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