rECEIV D IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF . 31. 5 p 2: 0 0 1 SOUTHERN DIVISION 101 ,

THE UNITED STATES OF AMERICA; THE STATE OF ALABAMA, ex. rel. , ATTORNEY GENERAL, and THE ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT ) Civil Action No. Plaintiffs, ) v. )

) CITY OF DOTHAN, ) ) Defendant. ) )

JOINT STIPULATION OF SETTLEMENT

WHEREAS, Plaintiffs, The United States of America, on behalf of the United States and

Environmental Protection Agency ("EPA"), the State of Alabama ("State"), by and through the

Attorney General of Alabama (the "OAG"), and the Alabama Department of Environmental

Management ("ADEM") have filed a complaint ("the Complaint"), against the City of Dothan,

Alabama ("the City") concurrently with the filing of this Joint Stipulation of Settlement;

WHEREAS, the Complaint alleges that the City is liable for penalties under Section 309 of the Clean Water Act ("the CWA"), 33 U.S.C. § 1319, and under the Alabama Water Pollution

Control Act ("AWPCA") at Section 22-22-9 of Code of Alabama, 1975, for the unauthorized discharge of pollutants in violation of Section 301 of the CWA, 33 U.S.C. § 1311, and for discharges of pollutants in violation of National Pollutant Discharge Elimination System

("NPDES") permits issued to the City by ADEM pursuant to its EPA-approved permit program

1 under Section 402 of the CWA, 33 U.S.C. § 1342;

WHEREAS, EPA and the City entered into a CWA Administrative Order on

Consent in 2012 that requires the City to implement capacity, management, operation, and maintenance programs for its wastewater system in order to comply with its NPDES permits and the CWA;

WHEREAS, on. June 10, 2008, the State and ADEM filed a separate complaint against the City in the Circuit Court of Houston County, Alabama ("State Complaint"), styled

State of Alabama ex rel Troy King v. City of Dothan, Case No. 38-CV-2008-900196 ("State action");

WHEREAS, the United States, the State, ADEM and the City ("the Parties") agree that settlement of this action and the State action without further expense and litigation is in the public interest and that entry of this Stipulation is the most appropriate means of resolving the instant matter and the State action.

NOW THEREFORE, without adjudication or admission of any issue of fact or law, or any determination of liability, and upon consent and agreement of the Parties to this Stipulation, it is hereby AGREED, STIPULATED, and ORDERED:

1. This Court has subject matter jurisdiction over this action pursuant to Section

309(b) of the CWA, 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345, and 1355. This Court has supplemental jurisdiction over Alabama's state law claims pursuant to 28 U.S.C. § 1367(a) because the state law claims are related to the federal law claims and form part of the same case or controversy. The United States has authority to bring this action on behalf of the

Administrator of EPA under Section 506 of the Act, 33 U.S.C. § 1366, and 28 U.S.C. §§ 1331,

2 1345 and 1355. The OAG and ADEM are authorized by Code of Alabama (1975), §§ 22-22A-

5(1) and (18), to enforce the provisions of the AWPCA found at Code of Alabama (1975),

§ 22-22-1 et seq. Venue is proper in the Middle District of Alabama pursuant to 28 U.S.C.

§ 1391(b) and 1395(a), and Section 309(b) of the Act, 33 U.S.C. § 1319(b), because it is the judicial district in which the City is located and in which the alleged violations occurred.

2. For the purposes of this Stipulation, the City agrees that the Complaint states

claims upon which relief may be granted pursuant to Section 309 of the CWA, 33 U.S.C. § 1319,

and AWPCA at Section 22-22-9 of Code of Alabama, 1975, for the unauthorized discharge of pollutants in violation of Section 301 of the CWA, 33 U.S.C. § 1311, and for discharges of

pollutants in violation of NPDES permits issued to the City by ADEM.

3. The City shall pay a civil penalty of $264,000.

4. The civil penalty set forth in Paragraph 3 above shall be paid in equal parts to the

United States and the State as follows:

A. Payment to the United States: One half of the penalty, or a total of $132,000,

shall be paid to the United States, within thirty (30) days after the court enters this Stipulation, by

FedWire Electronic Funds Transfer ("EFT") in accordance with written instructions to be

provided to the City by the Financial Litigation Unit of the U.S. Attorney's Office for the Middle

District of Alabama, P.O. Box 197; Montgomery, Alabama 36101; ATTN: Deloris Aldridge;

phone number 334-551-1735; e-mail address: [email protected] . At the time of

payment, the City shall send evidence of the transfer, together with a transmittal letter

referencing this Stipulation, the civil action number and DOJ case number 90-5-1-1-09833, and

notating that the payment is for CWA Section 309, by email to

3 acctsreceivable.CINWDgepa.ov and by mail to:

EPA Cincinnati Finance Office 26 Martin Luther King Drive Cincinnati, Ohio 445268

And to:

Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 DOJ case #90-5-1-1-09833

B. Payment to the State: One half of the penalty, or a total of $132,000, shall be paid to the OAG, within thirty (30) days after the court enters this Stipulation. Payment of this portion of the penalty shall be transmitted by EFT to the OAG in accordance with written instructions to be provided to the City by the OAG. Of this amount, the OAG shall retain one- half of these funds for reasonable costs incurred by the OAG in this action and the OAG shall disburse one-half of these funds to ADEM for reasonable costs incurred by the Department.

5. If any portion of the civil penalty payable to the United States or the State under

Paragraph 4(A) and/or (B) of this Stipulation is not paid when due, then either the United States or the State or both may issue a written demand for payment of stipulated penalties under this paragraph, the City shall, within thirty (30) days of receipt of such written demand, pay a stipulated penalty of $5,000 to either the United States or the State or to each Plaintiff for each day that the City's civil penalty payment is delayed beyond the date due. Payment of any stipulated penalty to the United States or the State or both shall be made in the manner set forth

4 in Paragraph 4(A) and/or (B) of this stipulation. Either the United States or the State or both, may in its/their sole discretion reduce or waive stipulated penalties otherwise payable under this

Stipulation.

6. All of the foregoing obligations shall apply to and are binding upon the City or its successors, and shall not be altered by any change in the legal status of the City.

7. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the party on whose behalf he or she is signing to all terms of this

Stipulation.

8. Entry of this Stipulation and payment of the penalty stated in Paragraph 3, to the

United States and the State, as set forth in Paragraph 4(A) and (B), shall constitute full and final settlement of the civil claims for civil penalties of the United States, the State, and ADEM alleged in the Complaint against the City, and alleged by the State and ADEM in the complaint filed against the City in the State action, occurring through the date of filing the Complaint.

9. The United States, the State and ADEM reserve all legal and equitable remedies available to enforce the provisions of this Stipulation, except at expressly stated in Paragraph 8.

This Stipulation shall not be construed to limit the rights of the United States, the State or ADEM to obtain penalties or injunctive relief under either Section 309 of the CWA, 33 U.S.C. § 1319, or under the AWPCA at Section 22-22-9 of Code of Alabama, 1975, or both except as set forth in

Paragraph 8.

10, The City neither admits nor denies the allegations of the Complaint and the Joint

Stipulation of Settlement and of the complaint filed in the State action.

5 11. In any subsequent administrative or judicial proceeding initiated by the United

States, the State and/or ADEM for injunctive relief, civil penalties, or other appropriate relief relating to the City, the City shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claim splitting, or other defenses based upon any contention that the claims raised by the United

States, the State, and/or ADEM in the subsequent proceeding were or should have been brought in the instant case, except with regard to claims that have been specifically resolved pursuant to

Paragraph 8.

12. This Stipulation constitutes a final judgment under Federal Rules of Civil

Procedure 54 and 58, and it shall constitute an enforceable judgment in accordance with Rule 69 of the Federal Rules of Civil Procedure, and the Federal Debt Collection Procedure Act,

28 U.S.C. §§ 3001-3308, and other applicable authority. The United States, the State, and

ADEM shall each be deemed judgment creditors for the purpose of collection of any unpaid amounts of the civil and stipulated penalties. Further, the City shall be liable for attorneys' fees and costs reasonably incurred by the United States, the State, or ADEM to collect any amounts due under this Stipulation.

13. With regard to matters relating to this Stipulation and its enforcement, the City shall identify on the attached signature page the name, address, and telephone number of an agent who is authorized to accept service of process by mail on behalf of the City with respect to all matters arising under or relating to this Stipulation and the Complaint filed by the United States, the State, and ADEM concurrently with this Stipulation. The City hereby agrees to accept service of process, as regards the Complaint, by regular U.S. mail, and to waive formal service

6 requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and in any applicable local rules of this Court, including, but not limited to, a service of a summons.

14. Except as stated in Paragraph 12 of this Stipulation, each party shall bear its own costs and attorneys' fees related to this action.

15. Within thirty (30) days following the payment by the City of all monies due under this Stipulation, the United States, the State, and ADEM shall execute and file with this Court a stipulation that the Complaint be dismissed with prejudice.

16. Within thirty (30) days following the payment by the City of all monies due under this Stipulation, the State and ADEM shall execute and file with the Circuit Court for Houston

County a stipulation that the State action also be dismissed with prejudice.

17. This Court shall retain jurisdiction for the purposes of interpreting and enforcing this Stipulation.

18. This Stipulation shall not be construed to create rights in, or grant any cause of action to, any third party that is not party to this Stipulation.

19. There are no separate agreements or understandings between the Parties with respect to this matter that have not been set forth in this Stipulation.

7 20. This Stipulation may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall

together constitute but one and the same instrument.

AS AGREED AND STIPULATED TO BY THE PARTIES, IT IS SO ORDERED ON

THIS DAY OF , 2014

UNITED STATES DISTRICT JUDGE

8 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR PLAINTIFF THE UNITED STATES OF AMERICA:

SAM HIRSCH Acting Assistant Attorney General Environment and Natural Resources Division United States Department of Justice

tzi/t- CHERYL A LUKE, Trial Attorney Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044 Phone: (202) 514-5466 Fax: (202) 514-2583

9 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR PLAINTIFF THE UNITED STATES OF AMERICA (continued):

MARK POLLINt Division Directo Water Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency United States Environmental Protection Agency 1200 Pennsylvania Ave., NW (2243A) Washington, DC 20460

OF COUNSEL:

7 CAROL DEMARCO KING Water Enforcement Division Office of Civil Enforcement Office of Enforcement and Compliance Assurance United States Environmental Protection Agency 1200 Pennsylvania Ave., NW (2243A) Washington, DC 20460 Telephone: 202-564-2412 Facsimile: 202-564-0024

10 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR PLAINTIFF THE UNITED STATES OF AMERICA (continued):

"PAYJ. KES Regional-do nsel United States Environmental Protection Agency Region 4 61 Forsyth Street Atlanta, GA 30303

OF COUNSEL:

/1

WILLIAM B. BUSH, R. Associate Regional Counsel United States Environmental Protection Agency Region 4 61 Forsyth Street Atlanta, GA 30303 Telephone: 404-562-9538 Facsimile: 404-562-9486

11 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR THE STATE OF ALABAMA, ex. reLLUTHER STRANGE, ATTORNEY GENERAL

ROBERT D. TAMBLINL.-- Assistant Attorney General Office of the Attorney General Alabama State House 501 Washington Avenue Montgomery, Alabama 36104 Phone: (334) 242-7300 Fax: (334) 242-2433

12 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR THE ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

SCHUYLE K. ESPY Assistant Attorney Genera Alabama Department of Environmental Management P.O. Box 301463 Montgomery, AL 36130-1463 Phone: (334) 271-7855 Fax: (334) 394-4332 [email protected]

13 THE UNDERSIGNED PARTIES enter into this Joint Stipulation of Settlement in the matter of United States and The State of Alabama, ex rel. Luther Strange, Attorney General, and the Alabama Department of Environmental Management v. The City of Dothan

FOR THE CITY OF DOTHAN

Signature: Date Name: Honorable Mike Schmitz Title: Mayor Address: City of Dothan, Alabama 126 N. Saint Andrews Street Dothan, Alabama 36303

Agent Authorized to Accept Service on Behalf of Above-signed Party:

Name: Adam G. Sowatzka Title: Partner Address: King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309-3521 Phone Number: 404-572-3508 Email: [email protected]

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