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MEMORANDUM
To: Mayor, City Council, City Manager
From: Mark T. Sokolow, City Attorney /~l~
Date: May 16, 2002
Subject: P. R. No. 11781
Council Meeting of May 28, 2002
Attached is P. R. No. 11781 authorizing the
City Manager to execute an Agreed Order with the Texas
National Resource Conservation Committee (TNRCC)
resolving an enforcement action against the City of
Port Arthur. This matter will first be discussed in
Executive Session.
MTS/ts
Attachment
cc:
Director of Finance
Director of Transportation
P. R. No. 11781
05/16/02 ts
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO EXECUTE AN AGREED ORDER WITH THE TEXAS
NATUP. AL RESOURCE CONSERVATION COMMISSION
("THE TNRCC") RESOLVING AN ENFORCEMENT
ACTION AGAINST THE CITY OF PORT ARTHUR AS
IT PERTAINS TO A PETROLEUM STOP. AGE TANK
FACILITY AT THE TPOkNSIT DEPARTMENT (ACCOUNT
NO. 401-1502-561.42-00)
WHEREAS, the Texas Natural Resource Conservation
Commission (TNRCC) has filed a notice of an enforcement
action against the City of Port Arthur for violations of the
Texas Water Code and Commission Rules, specifically a
Petroleum Storage Tank, Facility ID No. 9974849; and
WHEREAS, these violations were discovered during an
investigation on December 19, 2001 and documented in a letter
dated March 1, 2002 from the TNRCC Beaumont Regional office;
and
WHEREAS, in an attempt to expedite the enforcement
action, TNRCC has proposed an agreed order which assesses a
penalty payment of Four Thousand Eight Hundred Dollars
($4,800); and
WHEREAS, it is in the best interests of the citizens of
Port Arthur that the City Manager execute the proposed agreed
order, in substantially the same form as attached hereto as
Exhibit ~A", and pay the penalty payment.
NOW THEREFORE, BE
CITY OF PORT ARTHUR=
Section 1. That
are true and correct.
IT RESOLVED BY THE CITY COUNCIL OF THE
the facts and opinions in the preamble
Section 2. That the City Manager is herein authorized
the caption of this
of the City Council.
day of
Meeting of the City
Texas, by the following
to execute the agreed order.
Section 3. That a copy of
Resolution be spread upon the Minutes
READ, ADOPTED AND APPROVED on this
, A.D., 2002, at a Regular
Council of the City of Port Arthur,
vote: AYES: Mayor ,
City Council ,
;
NOES:
ATTEST:
OSCAR ORTIZ, MAYOR
JAN STRODER, ACTING CITY SECRETARY
APPROVED AS TO FORM:
MARK T. SOKOLOW, CITY ATTORNEY
APPROVED FOR ADMINISTP~ATION:
STEVE FITZGIBBONS, CITY MANAGER
APPROVED AS TO AVAILABILITY OF FUNDS:
REBECCA LTNDERHILL, DIRECTOR OF FINANCE
Robert J. Huston, Chairman
R. B. "Ralph" Marquez, Commissioner
John M. Baker, Commissioner
Jeffrey A. Saitas, Executive Director
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Protecting Texas by Reducing and Preventing Pollution O' 1, T '-'
May 10, 2002
CERTIFIED MAIL - 7000 0520 0023 3196 0327
RETURN RECEIPT REQUESTED
The Honorable Oscar Ortiz, Mayor
City of Port Arthur
Post Office Box 1089
Port Arthur, TX 77641
Re:
Notice of Enforcement Action
City of Port Arthur
Transit Service Center, 320 Dallas Avenue, Port Arthur, Jefferson County
Petroleum Storage Tank Facility ID No. 0074849
Docket No. 2002-0318-PST-E; Enforcement ID No. 17678
FOR SETTLEMENT PURPOSES ONLY
Dear Mayor Ortiz:
The Executive Director of the Texas Natural Resource Conservation Commission ("Commission" or
"TNRCC") is pursuing an enfomement action against the City of Port Arthur for violations of the Texas
Water Code and Commission Rules. These violations were discovered during an investigation conducted
on December 19,2001 and documented in a letter dated March 1,2002 from the TNRCC Beaumont Regional
Office.
Please find enclosed a proposed agreed order which w6 have prepared in an attempt to expedite this
enforcement action. The order assesses an administrative penalty of Six Thousand Dollars ($6,000). We
are proposing a one time offer to defer One Thousand Two Hundred Dollars ($1,200) of the administrative
penalty if you satisfactorily comply with all the ordering provisions within the time frames listed. Therefore,
the administrative penalty to be paid is Four Thousand Eight Hundred Dollars ($4,800). The order also
identifies the violations that we are addressing.
If you have any questions regarding this matter, we are available to discuss them in aconference in Beaumont
or over the telephone. If we reach agreement in a timely manner, the TNRCC will then_proceed with the
remaining procedural steps to settle this matter. These steps include publishing notice of the proposed order
in the Texas Register, and scheduling the matter for the Commission's agenda. We believe that handling this
matter expeditiously could save City of Port Arthur and the TNRCC a significant amount of time, as well
as the expense associated with litigation.
REPLY TO: REGION I0" 3870 EASTEX FWY. * BEAUMONT, TEXAS 77703-1892 · 409/898-3838 · FAX 409/892-2119
P.O. Box 13087 · Austin, Texas 78711-3087 · 512/239-1000. 9 Internet address:WWW.~nrcc.state.tx.us
· The Honorable Oscar Ortiz
Page 2
May 10, 2002
A copy of the order is provided for your files. Also enclosed for your convenience is a return envelope. If
you agree with the order as proposed, please sign and return the original order and the penalty payment
(check payable to "TNRCC" and referencing City of Port Arthur, Docket No. 2002-0318-PST-E) to:
Financial Administration Division, Revenues
Attention: Cashier's Office, MC 214
Texas Natural Resource Conservation Commission
P.O. Box 13088
Austin, Texas 78711-3088
Should.you believe you are unable to pay the proposed administrative penalty, you may claim financial
inability to pay part or all of the penalty amount. If this is the case, please contact us immediately to obtain
a list of financial disclosure documents we will need from you. These documents, once properly completed
and submitted, will be thoroughly reviewed to determine if we agree with the claim of financial inability.
Please be aware that if financial inability is proven to the satisfaction of staff, discussions pertaining to the
penalty amount adjusmaent will focus only on deferral and not on waiver of the penalty amount. The
Commission will make the final decision on the staff recommendation.
You may be able to perform or pay for a Supplemental Environmental Project CSEP"), which is a project
that benefits the environment, to offset a portion of your penalty. Please contact us for additional information
regarding SEPs.
Please note that any agreements we reach are subject to final approval by the Commission.
If we cannot reach a settlement of this enforcement action or you do not wish to participate in this
expedited process, we will proceed with enforcement under the Commission's Enforcement Rules,
30 TEX. ADMIiN. CODE ch. 70. Specifically, if the signed order and penalty are not mailed and
postmarked within 60 days from the date of this letter, your case will be forwarded to the Litigation
Division and this settlement offer~ including the penalty deferral~ will no longer be available, If you
would like to obtain a copy of 30 TEX. ADMIN. CODE ch. 70 or any other TNRCC rules, you may contact any
of the sources listed in the enclosed brochure entitled Obtaining TNRCC Rules. The enforcement process
described in 30 TEX. ADMIN. CODE ch. 70 requires the staff to prepare and issue an Executive Director's
Preliminary Report and Petition to the Commission.
For any questions or comments about this matter or to arrange a meeting, please contact Ms. Laura Clark at
(409) 899-8760.
Sincerely,
Texas Natural Resource Conservation Commission
Enclosures:
Proposed Agreed Order, File Copy, Return Envelope, Obtaining TNRCC Rules, Penalty
Calculation Worksheet
CC:
Mr. Keith Anderson, Manager, PST Section, Beaumont Regional Office, TNRCC
Mr. Tom Kestranek, Director of Transportation, City of Port Arthur
Mr. Steve Fitzgibbons, City Manager, City of Port Arthur
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
IN THE MATTER OF AN
ENFORCEMENT ACTION
CONCERNING
Crl'¥ OF PORT ARTHUR
PETROLEUM STORAGE TANK
FACILITY ID NO. 0074849
BEFORE TI~
TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION
AGREED ORDER
DOCKET NO. 2002-0318-PST~E
I. JURISDICTION AND STI~ULATIONS
At its agenda, the Texas Natural Resource Conservation Commission ("the
Commission" or "TNRCC") considered this agreement of the parties, resolving an enforcement action
regarding the City of Port Arthur ("Port Arthur") under the authority of TEX. WATER CODE chs. 7 and 26.
The Executive Director of the TNRCC, through the Field Operations Division, and Port Arthur appear before
the Commission and together stipulate that:
Port Arthur owns and operates a fleet fueling facility with underground storage tanks (LISTs) at 320
Dallas Avenue in Port Arthur, Jefferson County, Texas (the "Facility").
Port Arthur's two USTs are not exempt or excluded from regulation under the Texas Water Code or
the rules of the Commission.
The Commission and Port Arthur agree that the Commission has jurisdiction to enter this Agreed
Order, and that Port Arthur is subject to the Commission's jurisdiction.
Port Arthur received notice of the violations alleged in Section II ("Allegations") on or about March
6, 2002.
The occurrence of any violation is in dispute and the entry of this Agreed Order shall not constitute
an admission by Port Arthur of any violation alleged in Section II ("Allegations"), nor of uny statute
or rule.
An administrative penalty in the mount of Six Thousand Dollars ($6,000) is assessed by the
Commission in settlement of the violations alleged in Section II ("Allegations"). Port Arthur has
paid Four Thousand Eight Hundred Dollars ($4,800) of the administrative penalty and One Thousand
Two Hundred Dollars ($1,200) is deferred contingent upon Port Arthur's timely and satisfactory
compliance with all the terms of this Agreed Order. The deferred amount will be waived upon full
compliance with the terms of this Agreed Order. If Port Arthur fails to timely and satisfactorily
City of Port Arthur
DOCKET NO. 2002-0318-PST-E
Page 2
10.
11.
12.
comply with all requirements of this Agreed Order, the Executive Director may require Port Arthur
to pay all or part of the deferred penalty.
Any notice and procedures which might otherwise be authorized or required in this action are waived
in the interest of a more timely resolution of the matter.
The Executive Director of the TNRCC and Port Arthur have agreed on a settlement of the matters
alleged in this enforcemen~t action, subject to the approval of the Commission.
The Executive Director recognizes that Port Arthur implemented the follgwing correctNe measures
on January 8, 2002:
a. Submitted a Registration and Self-Certification Form; and
Provide written notice to the executive director of the replacement of two und. erground tanks
in December 1999.
The Executive Director may, without further notice or hearing, refer this matter to the Office of the
Attorney General of the State of Texas ("OAO") for further enforcement proceedings if the
Executive Director determines that Port Arthur has not complied with one or more of the terms or
conditions in this Agreed Order.
This Agreed Order shall terminate five years from its effective date or upon compliance with all the
terms and conditions set forth in this Agreed Order, whichever is later.
The provisions of this Agreed Order are deemed severable and, ifa court of competent jurisdiction
or other appropriate authority deems any provision of this Agreed Order unenforceable, the
remaining provisions shall be valid and enforgeable.
II. ALLEGATIONS
As owner and operator of the Facility, Port Arthur is alleged to have:
Failed to make available to a common carrier a valid, current TNRCC delivery certificate before
delivery of a regulated substance into the UST(s) for eight deliveries on May 8 and 31, July 2,
August 9, Sept&mber 6, October 12 and 18 and November 15, 2001 (invoice Nos. 37897, 25785,
47404, 38475, 38653, 38706, 38940 and 24799, respectively), in violation of 30 TISX. ADMnq. CODE
§ 334.8 (c)(5)(A)(i)'and TEX. WATER CODE § 26.3467(a), as documented during an investigation
conducted on December 19, 2001;
Failed to ensure that the UST registration and self-certification form is submitted to the agency in
a timely manner, in violation of 30 TEX. ADMIN. CODE § 334.8(c)(4)(B) and TEX. WATER CODE
§ 26.346(a), as documented during an investigation conducted on December 19, 2001; and
City of Port Arthur
DOCKET NO. 2002-0318-PST-E
Page 3
Failed to provide written notice to the executive director within 30 days of the replacement of two
underground tanks in December 1999, in violation of 30 TEX. ADMIN. CODE § 334.7(d)(3), as
documented during an investigation conducted on December 19, 2001.
m. DENIALS
Port Arthur generally denies each allegation in Section II ("Allegations").
IV. ORDERING PROVISIONS
It is, therefore, ordered by the TNRCC that Port Arthur pay an administrative penalty as set forth in
Section I, Paragraph 6 above. The imposition of this administrative penalty and Port Arthur's
compliance with all the terms and conditions set forth in this Agreed Order resolve only the
allegations in Section II. The Commission shall not be constrained in any manner from requiring
corrective action or penalties for violations which are not raised here. Administrative penalty
payments shall be made payable to "TNRCC" and shall be sent with the notation "Re: City of Port
Arthur, Docket No. 2002-0318-PST-E" to:
Financial Administration Division, Revenues Section
Attention: Cashier's Office, MC 214
Texas Natural Resource Conservation Commission ,
P.O. Box 13088
Austin, Texas 78711-3088
The provisions of this Agreed Order shall apply to and be binding upon Port Arthur. Port Arthur is
ordered to give notice of the Agreed Order to personnel who maintain day-to-day control over the
Facility operations referenced in this Agreed Order.
This Agreed Order, issued by the Commission, shall not be admissible against Port Arthur in a civil
proceeding, unless the proceeding is brought by the OAG to: (1) enforce the terms of this Agreed
Order; or (2) pursue violations of a statute within the Commission' s jurisdiction, or of a rule adopted
or an order or permit issued by the Commission under such a statute.
Under 30 TEX. ADMIIq. CODE § 70.10(b), the effective date is the date of hand-delivery of the Order
to Port Arthur, or three days after the date on which the Commission mails notice of the Order to Port
Arthur, whichever is earlier. The Chief Cterk shall provide a copy of this Agreed Order to each of
the parties.
City of Port Arthur
DOCKET NO. 2002-0318-PST-E
Page 4
SIGNATURE PAGE
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
For the Commission
I, the undersigned, have read and understand the attached Agreed Order. I am authorized to agree to the
attached Agreed Order on behalf of the entity, if any, indicated below my signature, and I do agree to the
terms and conditions specified therein.
Signature Date
Name (Printed or typed)
Authorized Representative of
City of Port Arthur
Title
Margaret Ho££man
Deputy Director
Office of Legal Services
Texas Natural Resource Conservation Commission
Date
Instructions: Send the original, signed Agreed Order with penalty payment to the Financial Administration Division, Revenues
Section at the address in Section IV, Paragraph 1 of this Agreed Order.
· Page 1 pf 7
05/07/02 H:\enforce·rl0\Cases\FY2002\City of Pod Adhur Transit Service Cente~Mailout~002-0318-pst-e~cp-Po~hur.WB2
TNHCC, Penalty Calculation Worksheet II~J~ll~l~I
Plcy. rev, I (01/99) PCW rev. 12/0612001 ii
Pew D~tall a~At~oo21} EPA SNC/SV Due Data~ 11
Respondent
ED Number(s)
Docket Number
Enf. Coordinator
Type of Order
$0 $5,000
~ $0 $2,500
pply $50 $1,000
$0 $1,000
Public Watar Utilities $0 $500
Total Base Penalty forward (subtotal t) [ $6,000
so]
$o]
Percent
Enter Percent
Adjustment amount (subtotal 4) . $0
Final Subtotal
$6,000
$o
Enter Adjustment Percentage (+/-) ~(enter number only; e S, -30 for -30%)
AmountI
Note,
$6,000
Payable PenaltyI $4,800
· Page 2 9f 7 05/07/02 H:\enforce.rlO\Cases\FY2002\City of Port Arthur Transit Service Center~Mailout~2002-0318-pst-e-qcp-PortArthur. WB2
Screening Date 01-Mar-02 l)ockefNumber 2002-0318-PST-E
Respondent City of Port Arthur Plcy. rev. 1 101/99)
]])N~ber(~) Petroleum Storage Tank Facility D. No. 0074849 (formerly 0035017); Enf. LD. rev. 12/0612001
~/~edia~[~totel Petroleum Storage Tanks
~lf~ ~i~d~t~J~ Laura Clark
VioLation Number I II
Primary Rule Cite 30 Tex Admin, Gode~§ ~34~8(C)~A}~i
Secondary Cite(s)
Violation Description
and Nove~ber~ 5, 20~ c(i~voi~Y~ ~5~, 4~g ~5~6~ $10,000.
38706~gBg~ahd~9. respe~ively}
Base Penal~
Fals~tion Ma)or Moderate ~,~or
Ma~x
Adjustment[ ($9,500) ....
~ase ~enal~ Subtotal S500
Number of~iolation [~en~ .........................
Penal~i
ViolaUon
Base
$4,000
Estimated EB Amount ($)1 S3 I
Violation Final Penalty totalI S4,ooo
This Violation Final Assessed Penalty (adjusted for limits)
Page 3~ of 7 05107102 H:\enforce.rl0\Cases\FY2002\City of Port Arthur Transit Service Center~Mailout~002-0318-pst-e-qcp-PortArthur. WB2
City of Port Arthur ·
Petroleum Storage Tanks
Permit Costs
Other (As Needed)
Notes for DEI~AYED costs
Inspection/Reporting/Sampling
Supplies/equip
Financial Assurance [2]
ONE-TIME avoided COSts [3]
Other (as needed)
Notes for AVOIDED costs
$0
$0 $0 $0
$0 $0
Approx Cost of Compliance ~
$1ooj
Page 4 of 7 0~/07/02 H:\enforce.rl 0\Cases\FY2002\City of Pod Arthur Transit Service Center\Mailout\2002-0318-pst-e-qcp-PortArthur. WB2
Screening Dat~ 01-Mar-02 Docket Number 2002-0318-PST-E ~
M~d~a~[Steti~t.g] Petroleum Storage Tanks
Ea~; ~:0~i:k~t~)~; Laura Clark
Violation Number ~ 2 II
Primary Rule Cite ~ ~ 30 Te×~d~0~.~c~(~)(B)
Secondary Cite(s) II *~
Base Penalty]
Falsification Maior Moderate Minor
$1o,oo0
Matrix ~ ~'~ ........... ~[ ~'~'~ [ ' 10%]
Notes
AdjustmentI ($9,ooo)I ....
Base Penalty Subtotal! $1,000
Number of Violation Events . '
Violation
Base
PenalW~--~'~O~-"
~stim;ted EB Amount ($)~ $0 ~ Violation Final PenalW totall $1,ooo
This Violation $1,ooo
Page 5,of 7 0§/07/02 H:\enforce.rl0\Cases\FY2002\City of Port Arthur Transit Service Center~Mailout~2002~318-pst-e-q cp-PortArt hur. WB2
Supplies/equip
Financial Assurance
Other (as needed)
Page 6 ,of 7 05/07/02 H:\enforce.rl0\Cases\FY2002\City of Pod Arthur Transit Service Center\Mailout~002-0318-pst-e-qcp-PortAdhur. WB2
Screening D~te 01-Mar-02 Dock~t;Ngmber 2002-0318~PST-E ~
[ : R~spoltd~:~ City of Port Adhur Ph:v my. if01hJgl~ ! . ~..
][~ ~urnb~T(~} Petroleum Storage Tank Facility i.D. No. 0074849 (formerly 0035017); Enf. I.D. rev, 12/06/2001
i M~d'i*~; iS[a¢6t~] ;; Petroleum Storage Tanks
Primary Rule Cite~ 30~e~ A~id~:~0de ~8:4~d~~ J
Violation Description ~ Failb~lb:pm~fiuffn~li~6:l~e~xemtrve~i~¢~a~0~ys of t~*
BasePenal~L ~_.
Percent[ t
Falsification Major Moderate Minor
Matrix
Notes
lO%1
AdjustmentI ($9,000) ....
Base Penalty Subtota $1.000
Number of Violation Events ~ .........................
me~ only one; use smatl x ~ VJolatJo,q ease PenaltyF'--~S-~-,~)-~-
Estimated EB Amount ($)~ Violation Final Penalty totalI $1,000
This Violation Final Assessed Penal adjusted for limits
Page 7 of 7
85/07/02
H:\enforce.rl0\Cases\FY2002\City of Port Arthur Transit Service Center~Mailout~002-0318-pst-e-qcp-PortArthur. WB2
' of Pod Arthur
Petroleum Storage Tank Facility I.D, No, 0074849 (formerly 0035017); Enl. I.
Petroleum Storage Tanks
3
5.0 15
Equipmenl
Buildings
Other (As needed)
Engineering/construction
Land
Record Keeping System
Training/Sampling
Remediafionfl)isposal
permit Costs
Other (As Needed)
Note~ for DELAYED cost~
$0 $o
$0 $0 $0
$0 $0 $0
$0 $o $o
$0 $0
$0
$0
$0
$0
$1o
$10
Aot)roximate;~ost,fororeparatien~auo subm-~tal.of-uP~iate~to registration. E~a~te require;d.~s 3~Says after
ins~all~tior~fi ~ a!~latl~ b~tnp]ianc~d~e cum e~tatiaa~ate,
Disposal
Personnel
Inspection/]Repo rfing/S ampiin~
SuppliesYequi$
Financial Assurance [2]
ONF~-TIME avoided costs [3]
Other (as needed)
Notes for AVOIDED costs
$0 $0 $0
$0
$0 $0 $0
$0 $o
$0 $0 $0
$0 , $0 $0
Appr°x C°st °f C°mplianceI $1001 ~ $10 [