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United States v. City of Crawfordsville

United States District Court, Southern District of Indiana

February 19, 2014

UNITED STATES OF AMERICA and THE STATE OF INDIANA, Plaintiffs,
v.
THE CITY OF CRAWFORDSVILLE, INDIANA Defendant.

ROBERT G. DREHER Acting Assistant Attorney General Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice

JOSEPH H. HOGSETT United States Attorney Southern District of Indiana

KATHERINE A. ABEND BONNIE A. COSGROVE Trial Attorneys Environmental Enforcement Section Environment

SUSAN HEDMAN Regional Administrator U.S. Environmental Protection Agency.

ROBERT A. KAPLAN Regional Counsel U.S. Environmental Protection Agency, Region 5

MARIA E. GONZALEZ Associate Regional Counsel U.S. Environmental Protection Agency Region 5

GINNY PHILLIPS Attorney Water Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance

Thomas W. Easterly Commissioner

'PATRICIA ORLOFF ERDMANN Chief Counsel for Litigation Office of the Indiana Attorney General

TODD D. Barton Mayor

CONSENT DECREE

SARAH EVANS BARKER, JUDGE

TABLE OF CONTENTS

I. JURISDICTION AND VENUE ................................................................................................. 2
II. APPLICABILITY ..................................................................................................................... 2
III. DEFINITIONS ......................................................................................................................... 3
IV. CIVIL PENALTY ................................................................................................................... 5
V. COMPLIANCE REQUIREMENTS: IMPROVEMENTS AT THE POTW ............................. 7
A. General Compliance Requirements ...................................................................................... 7
B. Safety and Operational Review ............................................................................................. 8
C. Ban on Septage ...................................................................................................................... 9
D. Asset Management Plan ........................................................................................................ 9
E. Investigation of Exceedances and Corrective Measures ....................................................... 9
VI. COMPLIANCE REQUIREMENTS: PRETREATMENT MEASURES .............................. 10
A. Sewer Use Survey ............................................................................................................. 10
B. SIU Requirements ............................................................................................................. 10
VII. REPORTING REQUIREMENTS ........................................................................................ 11
VIII. APPROVAL OF DELIVERABLES .................................................................................... 13
IX. STIPULATED PENALTIES ................................................................................................. 15
X. FORCE MAJEURE ................................................................................................................ 18
XI. DISPUTE RESOLUTION ..................................................................................................... 20
XII. INFORMATION COLLECTION AND RETENTION ....................................................... 23
XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ........................................... 25
XIV. COSTS ................................................................................................................................ 27
XV. NOTICES ............................................................................................................................. 28
XVI. EFFECTIVE DATE ............................................................................................................ 29
XVII. RETENTION OF JURISDICTION .................................................................................. 30
XVIII. MODIFICATION ............................................................................................................ 30
XIX. TERMINATION ................................................................................................................. 30
XX. PUBLIC PARTICIPATION ................................................................................................ 31
XXI. SIGNATORIES/SERVICE ................................................................................................ 32
XXII. INTEGRATION ................................................................................................................ 32
XXIII. APPENDICES ................................................................................................................... 32
XXIV. FINAL JUDGMENT ....................................................................................................... 33
Appendix A: Asset Management Plan .............................................................................. 38

WHEREAS, Plaintiffs United States of America, on behalf of the United States Environmental Protection Agency (“EPA”), and the State of Indiana, on behalf of the Indiana Department of Environmental Management (“IDEM”), have filed a complaint in this action concurrently with this Consent Decree alleging that Defendant City of Crawfordsville, Indiana (“Crawfordsville” or “the City”), violated Section 309 of the Clean Water Act (“CWA” or “the Act”), 33 U.S.C. § 1319. The Complaint against the City alleges that the City is liable under Section 309(b) and (d) of the Act, 33 U.S.C. § 1319(b) and (d), for assessment of civil penalties and injunctive relief. Specifically, the Complaint includes six claims for relief, each asserting that the City’s “Publicly Owned Treatment Works” (“POTW” or “Facility”) violated Section 301(a) of the CWA, 33 U.S.C. § 1311, as well as the limitations of National Pollutant Discharge Elimination System Permit No. IN0032964 (“the Permit”), which was issued by the Indiana Department of Environmental Management (”IDEM”) under Section 402(a) of the CWA, 33 U.S.C. § 1342(a). The Complaint seeks civil penalties for past violations and injunctive relief to prevent further violations of, and to ensure compliance with, the CWA.

The City does not admit any liability to the United States or the State arising out of the transactions or occurrences alleged in the Complaint.

The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law except as provided in Section I, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 309(b) of the Act, 33 U.S.C. § 1319(b), and over the Parties. Venue lies in this District pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1391(b) and (c), and 1395(a), because the City and the POTW operated by the City are located in this judicial district and the violations occurred in this judicial district. For purposes of this Decree, or any action to enforce this Decree, the City consents to the Court’s jurisdiction over this Decree, and any such enforcement action, and over the City, and consents to venue in this judicial district. This Court has supplemental jurisdiction over the State law claims asserted by the State of Indiana pursuant to 28 U.S.C. § 1367.

2. For purposes of this Consent Decree, the City agrees that the Complaint states claims upon which relief may be granted pursuant to Section 309(b) and (d) of the CWA, 33 U.S.C. § 1319(b) and (d).

3. Notice of commencement of this action has been given to the State as required by Section 309(b) of the Act, 33 U.S.C. § 1319(b), and the State has been joined as a Party to this action as required by Section 309(e) of the Act, 33 U.S.C. § 1319(e).

II. APPLICABILITY

4. The obligations of this Consent Decree apply to and are binding upon the United States and the State, and upon the City and any successors, assigns, or other entities or persons otherwise bound by law.

5. No transfer of ownership or operation of the Facility, or of any portion of the Facility, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve the City of its obligation to ensure that the terms of the Decree are implemented. At least thirty (30) Days prior to such transfer, the City shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to EPA Region 5, the United States Attorney for the Southern District of Indiana, and the United States Department of Justice, in accordance with Section XV of this Decree (Notices). Any attempt to transfer ownership or operation of the Facility without complying with this Paragraph constitutes a violation of this Decree.

6. The City shall provide a copy of this Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Decree, as well as to any contractor retained to perform work required under this Consent Decree. The City shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree.

7. In any action to enforce this Consent Decree, the City shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree.

III. DEFINITIONS

8. Terms used in this Consent Decree that are defined in the Act or in regulations promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

a. “Complaint” means the complaint filed by the United States and the State in this action;
b. “Consent Decree” or “Decree” means this Decree and all appendices attached hereto (listed in Section XXIII, Paragraph 102);
c. “Current NPDES Permit” means the City’s National Pollutant Discharge Elimination System permit, issued in October 1996 as Permit No. IN0032964, or such permits that succeed this permit issued and in effect at a relevant time;
d. “Date of Entry” means the date of entry of this Decree by the Court after satisfaction of the public notice and comment procedures of 28 C.F.R. § 50.7;
e. “Date of Lodging” means the date the Decree is filed for lodging with the Clerk of the Court for the United States District Court for the Southern District of Indiana;
f. “Day” means a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day;
g. “Defendant” means the City of Crawfordsville, Indiana;
h. “EPA” means the United States Environmental Protection Agency and any of its successor departments or agencies;
i. “Effective Date” has the definition provided in Section XVI;
j. “IDEM” means the Indiana Department of Environmental Management and any successor departments or agencies of the State;
k. “Paragraph” means a portion of this Decree identified by an arabic numeral;
l. “Parties” means the United States, the State, and the City;
m. “Section” means a portion of this Decree identified by a roman numeral;
n. “SIU” means significant industrial user, as that term is defined in 40 C.F.R. § 403.3(v) (1);
o. “State” means the State of Indiana;
p. “United States” means the United States of America, acting on behalf of EPA; and
q. “POTW” means the City’s Publicly Owned Treatment Works, a wastewater treatment plant located at 515 Bluff St., identified in the City’s Current NPDES Permit.

IV. CIVIL PENALTY

9. Within thirty (30) Days after the Effective Date of this Consent Decree, the City shall pay the sum of $48, 000 as a civil penalty to the United States together with interest accruing from the date on which the Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging.

10. Defendant shall pay the civil penalty due by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of Justice in accordance with written instructions to be provided to the City, following entry of the Consent Decree, by the Financial Litigation Unit of the U.S. Attorney’s Office for the Southern District of Indiana, 10 West Market St., Suite 2100, Indianapolis, Indiana 46204, (317) 226-6333. At the time of payment, the City shall send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter, which shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States v. City of Crawfordsville, and shall reference the civil action number and DOJ case number 90-5-1-1-09648, to the United States in accordance with Section XV of this Decree (Notices); by email to acctsreceivable.CINWD’epa.gov; and by mail to:

EPA Cincinnati Finance Office
26 Martin Luther King Drive Cincinnati,
Ohio 45268

11. Defendant shall not deduct any penalties paid under this Decree pursuant to this Section or Section IX (Stipulated Penalties) in calculating its federal or State income tax.

12. Within thirty (30) Days after the Effective Date of this Consent Decree, the City shall pay the sum of $48, 000 as a civil penalty to the State of Indiana. At the time of payment, the City shall send a transmittal letter, which shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in UnitedStates v. City of Crawfordsville and shall reference the civil action number, ...


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