LAW OFFICE OF DAVID A. LUDDER. A Professional Limited Liability Company. September 27, 2014

Transcription

1 CERTIFIED MAIL RETURN RECEIPT REQUESTED Steven P. Lafreniere, Executive Director Alabama Department of Youth Services P. O. Box 66 Mt Meigs, Alabama James V. Kent Administrator of Institutional Services Alabama Department of Youth Services P. O. Box 66 Mt Meigs, Alabama Victor Black, Acting Campus Administrator Mt. Meigs Campus Alabama Department of Youth Services P. O. Box 66 Mt Meigs, Alabama LAW OFFICE OF DAVID A. LUDDER A Professional Limited Liability Company September 27, 2014 Re: Notice of Violation and Intent to File Suit under the Clean Water Act for Violations of Clean Water Act Dear Messrs. Lafreniere, Kent, and Black: Pursuant to the Clean Water Act 505, 33 U.S.C. 1365, and 40 C.F.R. Part 135, Subpart A, you are hereby notified that after the expiration of sixty (60) days following the date of this notice, the Environmental Defense Alliance may file suit against the Alabama Department of Youth Services for discharges of pollutants from the Mt. Meigs Campus Complex Lagoon located at 1000 Industrial School Road (Latitude North, Longitude West) in Mt. Meigs, Alabama into an unnamed tributary to Butler Creek without a National Pollutant Discharge Elimination System (NPDES) permit as required by Section 301 of the Clean Water Act, 33 U.S.C I. Violations of Clean Water Act 301 The Alabama Department of Youth Services was authorized by NPDES Permit No. AL to discharge pollutants from a point source at the Mt. Meigs Campus Complex Lagoon into a tributary to Butler Creek from November 1, 2004 through October 31, That permit expired on October 31, 2009 and has not been renewed or reissued. Thus, all discharges of pollutants from a point source at the Mt. Meigs Campus Complex Lagoon into a tributary to 9150 McDougal Court Tallahassee Florida Telephone Facsimile DavidALudder@enviro-lawyer.com Web

2 Butler Creek after October 31, 2009 have been unpermitted and unlawful. These discharges have occurred daily and have included sewage (water-carried human wastes from buildings, industrial establishments or other places, together with such ground, surface, storm or other waters as may be present). Accordingly, the Alabama Department of Youth Services has continuously violated Section 301 of the Clean Water Act, 33 U.S.C. 1311, each and every day after October 31, II. History of Previous Enforcement Actions On January 26, 1995, the Alabama Department of Environmental Management (ADEM) issued Order No WP to the Alabama Department of Youth Services in which it was found that the Alabama Department of Youth Services had allowed its NPDES permit to expire without renewal or reissuance. The Alabama Department of Youth Services was ordered to complete construction of modifications necessary for connection to the Pike Road Wastewater Facility no later than June 1, 1995 which will eliminate the point source discharge from the Mt. Meigs Campus Complex Lagoon. On April 22, 2005, ADEM issued a Warning Letter to the Alabama Department of Youth Services for violations of discharge limitations in NPDES Permit No. AL occurring in February of On August 24, 2005, ADEM issued a Warning Letter to the Alabama Department of Youth Services for violations of discharge limitations in NPDES Permit No. AL occurring in May and June of On February 28, 2007, ADEM issued a Notice of Violation to the Alabama Department of Youth Services for violations of discharge limitations in NPDES Permit No. AL occurring during March of 2005 through December of On October 6, 2008, ADEM issued Order No WP to the Alabama Department of Youth Services for violations of discharge limitations in NPDES Permit No. AL occurring during August of 2006 through March of The Alabama Department of Youth Services was required to submit a compliance plan within 365 days (October 6, 2009) that provided for either connection to the Montgomery Wastewater Treatment Plant or upgrade of the on-site Wastewater Treatment System and to complete implementation of the compliance plan within 730 days (October 6, 2010). The Order also required that all discharge limitations be achieved no later than 730 days (October 6, 2010). On November 14, 2011, ADEM issued a Notice of Violation to the Alabama Department of Youth Services for its failure to submit a permit renewal application or a notice of intent to discontinue discharge on or before May 4, ADEM also indicated that it had informed the Alabama Department of Youth Services via on August 15, 2011 and August 17, 2011 that a permit renewal application or a notice of intent to discontinue discharge was overdue. 2

3 On November 17, 2011, ADEM met with representatives of the Alabama Department of Youth Services. During that meeting, ADEM provided the Alabama Department of Youth Services with a permit renewal application package. On August 1, 2014, ADEM sent to the Alabama Department of Youth Services an inspection report for the Mt. Meigs Campus Complex Lagoon that was completed on July 28, The report noted that the NPDES permit had expired on October 31, No further action has been taken by ADEM to address this continuing unlawful discharge of pollutants. III. Sanctions The Court may assess civil penalties of up to $37,500 per violation. Each day a violation continues is a separate violation. The Alabama Department of Youth Services has discharged pollutants without a permit for 1,790 days. Suit may be avoided if these violations have been permanently abated before the expiration of sixty (60) days following the date of this notice. Please advise the undersigned of any measures that you may undertake which you contend have permanently abated these violations before suit is filed. Sincerely, David A. Ludder Attorney for Environmental Defense Alliance cc: Hon. Gina McCarthy, Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue N.W. Mail Code 1101A Washington, D.C Hon. Heather McTeer Toney, Regional Administrator Environmental Protection Agency Atlanta Federal Center 61 Forsyth Street, SW Atlanta, GA Hon. Lance LeFleur, Director Alabama Department of Environmental Management P.O. Box Montgomery, AL

4 Environmental Defense Alliance c/o Law Office of David A. Ludder 9150 McDougal Ct. Tallahassee, FL (850)

5 AlaFile E-Notice 03-CV To: ROBERT D. TAMBLING NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA STATE OF ALABAMA EX REL LUTHER STRANGE, AG ET AL V. ALABAMA DEPARTMENT 03-CV The following complaint was FILED on 11/13/2014 2:38:45 PM Notice Date: 11/13/2014 2:38:45 PM TIFFANY B. MCCORD CIRCUIT COURT CLERK MONTGOMERY COUNTY, ALABAMA 251 S. LAWRENCE STREET MONTGOMERY, AL

6 State of Alabama Unified Judicial System Form ARCiv-93 Rev.5/99 COVER SHEET CIRCUIT COURT - CIVIL CASE (Not For Domestic Relations Cases) GENERAL INFORMATION Case Number: 03-CV Date of Filing: 11/13/2014 ELECTRONICALLY FILED 11/13/2014 2:37 PM 03-CV CIRCUIT COURT OF MONTGOMERY Judge Code: COUNTY, ALABAMA TIFFANY B. MCCORD, CLERK IN THE CIRCUIT OF MONTGOMERY COUNTY, ALABAMA STATE OF ALABAMA EX REL LUTHER STRANGE, AG ET AL v. ALABAMA DEPARTMENT OF YOUTH First Plaintiff: Business Government Individual Other First Defendant: Business Government Individual Other NATURE OF SUIT: TORTS: PERSONAL INJURY WDEA - Wrongful Death TONG - Negligence: General TOMV - Negligence: Motor Vehicle TOWA - Wantonnes TOPL - Product Liability/AEMLD TOMM - Malpractice-Medical TOLM - Malpractice-Legal TOOM - Malpractice-Other TBFM - Fraud/Bad Faith/Misrepresentation TOXX - Other: TORTS: PERSONAL INJURY TOPE - Personal Property TORE - Real Property OTHER CIVIL FILINGS ABAN - Abandoned Automobile ACCT - Account & Nonmortgage APAA - Administrative Agency Appeal ADPA - Administrative Procedure Act ANPS - Adults in Need of Protective Services OTHER CIVIL FILINGS (cont'd) MSXX - Birth/Death Certificate Modification/Bond Forfeiture Appeal/Enforcement of Agency Subpoena/Petition to Preserve CVRT - Civil Rights COND - Condemnation/Eminent Domain/Right-of-Way CTMP-Contempt of Court CONT-Contract/Ejectment/Writ of Seizure TOCN - Conversion EQND- Equity Non-Damages Actions/Declaratory Judgment/Injunction Election Contest/Quiet Title/Sale For Division CVUD-Eviction Appeal/Unlawfyul Detainer FORJ-Foreign Judgment FORF-Fruits of Crime Forfeiture MSHC-Habeas Corpus/Extraordinary Writ/Mandamus/Prohibition PFAB-Protection From Abuse FELA-Railroad/Seaman (FELA) RPRO-Real Property WTEG-Will/Trust/Estate/Guardianship/Conservatorship COMP-Workers' Compensation CVXX-Miscellaneous Circuit Civil Case ORIGIN: F INITIAL FILING A APPEAL FROM DISTRICT COURT O OTHER R REMANDED T TRANSFERRED FROM OTHER CIRCUIT COURT HAS JURY TRIAL BEEN DEMANDED? Yes No RELIEF REQUESTED: MONETARY AWARD REQUESTED NO MONETARY AWARD REQUESTED ATTORNEY CODE: TAM001 11/13/2014 2:37:23 PM /s/ ROBERT D. TAMBLING MEDIATION REQUESTED: Yes No Undecided

7 THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA ELECTRONICALLY FILED 11/13/2014 2:37 PM 03-CV CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA TIFFANY B. MCCORD, CLERK STATE OF ALABAMA ex rel., ) LUTHER STRANGE, ) ATTORNEY GENERAL ) and the ALABAMA DEPARTMENT of ) ENVIRONMENTAL MANAGEMENT, ) ) Plaintiffs, ) Civil Action No. ) CV v. ) ) THE ALABAMA DEPARTMENT ) OF YOUTH SERVICES, ) ) Defendant. ) COMPLAINT The Parties 1. The Attorney General is authorized by Ala. Code 22-22A-5(1), (m), 22-22A-5(12), and 22-22A-5(18) (2006 Rplc. Vol.) to enforce the provisions of the Alabama Water Pollution Control Act (hereinafter AWPCA ), which is found at Ala. Code through (2006 Rplc. Vol.). Specifically, Ala. Code 22-22A-5(18)(b) (2006 Rplc. Vol.) authorizes the Attorney General to bring a civil action for violation of permits issued under the AWPCA and for unpermitted discharges of pollutants in violation of said Act. In addition, Ala. Code 22-22A-5(18)(c) (2006 Rplc. Vol.) authorizes the Attorney General to recover civil penalties for such permit violations and unpermitted discharges of pollutants, providing for a maximum of $25, per violation. The Attorney General is authorized by Ala. Code (2006 Rplc. Vol.) to institute and prosecute, in the name of the State, all civil actions and other proceedings necessary to protect the rights and interests of the State. 2. The Alabama Department of Environmental Management (hereinafter the 1

8 Department or ADEM ) is a duly constituted department of the State of Alabama pursuant to Ala. Code 22-22A-1 through 22-22A-16 (2006 Rplc. Vol.). Pursuant to Ala. Code 22-22A- 4(n) (2006 Rplc. Vol.), the Department is the state agency responsible for the promulgation and enforcement of water pollution control regulations in accordance with the Federal Water Pollution Control Act, 33 U.S.C to In addition, the Department is authorized to administer and enforce the provisions of the AWPCA. 3. The Alabama Department of Youth Sevices (hereinafter DYS ) is a governmental entity and a "person" within the meaning of that term as defined under Code of Alabama (1975), (b)(7) of the AWPCA. Jurisdiction and Venue 4. The Court has jurisdiction and venue over this Complaint pursuant to Ala. Code 22-22A-5(18)b. and 22-22A-5(19) (2006 Rplc. Vol.). General Allegations 5. Pursuant to the National Pollutant Discharge Elimination System (hereinafter NPDES ) program administered by ADEM and approved by the Administrator of the U.S. Environmental Protection Agency pursuant to 402 of the Federal Water Pollution Control Act, 33 U.S.C. 1342, the Department reissued NPDES Permit Number AL (hereinafter the Permit ) to the Defendant on October 7, 2004, which became effective November 1, The Permit established limitations and conditions on the discharge of pollutants from a point source, described therein as outfall 001, to an unnamed tributary to Butler Creek, a water of the State. The Permit required that the Defendant monitor its discharges and submit periodic Discharge Monitoring Reports to the Department describing the results of the monitoring. The Permit also required that the Defendant maintain in good working order all systems used by the Defendant to 2

9 achieve compliance with the terms and conditions of the Permit. Defendant s permit expired October 31, Permit Condition II.E.1.a requires that an application for permit renewal or a written notification of intent to discontinue discharging beyond the Permit s expiration date be submitted to the Department at least 180 days prior to its expiration. The application for permit renewal or notification of discontinuance was due on May 4, The Department did not receive an application for permit renewal or notification of discontinuance as required. 7. Ala. Code (i)(3) (2006 Rplc. Vol.) requires that a permit be obtained prior to discharging any new or increased pollution into any water of the State. From November 2009 through August 2014, and on additional dates to be determined through discovery, the Defendant discharged new or increased pollution into the waters of the state without a permit. 8. The Department issued Unilateral Order No WP (hereinafter the Unilateral Order ) to DYS on October 6, The Unilateral Order required DYS to pay a civil penalty, submit an Engineering Report and implement the recommendations included in the Engineering Report, complete certain projects included in paragraph D of the Order, submit a Final Compliance Plan and implement the recommendations included in the Final Compliance Plan, submit Semi-Annual Progress Reports, and comply with the Permit limitations for Total Ammonia as Nitrogen, ph, Dissolved Oxygen, Fecal Coliform, Carbonaceous Biochemical Oxygen Demand (hereinafter CBOD ), Total Suspended Solids (hereinafter TSS ), Percent Removal of CBOD, and Percent Removal of TSS. DYS failed to submit and complete all requirements of the Unilateral Order by the dates required in the Unilateral Order. A copy of the Unilateral Order is attached as Exhibit 1 to this Complaint. 3

10 Count I 9. Plaintiffs repeat, replead and incorporate by reference paragraphs 1 through 8, above. 10. The above violations are due to be abated by injunction. Count II 11. Plaintiffs repeat, replead and incorporate by reference paragraphs 1 through 10, above. 12. Pursuant to Ala. Code 22-22A-5(18) (2006 Rplc. Vol.), a civil penalty is due to be assessed for the referenced violations. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: A. Take jurisdiction over this matter. B. Adjudge and declare that the Defendant violated the limitations, terms, and conditions of the Permit. C. Adjudge and declare that the Defendant caused or allowed discharges of pollutants from its wastewater treatment facility into a water of the State in violation of the limitations set forth in the Permit. D. Order the Defendant to take action to ensure that similar violations of the AWPCA will not recur in the future. E. Assess a civil penalty against the Defendant and in favor of Plaintiffs pursuant to Ala. Code 22-22A-5(18)b. and c. (2006 Rplc. Vol.) for each and every violation of the Permit alleged in this Complaint. F. Tax the costs of this action against the Defendant. 4

11 G. Order such other relief that the Court deems proper. Respectfully submitted, s/ Robert D. Tambling Robert D. Tambling (TAM001) Assistant Attorney General ADDRESS OF COUNSEL: Office of the Attorney General 501 Washington Avenue Montgomery, AL Telephone: (334) s/ Schuyler Espy Schuyler Espy (KEA009) Assistant Attorney General ADDRESS OF COUNSEL: Alabama Department of Environmental Management Office of General Counsel P.O. Box Montgomery, AL Telephone: (334) Fax: (334)

12 ELECTRONICALLY FILED 11/13/2014 2:37 PM 03-CV CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA TIFFANY B. MCCORD, CLERK ALABAUA DEPART EITT OF ETUROIVIIEITTAL UAITAGWEITT IN THE MATTER OF: Statc of Alabana D.Irortncat of Youth Ssrvlccr [t. [elgr Canpur Conplcx Lagoon t. fetgr l[ortgoncry Countyl, AL rpdea AL ) order NO. 09-OO l-wp TIIUD'J!rcS Purouant to the provisions of the Alabama Environmental Management Act, Ala, Code $$ 22-22A- I through 22-22A-16 (2006 Rplc. Vol.), and the Alabama Water pollution Control Act, Ala. Code Sg l throug}r t4 (2006 Rplc. Vol.), the ADEM Administrative Code of Regulations (hereinafter "ADEM Admin. Code r.") promulgated pursuant thereto, and g 402 of the Federal Water Pollution Control Act, 33 U.S.C. S 1342, the Alabama Department of Environmental Management (hereinafter "the Department,) makes the following FINDINGS: 1. the State of Alabama Department of Youth Services (hereinalter "Permittee") operates a wasteurater treatment lagoon known as the Mt. Meigs Campus Complex Lagoon located on IOOO Industrial School Road in Mt. Meigs, Montgomery County, Alabama. The wastewater treatment lagoon discharges pollutants from a point souroe into an unnamed tributary of Bufler Creek, a water of the state. 2. The Department is a duly constituted department of the State of Alabama pursuant to Ala. Code gg 22-22A-l thrortglt 22-22A-16 (2006 Rp1c. Vol.). 3. Pursuant to AIa. Code g 22-22A-alg (2006 Rplc. Vol.), the Department is the state agency responsible for the promu.lga.tion and enforcement of water pollution control regulations in accordance with the federal water pollution control Act, 33 u.s.c. ss 1251 to In addition, the Department is authorized to administer and enforce E ag 2 9 4

13 the provisions of the Alabama water Pollution control Act, Ala. code gg l through (2006 Rplc. Vol.). +. On October 7, 2OO4, the DeparEnent re-issued NpDES permit Number 41, (hereinafter "the Permit") to tl:e permittee, establishing limitations on the discharge of pollutants from a point source, designated therein as outfall number ool, into an unnamed tributary of Butler creek. The permit requires that the permittee monitor its discharges and submit periodic Discharge Monitoring Reports (hereinafter "DMRs") to the Department describing the results of the monitoring. The permit also requires that t]le Permittee maintain in good working order all systems used by the Permittee to achieve compliance with the terms and conditions of the permit. 5. The DMRs submitted to the Department b5r the permittee indicate that the Permittee has discharged pollutants from outfatl 001 into the aforementioned unnamed tributary of Butler creek in violation of the limits irnposed by the permit. The months the viol,ations occurred along with the parameters violated are listed in Attachment l. 6. On Februar5r 2a,2OO7, t}te Permitte was issued a Notice of Violation (hereinafter "Nov) by the Department regarding efiluent violations that occurred during the months of March 2005 through December A reaponse to this NOV was required within thirty days and to date, a response has yet to be received by the Department. The response was due on March 28, The Permittee has failed to submit DMRs for the months of April 2OO7 through Februar5r 2O08, To date, the Department has not received these DMRS. 8. The Permittee has violiated Part II.A,3 of NpDES permit No. ALOOSSTTT by operating the wastewater lagoon without a certifred operator from April l, 2007 through Octnber U, 2OO7, 9. Pursuant to Ala. Code g 22-22A-5(fSlc (2006 Rplc. VoI.), in determining the amount of any penalty, t].e Department must gi\re consideration to the seriousness of the violation, including any irreparable harm to the environment and any threat to the health or safef of the public; the standard of care manifested by the permittee; the

14 economic benefit that delayed compliance may have conferred upon the permittee; the natur, extent and degree of success of the Permittee,s efforts to minimize or mitigate thc effects of such viotration upon the environment; the permittee's history of prwious violations; and t]:e abiligr of the Permittee to pay such penalty. Any civil penalty as$ess d pursuant to this authority shall not be less than $ or orceed $25,OOO.OO for each violation, provided however, that the total penalt3r assessed in an order issued by the Depa.rtrnent shall not exceed $ Each day that such violation continues shall constitutc a separate violation. In arriving at this civil penalty, ttre Department has considered the following: A. SERIOUSNESS OF THE VIOLATION: Violations consisted of exceeding the weekly and monthly average permit limitations for Total suspended solids (hereinafter "TSS), total ammonia-nitrogen (hercinafter 'NH3-N,J, carbonaceous biochemical o:rygen demand (hereinafter "CBODs"), and Fecal Coliform (hereinafter.fc"), and percent removal for Carbonaceous Biochemical Orygen Demand and Total Suspended Solids. Viol,ations also consisted of exceeding the daily minimum and maximum permit limitations for Dissolved Orygen (hereinafter 'DOJ and ph. In addition, the permittee operated the wastewater ]agoon without a certified operator from April 2007 through October 2007 and failed. to submit DMRs for April 2007 through January 2008 as required by the Permit. The Permittee also failed to respond to the Department,s February 2A,2OO7 NOV. The Department has no evidence of irreparable harm to the envimnment or of any threat to the health and safety of the public as a result of these violations. B. THE STANDARD OF CARE: The Permittee installed the infrastructure, including a lift pump, to access the City of Montgomery,s selsage treatment system and thereb5r cease all surface discharges. Hourever, prior to authorization to discharge, tfie City of Montgomery required a smoke test, r pairs to the lines on the permittee,s prop rty, and installation ofa grinder pump. To date authorization by the City of Montgomery to discharge into the city's sewage treatment system as not been received by

15 the Permittee. The Permittee failed to maintain in good working order all systems used by the Permittee to achieve compliance with the terms and conditions of the.permit, The Permittee also fafled to maintain a system for ensuring reporting occurs in accordance with Permit requirements, C. ECONOMIC BENEFIT WHICH DEI,AYED COMPUANCE MAY HAVE CONFERRED: Ttre Department has been unable to asoertain if there has been a significant economic benefit conferred b5r the delay of compliance witl: pcrmit limitations. D. EFFORTS TO MINIMIZE OR MITIGATE THE EFFECTS OF THE VIOI"CTION upon THE ENVIRoNMENT: There are no known environmental effects as a result of the violatons cited in this Order. E. HISTORY OF PREVIOUS VIOLATIONS: The permittee has irrcurred NH3-N and DO violations along with CBODs and TSS percent removal violations in the period prior to the two year period addressed by this Consent Order. The Depa.rtment issued warning letters on April 22,20O5 arld August 24, 20O5, and a Notice of Violation on February 28, 2OO7 as a result of prior permit violations. The prior warning letters and the Notice of violation have been unsuccessful at resolving the ongoing permit violations. F. THE ABIIJTY TO PAY: Based on available information, the Department believes that the Permittee has a limited ability to pay a civil penalty. The Department has carefully considered the six statutory penalty factors enumerated in Ala. Code g OaF (2006 Rplc. Vol.), as well as the need for timely and effective enlorcement and. concludes that the penalty amount is appropriate and consistent with the historical penalty range imposed by the Department for similar violations, as follows: Violation TVpe PenalW Ranee for Violation TVoe Violation of Established Discharge Limits: Failure to Respond: Failure to Report: Opcrational: $10o - $12,OO0 $1,000 - $2s,000 $r00 - $2,soo $r,000 - $10,000

16 OICDER Based on the foregoing FINDINGS and pursuant to Ala. Code Sg 22-22A-1O,22_ 224-5(t21,22-22A-5(18l,, and, lil (2006 Rplc. Vol.l, it i$ hereby ORDERED: A. That, not l,ater than forty-five days after receipt of this Order, the permittee shall pay to the Department a civil penalty in the amount of gl2,50o.oo for tl:e violations stated herein. B. That all penalties due pursuant to tj:is Order shall be made payable to the Alabama Department of Environmental Management by certified or cashier,s check and shall be remitted to: Office of General Counsel Alabama Department of Environmental Management P.O. Box Montgomery, Alabama 36I3G C. That the Permittee shall prepare and submit to ttre Department, not later than 45 days after the issuance of this Order, an Engineering Report that identilies the potential causes of noncompliance and that summarizes an investigation of the changes necessary for the Permittee to implement to achieve compliance with the permit. The Engineering Report must include a schedule for implementation (i.e., a Compliance plan). At a minimum, the Permittee's Engineering Report must address the need for changes in maintenance and operating procedures, the need for modification of existing treatment works and collection system components, and the need for new or additionat treatment works and collection system components. The Engineering Report must be prepared by a professional engineer licensed to practice in the State of Alabama. If the Department determines through its review of the submitted Engineering Report that the submittal is not sulficient to accomplish compliance urith the NpDEs permit, then the permittee must modi.fu the Engineering Report so that it does accomplish compliance. Modifications to the Engineering Report, if required, shall be submitted to the Department no later than thirty days after receipt of the Department's comments. The permittee shall complete

17 implementation of the recommendations made in the Engineering Report within 670 days from the date of issuance of tj:is Order. D. That the Permittee agrees to complete the following projects within the timeframe specifred in this Provision. Plolcct A: VldGo llapoctlon atrd Tcstltu of Enl.tln( Collecfio! Sv3tcn - Compliance date is 95 days from the effective date of this Order. Prolect B: Deslsn end CoE tnrcfioa arercment - Rchab and point Rcoalr of Hrttns Collectloa Sv.tGm - Compliance date is 195 days from the effective date of this Order. Proioct C3 Corrnlctc trltral DGllg! - On-.ltc ttrartewatgr Treatrncrt or Force Udp to tr[ont(oe3rlr Industrlal Rart - Compliance date is 240 days from the effective date of this Order. E. That the Permittee shall prepare and submit to the Department, not later tlmn 365 days alter tle issuance of this order, a Final compliance plan that identifres the corrective action option selected, that is: whether connection to the Montgomery wastewater Treatment Plant or upgrade of the on-eite wastewater Treatment system will be accomplished. The Engineering Report must include a schedule for implementation (i.e., a Compliance Plan). The Engineering Report must be prepared by a professional engineer licensed to practice in the state of Alabama. If the Department determines through its review of the submitted Engineering Report that the submittal is not sulficient to accomplish compliance with the NPDES permit, then the permittee must modiry the Engineering Report so that it does accomplish compliance. Modifications to tjte Engineering Report, if required, shall be submitted to the Department no later than thirty days after receipt of the Department's comments. The permittee shall complete implementation qf the recommendations made in the Final compliance plan within 73o days from the date of issuance of this Order. F. That the Permittee shall prepare and submit Semi-Annual progress Reports to the Depa.rtment describing in detail t]:e permittee's progress towards achieving

18 compliance wit]. items prescnted in the compliance Plan. semi-annual progress Reports are to be submitted to the Departmcnt beginning six months after receipt of this order and continuing wery six months thereafter that the permittee's performance obligations under this Order remain incomplete. In addition, not liater than fourteen days following each applicable due date contained in tfiis Order, tlte permittee shall submit a written notice of noncompliance with the requirements of that if applicable. Notices of noncompliance shall state the cause of noncompliance and the corrective action taken and shall also describe the Permittee's ability to comply with any remaining requirements of this Order. G. That, not later tl:an 730 days after issuance of this Order, the permittee shall comply with the Total Ammonia Nitrbgen, ph, DO, FC, CBODs, TSS, CBOD5 and TSS o/o removal limitations imposed by NPDES Permit Number ALOOSSZZT. The Permittee shall comply with all other terms, conditions, and limitations of its NpDES Permit immediately upon receipt of this Order. H. That this Order shall not alfect the permittee's obligation to comply with any Federal, State, or local laws or regulations. I. That final approval and issuance of this Order are subject to the requirement that the Department provide notice of proposed Orders to tjre public, and tl:at the public have at least thirty days within which to comment on the proposed Order. J. That, should any provision of this Order be declared by a court of competent jurisdiction or the Environmental Management Commission to be inconsistent with Federal or State law and, therefore, unenforceable, the remaininb provisions hereof shall remain in full force and effect. K. That, except as otherv'/ise set forth herein, tlis Order is not and ghall not be interpreted to be a permit or modifrcation ofan odsting permit under Federal, State or local law, and shall not be construed to waive or relieve the permittee of its obligations to comply in the future udth any permit.

19 L. That the issuance of this Administrative Order does not preclude t]:e Department from seeking criminal fines or other appropriate sanctions or relief against tlle Permittee for the violations cited hercin. M, That failure to comply with the prorrisions of this Administrative Order shall constitute cause for commencement of lega.l action by the Department against the Permittee for recovery of additional civil penalties, criminal fines, or other appropriate sanctions or relief. ordered and ISSUED this 6th day of october Onis -Ttey' Gler6, III Director Alabama Depa.rtment of Environmental Management 1400 Coliseum Boulevard Montgomery, AL ( OO

20 Attachment 1 ALOO58777 MT MEIGS CAMPUS COMPLEX LAGOON DMR Value Limlt Unlts Awragtng Ttms Ouffall ld: 00'l I August, BOD CARBONACEOUS SUMMER mo/l Monthly Arrerage Woekly Averago il.7 15 mgl CBOD 5 Dav Porcent R rnoyal Perc ol DISSOLVED OXYGEN mdl F. COLIFORM SUMMER TIME ets SOLIDS SUSP PERCENT I 065 TSS ,r/100 mr,1100 ml SU Porcant BOD CARBOMCEOUS SUMMER mdl '15 mg/ CBOD 5 Dav Percent Removal D!SSOLVED OXYGEN Pageld2 90 mgr'l 135 mdl September, 2006 BOD CARBONACEOUS SUMMER 't3 14 2A.1 '10 mgl mgfl CBOO 5 Dav Percent Remo\ral Percent DISSOLVED O)OGEN 'I 6 mg[ F. COLIFORM SUMMER TIME 15 17U1 2OO i{too mt t #/100 ml NITROGEN AMMONIA TOTAL mgd mgl Ets SU SOLIDS SUSP PERCENT Percent TSS mgr'l mdl October, Percent mgfl iilonthly Average Daily Minimum Iiionthly Geo Mean Oally Maximum Daily li,laximm Monthly AveEge Mmt' y Average We kly At/er8ge Mmlhly Arrerage Weekly Ar rage Monlhly Average Dally Minimum Monhly Geo Mean Da y iraxlmum lllonth,y AveEgo Weekly A\r rage Daily Minimum l4ontrtly A\ieragB ircnthly Alrerage We kly Ar, rage Moothly Averago Weekly Awrage Monthly Av rage Daily Mlnimum E e, 33 u FECAL COLIFORM #10O ml #100 ml NITROGEN Aiifit ON A TOTAL lhday lbs/day mg[ mg/l PH I 8.5 SU TSS mgr'l November, 20oo DISSOLVED OXYGEN FECAL COLIFORM mgi 1000 #100 ml 2000,t/100 ml NITROGEN AMMONIA TOTAL M mgr'l 39 I I mgl December, 2006 BOD CARBONACEOTJS 40 2A.7 24 mgr'l DISSOLVED OXYGEN 4'l mg/t FECAL COLIFORM rj 1000,V100 ml 43 1' #/100 ml NITROGEN AMMONIA TOTAL O5 mg mg/l January, 2007 DISSOLVED OXYGEN ms/l FECAL COLIFORM 21fi rfl)o #/100 ml #fi00 ml NITROGEN AMMONIA TOTAL mgfl il mgn February 2007 BOD CARBONACEOUS mgd mgil CBOD 5 Dav Percent Removal Percont DISSOLVEO OXYGEN Illonthly Geo Mean Dally Maximum iroothly A\r rag6 Weekly Awrago Mmthly Av rage W ekly Awrage Daily lvlaxlmum Monthly Arerago Daily Minimum Monf{y Geo Mean Daily Maximum Mont y Average Weekly Arr'erage Monthly Average Daily Minimum Monthly Geo Mean Dally Maximum Monthly Awrags Weekly A\ierage Daily Minimum Monthly G o i,{ean Daily Maximum Monthly Awrage Weekly Averag Monthly Average Weekly A\re.age Monthly Average

21 ALOO58777 MT MEIGS CAMPUS COMPLEX LAGOON DMR Valu6 Linit Units Aversglng Tim mdl FECAL COLIFORM #100 ml NITROGEN AMMONIA TOTAL mg mdl EE SU SOLIDS SI.XiP PERCENT P rcent TSS fi mg/l A1 17O 135 mg/l March, 2007 BOD CAREONACEOUS :5 36 PH u '1o TSS mgll mgfl SU mgf mgtfi Daily Minimum iibnthly Goo Msan ironthly Averagp Weskly Averags Daily tvbxlmum Monthly Ayerago I\ronhly A\6rags Weekly A\rErage I$onthly Average We kly Awrage Dally Maximum lironthly Awrago Weekly Awrag PaEo2 d 2

22 AlaFile E-Notice 03-CV Judge: WILLIAM A. SHASHY To: ESPY SCHUYLER KEAT NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA STATE OF ALABAMA EX REL LUTHER STRANGE, AG ET AL V. ALABAMA DEPARTMENT 03-CV The following matter was FILED on 5/19/2015 3:31:49 PM Notice Date: 5/19/2015 3:31:49 PM TIFFANY B. MCCORD CIRCUIT COURT CLERK MONTGOMERY COUNTY, ALABAMA 251 S. LAWRENCE STREET MONTGOMERY, AL

23 ELECTRONICALLY FILED 5/19/2015 3:31 PM 03-CV CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA TIFFANY B. MCCORD, CLERK IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA STATE OF ALABAMA EX REL LUTHER ) STRANGE, AG, ALABAMA DEPARTMENT OF ) ENVIRONMENTAL MANAGMENT, Plaintiffs, ) ) V. ) Case No.: CV ) ALABAMA DEPARTMENT OF YOUTH ) SERVICES, Defendant. ) CONSENT ORDER ON SETTLEMENT AGREEMENT AND DISMISSAL I. INTRODUCTION A. The State of Alabama, by the authority of Attorney General Luther Strange and the Alabama Department of Environmental Management (collectively Plaintiffs ) by and through their undersigned counsel, filed a complaint in this action on November 13, 2014, alleging that the Alabama Department of Youth Services ("Defendant") is in violation of the Alabama Water Pollution Control Act, , et seq., Code of Alabama, 1975 ("the Act"). The Plaintiffs are seeking injunctive relief and the assessment of civil penalties, pursuant to 22-22A-5(18)b. of the Code of Alabama, The complaint alleges that the Defendant operates a wastewater treatment lagoon, known as the Mt. Meigs Campus Complex Lagoon, located at 1000 Industrial School Road in Mt. Meigs, Montgomery County, Alabama, without coverage under a valid NPDES Permit. The Mt. Meigs Campus Complex Lagoon discharges to Butler Creek, a water of the State. B. Defendant, the Alabama Department of Youth Services, is a "person" within the

24 meaning of (b)(7) of the Act. C. The Plaintiffs and Defendant have consented to the entry of this Settlement Agreement without further adjudication of any of the factual or legal issues raised by the complaint herein. D. NOW THEREFORE, without admission by the Defendant of the nonjurisdictional allegations in the complaint, without further adjudication of any issue of fact or law pertaining to this action, and upon the consent and agreement of the Parties to this Settlement Agreement, it is hereby ORDERED, ADJUDGED and DECREED as follows: II. JURISDICTION This Court has jurisdiction over the subject matter herein and the Parties to this action pursuant to Section 22-22A-5, of the Code of Alabama, 1975, as the complaint states claims for injunctive relief and civil penalties upon which relief may be granted against the Defendant. Authority to bring this suit is vested in the Attorney General pursuant to Section 22-22A-5, Code of Alabama, III. VENUE Venue is proper in the Circuit Court of Montgomery County, Alabama because it is the judicial district in which the Mt. Meigs Campus Complex Lagoon and Collection System is located, and in which the alleged violations occurred. IV. PARTIES A. The Plaintiff, State of Alabama, is acting at the request and on behalf of the Attorney General of the State of Alabama. B. The Plaintiff, the Alabama Department of Environmental Management

25 ( ADEM ) is the State environmental agency responsible for administering the Act. C. The Defendant is a State agency in the State of Alabama, formed under the laws of the State of Alabama, and is a "person" within the meaning of Section (b)(7) of the Act. V. BINDING EFFECT The provisions of this Settlement Agreement shall apply to, and be binding upon, the Defendant, and its officers, directors, employees, agents, servants, successors, and assigns, and upon all persons, firms and corporations in active concert or participation with the Defendant and assigns, upon the State of Alabama and its representative, and upon ADEM and its representative. VI. OBJECTIVES It is the express purpose of the Parties entering into this Settlement Agreement to further the objectives set forth in Section of the Act, and to resolve certain issues alleged by the State in the complaint. In light of these objectives, the Defendant agrees, inter alia, to cause the expeditious implementation of the remedial measures as herein set forth and, in accordance with schedules approved by the Court, to take all appropriate steps necessary to cease the unpermitted discharge or obtain coverage under an NPDES Permit, and to prevent bypasses and unpermitted discharges of untreated or partially treated wastewater. In addition, Defendant agrees to comply with the terms and conditions of its NPDES permit(s) as referenced in Section VII.D., herein, and to submit to ADEM all NPDES reports required by such NPDES permit(s) in a timely manner and do all lawful acts necessary to effectuate the provisions of this Settlement Agreement.

26 VII. REMEDIAL ACTIONS A. Within ninety days of the effective date of this Settlement Agreement, the Defendant shall submit an Engineering Report prepared by an engineer licensed in the State of Alabama to the Alabama Attorney General s Office and ADEM. The Engineering Report shall include either a schedule for permanent cessation of discharges to waters of the State from the Mt. Meigs Campus Complex Lagoon, or, should the Defendant propose to continue to discharge to a water of the State, a complete application for reissuance of NPDES Permit No. AL and the applicable application fee. Should the Engineering Report include a schedule for permanent cessation of discharges to waters of the State from the Mt. Meigs Campus Complex Lagoon, it must also include a plan to ensure no future discharges from the lagoon (i.e., plan to close the lagoon, routing of lagoon flows to the City of Montgomery, etc.). The Engineering Report shall also address the need for changes in maintenance and operating procedures, the potential for infiltration and inflow, the need for modification of existing treatment and collection system works, and the need for new or additional treatment and collection system works, as necessary. The Engineering Report shall include a schedule for implementation (i.e., a Compliance Plan) and cost of equipment and/or repairs needed to achieve compliance, if known. If ADEM determines through its review of the Engineering Report that the report is not sufficient to meet the terms of this Settlement Agreement, then the Report shall be modified by the Defendant so that it does meet the terms. Modifications to the Engineering Report, if required, shall be submitted to ADEM no later than thirty days after the Defendant s receipt of ADEM s comments. Any corrective action accepted by ADEM shall be incorporated by reference into this Settlement Agreement. B. Within ninety days of the issuance of this Consent Decree, the Defendant

27 shall submit to ADEM written confirmation that the operator of the Mt. Meigs Complex Lagoon is certified equivalent to the provisions of ADEM Admin. Code chap as competent to operate the classification of plants or systems to which the Mt. Meigs Complex Lagoon is classified. C. The Defendant shall prepare and submit detailed semi-annual Progress Reports to ADEM describing the Defendant s progress towards achieving compliance with the Engineering Report. ADEM must receive the Progress Reports no later than 180 days after the date of issuance of this Settlement Agreement and continuing every 180 days thereafter that the Defendant s performance obligations under this Settlement Agreement remain incomplete. In addition, the Defendant shall submit a written notice of noncompliance with each imposed requirement, if applicable. The Defendant shall submit the notice of noncompliance to ADEM no later than fourteen days following each applicable due date contained in this Settlement Agreement. Notices of noncompliance shall state the cause of noncompliance and the corrective action taken and shall also describe the Defendant s ability to comply with any remaining requirements of this Settlement Agreement. D. Defendant shall permanently cease all discharges from the Mt. Meigs Campus Complex Lagoon or achieve and maintain compliance with any issued NPDES permit(s) by no later than 730 days following the entry of this Settlement Agreement. E. The Defendant shall submit a certification to the Alabama Attorney General s Office and ADEM, signed by a professional engineer licensed to practice in the State of Alabama, indicating whether or not the Defendant is in compliance with all requirements of this Settlement Agreement. The Defendant shall submit such certification to the Alabama Attorney General s Office and ADEM no later than 760 days after the date of issuance of this

28 Settlement Agreement. VIII. EFFLUENT LIMITATIONS Nothing in this Settlement Agreement shall relieve the Defendant of its obligation to comply at all times with all effluent limitations in its NPDES Permit(s), if applicable, including any modifications, extensions or reissuances. IX. CIVIL PENALTY Defendant asserts that it cannot afford to pay a civil penalty for the violations alleged in the complaint. Therefore, within ninety days of the date of entry of this Consent Decree, Defendant will complete and submit to the Office of Attorney General and ADEM an assessment of its ability to pay a civil penalty using EPA s Munipay Financial Enforcement Model or an alternate approach acceptable to the Plaintiffs. If it is determined that Defendant is able to pay a civil penalty, then the Parties agree to amend this Settlement Agreement such that it assesses a civil penalty commensurate with Defendant s ability to pay. A. Milestones X. STIPULATED PENALTIES 1. The Defendant shall pay to the State of Alabama stipulated civil penalties for each day it fails to meet any of the milestone dates or satisfy any of the requirements set forth in or established by Section VII. A, B., C., E, and Section IX herein. The stipulated civil penalties for failure to meet each milestone or any requirement date, except for Force Majeure Acts as hereinafter defined shall be as follows: Period of Noncompliance Penalty per Day per Violation

29 1st to 30th day $100 31st to 60th day $200 After 60 days $300 B. Stipulated civil penalties shall automatically begin to accrue on the first day the Defendant fails to meet any of the schedules of performance required by Sections VII. A., B., C., and E. of this Settlement Agreement. Payment of stipulated civil penalties as set forth above shall not abate any other rights or remedies which may be available to the State of Alabama or its agencies by reason of the Defendant s failure to comply with requirements of this Settlement Agreement, and all applicable federal, state or local laws, regulations, NPDES permit(s) and all other applicable permits. Notification to the Defendant by ADEM of the assessment of any stipulated penalty is not required. C. Stipulated civil penalties shall be paid by submitting a cashier's or certified check payable to the State of Alabama and tendered to the Attorney General, 501 Washington Avenue, Montgomery, Alabama Copies of the registered or certified check and the transmittal letter shall be sent simultaneously to the General Counsel, Alabama Department of Environmental Management, 1400 Coliseum Boulevard, P.O. Box , Montgomery, Alabama D. In the event that a stipulated civil penalty is not paid when due, the stipulated civil penalty shall be payable with interest from the original due date to the date of payment, at the statutory judgment rate set forth at 28 U.S.C (a). Under no circumstances shall the Stipulated Penalties exceed twenty-thousand dollars ($20,000). XI. FORCE MAJEURE A. "Force Majeure" for the purposes of this Settlement Agreement is defined as an

30 event arising from causes beyond the control of the Defendant or of any entity employed by the Defendant, including its consultants and contractors, which delays or prevents the performance of any obligation under this Settlement Agreement. B. When circumstances are occurring or have occurred which may delay the completion of any requirement of this Settlement Agreement, whether or not due to a Force Majeure event, the Defendant shall so notify Plaintiffs in writing within fifteen days after the Defendant knew, or should have known, of the delay or anticipated delay. The notice shall describe in detail the basis for the Defendant s contention that it experienced or anticipates that it will experience a Force Majeure delay, the anticipated length of the delay, the precise cause or causes of the delay, the measures taken or to be taken to prevent or minimize the delay, and the timetable by which those measures will be implemented. Failure to so notify the Plaintiffs shall constitute a waiver of any claim of Force Majeure as to the event in question. C. If the Plaintiffs find that a delay in performance is, or was, caused by a Force Majeure event, they shall extend the time for performance, in writing, for a period to compensate for the delay resulting from such event and stipulated penalties shall not be due for such period. In proceedings on any dispute regarding a delay in performance, the dispute resolution provisions of Section XII. RETENTION OF JURISDICTION/DISPUTE RESOLUTION shall apply, and the Defendant shall have the burden of proving that the delay is, or was, caused by a Force Majeure event, and that the amount of additional time requested is necessary to compensate for that event. D. Compliance with a requirement of this Settlement Agreement shall not by itself constitute compliance with any other requirement. An extension of one compliance date based on a particular event shall not automatically extend another compliance date or dates. The

31 Defendant shall make an individual showing of proof regarding the cause of each delayed incremental step or other requirement for which an extension is sought. The Defendant may petition for the extension of more than one compliance date in a single request. XII. RIGHT OF ENTRY Without limiting the authority otherwise available to it, the State, ADEM, and its authorized representatives and contractors shall have authority at all times, upon the presentation of credentials, to enter the premises of the Defendant to: 1. Monitor the program of activities required by this Settlement Agreement; 2. Verify any data or information submitted to the State or ADEM; 3. Obtain samples from the municipal treatment and collection system; 4. Inspect and evaluate any portions of the Defendant s System; and 5. Inspect and review any records required to be kept under the terms and conditions of this Settlement Agreement or any NPDES Permit and the AWPCA. This provision of this Settlement Agreement is in addition to and in no way limits or otherwise affects the State or ADEM s statutory authorities to conduct inspections, to require monitoring and to obtain information from the Defendant as authorized by law. 6. The State and ADEM agree to provide the Defendant an opportunity to obtain split samples of wastewater samples taken by ADEM from the Defendant s System. The State and ADEM further agree to provide the Defendant with the quality assured/quality controlled laboratory analytical results of samples obtained from the Defendant s System, and any nonprivileged (including non-attorney work product) reports prepared concerning such results. ADEM will use its best efforts to coordinate field inspections of the Defendant s System with the

32 Defendant by notifying the Defendant, if practicable, of such inspections upon arrival at the field inspection location. XIII. NOT A PERMIT/COMPLIANCE WITH OTHER STATUTES/REGULATIONS A. This Settlement Agreement is not and shall not be construed as a permit, nor a modification of any existing permit, issued pursuant to the Alabama Water Pollution Control Act, nor shall it in any way relieve the Defendant of its obligations to obtain a permit for its wastewater treatment and collection system or facilities and to comply with the requirements of any NPDES permit or with any other applicable federal or state law or regulation. Any new permit(s), or modification of existing permit(s), must be complied with in accordance with applicable federal and state laws and regulations. B. Nothing herein shall be construed as relieving the Defendant of the duty to comply with the AWPCA, the regulations promulgated thereunder and all applicable permit(s) issued thereunder, or as relieving the Defendant of its duty to comply with State law and the regulations promulgated thereunder. The State of Alabama and ADEM reserve the right to seek additional relief should Defendant fail to achieve substantial compliance with the terms and conditions of its permit(s). XIV. NON-WAIVER PROVISIONS A. The Settlement Agreement in no way affects or relieves the Defendant of any responsibility to comply with any federal, state, or local law or regulation. B. Nothing contained in this Settlement Agreement shall be construed to prevent or limit the State's or ADEM s rights to obtain penalties or further or additional injunctive relief under the AWPCA or other State statutes or regulations, including, but not limited to, criminal