Wood v. City of Bluff City

No. 2-84-138 (E.D. Tenn. July 11, 1984)

The court approves a consent agreement resolving a citizen enforcement suit under § 505 of the Federal Water Pollution Control Act against a municipality for violations of its national pollutant discharge elimination system (NPDES) permit. The decree bars new connections or significant increases in flow from existing connections to the municipality's sewage treatment plant until it complies with specified effluent limits for two consecutive months. The defendants must pay a civil penalty of $100,000, which will be retained in a fund and used to finance treatment plant improvements or connection to another sewage treatment system. In addition, the decree stipulates penalties for violations of NPDES discharge limitations each month through July 1, 1988, with the penalties increasing with the magnitude of the violation. Defendants must let a contract within 90 days to begin construction of improvements to the treatment plant or a connection to another plant, with construction to be completed within one year of its commencement. The monthly civil penalties under the agreement are to be paid to specified state agencies and universities and the Tennessee Valley Authority for water quality and effluent monitoring and water quality improvement measures. Plaintiffs' representatives are guaranteed access to defendants' premises and records to ensure compliance with the decree through mid-1988, and the court retains jurisdiction.

Counsel for Plaintiffs
Vincent A. Sikora
Richard W. Pectol & Associates
202 E. Unaka Ave., Johnson City TN 37601
(615) 928-6106

Counsel for Defendants
J. Wesley Edens
524 Holston Ave., Bristol TN 37620
(615) 968-7709

[14 ELR 20686]

Hull, J.:

Final Judgment (Consent)

The Plaintiffs, Stuart Wood, et al. having filed their Complaint herein on or about April 12, 1984, alleging violations of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251-1376, and seeking injunctive relief and monetary penalties, and Defendants, City of Bluff City, Tennessee, et al., having appeared, and Plaintiffs and Defendants by their respective attorneys, having each consented to the making and entry of this Final Judgment, without trial or adjudication of any issue of fact or law herein, and the Court having considered the matter and been duly advised, it is

ORDERED, ADJUDGED and DECREED as follows:

1. This Court has jurisdiction of the subject matter of this action and of the parties hereto. The Complaint states a claim for the relief against Defendants under the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. All claims against the named individual Defendants are dismissed without prejudice.

2. The provisions of this Final Judgment shall apply to the Defendant City of Bluff City, Tennessee, [hereinafter referred to as City] and to each of its officers, directors, agents, employees, successors and assigns and to all persons, firms or corporations in active concert or participation as partner or joint venturer with said Defendant who received actual notice of this Final Judgment by personal service or otherwise.

3. The City may not make new connections or allow any existing connection to increase its flow more than ten (10%) percent to its wastewater collection and treatment systems after entry of this judgment until the monthly average Biochemical Oxygen Demand (hereinafter referred to as BOD) and Suspended Solids (hereinafter referred to as S.S.) in the effluent from the Bluff City sewage treatment plant for two (2) consecutive months is less than or equals thirty (30) milligrams per liter (hereinafter referred to as mg/1). Upon meeting this standard the City may make new connections or allow additional flow to the plant until the monthly average BOD or S.S. standard above is violated.If there is a violation, there shall be no additional connections regardless of whether some structures or projects are then presently under construction or completed and such restriction shall [14 ELR 20687] continue until the City meets the above monthly standard, but in no event less than thirty (30) days, after which additional connections may be made until the standard above is violated.

4. The City shall pay a Civil Penalty pursuant to 33 U.S.C. § 1319(d) of One Hundred Thousand ($100,000.00) Dollars for National Pollution Discharge Elimination System (NPDES) violations prior to July 1, 1984. Said penalty shall be paid within 18 months of entry of this judgment and shall be retained in a separate fund by the City and may be drawn from by the City to finance sewage treatment plant construction or construction of a connector line to the Bristol Sewerage System as provided in Paragraph 6, or to pay any lease or other costs incurred in the privatization of the City's sewage treatment system. The City shall, on a quarterly basis, account to the Plaintiffs for all withdrawals and expenditures from this fund. Upon 90 days after completion of all construction necessary for the City to meet its NPDES permit, any remainder in said fund shall revert to the City.

5. Beginning on July 1, 1984, the Cities shall pay at the end of each month, a civil penalty pursuant to 33 U.S.C. § 1319(d) for NPDES discharge limitations violations occurring during the preceding month, as scheduled below:

(a) For each monthly average Biochemical Oxygen Demand or Suspended Solids discharge:

between 30 to 39.9 mg/1 — $100 per month

between 40 to 49.9 mg/1 — $200 per month

between 50 to 59.9 mg/1 — $700 per month

between 60 to 69.9 mg/1 — $1,000 per month

between 70 to 79.9 mg/1 — $2,000 per month at or above 80.0 mg/1 — $4,000 per month

(b) For each day required flow and discharge parameters sampling equipment is not operating, $200.00, except the City until the construction required by paragraph 6 is completed shall not be liable for not collecting flow samples.

(c) This provision shall remain in effect until July 1, 1988, unless modified, rescinded, or extended by agreement of the parties and the Court.

(d) The per month penalties specified above shall be tripled after the expiration of the 90 day period in paragraph 6(a) herein lasting until an appropriate contract is let and upon the expiration of the one year period in paragraph 6(b) or completion of the construction begun under paragraph 6(a) whichever occurs first. In addition, upon the expiration of the one year period in paragraph 6(b) or completion of the construction begun under paragraph 6(a), whichever occurs first, the City shall pay at the end of each month a civil penalty pursuant to 33 U.S.C. § 1319(d) for NPDES discharge limitations violations occurring during the preceding month, for each daily Biochemical Oxygen Demand or Suspended Solids discharge:

between 45 to 74.9 mg/1 — $150 per day

between 75 to 104.90 mg/1 — $300 per day

between 105 to 134.9 mg/1 — $600 per day

between 135 to 164.9 mg/1 — $1500 per day

at or above 165.0 mg/1 — $4000 per day

6. (a) Within ninety (90) days from entry of this judgment, the City shall let a contract to begin construction either to connect to the Bristol Wastewater Treatment Plant No. 2, or for another option which complies with the areawide waste treatment management plan and which shall assure compliance by the City with its NPDES permit.

(b) All construction shall be completed within one year of letting the contract and by the end of that year the City shall fully comply with its NPDES permit.

7. The City shall pay Plaintiffs' costs of litigation including reasonable attorney and expert witness fees as provided in 33 U.S.C. § 1365(d), and court costs.

8. The Plaintiffs shall be notified by the City of all civil penalties paid into the Court by the City under this Final Judgment, and said civil penalties shall be distributed as follows:

(a) The first $10,000.00 to the Environmental Quality Laboratory at East Tennessee State University or other laboratory as agreed by the parties, for collecting and analyzing wastewater samples from the Bluff City Wastewater Treatment Plant and water samples from and near the City's discharge point during 1984.

(b) Of the remainder, 20% to the Tennessee Valley Authority for water quality activities on Boone Lake, 20% to the Tennessee Department of Health and Environment for water quality activities on Boone Lake, and for collecting and analyzing wastewater samples from the Bluff City Wastewater Treatment Plant and water samples from and near the City's discharge points, 60% to the Environmental Quality Laboratory at East Tennessee State University or other laboratory as agreed by the parties, but only to the extent of reasonable costs incurred in such collection and analysis and with any excess going to said University laboratory for water quality equipment.

9. The payment of any fines or penalties, or the imposition of any moratorium, called for herein shall be subject to modification or suspension upon a showing by the City to the satisfaction of the Court that its delay in the performance of its obligations hereunder or its failure to comply with any provision hereof was due to unforeseeable causes beyond its control and without its fault or negligence. The burden of showing cause why the fines, penalties or moratorium as provided for in this Judgment should be modified or suspended, shall be upon the Defendant.

10. This Final Judgment shall not relieve the Defendant of any common law or tort claims liability; liability for clean-up or restoration costs from any discharges; liability under common law or any Federal or State statute for unlawful sludhe or solid waste handling or disposal; or criminal liability under any Federal or State statute for falsification of records or reports, tampering with samples or monitoring equipment, or other unlawful activities.

11. For purposes of insuring compliance with this Final Judgment, duly authorized representatives of the Plaintiffs will be permitted access at their own risk to inspect the premises, equipment, books and records of the City and to take samples from its wastewater treatment plant during reasonable business hours until July 1, 1988. Self-monitoring reports and all information so gathered as described herein shall be admissable in any proceeding under this Judgment.

12. This consent judgment shall not constitute an admission of liability or fault on the part of the Defendant.

13. Jurisdiction is retained by this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Final Judgment, for the modification or termination of any of the provisions herein, and for the enforcement of compliance therewith including specific performance of the provisions herein and the punishment of violations thereof.