Full Text
2 3 4 5 6 7 8 9 10 11 12 13 14 REC:r D BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY In the Matter of: CITY OF MOSCOW, Moscow, Idaho Respondent I. ) ) ) ) ) ) ) ) DOCKET NO. CWA-10-2007-0114 CONSENT AGREEMENT AND FINAL ORDER STATUTORY AUTHORITY I 5 1.1. This Consent Agreement and Final Order ("CAFO") is issued under the authority 16 vested in the Administrator of the U.S. Environmental Protection Agency ("EPA") by Section 17 309(g)(2)(B) of the Clean Water Act 33 U.S.C § 1319(g)(2)(B). I 8 1.2. The Administrator has delegated the authority to issue the Final Order contained 19 in Part V of this CAFO to the Regional Administrator of EPA Region 10, who in turn has 20 redelegated this authority to the Regional Judicial Officer in EPA Region JO. 21 1.3. Pursuant to Section 309(g)( l) and 33 U.S.C. § 1319(g)( l) and 22 and in accordance with the "Consolidated Rules of Practice Governing the 23 Administrative Assessment of Civil Penalties," 40 C.F.R. Part 22, EPA hereby issues, and the 24 25 CONSEN! AGREEMENT AND FINAL ORDER- I DOCKET NO. CWA-10-2007-0114 t'.S. Environmental Protection Agency 1200 Sixth Avenue Seattle, \Vashington 98101 (206) 553- 1037 2007-15 ---PAGE BREAK--- City of Moscow ("Moscow") hereby agrees to issuance of, the Final Order contained in Part V o 2 this CAFO. 3 II. PRELIMINARY STATEMENT 4 2.1. In accordance with 40 C.F.R. 22.13(b) and 22.45(b), issuance of this CAFO 5 commences this proceeding which will conclude when the Final Order contained in Part V of 6 this CAFO becomes effective. 7 2.2. Part III of this CAFO contains a concise statement of the factual basis for the 8 alleged violations of the CW A, together with specific provisions of the CW A and implementing 9 regulations that Moscow is alleged to have violated. 10 I I III. ALLEGATIONS 3.1. CWA Section 30l(a), 33 U.S.C. § 1311(a), prohibits the "discharge of any 12 pollutants by any person" except as authorized by a National Pollutant Discharge Elimination 13 System ("NPDES") permit issued pursuant to CWA Section 402, 33 U.S.C. § 1342. Section 14 502(12) of the CWA, 33 U.S.C. § 1362(12), defines the term "discharge of a pollutant" to 15 include "any addition of any pollutant to navigable waters from any point source. " "Navigable 16 waters" are defined as "waters of the United States." 33 U.S.C. § 1362(7). 17 3.2. Moscow is a municipality organized under the laws of the State of Idaho and, 18 thus, is a "person" as defined in Section 502(5) of the CW A, 33 U.S.C. § 1362(5). 19 3.3. Moscow owns and operates a wastewater treatment facility ("Facility") located in 20 Moscow, Idaho. 21 3.4. During the times relevant to this action, Moscow was authorized to discharge 22 municipal wastewater containing pollutants from the Facility pursuant to NPDES Permit No. ID- 23 002149-1 ("Permit"). The Permit became effective on April l4, 1999 and expired on April l4, 24 25 CONSENT AGREEMENT AND FINAL ORDER- 2 DOCKET NO. CWA-10-2007-0114 l'.S. Environmental Protection Agcn(.'V 1200 Sixth Avenue Seattle, \Vashington 98101 (206) 553-1037 ---PAGE BREAK--- 2004. Since Moscow submitted a timely application for reissuance of the Permit, the Permit has 2 been administratively extended. 3 3.5. The Facility, which was under Moscow's control all times relevant to this action, 4 discharges pollutants from Outfall 001, which is located at latitude 46° 44' 21" and longitude 5 11r 01' 47". Outfall 001 is a "point source" within the meaning of Section 502(14) of the 6 CWA, 33 U.S.C. § 1362(14). 7 3.6. The Facility discharges municipal wastewater containing pollutants into Paradise 8 Creek. Paradise Creek is a "navigable water" within the meaning of Section 502(7) of the CW A, 9 33 U.S.C. § 1362(7), and a "water of the United States" within the meaning of 40 C.F.R. § 122.2. 10 3.7. Part I.A. of the Pennit establishes effluent limits for the discharge from Outfall I I 00 I . These effluent limits include, but are not limited to, total residual chlorine, dissolved 12 oxygen, fecal coliform bacteria, and phosphorus. 13 3.8. Part II. C. of the Permit requires Moscow to summarize monitoring results for the 14 Facility each month in a Discharge Monitoring Report 15 3.9. Moscow's DMRs from March 2002 to June 2006 indicate that the Facility had 16 871 violations of the effluent limits set forth in the Permit. When a permittee exceeds a 17 average effluent limit, the permittee is deemed to be in violation of that effluent limit each of the 18 days of the month in which the violation occurred. When a permittee exceeds a weekly average 19 effluent limit, the exceedance is counted as seven violations. When a permittee exceeds a daily 20 maximum effluent limit, the exceedance is counted as one violation. 21 3. 10. Section I. A. of the Permit contains a average mass effluent limit for total 22 residual chlorine in discharges from the Facility of 0.3 lbs/day. Between March 2002 and June 23 2006, Moscow violated the average mass effluent limit for total residual chlorine in 24 February 2003, constituting 29 violations. 25 CONSENT AGREEMENT AND FINAL ORDER - 3 DOCKET NO. CWA-10-2007 -0114 C.S. Environmental Protection Agency 1200 Sixth Avenue Seattle, Washington 98101 (206) 553-1037 ---PAGE BREAK--- 1 3.11. Section LA. of the Permit contains a daily maximum concentration effluent limit 2 for total residual chlorine in discharges from the Facility of 18 [tg/L. Between March 2002 and 3 June 2006, Moscow violated the daily maximum concentration effluent limit for total residual 4 chlorine a total of five months, constituting five violations. The violations are as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 May 2002 1 July 2002 January I February 2003 August 3.12. Section I.A. of the Permit contains a daily maximum mass effluent limit for total residual chlorine in discharges from the Facility of 0.5 lbs/day. Between March 2002 and June 2006, Moscow violated the daily maximum mass effluent limit for total residual chlorine a total of three months, constituting three violations. The violations are as follows: March 2002 I February 2003 I August 1 3.13. Section I. A. of the Permit contains a daily maximum effluent limit for fecal coliform bacteria in discharges from the Facility of 800 colonies/100 mL. Between March 2002 and June 2006, Moscow violated the daily maximum effluent limit for fecal coliform bacteria a total of two months, constituting two violations. The violations are as follows: CONSENT AGREEMENT AND FINAL ORDER - 4 DOCKET NO. CWA-10-2007-0114 C Environmental Protection 1200 Sixth Avenue Seattle, Washington 98101 (206) 553-1037 ---PAGE BREAK--- I 3.14. Section LA. of the Permit contains an effluent limit for dissolved oxygen in 2 discharges from the Facility that requires the dissolved oxygen level in the effluent to be, at a 3 minimum, 8.0 mg/L. In addition, the Permit requires Moscow to monitor the effluent for 4 dissolved oxygen three times per week. Between March 2002 and June 2006, Moscow 5 violated the dissolved oxygen effluent limit a total of thirteen (13) months, constituting 105 6 violations. The violations are as follows: 7 8 July 2002 9 July 2003 10 I I July 2004 August 12 September 2004 13 July 2005 14 August 2005 15 September 2005 October 2005 16 June 2006 17 7 2 I 5 18 17 17 3 17 7 5 18 3.15. Section LA. of the Permit contains a average concentration effluent limit 19 for phosphorus in discharges from the Facility that occur between May 15'h and October JS'h of 20 0.136 mg/L. Between March 2002 and June 2006, Moscow violated the average 21 concentration effluent limit for phosphorus a total of thirteen (13) months, constituting 336 22 violations. The violations are as follows: 23 24 25 CONSENT AGREEMENT AND FINAL ORDER- 5 DOCKET NO. CWA-10-2007-0114 t r.S. Environmental Protection Agcn(.'Y 1200 Sixth Avenue Seattle, Wasl•ington 98101 (206) 553-1037 ---PAGE BREAK--- 2 3 4 5 6 7 8 9 10 II 12 13 14 July 2004 31 August 2004 31 September 2004 30 October 2004 15 May 2005 16 June 2005 30 July 2005 15 August 2005 31 September 2005 30 October 2005 31 June 2006 30 3.16. Section LA. of the Permit contains a average mass effluent limit for phosphorus in discharges from the Facility that occur between May 15'h and October 15'h of 4.1 lbs/day. Between March 2002 and June 2006, Moscow violated the average mass effluent limit for phosphorus a total of ten ( 1 0) months, constituting 244 violations. The CONSENT AGREEMENT AND FINAL ORDER - 6 DOCKET NO. CWA-10-2007-0114 t Environmental Protection Agency 1200 Sixtl1 Avenue Seattle, Washington 98! 01 (206) 553-1037 ---PAGE BREAK--- 3.17. Section I. A. of the Permit contains a weekly average concentration effluent limit 2 for phosphorus in discharges from the Facility that occur between May l5'h and October 15'h of 3 0.27 mg!L. Between March 2002 and June 2006, Moscow violated the weekly average 4 effluent limit for phosphorus a total of thirteen (13) months, constituting 91 5 violations. The violations are as follows: 6 7 May 2004 8 July 2004 9 August 10 September 2004 I I May 2005 12 June July 2005 13 August 2005 14 September 2005 October 2005 15 16 7 7 7 7 7 7 7 7 7 7 7 17 3.18. Section I.A. of the Permit contains a weekly average mass effluent limit for 18 phosphorus in discharges from the Facility that occur between May !51h and October 15'h of 8.2 19 lbs/day. Between March 2002 and June 2006, Moscow violated the weekly average mass 20 effluent limit for phosphorus a total of eight months, constituting 56 violations. The 21 violations are as follows: 22 23 24 25 June 2004 August 2004 September CONSENT AGREEMENT AND FINAL ORDER - 7 DOCKET NO. CWA-10·2007-0114 7 7 C.S. Environmental Protection 1200 Sixth Avenue Seattle, Washington 98101 (206) 553- 1037 ---PAGE BREAK--- 2 3 4 5 6 7 8 9 10 II 12 13 14 !5 16 l7 18 19 20 21 22 23 24 25 October 2004 7 May 2005 7 June 2005 7 September 2005 7 October 2005 7 3.19. Under Section 309(g)( l) of the CW A, 33 U.S.C. § 1319(g)(l), EPA may assess administrative penalty when EPA finds that "any person . . . has violated any permit condition or limitations . . . in a permit issued" pursuant to Section 402 of the CW A, 33 U.S.C. § 1342. The Permit violations alleged for the Facility constitute violations of Section 30 l(a) of the CW A, 33 U.S.C. § 131l(a). Consequently, under Section 309(g)(2)(B) of the CWA, 33 U.S.C. § 1319(g)(2)(B), Moscow is liable for the administrative assessment of civil penalties for violations at the Facility in an amount not to exceed S II ,000 per day for each day during which the violation continues, up to a maximum amount of $157,500. 4.1. herein. 4.2. IV. CONSENT AGREEMENT Moscow stipulates th'!t EPA has jurisdiction over the subject matter alleged As required under Section 309(g)(3) of the CW A, 33 U.S.C. § 1319(g)(3), EPA has taken into account the nature, circumstances, extent and gravity of the alleged violations, as well as Moscow's economic benefit of noncompliance, ability to pay, and such other matters as justice may require. After considering all of these factors, EPA has determined and Moscow agrees that an appropriate penalty to settle this action is in the amount of One Hundred Thirty Four Thousand Dollars 134,000.00). 4.3. Moscow neither admits nor denies the specific factual allegations contained in Part III of this CAFO. CONSENT AGREEMENT AND FINAL ORDER - 8 DOCKET NO. CWA-10-2007-0114 C.S. Environmental Protection Agency l200 Sixth Avenue Seattle, \Xlashington 98101 (206) 553-1037 ---PAGE BREAK--- 4A. Moscow consents to issuance of the Final Order set forth in Part V, below, and 2 agrees to pay the total civil penalty set forth in Paragraph 4.2, above, within thirty (30) days of 3 the effective date of this Final Order. 4 5 6 7 8 9 10 I I 12 !3 14 15 16 17 18 19 20 21 22 23 24 25 4S Payment under this CAFO shall be made by cashier's check or certified check, payable to the order of "Treasurer, United States of America" and delivered to the following address: Mellon Bank EPA Region 10 P.O. Box 36903M Pittsburgh, 15251 Moscow shall note on the check the title and docket number of this action. 4.6. Moscow shall serve photocopies of the check described in Paragraph 4.5, above, on the Regional Hearing Clerk and the EPA Region 10 Office of Compliance and Enforcement at the following addresses: 4.7. Regional Hearing Clerk U.S. Environmental Protection Agency Region 10 1200 Sixth Avenue, ORC-158 Seattle, WA 98101 Office of Compliance and Enforcement Attn: Jamie Sikorski U.S. Environmental Protection Agency Region 10 1200 Sixth Avenue, OCE-133 Seattle, W A 98199 If Moscow fails to pay the penalty assessed by this CAFO in full by the due date set forth in Paragraph 4.4, above, the entire unpaid balance of penalty and accrued interest shall become immediately due and owing. If Moscow fails to pay the penalty assessed, Moscow may be subject to a civil action to collect the assessed penalty under the CW A, together with interest, CONSENT AGREEMENT AND FINAL ORDER - 9 DOCKET NO. CWA-10-2007-0114 l Environmental Protection Agency 1200 Sixtl1 Avenue Seattle, \X'ashington 98101 i206) 553-1037 ---PAGE BREAK--- 1 fees, costs, and additional penalties described below. In any collection action, the validity, 2 amount, and appropriateness of the penalty shall not be subject to review. 3 4.8. If Moscow fails to pay any portion of the penalty assessed by this CAFO in full 4 by the due date set forth in Paragraph 4.4, above, Moscow shall be responsible for payment of 5 the amounts described below: 6 4.8.1. Interest. Pursuant to Section 309(g)(9) of the Act, 33 U.S.C. 1319(g)(9), 7 any unpaid portion of the assessed penalty shall bear interest at a rate established by the 8 Secretary of Treasury pursuant to 31 U.S.C. § 3717(a)(l) from the effective date of the 9 Final Order set forth in Part V, below, provided, however, that no interest shall be 10 payable on any portion of the assessed penalty that is paid within thirty (30) days of the 11 effective date of the Final Order. 12 4.8.2. Attorneys Fees, Collection Costs, Nonpayment Penalty. Pursuant to 13 Section 309(g)(9) of the Act, 33 U.S.C. § 1319(g)(9), if Moscow fails to pay on a timely 14 basis the amount of the penalty set forth in Paragraph 4.3, above, Moscow shall pay (in 15 addition to any assessed penalty and interest) attorneys fees and costs for collection 16 proceedings and a quarterly nonpayment penalty for each quarter during which such 17 failure to pay persists. Such nonpayment penalty shall be in an amount equal to twenty 18 percent (20%) of the aggregate amount of Moscow's penalties and nonpayment penalties 19 which are unpaid as of the beginning of such quarter. 20 4.9. The penalty described in Paragraph 4.2, above, including any additional costs 21 incurred under Paragraph 4.8, above, represents an administrative civil penalty assessed by EPA 22 and shall not be deductible for purposes of federal taxes. 23 24 25 CONSENT AGREEMENT AND FINAL ORDER - I 0 DOCKET NO. CWA-10-2007-0114 {T.S. Environmental Protection Agency 1200 Sixth .Avenue Seattle, \'fasl1ington 98101 (206) 553-1037 ---PAGE BREAK--- 4.10. The undersigned representative of Moscow certifies that he or she is fully 2 authorized to enter into the terms and conditions of this CAFO and to bind Moscow to this 3 document. 4 4.11. Except as described in Subparagraph 4.8.2, above, each party shall bear its own 5 costs in bringing or defending this action. 6 4.12. Moscow expressly waives any rights to contest the allegations and waives any 7 right to appeal the Final Order set forth in Part V, below. 8 4. 13. The provisions of this CAFO shall bind Moscow and its agents, servants, 9 employees, successors, and assigns. 10 4.14. The above provisions are STIPULATED AND AGREED upon by Moscow and CITY OF MOSCOW: ' NANCY CHANEY Mayor For Respondent U.S. ENVIRONMENTAL PROTECTION AGENCY: ( rv/1&. Url j\jct5:;jJUv\. COURTNEY J. HAMAMOTO Assistant Regional Counsel For Complainant CONSENT AGREEMENT AND FINAL ORDER · II DOCKET NO. CWA-I0-2007-0II4 lē.S. Environmental Protection Agency 1200 Sixth Avenue Seattle, -xx;'asl1ington 98101 (206) 553-!037 ---PAGE BREAK--- 2 5.1 . V. FINAL ORDER The terms of the foregoing Parts I-IV are hereby ratified and incorporated by 3 reference into this Final Order. Moscow is hereby ordered to comply with the foregoing terms o 4 the settlement. 5 5.2. This CAFO shall constitute a settlement by EPA of all claims for civil penalties 6 pursuant to the CW A for the violations alleged in Part III, above. In accordance with 40 C.F.R. 7 § 22.3l(a), nothing in this CAFO shall affect the right of EPA or the United States to pursue 8 appropriate injunctive or other equitable relief or criminal sanctions for any violations of law. 9 This CAFO does not waive, extinguish, or otherwise affect Moscow's obligations to comply 1 0 with all applicable provisions of the CW A, applicable CW A regulations, and/or any permits I 1 issued thereunder. 1 2 5.3. In accordance with Section 309(g)( l ) of the CWA, 33 U.S.C. § 1 31 9(g)( and 1 3 40 C.F.R. § 22.38(b the Idaho Department of Environmental Quality has been given the 1 4 opportunity to consult with EPA regarding the assessment of the administrative civil penalty 1 5 against Moscow. 1 6 5.4. Pursuant to Section 309(g)(4)(A) of the CWA, 33 U.S.C. § 1 31 EPA 17 has published public notice of its intent to assess an administrative penalty against Moscow and 1 8 to invite public comment in accordance with 40 C.F.R. § 22.45. More than forty (40) days have 1 9 elapsed since the issuance of this public notice, and EPA has received no petition to set aside the 20 Consent Agreement contained herein. 21 5.5. This Final Order shall become effective upon filing. 22 23 24 25 CONSENT AGREEMENT AND FINAL ORDER- 12 DOCKET NO. CWA-10-2007-0114 l I:nvironmental Protection Agency 1200 Sixth Avenue Seattle, Wasbington 98101 (206) 553-!037 ---PAGE BREAK--- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SO ORDERED this 1 j"y of , 2007. RI HARD G. McALLISTER Regional Judicial Officer D U.S. Environmental Protection Agency Region 10 CONSENT AGREEMENT AND FINAL ORDER- !3 DOCKET NO. CWA-10-2007-0114 t'.S. Environmental Protection Agen<.:y 1200 Sixth Avenue Seattle, Washington 981.01 (206) 553-!037 ---PAGE BREAK--- CERTIFICATE OF SERVICE The undersigned certifies that the original of the attached CONSENT AGREEMENT AND FINAL ORDER in In the Matter of: City of Moscow, DOCKET NO.: CWA-10-2007- 0114 was filed with the Regional Hearing Clerk on June 19, 2007. On June 19, 2007 the undersigned certifies that a true and correct copy of the document was delivered to: Deborah Hilsman, Esquire 1200 Sixth Avenue, ORC-158 Seattle, Washington 98101 Further, the undersigned certifies that a true and correct copy of the aforementioned document was placed in the United States mail certified/return receipt on June 19, 2007, to: Nancy Chaney, Mayor City of Moscow P.O. Box 9203 Moscow, Idaho 83843 DATED this 19'h day of June 2007. Carol Kennedy Regional Hearings Clerk EPA Region I 0