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Central Square, Village of - Order, February 24, 1993

Order, February 24, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of the Environmental Conservation Law of
the State of New York (ECL) Article 17 and Part 754 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

- by -

VILLAGE OF CENTRAL SQUARE

RESPONDENT

ORDER

DEC No.

R7-0519-90-05

WHEREAS:

  1. The attached Hearing Report (the "Report") submitted by Administrative Law Judge Daniel P. O'Connell with respect to the Department's Motion for Summary Order is accepted as my decision subject to my comments below.
  2. A motion for summary order should be granted if, upon review of all the papers and proof submitted, it is concluded that the cause of action or a defense thereto is established as a matter of law [6 NYCRR 622.10(c) and CPLR 3212(b)].
  3. Based on the record, I conclude that the Village of Central Square violated ECL Article 17, 6 NYCRR Part 754, and the terms of its State Pollutant Discharge Elimination System ("SPDES") permit at the times set forth in the Report. With respect to certain charges alleged in the Complaint, the record shows there were instances when the Respondent was in full compliance with its SPDES permit. Accordingly, these charges should be dismissed with prejudice. Additionally, the Department did not offer any evidence to prove a limited number of charges alleged in the Complaint that relate to January 1989 and July 1991. Since the Department failed to meet its burden, these charges also should be dismissed with prejudice.
  4. It is not necessary to determine whether the violation of a thirty day average limit constitutes thirty separate violations of the law since the penalty that is being awarded in this case would be authorized even if those violations were treated as single violations.
  5. The ability to pay a civil penalty may be an issue for adjudication. Although the Respondent asserted that a substantial civil penalty would have a negative economic impact, it failed to allege any facts in support of this claim in the papers it filed in opposition to the Department's motion for summary order.
  6. In determining the appropriate relief, I have considered the findings of fact and conclusions in the hearing report.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The Department's Motion for Summary Order is granted in part.
  2. Except for those instances listed below, I affirm the charges alleged in the Complaint which confirm 251 violations of ECL Article 17, 6 NYCRR Part 754 and the Respondent's SPDES permit.
  3. As listed in the Complaint by paragraph number, the following charges are dismissed with prejudice: 14.a, 14.b, 14.i, 18.a, 18.b, 18.e, 22.l, 22.m, 22.s, 22.t, 26.n, 26.t, 30.c, 30.i, 30.t, 34.aa, 42.o, and 43.w.
  4. The Respondent, the Village of Central Square, is assessed a civil penalty of One hundred thousand Dollars ($1,000).
  5. Of the total assessed civil penalty, Fifty thousand Dollars ($50,000) is payable to the Department within ninety (90) days after service of a conformed copy of this Order on the Respondent. The balance of the assessed civil penalty ($50,000) is suspended provided the Respondent complies with the following provisions of this Order.
  6. Within sixty (60) days after service of a conformed copy of this Order, the Respondent shall submit an approvable work plan to the Department for a Comprehensive Plant Evaluation/Composite Correction Program (CPE/CCP). The Respondent shall prepare the approvable work plan by following the methodology established in the United States Environmental Protection Agency document entitled Retrofitting POTW's, and including other pertinent reference materials, to perform an engineering evaluation of all treatment plant processes.
  7. Within three hundred and sixty (360) days after service of a conformed copy of this Order, the Respondent shall submit the final report for the CPE/CCP to the Department for approval. The final report shall include a corrective action plan and schedule. After the Department approves the final report, the Respondent shall implement the final report according to the schedule.
  8. Within sixty (60) days after service of a conformed copy of this Order, the Respondent shall submit an approvable work plan to the Department for an Infiltration/Inflow (I/I) Study. The approvable work plan shall include the manner by which the Village will conduct a property to property survey to locate and remove all major sources of infiltration, and illegal sources of inflow.
  9. Within three hundred and sixty (360) days after service of a conformed copy of this Order, the Respondent shall submit the final report for the I/I Study to the Department for approval. The final report shall include a corrective action plan and schedule. After the Department approves the final report, the Respondent shall implement the final report according to the schedule.
  10. Upon a finding by the Department that the Respondent has failed to comply with Provisions V - IX, inclusive, of this Order, the suspended portion of the civil penalty shall become due and payable immediately.
  11. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 7 Director, NYSDEC, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  12. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
February 24, 1993

To: Patricia Boyd
via certified mail
Village Clerk/Treasurer
Village of Central Square
Village Place, Route 49
Central Square, New York 13036

Robert A. Barrer, Esq.
via certified mail
Hiscock and Barclay
Financial Plaza
P. O. Box 4878
Syracuse, New York 13221

Jennifer L. Powell, Esq.
Assistant Regional Attorney
NYSDEC-Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400

Attachment

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Alleged Violations of the Environmental Conservation Law of the State of New York
Article 17 and Part 754 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

THE VILLAGE OF CENTRAL SQUARE

Oswego County

RESPONDENT

DEC No. R7-0519-90-05

HEARING REPORT

- by -

____________/s/____________
Daniel P. O'Connell
Administrative Law Judge

Proceedings

After serving a Notice of Hearing and Complaint upon the Village of Central Square (the Respondent or the Village) on July 6, 1992, the Department's Region 7 Staff (the Department) moved for Summary Order pursuant to 6 NYCRR 622.10 on August 31, 1992. The Department submitted proof to show that the Village did not comply with several effluent limitations of its State Pollutant Discharge Elimination System (SPDES) permit from January 1986 to April 1992. Contrary to the Respondent's assertions, there are no issues of fact for adjudication with respect to the questions of liability or relief. Therefore, the Commissioner should grant the Department's Motion for Summary Order.

Jennifer L. Powell, Esq., Assistant Regional Attorney, Region 7, served the Department's Motion for Summary Order on August 31, 1992. The Department's motion included an Affidavit from Sandra Lizlovs, Environmental Engineer I, Region 7 with copies of monthly Discharge Monitoring Reports (DMRs) and/or Wastewater Facilities Operations Reports (WFORs) as exhibits. There was also a Memorandum of Law in support of the Motion for Summary Order. The Department submitted reply briefs in support of its motion with cover letters dated September 25, 1992 and October 8, 1992.

The Village by its attorney Robert A. Barrer, Esq. from the law firm of Hiscock and Barclay, Syracuse, submitted papers in opposition to the Department's Motion with a cover letter dated September 16, 1992. These papers included an Affirmation by Mr. Barrer, and a Memorandum of Law in opposition to the Motion for Summary Order. With leave from the ALJ, the Village filed a supplemental affidavit with a cover letter dated October 2, 1992.

The Department's Position

The Charges

The Department alleged:

  1. From January 1, 1990 to the present, the Respondent exceeded the thirty day average flow limit of 0.2 million gallons per day for 18 months totaling 540 separate violations;
  2. From December 1, 1987 to the present, the Village exceeded the thirty day average Biological Oxygen Demand measured over five days (BOD5) limit of 30 milligrams per liter (mg/l) for 16 months totaling 480 separate violations;
  3. From January 1, 1988 to the present, the Respondent exceeded the thirty day average BOD5 mass limit of 50 pounds (lbs.) per day for the 10 months totaling 300 separate violations;
  4. From April 1, 1986 to the present, the Respondent reported monthly BOD5 removal discharge levels below 85% for 32 months totaling 960 separate violations;
  5. From November 1, 1986 to the present, the Village exceeded the thirty day average Total Suspended Solids (TSS) limit of 30 mg/l for 36 months totaling 1,080 separate violations;
  6. From September 1, 1987 to the present, the Respondent exceeded the thirty day average TSS mass limit of 50 lbs. per day for 25 months totaling 750 separate violations;
  7. From January 1, 1986 to the present, the Village reported monthly TSS removal discharge levels below 85% for 40 months totaling 1,200 separate violations;
  8. From January 1, 1986 to the present, the Village exceeded the daily limit of 0.3 milliliter per liter (ml/l) for settleable solids for 77 days totaling 77 separate violations;
  9. From May 1, 1988 to the present, the Respondent exceeded the thirty day average limit of 200 Fecal Coliform colonies per 100 ml for 16 months totaling 480 separate violations; and
  10. On June 9, 1989, the Village exceeded the pH limit of 9.0 standard units.

Many of the permit limits listed above are based on monthly (i.e thirty day) averages. According to the Department, the Respondent's failure to meet a thirty day average effluent limit constitutes 30 separate violations. Applying this rationale, the Department alleged that the Village committed 5,868 separate violations.

In its reply brief dated September 25, 1992, the Department moved to amend the Complaint by dropping the charges relating to the BOD5 concentration violation in February 1988 and the TTS concentration violation in May 1987. These allegations correspond with 14.c and 26.g in the Complaint. The Department did not modify the civil penalty it requested. I grant the Department's request. The Respondent can claim no prejudice about charges that are dropped from the Complaint.

The Relief

Relying on ECL 71-1929, and the Division of Water Penalty Assessment Guidance, dated September 30, 1988, the Department requested a total civil penalty of $2,934,000 in the Complaint. The Department reduced its request to $2,635,500 in its Motion papers for unexplained reasons.

The Department also seeks an Order from the Commissioner directing the Respondent to perform a comprehensive evaluation of its sewage treatment plant, implement a composite correction program, and perform an infiltration and inflow study of the Village's sewer system.

The Respondent's Position

The Answer

In its Answer dated July 22, 1992, the Village entered a general denial of the charges alleged in the Complaint. As Affirmative Defenses, the Village asserted that the Department was untimely in serving the Complaint, and that the Respondent did not intentionally violate the law or harm the environment. Based on these Affirmative Defenses, the Village argued that the charges should be dismissed

Motion for Summary Order

Pursuant to 622.10 of Title 6, the Commissioner should grant a Motion for Summary Order if the filings submitted by the Parties sufficiently establish the cause of action or the defense that would warrant the granting of Summary Judgement under the Civil Practice Law and Rules. The Commissioner should deny the Motion for Summary Order if the Respondent shows facts sufficient to require a hearing on any issue of fact. However, the existence of a triable issue of fact that is associated with relief, such as the amount of civil penalty, does not prevent the granting of the Motion.

The Commissioner should conclude there are no triable issues of fact about the Village's liability or the relief sought, and grant the Department's Motion for Summary Order.

The Department contended there are no triable issues of fact regarding the Village's liability. However, the Respondent argued that inconsistencies in the Department's proof required adjudication. According to the Respondent, the Department's proof is inconsistent where: (1) the Department did not submit both the DMR and the corresponding WFOR to prove a specific effluent value, and (2) the Department submitted corresponding reports with particular effluent values recorded in one report and left blank in the other.

The Department's proof of the Respondent's liability is consistent. Before submitting the reports to the Department, the Village's STP operator signed each DMR and WFOR certifying that the information reported in them was true. The Respondent did not submit the missing reports or the missing effluent values in its opposition papers. Absent contradicting evidence from the Respondent, there are no factual disputes. Therefore, I find that the DMRs and WFORs submitted by the Department are prima facie proof of the Respondent's liability.

The Respondent also asserted that a hearing should be held to develop a factual record about:

(1) whether a violation of a thirty day average permit limitation constitutes thirty separate violations,

(2) the Village's ability to pay the requested civil penalty,

(3) the appropriateness of the civil penalty, and

(4) the Commissioner's authority to grant the requested relief.

These issues are associated with relief. By regulation, the Commissioner may grant a Motion for Summary Order whether or not there are outstanding relief issues. Moreover, I conclude there are no disputed factual issues about the relief requested by the Department.

Findings of Fact

  1. The Village of Central Square is a municipal corporation located in Oswego County. The Village operates and maintains a sewage treatment plant (STP) located at Village Place, Route 49 East.
  2. Without interruption from July 1, 1976 to the present, the Department has authorized the Respondent by SPDES permit No. NY0035131 to discharge treated effluent from its STP to Little Bay Creek, a tributary of Oneida Lake. When appropriate, the Village has duly submitted applications to the Department to renew the subject SPDES permit. A renewal application from the Village is pending before the Department now.
  3. The SPDES permit NY0035131 issued to the Village (the Permit) limits the flow from the Respondent's STP to 0.2 MGD. For the following months, the thirty day average flow was:
    MONTH FLOW
    January 1990 .248 MGD
    February 1990 .232 MGD
    March 1990 .262 MGD
    April 1990 .266 MGD
    May 1990 .265 MGD
    October 1990 .301 MGD
    November 1990 .270 MGD
    December 1990 .314 MGD
    January 1991 .242 MGD
    February 1991 .230 MGD
    March 1991 .254 MGD
    April 1991 .202 MGD
    May 1991 .203 MGD
    December 1991 .245 MGD
    January 1992 .248 MGD
    February 1992 .268 MGD
    March 1992 .318 MGD
    April 1992 .294 MGD
  4. The Permit limits the Biological Oxygen Demand measured over five days (BOD5) to a thirty day average concentration of 30 mg/l. For the following months, the thirty day average concentration for the BOD5 was:
    MONTH CONCENTRATION
    December 1987 9 mg/l
    January 1988 7.8 mg/l
    April 1988 52 mg/l
    May 1988 52 mg/l
    June 1988 76 mg/l
    July 1988 62 mg/l
    September 1988 44 mg/l
    February 1989 37 mg/l
    April 1989 56 mg/l
    May 1989 35 mg/l
    July 1989 39 mg/l
    April 1990 45 mg/l
    June 1990 95 mg/l
    July 1990 50 mg/l
  5. The Permit limits the thirty day average mass of the BOD5 to 50 lbs per day. For the following months, the thirty day average mass of the BOD5 was:
    MONTH MASS
    January 1988 10.2 lbs
    February 1988 22 lbs
    June 1988 61.5 lbs
    September 1988 52 lbs
    April 1989 104 lbs
    May 1989 60.7 lbs
    April 1990 101 lbs
    June 1990 124 lbs
    July 1990 69 lbs
  6. The Permit states that the thirty day average BOD5 effluent (or discharge) value shall not exceed 15% of the BOD5 influent (or incoming) value. In other words, the BOD5 effluent removal value should be 85% or greater. For the following months, the BOD5 effluent removal percentage was:
    MONTH % REMOVED
    April 1986 76%
    May 1986 59%
    November 1986 82%
    December 1986 78%
    February 1987 81%
    March 1987 81%
    April 1987 71%
    May 1987 80%
    July 1987 70%
    September 1987 70%
    November 1987 82%
    December 1987 86%
    January 1988 86%
    February 1988 71%
    April 1988 77%
    May 1988 77%
    June 1988 76%
    July 1988 77%
    December 1988 88%
    February 1989 75%
    April 1989 59%
    May 1989 75%
    June 1989 80%
    July 1989 70%
    October 1989 78%
    December 1989 75%
    February 1990 75%
    April 1990 59%
    June 1990 53%
    July 1990 76%
    January 1991 84%
  7. The Permit limits the thirty day average concentration of Total Suspended Solids (TSS) discharged from the STP to 30 mg/l. For the following months, the thirty day average concentration for the TSS was:
    MONTH CONCENTRATION
    November 1986 32 mg/l
    December 1986 37 mg/l
    January 1987 50 mg/l
    February 1987 64 mg/l
    March 1987 47 mg/l
    April 1987 32 mg/l
    June 1987 36 mg/l
    July 1987 50 mg/l
    August 1987 67 mg/l
    September 1987 45 mg/l
    October 1987 55 mg/l
    November 1987 68 mg/l
    December 1987 30 mg/l
    January 1988 93 mg/l
    February 1988 56 mg/l
    April 1988 96 mg/l
    June 1988 128 mg/l
    July 1988 90 mg/l
    March 1989 32 mg/l
    April 1989 82 mg/l
    June 1989 65 mg/l
    July 1989 50 mg/l
    August 1989 90 mg/l
    September 1989 90 mg/l
    October 1989 50 mg/l
    November 1989 44 mg/l
    December 1989 60 mg/l
    January 1990 110 mg/l
    February 1990 80 mg/l
    March 1990 50 mg/l
    April 1990 90 mg/l
    June 1990 70 mg/l
    July 1990 110 mg/l
    August 1990 53 mg/l
  8. The Permit limits the thirty day average mass of TSS discharged from the STP to 50 lbs per day. For the following months, the thirty day average mass of TSS discharged from the STP was:
    MONTH MASS
    September 1987 73 lbs
    November 1987 97 lbs
    December 1987 39 lbs
    January 1988 122 lbs
    February 1988 73 lbs
    April 1988 60 lbs
    June 1988 103 lbs
    July 1988 70 lbs
    April 1989 156 lbs
    May 1989 52 lbs
    August 1989 78 lbs
    September 1989 87 lbs
    November 1989 83 lbs
    December 1989 56 lbs
    January 1990 168 lbs
    February 1990 157 lbs
    March 1990 81.5 lbs
    April 1990 202.6 lbs
    May 1990 22.2 lbs
    June 1990 92 lbs
    July 1990 152 lbs
    August 1990 64 lbs
    January 1992 52 lbs
    April 1992 58 lbs
  9. The Permit states that the thirty day average TSS effluent (or discharge) value shall not exceed 15% of the TSS influent (or in coming) value. In other words, the TSS effluent removal value should be 85% or greater. For the following months, the TSS effluent removal percentage was:
    MONTH % REMOVED
    January 1986 80%
    April 1986 84%
    May 1986 82%
    July 1986 77%
    August 1986 75%
    November 1986 69%
    December 1986 65%
    January 1987 76%
    February 1987 75%
    March 1987 79%
    April 1987 76%
    May 1987 71%
    June 1987 65%
    July 1987 74%
    August 1987 65%
    September 1987 80%
    October 1987 78%
    November 1987 77%
    December 1987 75%
    January 1988 57%
    February 1988 80%
    March 1988 84%
    April 1988 96%
    June 1988 62%
    July 1988 65%
    December 1988 84%
    February 1989 80%
    April 1989 68%
    June 1989 68%
    July 1989 68%
    July 1989 67%
    August 1989 67%
    September 1989 66%
    October 1989 69%
    November 1989 82%
    December 1989 68%
    April 1990 76%
    June 1990 82%
    July 1990 56%
    August 1990 70%
  10. The Permit limits the daily concentration of settleable solids discharged from the STP to 0.3 mg/l. On the following days, the daily concentration of settleable solids discharged from the STP was:
    DATE CONCENTRATION
    January 6, 1986 1.0 ml/l
    January 12, 1986 0.4 ml/l
    January 21, 1986 5.0 ml/l
    February 21, 1986 1.5 ml/l
    February 22, 1986 0.4 ml/l
    February 26, 1986 0.4 ml/l
    April 16, 1986 3.5 ml/l
    April 17, 1986 4.5 ml/l
    May 20, 1986 2.5 ml/l
    May 21, 1986 3.4 ml/l
    July 14, 1986 6.0 ml/l
    August 16, 1986 0.5 ml/l
    November 6, 1986 0.5 ml/l
    November 27, 1986 0.4 ml/l
    March 1, 1987 0.5 ml/l
    March 2, 1987 6.0 ml/l
    March 8, 1987 0.5 ml/l
    April 5, 1987 0.5 ml/l
    April 13, 1987 0.8 ml/l
    April 24, 1987 1.0 ml/l
    September 13, 1987 1.8 ml/l
    September 14, 1987 0.5 ml/l
    September 20, 1987 0.5 ml/l
    October 7, 1987 0.5 ml/l
    November 9, 1987 5.0 ml/l
    March 10, 1988 0.9 ml/l
    March 27, 1988 0.4 ml/l
    April 4, 1988 2.4 ml/l
    May 9, 1988 35.0 ml/l
    September 23, 1988 8.0 ml/l
    October 22, 1988 2.5 ml/l
    November 2, 1988 18.0 ml/l
    November 21, 1988 17.0 ml/l
    February 21, 1989 0.8 ml/l
    March 22, 1989 0.5 ml/l
    March 23, 1989 1.0 ml/l
    March 27, 1989 0.5 ml/l
    March 30, 1989 0.4 ml/l
    March 31, 1989 0.8 ml/l
    May 5, 1989 6.5 ml/l
    May 11, 1989 0.5 ml/l
    August 2, 1989 1.0 ml/l
    August 15, 1989 0.6 ml/l
    August 17, 1989 1.0 ml/l
    August 18, 1989 4.5 ml/l
    August 24, 1989 2.0 ml/l
    August 25, 1989 2.0 ml/l
    October 16, 1989 0.5 ml/l
    November 16, 1989 0.5 ml/l
    January 18, 1990 2.7 ml/l
    May 17, 1990 0.9 ml/l
    May 21, 1990 2.0 ml/l
    May 22, 1990 1.0 ml/l
    May 29, 1990 2.0 ml/l
    June 1, 1990 0.5 ml/l
    July 9, 1990 0.5 ml/l
    July 11, 1990 1.0 ml/l
    October 24, 1990 1.5 ml/l
    November 5, 1990 3.0 ml/l
    December 4, 1990 2.0 ml/l
    December 23, 1990 1.5 ml/l
    January 9, 1991 1.0 ml/l
    January 16, 1991 4.0 ml/l
    January 18, 1991 1.5 ml/l
    March 4, 1991 45.0 ml/l
    April 9, 1991 0.4 ml/l
    April 15, 1991 1.0 ml/l
    April 20, 1991 0.5 ml/l
    April 22, 1991 3.0 ml/l
    May 5, 1991 0.5 ml/l
    May 10, 1991 0.5 ml/l
    May 17, 1991 1.5 ml/l
    May 27, 1991 1.5 ml/l
    September 15, 1991 0.5 ml/l
    October 15, 1991 1.0 ml/l
    October 17, 1991 2.0 ml/l
    December 9, 1991 2.0 ml/l
    January 14, 1992 31.0 ml/l
    February 3, 1992 20.0 ml/l
    February 20, 1992 2.5 ml/l
  11. The Permit limits fecal coliform to a thirty day average of 200 colonies per 100 milliliters (ml). For the following months, the thirty day average number of colonies per 100 ml was:
    MONTH # OF COLONIES PER 100 ML
    May 1988 Too numerous to count (TNTC)
    June 1988 TNTC
    July 1988 TNTC
    August 1988 TNTC
    September 1988 TNTC
    May 1989 TNTC
    September 1989 <1,000
    October 1989 9,100
    June 1990 >10,000
    July 1990 270
    August 1990 10,000
    September 1990 2,300
    October 1990 27,000
    May 1991 2,000
    September 1991 20,000
  12. The term "too numerous to count" means that the average number of colonies of fecal coliform is greater than 200 colonies per 100 ml.
  13. On a daily basis, the Permit limits the pH of the discharge from the STP to a range from 6.0 to 9.0 standard units. On June 9, 1989, the pH of the discharge was 9.23 standard units.
  14. Based on the record of operations for the Village's STP, the source of noncompliance is due to design limitations of the STP and waste water collection system.

Discussion

Affirmative Defenses

In its Answer dated July 22, 1992, the Village asserted as an affirmative defense that the Department was untimely in serving the Complaint thereby barring this proceeding under the applicable law and regulations. Although the Respondent did not identify the applicable law and regulations, I interpret this assertion to mean there is an issue concerning administrative delay as described in the State Administrative Procedures Act (SAPA) 301. The Village also asserted in its Answer that the immoderate discharges were unintentional and did not cause adverse environmental impacts.

Because the Respondent did not address these affirmative defenses in its papers submitted in opposition to the Department's Motion for Summary Order, I conclude that the Respondent abandoned these affirmative defenses. No further consideration is given them.

The Proof

To prove the charges alleged in the Complaint, the Department offered the affidavit of Ms. Lizlovs and copies of Discharge Monitoring Reports (DMRs) and Wastewater Facilities Operations Reports (WFORs). There is no dispute that: (1) the Respondent collected the data reported in the DMRs and WFORs, and (2) the Respondent's STP operator signed each DMR and WFOR certifying that the data was true. Appendix A is a list of the DMRs and WFORs submitted as exhibits to Ms. Lizlovs' affidavit.

The Respondent erroneously asserted there are inconsistencies in the Department's proof that require adjudication. According to the Respondent, the Department's proof is inconsistent where: (1) the Department did not submit both the DMR and the corresponding WFOR to prove a specific effluent value, and (2) the Department submitted corresponding reports with particular effluent values recorded in one report and left blank in the other. The Respondent, however, did not submit the missing reports or the missing effluent values in its opposition papers to show that the Department's evidence is inconsistent. Absent any evidence to the contrary, the Department's evidence is consistent and reliable.

Liability

ECL 17-0803 states, in pertinent part, that "it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES permit issued pursuant hereto or in a manner other than prescribed by such permit." Part II - General Conditions of the Respondent's SPDES permit NY0035131 states that "all discharges authorized by this permit shall be consistent with the terms and conditions of this permit ..." The General Conditions also state that "if the permittee fails or refuses to comply with an interim or final requirement in a SPDES permit, such noncompliance shall constitute a violation of the permit for which the Commissioner may modify, suspend, or revoke the permit or take direct enforcement action pursuant to law."

The Respondent has had a valid SPDES permit since 1976 with established effluent limits for flow, the concentration of the Biological Oxygen Demand measured over five days (BOD5), the mass of the BOD5, the percentage of removal of BOD5 from the effluent relative to the influent, the concentration of the Total Suspended Solids (TSS), the mass of the TSS, the percentage of removal of TSS from the effluent relative to the influent, the daily concentration of settleable solids, the concentration of fecal coliform bacteria, and the daily pH range. The Village's permit also requires the Respondent to file DMRs and WFORs with the Department. Where the Department's proof shows that the Village did not comply with these effluent limits, the Respondent violated the terms of its SPDES permit. Each charge asserted in the Complaint is specifically identified below in the Conclusions.

There are several charges alleged in the Complaint that Ms. Lizlovs did not address in her affidavit. In those instances where the Department submitted a DMR and/or a WFOR as proof of an effluent value, a finding was made. Based on the record, the Respondent did not commit some of the violations alleged, and the Commissioner should dismiss these allegations.

In a limited number of instances, the Department did not submit any proof to sustain some charges alleged in the Complaint. Consequently, no finding could be made. Since the Department has the burden, the Commissioner should also dismiss these charges.

Relief

The following discussion addresses the issues raised by the Respondent that relate directly to the question of relief. By regulation, factual disputes about relief do not bar the granting of Summary Order. Moreover, the Respondent offered no proof to substantiate any alleged factual disputes regarding these relief issues in its reply papers. Absent proof from the Respondent, there are no factual disputes to adjudicate regarding the Department's request for relief.

  1. Thirty Day Averages

    The dispute about whether a violation of a thirty day average permit limitation constitutes thirty separate violations is an issue of law that by regulation does not prevent granting the Department's Motion for Summary Order. Relying on the Division of Water Penalty Assessment Guidance document, the Department contended that the effluent values which the Respondent did not meet and which were reported as thirty day arithmetic means should constitute 30 separate violations. Based on this reasoning, the Department alleged 5,868 separate violations in the Complaint.

    As the basis for the penalty document, the Department cited the following case law relating to the Federal Clean Water Act: United States v. Amoco Oil Company, 580 FSupp 1042 (W.D. Mo., 1984); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F2d 304 (4th Cir., 1986); EPA v. City of Green Forest, Arkansas, 921 F2d 1394 (8th Cir., 1990); Atlantic States Legal Foundation v. Tyson Foods, 897 F2d 1128 (11th Cir., 1990); International Union, UAW v. Amerace Corporation, Inc., 740 FSupp 1072 (DNJ 1990); and Public Interest Research Group of New Jersey v. Star Enterprise, 771 FSupp 655 (DNJ 1991). The Department did not provide, nor could there be found, any relevant state case law.

    The Courts provide the following rationale to support the conclusion that a violation of a thirty day average permit limitation constitutes thirty separate violations. First, the language of 1319(d) of the Clean Water Act requires this interpretation. Second, there is a need to identify the maximum possible civil penalty, and then assess the proper civil penalty after considering the equities unique to each matter. The Department argued that the federal interpretation should be applied to ECL 71-1929(1) because this provision of Article 71 is worded similarly to 1319(d) of the Clean Water Act.

    The Respondent argued that the effluent values which the Village did not meet and which were reported as thirty day arithmetic means should not constitute 30 separate violations. To support this argument, the Respondent identified individual days when a particular daily discharge met the daily standards during a month that did not meet the average monthly discharge standards.

    To support the Village's argument, the Respondent cited Student Public Interest Research Group of New Jersey, Inc, et al. v. Monsanto Company, 1988 WL 156691 (D.N.J.); 18 ELR 20999 (September 1988). In this opinion, the Court rejected the conclusion that a violation of a thirty day average permit limit constitutes thirty separate violations as illogical. The Court ruled that "the DMR can only establish a single violation on the day of the monitored report" (Monsanto, 18 ELR 21004).

    The case law cited by the Parties demonstrates that the question of whether a violation of a thirty day average permit limit constitutes thirty separate violations is not settled. The federal case law does not bind the Commissioner because the Department's allegations relate to a state statute. However, the Commissioner may rely on the federal case law as guidance. There are no relevant opinions from New York State courts that interpret ECL 71-1929(1).

    To decide whether a violation of a thirty day average permit limitation constitutes thirty separate violations, the following two points are provided for the Commissioner's consideration. Except for the allegations regarding the Respondent's daily discharge of settleable solids, the Complaint alleges violations of the Village's thirty day average permit limits. To support these allegations, the Department offered WFORs and DMRs as evidence of the charges alleged in the Complaint. The values reported in the WFORs and DMRs are thirty day averages. Consequently, the Department's assertion that it has demonstrated thirty violations with every thirty day average limit exceeded without providing evidence about daily discharges reduces the Department's burden of proof.

    Although the Respondent collects data on a daily basis, the Respondent's permit requires the Village to report effluent limits as thirty day averages. This regulatory scheme has two implications. First, daily fluctuations of parameters reported as thirty day averages should be expected. Second, daily fluctuations of parameters reported as thirty day averages are not significant because they are monitored every thirty days rather than every day.

  2. Economic Impacts

    There is no dispute that the Commissioner has determined, as a matter of public policy, that the ability to pay a civil penalty is an appropriate factor in determining the proper civil penalty. However, when the Respondent asserted that collecting the full amount of the requested civil penalty ($2,934,000 in the Complaint or $2,635,000 in its Motion) would have a detrimental economic impact on the Village, the Village had an obligation to file its proof given the pending Motion for Summary Order. The Respondent offered no evidence to support its claim in its papers filed in opposition to the Department's Motion for Summary Order. Consequently, there is no issue for adjudication.

  3. Civil Penalty

    Prior to July 28, 1988, ECL 71-1929(1) authorized a civil penalty of $10,000 per day of violation against "a person who violates any of the provisions of, or who fails to perform any duty imposed by, titles 1 through 11 inclusive and title 19 of article 17, ... or the terms of any permit issued thereunder ... " By amendment to this section of the ECL, effective July 28, 1988, the legislature increased the civil penalty to $25,000 per day for each violation.

    The Division of Water Penalty Assessment Guidance document suggests a $500 civil penalty for violating non-toxic effluent limits of a SPDES permit, and $1,000 for toxic effluent limits. The Department's papers do not provide an explanation of how it calculated its request. Assuming that a violation of a thirty day average permit limitation constitutes thirty separate violations, multiplying the 5,868 violations initially alleged in the Complaint by $500 for non-toxic parameters results in a $2,934,000 civil penalty that approximates the civil penalty requested by the Department.

    The record clearly shows that the Village did not comply with its SPDES permit and that its sewage treatment plant cannot meet the demands placed on it. Given the frequency, duration and number of effluent standards violated, assessing $500 for each violation is appropriate and reasonable.

  4. Remediation

    The Respondent's contention that the Commissioner does not have the authority to order the Village to undertake the Comprehensive Plant Evaluation/Composite Correction Program (CPE/CCP) and the Infiltration/Inflow (I/I) Study is an issue of law. This issue of law pertains to the question of relief and can be decided now.

    Contrary to the Respondent's contention, the Commissioner does have authority to order the Village to comply with the Department's prayer for relief. With specific reference to water pollution control, ECL 17-0303(4)(b) authorizes the Commissioner to "make, modify or cancel orders requiring the discontinuance of the discharge of sewage, ... into any waters of the state ... "

    Additionally, ECL 71-1929 and the general conditions of the Village's SPDES Permit authorize permit revocation for violations of the permit conditions. Based on the record of operations for the Village's STP, the Department would be acting irresponsibly if it continued to renew the Permit without requiring the Respondent to meet the effluent limitations. Recognizing that the Respondent is a municipality, I concur with the Department's request for an evaluation of the STP and the Village's sewer system as an alternative to permit revocation.

    Though not part of the Department's pleadings in this case, the Commissioner also has the authority provided by 621.14 to modify the Village's SPDES permit. The modification process would require the Respondent to provide the information that the Department has requested in this proceeding. In the interest of judicial efficiency, the studies requested by the Department are appropriate now.

    The Findings support the conclusion that the source of noncompliance is due to design limitations of the STP. Consequently, the information obtained from these studies would identify those features of the Village's STP and wastewater collection system that the Village must change to comply with the permitted effluent limits. The Commissioner has the authority and should order the Village to do these studies.

Conclusions

  1. The information contained in the Discharge Monitoring Reports (DMRs) and the Wastewater Facilities Operations Reports (WFORs) is reliable, and sufficient to sustain the charges alleged in the Complaint.
  2. The thirty day average flow from the STP exceeded 0.2 MGD for January 1990, February 1990, March 1990, April 1990, May 1990, October 1990, November 1990, December 1990, January 1991, February 1991, March 1991, April 1991, May 1991, December 1992, January 1992, February 1992, March 1992 and April 1992 (eighteen months) in violation of the Permit.
  3. The thirty day average BOD5 concentration discharged from the STP exceeded 30 mg/l for April 1988, May 1988, June 1988, July 1988, September 1988, February 1989, April 1989, May 1989, July 1989, April 1990, June 1990, and July 1990 (twelve months) in violation of the Permit.
  4. The thirty day average BOD5 concentration discharged from the STP was 30 mg/l or less for December 1987 and January 1988 in conformance with the Permit. These charges in the Complaint (14.a and 14.b) should be dismissed with prejudice.
  5. The Department failed to offer any proof to substantiate any of the charges alleged in the Complaint for January 1989 (See Appendix A). These charges identified as 14.i, 18.e, 22.t, 26.t, 30.i, 34.aa, in the Complaint should be dismissed with prejudice.
  6. The thirty day average mass of the BOD5 exceeded 50 lbs per day for June 1988, September 1988, April 1989, May 1989, April 1990, June 1990, and July 1990 (seven months) in violation of the Permit.
  7. The thirty day average mass of the BOD5 was less than or equal to 50 lbs per day for January 1988 and February 1988 in conformance with the Permit. These charges in the Complaint (18.a and 18.b) should be dismissed with prejudice.
  8. The thirty day average BOD5 effluent value discharged from the STP was less than 85% for April 1986, May 1986, November 1986, December 1986, February 1987, March 1987, April 1987, May 1987, July 1987, September 1987, November 1987, February 1988, April 1988, May 1988, June 1988, July 1988, February 1989, April 1989, May 1989, June 1989, July 1989, October 1989, December 1989, February 1990, April 1990, June 1990, July 1990, and January 1991 (twenty-eight months) in violation of the Permit.
  9. The thirty day average BOD5 effluent value discharged from the STP was equal to or greater than 85% for December 1987, January 1988 and December 1988 in conformance with the Permit. These charges in the Complaint (22.l; 22.m; and 22.s) should be dismissed with prejudice.
  10. The thirty day average concentration of TSS discharged from the STP exceeded 30 mg/l for November 1986, December 1986, January 1987, February 1987, March 1987, April 1987, June 1987, July 1987, August 1987, September 1987, October 1987, November 1987, January 1988, February 1988, April 1988, June 1988, July 1988, March 1989 (26.u in the Complaint), April 1989, June 1989, July 1989, August 1989, September 1989, October 1989, November 1989, December 1989, January 1990, February 1990, March 1990, April 1990, June 1990, July 1990 and August 1990 (thirty-three months)in violation of the Permit.
  11. The thirty day average concentration of TSS discharged from the STP was less than or equal to 30 mg/l for December 1987 in conformance with the Permit. This charge (26.n in the Complaint) should be dismissed with prejudice.
  12. The thirty day average mass of TSS discharged from the STP was greater than 50 lbs per day for September 1987, November 1987, January 1988, February 1988, April 1988, June 1988, July 1988, April 1989, May 1989 August 1989, September 1989, November, 1989, December 1989, January 1990, February 1990, March 1990, April 1990, June 1990, July 1990, August 1990, January 1992, and April 1992 (twenty-two) in violation of the Permit.
  13. The thirty day average mass of TSS discharged from the STP was less than or equal to 50 lbs per day for December 1987 and May 1990 in conformance with the Permit. These charges (30.c and 30.t) should be dismissed with prejudice.
  14. The thirty day average TSS effluent value discharged from the STP was less than 85% for January 1986, April 1986, May 1986, July 1986, August 1986, November 1986, December 1986, January 1987, February 1987, March 1987, April 1987, May 1987, June 1987, July 1987, August 1987, September 1987, October 1987, November 1987, December 1987, January 1988, February 1988, March 1988, June 1988, July 1988, December 1988, February 1989, April 1989, June 1989, July 1989, August, 1989, September 1989, October 1989, November 1989, December 1989, April 1990, June 1990, July 1990, and August 1990 (thirty-eight months) in violation of the Permit.
  15. The thirty day average TSS effluent value discharged from the STP was equal to or greater than 85% for April 1988 in conformance with the Permit. This charge (43.w in the Complaint) should be dismissed with prejudice.
  16. The daily concentration of settleable solids discharged from the STP exceeded 0.3 mg/l for January 6, 12, 20, 1986; February 21, 22, 26, 1986; April 16, 17, 1986; May 20, 21, 1986; July 14, 1986; August 16, 1986; November 6, 27, 1986; March 1, 2, 8, 1987; April 5, 13, 24, 1987; September 13, 14, 20, 1987; October 7, 1987; November 9, 1987 March 10, 27, 1988; April 4, 1988; May 9, 1988; September 23 1988; October 22 1988; November 2, 21, 1988; February 21, 1989; March 22, 23, 27, 30, 31, 1989; May 5, 11, 1989; August 2, 15, 17, 18, 24, 25, 1989; October 16, 1989; November 16, 1989; January 18, 1990; May 17, 21, 22, 29, 1990; June 1, 1990; July 9, 11, 1990; October 24, 1990; November 5, 1990; December 4, 23, 1990; January 9, 16, 18, 1991; March 4, 1991; April 9, 15, 20, 22, 1991; May 5, 10, 17, 27, 1991; September 15, 1991; October 15, 17, 1991; December 9, 1991; January 14, 1992; and February 3, 20, 1992 (eighty days) in violation of the Permit. However, 39 of the Complaint alleges 77 violations of this effluent limit. The Complaint did not identify the exact dates. Since the Respondent was on notice of 77 alleged violations, the Department's relief should be limited to 77 violations rather than 80.
  17. The thirty day average fecal coliform limit discharged from the STP was greater than 200 colonies per 100 ml for May 1988, June 1988, July 1988, August 1988, September 1988, May 1989, September 1989, October 1989, June 1990, July 1990, August 1990, September 1990, October 1990, May 1991, and September 1991 (fifteen months) in violation of the Permit.
  18. The Department failed to offer any proof to substantiate the charge that the thirty day average fecal coliform limit discharged from the STP was greater than 200 colonies per 100 ml for July 1991 (See Appendix A). This charge (42.o in the Complaint) should be dismissed with prejudice.
  19. On June 9, 1989, the Respondent violated the terms of the Permit when the pH of the discharge exceeded the pH range provided in the Permit.
  20. Relying on the case law provided by the Department where every violation of a thirty day arithmetic limit is 30 separate violations, the record establishes 5,268 violations.
  21. Accepting the rationale provided in Monsanto (supra, 18 ELR 21004) where every violation of a thirty day arithmetic limit is one violation, the record establishes 251 violations.

Recommendations

  1. The Commissioner should find there are no disputed issues of fact about the Respondent's liability, and grant the Department's request for Summary Order pursuant to 6 NYCRR 622.10.
  2. In granting the Department's motion, the Commissioner should affirm those violations alleged in the Complaint which are supported on the record.
  3. The Commissioner should dismiss with prejudice those charges alleged in the Complaint that are expressly stated above in Conclusion Nos. 4, 7, 9, 11, 13, and 15. These allegations are not violations of the Respondent's SPDES permit.
  4. The Commissioner should dismiss the charges relating to January 1989 and July 1991 because the Department did not offer any proof to support them. (See Conclusion Nos. 5, and 18.)
  5. The Commissioner should order the Village of Central Square to undertake a Comprehensive Plant Evaluation/Composite Correction Program (CPE/CCP) and Infiltration/Inflow (I/I) Study.
  6. The amount of civil penalty assessed against the Village of Central Square is respectfully referred to the Commissioner for his consideration.

If the Commissioner determines that a violation of a thirty day effluent limit constitutes 30 separate violations and chooses to apply the criteria discussed in the Division of Water Penalty Assessment Guidance document, the resulting civil penalty would be two million six hundred thirty-four thousand dollars ($2,634,000). This figure is the product of 5,268 violations (Conclusion No. 21) and $500 per violation.

If the Commissioner determines that a violation of a thirty day effluent limit should be considered one violation and chooses to apply the criteria discussed in the Division of Water Penalty Assessment Guidance document, the resulting civil penalty would be one hundred twenty-five thousand five hundred dollars ($125,500). This figure is the product of 251 violations (Conclusion No. 22) and $500 per violation.

The record clearly shows that the Respondent did not offer any evidence to support its claim that a substantial civil penalty would have a detrimental economic impact. Adjudication of this issue is not required pursuant to 6 NYCRR 622.10 (Motion for Summary Order). However, the Commissioner has the discretion to remand this matter to determine what the economic impact would be.

The Commissioner should emphasize remediation. If the Commissioner chooses to assess a substantial civil penalty, the Commissioner should consider suspending a substantial portion of the civil penalty as an incentive for the Village to remediate the STP and waste water collection system. The suspended portion of the civil penalty should be conditioned upon completing the remediation within a reasonable time. This recommendation essentially addresses the Respondent's unsubstantiated claim regarding an economic hardship.

Appendix A available upon request.

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