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2002-346ORDINANCE NO. 2002- AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING THE EXECUTION OF A CONSENT AGREEMENT AND FINAL ORDER BY THE CITY MANAGER REGARDING THE SETTLEMENT OF A DISPUTED CLAIM, IN CASE NO. CWA-06-2002-1628 WITH THE ENVIRONMENTAL PROTECTION AGENCY; AUTHORIZING THE PAYMENT OF $46,800, IN SETTLEMENT AND COMPROMISE THEREOF; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas ("City") and the Environmental Protection= Agency (`EPA") are currently involved in Case No. CWA-06-2002-1628, wherein EPA alleges that the City Wastewater Department has committed minor point source violations regarding applicable Federal law, which the City partially disputes; and WHEREAS, the City and EPA have recently met in settlement conference respecting the Complaint, and as a result of such conference, a decrease of over $90,000 in claimed penalties by the EPA has resulted. City staff recommends that the City Council accept such settlement offer because of the risks, uncertainties, and the fees and expenses of this type of litigation; and WHEREAS, the City desires to enter into the Consent Agreement and Final Order (the "Consent Agreement") referenced below, and believes that doing so is in the best interests of the City; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the proposed Consent Agreement and Final Order in Case No. CWA- 06-2002-1628 is hereby approved, and the City Manager is authorized to execute said Consent Agreement, as well as any other documents necessary to effect such settlement, on behalf of the City of Denton, Texas. SECTION 2. That the City Manager is hereby authorized to expend an amount of money not exceeding $46,800 in settlement of the above litigation. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. ~I { n PASSED AND APPROVED this the day of ~ti6~ci{/ 2002. EULINE BROCY, MAYOR Page 1 of 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: SAOur Documents\Ordinanccs\02\EPA-Wastewater Utility- Settlement Ordinance 2002.doc Page 2 of 2 J1100 ar4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 ~s 1445 ROSS AVENUE, SUITE 1200 `lr+c PROI ~ DALLAS, TX 75202-2733 CERTIFIED MAIL: RETURN RECEIPT REQUESTED ( 7099 3220 0001 4432 2316) Mr. Howard Martin Assistant City Manager City of Denton 215 E. Mckinney Street Denton, TX 76201 Re: Consent Agreement and Final Order Docket No. C WA-06-2002-1628 NPDES Permit No. TX0047180 Dear Mr. Martin: This is to acknowledge receipt of your letter dated October 18, 2002, transmitting the signed Consent Agreement and Final Order. EPA also received the penalty amount of $46,800 from the City of Denton, forwarded in a letter dated October 21, 2002. As no comments were received from the general public during the thirty (30) day public notice period, the Environmental Protection Agency hereby issues this Consent Agreement and Final Order. The Consent Agreement and Final Order shall become effective thirty (30) days after the date of issuance noted therein. If you have any questions regarding this matter, please contact Mr. 'fed Palit. P.E., at telephone (214) 665-8061. Si rely yours, 70- Samuel Coleman, PX)-:)~ Director Compliance Assurance and Enforcement Division Enclosure cc: Mr. John Sadlier. Manager Lnforcement Section I 11. MC 149 Texas Commission on Environmental Qualitv Recycled/Recyclable . Printed wtth Vegetable Oil Based Inks on 100% Rocyclod Papor (40% Postconsumer) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 In the Matter of CITY OF DENTON Respondent NPDES Permit No. TX0047180 § Docket No. CWA-06-2002-1628 § CONSENT AGREEMENT § AND FINAL ORDER I. STATUTORY AUTHORITY This Consent Agreement and Final Order is issued under the authority vested in the Administrator of the United States Environmental Protection Agency ("EPA") by Section 309(g) of the Clean Water Act (herein "the Act'), 33 U.S.C. § 1319(g). The Administrator delegated this authority to the Regional Administrator of EPA Region 6. This Consent Agreement and Final Order is issued in accordance with 40 C.F.R. § 22.18. II. CONSENT AGREEMENT 1. The Parties agree that settlement of the relevant matters without litigation will save time and resources, that it is in the public interest, and that the entry of this Consent Agreement and Final Order is the most appropriate means of resolving such matters. 2. Respondent admits the jurisdictional allegations of the Complaint and neither admits nor denies any other allegation, finding of fact, or conclusion of law contained in the Complaint, for the purposes of this Consent Agreement and Final Order, except as specifically stated herein. Docket No. CWA-06-2002-1628 Page 2 3. Respondent expressly waives the right to a hearing or appeal pursuant to Sections 309(g)(2) or (8) of the Act, 33 U.S.C. 1319(g)(2) or (8), on penalty assessment, or on any other issue of law or fact relevant to the issues within the scope of this Consent Agreement and Final Order. Respondent further waives all defenses which have been, or could have been, raised to the claims within the scope of this Consent Agreement and Final Order, and waives the right to judicial review of this administrative penalty assessment as to the issues within the scope of this Consent Agreement and Final Order. 4. Before the taking of any testimony, and without adjudication of any issue of law or fact, the parties agree to the terms of this Consent Agreement and Final Order and to its issuance. Respondent consents to the assessment and payment of a civil penalty, in the amount and by the method stated below. III. STIPULATIONS 5. The City of Denton (hereinafter "the Permittee") is a municipality, chartered under the laws of the State of Texas and as such, the Permittee is a "person", as that term is defined at § 502(5) of the Act, 33 U.S.C. § 1362(5), and 40 C.F.R § 122.2. 6. At all times relevant to this Order, the Permittee owned or operated, on behalf of the local public, a wastewater treatment plant, located at 1100 Mayhill Road, in the City of Denton, Texas (herein "the facility"), and was therefore an "owner or operator" within the meaning of 40 C.F.R. § 122.2. Docket No. CWA-06-2002-1628 Page 3 7. On September 19, 2002, EPA Region 6 issued to Respondent an Administrative Complaint under Section 309(8) of the "Clean Water Act" ("the Complaint"), which specified findings of fact and conclusions of law, hereby incorporated by reference, proposed to assess a civil penalty against Permittee, and gave notice of Permittee's opportunity to request a hearing on the proposed administrative penalty assessment. 8. The Complaint alleged, among other things, that, at the relevant times: Permittee was a "person" that "owned or operated" a facility that was a "point source" subject to a "discharge" of "pollutants" to identified "waters of the United States," within the meaning of Section 502 of Act, 33 U.S.C. § 1362, and 40 C.F.R. § 122.2; that Permittee and the facility were subject to the provisions of the Act, 33 U.S.C. § 1251 et SeMC and the NPDES program; and that Permittee violated Section 301 of the Act, 33 U.S.C. § 1311 by causing overflows (unauthorized discharges) from the collection system and sewer interceptor in violation of the terms and conditions of the Permittee's NPDES permit. 9. With the issuance of the Complaint, the State of Texas was notified and given an opportunity to consult with EPA regarding the proposed assessment of an administrative penalty against Permittee. 10. EPA notified the public of the Complaint and afforded the public thirty (30) days in which to comment on the Complaint and proposed penalty. At the expiration of the notice period. EPA had received no comments from the public. Docket No. CWA-06-2002-1628 Page 4 IV. FINAL ORDER 11. Based on the foregoing stipulations, EPA Region 6 having taken into account the relevant criteria pursuant to § 309(g)(3) of the Act, and under the authority of Section 309(g) of the Act, 33 U.S.C. § 1319(8), EPA Region 6 hereby ORDERS that Permittee shall pay to the United States a civil penalty in the amount of FORTY-SIX THOUSAND EIGHT HUNDRED DOLLARS ($46,800) to settle the violations as alleged in the Complaint, in accordance with 40 C.F.R. § 22.18(c). 12. Payment shall be made within thirty (30) days of the effective date of this Consent Agreement and Final Order by mailing a cashier's check or certified check, payable to "Treasurer of the United States", to the following address: Regional Hearing Clerk U.S. EPA, Region 6 P.O. Box 360582M Pittsburgh, PA 15251 Docket No. CWA-06-2002-1628 should be clearly typed on the check to ensure credit for payment. 13. Permittee shall send simultaneous notice of payment, including a copy of each check to each of the following: (1) Regional IlearingClerk (6RC-IIO) U.S. EPA, Region 6 1445 Ross Avenue Dallas. Texas 75202-2733 Docket No. CWA-06-2002-1628 Page 5 (2) Chief, Compliance Monitoring (6EN-WC) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 (3) Chief, Legal Branch (6RC-EW) U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Permittee's adherence to these procedures will ensure proper credit when payment is received by EPA. 14. If the United States does not receive payment within the time and under the terms specified herein, interest will accrue on the unpaid balance from the due date at the current annual rate prescribed and published by the Secretary of the Treasury in the Federal Register and the Treasury Fiscal Requirements Manual Bulletin, per annum, through the date of payment. Late payments and final payments shall include all accrued interest. 15. If all or part of the payment is overdue, EPA will impose a late-payment handling charge of $15, with an additional delinquent notice charge of $15 for each subsequent 30-day period. EPA will also apply a twenty percent (20%) per annum penalty on any principal amount not paid within ninety (90) days of the due date pursuant to Section 309(g)(9) of the Act, 33 U.S.C. § 1319(g)(9). Penalties under other federal statutes for failure to make timely payment may also apply. 16. Failure by Permittee to pay the penalty assessed according to the terms of this Consent Agreement and Final Order, in full, by its due date, may subject Permittee to a civil action to collect the assessed penalty and any accrued interest or penalties. Docket No. CWA-06-2002-1628 Page 6 17. In the event a collection action is necessary, Permittee shall pay - in addition to any applicable penalty, fees, and interest described herein - all reasonable costs and expenses, including legal expenses and court costs, incurred by the United States for enforcement and collection proceedings for nonpayment of the amounts agreed hereunder, pursuant to Section 309(g)(9) of the Act. In any such collection action, the validity, amount, and appropriateness of the penalty, and the terms of this Consent Agreement and Final Order, shall not be subject to review. V. GENERAL PROVISIONS 18. To execute this Agreement, Permittee shall forward this copy of the Consent Agreement and Final Order, with original signature, to: Darlene Whitten-Hill Water Enforcement Branch (6EN-WC) U.S. EPA Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 19. Issuance of this Consent Agreement and Final Order does not relieve Permittee from responsibility to comply with all requirements of the Act and the requirements of any permits issued thereunder, as described in Section 309(g)(7), 33 U.S.C. § 1319(g)(7), nor does it constitute a waiver by EPA of its right to enforce compliance with the requirements of Permittee's permits or other requirements of the Act by actions pursuant to Section 309 of the Act, 33 U.S.C. § 1319. Docket No. CWA-06-2002-1628 Page 7 20. The provisions of this Consent Agreement and Final Order shall be binding upon Permittee, its officers or officials, managers, employees, and their successors or assigns, in their capacity on behalf of Pernrittee. 21. Each party agrees to bear its own costs and attorneys fees in this matter, except to the extent that Permittee may be responsible for reasonable costs and expenses of enforcement and collection proceedings for failure to comply with the terms of this Consent Agreement and Final Order. VI. EFFECTIVE DATE 22. This Consent Agreement and Final Order shall become effective thirty (30) days after the date it is signed and dated by the Regional Administrator on behalf of EPA Region 6. In recognition and acceptance of the foregoing: *L&RZ L 10115102- For City of Denton Date: Samuel Coleman, P.E., Direzi'tf Compliance Assurance and Enforcement Division U.S. EPA, Region 6 //3IC3 3 Date Docket No. CWA-06-2002-1628 Page 8 Issued this 3i Day of -!rc, 2003. U.S. EPA, Region 6 Date Lawrence E. Starfield Acting Regional Administrator Docket No. CWA-06-2002-1628 Page 9 CERTIFICATE OF SERVICE n I hereby certify that on the Bday of ^ ^3 ,the original of the foregoing Consent Agreement and Final Order was hand delivered to the Regional Hearing Clerk, U.S. EPA, Region 6 (6RC-HO), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, and that a true and correct copy was placed in the United States Mail, by certified mail, return receipt requested, addressed to the following: Mr. Howard Martin Assistant City Manager City of Denton 215 E. Mckinney Street Denton, TX 76201 with a copy, first class postage prepaid, to Mr. John Sadlier, Manager Enforcement Section III, MC149 Texas Commission on Environmental Quality P.O. Box 13087 Austin, TX 78711-3807 F E B 13 r~~3) A