IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) ) Civil Action No. v. ) ) CONSENT DECREE ) COUNTY OF ERIE, ) ) Defendant. ) ) TABLE OF CONTENTS I. JURISDICTION AND VENUE -2- II. APPLICABILITY -2- III. DEFINITIONS IV. CIVIL PENALTY -5- V COMPLIANCE REQUIREMENTS -6- VI. REPORTING REQUIREMENTS -11- VII. STIPULA 1ED PENALTIES -11- VIII. FORCE MAJEURE -15- IX. DISPUTE RESOLUTION -17- X. INFORMATION COLLECTION AND RETENTION -20- XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS -22- XII. COSTS -23- XIII. NOTICES... ........................ .. ......... ...... ........................... ....... ........... ................... ..-25- XIV. EFFECTIVE DATE -26- XV. RETENTION OF JURISDICTION -26- XVI. MODIFICATION -26- XVII. TERMINATION -27- XVIII. PUBLIC PARTICIPATION -28- XIX. SIGNATORIES/SERVICE -28- XX. INTEGRATION -29- XXI. FINAL JUDGMENT -29- APPENDICES -30- Plaintiff United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), has filed a complaint in this action concurrently with this Consent Decree alleging that Defendant County of Erie (hereinafter "Defendant"), violated Subtitle I of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6991 et. al., and the regulations promulgated pursuant thereto at 40 C.F.R. Part 280, and that Defendant has violated Section 311 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311, and the regulations promulgated pursuant thereto at 40.C.F.R. Part 112. The Complaint against Defendant alleges that Defendant has failed to comply with cathodic protection, release detection, and record-keeping requirements for underground storage tanks ("USTs") systems under Section 9003 of RCRA, 42 U.S.C. § 6991(b), and regulations promulgated pursuant thereto at 40 C.F.R. Part 280, at many of its facilities throughout the County, as well as its failure to prepare and fully implement Spill Prevention Control and Countermeasure Plans ("SPCC Plans") for its above ground storage tanks under Section 311(j) of the CWA, 33 U.S.C. § 1321(j), and the regulations promulgated pursuant thereto at 40 C.F.R. Part 112, at eleven of its facilities throughout the County. Defendant neither admits nor denies any liability to the United States arising out of the transactions or occurrences alleged in the Complaint. The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest. NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Sections 311(b)(7)(E) and 311(n) of the CWA, 33 U.S.C. §§ 1321(b)(7)(E) and 1321(n), and Section 9006(a)(1) of RCRA, 42 U.S.C. § 6991e(a)(1), and over the Parties. Venue lies in this District pursuant to 28 U.S.C. §§ 1391 and 1395(a), because Defendant resides and is located in this judicial district and the violations alleged in the Complaint are alleged to have occurred in this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court's jurisdiction over this Decree and any such action and over Defendant and consents to venue in this judicial district. 2. For purposes of this Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to Section 9006 of RCRA, 42 U.S.C. § 6991e, and Section 311 of the CWA, 33 U.S.C. § 1321. D. APPLICABILITY 3. The obligations of this Consent Decree apply to and are binding upon the United States and upon Defendant and any successors, assigns, or other entities or persons otherwise bound by law. 4. No transfer of ownership or operation of the Facilities, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Defendant of its -2- obligation to ensure that the terms of the Decree are implemented. At least 30 Days prior to such transfer, Defendant shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written transfer agreement, to EPA Region 2, and the United States Department of Justice, in accordance with Section XIII of this Decree (Notices). Any attempt to transfer ownership or operation of the Facilities without complying with this Paragraph constitutes a violation of this Decree. 5. Defendant shall provide a copy of this Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Decree, as well as to any contractor retained to perform work required under this Consent Decree. Defendant shall condition any such contract or amended contract upon performance of the work in conformity with the terms of this Consent Decree. 6. In any action to enforce this Consent Decree, Defendant shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree. III. DEFINITIONS 7. Terms used in this Consent Decree that are defined in the RCRA or CWA or in regulations promulgated pursuant to those Acts shall have the meanings assigned to them in the Acts or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply: a. "Complaint" shall mean the complaint filed by the United States in this action; -3- b. "Consent Decree" or "Decree" shall mean this Decree and all appendices attached hereto; c. "Day" shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day; d. "Defendant" shall mean the County of Erie in the State of New York. e. "EPA" shall mean the United States Environmental Protection Agency and any of its successor departments or agencies; f. "Effective Date" shall have the definition provided in Section XIV. g. "Facilities" shall mean Defendant's facilities as listed in Appendices A and B. h. "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral; i. "Parties" shall mean the United States and Defendant; "Section" shall mean a portion of this Decree identified by a Roman numeral; k. "State" shall mean the State of New York; --- L-----"Unite-d-Statts"-sh-alrmean-the-UFnited States of America, acting on behalf of EPA. -4- m. "UST" shall have the meaning defined in Section 9001(1), 42 U.S.C. § 6991(1), and in 40 C.F.R. § 280.12. n. "UST system" shall have the meaning defined in 40 C.F.R. § 280.12. o. "Work" shall mean all of the obligations set forth in Section V (Compliance Requirements). IV. CIVIL PENALTY 8. Within 30 Days after the Effective Date of this Consent Decree, Defendant shall pay the sum of $275,000 as a civil penalty, together with interest which shall begin to accrue on the thirty-first day after the Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging as follows. 9. Payment Information a. Defendant shall pay the civil penalty of one hundred fifty - five thousand dollars ($155,000) due by FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be provided to Defendant, following entry of the Consent Decree by the Financial Litigation Unit of the U.S. Attorney's Office for the Western District of New York, 138 Delaware Avenue, Buffalo, NY 14202, (716) 843-5700. The payment shall reference the civil action number assigned to this case and DOJ case number 90-7-1-09728, and shall specify that the payment is for CWA civil penalties that are to—be deposited into the 011 spill Liability Trust Fund pursuant to 33 U.S.C. § 1321(s) and 26 U.S.C. §9509(b)(8). b. At the time of the payment, referenced in paragraph 9a., above, Erie shall also send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter stating that the payment, referenced in paragraph 9(a), above, is for the CWA payment owed pursuant to this Consent Decree in United States v. County of Erie, and shall reference the civil action number assigned to this case and DOJ case number 90-7-1- 09728, to the United States in accordance with Section XIII of this Consent Decree (Notices) and to: Stephen C. Ewart NPFC-MS 7100 National Pollution Funds Center 4200 Wilson Blvd., Suite 1000 Arlington, Virginia 20598-7100 Commander Robert Bruce United States Coast Guard Office of Claims and Litigation 2100 Second Street, S.W. Washington, D.C. 20593 c. Respondent shall pay one hundred twenty thousand dollars ($120,000) due by Fed Wire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be provided to Defendant, following entry of the Consent Decree, by the Financial Litigation Unit of the U.S. Attorney's Office for the Western District of New York, 138 Delaware Avenue, Buffalo, NY 14202, (716) 843-5700.