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Resolution, 4/26/05, of state lawsuit against Charles Town for polluting Evitts Run








V.                                                        Civil Action No. 04-C-79







            WHEREAS, Plaintiff Allyn U Turner, Director, Division of Water and Waste Management (successor to Division of Water Resources), West Virginia Department of Environmental Protection (“WVDEP”) filed the Complaint herein alleging that the Defendant had violated the West Virginia Water Pollution Control Act (“Act”), West Virginia Code §~ 22-11-1 through -28. and its West Virginia/National Pollutant Discharge Elimination System ( WV/NPDES”) Permit No. WV0022349 ("Permit") at its waste water treatment facility in Jefferson County. West Virginia; and


            WHEREAS Defendant has denied am liability for the violations in the complaint; and


            WHEREAS Defendant owns and operates a waste water treatment facility that discharges into Evitts Run of the Shenandoah River of the Potomac River, and which the WVDEP alleges is in violation of the Act and its Permit; and


            WHEREAS the parties having agreed that settlement of this matter is in the public interest and that entry of this Consent Decree without further litigation is the most appropriate means of resolving this matter; and


            NOW THEREFORE, It is hearby ORDERED, ADJUDGED, AND DECREED as follows:




            This Court has jurisdiction over the subject matter of this action and the parties hereto pursuant to W Va Code § 22-11-22. Venue is proper in this Circuit Court pursuant to W Va Code § 22-11-22, because Defendant is located and doing business in this judicial circuit, and because the violations that are the subject of this action occurred in this judicial circuit.




            This Consent Decree applies to, and is binding upon. the Defendant in this action, its officers, directors, agents. servants, employees, contractors, subcontractors, successors,assigns, and all persons, firms, and corporations in active concert or participation with them.




The Court enjoins the Defendant from operating and maintaining its waste water treatment facility in a manner that will result in further violations of the Act and its Permit, and orders the Defendant to expend the funds necessary to operate and maintain its wastewater treatment facility in compliance with the Act and its Permit.




            In settlement of the Plaintiff's claims in the Complaint relating to reported violations of the Act and WV/NPDFS Permit No. WV0022349, the Defendant shall pay a civil penalty totaling $251,000 as follows:


            The Defendant shall pay a cash penalty of $79,000 in three (3) equal installments. Each installment shall be due as follows: The first within 180 days after entry of this Consent Decree; The second within 360 days after entry of this Consent Decree; The third and final installment within 540 days after entry of this Consent Decree. All checks shall be made payable to the “West Virginia Department of Environmental Protection” for deposit in the Water Quality Management Fund, and shall he sent to the Chief Inspector, Environmental Enforcement, West Virginia Department of Environmental Protection, 601 57th Street SF. Charleston. West Virginia 25304.


            The Defendant may satisfy the remaining civil penalty of $172,000 by undertaking and completing a Supplemental Environmental Project (SEP). A SEP is a project or activity which improve, protects, or reduces risks to public health or the environment at large, and which is not currently required by the Defendant’s Permit or by any federal, state, or local law or regulation. or prior enforcement action against the Defendant. The Defendant may not perform any work in furtherance of a SEP until it receives written approval from the Chief Inspector for Environmental Enforcement that the proposed project or activity qualifies as a valid SEP. In this regard. the Defendant must submit to the Chief Inspector a written proposal for a SEP within sixty (60) days after entry of this Consent Decree. The SEP proposal must include milestones br commencing and completing the project or activity as well as financial information documenting the value of the SEP. Within thirty (30) days after completion of the SEP. the Defendant shall submit a SEP Completion Report to the Chief Inspector. The Report shall contain the following information: (1) A detailed description of the SEP as implemented; (2) A description of any operating problems encountered and the solutions thereto; (3) A certification that total expenditures for the SEP were not less than $172,000; (4) An itemization of the costs; (5) A certification that the SEP has been fully implemented pursuant to the Consent Decree; and (6) A description of the environmental and/or public health benefits resulting from implementation of the SEP. Failure to meet any approved milestone shall incur stipulated penalties in accordance with Section V below. Notwithstanding the foregoing, the Defendant may elect in writing to the Chief Inspector to make a cash payment of the remaining $172,000 in lieu of performing a SEP. In that event, the Defendant shall pay the remaining civil penalty of $172,000) in four equal quarterly installments within one year from the date of election.




            The Defendant shall be liable for stipulated penalties to the WVDEP for failure to comply with any requirement of this Consent Decree. Stipulated penalties shall accrue per violation per day as follows:

            Period of Noncompliance                   Penalty

            1st through 15th day                           $500 per day per violation

            16th through 30th day                        $750 per day per violation

            Aller 30th day                                     $1,000 per day per violation


            The Defendant shall pay the stipulated penalty assessed for any violation of this Consent Decree within 15 days of receipt of written demand by Plaintiff, unless the Defendant moves the Court within that 15-day period for a hearing thereon and thereafter demonstrates to the satisfaction of the Court that the failure to meet any deadline or requirement in this Consent Decree was due to circumstances entirely beyond the control of the Defendant.


            The stipulated penalties provided herein pertain only to the requirements of this Consent Decree and are in addition to other remedies and sanctions available to the WVDEP by reason of the Defendant's failure to comply with the requirements of the Consent Decree, the Act, or its Permit. All payments to the WVDEP under this Section shall he paid by certified or cashier’s check made payable to the “West Virginia Department of Environmental Protection for deposit in the Water Quality Management     6F’iiiid aifti shall be sent to the Chief’ Inspector, Environmenta1 Enforcement to the address specified in Section IV above.




            Perfbrmance of the terms of this Consent Decree by the Defendant is not conditioned on the receipt of any grant or loan funds. In addition, performance is not excused by the lack of any grant or loan funds, or by the processing of any application for the same.




            If any event occurs which causes or may cause a violation of any provision of this Consent Decree by the Defendant, it shall notify the plaintiff in writing within ten (10) days of the date on which the Defendant has knowledge or should have had knowledge that the event may or will cause a violation. The notice shall describe the anticipated duration of the violation, the precise cause or causes of the violation, the measures taken and to be taken by the Defendant to minimize the violation, and the timetable by which those measures will be implemented. The Defendant will adopt all measures to avoid or minimize any such violation. The Defendant shall make all efforts to identify events that cause or may cause a violation of this Consent Decree.


            1f the WVDEP agrees that any violation of this Consent Decree is caused solely by circumstances beyond the control of the Defendant, the Defendant shall be excused as to that violation for the period of time the violation continues due to such circumstances.


            The Defendant’s time for performance shall be extended for a period not exceeding the delay actually resulting from such circumstances. In the event the WVDEP does not agree. the Defendant may submit the matter to this Court for resolution. The burden of proving that any delay was caused solely by circumstances beyond the control of the Defendant and the length of such delay shall rest with the Defendant. Failure by the Defendant to comply with the notice requirements of this Section shall render this Section void and of no force and effect as to the particular incident involved, and shall constitute a waiver of the Defendant’s right under this provision to obtain an extension of its obligations based on that incident.


            Compliance with any requirement of this Consent Decree, by itself, shall not constitute compliance with any other requirement. The Defendant must make an individual showing or proof regarding each delayed incremental step or other requirement for which an extension is sought.


            Unanticipated or increased costs, by themselves, shall not serve as a basis for relief under this Section. Compliance with the provisions of this Consent Decree is not dependent on the receipt of State or Federal grants or payments.




            The Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of’ this Decree.




            This Consent Decree contains the entire agreement between the Parties. It may not he enlarged, modified, or altered, unless such modifications are made in writing and approved by the Parties and the Court.




            This Consent Decree is not, and shall not be interpreted to be, a permit or modification of a permit under the Act, nor shall it relieve Defendant of any other obligation imposed by the Act, its Permit, or any permit issued under the Act, except as expressly provided herein, nor shall it in any way relieve Defendant of its obligation to comply with any other federal or state law or any rule or regulation in any way related to the substance ofthis Consent Decree. Any new permit or modification must be obtained in accordance with applicable federal and state laws and rules and regulations.




            The parties acknowledge and agree that final approval ofthis Decree is subject to public notice and comment as provided in 47 C.S.R. §l0-l6.2.c. The public shall have at least thirty (30) days in which to make any comments and the WVDEP reserves the right to withhold or withdraw its consent if the comments regarding the Consent Decree indicate that this Consent Decree is inappropriate, improper, or inadequate. The Defendant consents to entry of this Consent Decree without further notice. If for any reason, this Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of the WVDEP and the terms of the agreement may not be used as evidence in any litigation between the parties.




            The effective date of this Consent Decree shall be the date upon which it is entered by the Court.




            Termination of this Consent Decree shall be by order of the Court upon application by any party, provided all of the following conditions have been met: (1) The Defendant has achieved complete compliance with all requirements of this Consent Decree; (2) The Defendant has paid all civil and stipulated penalties required herein; and (3) All motions and other proceedings concerning this Consent Decree have been completed and are no longer subject to further judicial review and all relief resulting from such motions or other proceedings have been fully satisfied.




            This Decree is binding on the Defendant’s successors and assigns. and shall remain in effect until the Defendant or its successors or assigns demonstrate, as required by Section XIV herein. they have complied with all of the terms of’ this Consent Decree.




            Each of the signatories to this Consent Decree certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and to bind legally the party to the Consent Decree so represented by him or her.


            It is so ORDERED this 26th day of April, 2005


Thomas Steptoe



We hereby consent to the entry of this Decree.



Lisa A. McClung (successor to Allyn G. Turner),

Director, Division of Water and Waste Management

(successor to Division of Water Resources)

West Virginia Department of Environmental Protection



Joseph A. Lazell (WVSB No. 2165)

Office of Legal Services/WVDEP

601 57th Street, SE

Charleston, WV 25304

(304) 926-0460

Counsel for Plaintiff



City of Charles Town

By Jane E. Arnett

Its City Manager



Richard L. Lewis (WVSB No. 7331)

Armando Benincasa (WVSB No. 6865)

PO Box 1588, v=Charleston, WV 25326


Counsel for Defendant