Environmental Protection Agency Consent Decree_DraftKevin Firnstahl - Environmental Protection Agency Consent Decree.pdf
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To:
Date:
Subject:
Attachments:
Mike Van Milligen
Management Team
4/25/2011 2:53 PM
Environmental Protection Agency Consent Decree.pdf
Environmental Protection Agency Consent Decree.pdf
Page 1 of 1
On the March 7, 2011 City Council Agenda the City Council approved the consent decree that
is being filed today by the US EPA and the Iowa DNR.
file: / /C: \Documents and Settings \kfirnsta \Local Settings \Temp \XPgrpwise \4DB58B06DB... 4/29/2011
Masterpiece on the Mississippi
These good faith efforts by the City led to amicable discussions resulting in this
recommended Consent Decree. The significant terms include:
Dubuque
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1111 ►
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Approval of the Consent Decree with the United States Environmental
Protection Agency
DATE: March 3, 2011
Over the last two years a team led by City Attorney Barry Lindahl, including Water
Pollution Control Plant Manager Jonathan Brown, City Engineer Gus Psihoyos, Public
Works Director Don Vogt, Street and Sewer Maintenance Supervisor John
Klostermann, Project Manager Steve Brown, Civil Engineer II Deron Muehring,
Environmental Attorney Jane McAllister of the Ahlers & Cooney law firm, and City
Manager Mike Van Milligen, have been meeting with representatives of the U.S.
Environmental Protection Agency, U.S. Department of Justice, the Iowa Department of
Natural Resources and the Iowa Attorney General's Office related to violations at the
Water Pollution Control Plant and with the operation and maintenance of the City
sanitary sewer system.
While City staff believed that the City was fully aware of the issues and was proactively
and aggressively taking corrective action, including plans for significant improvements
at the Water Pollution Control Plant and in the sanitary sewer system, the Federal and
State agencies required the execution of a Consent Order detailing expectations for
performance and penalties should those expectations not be met.
• The City must carry out assessments and engineering analyses necessary to
identify all measures needed to ensure that the Sewer Collection System and
Water Pollution Control Plant comply with the requirements of the Clean
Water Act. This work has already been completed and has been
incorporated into the renovation of the facility which is now under contract.
• The City must complete and place in service the Water Pollution Control Plant
construction upgrade.
• The City must certify that it has completed and placed into service the
construction upgrade of the North Fork Catfish interceptor sewer.
• The City must complete an infiltration and inflow isolation study and
implement the corrective actions that are necessary to prevent infiltration and
inflow into the sanitary sewer collection system.
• The City must submit for EPA review and approval a Collection System
Management, Operation And Maintenance Program (CMOM) which is
designed to eliminate sanitary sewer overflows, to implement an immediate
response program to ensure quick mitigation of all sanitary sewer overflows
and to continuously prioritize areas of the collection system that need to be
addressed via short term and long term solutions.
Following completion of the foregoing remedial measures, the City must demonstrate
for one year that all sanitary sewer overflows caused by insufficient capacity of the
Sewer Collection System and bypasses have been eliminated.
There are significant reporting requirements for the City to report to EPA and IDNR
regarding events and activities required to be performed.
The City will be required to pay a civil penalty in the amount of $205,000 to the United
States and the State of Iowa.
The City also must implement a supplemental environmental project which has the
objective of securing significant environmental or public health protection and
improvements. The City has proposed, and DOJ has approved of a project pursuant to
which the City will reconstruct four (4) alleys in the City using permeable interlocking
concrete pavers which will allow for ground infiltration of storm water designed to keep
storm water out of the publicly owned treatment works. The City has estimated the cost
of the project to be approximately $300,000. The implementation of this project has
reduced the civil penalty significantly to the amount indicated above.
The Consent Decree also provides for significant stipulated penalties, for each day that
the City fails to comply with the various requirements of the Consent Decree.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jh
Attachment
ichael C. Van Milligen
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manger
Jonathan Brown, Water Pollution Control Plant Manager
Don Vogt, Public Works Director
Gus Psihoyos, City Engineer
John Klostermann, Street and Sewer Maintenance Supervisor
Deron Muehring, Civil Engineer II
Steve Brown, Project Manager
THE CITY OF
DUB1UE MEMORANDUM
Masterpiece on the M issippi <
BARRY LINDA L
CITY ATTORNEY
To:
Michael C. Van Milligen
City Manager
DATE: March 2, 2011
RE: Approval of Consent Decree with the United States Environmental
Protection Agency
On January 29, 2009, the City received notice from the United States Department of
Justice, Environmental Natural Resources Division (DOJ) that DOJ was considering
filing a civil action on behalf of the United States Environmental Protection Agency
(EPA) against the City of Dubuque. The notice, while not specifying the precise nature
of the claims, stated that the civil action would seek civil penalties and injunctive relief
against the City for "illegal discharges of untreated sewage within its POTW (publicly
owned treatment works) and collection system, which are not identified in its National
Pollution Discharge Elimination System ( "NPDES ") permit as authorized outfalls, into
waters of the United States." The notice also indicated that the lawsuit would seek civil
penalties and injunctive relief against the City for violations of the effluent limits,
standard conditions, and other requirements of the NPDES permit during the five
proceeding years, "including the City's failure to require all Waste Water Treatment
Facility users to comply with its Pretreatment Program." The notice indicated that the
State of Iowa, through the Iowa Attorney General's office, would join with the United
States in bringing this civil action.
The notice also extended to the City an opportunity to discuss settlement of the matter.
The City responded to the notice by indicating we did indeed have an interest in
discussing settlement.
Over the next two years, the City team, including City Manager Michael C. Van Milligen,
Water Pollution Control Department Manager Jonathan Brown, City Engineer Gus
Psihoyos, Project Manager Steve Brown, Civil Engineer Deron Muehring, Public Works
Director Don Vogt, Street & Sewer Maintenance Supervisor John Klostermann, and City
Attorney Barry Lindahl, and our environmental attorney Jane McAllister, Esq., held
numerous internal meetings, attended several meetings with representatives of the
DOJ, EPA and IDNR. We believe that the alleged violations referred to by DOJ in the
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563)583-4113/ FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
notice were well on the way to be corrected prior to the issuance of the notice. The City
had over the past five (5) years planned for significant improvements to the Water
Pollution Control Plant which had been the source of many of the alleged violations.
The City had also planned for and begun contracting for improvement to the Catfish
Creek Drainage System which had also been the source of many of the alleged
complaints.
Based in large part upon these improvements which had been planned and were
underway, we were able to negotiate a Consent Decree which resolves the issues that
would have been the subject of the lawsuit. A copy of the proposed Consent Decree is
attached. The purpose of the Consent Decree is stated in paragraph 6 as follows:
6. The express purpose of the Parties entering into this Consent Decree
is for the City to take all necessary measures to achieve full compliance
with the Clean Water Act, the regulations promulgated thereunder, the
Iowa water pollution control laws, and the City's NPDES Permit, with the
goal of eliminating all Sanitary Sewer Overflows (SSOs). All plans,
reports, construction, remedial maintenance, and other obligations in this
Consent Decree, and under any amendment to this Consent Decree, shall
have the objective of ensuring that the City complies with the CWA, all
applicable federal and state regulations, and the terms and conditions of
its NPDES Permit.
The significant terms of the Consent Decree include the following:
Remedial Measures And Schedules:
• The City must carry out assessments and engineering analyses necessary to
identify all measures needed to ensure that the Sewer Collection System and
Water Pollution Control Plant comply with the requirements of the Clean
Water Act. This work has already been completed and has been
incorporated into the renovation of the facility which is now under contract.
• The City must complete and place in service the Water Pollution Control Plant
construction upgrade.
• The City must certify that it has completed and placed into service the
construction upgrade of the North Fork Catfish interceptor sewer.
• The City must complete an infiltration and inflow isolation study and
implement the corrective actions that are necessary to prevent infiltration and
inflow into the sanitary sewer collection system.
• The City must submit for EPA review and approval a Collection System
Management, Operation And Maintenance Program (CMOM) which is
designed to eliminate sanitary sewer overflows, to implement an immediate
2
response program to ensure quick mitigation of all sanitary sewer overflows
and to continuously prioritize areas of the collection system that need to be
addressed via short term and long term solutions.
Following completion of the foregoing remedial measures, the City must demonstrate
for one year that all sanitary sewer overflows caused by insufficient capacity of the
Sewer Collection System and bypasses have been eliminated.
There are significant reporting requirements for the City to report to EPA and IDNR
regarding events and activities required to be performed.
The City will be required to pay a civil penalty in the amount of $205,000 to the United
States and the State of Iowa.
The City also must implement a supplemental environmental project which has the
objective of securing significant environmental or public health protection and
improvements. The City has proposed, and DOJ has approved of a project pursuant to
which the City will reconstruct four (4) alleys in the City using permeable interlocking
concrete pavers which will allow for ground infiltration of storm water designed to keep
storm water out of the publicly owned treatment works. The City has estimated the cost
of the project to be approximately $300,000. The implementation of this project has
reduced the civil penalty significantly to the amount indicated above. The Consent
Decree also provides for significant stipulated penalties, for each day that the City fails
to comply with the various requirements of the Consent Decree.
If the proposed Consent Decree is approved by the Mayor and City Council, the
Consent Decree will be submitted to the other governmental agencies for final approval.
The Consent Decree and an accompanying complaint will then be filed with the United
States District Court for the Northern District of Iowa, subject to a thirty (30) day public
notice period in the federal court.
BAL:tts
Attachment
cc: Jonathan Brown, Water Pollution Control Department Manager
Gus Psihoyos, City Engineer
Steve Brown, Project Manager
Deron Muehring, Civil Engineer
Don Vogt, Public Works Director
John Klostermann, Street & Sewer Maintenance Supervisor
Jane McAllister, Esq.
F: \USERS \tstecklelLindahl \Water Pollution Control Plant EPA Violation\MVM ApprovalOfConsentDecreeWithEPA 030211.doc
3
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THE UNITED STATES OF AMERICA, )
)
and )
)
THE STATE OF IOWA, )
)
Plaintiffs, )
)
v. )
)
THE CITY OF DUBUQUE, IOWA, )
)
Defendant. )
)
)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
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Civil Action No.
TABLE OF CONTENTS
CONSENT DECREE
I. JURISDICTION AND VENUE 4
II. APPLICABILITY 5
III. PURPOSE 6
IV. DEFINITIONS 7
V. REMEDIAL MEASURES AND SCHEDULES 10
VI. DEMONSTRATION AND ELIMINATION OF SSOs 14
VII. REVIEW AND APPROVAL PROCEDURES 16
VIII. REPORTING REQUIREMENTS 17
IX. CIVIL PENALTY 19
X. SUPPLEMENTAL ENVIRONMENTAL PROJECT 20
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XI. STIPULATED PENALTIES 23
XII. EFFECT OF SETTLEMENT /RESERVATION OF RIGHTS 28
XIII. FORCE MAJEURE 30
XIV. DISPUTE RESOLUTION 33
XV. RIGHT OF ENTRY AND RECORD RETENTION 36
XVI. COSTS OF SUIT 37
XVII. NOTICES 37
XVIII. CERTIFICATION 39
XIX. EFFECTIVE DATE 40
XX. RETENTION OF JURISDICTION 40
XXI. MODIFICATION 40
XXII. TERMINATION 41
XXIII. PUBLIC PARTICIPATION 42
XXIV. SIGNATORIES /SERVICE 42
XXV. INTEGRATION /APPENDICES 43
XXVI. FINAL JUDGMENT 44
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WHEREAS, Plaintiff, United States of America, by authority of the Attorney General of
the United States and through the undersigned attorneys, acting at the request and on behalf of
the Administrator of the United States Environmental Protection Agency (EPA), and Plaintiff
State of Iowa, by authority of the Attorney General of Iowa and through the undersigned
attorneys, jointly filed the Complaint on [date], seeking injunctive relief and civil penalties
against Defendant City of Dubuque (City), pursuant to Sections 309(b) and (d) of the federal
Clean Water Act (CWA or the Act), 33 U.S.C. §§ 1319(b) and (d), for the City's alleged
discharges of pollutants, including sewage, from its sanitary sewer system into waters of the
United States in violation of Section 301 of the Act, 33 U.S.C. § 1311.
WHEREAS, the State of Iowa, is a party to this action pursuant to Section 309(e) of the
CWA, 33 U.S.C. § 1319(e).
WHEREAS, the City owns and operates a publicly owned treatment works as defined at
40 C.F.R. § 403.3 that includes a Water Pollution Control Plant (WPCP) and Sewer Collection
System, serving residential, commercial and industrial entities throughout the City of Dubuque.
WHEREAS, the United States alleges that Defendant has violated, and could continue to
violate, Sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§ 1311 and 1342, by: (1)
discharging untreated sewage from its publicly owned treatment works, including but not limited
to Sanitary Sewer Overflows, as defined in Section IV of this Consent Decree, into the
Mississippi River and its tributary, Catfish Creek; (2) discharging pollutants from its WPCP in
excess of the City's National Pollutant Discharge Elimination System (NPDES) permit, and; (3)
failing to comply with the Pretreatment Requirements of the City's permit.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 3
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WHEREAS, the City submitted to the Iowa Department of Natural Resources (IDNR) on
January 9, 2006, a North Fork Catfish Creek Interceptor Plan designed to eliminate Sanitary
Sewer Overflows to Catfish Creek, which was approved by IDNR on January 31, 2006.
WHEREAS, the City submitted to IDNR on May 29, 2008, a Dubuque Water Pollution
Control Plant Facilities Plan designed, among other goals, to eliminate violations of the effluent
limits in the City's NPDES permit.
WHEREAS, IDNR approved the design for the Dubuque Water Pollution Control Plant
Facilities Plan and construction has begun.
WHEREAS, the City hired a Pretreatment Coordinator on or around April 1, 2009, with the
goal of ensuring compliance with the Pretreatment Requirements in the City's NPDES permit.
WHEREAS, Defendant does not admit any violations or any liability arising out of the
transactions or occurrences alleged in the Complaint.
WHEREAS, 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 this Consent Decree is fair, reasonable, and in the public interest.
NOW THEREFORE, 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 Sections
309(b), 504(a), and 505(a) of the CWA, 33 U.S.C. §§ 1319(b), 1364(a), and 1365(a), and
28 U.S.C. §§ 1331, 1345 and 1355, and over the Parties. Venue lies in this District,
pursuant to Sections 309(b) and 505(c) of the CWA, 33 U.S.C. §§ 1319(b) and 1365(c),
and 28 U.S.C. § 1391(b), because it is the judicial district where the City is located and
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 4
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where the alleged violations occurred. For purposes of this Consent Decree, or any
action to enforce this Consent Decree, the City consents to the Court's jurisdiction over
the City, this Consent Decree, and any such action, and further consents to venue in this
judicial district.
II. APPLICABILITY
2. The provisions of this Consent Decree shall apply to, and be binding upon the City, and
its officers, directors, employees, agents, servants, successors, assigns, and all persons,
firms and corporations under contract with the City to perform obligations of this
Consent Decree, and upon the United States, and its agencies, departments,
representatives, employees, successors, and assigns, and upon the State of Iowa, and its
agencies, departments, representatives, employees, successors and assigns.
3. No transfer of ownership or operation of any portion of its publicly owned treatment
works, including any portion of its WPCP or Sewer Collection System, whether in
compliance with the procedures of this Paragraph or otherwise, shall relieve the City of
its obligation to ensure that the provisions of this Consent Decree are implemented. At
least thirty (30) Days prior to such transfer, the City 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 transfer document, to the EPA,
the United States Department of Justice, and the State, in accordance with Section XVI
(Notices). Any attempt to transfer ownership or operation of any portion of its publicly
owned treatment works without complying with this Paragraph constitutes a violation of
this Consent Decree.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 5
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4. The City 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
Consent Decree, as well as to any contractor or consultant retained to perform work
required under this Consent Decree. The City shall condition any such future contract
upon performance of the work in conformity with the provisions of this Consent Decree.
5. Any action taken by any contractor or consultant retained to implement the City's
obligations under this Consent Decree shall be considered an action of the City solely for
purposes of determining compliance with this Consent Decree. In an action to enforce
this Consent Decree, the City shall not assert as a defense against the United States and /or
State the act or failure to act by any of its officers, directors, employees, agents,
contractors, consultants, successors or assigns. However, this Consent Decree shall not
limit the City's right to take all appropriate action against any such person or entity that
causes or contributes to the City's act or failure to act.
III. PURPOSE
6. The express purpose of the Parties entering into this Consent Decree is for the City to
take all necessary measures to achieve full compliance with the Clean Water Act, the
regulations promulgated thereunder, the Iowa water pollution control laws, and the City's
NPDES Permit, with the goal of eliminating all Sanitary Sewer Overflows (SSOs). All
plans, reports, construction, remedial maintenance, and other obligations in this Consent
Decree, and under any amendment to this Consent Decree, shall have the objective of
ensuring that the City complies with the CWA, all applicable federal and state
regulations, and the terms and conditions of its NPDES Permit.
U.S. & State of'Iowa v. City of Dubuque Consent Decree, page 6
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IV. DEFINITIONS
7. Terms used in this Consent Decree that are defined in the CWA or the regulations
promulgated under the CWA shall have the meanings assigned to them in the CWA or
such regulations, unless otherwise provided in this Consent Decree. Whenever the terms
set forth below are used in this Consent Decree, the following definitions shall apply:
a. `Building/Private Property Backup" shall mean a Sanitary Sewer Overflow in the
form of wastewater release or backup into a building or onto private property that
is caused by blockages, flow conditions, or other malfunctions in the publicly
owned treatment works. A wastewater backup or release that is caused by
blockages, flow conditions, or other malfunctions of a line that is not owned by
the City is not a Building/Private Property Backup for purposes of this Decree.
b. "Bypass" as that term is defined in 40 C.F.R. § 122.41(m) shall mean the
intentional diversion of waste streams from the WPCP.
c. "City" shall mean the Defendant City of Dubuque, Iowa.
d. "Consent Decree" or "Decree" shall mean this Consent Decree and all appendices
attached hereto.
e. "Day" or "Days" shall mean a calendar day or calendar days 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 or state
holiday, the period shall run until the close of business of the next business day.
f. "Force Main" shall mean any pipe that receives and conveys, under pressure,
wastewater from the discharge side of a pump. A Force Main is intended to
convey wastewater under pressure.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 7
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g. "Gravity Sewer Line" shall mean a pipe that receives, contains and conveys
wastewater not normally under pressure, but is intended to flow unassisted under
the influence of gravity. Gravity sewers are typically not intended to flow full
under normal operating conditions.
h. "Infiltration" shall mean water other than wastewater that enters a sewer system
(including sewer service connections and foundation drains) from the ground
through such means as defective pipes, pipe joints, connections, or manholes, as
defined by 40 C.F.R. § 35.2005(b)(20).
i. "Inflow" shall mean water other than wastewater that enters a sewer system
(including sewer service connections) from sources such as, but not limited to,
roof leaders, cellar drains, yard drains, area drains, drains from springs and
swampy areas, manhole covers, cross connections between storm sewers and
sanitary sewers, catch basins, cooling towers, storm water, surface runoff, street
wash waters, or drainage, as defined by 40 C.F.R. § 35.2005(b)(21).
j. "I/I" shall mean the total quantity of water from Infiltration and Inflow without
distinguishing the source.
k. "Paragraph" shall mean a portion of this Consent Decree identified by Arabic
numerals.
1. "Parties" shall mean the United States, the State of Iowa, and the City of
Dubuque, Iowa.
m. "NPDES Permit" shall mean National Pollutant Discharge Elimination System
permit number IA 0044458 issued to the City pursuant to Section 402 of the
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 8
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Clean Water Act, 33 U.S.C. § 1342, for the WPCP and any future extended,
modified or reissued permit.
n. "Sanitary Sewer Overflow" or "SSO" shall mean an overflow, spill, diversion, or
release of wastewater from or caused by the City's Sewer Collection System.
This term shall include:
i. Discharges to waters of the State or United States from the City's Sewer
Collection System; and
ii. Any release of wastewater from the City's publicly owned treatment
works to public or private property that does not reach waters of the
United States or the State, including Building/Private Property Backups;
o. "Section" shall mean a portion of this Consent Decree identified by a Roman
numeral.
p. "Sewer Collection System" shall mean the municipal wastewater collection and
wastewater transmission systems, including all pipes, interceptors, Force Mains,
Gravity Sewer Lines, lift stations, pumping stations, manholes and appurtenances
thereto, that are owned or operated by the City.
q. "Sewershed" shall mean a section of the City's WPCP that is a distinct drainage
or wastewater collection area and designated as such by the City.
r. "State" shall mean the State of Iowa.
s. "United States" shall mean the United States of America, acting on behalf of the
Environmental Protection Agency.
t. " Water Pollution Control Plant" or "WPCP" shall mean the sewage treatment
plant (or water reclamation facility) operated by the City and located at 795
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 9
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Julien Dubuque Drive, Dubuque, Iowa 52003, and all components of such
sewage treatment plant.
V. REMEDIAL MEASURES AND SCHEDULES
8. The City shall carry out assessments and engineering analyses necessary to identify all
measures needed to ensure that its Sewer Collection System and WPCP comply with the
requirements of the Clean Water Act, the regulations promulgated thereunder, and the
City's NPDES Permit and Iowa water pollution laws, and then shall implement all such
measures in a timely manner, with the goal of elimination of all SSOs.
9. Short -term Remedial Measures at the WPCP
The City shall dispose of biosolids generated at the WPCP to prevent excessive
accumulation. For the purposes of this paragraph, "excessive" shall mean an amount that
could allow carryover of biosolids in the effluent. The biosolids shall be handled and
disposed of in compliance with 40 CFR Part 503 (Sewage Sludge Regulations) and 567
Iowa Admin. Code 67. As required by Paragraph 63, the City shall obtain all permits and
approvals required to carry out this Paragraph.
10. Short -Term Remedial Measures for SSOs
a. The City shall capture overflow from the manhole located on Key Way Drive
between 3500 Keymeer Drive and 3507 Keystone Drive and send the waste water
for treatment to the WPCP in order to eliminate SSOs.
b. The City shall post warning signs at all SSO sites to the extent authorized by law,
except signs are not necessary for residential basement backups. The signs shall
be identical to Appendix E and shall stay in place for at least six (6) months after
completion of the site cleanup, unless IDNR decides in its unreviewable
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 10
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discretion that the sign may be posted for a shorter time period or not at all. As
needed and appropriate, the City shall use of road cleaning and inspection
equipment for the maintenance of off -road sanitary sewer lines.
11. Construction Upgrade to WPCP
The City shall complete and place in service the WPCP construction upgrade as set
forth in Section 7 of the Dubuque Water Pollution Control Plant Facilities Plan
( "Facilities Plan," attached here as Appendix B) no later than thirty -four (34) months
from Effective Date. The Facilities Plan, attached here as Appendix B, or modified
design approved by IDNR, shall be incorporated by reference and fully enforceable
under the terms of this Consent Decree.
12. Construction Upgrade to Sewer Collection System
a. The City certifies, in accordance with Paragraph 87, that it has completed and
placed into service the construction upgrade of the North Fork Catfish interceptor
sewer, as recommended in the North Fork Catfish Creek Sanitary Trunk Sewer
Study ( "Interceptor Plan," attached here as Appendix C). The Interceptor Plan
shall be incorporated by reference and fully enforceable under the terms of this
Consent Decree.
b. The City shall complete I &I isolation flow metering within all five sanitary
Sewersheds as recommended in the Dubuque Comprehensive Sanitary Sewer
Master Plan — Recommendations for Future RDII Investigations ( "I &I Reduction
Plan," attached here as Appendix D). The I &I reduction Plan shall be
incorporated by reference and fully enforceable under the Consent Decree
according to the following schedule:
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 11
Sewershed
Metering
finished
Source
identification
finished
Corrective
actions sent for
approval
11
12/31/10
9/30/11
12/31/11
12
12/31/11
6/30/12
12/31/12
7
12/31/12
6/30/13
12/31/13
5
12/31/13
6/30/14
12/31/14
10
12/31/14
6/30/15
12/31/15
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c. The City certifies, in accordance with Paragraph 87, that flow meters were
installed within the first Sewershed in time to collect data during 2010 rains.
d. The City shall complete I &I source identification activities such as manhole
inspections, sewer televising, smoke testing, dye testing, home inspections as
necessary to identify sources of I &I within twelve (12) months of completing the
I &I isolation flow metering from each Sewershed, in accordance with the
schedule in subparagraph (b).
e. The City shall provide a report outlining corrective actions to be taken and a
schedule for such actions to eliminate and/or reduce I &I in that Sewershed,
within six (6) months after completing the I &I source identification activities
described above, in accordance with the schedule in subparagraph (b). The
City's report shall be submitted for EPA and the State's approval, pursuant to
Section VII (Review and Approval Procedures).
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 12
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f. The City shall implement the I &I corrective actions upon and pursuant to EPA
and IDNR's approval of the schedule and the City's acquisition of the necessary
construction permits,
13. Collection System Management, Operation and Maintenance (CMOM)
a. Collection System Management, Operation and Maintenance (CMOM) Program:
Within ninety (90) Days after the Effective Date of the Consent Decree the City
shall submit to EPA for review and approval in accordance with the requirements
of Section VII (Review and Approval Procedures), a CMOM program designed
to:
i. Eliminate SSOs from the City's collection system through adequate
staffing, training and resources sufficient to minimize infiltration, inflow,
and loss of water from the system, and maximize conveyance of
wastewater to the treatment plant;
ii. Implement an immediate response program to ensure quick mitigation of
all SSOs, including Building / Private Property Backups (unless caused by
blockage in the homeowner's lateral connection); and
iii. Continuously prioritize areas of the collection system that need to be
addressed via short term and long term solutions based in part on
consideration of the frequency of SSOs and problems identified in specific
areas of the collection system as identified in Paragraph 12.
b. Collection System Management, Operation, and Maintenance Program
Implementation: The City shall implement the CMOM Program within two (2)
calendar months of approval by EPA.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 13
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14. Certification of Legal Authority
The City hereby certifies that it has sufficient legal authority to:
a. Regulate volumes and content of wastewater from satellite municipalities and
private sources;
b. Require that sewers and connections be properly designed and constructed;
c. Ensure that there is proper installation, testing and inspection of new and
rehabilitated sewers;
d. Allow and require implementation of the general and specific prohibitions of the
pretreatment program as defined in 40 C.F.R. § 403.5; and
e. Prohibit Inflow and provide mechanisms for requiring its removal.
15. The City shall provide to EPA and IDNR written certification, pursuant to Paragraph
87, that all remedial measures required by Section V have been completed and placed
into service no later than June 30, 2016.
VI. DEMONSTRATION AND ELIMINATION OF SSOs
16. Following completion of the remedial measures required by Section V in accordance
with the approved schedules, the City shall demonstrate for one year that all SSOs
caused by insufficient capacity of the Sewer Collection System and bypasses have been
eliminated. Any SSOs or bypasses caused by severe natural conditions (such as
hurricanes, widespread flooding, an event triggering a declaration of disaster, and other
similar conditions) shall be excluded from the foregoing requirement.
17. If following completion of the measures required by Section V, the City experiences
any SSOs caused by insufficient capacity of the Sewer Collection System or any
bypasses, then the City must within six (6) calendar months after the date of the SSO or
U.S. & State of'Iowa v. City of Dubuque Consent Decree, page 14
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bypass, submit to EPA for approval a Remedial Plan and Schedule with the goal of
eliminating all bypasses and all SSOs caused by insufficient capacity of the Sewer
Collection System.
a. The Remedial Plan and Schedule must follow sound engineering practices and the
guidance provided in the appropriate sections of Handbook: Sewer System
Infrastructure Analysis and Rehabilitation, EPA/625/6- 91/030, 1991; Existing
Sewer Evaluation and Rehabilitation, WEF MOP FD -6, 1994; and A Guide to
Short Term Flow Surveys of Sewer Systems, WRC Engineering (Undated).
b. The Remedial Plan and Schedule shall include a schedule for completing the
additional measures proposed therein that is as expeditious as possible. After
completing the remedial projects in the Remedial Plan and Schedule, the
demonstration provisions of Paragraph 16 shall again apply for the full period of
one year, subject to the above exclusion for any SSOs or bypasses caused by
severe natural conditions.
18. If following completion of the measures required by Section V, the City experiences
O &M related SSOs, then the City shall, no later than three (3) calendar months after the
date of the SSO, submit a Remedial Plan and Schedule to correct the O &M deficiency
that led to the SSO and submit a report to EPA and IDNR, as required in Sections VII
(Review and Approval Procedures) and VIII (Reporting Requirements), and the
demonstration provisions of this Section shall again apply for the full period of one
year.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 15
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VII. REVIEW AND APPROVAL PROCEDURES
19. After review of any plan, report, or other item that the City is required to submit for
approval to EPA pursuant to this Consent Decree, and after consultation with IDNR, EPA
shall notify the City in writing that EPA (a) approves the submission, in whole or in part;
(b) approves the complete submission or portions of the submission upon specified
conditions; (c) disapproves the submission, in whole or in part, specifying the portion(s)
of the submission that EPA disapproves; or (d) any combination of the above.
20. If the submission is approved pursuant to Paragraph 19(a), the City must perform all
actions required by the plan, report, or other document, in accordance with the schedules
and requirements of the plan, report, or other document, as approved. If the submission
is conditionally approved or approved only in part, pursuant to Paragraph 19(a) or (b), the
City shall, upon written direction from EPA, take all actions required by the approved
plan, report, or other item that EPA determines are technically severable from any
disapproved portions, subject to the City's right to dispute only the specified conditions
or the disapproved portions, under Section XIII of this Decree (Dispute Resolution).
21. If the submission is disapproved in whole or in part pursuant to Paragraph 19(c), the City
shall, within forty -five (45) Days or such other time as EPA and the City agree to in
writing, correct all deficiencies and resubmit the plan, report, or other item, or
disapproved portion thereof, for approval, in accordance with the preceding Paragraphs.
If the resubmission is approved in whole or in part, the City shall proceed in accordance
with the preceding Paragraph.
22. Any stipulated penalties applicable to the original submission, as provided in Section X
of this Decree (Stipulated Penalties), shall accrue during the 45 -Day period or other
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 16
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specified period, but shall not be payable unless the resubmission is untimely or is
disapproved in whole or in part. However, if the original submission was so deficient as
to constitute a material breach of the City's obligations under this Decree, the stipulated
penalties applicable to the original submission shall be due and payable notwithstanding
any subsequent resubmission.
23. If a resubmitted plan, report, or other item, or portion thereof, is disapproved in whole or
in part, EPA may again require the City to correct any deficiencies, in accordance with
the preceding Paragraphs, or may itself correct any deficiencies, subject to the City's
right to invoke Dispute Resolution and the right of the EPA to seek stipulated penalties as
provided in the preceding Paragraphs.
24. All plans, reports, and other items required to be submitted to EPA under this Consent
Decree shall, upon approval or modification by EPA, be enforceable under this Consent
Decree. In the event EPA approves or modifies a portion of a plan, report or other item
required to be submitted to EPA under this Consent Decree, the approved or modified
portion shall be enforceable under this Consent Decree.
VIII. REPORTING REQUIREMENTS
25. The City must submit a report to EPA and IDNR each March 31 and September 30 after
the Effective Date. This Semiannual Report shall include the information set forth below
regarding events or activities performed in the prior six (6) months (or, in the case of the
first Semiannual Report, activities performed since the Date of Lodging).
a. For each SSO, the City must report the following information:
i. The specific (and general) location (i.e., street address and Sewershed);
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 17
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ii. Actual or best estimate of the duration of overflow, including the actual or
best estimated start date and stop date and the start time and stop time;
iii. Actual or best estimated volume of overflow, including actual flow
metering data, where applicable, or method used to estimate volume;
iv. The water body reached by the overflow event;
v. The suspected cause(s);
vi. Description of the SSO's effects on public health and water quality of the
receiving water body, including receiving water sampling results and the
presence of putrescent, unsightly or harmful bottom deposits, oil, scum
and floating debris, unsightly color or turbidity, of offensive odors;
vii. Any and all measures taken by the City to minimize the duration and/or
impacts;
viii. Any specific measures taken to stop the overflow event; and
ix. Any specific measures the City intends to use to prevent recurrence and a
schedule of major milestones for those measures.
b. The Semiannual Report must also contain a summary of the status and progress of
all projects and programs required by Section V (Remedial Measures and
Schedules) and VI (Demonstration and Elimination of SSOs) of this Decree,
including, but not limited to:
i. Construction upgrades;
ii. A summary of all information required to be submitted under its NPDES
Permit in accordance with the requirements of the permit; and
U.S. & State of'Iowa v. City of Dubuque Consent Decree, page 18
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iii. A list of all NPDES violations that have occurred at the City's WPCP
within the 6 -month period being reported. This listing shall include the
date of the violation, the parameter exceeded, the permit limit, the reported
amount, the cause, and any additional relevant information included on the
DMR or in its cover letter (i.e., claim of upset, etc.).
26. All reports required to be submitted in this Section must contain a certification signed by
a responsible official of the City in accordance with Paragraph 87.
27. The City must maintain copies of all written submissions prepared pursuant to this
Section for five years after termination of the Decree.
28. The reporting requirements of this Consent Decree do not relieve the City of any
reporting obligations required by the CWA or implementing regulations, by the City's
NPDES Permit, or by any other federal, state, or local law, regulation, permit, or other
requirement.
29. Any information provided pursuant to this Consent Decree may be used by the United
States or the State in any proceeding to enforce the provisions of this Consent Decree and
as otherwise permitted by law.
IX. CIVIL PENALTY
30. Within thirty (30) Days after the Effective Date of this Consent Decree, the City shall pay
the sum of $205,000 as a civil penalty, together with interest accruing from the date on
which this Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C.
§ 1961 as of the Date of Lodging.
31. The City shall pay 50% of the civil penalty due by FedWire Electronic Funds Transfer
(EFT) to the U.S. Department of Justice in accordance with written instructions to be
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 19
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provided to the City, following entry of the Consent Decree, by the Financial Litigation
Unit of the U.S. Attorney's Office for the Northern District of Iowa. Any payments
received after 4:00 pm Eastern Time will be credited on the next business Day. At the
time of payment, the City shall send a copy of the EFT authorization form and the EFT
transaction record, together with a transmittal letter, which shall state that the payment is
for the civil penalty owed pursuant to the Consent Decree in United States of America
and the State of Iowa v. City of Dubuque, and shall reference the civil action number,
2008V00041, and DOJ case number 90- 5- 1- 1- 09339, to the United States in accordance
with Section XVI of this Consent Decree (Notices); by email to
acctsreceivable .CINWDgepa.gov; and by mail to:
of Iowa" to:
EPA Cincinnati Finance Office
26 Martin Luther King Drive
Cincinnati, Ohio 45268
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32. The City shall pay 50% of the civil penalty due by mailing a check payable to the "State
David R. Sheridan
Environmental Law Division
Lucas State Office Bldg.
321 E. 12 Street, Room 018
Des Moines, IA 50319
33. The City shall not deduct any penalties paid under this Decree pursuant to this Section or
Section XI (Stipulated Penalties) in calculating its federal or state income tax.
X. SUPPLEMENTAL ENVIRONMENTAL PROJECT
34. The City shall implement a Supplemental Environmental Project ( "SEP "), which has the
objective of securing significant environmental or public health protection and
improvements. Under the SEP, the City shall reconstruct four (4) alleys in the City of
U.S. & State of'Iowa v. Citp of Dubuque Consent Decree, page 20
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Dubuque using permeable interlocking concrete pavers. The permeable pavement will
allow for ground infiltration of stormwater designed to keep stormwater out of the
publicly owned treatment works. A detailed description of the SEP is attached as
Appendix F.
35. SEP Work Plan. Within thirty (30) days of the Effective Date of the Consent Decree, the
City shall submit a SEP Work Plan to EPA for review and approval. The SEP Work Plan
shall include a proposed schedule for completion of the SEP. In any event, the SEP shall
be completed no later than December 31, 2014. The City shall satisfactorily complete the
SEP in accordance with the schedule and requirements in the approved SEP Work Plan.
36. The City is responsible for satisfactory completion of the SEP in accordance with the
requirements of this Consent Decree. The City may use contractors or consultants in
planning and implementing the SEP.
37. With regard to the SEP, the City certifies the truth and accuracy of each of the following:
a. that all cost information provided to EPA in connection with EPA's approval of
the SEP is complete and accurate and that the City in good faith estimates that
the cost to implement the SEP is $300,000;
b. that, as of the date of executing this Decree, the City is not required to perform or
develop the SEP by any federal, state, or local law or regulation and is not
required to perform or develop the SEP by agreement, grant, or as injunctive
relief awarded in any other action in any forum;
c. that the SEP is not a project that the City was planning or intending to construct,
perform, or implement other than in settlement of the claims resolved in this
Decree;
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 21
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d. that the City has not received and will not receive credit for the SEP in any other
enforcement action; and
e. that the City will not receive any reimbursement for any portion of the SEP from
any other person.
38. SEP Completion Report. Within thirty (30) days after completion of the SEP, the City
shall submit a SEP Completion Report to the United States, in accordance with Section
VII of this Consent Decree (Communications). The SEP Completion Report shall
contain the following information:
a. a detailed description of the SEP as implemented;
b. a description of any problems encountered in completing the SEP and solutions
thereto;
c. an itemized list of all eligible SEP costs expended;
d. certification that the SEP has been fully implemented pursuant to the provisions
of this Consent Decree; and
e. a description of the environmental and public health benefits resulting from
implementation of the SEP.
39. EPA may, in its sole discretion, require information in addition to that described in the
preceding Paragraph, in order to evaluate Defendant's SEP Completion Report.
40. After receiving the SEP Completion Report, the United States shall notify Defendant
whether or not Defendant has satisfactorily completed the SEP. The City will be
deemed to have satisfactorily completed the SEP when (1) EPA determines that the City
made good faith efforts to spend the entire $300,000 estimated SEP cost; (2) Dubuque
certifies, with supporting documentation, that at least $300,000 has been disbursed to
U.S. & State of'Iowa v. City of Dubuque Consent Decree, page 22
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pay for the SEP; and (3) EPA has approved the completed SEP. If Defendant has not
completed the SEP in accordance with this Consent Decree, stipulated penalties may be
assessed under Section XI of this Consent Decree.
41. Disputes concerning the satisfactory performance of the SEP and the amount of eligible
SEP costs may be resolved under Section XIV of this Consent Decree (Dispute
Resolution). No other disputes arising under this Section shall be subject to Dispute
Resolution.
42. Each submission required under this Section X shall be signed by a City official with
knowledge of the SEP and shall bear the certification language set forth in Section
XVIII.
43. Any public statement, oral or written, in print, film, or other media, made by Defendant
making reference to the SEP under this Decree shall include the following language:
"This project was undertaken in connection with the settlement of an enforcement
action, United States and State of Iowa v. City of Dubuque, Iowa, taken on behalf of the
U.S. Environmental Protection Agency and the State of Iowa under the Clean Water
Act."
44. For federal income tax purposes, Defendant agrees that it will neither capitalize into
inventory or basis nor deduct any costs or expenditures incurred in performing the SEP.
XI. STIPULATED PENALTIES
45. Failure to Submit Timely and Complete Documents. The City shall pay stipulated
penalties to the United States and the State, as set forth below, for each Day it fails to
submit and/or complete any plans, reports or other submittals required under this Decree
by the specified due dates or to make any required material changes to those documents
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 23
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within the required time frames. The stipulated penalties for failure to meet each
document submission date shall be as follows:
Period of Noncompliance Penalty per Violation per Day
1st to 5 Day $250.00
5th to 30th Day $1,000.00
31st to 60th Day $2,500.00
more than 60 Days $5,000.00
46. Remedial Requirements. The City shall pay stipulated penalties to the United States
and the State as set forth below for each Day for each violation the City fails to satisfy
any of the remedial requirements of Paragraphs 9, 10, 11, 12, 13, or 15 of this Consent
Decree. The stipulated penalties for failure to meet each such requirement shall be as
follows:
Period of Noncompliance Penalty per Violation per Day
1st to 30th Day $1,000.00
31st to 60th Day $3,000.00
more than 60 Days $5,000.00
47. SSOs. For each SSO, the City shall pay a stipulated penalty of $1,000.00 per violation
per Day to the United States and the State.
48. Bypasses. For each bypass before, during, and after construction of the WPCP upgrade,
the City shall pay a stipulated penalty of $1,000.00 per violation per Day to the United
States and the State.
49. Effluent/Emissions Limits.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 24
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a. Until the WPCP upgrade is completed and put into service as required by
Paragraph 11, the City shall pay stipulated penalties to the United States and the
State for each Day for each violation of a requirement of any of the City's
NPDES Permits, as follows:
Period of Noncompliance Penalty Per Violation Per Day
1st through 14th Day $100.00
15th through 30th Day $300.00
31st Day and beyond $500.00
b. After the WPCP upgrade is completed and put into service as required by
Paragraph 11, the City shall pay stipulated penalties to the United States and the
State for each Day for each violation of a requirement of any of the City's
NPDES Permits, as follows:
Period of Noncompliance Penalty Per Violation Per Day
1st through 14th Day $1,000.00
15th through 30th Day $3,000.00
31st Day and beyond $5,000.00
50. Reporting Requirements. The City shall pay stipulated penalties to the United States
and the State for each Day for each violation of the reporting requirements of Section
VIII of this Consent Decree:
Period of Noncompliance Penalty Per Violation Per Dav
1st through 14th Day $500.00
15th through 30th Day $1,000.00
31st Day and beyond $2,000.00
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 25
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51. Delay in Payment of Penalty: The City shall pay to the United States and the State a
stipulated penalty of $2,000 for each Day that the City is late in paying the civil penalty
required under Section IX.
52. All Other Violations: The City shall pay to the United States and the State a stipulated
penalty of $1,500.00 per violation per Day for any violation of the Consent Decree that is
not specified in this Section.
53. Stipulated penalties shall automatically begin to accrue on the first Day the City fails
either to meet any of the schedules of performance required by this Consent Decree or to
satisfy any obligation or requirement of this Consent Decree and shall continue to accrue
through the final Day of correction of the noncompliance or completion of the activity.
Stipulated penalties shall accrue simultaneously for separate violations of this Consent
Decree.
54. The City shall pay stipulated penalties to the United States and the State within thirty (30)
Days of receipt of a written demand by either Plaintiff. The City shall pay 50% of the
total stipulated penalty amount due to the United States and 50% to the State. The
Plaintiff making a demand for payment of a stipulated penalty shall simultaneously send
a copy of the demand to the other Plaintiff. Payment of stipulated penalties as set forth
above shall be in addition to any other rights or remedies which may be available to the
United States or the State by reason of the City's failure to comply with requirements of
this Consent Decree, and any applicable Federal, State or local laws, regulations, NPDES
Permit and all other applicable permits.
55. Stipulated penalties shall continue to accrue as provided in Paragraph 53, during any
Dispute Resolution, but need not be paid until the following:
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 26
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a. If the dispute is resolved by agreement or by a decision of EPA that is not
appealed to the Court, the City shall pay accrued penalties determined to be
owing, together with interest, to the Plaintiffs within thirty (30) Days of the
effective date of the agreement or the receipt of EPA's decision.
b. If the dispute is appealed to the Court and the United States prevails in whole or
in part, the City shall pay all accrued penalties determined by the Court to be
owing, together with interest, within sixty (60) Days of receiving the Court's
decision or order, except as provided in subparagraph c, below.
c. If any Party appeals the District Court's decision, the City shall pay all accrued
penalties determined to be owing, together with interest, within fifteen (15) Days
of receiving the final appellate court decision.
56. The City shall pay stipulated penalties owing to the Plaintiffs in the manner set forth and
with the confirmation notices required by Section IX (Civil Penalty), except that the
transmittal letters shall state that the payment is for stipulated penalties and shall state for
which violation(s) the penalties are being paid.
57. If the City fails to pay stipulated penalties according to the terms of this Consent Decree,
the City shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961,
accruing as of the date payment became due. Nothing in this Section shall be construed
to limit the United States or the State from seeking any remedy otherwise provided by
law for the City's failure to pay any stipulated penalties.
58. Subject to the provisions of Section XI of this Consent Decree (Effect of
Settlement /Reservation of Rights), the stipulated penalties provided for in this Consent
Decree shall be in addition to any other rights, remedies, or sanctions available to the
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 27
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United States and /or the State for the City's violation of this Consent Decree or
applicable law. Where a violation of this Consent Decree is also a violation of Section
301 or 402 of the CWA, 33 U.S.C. §§ 1311 and 1342, and the regulations promulgated
thereunder, the City shall be allowed a credit, for any stipulated penalties paid, against
any statutory penalties imposed for such violation.
XII. EFFECT OF SETTLEMENT /RESERVATION OF RIGHTS
59. This Consent Decree resolves the claims for civil penalties for the violations alleged in
the Complaint through the Date of Lodging.
60. The United States and the State reserve all rights against the City with respect to any
violations by the City that occur after the Date of Lodging, and /or for any violations of
the CWA or applicable state law not specifically alleged in the Complaint, whether they
occurred before or after the Date of Lodging.
61. The United States and the State further reserve all legal and equitable remedies available
to enforce the provisions of this Consent Decree, except as expressly stated in Paragraph
59. This Consent Decree shall not be construed to limit the rights of the United States or
the State to obtain penalties or injunctive relief under the CWA or implementing
regulations, or under other federal or state laws, regulations, or permit conditions, except
as expressly specified in this Consent Decree. The United States and the State reserve all
rights against the City with respect to criminal liability. The United States and the State
further reserve all legal and equitable remedies to address any imminent and substantial
endangerment to the public health or welfare or the environment arising at, or posed by,
the City's publicly owned treatment works, whether related to the violations addressed in
this Consent Decree or otherwise.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 28
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62. In any subsequent administrative or judicial proceeding initiated by the United States or
the State for injunctive relief, civil penalties, other appropriate relief relating to the City's
publicly owned treatment works or violations under the Complaint, 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 or
the State in the subsequent proceeding were or should have been brought in the instant
case, except with respect to claims that have been specifically resolved pursuant to
Paragraph 59.
63. This Consent Decree is not and shall not be construed as a permit or a modification of
any permit, under any federal, State, or local laws or regulations. The City is responsible
for achieving and maintaining complete compliance with all applicable federal, State, and
local laws, regulations, and permits; and the City's compliance with this Consent Decree
shall be no defense to any action commenced pursuant to any such laws, regulations, or
permits. The United States and the State do not, by their consent to the entry of this
Consent Decree, warrant or aver in any manner that the City's compliance with any
aspect of this Consent Decree will result in compliance with provisions of the CWA or
with any other provisions of federal, State, or local laws, regulations, or permits.
Notwithstanding EPA and IDNR's review or approval of any plans, reports, policies or
procedures developed pursuant to or as a result of this Consent Decree, the City shall
remain solely responsible for any non - compliance with the terms of this Consent Decree,
all applicable permits, as well as all federal and state laws and regulations promulgated
under those laws.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 29
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64. The City's duty to comply with the terms of this Consent Decree is not conditioned on
the receipt of any federal or state funds or the City's financial capabilities. Failure to
comply is not excused by lack of federal or state grant funds, or by the processing of any
applications for the same, or by the City's financial capabilities.
65. This Consent Decree does not limit or affect the rights of the Parties against any third
parties not party to this Consent Decree, nor does it limit the rights of third parties not
party to this Consent Decree, against the City, except as otherwise provided by law. This
Consent Decree shall not be construed to create rights in, or grant any cause of action to,
any third party not party to this Consent Decree.
XIII. FORCE MAJEURE
66. "Force Majeure," for purposes of this Consent Decree, is defined as any event arising
from causes beyond the control of the City, of any entity controlled by the City, or of the
City's contractors, that delays or prevents the performance of any obligation under this
Consent Decree despite the City's best efforts to fulfill the obligation. The requirement
that the City exercise "best efforts to fulfill the obligation" includes using best efforts to
anticipate any potential force majeure event and best efforts to address the effects of any
such event (a) as it is occurring and (b) after it has occurred to prevent or minimize any
resulting delay to the greatest extent possible. "Force Majeure" does not include
unanticipated or increased expenses or costs associated with implementation of this
Consent Decree, changed financial circumstances, or other financial or budgetary issues.
67. Failure to apply for a required permit or approval, or to provide in a timely manner all
information required to obtain a permit or approval necessary to meet the requirements of
this Consent Decree, are not Force Majeure events. However, failure of a permitting
U.S. & State of lowa v. Citp of'Dubuque Consent Decree, page 30
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authority to issue a necessary permit in a timely fashion is an event of Force Majeure
where the failure of the permitting authority to act is beyond the control of the City, and
the City demonstrates that it has taken all steps available to it to obtain the necessary
permit or approval, including but not limited to:
a. Promptly providing reasonably known permitting or approval authorities with
copies of this Consent Decree, when lodged, and briefing each such authority,
both orally and with written materials if necessary, on the projects and schedules
contained therein in order to coordinate permitting submittals and approvals;
b. submitting a complete permit application by the deadlines set forth in this Consent
Decree;
c. responding to requests for additional information by the permitting or approval
authority in a timely fashion;
d. making regular inquiry, approximately every forty -five (45) Days, both verbally
and in writing, with the permitting or approval authority after initial or
supplemental permit filings, to determine the status of the permit or approval
application;
e. seeking relief from higher management officials within the permitting or approval
authority where permit processing delays threaten to cause noncompliance with
any deadline in this Consent Decree;
f. accepting lawful permit or approval terms and conditions; and
g. prosecuting appeals of any unlawful terms and conditions imposed by the
permitting or approval authority in an expeditious fashion.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 31
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68. If any event occurs or has occurred that may delay the performance of any obligation
under this Consent Decree, whether or not caused by a Force Majeure event, the City
shall provide notice orally or by electronic mail to the EPA and IDNR in accordance
with Section XVI (Notices), within 72 hours of when the City first knew that the event
might cause a delay. Within seven (7) Days thereafter, the City shall provide in writing
to the EPA and IDNR, in accordance with Section XVI (Notices), an explanation and
description of the reasons for the delay; the anticipated duration of the delay; all actions
taken or to be taken to prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the effect of the delay; the
City's rationale for attributing such delay to a Force Majeure event if it intends to assert
such a claim; and a statement as to whether, in the opinion of the City, such event may
cause or contribute to an endangerment to public health, welfare or the environment.
The City shall include with any notice all available documentation supporting the claim
that the delay was attributable to a Force Majeure. Failure to comply with the above
requirements shall preclude the City from asserting any claim of Force Majeure for that
event for the period of time of such failure to comply, and for any additional delay
caused by such failure. The City shall be deemed to know of any circumstance of which
the City, any entity controlled by the City, or the City's contractors knew or should have
known.
69. If the United States agrees that a Force Majeure event has occurred, after a reasonable
opportunity for review and comment by the State, the United States may agree to extend
the time for the City to perform the obligation(s) under this Consent Decree that are
affected by the Force Majeure event for the time necessary to complete those
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 32
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obligations. An extension of the time for performance of the obligations affected by the
Force Majeure event shall not, by itself, extend the time for performance of any other
obligation. The United States will notify the City in writing of the length of the
extension, if any, for performance of the obligations affected by the Force Majeure
event.
70. If, after a reasonable opportunity for review and comment by the State, the United States
does not agree that a Force Majeure event has occurred, or does not agree to the
extension of time sought by the City, the United States' position shall be binding, unless
the City invokes Dispute Resolution under Section XIII (Dispute Resolution). If the
City elects to invoke the dispute resolution procedures set forth in Section XIII (Dispute
Resolution), it shall do so no later than fifteen (15) Days after receipt of EPA's notice.
In any such proceeding, the City shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has been or will be
caused by a Force Majeure event, that the duration of the delay or the extension sought
was or will be warranted under the circumstances, that best efforts were exercised to
avoid and mitigate the effects of the delay, and that the City complied with the
requirements of Paragraphs 66 through 68, above. If the City carries this burden, the
delay at issue shall be deemed not to be a violation by the City of the affected obligation
of this Consent Decree identified to the EPA and the Court.
XIV. DISPUTE RESOLUTION
71. Unless otherwise expressly provided for in this Consent Decree, the dispute resolution
procedures of this Section shall be the exclusive mechanism to resolve disputes arising
under or with respect to this Consent Decree. The City's failure to seek resolution of a
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 33
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dispute under this Section shall preclude the City from raising any such issue as a
defense to an action by the Plaintiffs to enforce any obligation of the City arising under
this Consent Decree. This Section does not apply to disputes between the City and the
State of Iowa (or its agencies and subdivisions) regarding permits and /or regulatory
compliance.
72. Informal Dispute Resolution Between Plaintiffs and City. Any dispute subject to
Dispute Resolution under this Consent Decree shall first be the subject of informal
negotiations. The dispute shall be considered to have arisen when one party sends the
other parties a written Notice of Dispute. Such Notice of Dispute shall state clearly the
matter in dispute. The period of informal negotiations shall not exceed twenty (20) Days
from the date the dispute arises, unless that period is modified by written agreement. If
the City and the Plaintiffs cannot resolve a dispute by informal negotiations, then the
position advanced by the Plaintiffs shall be considered binding unless, within thirty (30)
Days after the conclusion of the informal negotiation period, the City invokes formal
dispute resolution procedures as set forth below.
73. Formal Dispute Resolution Between Plaintiffs and City. The City shall invoke
formal dispute resolution procedures, within the time period provided in the preceding
Paragraph, by serving on the Plaintiffs a written Statement of Position regarding the
matter in dispute. The Statement of Position shall include, but need not be limited to,
any factual data, analysis, or opinion supporting the City's position and any supporting
documentation relied upon by the City.
74. The Plaintiffs shall serve its Statement of Position within forty -five (45) Days of receipt
of the City's Statement of Position. The Plaintiffs' Statement of Position shall include,
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 34
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but need not be limited to, any factual data, analysis, or opinion supporting that position
and any supporting documentation relied upon by the Plaintiffs. The Plaintiffs'
Statement of Position shall be binding on the City, unless the City files a motion for
judicial review of the dispute in accordance with the following Paragraph.
75. The City may seek judicial review of the dispute by filing with the Court and serving on
the Plaintiffs, in accordance with Section XVI of this Consent Decree (Notices), a
motion requesting judicial resolution of the dispute. The motion must be filed within ten
(10) Days of receipt of the Plaintiffs' Statement of Position pursuant to the preceding
Paragraph. The motion shall contain a written statement of the City's position on the
matter in dispute, including any supporting factual data, analysis, opinion, or
documentation, and shall set forth the relief requested and any schedule within which the
dispute must be resolved for orderly implementation of the Consent Decree.
76. The Plaintiffs shall respond to the City's motion within the time period allowed by the
Local Rules of this Court. The City may file a reply memorandum, to the extent
permitted by the Local Rules.
77. Any dispute brought under Paragraph 73, the City shall have the burden of
demonstrating, based on the administrative record, that the position of the United States
is arbitrary and capricious or otherwise not in accordance with law.
78. Nothing in this section shall be construed to limit the rights of any other party to this
Consent Decree to pursue any and all available claims and remedies against the City for
violation of the terms of the Consent Decree, including the right to seek costs of
litigation for such enforcement activities.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 35
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XV. RIGHT OF ENTRY AND RECORD RETENTION
79. The EPA, IDNR, and their representatives, including attorneys, contractors, and
consultants, shall each have the right of entry into the premises of any City property at
all reasonable times, upon presentation of credentials, to:
a. monitor the progress of activities required under this Consent Decree;
b. verify any data or information submitted to the United States or the State in
accordance with the terms of this Consent Decree;
c. obtain samples and, upon request, splits of any samples taken by the City or its
representatives, contractors, or consultants;
d. observe performance tests;
e. obtain documentary evidence, including photographs and similar data; and
f. assess the City's compliance with this Consent Decree, its NPDES Permits, the
CWA or applicable State law.
80. Until five years after the termination of this Consent Decree, the City shall retain, and
shall instruct its contractors and agents to preserve, all non - identical copies of all
documents, reports, data, records, or other information (including documents, records, or
other information in electronic form) in its or its contractors' or agents' possession or
control, or that come into its or its contractors' or agents' possession or control, and that
relate in any manner to the City's performance of its obligations under this Consent
Decree, including any underlying research and analytical data. This information -
retention requirement shall apply regardless of any contrary City, corporate or
institutional policies or procedures. At any time during this information- retention
period, upon request by the United States or the State, the City shall provide copies of
U.S. & State of Iowa v. City of'Dubuque Consent Decree, page 36
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any documents, reports, analytical data, or other information required to be maintained
under this Paragraph.
81. At the conclusion of the information- retention period provided in the preceding
Paragraph, the City shall notify the United States and the State at least ninety (90) Days
prior to the destruction of any documents, records, or other information subject to the
requirements of the preceding Paragraph and, upon request by the United States or the
State, the City shall deliver any such documents, records, or other information to the
EPA or IDNR.
82. This Consent Decree in no way limits or affects the EPA or the State's right to enter or
access the property of the City, to obtain information, to conduct inspections, to require
monitoring, and to obtain information from the City, as authorized by law, nor does it
limit or affect any duty or obligation of the City to maintain documents, records, or other
information imposed by applicable law.
XVI. COSTS OF SUIT
83. The Parties shall bear their own costs of this action, including attorneys' fees, except that
the United States and the State of Iowa shall be entitled to collect the costs (including
attorneys' fees) incurred in any action necessary to collect any portion of the civil
penalty or any stipulated penalties due but not paid by the City.
XVII. NOTICES
84. Unless otherwise specified herein, whenever notifications, submissions, or
communications are required by this Consent Decree, they shall be made in writing and
addressed as follows:
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 37
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To the United States:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Box 7611 Ben Franklin Station
Washington, D.C. 20044 -7611
Re: DOJ No. 90 -5 -1 -1 -09339
To EPA:
Chief, Water Enforcement Branch
Water, Wetlands, and Pesticides Division
U.S. Environmental Protection Agency, Region 7
901 North 5 Street
Kansas City, Kansas 66101
and
Chris Muehlberger
Office of Regional Counsel
U.S. Environmental Protection Agency, Region 7
901 North 5 Street
Kansas City, Kansas 66101
To the State:
David R. Sheridan
Assistant Attorney General
Environmental Law Division
Iowa Department of Justice
Lucas State Office Building
321 East 12 Street, Room 018
Des Moines, Iowa 50319
To IDNR:
Joseph Sanfilippo
Environmental Program Supervisor
Iowa Department of Natural Resources
909 West Main, Suite 4
Manchester, Iowa 52057
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U.S. & State of Iowa v. City of Dubuque Consent Decree, page 38
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To the City:
City Manager
City Hall
50 W. 13 Street
Dubuque, Iowa 52001 -4864
and
City Attorney
City Hall
50 W. 13 Street
Dubuque, Iowa 52001 -4864
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85. Any Party may, by written notice to the other Parties, change its designated notice
recipient or notice address provided above.
86. Notices submitted pursuant to this Section shall be deemed submitted upon mailing,
unless otherwise provided in this Consent Decree or by mutual agreement of the Parties
in writing.
XVIII. CERTIFICATION
87. Any report, plan, notice, or any other document submitted by the City to the United
States or the State pursuant to this Consent Decree shall be signed by an official of the
City and include the following certification:
I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and evaluate
the information submitted. Based on my directions and my inquiry of the
person or persons who manage the system, or those persons directly
responsible for gathering the information, the information submitted is, to
the best of my knowledge and belief, true, accurate, and complete. I am
aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations.
This certification requirement does not apply to emergency or similar notifications
where compliance would be impractical.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 39
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88. The City shall not object to the admissibility into evidence of any report, plan, notice, or
any other document prepared in accordance with this Consent Decree or the information
contained in said reports in any proceeding to enforce this Consent Decree.
XIX. EFFECTIVE DATE
89. The Effective Date of this Consent Decree shall be the date upon which this Consent
Decree is entered by the Court or a motion to enter the Consent Decree is granted,
whichever occurs first as recorded on the Court's docket.
XX. RETENTION OF JURISDICTION
90. The Court shall retain jurisdiction over this case until termination of this Consent
Decree, for the purpose of resolving disputes arising under this Decree or entering orders
modifying this Decree, pursuant to Sections XIII and XX, or effectuating or enforcing
compliance with the terms of this Decree.
XXI. MODIFICATION
91. The terms of this Consent Decree, including the attached appendices, may be modified
only by a subsequent written agreement signed by all the Parties. Where the
modification constitutes a material change to this Consent Decree, it shall be effective
only upon approval by the Court.
92. Any disputes concerning modification of this Consent Decree shall be resolved pursuant
to Section XIII of this Consent Decree (Dispute Resolution), provided, however, that,
instead of the burden of proof provided by Paragraph 77 the Party seeking the
modification bears the burden of demonstrating that it is entitled to the requested
modification in accordance with Federal Rule of Civil Procedure 60(b).
U.S. & State of Iowa v. Cit)' of'Dubuque Consent Decree, page 40
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XXII. TERMINATION
93. The City may serve upon the United States and the State a Request for Termination,
together with all necessary supporting documentation, certifying that the City has
satisfied all of its obligations under the Consent Decree, including:
a. Completion of all requirements of Section V (Remedial Measures and Schedules)
of this Consent Decree, and that it has achieved and maintained satisfactory
compliance with this Consent Decree and its NPDES Permit for a period of
twelve (12) consecutive months following completion of its requirements under
Section V;
b. Compliance with all other requirements of this Consent Decree; and
c. Payment in full of all civil penalties and any accrued stipulated penalties as
required by this Consent Decree.
94. After the City submits a Request for Termination, if the United States after consultation
with the State determines that the Consent Decree may be terminated, the Parties shall
submit, for the Court's approval, a joint stipulation terminating the Consent Decree.
95. If the United States after consultation with the State determines that the Consent Decree
cannot be terminated, the City may invoke Dispute Resolution under Section XIII of this
Consent Decree. However, the City shall not seek Dispute Resolution under Paragraph
73 of Section XIII of any dispute regarding termination until at least 120 Days after
service of its Request for Termination. This Consent Decree shall remain in effect
pending resolution of the dispute by the Parties or the Court in accordance with the
dispute resolution provisions under Section XIII of this Consent Decree.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 41
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XXIII. PUBLIC PARTICIPATION
96. This Consent Decree shall be lodged with the Court for at least thirty (30) Days for
public notice and comment in accordance with 28 C.F.R. § 50.7. The United States
reserves the right to withdraw or withhold its consent if the comments regarding the
Consent Decree disclose facts or considerations indicating that the Consent Decree is
inappropriate, improper, or inadequate. The City consents to entry of this Consent
Decree without further notice and agrees not to withdraw from or oppose entry of this
Consent Decree by the Court or to challenge any provision of the Consent Decree, unless
the United States has notified the City in writing that it no longer supports entry of the
Consent Decree.
XXIV. SIGNATORIES /SERVICE
97. Each undersigned representative of the City and the State, the United States Attorney for
the Northern District of Iowa, and the Assistant Attorney General for the Environment
and Natural Resources Division of the Department of Justice on behalf of the United
States certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Decree and to execute and legally bind the Party he or she represents to this
document.
98. This Consent Decree may be signed in counterparts, and its validity shall not be
challenged on that basis.
99. The City agrees to accept service of process by mail or courier service to the address set
forth in Paragraph 84 with respect to all matters arising under or relating to this Consent
Decree and to waive the formal service requirements set forth in Rules 4 and 5 of the
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 42
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Federal Rules of Civil Procedure and any applicable Local Rules of this Court including,
but not limited to, service of a summons.
XXV. INTEGRATION /APPENDICES
100. This Consent Decree and its Appendices constitute the fmal, complete, and exclusive
agreement and understanding among the Parties with respect to the settlement
embodied in the Consent Decree and supersedes all prior agreements and
understandings, whether oral or written, concerning the settlement embodied herein.
Other than deliverables that are subsequently submitted and approved pursuant to this
Consent Decree, no other document, nor any representation, inducement, agreement,
understanding, or promise, constitutes any part of this Consent Decree or the settlement
it represents, nor shall it be used in construing the terms of this Consent Decree.
101. The following appendices are attached to and incorporated into this Consent Decree:
"Appendix A" is a map of the Sewersheds.
"Appendix B" is the "Facilities Plan."
"Appendix C" is the "Interceptor Plan."
"Appendix D" is the "I &I Reduction Plan."
"Appendix E" is the SSO Warning sign.
"Appendix F" is a description of the SEP.
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 43
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XXVI. FINAL JUDGMENT
102. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall
constitute a final judgment of the Court as to the United States, the State, and the City.
Dated and entered this day of , 2011.
UNITED STATES DISTRICT JUDGE
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 44
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
Date
Date
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FOR THE UNITED STATES OF AMERICA
IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
KATHERINE A. LOYD
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
1961 Stout St., 8 floor
Denver, CO 80294
(303) 844 -1365
fax (303) 844-1350
kate.loyd@usdoj.gov
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 45
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
Date
Date
FOR THE UNITED STATES OF AMERICA
STEPHANIE M. ROSE
United States Attorney
Northern District of Iowa
ROBERT M. BUTLER
Assistant United States Attorney
401 First Street SE, Suite 400
Cedar Rapids, IA 52401 -1825
Phone: (319) 363 -6333
Fax: (319) 363 -1990
bob.butler @usdoj.gov
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 46
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Date
Date
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KARL BROOKS
Regional Administrator
Region VII
U.S. Environmental Protection Agency
901 North 5 Street
Kansas City, Kansas 66101
CHRISTOPHER MUEHLBERGER
Attorney
Office of Regional Counsel
U.S. Environmental Protection Agency
Region VII
901 North 5 Street
Kansas City, Kansas 66101
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 47
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Date
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ADAM M. KUSHNER
Director, Office of Civil Enforcement
U.S. Environmental Protection Agency,
Headquarters
Ariel Rios Building
1200 Pennsylvania Avenue, NW
Washington, DC 20460
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 48
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
Date
FOR THE STATE OF IOWA
DAVID R. SHERIDAN
Assistant Attorney General
Environmental Law Division
Iowa Department of Justice
Lucas State Office Building
321 East 12th Street, Room 018
Des Moines, Iowa 50319
U.S. & State of Iowa v. City of Dubuque Consent Decree, page 49
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THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of
America and the State of Iowa v. City of Dubuque.
Date
FOR THE CITY OF DUBUQUE
ROY D. BUOL
Mayor
City Hall
50 West 13 Street
Dubuque, Iowa 52001
Agent Authorized to Accept Service on Behalf of Above - signed Party:
Jeanne F. Schneider or Successor
City Clerk
City Hall
50 West 13 Street
Dubuque, Iowa 52001
Phone Number: 563 -583 -4120
U.S. & State of Iowa v. Cit' of Dubuque Consent Decree, page 50