G. HEILEMAN BREWING CO., INC.
01 OF 01
CONSENT DECREE
05-91-C003
CWA
19900907
19900907
05
STAG BREWERY
BELLEVEILLE, IL
88-5321
CONSENT DECREE, US V. G. HEILEMAN BREWING CO., INC.
Page 1
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
v. G. HEILEMAN BREWING CO., INC.,
Defendant.
I. PREAMBLE
WHEREAS, Plaintiff United States of America (the "United States"), on
behalf of the United States Environmental Protection Agency ("U.S.
EPA"), has filed a complaint alleging that Defendant, G. Heileman
Brewing Co., Inc. ("Heileman"), has discharged pollutants in violation
of the pretreatment requirements of Section 307 of the Clean Water Act
("Act"), 33 U.S.C. Section 1317, and regulations promulgated thereunder;
WHEREAS, Heileman is a corporation organized under the laws of the
State of Wisconsin and, until June 1989, owned the Stag Brewery ("Stag
Brewery") at 1201 W. "E" Street, in the City of Belleveille
("Belleville"), in St. Claire County, Illinois; ++EP++
Page 2
WHEREAS, in June 1989 the Stag property was sold and the brewery
equipment was dismantled, sold and transferred off of the premises of
the Stag Brewery;
WHEREAS, until September 1988, Heileman was engaged at the Stag
Brewery in the business of brewing alcoholic and non-alcoholic malt
based beverages, and aging and packaging them, and in carrying out its
brewing operations the Stag Brewery generated brewing process wastewater
allegedly containing pollutants, which it discharged into a Publicly
Owned Treatment Works ("POTW"), that being Waste Water Treatment Plant
No. 1 ("WWTP #1"), owned and operated by Belleville, and located on
South Church Street in Belleville, Illinois; and
WHEREAS, U.S. EPA has reviewed all of Heileman's existing discharge
sampling data at its Stag Brewery and has made claims based on all known
civil Clean Water Act violations resulting from Heileman's operation of
the Stag Brewery in the Complaint in this case;
THEREFORE, before the taking of any testimony, without admission by
Heileman of the allegations in the Complaint, without adjudication of
any issue of law or fact, upon Consent and agreement of the parties to
this Decree, it is hereby adjudged, and decreed as follows:
II. JURISDICTION
This Court has jurisdiction of the subject matter herein and of the
parties consenting hereto, pursuant to 28 U.S.C. Sections 1345 and 1355
and Section 309 of the Act, 33 U.S.C. Section 1319. The Complaint
states a claim upon which relief can be granted against Heileman.
++EP++
Page 3
III. PUBLIC INTEREST
The parties agree and the Court finds that settlement of these
matters without further litigation is in the public interest, and entry
of this Consent Decree is the most appropriate means of resolving these
matters.
IV. APPLICABILITY
The provisions of this Consent Decree shall apply to and be binding
upon the parties to this action, their officers, directors, agents,
employees, successors, assigns, and all persons, firms and corporations
having notice of the Consent Decree and who are, or will be, acting in
concert or privity with Heileman or its officers, directors, agents,
employees, and successors and assigns.
V. SETTLEMENT AND SATISFACTION
Compliance with the terms of this Consent Decree shall constitute
full satisfaction of this civil action as to all persons to whom it
applies.
VI. CIVIL PENALTY
Heileman agrees to pay the United States a civil penalty in the sum
of $325,000, plus interest on the unpaid principal at an annual rate of
10% according to the following schedule:
On or before April 30, 1990: $170,000 of the principal, plus
interest in the amount of $5,416 (accrued between March 1,
1990 and April 30, 1990). ++EP++
Page 4
On or before September 30, 1990: $155,000 of the principal,
plus interest in the amount of $6,458 (accrued between May
1, 1990 and September 30, 1990).
Payments shall be made by certified check or official bank check,
payable to the "Treasurer, United States of America," and shall be
tendered to the United States Attorney, Southern District of Illinois,
750 Missouri Ave, East St. Louis, Illinois 62201, with a copy of this
letter and check to the Chief, Compliance Section (5WQC-TUB-8), EPA, 230
South Dearborn Street, Chicago, Illinois 60604.
VII. COSTS
Each party bears its own costs in this action.
VIII. PERMITS NOT AFFECTED
A. This Consent Decree in no way relieves Heileman of responsibility
to comply with any other federal, state, or local law, regulation or
permit term.
B. This Consent Decree is neither a permit nor a modification of any
existing permit.
IX. NON-WAIVER PROVISIONS
A. By this Consent Decree, the United States does not waive any
right or remedy available to it for any past, present or future
violation by Heileman of any federal or state law, regulations or permit
condition not alleged in the Complaint, except as provided in paragraph
B below.
B. Because of the specific circumstances alleged in the Preamble to
this Consent Decree, the United States hereby waives and relinquishes
its right to bring any civil claims against Heileman for violations of
the Clean Water Act based on Heileman's former operation of the Stag
Brewery. ++EP++
Page 5
C. Nothing herein shall be construed to limit the authority of the
United States to take any action against any person, including Heilman,
in response to conditions which may present an imminent and substantial
endangerment to public health, welfare, or the environment.
X. PUBLIC COMMENT
The parties agree and acknowledge that the final approval and the
entry of this Consent Decree are subject to the requirements of 28
C.F.R. Part 50.7.
XI. CONTINUING JURISDICTION
This Court shall retain jurisdiction of this action for the purpose
of issuing any Decree it deems necessary to carry out the Consent
Decree. FOR PLAINTIFF, UNITED STATES OF AMERICA:
RICHARD B. STEWART
/s/ Richard B. Stewart
Assistant Attorney General
Land and Natural Resources
Division
United States Department of
Justice
6-25-90
FREDERICK J. HESS
/s/ Frederick J. Hess
United States Attorney
Southern District of Illinois
7-5-90 ++EP++
Page 6
JAMES M. STROCK
/s/ ILLEGIBLE SIGNATURE
Assistant Administrator for
Enforcement and Compliance
Monitoring
United States Environmental
Protection Agency
June 7, 1990
VALDAS V. ADAMKUS
/s/ ILLEGIBLE SIGNATURE
Regional Administrator
United States Environmental
Protection Agency, Region V
May 4, 1990
FOR DEFENDANT G. HEILEMAN BREWING CO., INC.
/s/ ILLEGIBLE SIGNATURE
Vice President
April 27, 1990
Consent Decree entered in accordance with the foregoing, this 7th day of
September, 1990.
HONORABLE WILLIAM L. BEATTY
/s/ William L. Beatty
UNITED STATES DISTRICT JUDGE
++EP++
NORTH BERGEN,TOWNSHIP OF ET AL
DOC 01 OF 01
CONSENT DECREE
02-90-C007
CWA
MUNI
19900209
19900209
NJD000559120
02
NORTH BERGEN DPW
NORTH BERGEN-TW, N3
79-2030
CONSENT DECREE BETWEEN PLAINTIFF THE USA AND THE INTERSTATE SANITATION
COMMISSION, AND DEFENDANTS, THE TOWNSHIP OF NORTH BERGEN, TOWNSHIP OF
NORTH BERGEN MUNICIPAL UTILITIES AUTHORITY, THE TOWN OF GUTTENBERG, THE
HUDSON COUNTY UTILITIES AUTHORITY, AND THE STATE OF NEW JERSEY
Page 1
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Plaintiff,
INTERSTATE SANITATION COMMISSION,
Ivenor-Plaintiff,
v.
CITY OF HOBOKEN, et al., TOWNSHIP OF
NORTH BERGEN, et al., CITY OF BAYONNE, et al.,
Defendants. ++EP++
Page 2
WHEREAS, Plaintiff, United States of America, on behalf of the United
States Environmental Protection Agency ("EPA"), filed an Amended and
Supplemental Complaint herein on March 20, 1986, and an Amendment to the
Second Amended Complaint on October 3, 1986, alleging that defendants
the Township of North Bergen and the Township of North Bergen Municipal
Utilities Authority (the "North Bergen Defendants") have violated and
continue to violate the Clean Water Act (the "Act"), 33 U.S.C. Sections
1251 et seq., by discharging pollutants into the Hudson River in
violation of Section 301 of the Act, 33 U.S.C. Section 1311, and
National Pollutant Discharge Elimination System ("NPDES") permits
implementing the Act; and
WHEREAS, plaintiff, the Interstate Sanitation Commission ("ISC"),
intervened in this action on June 23, 1986, alleging that the North
Bergen Defendants were violating the Tri-State Compact, N.J.S.A. 32:18-1
et seq., N.Y. (McKinney's Consolidated Laws) ECL 21-0501 et seq., Conn.
G.S.A. 22a-294 et seq., Congressional Consent 49 Stat. 932; and the
Act; and
WHEREAS, the North Bergen Defendants are persons and municipalities
as defined in the Act and own and operate the Woodcliff publicly owned
sewage treatment works (the "Woodcliff POTW") located on River Road in
the Township of North Bergen, New Jersey, which discharges pollutants
subject to the Act, NPDES Permit No. NJ0029084 and ISC Regulations; and
WHEREAS, defendant the Town of Guttenberg ("Guttenberg") is a person
and a municipality as defined in the Act; collects sewage and
wastewater from residential, commercial and industrial sources within
its boundaries; transports a portion of such sewage and wastewater to
the Woodcliff POTW for treatment; and is a person needed for just
adjudication under Fed. R. Civ. P. 19(a)(1); and ++EP++
Page 3
WHEREAS, defendant the Hudson County Utilities Authority ("HCUA") is
a person and a municipality as defined in the Act; is a utility
authority created pursuant to the laws of the State of New Jersey to
provide sewage collection and treatment in the portion of Hudson County
which includes North Bergen and Guttenberg; is the designated waste
treatment management agency in Hudson County pursuant to Section 208(c)
of the Act, 33 U.S.C. Section 1288(c), and is a person needed for just
adjudication under Fed. R. Civ. P. 19(a)(1); and
WHEREAS, the State of New Jersey has been joined as a defendant
pursuant to Section 309(e) of the Act, 33 U.S.C. Section 1319(e); and
WHEREAS, the United States and ISC (collectively, "Plaintiffs"), the
North Bergen Defendants, Guttenberg, HCUA and the State of New Jersey
(collectively, "Defendants"), by their respective attorneys, have each
consented to the making and entering of this Consent Decree, and the
Court having considered the matter and being duly advised, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
JURISDICTION
1. This Court has jurisdiction over the subject matter and over the
parties hereto under 28 U.S.C. Section 1345, 33 U.S.C. Section 1319, and
the Tri-State Compact. Plaintiffs' complaints state claims upon which
relief may be granted against the North Bergen Defendants, Guttenberg
and HCUA under Section 309 of the Act, 33 U.S.C. Section 1319. ++EP++
Page 4
APPLICABILITY OF DECREE
2. The provisions of this Consent Decree shall apply to and be
binding upon all parties to this Consent Decree, their officers,
directors, agents, servants, employees, successors, assigns, and all
persons, firms, and corporations in active concert or participation with
them. Prior to any transfer of ownership or operation of the Woodcliff
POTW, the North Bergen Defendants shall give written notice of this
Consent Decree to any successor(s) in interest and shall simultaneously
notify, in writing, EPA, ISC, and the State of New Jersey Department of
Environmental Protection (the "NJDEP") that such notice has been given
to each successor in interest.
SCHEDULE FOR ACHIEVING PERMIT LIMITATIONS
3. The North Bergen Defendants shall undertake a construction
program to provide treatment to all sewage and wastewater flows in their
sewage system necessary to attain and thereafter maintain compliance
with NPDES Permit No. NJ0029084, the Act, and ISC Regulations. The
North Bergen Defendants shall complete and bring into full operation all
necessary facilities in accordance with the following
schedule:
A. Advertise for Bids - September 19, 1988
B. Receive Bids - October 27, 1988
C. Commence Actual Construction - March 20, 1989
D. Complete Construction - September 1, 1990
E. Attain Final Permit Effluent
Limits - December 1, 1990 ++EP++
Page 5
INTERIM EFFLUENT LIMITS
4. The North Bergen Defendants shall attain the following interim
effluent limits at the Woodcliff POTW from the date of entry of this
Consent Decree until attainment of compliance with final permit effluent
limits, or December 1,
1990, whichever is earlier:
Average Monthly Average Monthly
Parameter Concentration Percent Removal
BOD(5) 135 mg/1 25 %
TSS 80 mg/1 40 %
5. This Consent Decree shall not be construed to be an NPDES Permit,
nor a modification of existing NPDES Permit No. NJ0029084 or any
renewals thereof or amendments thereto, nor shall it in any way relieve
the North Bergen Defendants of any obligation imposed by the Act or any
permit issued thereunder, nor of their obligations to comply in full
with any other federal, state or local law relating to the substance of
this Consent Decree; provided that this Consent Decree shall supercede
any inconsistent provision of the Preliminary Injunction entered in this
matter on December 26, 1979, and of Administrative Order No.
EPA-CWA-II-85-49 (March 25, 1985). Any new permit, or modification of
an existing permit, must be complied with in accordance with applicable
Federal and State law. The pendency or outcome of any proceeding
concerning the issuance, reissuance, or modification of an NPDES permit
shall neither affect nor postpone the North Bergen Defendants'
obligations under this Consent Decree. ++EP++
Page 6
INTERIM IMPROVEMENTS TO THE EXISTING WOODCLIFF POTW
6. The North Bergen Defendants shall complete the following
maintenance and repair improvements at the Woodcliff POTW in accordance
with the following schedule:
A. Effective upon entry of this Consent Decree, the North Bergen
Defendants shall implement, and thereafter shall continue to implement,
a schedule for removal of sludge from the POTW a minimum of three times
a day.
B. By the date of entry of this Consent Decree, the North Bergen
Defendants shall repair the effluent weirs so as to provide even flow
out of each primary tank, and thereafter shall operate and maintain the
weirs so as to provide said even flow.
C. Effective upon entry of this Consent Decree, and thereafter for
the duration of the Consent Decree, the North Bergen Defendants shall
prevent excessive accumulation of materials on the bar screens so that
flow through the bar screens is unobstructed at all times.
D. By the date of entry of this Consent Decree, the North Bergen
Defendants shall repair the broken outfall pipe, and thereafter shall
maintain the entire pipe in operable condition. ++EP++
Page 7
E. By the date of entry of this Consent Decree, the North Bergen
Defendants shall install two automatic samplers: one to measure
influent, and the other to measure effluent. Each automatic sampler
shall have a self-contained back-up unit and shall thereafter be
maintained in operable condition.
BAN ON NEW FLOWS TO THE WOODCLIFF POTW
7. A. By the date of entry of this Consent Decree, the North Bergen
Defendants shall have taken such governmental action as may be necessary
to impose and enforce a ban on new sewer connections and new or
increased loadings to the Woodcliff POTW. Beginning on the date of
entry of this Consent Decree, the North Bergen Defendants shall
immediately impose an absolute ban on new sewer connections to the
Woodcliff POTW, and on additions of or increases in loadings from any
source to the Woodcliff POTW. This initial absolute ban shall remain in
effect until the date of Commencement of Actual Construction under
Paragraph 3(C), above.
B. After the date of Commencement of Actual Construction under
Paragraph 3(C), above, the North Bergen Defendants may permit new sewer
connections and/or additions of or increases in loadings to the
Woodcliff POTW, provided that the North Bergen Defendants remain in
compliance with all requirements of Paragraphs 3 and 4, above.
C. If at any time, the North Bergen Defendants are not in compliance
with Paragraphs 3 or 4, above, they shall immediately re-impose the
absolute sewer ban provided in Paragraph 7(A), above. For the purposes
of this paragraph only, non-compliance with the interim effluent limits
in Paragraph 4, above, is defined as two consecutive months with any
exceedence(s) of any interim limit(s) regardless of whether the limits
violated are for the same parameter or limit or for different parameters
or limits. ++EP++
Page 8
Any such absolute sewer ban re-imposed for violation of interim effluent
limits may be lifted only following three consecutive months of
compliance with all interim effluent limits. Any absolute sewer ban
re-imposed for violation of any of the following: Paragraph 3(A);
Paragraph 3(B); Paragraph 3(C); Paragraph 3(D); Paragraph 3(E),
above, may be lifted only upon eventual compliance with the violated
Paragraph(s) and upon a showing by the North Bergen Defendants that the
necessary work is proceeding in a manner or at a pace which assures that
final NPDES Permit limits will be attained by December 1, 1990.
D. In the period between the date of full compliance with Paragraph
3(C), above, and the date of full compliance with Paragraph 3(E), above,
should it appear to the United States and/or ISC that the North Bergen
Defendants will not comply in a timely fashion with Paragraph 3(E), the
United States and/or ISC may apply to the Court for re-imposition of the
absolute sewer ban. The ban shall be re-imposed unless the North Bergen
Defendants show cause that the necessary work is proceeding in a manner
or at a pace which assures that final NPDES Permit limits will be
attained by December 1, 1990. Any ban re-imposed under this Paragraph
7(D) shall remain in effect until attainment of final NPDES Permit
limits or until the North Bergen Defendants have shown the Court that
the necessary work is proceeding in a manner or at a pace which assures
that final NPDES Permit limits will be attained by December 1, 1990.
++EP++
Page 9
E. The North Bergen Defendants shall take all appropriate steps to
impose and enforce, and to re-impose if appropriate, the absolute sewer
ban as provided above. Each Monthly Progress Report required under
Paragraph 19, below, shall contain a detailed description of the status
of compliance with this Paragraph 7. This sewer ban shall not be deemed
to diminish any prohibitions separately imposed by NJDEP.
SETTLEMENT OF CIVIL PENALTY CLAIMS
8. The North Bergen Defendants shall pay to the United States the
sum of fifty-eight thousand dollars ($58,000.00), plus interest, in
settlement of all claims for civil penalties, pursuant to Section 309 of
the Clean Water Act, as set forth in the United States' Amended and
Supplemental Complaint, and the Amendment thereto. Payment of
twenty-nine thousand dollars ($29,000.00) shall be made within thirty
(30) days of the entry of this Consent Decree. Payment of the sum of
twenty-nine thousand dollars ($29,000.00), plus interest, shall be made
within one hundred and eighty (180) days of the entry of this Consent
Decree. Interest shall accrue at the rate established by the Department
of the Treasury under 31 U.S.C. Section 3717. All payments shall be by
certified, cashier's, or official bank check made payable to "Treasurer
of the United States" and delivered to the United States Attorney for
the District of New Jersey. A copy of the check and the letter
tendering such check shall be mailed simultaneously to EPA's Region II
Office of Regional Counsel. ++EP++
Page 10
PRETREATMENT PROGRAM
9. By July 15, 1989, the North Bergen Defendants shall submit to the
NJDEP (with a copy to EPA) a pretreatment program and request for
approval which meets the requirements of 40 C.F.R. Section 403. Said
request shall contain a schedule for the implementation and enforcement
of said pretreatment program. Upon approval thereof by the NJDEP, EPA
and the North Bergen Defendants shall submit for the Court's approval an
amendment to this Consent Decree incorporating the schedule for
implementation and enforcement of the pretreatment program.
FUNDING
10. The North Bergen Defendants' obligations to comply with the
terms of this Consent Decree are not conditioned upon the receipt of any
Federal or State funds. Non-compliance shall not be excused by the lack
of any Federal or State funds, nor by delays in the processing of any
applications for said funds, nor by delays in receipt of approvals
required under any Federal or State funding programs.
THE TOWN OF GUTTENBERG
11. Guttenberg admits that it conveys sewage from Guttenberg to the
Woodcliff POTW for treatment and that, under the Amendment to the
Updated 201 Facilities Plan for Area III (March, 1987), it will continue
to convey its sewage to the Woodcliff POTW for treatment. ++EP++
Page 11
12. By the date of entry of this Consent Decree, Guttenberg shall
have taken such governmental action as may be necessary to impose and
enforce a ban on new sewer connections and new or increased loadings to
the Woodcliff POTW. Beginning on the date of entry of this Consent
Decree, Guttenberg shall immediately impose an absolute ban on new sewer
connections, and on increases in loadings, to the Woodcliff POTW. In
the event a sewer ban is otherwise imposed or re-imposed in the service
area of the Woodcliff POTW under Paragraph 7, above, Guttenberg shall
immediately impose an absolute ban on new sewer connections, and on
increases in loadings, to the Woodcliff POTW.
13. Guttenberg shall cooperate with the North Bergen Defendants in
the construction and operation of the facilities necessary to attain
final NPDES Permit limits at the Woodcliff POTW, shall provide
appropriate sewer use, pretreatment and sewer user charge ordinances as
required, and shall take such other action as is necessary to implement
fully, in the area of Guttenberg served by the Woodcliff POTW, the
requirements of the North Bergen Defendants' pretreatment program.
THE HUDSON COUNTY UTILITIES AUTHORITY
14. HCUA acknowledges: (1) that it is authorized to construct,
operate and maintain sewage treatment works; (2) that, under the
Amendment to the Updated 201 Wastewater Facilities Plan for Area III
(March, 1987) and the executed Service Agreement between HCUA,
Guttenberg and the North Bergen Defendants dated as of December 4, 1986,
HCUA is obligated to cooperate in the planning, financing, construction,
operation and maintenance of treatment facilities necessary for
compliance with Paragraph 3 of this Consent Decree; (3) that HCUA's
active and expeditious cooperation and participation are required so
that the North Bergen Defendants can comply with the provisions of this
Consent Decree; and (4) that the North Bergen Defendants may utilize
the continuing jurisdiction of the Court under Paragraphs 17 and 26,
below, to resolve any disputes between the North Bergen Defendants and
HCUA which may cause or contribute to non-compliance with this Consent
Decree by the North Bergen Defendants and that the Court maintains broad
equitable powers to order HCUA to cooperate and participate in the
implementation of this Consent Decree and to sanction HCUA and/or its
officers through monetary penalties or otherwise. ++EP++
Page 12
15. HCUA shall take all lawful steps within its authority to
facilitate compliance by the North Bergen Defendants with all the
provisions of this Consent Decree.
FORCE MAJEURE
16. A. If any event occurs which causes or may cause a violation of
any provision of this Consent Decree by a Defendant, the Defendant shall
notify EPA and the ISC in writing within five (5) days of the date on
which it first knew or should have known by exercise of reasonable
diligence of such event. The notice shall describe in detail the
anticipated length of time the violation may persist, the precise cause
or causes of the violation, the measures taken or to be taken by the
Defendant to prevent or minimize the violation and the timetable by
which those measures will be implemented. ++EP++
Page 13
The Defendant shall adopt all reasonable measures to avoid or minimize
the violation. Failure by a Defendant to comply with the notice
requirements of this Paragraph shall render this Paragraph void and of
no effect as to the particular incident involved, and shall constitute a
waiver of a Defendant's right to obtain an extension of time for its
obligation under this Paragraph.
B. If the Plaintiffs agree that the violation has been or will be
caused entirely by circumstances beyond the control of the Defendant or
any entity controlled by the Defendant including its consultants and
contractors, and that the Defendant could not have foreseen and
prevented such violation by the exercise of reasonable diligence, the
time for performance of such requirement may be extended for a period
not to exceed the actual delay resulting from such circumstance, and
stipulated penalties shall not be due for such delay. In the event the
Plaintiffs do not agree, the matter may be submitted by any party to the
Court for resolution after exhaustion of the Dispute Resolution
procedures of Paragraph 17, below.
C. Unanticipated or increased costs or expenses associated with the
implementation of actions called for by this Consent Decree, changed
financial circumstances or technical problems shall not serve, by
themselves, as bases for changes in, or extensions of time under, this
Consent Decree. ++EP++
Page 14
D. Compliance with any requirement of this Consent Decree, by
itself, shall not constitute compliance with any other requirement. An
extension of one compliance date based on a particular incident does not
result in an extension of any subsequent compliance date. A Defendant
must make an individual showing of proof regarding each delayed
incremental step or other requirement for which an extension is sought.
E. The Defendant shall bear the burden of proving that any delay or
effluent violation was caused entirely by circumstances beyond the
control of the Defendant or any entity controlled by or under the common
control of the Defendant.
F. An action or failure to act on the part of one or more
Defendant(s), shall not, by itself, constitute force majeure which may
excuse any Defendant from compliance with any provision of this Consent
Decree. Defendants shall utilize the Dispute Resolution procedures and
the continuing jurisdiction of the Court, under Paragraphs 17 and 26,
below, to resolve any dispute which may cause violation of this Consent
Decree. A Defendant may defend against the imposition of stipulated
penalties or other sanctions for non-compliance with this Consent Decree
by demonstrating that the non-compliance was caused by the acts or
omissions of another Defendant which it could not overcome by reasonable
diligence, including, whenever appropriate, by timely motion to this
Court to enforce the obligations of such other Defendant under this
Consent Decree.
G. Plaintiffs reserve any and all legal and equitable remedies
available to enforce the provisions of this Consent Decree. ++EP++
Page 15
DISPUTE RESOLUTION
17. A. Any dispute between any two or more parties which arises
under or with respect to this Consent Decree shall in the first instance
be the subject of informal negotiations between the parties to the
dispute for a period of up to fifteen (15) working days from the time
notice of the existence of the dispute is given. Both Plaintiffs are
automatically parties to any dispute. The period for negotiations may
be extended by agreement among the parties to the dispute.
B. In the event that the parties cannot resolve the dispute by
informal negotiations under the preceding paragraph, then the
interpretation advanced by Plaintiffs will be considered binding unless,
within ten (10) days after the end of the informal negotiations period,
the affected party or parties files a petition with this Court setting
forth the matter in dispute, the efforts made by the parties to resolve
it, and the relief requested. Any party may present a disputed matter
to the Court before the end of the fifteen-day negotiation period if the
matter concerns stipulated penalties or otherwise requires early
resolution. The dispute resolution procedures of this paragraph shall
be the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree.
C. The filing of a petition asking the Court to resolve a dispute
shall not of itself extend or postpone any obligation of the Defendants
under this Consent Decree, provided that payment of stipulated penalties
with respect to the disputed matter shall be stayed pending resolution
of the dispute. Notwithstanding the stay of payment, stipulated
penalties shall accrue from the first day of non-compliance with any
applicable provision of this Consent Decree. In the event that an
affected Defendant does not prevail on the disputed issue, stipulated
penalties shall be assessed and paid as provided in Paragraph 18, below.
++EP++
Page 16
STIPULATED PENALTIES
18. A. If any Defendant fails to comply with any applicable
requirement of Paragraphs 3, 6-9, 11-15, or 19 of this Consent Decree,
the non-complying Defendant shall pay stipulated penalties in the
following amounts for each day of
each and every violation of said requirements:
Days of Delay Penalty Per Violation Per Day
1-30 $800 per day
31-60 $1,500 per day
Beyond 60 Days $4,000 per day
Such stipulated penalties shall begin to accrue on the day that
performance is due or non-compliance occurs, and shall continue to
accrue through the final day of correction of the non-compliance.
Nothing herein shall prevent the simultaneous accrual of separate
penalties for separate violations of this Consent Decree.
B. If the North Bergen Defendants fail to comply with any of the
effluent limits in Paragraph 4 of this Consent Decree, the North Bergen
Defendants shall pay stipulated penalties in the following amounts for
each and every violation of each
such limits:
For each violation of a monthly limit - -
by a factor of up to and including 20% - $5,000
by a factor of over 20% through 40% - $12,500
by a factor of over 40% - $25,000 ++EP++
Page 17
C. Sixty percent (60%) of the above stipulated penalties shall be
paid to the United States and forty percent (40%) will be paid to ISC
within five (5) working days of the end of the month in which the
violations occured. Penalties due to the United States shall be paid by
tendering a certified, cashier's, or official bank check in the
appropriate sum, payable to "Treasurer of the United States," to the
United States Attorney for the District of New Jersey, with a copy to
EPA. Penalties due to ISC shall be paid by tendering a certified,
cashier's, or official bank check in the appropriate sum, payable to
"Interstate Sanitation Commission," to the Finance Officer, Interstate
Sanitation Commission. Interest shall accrue on any stipulated penalty
not paid when due at the rate established by the Department of the
Treasury under 31 U.S.C. Section 3717.
REPORTING
19. A. Beginning with respect to the month following the month of
entry of this Consent Decree, and with respect to each month thereafter
until attainment of compliance with final NPDES Permit limits, the North
Bergen Defendants shall submit in writing to EPA, ISC, the United States
Attorney for the District of New Jersey, and the NJDEP a report
("Monthly Progress Report") detailing the status and progress of the
North Bergen Defendants' compliance with this Consent Decree. Each
Monthly Progress Report shall contain a description of: the work
performed in the previous month, including any delays or material
problems encountered; work planned for the next month and a projection
of work to be performed during the following six month period; the
amount of progress made toward completion of work required for final
compliance; reasons for any non-compliance, projections of the date(s)
by which any such non-compliance will be corrected; and a detailed
description of the status of compliance with Paragraph 7, above.
Notification of any anticipated delay in compliance with a requirement
of this Consent Decree shall not, by itself, excuse the delay. ++EP++
Page 18
B. Monthly Progress Reports shall be submitted within five (5)
working days of the last day of each month. Each Monthly Progress
Report shall be in the form of a sworn affidavit from the Chairman of
the North Bergen Municipal Utilities Authority and, to the extent
possible, shall be based upon personal knowledge. Any matters in a
report not based upon personal knowledge shall be so identified, and the
bases for knowledge of those matters will be specifically stated.
C. Within five (5) working days of any compliance date contained in
this Consent Decree, the Defendant(s) to which the requirement applies
shall submit in writing to the Court, EPA, ISC, the United States
Attorney for the District of New Jersey, and the NJDEP a report
("Compliance Report") setting forth in detail whether or not such
Defendant(s) has (have) complied in full with the requirement and, if
not, the work remaining to be done to achieve full compliance and a
schedule for completion of such work. ++EP++
Page 19
Each Compliance Report shall be in affidavit form as required in
Paragraph 19(B), above, and shall include the reasons for any
non-compliance and any steps taken to mitigate non-compliance.
RIGHT OF ENTRY
20. Until termination of this Consent Decree, EPA, ISC and their
contractors and consultants shall have the authority to enter the
Woodcliff POTW and any appurtenant facilities at all times upon
presentation of credentials for the purposes of:
A. Monitoring the progress of activities
required by this Consent Decree; and
B. Verifying any data or information
submitted in accordance with this Consent
Decree; and
C. Obtaining samples, and, upon request,
splits of any samples taken by the North
Bergen Defendants or their consultants.
This provision in no way limits or otherwise affects any right of
entry held by EPA, NJDEP, ISC, or any other party pursuant to applicable
Federal or State laws, regulations or permits.
FAILURE OF COMPLIANCE
21. A. Plaintiffs do not, by their consent to the entry of this
Consent Decree, warrant or aver in any manner that complete compliance
with this Consent Decree will result in compliance with the provisions
of the Act, NPDES Permit No. NJ0029084, or ISC Regulations.
Notwithstanding EPA's review and approval of any plans, the Defendants
remain responsible for compliance with the provisions of this Consent
Decree, the Act, the NPDES Permit and ISC Regulations. ++EP++
Page 20
B. Plaintiffs do not waive any rights or remedies available to them
for any violations by the Defendants of Federal or State laws,
regulations or permit conditions following completion of the
requirements of this Consent Decree.
NON-WAIVER PROVISIONS
22. A. This Consent Decree in no way affects or relieves the
Defendants of responsibility to achieve and maintain complete compliance
with all applicable Federal and State laws, regulations, and permits,
and compliance with this Consent Decree shall be no defense to any
action under said laws, regulations, or permits.
B. This Consent Decree in no way affects the right of the United
States to bring an action under Section 309 of the Act, 33 U.S.C.
Section 1319, for any violation not specifically the subject of this
Consent Decree. The United States reserves its claim in this action
against the State of New Jersey.
C. This Consent Decree does not limit or affect the rights of the
Defendants or of the United States or ISC against any third parties not
named herein, nor the rights of third parties not parties to this
Consent Decree against any other parties.
D. This Consent Decree in no way affects the right of NJDEP to bring
an action for any violations, past or present, by the North Bergen
Defendants of State laws, regulations or permit conditions. ++EP++
Page 21
COSTS OF SUIT
23. Each party shall bear its own costs and attorney's fees in this
action. If any of the Defendants is subsequently found to have violated
the terms and conditions of this Consent Decree, then it shall be liable
to the United States and ISC for any reasonable costs and attorney's
fees incurred by the United States and ISC in any action arising or
resulting from such non-compliance, any such costs and/or fees to be
determined by the Court after application to the Court by the United
States and/or the ISC.
PUBLIC COMMENT
24. Final approval by the United States and entry of this Consent
Decree by the Court are subject to the requirements of 28 C.F.R. Section
50.7 which requires, inter alia, notice of this Consent Decree and an
opportunity for public comment.
SEVERABILITY
25. The provisions of this Consent Decree shall be severable, and
should any provision be declared by a court of competent jurisdiction to
be inconsistent with Federal law, and therefore unenforceable, the
remaining provisions shall remain in full force and effect.
CONTINUING JURISDICTION OF THE COURT
26. This Court shall retain jurisdiction to enforce the terms and
conditions of this Consent Decree and to resolve disputes arising
hereunder as may be necessary or appropriate for the implementation of
this Consent Decree. ++EP++
Page 22
TERMINATION
27. This Consent Decree shall terminate when each of the Defendants
has complied with all applicable requirements of this Consent Decree.
MODIFICATION
28. This Consent Decree may not be modified except upon the written
consent of all parties hereto, or their successors or assigns, and the
approval of the Court.
SUBMITTALS
29. Whenever, under the terms of this Consent Decree, written notice
is required to be given or a report or other document is required to be
forwarded by one party to another, it shall be directed to the
representative(s) of the receiving party at the address(es) specified
below, unless the receiving party has given written notice of different
recipients or addresses to the other parties to this Decree. Copies of
such notice, report, or document shall be sent to
all other representatives listed below.
As to the United States and EPA:
Chief Chief
New Jersey Municipal Civil Division
Programs Branch Office of the United States
Water Management Division Attorney for the District
USEPA - Region II of New Jersey
26 Federal Plaza 970 Broad Street
New York, New York 10278 Newark, New Jersey 07102
As to ISC:
General Counsel
Interstate Sanitation Commission
311 West 43rd Street, Room 201
New York, New York 10036 ++EP++
Page 23
As to the State of New Jersey and NJDEP:
Assistant Director George P. Cook, Esq.
Enforcement Element Deputy Attorney General
Division of Water Resources Department of Law
New Jersey Department of State of New Jersey
Environmental Protection Hughes Justice Complex
Box CN - 029 Box CN - 112
Trenton, New Jersey 08625 Trenton, New Jersey 08625
As to the North Bergen Defendants:
William Z. Shulman, Esq.
115 River Road
Edgewater, New Jersey 07020
As to Guttenberg:
Richard Bowe, Esq.
6811 Bergenline Avenue
Guttenberg, New Jersey 07093
As to HCUA:
George W. Crimmins
Executive Director
Hudson County Utilities Authority
634 Summit Avenue
Jersey City, New Jersey 07306
SIGNATORIES
30. Each undersigned representative of a party to this Consent
Decree certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and legally
bind such party to this document.
THE UNDERSIGNED PARTIES enter into this Consent Decree in Civil
Action No. 79-2030 (consolidated) (D.N.J.), relating to the Woodcliff
publicly owned treatment works owned and operated by the North Bergen
Defendants, and submit it to the Court, that it may be approved and
entered. ++EP++
Page 24
N. B. Consent Decree in Civil Action No. 79-2030 (D.N.J.)
FOR PLAINTIFF, THE UNITED STATES OF AMERICA:
RICHARD B. STEWART
/s/ Richard B. Stewart
Assistant Attorney General
9-30-89
Land and Natural Resources
Division
United States Department of
Justice
Washington, D.C. 20530
William D. Brighton
/s/ William D. Brighton
Environmental Enforcement Section
10/3/89
Land and Natural Resources
Division
United States Department of
Justice
Washington, D.C. 20530
SAMUEL A. ALITO, JR.
United States Attorney for the
District of New Jersey
Jeffrey D. Smith
/s/ ILLEGIBLE SIGNATURE for
Assistant United States Attorney
10/5/89
970 Broad Street
Newark, New Jersey 07102
Edward E. Reich
/s/ Edward E. Reich
Acting Assistant Administrator
for Enforcement and Compliance
Monitoring
August 22, 1989
United States Environmental
Protection Agency
401 M Street, S.W.
Washington, D.C. 20460 ++EP++
Page 25
N. B. Consent Decree in Civil Action No. 79-2030 (D.N.J.)
FOR PLAINTIFF, THE INTERSTATE SANITATION COMMISSION
Anthony T. Vaccarello
/s/ Anthony T. Vaccarello
Chairman
June 5, 1989
Interstate Sanitation Commission
Claire Biunno
/s/ Claire Biunno
General Counsel
May 30, 1989
Interstate Sanitation Commission
311 West 43rd Street
New York, New York 10036 ++EP++
Page 26
N. B. Consent Decree in Civil Action No. 79-2030 (D.N.J.)
FOR DEFENDANTS, THE TOWNSHIP OF NORTH BERGEN AND THE TOWNSHIP OF NORTH
BERGEN MUNICIPAL UTILITIES AUTHORITY
Hon. Leo Gattoni, Sr.
/s/ Leo Gattoni, Sr.
Mayor
2/9/89
The Township of North Bergen
Town Hall
4233 Kennedy Boulevard
North Bergen, New Jersey 07047
Joseph Stankard, Chairman
/s/ ILLEGIBLE SIGNATURE
Chairman
2/9/89
The Township of North Bergen
Municipal Utilities Authority
Town Hall
4233 Kennedy Boulevard
North Bergen, New Jersey 07047
William Z. Shulman, Esq.
/s/ ILLEGIBLE SIGNATURE
Attorney for the Township of
North Bergen and the Township
of North Bergen Municipal
Utilities Authority
2/9/89
115 River Road
Edgewater, New Jersey 07020 ++EP++
Page 27
N. B. Consent Decree in Civil Action No. 79-2030 (D.N.J.)
FOR DEFENDANT, THE TOWN OF GUTTENBERG
Hon. Nicholas J. Cicco
/s/ Nicholas J. Cicco
Mayor
1/25/89
The Town of Guttenberg
Town Hall
6808 Park Avenue
Guttenberg, New Jersey 07093
Richard Bowe
/s/ Richard Bowe
Esq.
1/25/89
Attorney for the Town of
Guttenberg
6811 Bergenline Avenue
Guttenberg, New Jersey 07093
++EP++
Page 28
N. B. Consent Decree in Civil Action No. 79-2030 (D.N.J.)
FOR DEFENDANT, THE HUDSON COUNTY UTILITIES AUTHORITY
George W. Crimmins
/s/ George W. Crimmins
Executive Director
2/8/89
Hudson County Utilities Authority
John F. O'Donnell
/s/ John F. O'Donnell
Esq.
2/8/88
Special Counsel
O'Donnell, Kennedy, Vespole
& Piechta
414 Eagle Rock Avenue
West Orange, New Jersey 07052
++EP++
Page 29
FOR DEFENDANT, THE STATE OF NEW JERSEY:
W. CARY EDWARDS
Attorney General
The State of New Jersey
George P. Cook
/s/ George P. Cook
Deputy Attorney General
1/11/89
State of New Jersey
SO ORDERED, THIS DAY OF , 1989. ++EP++
SOUTH PORTLAND, CITY OF
01 OF 01
CONSENT DECREE
01-92-C012
CWA
1992
1992
SOUTH PORTLAND, MAINE
90-0209-P
01
CONSENT DECREE, USA & STATE OF MAINE V. CITY OF SOUTH PORTLAND, MAINE
Page 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
UNITED STATES OF AMERICA &
STATES OF MAINE
Plaintiffs, v.
CITY OF SOUTH PORTLAND, MAINE
Defendant.
WHEREAS, plaintiff, the United States of America, on behalf of the
United States Environmental Protection Agency (the "EPA"), has filed a
Complaint alleging that defendant, the City of South Portland, Maine
("South Portland" or the "City"), has violated and continues to violate
the Clean Water Act (the "Act"), 33 U.S.C. Sub-Section 1251 et seq., by
discharging pollutants into Casco Bay, the Fore River, its tributaries,
and other waters emptying into Casco Bay in violation of Section 301(a)
of the Act, 33 U.S.C. Section 1311(a), and the terms and conditions of
National Pollutant Discharge Elimination System ("NPDES") permits
consecutively issued to the City pursuant to Section 402 of the Act, 33
U.S.C. Section 1342;
WHEREAS, South Portland filed an answer denying certain of the
allegations of the Complaint;
WHEREAS, South Portland is a political subdivision of the State of
Maine (the "State"), duly organized and existing under the laws of the
State, and is a person and a municipality as defined in the Act; ++EP++
Page 2
WHEREAS, South Portland owns and operates a publicly owned treatment
works ("POTW"), within the meaning of Section 212 of the Act, 33 U.S.C.
Section 1292, including a treatment plant and sewage collection system,
located in the City of South Portland, Maine;
WHEREAS, in operating its POTW, South Portland is currently subject
to the requirements of NPDES Permit No. ME 0100633, issued by EPA
effective April 28, 1991, and a state license, the State of Maine
Department of Environmental Protection Waste Discharge License No.
W001370-47-C-R;
WHEREAS, the plaintiff-intervenor, the State filed a
Complaint-In-Intervention joining allegations of the United States and
further alleging that the City has been, and is in violation of 38
M.R.S.A. Section 413, and the provisions of waste discharge licenses
issued by the Maine Department of Environmental Protection;
WHEREAS, South Portland filed an answer denying certain of the
allegations of the Complaint-In-Intervention;
WHEREAS, the United States, the State, and South Portland (the
"parties") have each consented to the entry of this Consent Decree
without the determination of any issue of fact or law, and the parties
hereby stipulate to the Court that, in order to resolve the claims
stated in the Complaints of the United States and the State, this
Consent Decree should be entered;
NOW, THEREFORE, the Court having considered the matter and being duly
advised, it is hereby ORDERED, ADJUDGED, and DECREED as follows: ++EP++
Page 3
JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of this
action and over the parties pursuant to Section 309 of the Act, 33
U.S.C. Section 1319, and 28 U.S.C. Sub-Section 1331, 1345, and 1355, and
pendent jurisdiction over the claims of the State. Venue is proper in
this District under 28 U.S.C. Section 1391(b). The United States'
Complaint states a claim upon which relief may be granted pursuant to
Section 301 and 309 of the Act, 33 U.S.C. Sub-Section 1311 and 1319.
The State's Complaint states a claim pursuant to Section 505 of the Act,
33 U.S.C. Section 1365, and 38 M.R.S.A. Section 348.
APPLICABILITY
2. The provisions of this Consent Decree shall apply to and be
binding upon the parties, their officials, departments, and agencies.
3. No later than thirty (30) days prior to any transfer of
ownership, operation, or other interest in its POTW, South Portland
shall give written notice of this Consent Decree to any successor in
interest and to each contractor retained to perform any activity
required by this Consent Decree. South Portland shall condition the
transfer of ownership, operation, or other interest, or any contract
related to the performance of this Consent Decree, upon the successful
execution of the terms and conditions of this Consent Decree. South
Portland shall notify the State and EPA in writing that it intends to
transfer an interest in the POTW at least thirty (30) days prior to any
transfer of that interest. ++EP++