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PLANNING SCHOOLS ENVIRONMENT EROSION
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Resolution, 4/26/05, of state lawsuit against Charles Town for
polluting Evitts Run
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA
ALLYN G. TURNER,
DIRECTOR
DIVISION OF WATER
AND WASTE, MANAGEMENT, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Plaintiff,
V. Civil
Action No. 04-C-79
CITY OF CHARLES
TOWN,
Defendant.
CONSENT DECREE
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:
I. JURISDICTION
AND VENUE
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.
II. APPLICATION
OF CONSENT DECREE
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.
III. INJUNCTIVE
RELIEF
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.
IV. CIVIL
PENALTY
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.
V. STIPULATED
PENALTIES
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.
VI. FUNDING
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.
VII. FORCE
MAJEURE
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.
VIII. RETENTION
OF JURISDICTION
The
Court shall retain jurisdiction over this matter for the purpose of
interpreting and enforcing the terms of’ this Decree.
IX. MODIFICATIONS
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.
X. PERMITS
AND OTHER LAWS AND REGULATIONS
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.
XI. PUBLIC
NOTICE
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.
XII. EFFECTIVE
DATE
The
effective date of this Consent Decree shall be the date upon which it is
entered by the Court.
XIII. TERMINATION
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.
XIV. PARTIES
BOUND BY CONSENT DECREE
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.
XV. SIGNATORIES
AUTHORIZED
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
JUDGE
We hereby consent to
the entry of this Decree.
4/11/05
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
4/11/05
Joseph A. Lazell
(WVSB No. 2165)
Office of Legal
Services/WVDEP
601 57th Street, SE
Charleston, WV 25304
(304) 926-0460
Counsel for
Plaintiff
4/8/05
City of Charles Town
By Jane E. Arnett
Its City Manager
4/8/2005
Richard L. Lewis
(WVSB No. 7331)
Armando Benincasa
(WVSB No. 6865)
PO Box 1588,
v=Charleston, WV 25326
304.351.8000
Counsel for
Defendant