Although Lexington's city government says it has been fulfilling terms of a sewer-repair settlement, the document that ensures continued compliance has never been adopted in U.S. District Court.
On Wednesday, a citizens' group alleged the city is slipping in its enforcement of several areas of the settlement, making court adoption of the document more urgent. The group originally filed suit against the city and its operation of the sanitary sewer system alleging decades of violations of the Clean Water Act.
"We've been getting these reports on non-compliance, and we felt we had no option but to file," said attorney Scott White, who filed the motion. "To do otherwise would be to simply take the word of the city that it is complying."
The settlement called for Lexington to spend as much as $300 million over the next decade to repair sewer systems that have been polluting creeks.
The citizens group filed a renewed motion to enter a consent decree in federal court in Lexington. The motion notes that the consent decree had been mandated since March 16 and has not yet been formally approved in U.S. District Judge Karl Forester's court.
Walt Gaffield, one of the citizens involved in the initial complaint, said, "The city has followed through and probably done the right thing, and probably without Judge Forester formally entering the decree."
He added, though: "I think Scott's right. The judge does need to enter it."
The Sixth Circuit Court of Appeals had sent the case back to Forester, who initially had blocked the settlement because of a proposed $425,000 fine against the city. Forester had ruled that "present-day taxpayers and sewer service users should not be severely penalized for longstanding neglect" of the stormwater and sanitary sewer system by the city. The appeals judges rejected that argument.
Forester could not be reached Thursday for comment. It's unclear why he hasn't approved the settlement.
Susan Bush, acting commissioner of Lexington's Department of Environmental Quality, said the city has no objection to the consent decree and is already meeting many of the settlement's terms for storm-water control and water-quality improvement.
"There's plenty of information to indicate that, yes, we are complying," she said.
The motion alleges the city is failing in some areas, including inspection and enforcement of commercial construction projects for pollution, erosion and sediment control. Pollution prevention in residential and commercial areas also is lacking, according to the motion.
"In short, there is nothing of record holding LFUCG accountable to ensure compliance with the terms of the consent decree or with the requirement of the Clean Water Act," the motion said. "Essentially, the action brought by the 29 Intervening Plaintiffs and the government Plaintiffs is simply in limbo until this court acts."