the above-referenced Febnwy 17) 2001 Executive Order. as Amended on April 6, 2001. The enclosed application has also been forn--arded to LTG Robert B. Flowers. Commander, United States Aimy Corps of Engineers .

• A..s more fully described in the attaci)ed ~cmorandum. Onon~a Cqunty is engaged in an extensive capital project to improve the A-fctropolitan Wastewat;'i. T~ent Plant and the waste\1:ater collection system in Onondaga County. These improvements are mandated by the Amended Consent Judgment ("ACJ") issued by the Hon. Thomas McA voy on January 201 1998 in the action entitled Atlantic States Legal Fotmdation. State of New York and John P. Cahill. as Commissioner of the New York State Department of En"i:ronmental Conservation v. Onondua

_ Countv. (ND.N.Y) (Improvements referred to as "ACJ Project") '

The ACJ Project is subject to a project labor agreement (ACJIPLA) that bas been in effect since December 17, 1998. Individual construction contra~ts containing the ACJtPLA were awarded prior to the February 17~ 2001 Executive Order. The ACJ project is intended to avert threats to the public health and safety. The County has received federal financial assistance on this project and is scheduled to receive additional financial assistance in the near future. The ACJ/PLA meets the exemption criteria of the Febroarf 17, 2001 Executive Order, as Amended on A.pril 6, 2001.

• APR-24-2001 10: 22 CJNO.I CNTY DRAIN & SAN SYR

· Christie Vlhitman, Administrator April 19, 2001 Page2 Re: Onondaga County Lake Improvement Project

315 435 5023 P.03/15

Onondaga County urgently requests an exemption from Executive Order as Amended on April 6, 2001 and that exemption be granted as soon as possible. The County will be awarding the single largest series of ACJ related contracts starting June 9, 2001. Given the upstate New York ·climate and the short construction season, time is of the essence. The County must meet the ACT milestone dates and proceed efficiently, economically~ without threat of legal challenges. The County requests that its applications for the exemption and for federal financial assistance for ACJ/PLA projects be processed eo/..ditiously and funds be promptly allocated and released.

.l\J>Rikak Enclosure

cc: Rep. James T. Walsh Chairman

- _ .. --

ONON CNTY DRA i N & ~ SYR

COUNTY OF ONONDAGA

• DEPARTMENT O~ LAW

NICHOlAS j. PIRRO ¢own'< EJl•CintYll

.JOHH H. MiJl.ROY C:MC: ~DrrEft 421 MOHTGOMEft"f STREET, J0TJ.J ~R

5YlltACU$E. N~ YORK 13202

t3lSt .C35·2170 nx [315 J '35-5729

April 19. 2001

LT. General Robert B. Flowers, Commander US Army Corps of Engineers 44 l G. Street, NW Washington, DC 20314-1000

Re: Onondaga County Lake Improvement Project Application for Exemption

315 435 5023 P.04/15

ANTHONY P. RJVIZZIGNO c;i.u..,,. ATTO.,on

Executive Order 13202 of February 17, 2001 As Amended ApriJ 6, 2001

Dear Lt. General Flowers:

Please accept this Jetter and the enclosed memorandum, as an application for exemption on behalf of Onondaga County from the terms of the. above-referenced February 17, 200 I Executive Order. as Amended on 4pril 6, 200 I. The enclos...--d application has also been forwaroed to Christie ·Whitman, Administratdr for the United States Environmental Protection Agency.

As more fully described in the attached memorandum, Onondaga County is engaged in an extensive capital project to improve the. Metfapolitan Wastewater Treatment Plant and the wastewater collection system in Onondaga. County. These impro;;men'"ts-are mandated by the A.."Dended Consent Judgment {"ACJ") issued by the Hon. Thomas McA voy on January 20, 1998 in the action entitled Atlantic States Legal Foundation, State of New York and John P. Cahill. as Commissioner of the New York State Deoartment of Environmental Conservation v. Onondaga Countv. (N.D.N.Y) (Improvements referred to as nACJProject ")

-The ACJ Project is subject to a project labor agreement (ACJ/PLA) that has been in effect

since December 1 7. 1998. Individual construction contracts containing the ACJ/PLA were awarded priorto the FebruaJY 17. 2001 Executive Order. The ACJ project is intended IO avert threats to the public health.a.id safety. The County has received federal financial assistance on this project and is scheduled to receive additional financial assistance in the near futu.re. The ACJ/PLA meets the exemption criteria of the February 17, 2001 Executive Order, as Amended on April 6, 2001.

.; ....

APR-24-2001 10:22 CtO-l CNTY DP.Ai N & SAi'~ SYR

Lt. General Robert B. Flowers April 19. 2001 Page2 Re: Onondaga County Lake Improvement Project

315 435 5023 P.05/15

Onondaga County urgently requests an exemption from Executive Order as Amended on April 6, 2001 and that exemption be granted as soon as possible. The County will be awarding the single largest series of ACJ related contiacts starting June 9, 2001. Given the upstate New York climate and the short construction season, time is of the essence to meet the ACJ milestone dates. The County must proceed efficiently. economically and without threat of legal challenges. The County requests that its applications for the exemption and for federal financial assistance for ACJ/PLA projects be processed expeditiously and funds be promptly allocated and released.

APR/kak Enclosure

cc: Rep. James T. Walsh Chairman

-· ......,_ -- - -

APR-24-2001 10: 22 CNlN CNTY DRAIN & SAN SYR 315 435 5023 P.06/15

COUNTY OF ONONDAGA

DEPARTMENT Of'. LAW JOHN H. MULAO'r CMC CENTER

-'21 MONTGOMERY STREET. 'IOT1'f ll'lOO"

NICHOLAS J. PlRRO SYRAC:USr:. NEW YQffK 13202 CouMT'r ii:xs:cuTIVC 13151 '35·2170

FJX (31$) '35·572t

Christie Whitman, Administrator Office of the Administrator United State Environmental Protection Agency 1200 Pennsylvania A venue Washington, D.C. 20460

RE: Onondaga County Lake Improvement Project Application for Exemption

April 19. 2001

Executive Order 1 '3202 of February 17, 2001 as .Au-nended April 6, 2001

Dear Administrator Whitman:

ANTHONY P. RJVIZZIGNO Cou"''" ATT-•CT

Please accept this letter as an application for exemption on behalf of Onondaga County from the terms of the above referenced Executive Order with regard to federal :financial assista."lce for 4. impro~ements to the Onondaga County CSOs and wastewater treatment system. These improvements fl!e mandated by the Amended Consent Judgment (''ACJ") issued by the Hon. Thomas McAvoy on January 20. 1998 in the action entitled Atlantic States Legal Foundation. State of New York and John P. Cahill. a Commissioner of the New York State Department of Environmental Conservation v. Ononda2a Countv. (N.D.N.Y.). (Improvements collectively referred to as "ACJ Project.") - , - _ , - -

As more fully discussed below, the ACJ Project is subject to a pre-existing Project Labor Agreement (" ACID/PLA"). Prior to the ExecutiY-e Order, contracts were awarded which include the ACH/PLA bid specification. The ACJ Project has received federal financial assistance for construction and there are financial assistance applications and ayw"lll'ds currently pending. The County seeks a., exemption pursuant to the April 6, 200 l Amendment to the Executive order which allows a."l exemption for federal assistance recipients that have a pre-existing project labor agreement and have awarded construction conmsc-..s prior to the date of the Executive Order with bid specifications requiring a project labor agreement. An exemption is aJso requested and Vr'all'Snted under Section 5(a) of the Executive Order for special circwnstances in order to avert at• imminen~ trJt~at t~. pu~Jic health or safety. The Onondaga County ACJ Project meets both exemption Crit~ ~~.: :.~,~:~ .. :·i-~_.· . ·: :· - •. ,· . ·. . .

1. E1;ecutive Order Section 5 (3) Exernotion

-~:

APR-24-2301 10:23 CNJN CNTY DRAIN & SAN SYR . 315 435 5023 P.07/15

'-

The ACJ Project Labor Agreement C"ACJIPLA ") and Contract Awards Thereunder Predate and Achieve the Goals of the Executive Order

A. The ACJ/PLA Was Subject to a Rigorous Review and Public Process

In 1994, the Onondaga County Legislature authorized the use of Project Labor Agreements (PLA) on County public works projects when warranted. When the ACJ was entered, the County retained a construction manager through a competitive request for proposal process. Camp Dresser & McKee and C&S Engineers Inc. ("CDM") was selected.

At the same time, CDM explored the feasibility and value of a PLA for the ACJ Project Richard D. Fox, P.E., Senior Vice President and later .Executive Vice President of COM, was responsible for advising Onondaga County on project implementation strategies.' Mr. Fox ~so negotiated the ACJ/PLA on behalf 9f Onondaga County "1rith the Syracuse Area Building Trades Council ("Trades Council") and undertook a detailed benefit analysis of the proposed PLA for the ACJ Project. The comprehensive CDM study resulted in a report entitled "Onondaga County Benefits Analysis Project Labor Agreement ACJ Lake Improvement Project" ("benefit analysis") dated July 1998. CDM concluded that the PLA Vlould be: beneficial as a cost saving initiative, a critiC2l aid to timely completion of the ACJ Project and a necessary prophylactic against delay in delivery of ACJ Project work and disruption of ongoing operations at Metropolitan Wastewater Treat..-nent Plant ("Metro").

On July 22, 1998, County Executive Nicholas Pirro recommended implementation of the PLA. The Onondaga County Public Works Committee of the Onondaga County Legislature held public hearings in connection with the PLA on August 17 and 19, 1998. The County Legislature approved the PLA by Resolution No. 221 dated September 8, 1998. On December 17, 1998 CDM and the Trades Council entered into the ACJ/PLA. Since that time and prior to the Executive Order, ACJiimprovement contracts have been awarded which include the ACJ/PLA bid specification. Accbrdingly, the AGJ/PLA predates the Executive Order, as amended and is _ therefore fully covered by the Section 5 exemption.

B. The ACJIPLA Serves the Pmposes of the ExectJ!ive Order .. ,,.. --·--The ACJ/PLA meets the stated pUipOSes of the Executive Order as amended on April 6,

2001 to (l) promote and ensure open competition; (2) maintain Government neutrality toward labor relations; (3) reduce construction costs to tax-payers; (4) expand job opportunities; {5) prevent discrimination on the basis of labor affiliation; (6) prevent inefficiency due to disruption of previously established contractual relationships.

Similarly, under pre-existing New York competitive bidding lav.-'S, PLA'S are permitted, but only in exceptional circumstances where it can be demonstrated that a PLA will further an important public interest without contravening the State competitive bidding goals of economy, efficiency and non-collusive procurement.Kew York State Chapter Inc. Associated Builders vs. New York State Thruwav Authorlrir.,;,~8}t:~Y:·.ff:L.5~ (I :996)\Thruway Auth6rity"). In other words, the PLA ?1ust not-p:.ecluded)I'' inbil>k-.c-0mpetiti.on. _must be· c~st ·effective and ·must avoid

t ·. . . ""' -. ::·· tt·:~: .. -:- ;:~·~, ;-- :··. . . . . . . . : . .. Mr. fox i~ an intmiatioml c:"<pen OD UlC-plWling, design imd constnJction Of Water/wastewater treatment faciliti~. He served as me

Project Oirec:or ror the Boston 1-brbor CJean-1.,, Project which made cxtcnsiYc use of t.'t cprojc~. labor agrccn:i:nt model.

2 ~-

-

t:PR-24-2001 10:23 Ot04 Q.ITY mAJN & SAN SYR 3l5 435 5023 P.08/15

favoritism. fraud and corruption. To that en~ the requirements for validity of a PLA in New York State serve the same neutrality, economy, efficiency and anti-discrimination goals as the

Executive Order.

Notably7

in Empire State Chapter et al. v. Onondaga County. 1999. WL297696, 160 LR.R.M. (BNA) 2905 (N.Y. Sup. 3/16/99), appeal dismissed. 273 A.D.2d 948 (4th Dept 6/16/00)("Ernoire State"), Hon.· Parker J. Stone found that these goals were met wit.Ji regard to the ACJ/PLA. The Court's review of the CDM benefit analysis reveals that the shared goals of New York State competitive bidding law and the E.xecutive Order as Amended are met. Certainly

9 principals of comity suggest that in evaluating the County's request for an exemption

the views of the State judiciary should be accorded substantial deference.

The ACJ/PLA allows both union and non-union contractors to bid on the Project and the PLA prohibits discrimination in referrals based on union affiliation2

• Further, in its beDcflt analysis, COM projected that the ACJ/.PLA will pro~de cost savings in excess of $11 million over the tenn of the project. In addition to this cost savings, the ACJ/PLA will control the potential for fines associated with a faih.ue to meet ACJ milestone _.datesy costs related to construction delays and costs associated with failure to achieve ACJ objectives as scheduled. Significantly, the fai11ll'C to meet ACJ objectives would result in the ultimate cost - the failure to "obtain the best work" (required CSO control and effluent limits within a specified time frame) "at the lowest possible cost" and thus undermine the purposes of the competitive bidding laws. Thruv:av Authoritv, 88 N.Y.2d at 68. The CDM Benefit Analysis shows that the ACJ/PLA will help to avoid this ultimate cost.

The work under the project also must proceed \\ithout interrupting the routine operations of the Metro and the Combined Sewer Overflows. The ACJ/PLA will facilitate these routine operations. Interruption of routine operatior.s represents yet another cost savings factor th~t '1.ill be controlled by the AQ/PL.A..

The ACJiPLA bas been successfully in effect since December 1999 and prior to the issuance of the February 17, 2001 Executive Order, ACJ contracts have been awarded which contam PLA specifications. The single largest series of ACJ contrac~ for phosphorous and ammonia removal will be awarded starting June 9, 2001. Absent -ari' exemption from the Executive Order, the inclusion or exclusion of the ACJ/PLA bid specification in federally supported contracts would at the very least result in litigation and possible injunctive relief. The uncertainty of outcome could also impact the bid responses and reflect increased overall project costs. Exemption under the Executive Order wou!d surely prevent these inefficiencies resulting

: See PLA A.--..iclc 2, §7. 'Toe unions ~that rhis agreem:ut wi!J be made available to, ar.d will fuUy apply to any .successful bidder ... wihtout reprd to ••. union onon-unioo basis ... ;" Article 3, §2, 1bis Agreement shall be limned to Project worlc .•• " J!..rtide 4, §2. "The collt"acrors agree to h~ Project craft employ~s covered through job ~f:ml systems and hiring halls ... the Contractors sha11 have sole right to determine che request by r.ame, and the loC1sJ must honor, referral of persons ... who meet •.. qualificati?ns ...... Article 4. §3, "No cmploymem applicant shall be d!scrimll:ia!ed against ... because of Jhe applicanrs. lll'!ion

. O:~~r?riP· or lack t."iereof," Article 4. Sec. 6, " No employee shall be discf..mmatcd agair>..st at~ !Toject site because of ibe e~Joyee's union member~ip or lack thereof; .. Article 4, §i (R.59 l): ·"The sel:crion o( era.ft f ore~:.0ns a.TJd!or general forepersons ·• · shall be sole_!y the responsibility oflhe contractor." A:ticie 4, §2(BJ,·non-wnon ~conthC'°i0ri a;e permitted to 'r:fufu iS% of its core employees when pcrform1,g PLA covered wost should be conITZStcd with 12''. in the PLA approved in Thruwav Amhorirv. There arc also Strong manage:nent righu provisions. (Artie~ 6). ...,

-;-.-.

3

RPR-24-2001 10:23 QNG.I CNTY DRA 1 N & SAN SYR 315 435 5023 P.09/15

from disn.-ption of the County's established relationship with CDM and the ACJ/PLA. Clearly, an exemption is authorized by the terms of the Amended E.xecutive Order and is warranted by the objectives and purposes served by the ACJ/PLA.

2. Executive Order Se<:tion 5(a) Exemption

Specie.I Circumstances Reouire Exemotion to Avert an Imminent Threat to Public Health and Safetv

A. The Public Health and Safety Goals of the ACJ

T'ne primary goals of the ACJ mandates are to avert imminent threats to public health and safety a5 reflected in applicable State water quality stm:idards and associated ACJ final effluent limits. The goals of the ACJ arid the unique circumstances presented in this commlllllty, constitute "special circumstances" that require exemption of all ACJ° projects from the application of the February 17, 2001 Executive Order.

The introductory paragraphs of the ACJ detail the public health and safety water quality concerns to be addressed by implementation of the ACJ

'WHEREAS> effluent discharged into Onondaga Lake and its tributaries from Metro and the CSOs (l) contributes approximately 90% of the ammonia loading to the Lake; (2) contn"butes approximately 60% of the phosphorus loading to the Lake, which promotes the growth of algae that is one of the causes of rurbidity; and (3) contributes to the dissolved oxygen deficit in the bottom v.-aters of the Lake; and

\VHEREAS, New York State Department of Emironmental Conservation ("DEC") regulations, at 6•NYcRR Sec. 703.5, Table l, establish water quality standards for ammonia, and ammonia levels in Onondaga Lake violate that standard on a chronic basis; and

VlHEREAS, turbidity in the Lake -causes. substantial wisuar impairment, thereby contn"buting to conditions that render the Lake unfit for public bathing beaches pursuant to New York State Health Depanment regulations. at 10 NYCRR Sec. 6 2.19 ( 4.11.3); and

WHEREAS, the discharge of untreated sewage to Onondaga Lake and its tributaries from the CSOs causes or contributes to conditions whereby bacterial levels in the La.lee exceed standards set by DEC regulations, ~t 61'i-YCRR Sec. 703.4; and

\V"dEREAS, the discharge of untreated Se;¥-age to Onondaga Lake and its tnoutaries introduces floating solids into Onondaga Lake and its t.iibutaries in violation of 6 NYCRR Sec. 703.2 . ·:

'\V1iEREAS, it is_ the State's g6al and intent that Onondaga Lake ami its tri3uti.~e{ ··~ ··· acflJeve the best usage designated for class .. BH and "C" waters pursuant to 6 NYCRR

c:Jm CNTY DRAIN & ~ SYR 315 435 5023 P.10/15

Parts 70 I and 703, as applicable to Onondaga Lake and its tributaries, and existing applicable State water quality standards and guidelines. in ~~cular, achieve the standards and guidelines for dissolved oxygen (6·NYCRR Sec. 703.3), ammonia (6 NYCRR Sec. 703.5), phosphorus (6 ~YCRR Sec. 703.2 and Technical and Operational Guidance Series ("TOGS") l. l. l Water Quality Standards and Guidance Values), nitrogen (6 NYCRR Sec. 703.2), and bacteria (6 Nl'CRR Sec. 703.4), subject of course to any subsequent amendment thereto made in accordance with state or federal law ...

Within the contemplated scope of the Amended Executive Order, an imminent threat to public health exists because of the volume of tmtreated sewage and the extensive use of the lake for recreational pmposes. Extensive boating and fishing occurs on the lake including sailing and water-sports. Syracuse University men and "-'Omen crew and amateur crew events practice and sponsor events on the lake. In crew and sailing, participants come into direct contact with lake v..-ater and may capsize. Also, although swimming is prohibited, the lakesbore includes parkland and this ban is difficult to enforce.

Also, turbidity, in part, associated wit.~ claimed excessive nutrient loading to the La.lee from Metro's phosphorous and ammonia discharges effect clarity and create unsafe v.-ater recreation conditions for the Lake under State public bathing beach safety standards. The ACJ is designed to address these problems in a comprehensive, multifaceted, time sensitive capital construction program.

The ACJ calls for capital improvements to Metro and to the wastewater collection system for the purpose of abatement of combined sewer oYcrilows (CSOs) and attaining specified· effluent limits for ammonia and phosphorous. The CSO related improvements collectively are. intended to reduce the volume of un~tcd sewage and floatable solids by 85%. The capital improvements to Metro are intended to eliminate Metro and the CSOs as factors in any water quality impairments, v.;Jtlch might otherwise inhibit the Lake's suitability for in water recreational use. The ACJ developed models project that upon completion of the A.CJ capital improvements, all but a portion of the lake y,iJJ attain bacteria related bathing beach criteria.

The public health and safety objective of ihe ACJ project -was ~try recognized in an Environmental Assessment (EA) conducted by the United States Environmenttl Protection Agency (EPA) regarding Midland CSO abatement effort required by the ACJ. The EPA conducted the EA pursuant to N'"EPA as a prerequisite to an a\\'a?'d of financial assistance to the County. The EA listed the purpose of the project "to improve the water quality of Onondaga Creek and Onondaga Lake and to aba1e a public health nuisance7 by reducing and eliminating raw sewage discharges to Onondaga Creek from combined sewer overllo"W"S." In the EA, the EPA underscored the purpose at'"ld need for the projec1 to avert t1'r....ats to the public health and safety:

The project is designed to reduce the po!iution of Onondaga Lake and Onondaga Creek, a..Tld to address _public health cone ems in the City of Syracuse. Onondaga Lake .and its tributaxy streams often exbib.it-high;coliform bacteria Ieve!s due to discharges

-· '.::·ofmixed·~ v.--a.1er.:a..rid-.rawsev.--age from CSOs in the sewer systems ofSyracuse ·<·

. . and ·r:1Je'SUil'Ounding-munic-ipalities. The residents of the project area are"su5jeCte(ifo . : the -Odors a..-rising from the decomposition of the organic matter trapped in the CSOs

- ~·--::-=·~~-ti: _;:.~·.:i ~--:~·~

-~ f ~~; .. _: ;:~o'! . _: ;t·. f;~.f~

ONGt CNTY DRAIN & SAN SYR 315 435 5023 P.ll/15

and contained in discharges from· the CSOs along Onondaga Creek during a storm event These discharges ·eventual1y end up in Onondaga Lake, where they exacerbate the degradation of water quality through the added ammonia and phosphorus they carry. Also, the already overloaded collecti~n and treatment system is subjected to added stress because the interceptors must store the excess flows to hydraulic capacity (which can result in local sewer backups) and.the efficiency of the treatment process at the Syracuse Metro STP is reduced because the storm water dilutes the organic content of the influent wastewater.

further, under the terms of a 1989 Judgment on Consent, and a superseding 1998 Amended Consent Judgment (ACJ), Onondaga County is required to improve the water quality of Onondaga Lake by developing lµld implementing a program that includes upgrading the Syracuse Metro STP and eliminating or capturing for treatment not less than 85 percent by volume_ of the combined wastewater on a system-wide average annual basis. The Midland Avenue project is only one of a nwnber of similar projects being carried out for this purpose under the terms of the ACJ.

Clearly, the ACJ projects collectively are intended to avert an imminent thr<>...at to the public: health and safety and require exemption from the February 17, 2001 Executive Order.

B. Threat to Public HeaJth and Safelv is Imminent

The criteria to establish an i~inent threat to public health and safety has not yet been established under the Executive Order by the individual federal agencies administering financial assistance to the states and localities. Pending establishment of such criteria, it is helpful to look to similar provisions of federal eni.ironment31 regulatory structure for guidance.

Summary enfori'ement tools are av-ailable to abate violatio:r.s of the Resource Conservation and Recovery Act (RCR.~) that present an imminent and substantial endangerment to health or the environment 42 USC Section 6972 (aXl)(B). Obviously, the requirement of a "substantial" endangerment under RCRA requi'"ts a greater showing of risk than that required under the February 17, 2001 Executive Oi-der\vhich does not reifuii'e·a--substantial" threat. Now.-ithstandlllg, it is instructive to review the criteria developed in the Courts for establishing an "endangerment" or "threat" and "imminence" under RCRA. Jn Dague v. City of Burlington. 935 F.2d 1343 (2d Cir. 1991) rev'dinparton other grounds, 502 U.S. 1071 (1992), the Second Circuit held that "endangerment" means a threatened or potential harm and does not require proof of actual harm. Id at 1356. As one court reeogrJzed in construing the phrase "Vwill endanger" in the Clean Air Act, "[t]he meap.ing of 'endanger is not disputed. Case Law and dictionary definition agree that endanger meaI?S something less than acrual harm. \linen one is endangered, harm is rhreatened; no actual injmy need ever occur." Ethyl Coro. V. Enviromnental Protection A~:ncv, 541 F2d I. l3 (D.C.Cir. 1976), cert. denied, 96 S.Ct. 2662 (1976) (emphe.sis in origi~). In the Executive Order the harm to be averted must be "threatened" which is

. synonymous v.ith "endangerment" and does not require a showing of .actual hann. Nevertheless • . . the "threat" to public health amt·safecy (OOcter;a a.fld ~-a1er ~.Jfbidity) averted by the expeditious

implementation of ACJproject improvementS zre .real and present

6

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The Dague Court also analyzed the meaning of "imminence., and found that "~imminence' does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present: (a)n imminent hazard may be declared at any point in a chain of events \\·hich may ultimately result in hann to the public." Dague at 1356. Imminence refers to the narure of the threat rather than identification of the time v;hen the endangerment initially arose:· Id. ·(quotation and citation omitted) See, also, U.S. v. Hill. 1998 \llL 278291, 47 ERC

1444 (N.D.N.Y.).

A.n endangerment is "imminent'' if factors givi"lg rise to it are present, even though the harm may not be realized for years. U.S. v. Conservation Chemical. 619 F.Supp. 162, l 93(W.D .Mo. 1985). Moreover, the fact that implementation of corrections may take a protracted time does not justify a finding that threat to public. hCalth is any less imminent nor that commencement of the correction process should be delayed. B.F.Goodrich Co. v. Murtha. 697

F.Supp. 89, 96 (D.Conn. 1988).

The standard of imminent endangerment under RCRA "is designed to prevent future harm and is not limited to emergency situations ... Imminence refers to .the nature of the threat and not to d1e time of the endangerment. Indeed. "imminency" does not mean that actual ha:rm v;ill occur inm1ediately but rather that there is a risk of threatened hann." Prisco v. State of New York. 902 F.Supp. 374, 394 (S.D.N.Y. 1995) (citations OD"ined).

The "Guidance on the Use of Section 7003 of RCRA" issued by the EPA on October 20 1997, reiterates the case law construction of the terms- "imminent" and "endangerment." Notably, EPA listed ten factors that the Regions may consider as appropriate when determining if such· a threat exists. These include levels of contamination in various media, the existence of a connection ber.veen the harm and air soil. or water. and the pathway of exposure to the receptor population. These criteria are met ~ith respect to Onondaga Lake, its Tributaries and the populations surrounding the individual ACJ improvements.

}.

Turbidity and bacteria ate regarded as a present threat and it is the risk or threat that must be imminent. Even if bathers do not cU&-rently use Onondaga Lake and its tributaries for bathing or otherv.'ise have contact Vtith the water, there is a present threat to the public health and safety. Under the ACJ, water quality standards for.fecal coloform are mtellaeafo-bC met lOOo/o of the time so that a portion of the Lake may be used for bathing beaches upon completion of the ACJ project. So too, to the extent that discharges from Metro may cause or contribute to turbidity in excess of applicable public health safety criteria for bathing beaches, water clarity standards are intended to be met at the conclusion of the ACJ project Vlbile implementing the construction intended to meet these g02.ls, disruption to the current operation of the treatment facility must be minimized. The ACJ projects are intended t0 avert these threats to public health and safety. The fact r.hat implementation of ACJ mandates will take a total of twelve years does not justify a finding that tli.reat to the pubiic health is any Jess imminent. Id. J\.funha.

C. The ACJ Proiect Reouires a PLA to Avert Ill".minent Threats to Public HeaJth and .Saferv

The ACJ Project involves adva.'lced treatment technology. pilot studies and a carefully i::ianned build and measure approach. Multiple component contracts must proceed sunuitaneously. The overall schedule is tightly regulated involving multiple interim milestone

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dates before completion in 2012. In order to achieve the abatement goals of the AC? within this schedule. the management of the ACJ Project must be keenly sensitive to variables that may alter the project schedules. The CDM Benefit Analysis concluded that the ACJ/PLA is a critical management tool to control the labor variable on the project.

:

Tcus, the overriding goals of the ACJIPLA are to pro_vide a unified management structure for a diverse work force, to address labor/management issues and to prevent delay in delivery of essential facilities as a result of labor difficulties. During the life of the ACJ Project. union labor will account for the majority of the labor on the ACJ project. Fifteen existing local union agreements would be subject to renegotiation at least eighfy-eight (88) separate times. A brcakdov.n in any of those 88 labor negotiations over the scheduled life of the project couJd effectively shut dov.-n the Project. The ACJIPLA eljminates the impact of these separate negotiations over the life of the project.

Further, the existing craft labor agreements vazy widely on key issues related to time and shift. The ACJ/PLA standardizes these labor expectations on this job. Uniform work rules sen-e the dual purpose of managing a complex project and averting disruption.and delay due to labor disputes. In addition,, the PLA contains a comprehensive no-strike clause. Thus> even though labor disruption is an ACJ force majeure event, the public interest is served by the ACJIPLA which takes legally appropriate steps to prevent or mitigate labor interruptions.

Labor interruptions could adversely impact the public health and safety by delaying the ultimate abatement measures l.mder the ACJ, disr.ipting current operations, prolonging a scheduled bypass event and/or causing other disruptions that interfere with the operation of existing ·wastewater treatment facilities. Several of the ACJ Project components arc modifications or upgrades. to existing sewerage facilities that are currently in operation and providing high levels of public health protection. The construction activities planned on or in proximity to these facilities must be maintained in :full service throughout the construction period. The ACJIPLA p~vides a mechanism to rigorously control the construction actiYities on or in proximity to these operating facilities avoiding the potential that construction could interrupt these essential public health operations.

In Empire State, Judge Stone held that the ACJ "project is excepfionil bot only in its size, complexity and the length of time anticipated for completion, but also because it is in the public interest to improve the environmental condition of the lake. Moreover, the project, includiilg modifications to the existing Metropolitan Syracuse Sewage Treatment Plan~ must prOceed v.-hlle maintaining daily operations. In view of these facts as well as the constraints imposed by the ACJ, it is necessary that the Lake Project proceed in an organiz_~, efficient and expedient manner." Empire State, p.9. The ACJ/PLA e~s that thls occurs.

Clearly, the ACJIPLA is designed to avert an imminent threat to public health and safety. by ensuring the organized, ei1icieot and expedient m~-,agement of a complex, multi-year capital construction project

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D. Special Circumstances Exist

Special circumstances exist which warrant exemption of the· ACJ project from the Executive Order pursuant to Section 5(a). Th~ ACJ project is unique in its size and scope. In fact. it is the largest capital project in the history of Onondaga County. The project is anticipated to extend over a period of at least twelve years and involves .eighteen separate contracts and the participation of at least fifteen categories of trades at a projected cost of $380 million in 1997 dollars. The ACJ establishes an overall completion date of December J. 2012 at which time compliance with the Clean Water Act is intended to be achieved. See, Emgire State, supra. The very purpose of the ACJ and the mandated capital improvements is to avert an imminent threat to public health and safety.

The ACJ improvements must be conducted within an aggressive time schedule in a climate with a short construction season. Often several construction activities will occur simultaneously and in compressed locations. Various trades will be working in close proximity to each other and to County sta..ff. In order to achieve the public health and safety goals of the ACJ, the work must procea..d expeditiously and ""ithout disrupting current ongoing treatment operations. Tight coordination and strict mar!agement controls \J..ill be required.

The ACJ/PLA ~-as subjected to a rigorous and extensive benefit analysis that demonstrated the need for the PL~ inter alia,. to avert delay and disruption on the PLA project and to provide a mechanism to rigorously control the construction activities on or in proximity to these operating facilities avoiding the potential that construction could interrupt these essential operations. The ACJ/PLA provides a comprehensive unified management structure that addresses this need v..it1l the ultimate goal of averting threats to the public health and safety.

· Conclusion

If furtlier actio1{is required to grant the exemption, as pan of the record, the County requests the criteria and guidance for the exemption application under the Executive Order, as amended, and the opportunity to pro-vide further documentation and a complete record as needed for an administrative hearing on the issue of exemption.

- --- .. The key enabling legislation for the ACJ project. the construction management contract

with CDM. the ACJIPLA and individual coP.struction contracts containing the ACJ/PLA, all predate the February 17, 2001 Executive Order. The ACJ project is intended to avert public health and safety concerns. The A CJ IP LA meets the exemption criteria of the February J 7 Executive Order, as Amended on April 6: 200 l.

For the foregoing reasons, Onondaga County requests an exemption from the mandates of the February 17, 2001 Executive Order as Amended on April 6, 2001 and that the exemption be ~'"3Ilted as soon as possible. The County ,-.ill be awarding the single largest series of series of ACJ related contracts starting Jtme 9, 2001. Given the upstate New York climate and shon and

· · · · short construction season, and time is of the essence. The County must meer the ACJ milestone

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dates and efficiently, economically and without threat of legal challenges. The County requests that its applications for exemption and for federal financial assistance for ACJ/PLA projects will be processed expeditiously and funds exemption and will be promptly allocated and released.

APR/kak

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