Consent Agreement
.
Respondent
) Docket No.
)
) Proceeding to Assess Class II
) Administrative Penalties Under
) Section 309(g) of the Clean
) Water Act, 33 U.S.C. 9 1319(g)
)
)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII
BEFORE THE ADMINISTRATOR
IN THE MATTER OF:
THE CITY OF SALINA, KANSAS
CONSENT AGREEMENT AND ORDER
ASSESSING ADMINISTRATIVE PENALTIES
I. Statutory Authoritv
The following Findings are made and Consent Agreement issued
under the authority vested in the Administrator of the U.S.
Environmental Protection Agency (EPA) by Section 309(g) of the
Clean Water Act (Act), 33 U.S.C. 9 1319(g). The Administrator
has delegated this authority to the Regional Administrator of EPA
Region VII, who hereby issues this Final Order.
II. Findinqs of violation
Upon consent of the parties by their attorneys and
authorized officials, the parties stipulate and the Administrator
finds:
1. The city of Salina, Kansas, a person within the meaning
of section 502(5) of the Act, 33 U.S.C. 9 1362(5), owns and
operates a wastewater treatment facility at 300 W. Ash, Salina,
Kansas, which is a Publicly Owned Treatment Works ("POTW"). The
facility is a point source and discharges pollutants to the
Smokey Hill River, a navigable water of the united States, all
within the respective definitions established in section 502 of
the Act, 33 U.S.C. 9 1362. Respondent is therefore subject to
the provisions of the Act, 33 U.S.C. 9 1251 et seq.
2. On September 13, 1989, EPA Region VII issued Respondent
an Administrative Complaint, Docket No. VII-89-W-0007, which
included formal findings of violation, notice of a proposed
assessment of a civil penalty against Respondent, and a notice of
Respondent's opportunity to request a hearing on the proposed
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administrative penalty assessment. Public notice of the issuance
of the Complaint was duly given and no comments were received.
3 On september 14, 1989, the state of Kansas was given an
opportunity to consult with EPA regarding the proposed assessment
of an administrative penalty against Respondent.
4. section 301(a) of the Act, 33 U.S.C. 9 1311(a),
prohibits discharge of pollutants from a point source into
navigable waters of the United states, except as in compliance
with, inter alia, Section 402 of the Act, 33 U.S.C. 9 1342.
section 402 provides that pollutants may be discharged into the
navigable waters of the united States only in accordance with the
terms of a National pollutant Discharge Elimination System
(IINPDESII) permit issued pursuant to that section.
5. On or about April 17, 1987, NPDES Permit No. KS-0038474 was
issued to Respondent by the Kansas Department of Health and
Environment ("KDHE") pursuant to section 402 of the Act, 33 U.S.C.
9 1342, and K.S.A. 99 65-164 and 65-165. The permit will expire by
its terms at midnight May 27, 1991, unless modified or revoked and
reissued.
6. In May, 1984, EPA approved the pretreatment program of the
city of Salina, Kansas, pursuant to 40 CFR 9 403.11. As such,
Respondent is the Control Authority, as defined by 40 CFR
S 403.12(a).
7. Special Condition D, page 3, of NPDES Permit No. KS-
00038474 requires Respondent to II... continue to implement and
administer the pretreatment program in accordance with the General
Pretreatment Regulations, 40 CFR Part 403, as approved by the Kansas
Department of Health and Environment or the Environmental Protection
Agency. II
8. The Administrator has determined that Respondent violated
section 301(a) of the Act, 33 U.S.C. 9 1311(a), by violating Special
condition D of its NPDES permit, requiring Respondent to implement
and enforce a pretreatment program and achieve full compliance with
40 CFR Part 403 (General Pretreatment Regulations). The
Administrator finds that Respondent has failed to implement and
enforce its pretreatment program in at least the following ways:
a. Respondent has failed, in violation of 40 CFR
S 403.8(f) (2) (i), to "[i]dentify and locate all possible
Industrial Users which might be subject to the POTW
Pretreatment program." In a letter dated December 21, 1987,
KDHE identified three industries discharging to the Salina POTW
which might be subject to the categorical Pretreatment Standard
for the Metal Molding and casting Point Source Category, 40 CFR
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Part 464, and instructed Respondent to determine if said
industries were covered by the standard. As of December 21,
1988, Respondent had not completed a determination of the
applicability of the standard to all three industries.
b. Respondent has failed, in violation of 40 CFR
9 403.8(f) (2) (ii), to "[i]dentify the character and volume of
pollutants contributing to the POTW by Industrial Users
identified under [40 CFR 9 403.8(f) (2) (i)]" by failing to
identify the character and volume of pollutants discharged by
the three industries referred to in "a" above.
c. Respondent has failed, in violation of 40 CFR
9 403.8(f) (2) (iv), to "[r]eceive and analyze self monitoring
reports and other notices submitted by Industrial Users in
accordance with the self monitoring requirements of [40 CFR]
9 403.12" by failing to receive and analyze the 90 day
compliance reports required of all industries subject to
Categorical Pretreatment Standards, pursuant to 40 CFR
9 403.12(d), in a timely manner.
d. Respondent has failed, in violation of 40 CFR
9 403.5(c) (1) and 40 CFR 9 403.8(f) (4), to develop local limits
prohibiting, inter alia, the introduction of pollutants into
its system which would cause Interference or Pass Through, or,
as provided by 40 CFR 9 403.8(f) (4), to demonstrate that such
limits are not necessary.
e. Respondent has failed, in violation of 40 CFR
9 403.8(f) (2) (vii), to provide annual public notification, in
the largest daily local newspaper, of the names of Industrial
Users which, during calendar years 1987 and 1988, had
significantly violated applicable pretreatment standards and
requirements.
9. Respondent, having neither confirmed nor denied the
violations alleged in the Complaint, has determined that settlement
of this matter would be in its best interest and has joined
Complainant in executing this Consent Agreement.
III. Penalty Order and Consent
Based on the foregoing stipulations and findings, and having
taken into account the nature, circumstances, extent and gravity
of the violations, Respondent's ability to pay, prior history of
violations, degree of cUlpability, and economic benefit or
savings resulting from the violations, and under the authority of
section 309(g) of the Act, 33 U.S.C. 9 1319(g), EPA REGION VII
HEREBY ORDERS AND RESPONDENT HEREBY CONSENTS, that:
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1. The provisions of this Consent Agreement shall be
binding upon the Respondent, its officers, agents, servants,
authorized representatives, employees, and successors or assigns.
2. The city of Salina, Kansas shall pay twenty-five thousand
dollars ($25,000) in settlement of the alleged Clean Water Act
violations cited above, by mailing a money order or certified check
payable to "Treasurer, united States of America" within ten (10)
days after the effective date of this Order (see Section V. below)
to the following address:
Regional Hearing Clerk
U.S. EPA Region VII
c/o Mellon Bank
P.O. Box 360748 M
pittsburgh, Pennsylvania 15251
Respondent shall send notice of such payment, including a
copy of the money order or the check, to the Hearing Clerk at the
following address:
Regional Hearing Clerk
U.S. EPA Region VII
726 Minnesota Avenue
Kansas city, Kansas 66101
IV. General provisions
1. Issuance of this Order does not constitute waiver by EPA
of its right to enforce the substantive legal requirements
underlying this administrative penalty assessment, either
administratively or judicially pursuant to sections 309(a), (b)
and (c) of the Act, 33 U.S.C. ~~ 1319(a), (b) and (c). Nor,
pursuant to section 309(g) (7) of the Act, 33 U.S.C. ~ 1319(g) (7),
does issuance or compliance with this Order exempt Respondent from
responsibility to comply with all requirements of the Act and any
legal order of permit issued pursuant thereto.
2. Failure by Respondent to pay in full the penalty
assessed by this Consent Agreement by its due date may subject
Respondent to a civil action to collect the assessed penalty,
plus interest, attorney's fees, costs and an additional quarterly
nonpayment penalty pursuant to Sections 309(g) (2) and 309(g) (9)
of the Act, 33 U.S.C. ~~ 1319(g) (2) and 1319(g) (9). In any such
collection action, the validity, amount and appropriateness of the
penalty shall not be subject to review.
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3. Respondent knowingly and explicitly waives its rights
pursuant to sections 309(g) (2) and 309(g) (8) of the Act, 33 U.S.C.
99 1319(g) (2) and 1319(g) (8), to a hearing on this penalty
assessment, and to judicial review of this administrative penalty
assessment.
4. Each party shall bear its own costs and attorney's fees in
this action as of the date of entry of this Consent Agreement and
Order.
V. Effective Date
This Consent Agreement and Order shall become effective
thirty (30) days after the date of issuance noted below.
FOR THE RESPONDENT:
FOR THE US EPA REGION VII:
~~ -;;M1;a~
moth~L~msden, Acting
Director, Water Management Division
U.S. EPA Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101
Gr
C t
c't
129 South, 8th Street
P.O. Box 380
Salina, Kansas 67402-0380
/'1
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Tn {YA;fA (1 .;/ I", -<r ~ ( .. I, · . ~. .
patricia Gillispie Miller
Assistant Regional Counsel
U.S. EPA Region VII
726 Minnesota Avenue
Kansas city, Kansas 66101
Issued this
J- 1- date of
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/'Morris IKay
Regional Administrator