BUCKS COUNTY CONSERVATION DISTRICT 1456 Ferry Road, Suite 704 Doylestown, PA 18901-5550 In the Matter of: Date: May 14, 2013 Centennial School District : In re: PA Clean Streams Law and 433 Centennial Drive : Erosion Control Regulations found in Warminster, PA 18974-5455 : Chapter 102 of Title 25 of the : Pennsylvania Code CONSENT ASSESSMENT OF CIVIL PENALTY This Consent Assessment of Civil Penalty ("CACP") is entered into this 14th day of May, 2013, by and between the Commonwealth of Pennsylvania, Department of Environmental Protection ("Department"), the Bucks County Conservation District ("BCCD" or the "District"), Vollers Excavating & Construction, Inc. ( Vollers ), Penn Builders, Inc. ( PBI ) and Centennial School District ( Centennial ). Vollers, PBI and Centennial are collectively referred to herein as the Respondents. The BCCD has found and determined the following: A. The Department is the agency with the duty and authority to administer and enforce the Pennsylvania Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. 691.1 et seq. ("Clean Streams Law"); Section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. 510-17 ("Administrative Code") and the rules and regulations promulgated there under. B. BCCD, by a delegation agreement with the Department, is authorized to administer and enforce the programs relating to Erosion and Sediment Pollution Control and the National Pollutant Discharge Elimination System ("NPDES") provided for by the Clean Streams Law, Chapter 102, Erosion Control rules, and other rules and regulations promulgated thereunder. C. BCCD is a corporate and political public body with the authority and duty to exercise public powers of the Commonwealth, as an agency thereof, as authorized by the Conservation District Law, Act of May 15, 1945, P.L. 547, as amended, 3 P.S. 849 et seq. D. Centennial School District is a public school and maintains a mailing address of 433 Centennial Drive, Warminster, PA 18974-5455. E. Centennial School District is the owner or responsible official of McDonald Elementary School ( Project ), located on 666 Reeves Lane, Warminster Township ("Site"). Vollers was hired by Centennial to be the site contractor for construction work on the Project. PBI was hired by Centennial to be the general contractor for construction work on the Project.
F. On August 9, 2011 the Conservation District issued a National Pollutant Discharge Elimination System ("NPDES") General Permit No. PAG02000911 005 for the discharge of storm water from construction activities for the McDonald Elementary School, which included an adequate Erosion and Sedimentation Control Plan ("Plan"). Thereafter, the Conservation District issued a Co-Permittee Permit, effective on August 17, 2011 to Vollers and a Co-Permittee Permit, effective on August 26, 2011, to PBI. G. On September 28,2011, August 16, 2012, September 5, 2012 and March 19, 2013, the Department through the Conservation District conducted inspections of the Site and observed the: Failure to comply with permit conditions Failure to maintain slope stabilization on site Failure to temporarily stabilize site according to plans Failure to maintain inlet protection according to plans Failure to keep mud off of interior roads Failure to install rock construction entrances at all pavement/disturbance transitions Failure to follow approved plans Failure to install orange construction fence according to plans H. On September 28, 2011, after an extreme rainfall event, the Conservation District conducted inspections of the Site and observed that there was a potential for sediment laden run off to exit from the Site and enter Southampton Creek, a water of the Commonwealth. I. On September 28, 2011, August 16, 2012, September 5, 2012 and March 19, 2013, the Department through the Conservation District conducted inspections of the Site and observed earthmoving activities at the Site that created a potential of sediment pollution to Southampton Creek. J. Failure to implement erosion and sedimentation control BMPs to effectively minimize the potential of accelerated erosion and sedimentation, is a violation of 25 Pa. Code 102.4 Failure to maintain erosion and sedimentation control BMPs to effectively minimize the potential of accelerated erosion and sedimentation, is a violation of 25 Pa. Code 102.4 Failure to stabilize the earth disturbance activity to otherwise protect the site from accelerated erosion and sedimentation is a violation of 25 Pa. Code Section 102.22. The potential for a discharge of sediment to waters of the Commonwealth is a violation of Section 402 of The Clean Streams Law, 35 P.S. Section 691.402. Failure of earth disturbance activities to comply with permit conditions, is a violation of Section 402 of The Clean Streams Law, 35 P.S. Section 691.402. K. The facts described in Paragraphs G, H, and I constitute a violation of 25 Pa Code 102.4, and Section 402 of The Clean Streams Law, 35 P.S. 691.402. 2
L. The violations described in Paragraphs G through K constitute unlawful conduct under Section 611 of the Clean Streams Law, 35 P.S. 691.611; and subject the Respondents to a claim for civil penalties under Section 605 of the Clean Streams Law, 35 P.S. 691.605. M. Section 316 of the Clean Streams Law, 35 P.S. 316, provides that the Department may assess costs for the purpose of collecting or recovering the expense involved in correcting a condition on land resulting in pollution or a danger of pollution. N. The BCCD has incurred $150 in costs as a result of its enforcement activities related to the Site (administrative fee in connection with holding an informal administrative conference) and $480 for cost recovery fees (four site inspection reports of 1.5 hours each at $80 per hour). After full and complete negotiations of all matters set forth in this CACP, and upon mutual exchange of the covenants herein, the parties, in an effort to compromise and settle the Department s claims, desiring to avoid litigation and intending to be legally bound, agree that the Department shall hereby ASSESS and the Respondents shall hereby AGREE as follows: la. Assessment. In an effort to compromise and settle, to avoid litigation, and in resolution of the Department's claim for civil penalties, which the Department is authorized to pursue under Section 605 of the Clean Streams Law, 35 P.S. 691.605, the Department hereby assesses a civil penalty of $9,500 which the Respondents hereby agree to pay jointly and severally. lb. Settlement. Pursuant to the Department's authority under Section 316 of The Clean Streams Law, 35 P.S. 691.316, the Respondents agree to pay, jointly and severally, $150 to the BCCD for recovery of expenses incurred by the district in correcting conditions detailed in Paragraphs G, H, and I and $480 to the Water Quality Fund in cost recovery fees. 2. Civil Penalty Settlement. Upon signing this CACP, the Respondents shall pay, jointly and severally, the civil penalty assessed in Paragraph 1. Until full payment is received, the Respondents shall remain jointly and severally responsible for this payment. This payment is in settlement of the Department's claim for civil penalties for the violations set forth in Paragraphs G through K, above, for the dates set forth in Paragraph G, H, and I, above. The payment shall be by corporate check or the like, made payable to the "Clean Water Fund" and forwarded to: BUCKS COUNTY CONSERVATION DISTRICT 1456 Ferry Road, Suite 704 Doylestown, PA 18901 The payment in settlement for the BCCD expenses incurred shall be by corporate check or the like, made payable to the "Bucks County Conservation District" and forwarded as above. 3
3. Findings. (a) The Respondents agree that the findings set forth in Paragraphs A through I and in Paragraphs M and N are true and correct and, in any matter or proceeding between any of the Respondents and the Department, the Respondents shall not challenge the accuracy or validity of these findings. (b) The parties do not authorize any other persons to use the findings in this CACP in any matter or proceeding, and this CACP shall not be used in any other matter or proceeding other than by the undersigned parties hereto. The parties are entering into this CACP for the purposes of settling and compromising certain disputes between them and to avoid the cost of further litigation with respect to these disputes. There are no intended beneficiaries to this CACP other than the parties named herein, and as to any third parties the Department and the Respondents reserve all of their rights and defenses. 4. Remedies. In the event that the Respondents fail to make any payment required by this CACP the Department may pursue any remedy available for the failure to pay a civil penalty including an action for breach of contract or the filing of this CACP as a lien in any county in this Commonwealth. All Department remedies shall be cumulative. 5. Reservation of Rights. The Department reserves all other rights with respect to any matter addressed by this CACP, including the right to require abatement of any conditions resulting from the events described in the Findings. The Respondents reserve the right to challenge any action which the Department may take, but waive the right to challenge the content or validity of this CACP. IN WITNESS WHEREOF, the parties have caused this CACP to be executed by their duly Authorized representatives. The undersigned representatives of the Respondents certify, under penalty of law as provided by 18 Pa. C. S. 4904, that they are authorized to execute this CACP on behalf of their respective entities; that the Respondents consent to the entry of this CACP as an ASSESSMENT of the Department; that the Respondents hereby knowingly waive any right to a hearing under the statutes referenced in this CACP; and that the Respondents knowingly waive their rights to appeal this CACP, which rights may be available under Section 4 of the Environmental Hearing Board Act, the Act of July 13, 1988, PL. 530, No. 1988-94, 35 P.S. 7514; the Administrative Agency Law, 2 Pa. C.S. 103 (a) and Chapters 5A and 7 A; or any other provisions of law. Signature by the Respondents attorneys certifies only that the agreement has been signed after consulting with counsel. The Respondents agree that should the Department incur attorney's fees based on the failure to make the payments required by this CACP, the Respondents agree to pay, jointly and severally, reasonable attorney's fees incurred in an attempt to collect the penalties referenced in this agreement and as a result of a breach of this agreement. 4
FOR THE COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION: Gretchen Schatschneider Bucks County Conservation District District Manager Jake Borden Bucks County Conservation District Coastal Nonpoint Pollution Specialist Date Date FOR Centennial School District: _ Date: _ Counsel for Centennial School District FOR Penn Builders, Inc. _ Date: Counsel for Penn Builders FOR Vollers Excavating & Construction, Inc. _ Date: _ Counsel for Vollers 5