HomeMy WebLinkAbout11-449OCTOBER 11, 2011 11 -449 RESOLUTION
(CARRIED 7 -0 LOST LAID OVER WITHDRAWN )
PURPOSE: AUTHORIZE CITY STAFF TO SUBMIT CERTIFICATION OF
INTENT TO COMPLY WITH EPA ORDER
INITIATED BY: LEGAL DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper
City officials are hereby authorized to execute and deliver a certification of intent to comply
with EPA Order (Docket NO. V-W-1 1 -AO-09) in substantially the same form as attached
hereto, any changes in the execution copy being deemed approved by their respective
signatures.
CITY HALL
215 Church Avenue
PO. Box 1130
Oshkosh , Wisconsin
903 -1130 City of Oshkosh
OIHKOJH
TO: Honorable Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
David C. Patek Director of Public Works
DATE: October 6, 2011
RE: Resolution Authorizing City Staff to Submit Certification of Intent to
Comply with EPA Order
BACKGROUND
Earlier this year the City of Oshkosh had received several requests for information from
the Environmental Protection Agency (EPA) related to the City's operation of its sanitary
sewer system. The City of Oshkosh Wastewater Treatment Plant and system operate
under a Wisconsin Pollutant Discharge Elimination System (WPDES) permit issued by
the Wisconsin Department of Natural Resources (WDNR). However, the U.S. EPA has
independent authority under the Clean Water Act to seek information and bring
enforcement actions relating to wastewater treatment operations where there has been
a discharge of "pollutants" (including untreated wastewater) into public lakes, streams,
or other public waters. At least two other municipalities in the State have received
similar orders. It is not clear why the City of Oshkosh or these other municipalities were
identified at this time, particularly since the City's legal position is that Oshkosh has
operated within its current permits; has had a lower frequency of sanitary sewer
overflows (SSO's) and basement backups than the national averages; and has scored
exceptionally well on its annual compliance maintenance reports to the Wisconsin
Department of Natural Resources.
The City provided the information in response to the EPA's requests, and thereafter, the
EPA issued a unilateral Order for Compliance related to alleged violations by the City of
its WPDES permit. The unilateral order was issued by the EPA prior to any opportunity
for the City to consult with EPA.
The alleged violations relate to a sanitary sewer overflow (SSO) resulting from a force
main break that occurred in 2007 and various basement backups that occurred during
the course of the past five (5) years. In the case of the force main break, there was a
discharge of untreated water to public waters when a backup system also failed. The
City's permit contains a provision that authorizes SSOs that are "unavoidable" and for
.s
•.«
which there exist no feasible alternatives. The City made appropriate repairs to that
system and has conducted further evaluation of that system to further prevent any
future failures.
In the case of basement backups, it is the City's legal position that while documentation
and recordkeeping practices may be improved, that there have been no discharges to
public waters related to those backups and that many of the backups were in fact
attributable not to the sanitary sewer system but rather to several unusually large rain
events that have occurred within the City during the past several years. All information
related to these events was properly reported to the WDNR as required under the City's
permit.
The City serves an estimated 20,000 connections in the wastewater collection system.
The City takes its obligations contained in the WPDES permit very seriously and is
committed to operate a safe and effective wastewater treatment system that meets all
applicable laws as well as the needs of its users. As Council is aware, the City has
invested significantly in the wastewater treatment system throughout the years and has
taken many steps to improve the functioning of the City's wastewater treatment system.
The City has a policy of reviewing and replacing sanitary sewers during street
reconstruction and has allocated additional funds for wastewater system rehabilitation,
maintenance, and replacement in the City's CIP programs. In addition, in the past
several years the City has begun a study of Inflow and Infiltration (I & I) and begun
implementing specific projects related to reducing I & 1 which will improve the operation
of the wastewater system and help to reduce the risk of backups within the wastewater
system, including manhole rehabilitation and the construction of stormwater
management facilities including detention basins, flood relief channels, and significant
storm sewer upgrades in various areas throughout the City.
ANALYSIS
While we may disagree with EPA's characterization of the information and conclusions,
staff, with the assistance of outside professional engineering services and
environmental attorneys, requested an opportunity to meet with the EPA and worked
diligently with the EPA to resolve EPA's concerns. In advance of this meeting, staff
provided EPA with the background facts summarized above, along with legal arguments
regarding why the events in question should not be considered violations of the Clean
Water Act.
The negotiations with EPA have resulted in a revised Order which staff believes
appropriately reflects the terms of the City's existing WPDES permit and sets forth
requirements that are feasible to implement. The Order's requirements are primarily
focused upon improving the City's record keeping practices and the development and
implementation of a Sewer Evaluation and Capacity Assurance Plan (SECAP) and
Capacity, Management, Operation and Maintenance Program (CMOM).
Prior to the request for information or the issuance of the Order by the EPA, the City of
Oshkosh was already evaluating its system and working to prevent sanitary sewer
overflows (SSO's) and basement backups. Staff had identified the need to prepare a
SECAP and CMOM program to formalize many of the City's current practices and
identify improvements for the future and has retained CH2M Hill to assist the City with
this process. The Order requires that the City begin that process formally at this time.
The Order also requires the City to immediately begin gathering greater amounts of
information related to basement backups. Staff recognizes the benefits of obtaining
better information related to basement backups and the potential to utilize that
information to identify problems with the wastewater system.
EPA, as part of the Order, requires the City to submit certification of its intent to comply
with the terms of the Order. The Resolution authorizes staff to sign and submit that
certification. The certification will contain appropriate reservations of the City's rights to
challenge any future action by EPA should the City believe that such action is not within
the EPA's authority or is inconsistent with the Order or applicable laws.
The final revised Order has not yet been issued by EPA. However, EPA has indicated
that it will be issued in a form that is identical or substantially similar to the current draft
of the Order. The current draft is included in this information packet.
FISCAL IMPACT
The City had previously retained CH2M Hill to provide the engineering services that will
be necessary to complete the SECAP and CMOM programs. The estimated cost of
those services was not to exceed $174,400. There will be additional costs associated
with the implementation of the more detailed reporting or other activities identified as the
City moves forward through the SECAP and CMOM processes, however, it would be
difficult to speculate as to those potential costs at this time. Those costs will be
absorbed within the utility operating budgets.
RECOMMENDATION
Staff recommends approval of the Resolution.
Re- jctfully Subm;ted,
. Lorens.
City A ttorney Approved:
David C. Patek
Mark A. Rohloff
Director of Public Works City Manager
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, Wisconsin 903 -1130 City of Oshkosh
_____)
O.IHKOJI --
October 12, 2011
Mr. Keith Middleton
Director, Water Division
Water Enforcement Compliance Assurance Branch (WC -15J)
U.S. Environmental Protection Agency, Region 5
77 West Jackson Boulevard
Chicago, IL 60604
RE: City of Oshkosh Certification of Intent to Comply with Order for Compliance (Docket
No. V- W- 11- AO -09).
Dear Mr. Middleton:
Pursuant to paragraph 47 of the above - referenced Order for Compliance ( "Order "), the City of
Oshkosh ( "City ") hereby certifies that it intends to comply with all terms of the Order.
Please be advised that the City reserves all rights to seek review of appeal, or otherwise contest
any action by U.S. EPA, whether related to the Order or otherwise. Nothing in this certification
shall be construed as a waiver or forfeiture of such rights.
Sincerely,
Mark A. Rohloff
City Manager
cc: Kevin Chow, U.S. EPA
Thomas Mugan, Wisconsin Department of Natural Resources
Art Harrington, Godfrey & Kahn
ire
DRAFT 10/5/2011
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
IN THE MATTER OF: ) DOCKET NO. V- W- 11 -A0-09
)
CITY OF OSHKOSH, ) ORDER FOR COMPLIANCE UNDER
OSHKOSH, WISCONSIN ) SECTIONS 308 and 309(a) OF THE
) CLEAN WATER ACT,
Respondent. ) 33 U.S.C. §§ 1318, 1319(a)
)
STATUTORY AUTHORITY
The U.S. Environmental Protection Agency is issuing this Order for Compliance (Order)
to the City of Oshkosh, Wisconsin (Respondent) under the authority of Sections 308 and 309(a)
of the Clean Water Act (CWA), 33 U.S.C. §§1318 and 1319(a). The Administrator of U.S. EPA
has delegated the authority to issue such orders to the Regional Administrator of U.S. EPA
Region 5, who has redelegated this authority to the Director of the Water Division, U.S. EPA,
Region 5.
DEFINITIONS
1. "Basement Backup" or "Backup" means, for the purpose of this Order,
wastewater backups into the buildings that are caused by blockages or flow conditions occurring
in the sanitary sewer collection system owned and /or operated by the City of Oshkosh,
Wisconsin and shall not include, for the purpose of this Order, backups into basements resulting
solely from a private property owner's or operator's private lateral blockage.
2. "Bypass" is defined as the intentional diversion of waste streams from any portion
of a treatment facility. For the purposes of this request, the term "bypass" does not include
"Sanitary Sewer Overflow" or "SSO" as defined above.
3. "City," "Respondent," "Oshkosh," or "you" refers to the City of
Oshkosh, Wisconsin, and any agents, employees, contractors, or other entities that performed
work or acted in any way on behalf of, or at the direction of, the City of Oshkosh, Wisconsin.
4. "Day" or "days" shall mean calendar day or calendar days. In computing any
period of time under this Order, where the last day would fall on a Saturday, Sunday, federal or
state holiday, the period shall run until the close of the next business day.
5. "Discharge of a Pollutant" or "Discharge of Pollutants" shall mean any addition
of any pollutant to navigable waters from any point source, under Section 502(12) of the CWA,
33 U.S.C. §1362(12).
6. "Document" is defined as any writings, drawings, graphs, charts, photographs,
phone records, electronic mail, facsimile, and other data compilations from which information
DRAFT 10/5/2011
can be obtained, translated if necessary, through detection devices into reasonably usable form.
Documents should be produced as they are kept in the usual course of business.
7. "Hydraulic Deficiency" means insufficient capacity at certain points in the
collection system that may result in SSOs or Basement Backups.
8. "Infiltration and Inflow" or "I /P' means the total quantity of water from both
infiltration and inflow without distinguishing the source.
9. "Infiltration" means the water entering a sewer system and service connections
from the ground, through such means as, but not limited to, defective pipes, pipe joints,
connections, or manhole walls. Infiltration does not include, and is distinguished from, inflow.
10. "Inflow" means the water discharged into a sewer system, including service
connections, from such sources as, but not limited to: roof leaders; cellar, yard and area drains;
foundation drains; cooling water discharges; drains from springs and swampy areas; manhole
covers; cross connections from storm sewers and combined sewers; catch basins; storm waters;
surface run -off; street wash waters; or drainage. Inflow does not include, and is distinguished
from, infiltration.
11. "Navigable Waters" shall mean waters of the United States, under
Section 502(14) of the CWA, 33 U.S.C. § 1361(14).
12. "Point Source" shall mean, among other things, any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container or rolling stock from which pollutants are or may be discharged, under
Section 502(14) of the CWA, 33 U.S.C. §1361(14).
13. "Pollutant" shall mean, among other things, sewage, biological materials, and
industrial, municipal, and agricultural waste discharged into water, under Section 502(6) of the
CWA, 33 U.S.C. §1362(6).
14. "Record" is defined as any recording of information in tangible form. It includes,
but is not limited to, in print or electronic form, documents, memoranda, reports, letters, maps,
graphs, charts, log books, notes, computer print outs, and computer data bases.
15. "Sanitary Sewer Overflow" or "SSO" is defined as any discharge from the
separate sewer system prior to reaching the wastewater treatment plant (i.e., publicly owned
treatment works).
16. "Sanitary Sewer Overflow outfall" or "SSO outfall" is defined as the point source
from which SSOs are discharged.
17. "Separate Sewer System" is defined as the portion of the wastewater collection
system which conveys sanitary wastewater (domestic, commercial and industrial wastewaters).
2
DRAFT 10/5/2011
18. "Sewer Shed" means discrete subareas of the collection system, with little or no
hydraulic connection to other sewer sheds, for the purpose of flow monitoring and /or modeling
purposes.
19. "Sewer Sub - Basin" means a small (typically containing not much more than
20,000 linear feet of sewer) portion of a sewer shed that can be hydraulically characterized by
monitoring at a very limited number of (often one) locations.
20. "Sewer System" shall mean the wastewater collection system owned or operated
by the City of Oshkosh, Wisconsin designed to collect and convey municipal sewage (domestic,
commercial and industrial) to the City of Oshkosh Wastewater Treatment Facility. "Sewer
System" includes both the "Sanitary Sewer System" and the "Storm Sewer System."
21. "Wastewater Treatment Plant(s)" or "WWTP(s)" shall mean the sewage treatment
plant(s) operated by the City of Oshkosh, Wisconsin, and located at 233 North Campbell Road,
Oshkosh, Wisconsin, and all components of such sewage treatment plant(s).
FINDINGS OF VIOLATION
22. Section 309(a)(3) of the CWA, 33 U.S.C. §1319(a)(3), states that whenever the
Administrator finds a person is in violation of Section 301(a) of the CWA, 33 U.S.C. §1311(a),
or a condition in a permit issued under Section 402 of the CWA, 33 U.S.C. § 1342, she may issue
an order requiring that person to comply with the provisions of the CWA and the requirements of
the permit.
23. Section 308(a) of the CWA, 33 U.S.C. §1318(a), authorizes the Administrator to
require the owner or operator of any point source to establish and maintain records, make
reports, install, use and maintain monitoring equipment, sample effluent and provide any other
information she may reasonably require to carry out the objectives of the CWA.
24. Section 301(a) of the CWA, 33 U.S.C. §1311(a), prohibits the discharge of
pollutants to the waters of the United States by any person except in compliance with, among
other provisions, Section 402 of the CWA, 33 U.S.C. § 1342.
25. Section 402 of the CWA, 33 U.S.C. § 1342, establishes a National Pollutant
Discharge Elimination System (NPDES) Permit Program authorizing U.S. EPA or authorized
States to administer the NPDES Permit Program including the issuance of NPDES permits
allowing for the discharge of pollutants, including storm water, into navigable waters subject to
specific terms and conditions. U.S. EPA has granted the State of Wisconsin Department of
Natural Resources (WDNR) approval to issue NPDES permits pursuant to Section 402(b) of the
CWA.
26. Section 502(5) of the Act, 33 U.S.C. § 1362(5), defines the term "person" to
include a municipality.
27. Section 502(4) of the Act, 33 U.S.C. § 1362(4), defines the term "municipality" as
"a city, town, borough county, parish, district, association, or other public body created by or
3
DRAFT 10/5/2011
pursuant to State law and having jurisdiction over disposal of sewage, industrial wastes, or other
wastes."
28. Respondent is a municipality and a person as those terms are defined at
Sections 502(4) and (5) of the Act, 33 U.S.C. §§1362(4) and (5).
29. The sewage contained in Respondent's sewer system is a "pollutant," as that term
is defined in Section 502(6) of the CWA, 33 U.S.C. §1362(6); 40 C.F.R. §122.2.
30. Respondent owns and operates a Sewer System which collects sanitary flow from
the Respondent and transports it to the City of Oshkosh Wastewater Treatment Facility. The
sanitary system is confined within the Fox River watershed, and the City of Oshkosh Wastewater
Treatment Facility is operated by City of Oshkosh personnel.
31. Respondent was issued a NPDES permit (WPDES Permit No. WI- 0025038 -07 -0)
on May 1, 2007, bearing an expiration date of December 31, 2011.
32. All SSOs from Respondent's sewer system are subject to the terms and conditions
of WPDES Permit No. WI- 0025038 -07 -0.
33. Section 6.2.6 (Unscheduled Bypassing) of WPDES Permit No. WI- 0025038 -07 -0
provides that any unscheduled overflow of wastewater at the treatment works or from the
collection system is prohibited.
34. Section 6.2.9 (Proper Operation and Maintenance) of WPDES Permit
No. WI- 0025038 -07 -0 requires the Respondent to, at all times, properly operate and maintain all
facilities and systems of treatment and control which are installed or used by Respondent to
achieve compliance with the conditions of the permit. Proper operation and maintenance
includes effective performance, among other things.
35. Respondent was sent, on December 9, 2010, a Section 308 Information Request
from U.S. EPA which included a checklist for the Respondent to complete and return to
U.S. EPA. Respondent responded to this information request on January 11, 2011 with a
checklist and with the majority of the requested information.
36. Respondent was sent, on March 28, 2011, a Supplemental Section 308
Information Request from U.S. EPA which included two additional follow -up questions for
Respondent to complete and return to U.S. EPA. These questions pertained to documenting
partial treatment Bypasses at the Oshkosh Wastewater Treatment Facility and Basement Backups
that occurred within Respondent's collection system. Respondent responded to this information
request on April 14, 2011 with the requested supplemental information.
37. On April 29, 2011, Respondent sent an email with additional information to
U.S. EPA which included additional documentation of the monetary claims paid out by
Respondent due to Backups occurring within Respondent's collection system.
4
DRAFT 10/5/2011
38. Respondent has identified an SSO discharge to a tributary leading to
Lake Winnebago prior to entering the Fox River. Both the Fox River and Lake Winnebago are
considered "waters of the United States."
39. The table attached to this Order as Attachment A provides a summary of the SSO
event, including the date of the SSO, the SSO location, volume discharged, the cause, the
disposition of the SSO, the affected waterway, any mitigating actions, and the date it was
reported to WDNR.
40. Respondent has identified Basement Backups throughout Respondent's sanitary
sewer collection system.
41. The table attached to this Order as Attachment B provides a summary of
Basement Backup events, including annual totals of Backup events and the causes of the
Backups.
42. Respondent does not have a NPDES permit which allows SSOs to
Lake Winnebago, the Fox River, or any tributary to either body of water. Respondent's
discharge of sewage or other pollutants into waters of the United States without a NPDES
permit, as identified in Attachment A, is a violation of Section 301(a) of the CWA,
33 U.S.C. §1311(a).
43. The overflow from the sanitary sewer collection system identified in
Attachment A was prohibited by Section 6.2.6 of WPDES Permit No. WI- 0025038 -07 -0.
Respondent's failure to comply with such condition of its permit is a violation of Section 402 of
the CWA, 33 U.S.C. §1342.
44. The Basement Backups identified in Attachment B constitute improper operation
and maintenance of the sanitary sewer collection system. By failing to properly operate and
maintain the sanitary sewer collection system, Respondent has failed to comply with
Section 6.2.9 of WPDES Permit No. WI- 0025038 -07 -0. Respondent's failure to comply with
such condition of its permit is a violation of Section 402 of the CWA, 33 U.S.C. § 1342.
45. The overflows from the sanitary sewer collection system identified in
Attachment B were all prohibited by Section 6.2.6 of WPDES Permit No. WI- 0025038 -07 -0.
Respondent's failure to comply with such condition of its permit is a violation of Section 402 of
the CWA, 33 U.S.C. §1342.
46. Section 309(a)(3) of the CWA, 33 U.S.C. §1319(a)(3), authorizes the
Administrator to issue a compliance order or to commence a civil action for appropriate relief to
any person who is in violation of Section 301 of the CWA, 33 U.S.C. §1311, or a condition of a
permit.
ORDER
BASED ON THE FOREGOING FINDINGS and the authority vested in the
undersigned Director, Water Division, IT IS HEREBY ORDERED in accordance with
Sections 308(a) and 309(a)(3) of the CWA, 33 U.S.C. §§ 1318(a) & 1319(a)(3), that:
5
DRAFT 10/5/2011
47. Within fourteen (14) calendar days of effective date of this Order, Respondent
shall submit a written certification of its intent to comply with this Order.
48. Respondent must immediately begin forwarding copies to U.S. EPA of all
notifications it makes to WDNR that are required under Section 6.2.6 of NPDES permit WI-
0025038-07-0, including but not limited to all Sanitary Sewer Overflow or Bypass Notification
Summary Reports (WDNR Form 3400 -184) it submits to WDNR. Such copies must be
forwarded to U.S. EPA at the address listed in Paragraph [ ] below.
49. Respondent's current program or practices to prevent and respond to Basement
Backups shall be subject to modification and enhancement in accordance with Respondent's
Capacity, Management, Operation and Maintenance Program to be developed in accordance with
Paragraph 53. Between the effective date of this AO and the implementation of the Capacity,
Management, Operation and Maintenance Program, Respondent shall assess the feasibility of
making near -term modifications in its program or practices as are practicable and expedient to
improve prevention of and response to Basement Backups.
50. Respondent must properly manage, operate, and maintain all parts of its Separate
Sanitary Sewer System at all times in accordance with Section 6.2.9 of NPDES permit WI-
0025038-07-0. Proper management, operation, and maintenance will be further specifically
defined in the Respondent's Capacity, Management, Operation and Maintenance Program to be
developed in accordance with Paragraph 53, and will include but not be limited to the following
requirements:
a. eliminating all unscheduled bypasses or overflows of wastewater at the
treatment works or from the collection system, except for events authorized
under the conditions set forth in Section 6.2.6 of NPDES permit WI- 0025038-
07-0;
b. providing adequate capacity to convey base flows and peak flows for all parts
of the Separate Sanitary Sewer System for proper treatment before discharge
to waters of the United States;
c. monitoring for the existence of all SSOs and Basement Backups in all parts of
the Separate Sanitary Sewer System; and
d. taking all feasible steps to respond to any SSOs and Basement Backups,
investigate the root causes of any SSOs and Basement Backups, mitigate the
impact of any SSOs and Basement Backups, and take necessary action to
ensure identified deficiencies causing the SSOs or Basement Backups are
corrected.
51. Respondent shall generate Backup summaries on a quarterly basis. Information in
these summaries must include the dates on which the Backups occurred, locations of the
Backups, reasons the Backups occurred, estimated volume of Backup water which exited the
Separate Sanitary Sewer System, responsibility for the Backups, methods used to remove
Backup water from property, final disposition of Backup water (i.e. receiving waters of Backup),
measures used to mitigate environmental harm if Backup water is untreated, and actions taken to
6
DRAFT 10/5/2011
mitigate future Backups. To the extent that any item of the above information is not reasonably
ascertainable by Respondent when preparing the summary, Respondent shall report its best
estimate for such information and explain the basis for its estimate. Respondent shall submit the
quarterly Backup logs to U.S. EPA and WDNR within twenty -one (21) calendar days after the
end of each quarter to the addresses listed in Paragraph [ ] below. The first Backup log, that will
cover only the time period in the fourth quarter of 2011 during which Respondent fully
implemented the Backup data logging program necessary to generate the Backup summaries, is
due on January 23, 2012. Respondent shall inform U.S. EPA of the date when the Backup data
logging program is implemented.
52. Sewer Evaluation and Capacity Assurance Plan. By February 1, 2012,
Respondent shall prepare and submit to U.S. EPA a workplan for a Sewer Evaluation and
Capacity Assurance Plan ( "SECAP "), for review and comment. By September 1, 2013,
Respondent shall prepare and submit the SECAP draft final report to U.S. EPA for review and
comment. At a minimum, the SECAP shall include the following.
a. Evaluation. Respondent must evaluate those portions of the collection system
which are experiencing or contributing to an SSO or Backup caused by
hydraulic deficiency. The evaluation must provide estimates of peak flows
(including flows from SSOs or Backups that escape from the system)
associated with conditions similar to those causing SSO or Backup events,
provide estimates of the capacity of the key system components, identify
Hydraulic Deficiencies (including components of the system with limiting
capacity) and identify the major sources that contribute to the peak flows
associated with SSO or Backup events.
b. Capacity Enhancement Measures. Respondent must establish short- and long-
term actions to address each hydraulic deficiency including prioritization,
alternatives analysis, and a schedule.
c. Plan Updates. Respondent must update the SECAP to describe any significant
change in proposed actions and /or implementation schedule. The plan must
also be updated to reflect available information on the performance of
measures that have been implemented.
53. Capacity, Management, Operation and Maintenance Program.
a. By February 1, 2012, Respondent must submit an initial Capacity,
Management, Operation and Maintenance ( "CMOM ") Template, containing a
CMOM Program outline for review and comment by U.S. EPA. The CMOM
Template shall include a status report of the items identified in Sections I, III,
IV(A, E, F, and L), V(A, F, and G), and VI of the Table of Contents (attached)
for Chapter 3 of the U.S. EPA's Guide for Evaluating CMOM Programs at
Sanitary Sewer Collection Systems, EPA 305 -B -05 -002 (January 2005) (the
"Guide "). The status report shall demonstrate that such identified items have
been implemented or put in place by the time of the submission of the CMOM
Template.
7
DRAFT 10/5/2011
b. By September 1, 2013, Respondent must prepare and submit to U.S. EPA a
CMOM Program designed to address all parts of its Separate Sanitary Sewer
System in accordance with all listed provisions outlined in the attached
Chapter 3 Table of Contents from the Guide. The submitted CMOM Program
shall include all on- going, up -to -date CMOM documentation, including the
checklist in Chapter 3 of the Guide. The Guide can be found online at
http://www.epa.gov/npdes/pubs/cmom_guidefor for_ collection_systems.pdf.
The CMOM Program shall incorporate any updates to the status report items
listed in Paragraph 53(a). Respondent shall submit the completed CMOM
Program documentation for review, comment, and approval by U.S. EPA.
Respondent must implement the CMOM Program no later than thirty (30)
calendar days after approval by U.S. EPA.
54. Within one year of approval of the CMOM Program identified in Paragraph
53(b), Respondent shall submit a CMOM report to U.S. EPA. The report must summarize steps
taken to implement the approved CMOM Program including operational changes or
improvements implemented as part of the approved CMOM Program, the amount of sewers
inspected and /or cleaned, any cross - connections detected or eliminated, and any dye testing or
clear water source elimination measures implemented. The report should also identify any SSOs
and /or Basement Backups that have occurred during the implementation period.
SUBMITTALS
55. Respondent must submit all information required by this Order to U.S. EPA at
this address:
Director, Water Division
Attn: Keith Middleton
Water Enforcement Compliance Assurance Branch (WC -15J)
U.S. Environmental Protection Agency, Region 5
77 West Jackson Boulevard
Chicago Illinois 60604
Respondent must submit all information required by this Order to WDNR at the
following address:
Thomas J. Mugan, P.E.
Bureau of Watershed Management
Wisconsin Department of Natural Resources
101 South Webster Street
PO Box 7921
Madison Wisconsin 53707
If Respondent has already provided WDNR with copies of any requested materials, it
need not include such materials in its submission to WDNR.
56. Respondent must submit all information required by this Order under an
authorized signature containing the following certification:
8
DRAFT 10/5/2011
I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the information
submitted. Based on my inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief, true, accurate
and complete. I am aware that there are significant penalties for submitting false
statements and information, including the possibility of fines and imprisonment
for knowing violations.
57. If the signatory finds at any time after submittal of information that any portion of
the submittal is false or incorrect, the signatory must notify U.S. EPA immediately. Knowing
submittal of false information to U.S. EPA in response to this Order may subject Respondent to
criminal prosecution under Section 309(c) of the CWA, 33 U.S.C. §1319(c), as well as
18 U.S.C. § §1001 and 1341.
58. Confidentiality of Submissions.
a. Information may not be withheld from the Administrator or her authorized
representative because the information is viewed as confidential. However,
pursuant to 40 C.F.R. Part 2, Subpart B, Respondent is entitled to assert a
claim of business confidentiality regarding any portion of the information
submitted in response to this Order, as provided in 40 C.F.R. §2.302(a)(2).
The regulations provide that a person may assert a business confidentiality
claim covering part or all of the information furnished to U.S. EPA at the time
such information is provided to U.S. EPA. The manner of asserting such
claims is specified in 40 C.F.R. §2.203(b). U.S. EPA is required to consider
information processes entitled to protection as trade secrets
(33 U.S.C. §1318(b) and 18 U.S.C. §1905), except that effluent data (as
defined in 40 C.F.R. §2.302(A)(2)) and information in permit applications
may not be considered by U.S. EPA as confidential. 40 C.F.R. §122.7.
b. If Respondent fails to assert a claim of business confidentiality, U.S. EPA
may make all submitted information available to the public without further
notice. Information that is subject to a claim of business confidentiality will
be available to the public only to the extent provided in 40 C.F.R. Part 2,
Subpart B.
59. U.S. EPA may use any information submitted in response to this Order in support
of an administrative, civil, or criminal action against Respondent.
EFFECTIVE DATE AND OPPORTUNITY TO CONFER
60. The Order will become effective twenty (20) calendar days from the date
Respondent receives it, unless within that twenty -day period Respondent requests an informal
conference to discuss the Findings of Violation or the Order and to present any information it
wishes U.S. EPA to consider regarding the Findings of Violation or the Order. Unless it is
9
DRAFT 10/5/2011
withdrawn or modified based on information presented in the informal conference, the Order will
become effective ten (10) calendar days from the informal conference. If an informal conference
is requested, it will be held at U.S. EPA's Region 5 offices at 77 West Jackson Boulevard,
Chicago, Illinois. Alternatively, it can be conducted by telephone at Respondent's request.
Respondent may be represented by counsel at the informal conference, but the conference will
not take the form of a hearing. To request an informal conference, Respondent should contact
Mr. Keith Middleton of my staff at (312) 886 -6465, or Respondent's attorney may contact
Mr. Kevin Chow of the U.S. EPA, Region 5 Office of Regional Counsel, at (312) 353 -6181.
61. Regardless of whether Respondent requests a conference, Respondent may submit
to U.S. EPA in writing via certified mail any information, arguments, or comments it believes
are relevant to this Order. U.S. EPA must receive such information within ten (10) days of
Respondent's receipt of this Order, unless the time period is extended by agreement of the
parties.
62. If EPA modifies this Order based on information presented by Respondent, the
Order, as modified, is effective upon receipt by Respondent.
GENERAL PROVISIONS
63. This Order is not a permit under the CWA and does not waive or modify
Respondent's ongoing obligation and responsibility to ascertain and comply with all other
applicable federal, State or local laws, regulations, ordinances, permits, or licenses.
64. U.S. EPA reserves all rights and remedies, legal and equitable, available to
address any violation cited in this Order and any other violation of the CWA, and to enforce this
Order. Neither issuance of this Order by U.S. EPA nor compliance with its terms precludes
further enforcement action pursuant to Section 309 of the CWA, 33 U.S.C. §1319, for the
violations cited in this Order, for any other violations of the CWA committed by Respondent, or
to enforce this Order.
65. Administrative, Civil and Criminal Enforcement. The CWA includes provisions
for administrative penalties, for civil injunctive relief and penalties, and for criminal sanctions
for violations of the CWA. Specifically, U.S. EPA may:
a. Assess civil administrative penalties under 33 U.S.C. § 1319(g) and
40 C.F.R. Part 19 of $11,000 per day for each violation that occurred after
March 15, 2044, through January 12, 2009, and $16,000 per day for each
violation that occurred after January 12, 2009. An administrative penalty
action may total up to $157,500 for violations that occurred after
March 15, 2004, through January 12, 2009, and $177,500 for violations that
occurred after January 12, 2009;
b. Seek civil injunctive relief and penalties for violations of the CWA under
33 U.S.C. §1319(b) and 40 C.F.R. Part 19. U.S. EPA may seek civil judicial
penalties of $32,500 per day for each violation that occurred after
March 15, 2004, through January 12, 2009, and may seek civil judicial
10
DRAFT 10/5/2011
penalties of $37,500 per day for each violation that occurred after
January 12, 2009; and
c. Seek criminal sanctions, including fines and imprisonment, for negligent or
knowing violations of the CWA under 33 U.S.C. §1319(c).
66. The information required to be submitted pursuant to this Order is not subject to
the approval requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. §3501 et seq.
CERTIFICATION OF COMPLETION
67. Within thirty (30) days after Respondent concludes that it has complied with all
requirements of this Order, including reporting requirements described in paragraph 51 and 54,
Respondent must submit to U.S. EPA a written certification of completion describing all actions
taken to comply with all requirements of this Order.
68. After receipt and review of Respondent's certification of completion submitted
pursuant to Paragraph 64, U.S. EPA will notify Respondent whether it has satisfied all
requirements of this Agreement.
6915098_1
11