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HomeMy WebLinkAboutPR 15396: STATE OF TEXAS VS. CITY OF PORT ARTHURInteroffice MEMORANDUM To: From: Date: Subject: Mayor, City Council, and City Manager Mark T. Sokolow, City Attorney /"Lc.,/} July 23, 2009 P. R. No. 15396; Council Meeting July 28, 2009 Attached is P. R. No. 15396 approving an Agreed Judgment as it pertains to the State of Texas vs . City of Port Arthur. Per the attached letter, Mr. Parker is recommending the settlement. If the City has future discharges in violation of the Water Code (three years from the effective date), the City will be paying $500 for each discharge. The City Manager and the Director of Utilities have indicated that the number of unauthorized discharges have been reduced over the years. Hopefully, with the improvements in the System, future unauthorized discharges will be few. Nevertheless, there is a risk thereof MTS:gt Attachment cc: Carl Parker z . pr153 %_memo '~ ~'~ CARLA. PARKEa ALLEN PA,Rn~R l Plsa $quam PJR AanuL~ 12x35 i i0~:•J)! } Tete?n.:ne: (~ICP)93i-93:1 P3Laimilr (aC9)$ii-.o. _~ TheParAcr! mvFi.'al.:om. nAx~~ CCDi?.LD'X!. clrwcrl it 17 Li tiuects Sate. Au,c :.Texas i3"2l ~?ATd C2~+tt LXaSe~CI i1Lrn'J jEIi?~ ~'p• E `4 'JUL 2 Y 2009 L' EGAI, DEP,~~NT 1 ~~~~~ ~~~ July 20, 2009 Mayor Bobbie Prince Mr. Steve Fitzgibbons, City Manager Mr. Mazk Sokolow, City Attorney City of Port Arthur __..._ ... __ P. O. Box 1089 Port Arthur TX 77641 RE: D-1-GV-07-001556; State v. Port Arthur As to our teleconferences, Ibelieve this to be the absolute best possible result we can get from this matter. The fines aze relatively low and basically we aze agreeing to obey the law with numerous provisions to give us extensions or an escape route if we are not able to comply. I strongly recommend the city council approve and the mayor sign the enclosed document. This matter has been postponed for trial by agreement until April, 2010. The matter will have to be published for approval by the commission and only then can we complete the settlement. We need this document signed and submitted to the attorney general, however, to get the process rolling. I regret I am unable to attend the council meeting because of my recent surgery, but we have discussed this matter thoroughly with staff; and I am given to believe it is acceptable to all concerned. Sincerely, THE PARKER LnA-W~FIRM ~"- Carl A. Parker CAP/ps Enclosure P. R. No. 15396 07/22/09 gt RESOLIITION NO. A RESOLIITION APPROVING AN AGREED JIIDGMENT A3 IT PERTAINS TO THE STATE OF TEAS V3. CITY OF PORT ARTHIIR, TEBAS WHEREAS, the City Council deems it appropriate to authorize the approval of an Agreed Final Judgment and Permanent Injunction with the State of Texas in a form to be approved by Carl A. Parker, as it pertains to Cause No. D-1-GV-07-001556, in the District Court of Travis County, Texas, 126th District Court. NOW THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF THE CITY OF PORT ARTHIIR, TEBAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the-Mayor of the City of Port Arthur is herein authorized to sign the Agreed Final Judgment and Permanent Injunction in a form to be approved by Carl Parker, in substantially the same form as attached hereto as Exhibit "A". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2009, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: z.pr15396 Mayor Councilmembers NOES: MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr16396 EXHIBIT ~~A" NO. D-1-GV-07-001556 ` STATE OF TEXAS, § Plaintiff, § v. § § CITY OF PORT ARTHUR, TEXAS, § Defendant. § 1tECEIVED JUt 21 2009 IN TI~~~CT CO~~ OF TRAVIS COUNTY, TEXAS 126` JUDICIAL DISTRICT AGREED FINAL JUDGMENT AND PERMANENT INJUNCTION On this day the State of Texas, Plaintiff ("the State"), and the City of Port Arthur, Texas, Defendant ("the City"), submitted to the Court this Agreed Final Judgment and Permanent Injunction. This case involves two wastewater treatment plants operated by the City: the Main Plant and the Port Acres Plant. The State brought this action on behalf of the Texas Commission on Environmental Quality ("TCEQ") seeking civil penalties, attorneys' fees and injunctive relief. The State alleged that the City violated: (1) an Agreed Order of the Texas Natural Resource Conservation Commission (predecessor to the TCEQ) issued April 20, 1999, entitled IN THE MATTER of AN ENFORCEMENT ACTION CONCERNING THE CITY OF PORT ARTHUR; PERMIT NOS. 10364-001 AND 10364-002; ENFORCEMENT IDNOS. 8621 AND 8622, DocketNo. 98-0261-MWD-E (the "TNRCC Agreed Order"); (2) TPDESI Permit No. 10364-001 ("Main Plant Permit"); ~ Texas Pollution Discharge Elimination System. See TEx. WATER CODE § 26.027 (Vernon 2008) regazding the TCEQ's permitting authority. (3) TPDES Permit No. 10364-002 ("Port Acres Plant Permit"); (4) Chapters 7 and 26 of the Texas Water Code; and (5) the wastewater treatment and collection system regulations. The City has denied the State's allegations. The Court has reviewed this Judgment and finds that it is proper and consistent with the intent and purposes of the Texas Water Code, the environmental rules and regulations promulgated by TCEQ, the permits issued to the City by the TCEQ, and the administrative order issued by the TCEQ, all mare particularly described above. The Court approves this Judgment in all respects. I. STIPULATIONS IN AGREEING TO THIS JUDGMENT THE PARTIES STIPULATE TO THE FOLLOWING: 1. The State and the City understand and agree to the terms of this Judgment; 2. This Judgment represents a compromise and settlement of all matters placed in issue by the State and the City in this lawsuit; 3. The occurrence of any violation by the City is in dispute and the entry of this Judgment does not constitute an admission by the City of any violation alleged by the State in the captioned litigation; 4. This Judgment complies with all statutory, jurisdictional, and procedural requisites necessary for entry and enforcement; 2 5. The State and the City agree to the terms of this Judgment and waive the right to appeal its validity; 6. The State and the City agree that they have actively participated in the negotiations leading up to this Judgment, they have read the terms of the Judgment, they understand the duties placed upon them by it, and that the Judgment is specific in its terms and complies with Rule 683 of the Texas Rules of Civil Procedure; 7. The City is willing and able to comply with the terms of the Judgment and waives the necessity of the issuance and service of a writ of injunction pursuant to Rules 688 and 689 of the Texas Rules of Civil Procedure; and 8. This Judgment is enforceable pursuant to Rule 692 of the Texas Rules of Civil Procedure. II. GENERAL PROVISIONS THE FOLLOWING GENERAL PROVISIONS ARE ORDERED, ADJUDGED, AND DECREED AS THE JUDGMENT OF THIS COURT: 9. This Judgment finally disposes of all claims brought by the State in the captioned litigation. 10. This Judgment shall be effective immediately upon signing by the Court (the date of which shall be called the "Effective Date") 11. The State shall be allowed such process and writs as may be reasonable or necessary for the enforcement of this Judgment. 3 - --- -_ --__ State's Reservation of Rights 12. Notwithstanding any other provision of this Judgment, the State reserves, and this Judgment is without prejudice to, all rights against the City with respect to all other matters, including but not limited to the following: a. claims that are not within the enforcement authority of the TCEQ; b. claims based on a failure of the City to meet a requirement of this Judgment; c. liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; d. criminal liability; and e. liability for violations of federal, state, or local law that occur on or after the Effective Date of this Judgment. 13. Nothing in this Judgment shall in any way limit or lessen the City's responsibilities or potential liabilities for future violations of the Texas Water Code, the environmental rules and regulations promulgated by TCEQ, any municipal wastewater collection and treatment permits issued to the City by the TCEQ, or any other law. Public Notice 14. The State's approval of this Judgment is subject to the public notice and comment requirements of TEx. WATER CODE § 7.110. This Judgment will not be presented to the Court until public notice of this Judgment has been published in the Texas Register, the public has been given thirty (30) days during which to comment to the Attorney General's Office on the terms of this Judgment, and the Attorney General has considered any written comments and approved the Judgment. III. INNNCTION IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT THE STATE' S APPLICATION FOR AN INJUNCTION IS GRANTED AND APPROVED, AND THE CITY AND ITS OFFICERS, AGENTS, ASSIGNS, SERVANTS, AND EMPLOYEES, ARE HEREBY IMMEDIATELY MANDATORILY AND PERMANENTLY ENJOINED AS FOLLOWS: Notification Procedures 15. Within thirty (30) days after the Effective Date of this Judgment, the City shall develop and implement effective procedures to ensure that it provides noncompliance notification to the TCEQ of any unauthorized discharge that may endanger human health, safety or the environment, in accordance with 30 TEx. ADtvtIN. CODE § 305.125(9); TPDES Permit No. 10346-001, Monitoring acid Reporting RequirementNo. 7.a.; and TPDES Permit No. 10346-002, Monitoring and Reporting Requirement No. 7.a. Collection System 16. Within sixty (60) days after the Effective Date of this Judgment, the City shall develop and implement a plan and a schedule for mitigating the effects of infiltration and inflow ("I/I") on the collection systems at both the Main and the Port Acres plants ("the Facilities") and to achieve and maintain compliance with the effluent limits of TPDES 5 Permits No. 130b4-001 and 10364-002, as they may be renewed or modified from time to time. The plan shall be prepared by a Texas Registered Professional Engineer and shall include, but not be limited to: a. an evaluation to determine the effectiveness of previously completed I/I conrective actions, b. identification of funding to complete the rehabilitation work needed, and c. an implementation schedule for rehabilitating the sewer lines and lift stations that service the Facilities, including provisions for auxiliary power supplies to these facilities in the event of a power failure. 17. Within one-hundred twenty (120) days after the Effective Date of this Judgment, the City shall develop a plan and a program, under the same terms stated in para. 16, above, to address how the City will provide for growth while performing necessary corrective action work in the existing collection systems, including identification of future funding. 18. Upon completion, the plans and schedules required under paras. 16 and 17 above shall be immediately submitted to: Manager, Water Section Beaumont Regional Office Texas Commission on Environmental Quality 3870 Eastex Freeway Beaumont, Texas 77703-1892 with a copy to: 6 --------------------- Order Compliance Team Enforcement Division, MC 149A Texas Commission on Environmental Quality P.O. Box 13087 Austin, Texas 78711-3087 Treatment Facilities 19. Within sixty (60) days after the Effective Date of this Judgment, the City shall conduct an evaluation of the treatment units at the Facilities to determine what repair or replacement of any components may be necessary to ensure proper operation and maintenance of the Facilities and compliance with the Permits, according to 30 TEx. ADMIN. CODE §§ 305.125(1) & 305.125(5); TPDES PermitNo.10364-001, Operational Requirement No. 1; and TPDES Permit No. 10364-002, Operation Requirement No. 1. The evaluation shall be done by a Texas Registered Professional Engineer and shall include a schedule providing for completion ofthe necessary corrective actions within one-hundred eighty (180) days after the Effective Date of this Judgment. a. Immediately upon completion of the plan and the schedule, the City shall provide copies to the Order Compliance Team of the TCEQ Enforcement Division and to the TCEQ Beaumont Regional Office at the addresses shown in para. 18, above. b. Within fifteen (15) days after completion ofthe necessary corrective actions, the City shall submit written certification, as described in para. 23 below, and provide detailed supporting documentation including photographs, receipts, and/or other records to demonstrate compliance with this paragraph. 7 ------------------------------------------ - 20. Within one-hundred riventy (120) days after the Effective Date of this Judgment, the City shall initiate engineering and financial planning for expansions and/or upgrades to the Facilities and the collection systems serving these treatment plants, cr submit to the Executive Director of the TCEQ a waiver request if the planned populations to be served or the quantity of waste produced is not expected to exceed the design limitations of the treatment facility (with an engineering report supporting this claim), in accordance with 30 TEx. ADMIN. CODE § 305.126(a); TPDES Permit No. 10364-001, Operational Requirement No. 8.a; and TPDES Permit No. 10364-002, Operational Requirement No. 8.a. 21. Within one-hundred twenty (120) days after the Effective Date of this Judgment, and every ninety (90) days thereafter until completion of the plans and schedules required under paras. 16, 17 and 19, above, the City shall submit quarterly status reports of such compliance to the Order Compliance Team of the TCEQ Enforcement Division and the TCEQ Beaumont Regional Office at the addresses shown above. 22. Completion: a. Within three (3) years after the Effective Date of this Judgment, the City shall submit written certification of completion of the I/I mitigation and collection system rehabilitation work and shall demonstrate compliance with the effluent limits of TPDES Permits No.10364-001 and 10364-002, and provide detailed supporting documentation including photographs, receipts, Discharge Monitoring Reports, and other records to demonstrate compliance with para. 16, above. 8 b. In the alternative, if the City cannot certify such completion and compliance, the City shall submit a report showing substantial completion and compliance, and shall then submit quarterly progress reports of such completion and compliance to the Order Compliance Team of the TCEQ Enforcement Division and the TCEQ Beaumont Regional Office, at the addresses shown above, each quarter until the City can demonstrate full completion and compliance and provide the supporting documentation. c. The City shall proceed with the requirements of this injunction diligently and in good faith. d. Nothing in this Judgment shall prevent the State of Texas or the TCEQ from bringing another action, administrative or legal, for violations of the Water Code after the Effective Date, notwithstanding that the City is under a continuing injunction to achieve full compliance pursuant to this Judgment. 23. The written certifications of compliance required by paras. 19.b and 22, above, shall be notarized by a State of Texas Notary Public and include the following certification language: "I certify under penalty of law that this document and all attachment 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 respons ible 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 information, including the possibility of fine and imprisonment for knowing violations." The City shall provide copies of such certifications to the Order Compliance Team of the 9 TCEQ Enforcement Division and to the TCEQ Beaumont Regional Office at the addresses shown in para. 18, above. 24. This injunction is effective upon the Effective Date and shall remain in full force and effect unless otherwise ordered by the Court. 25. Compliance by the City of all terms and provisions of this Judgment shall constitute full compliance with the TNRCC Agreed Order. Force Majeure 26. If performance of any injunctive provision of this Judgment becomes impossible or impracticable due to an event or effect that the City could not have anticipated or controlled, the requirement shall be postponed until performance becomes possible and practicable. (Such events or effects may include acts of nature, such as hurricanes; and acts of people, such as strikes, material shortages and wars.) Immediately upon learning of such event or effect constituting force majeure, the City shall notify the TCEQ and give its best estimate as to when and how compliance will be achieved. Postponement of injunctive provisions under Force Majeure shall also postpone the payment and forgiveness of civil penalties under paras. 29.b-29.f, below. IV. CIVIL PENALTIES, ATTORNEY'S FEES AND COSTS IT IS FURTHER ORDERED, ADJUDGED, AND DECREED THAT THE FOLLOWING CIVIL PENALTIES, ATTORNEY'S FEES AND COSTS SHALL BE RECOVERED BY THE STATE FROM AND AGAINST THE CITY: 10 27. A judgment in favor of the State against the City for a civil penalty in the total amount of Two Hundred Seventy-five Thousand and no/100 DOLLARS ($275,000.00), to be paid by the City according to the schedule and pursuant to the terms and conditions set forth below. 28. A judgment in favor of the State and against the City for attorneys' fees in the total amount ofTwenty-five Thousand and no/100 DOLLARS ($25,000.00) to be paid by the City according to the schedule and pursuant to the terms and conditions set forth below. 29. The City shall pay the amounts set out in paras. 27 and 28, above, under the following terms and conditions: a. Seventy-five Thousand Dollars ($75,000) of the civil penalty, and all of the attorneys' fees, shall be paid within thirty (30) days of the Effective Date. These payments are not subject to reduction or forgiveness. b. Twenty-five Thousand Dollars ($25,000) of the civil penalty shall be paid within sixty (60) days after the Effective Date; HOWEVER, if the City timely completes and delivers the plan for mitigation and compliance in accordance with paras. 16 and 18, above, this payment shall be forgiven. c. An additional Twenty-five Thousand Dollars ($25,000) of the civil penalty shall be paid within sixty (60) days after the Effective Date; HOWEVER, if the City timely completes and delivers the evaluation of treatment facilities and schedule of corrective action in accordance with paras. 19-19.a, above, this payment shall be 11 forgiven. d. Twenty-five Thousand Dollars ($25,000) of the civil penalty shall be paid within one hundred hventy (120) days after the Effective Date; HOWEVER, if the City timely completes and delivers the plan for addressing growth while performing corrective action work in accordance with pazas. 17 and 18, above, this payment shall be forgiven. e. One Hundred Thousand Dollars ($100,000) of the civil penalty shall be paid within one hundred ninety-five (195) days after the Effective Date; HOWEVER, if the City timely completes the corrective action on the treatment facilities and delivers the certification as required under para. 19.b, above, this payment shall be forgiven. If the completion and delivery are not timely, the City shall pay a stipulated penalty of One Thousand Dollars ($1,000) per day for each day the completion or delivery is past due, up to a total of One Hundred Thousand Dollars ($100,000), and the balance shall be forgiven. f. In addition, within one hundred twenty (120) days after the Effective Date, and every ninety (90) days thereafter, the City shall pay the sum of One Thousand Dollazs ($1,000) of the civil penalty, until a total of Twenty-five Thousand Dollars ($25,000) has been paid. HOWEVER, if the City timely completes and submits the quarterly status reports required under pazas. 21 and 22.b, above, the sum of One Thousand Dollars ($1,000) shall be forgiven each quarter, until a total of Twenty-five 12 Thousand Dollars ($25,000) has been forgiven. Upon completion of all requirements under paras. 21 and 22.b, above, any remaining balance due on the sum of Twenty-five Thousand Dollars ($25,000) shall be forgiven. g. For any payments of civil penalties forgiven as specified above, the total civil penalty shall be reduced accordingly. Interest; Collection 30. Any payment not made to the State by the date on which it is due shall draw interest at the legal rate from the due date until paid. In addition, the State shall be considered a judgment creditor as to any payment not made by the due date, and shall be entitled to all legal process available to judgment creditors for collection. 31. Any payment required by this Judgment to be paid to the State requires the actual receipt by the Office of Attorney General, within five (5) days of the due date, at the following address: Chief, Env'tl Prot. & Admin. Law Div. (Attn: Thomas Edwards; Ref: AG No. 07-2435969). Office of the Attorney General (018) Wm. P. Clements State Office Bldg. 300 W. 15th St., FI. 10 Austin TX 78701-1649 or by mail at: P.O. Box 12548 Austin, Texas 78711-2548. 13 Supplemental Environmental Projects 32. The City may fund orperform Supplemental Environmental Projects (SEPs) in lieu ofthe payment of civil penalties as specified above. Any such project must bepre-approved by the TCEQ, must be funded or carried out as specified by the TCEQ, and shall offset the civil penalties only in the amount determined by the TCEQ for each SEP. Stipulated Penalties 33. Beginning three (3) years after the Effective Date, the City shall be liable for stipulated penalties in the amount of Five Hundred Dollars ($500.00) for each discharge, and for each additional day of a continuing discharge, of wastewater from the Facilities or their related collection systems in violation ofthe Texas Water Code. Upon determining that such a discharge has occurred, the City shall immediately report the violation to the TCEQ, and within thirty (30) days shall pay the stipulated penalty to the State according to the procedures set out in para. 31. V. MISCELLANEOUS PROVISIONS 34. Upon request by the State, .the Clerk of Court shall issue a writ of injunction for the injunctive provisions set out in Section III above. 35. Pursuant to TEx. CIV. PRAC. & REM. CODE § 6.001, the State is not required to file a bond prior to the issuance of the writ of injunction. 36. All costs of court are taxed against the City. 37. This is a Final Judgment. The Court denies all relief not specifically granted 14 herein. SIGNED this day of , 2009. JUDGE PRESIDING 15 AGREED AND ENTRY REQUESTED: GREG ABBOTT Attorney General of Texas C. ANDREW-WEBER First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Civil Litigation BARBARA B. DEANS Chief, Environmental Protection and Administrative Law Division DAVID PREISTER Chief, Environmental Protection Section THOMAS H. EDWARDS State Bar No. 06461800 Assistant Attorney General Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512)320-0052 ATTORNEYS FOR PLAINTIFF STATE OF TEXAS 16 AGREED AND ENTRY REQUESTED: The Parker Law Firm 1 Plaza Square Port Arthur, Texas 77642-5513 Tel: (409) 985-8814 Fax: (409) 985-2833 By: CARL PARKER State Bar No. 15478000 ATTORNEY FOR THE CITY OF PORT ARTHUR, TEXAS MAYOR CITY OF PORT ARTHUR, TEXAS Date: V1CA$E$~PORT ARTHUR~Yivl 1090]06 wpd 17