Document NEOkGxdxnwdZGBK3ogkYzj8Kb

~"\.0 St..q~ .""'f t "' ~ ~ ~ ~ ~ ~ '*~' ;;. "'4-~.,, PRo'<>"'"~ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION6 1445ROSSAVENUE,SU1TE1200 DALLAS, TEXAS 75202-2733 AUG 0 2 2018 CERTIFIED MAIL-RETURN RECEIPT REQUESTED: 7005 1820 0003 7458 8347 Mr. Juan Lopez, Co-op President Village of Abiquiu P.O. Box 133 Abiquiu, NM 87510 Re: Notice of Proposed Assessment of Class I Civil Penalty Docket Number: CWA-06-2013-1864; NPDES Permit: NM0024830 Dear Mr. Lopez: Enclosed is an Administrative Complaint (Complaint) issued to the Village of Abiquiu for violation of Section 301(a) of the Clean Water Act (33 U.S.C. 1251 et seq.). The violation was identified through a file review of Discharge Monitoring Reports you submitted to the Environmental Protection Agency (EPA) in March, 2013. The violation alleged is for exceedances of efflu\)nt limitations required by your permit. You, as the representative of the Village of Abiquiu, have the right to request a hearing regarding the violations alleged in the Complaint and the proposed administrative civil penalty. Please refer to the enclosed Part 22, "Consolidated Rules of Practice," for information regarding hearing and settlement procedures. Note that should you fail to request a hearing within thirty days of your receipt of the Complaint, you will waive your right to such a hearing, and the proposed civil penalty of $10,000.00 may be assessed against you without further proceedings. Whether or not you request a hearing, we invite you to confer informally with EPA. You may represent Village of Abiquiu, or be represented by an attorney at any conference, whether in person or by telephone. EPA encourages all parties against whom it files a Complaint proposing assessment of a penalty to pursue the possibility of settlement as a result of an informal conference. EPA is committed to ensuring compliance with the requirements of the National Pollutant Discharge Elimination System program and my staff will assist you in any way possible. If you have any questions, or wish to discuss the possibility of a settlement of this matter, please contact Mr. Joshua Waldmeier, of my staff, at (214) 665- 8064. Enclosure Sincerely, ~ i ect r W~' ompliance Assurance and Enforcement Division Re: Administrative Complaint 2 Village of Abiquiu cc: w/Complaint-Regional Hearing Clerk (6RC-D) Mr. Bruce Yurdin Acting Bureau Chief Surface Water Quality Bureau New Mexico Environment Department P.O. Box 5469 Santa Fe, NM 87502-5469 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION6 In the Matter of Village ofAbiquiu, a New Mexico municipality, Respondent Permit Number: NM0024830 Docket No. CWA-06-2013-1864 Proceeding to Assess a Class I Civil Penalty under Section 309(g) of the Clean Water Act ADMINISTRATIVE COMPLAINT I. Statutory Authority This Complaint is issued under the authority vested in the Administrator of the United States Environmental P-rotection Agency ("EPA") by Section 309(g) of the Clean Water Act ("the Act"), 33 U.S.C. 1319(g). The Administrator of EPA has delegated the authority to issue this Complaint to the Regional Administrator of EPA Region 6, who has further delegated this authority to the Director of the Compliance Assurance and Enforcement Division of EPA Region 6 ("Complainant"). This Class I Administrative Complaint is issued in accordance with, and this action will be conducted under, the"Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits," including Rules related to administrative proceedings not governed by Section 554 of the Administrative Procedure Act, 40 C.F.R. 22.50 through 22.52. Based oil the following Findings, Complainant finds that the Village of Abiquiu ("Respondent") has violated the Act and the regulations promulgated under the Act and should be ordered to pay a civil penalty. Docket No. CWA-06-2013-1864 Page2 II. Findings of Fact and Conclusions of Law 1. Respondent is a municipality chartered under the laws of the State of New Mexico, and as such Respondent is a "person," as that term is defmed at Section 502(5) of the Act, 33 U.S.C. 1362(5), and 40 C.F.R. 122.2. 2. At all relevant times, Respondent owned or operated a municipal wastewater treatment facility located north of U.S. Highway 84 in Abiquiu, Rio Arriba County, New Mexico ("facility"), and was therefore an "owner or operator" within the meaning of 40 C.F.R. 122.2. 3. At all relevant times, the facility was a "point source" of a "discharge" of "pollutants" with its municipal wastewater treatment facility to the receiving waters of the Rio Chama in Segment 20.6.4.116 of the Rio Grande Basin, which is considered a "water of the United States" within the meaning of Section 502 of the Act, 33 U.S.C. 1362, and 40 C.F.R. 122.2. 4. Because Respondent owned or operated a facility that acted as a point source of discharges of pollutants to waters of the United States, Respondent and the facility were subject to the Act and the National Pollutant Discharge Elimination System ("NPDES") program. 5. Under Section 301 of the Act, 33 U.S.C. 1311, it is unlawful for any person to discharge any pollutant from a point source to waters of the United States, except with the authorization of, and in compliance with, a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to Section 402 of the Act, 33 U.S.C. 1342. Docket No. CWA-06-2013-1864 Page3 6. Section 402(a) of the Act, 33 U.S.C. 1342(a), provides that the Administrator of EPA may issue permits under the NPDES program for the discharge of pollutants from point sources to waters of the United States. Any such discharge is subject to the specific terms and conditions prescribed in the applicable permit. 7. Respondent applied for and was issued NPDES Permit No. NM0024830 ("permit") under Section 402 of the Act, 33 U.S.C. 1342, which became effective on October 1, 2011. At all relevant times, the Permittee was authorized to discharge pollutants from the facility to waters of the United States only in compliance with the specific terms and conditions ofthe permit. 8. Parts III.C and III.D of the permit require Respondent to sample and test its effluent and monitor its compliance with permit conditions according to specific procedures, in order to determine the facility's compliance or non-compliance with the permit and applicable regulations. They also require Respondent to file with EPA certified Discharge Monitoring Reports ("DMRs") of the results of monitoring, and Non-Compliance Reports when appropriate. 9. Part LA of the permit places certain limitations on the quality and quantity of effluent discharged by Respondent. The relevant discharge limitations are specified below. 10. On February 26, 2013, EPA issued Administrative Order Docket Number CWA-06-2013-1748 ("AO") to Respondent, under the authority of Section 309(a) of the Act, 33 U.S.C. 1319(a). The AO cited permit limitation effluent violations for Biochemical Oxygen Docket No. CWA-06-20 13-1864 Page4 Demand, E. coli, Total Residual Chlorine, and Total Suspended Solids from October 2011 through September 2012. 11. Each instance m which Respondent discharged pollutants to waters of the United States in amounts exceeding the effluent limitations contained in the permit was a violation of the permit and of Section 301 ofthe Act, 33 U.S.C. 1311. 12. Under Section 309(g)(2)(A) of the Act, 33 U.S.C. 1319(g)(2)(A), Respondent IS liable for a civil penalty in an amount not to exceed $16,000 per day for each day during which a violation continues, up to a maximum of$37,500. 13. EPA has notified the New Mexico Environment Department of the issuance of this Complaint and has afforded the State an opportunity to consult with EPA regarding the assessment of an administrative penalty against Respondent as required by Section 309(g)(l) of the Act, 33 U.S.C. 1319(g)(l). 14. EPA has notified the public of the filing of this Complaint and has afforded the public thirty (30) days in which to comment on the Complaint and on the proposed penalty as required by Section 309(g)(4)(A) of the Act, 33 U.S.C. 1319(g)(4)(A). At the expiration of the notice period, EPA will consider any comments filed by the public. III. Proposed Penalty 15. Based on the foregoing Findings, and pursuant to the authority of Sections 309(g)(l) and (g)(2)(A) of the Act, 33 U.S.C. 1319(g)(l) and (g)(2)(A), EPA Region 6 hereby proposes to assess against Respondent a civil penalty often thousand dollars ($10,000.00). Docket No. CWA-06-2013-1864 PageS 16. The proposed penalty amount was determined based on the statutory factors specified in Section 309(g)(3) of the Act, 33 U.S.C. 1319(g)(3), which includes such factors as the nature, circumstances, extent and gravity of the violation(s), economic benefits, if any, prior history of such violations, if any, degree of culpability, and such matters as justice may require. 17. Complainant has specified that the administrative procedures specified in 40 C.F.R. Part 22, Subpart I, shall apply to this case, and the administrative proceedings shall not be governed by Section 554 ofthe Administrative Practice Act. IV. Failure to File an Answer 18. If Respondent wishes to deny or explain any material allegation listed in the above Findings or to contest the amount of the penalty proposed, Respondent must file an Answer to this Complaint within thirty (30) days after service of this Complaint whether or not Respondent requests a hearing as discussed below. 19. The requirements for such an Answer are set forth at 40 C.F.R. 22.15 (copy enclosed). Failure to file an Answer to this Complaint within thirty (30) days of service of the Complaint shall constitute an admission of all facts alleged in the Complaint and a waiver of the right to hearing. Failure to deny or contest any individual material allegation contained in the Complaint will constitute an admission as to that fmding or conclusion under 40 C.F.R. 22.15(d). Docket No. CWA-06-2013-1864 Page6 20. If Respondent does not file an Answer to this Complaint within thirty (30) days after service of this Complaint, a Default Order may be issued against Respondent pursuant to 40 C.F.R. 22.17. A Default Order, if issued, would constitute a finding ofliability, and could make the full amount of the penalty proposed in this Complaint due and payable by Respondent without further proceedings thirty (30) days after a Final Default Order is issued. 21. Respondent must send its Answer to this Complaint, including any request for hearing, and all other pleadings to: Regional Hearing Clerk (6RC-D) U.S. EPARegion6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Respondent shall also send a copy of its Answer to this Complaint to the following EPA attorney assigned to this case: Russell Murdock (6RC-EW) Water Enforcement Legal Branch U.S. EPA, Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 22. The Answer must be signed by Respondent, Respondent's counsel, or other representative on behalf of Respondent and must contain all information required by 40 C.F.R. 22.5 and 22.15, including the name, address, and telephone number of Respondent and Respondent's counsel. All other pleadings must be similarly signed and filed. Docket No. CWA-06-2013-1864 Page7 V. Notice of Opportunity to Request a Hearing 23. Respondent may request a hearing to contest any material allegation contained in this Complaint, or to contest the appropriateness of the amount of the proposed penalty, pursuant to Section 309(g) of the Act, 33 U.S.C. 1319(g). The procedures for hearings are set out at 40 C.P.R. Part 22, including 40 C.P.R. 22.50 through 22.52. 24. Any request for hearing should be included in Respondent's Answer to this Complaint; however, as discussed above, Respondent must file an Answer meeting the requirements of 40 C.P.R. 22.15 in order to preserve the right to a hearing or to pursue other relief. 25. Should a hearing be requested, members of the public who commented on the issuance of the Complaint during the public comment period will have a right to be heard and to present evidence at such hearing under Section 309(g)(4)(B) of the Act, 33 U.S.C. 1319(g)(4)(B). VI. Settlement 26. EPA encourages all parties against whom civil penalties are proposed to pursue the possibility of settlement through informal meetings with EPA. Regardless of whether a formal hearing is requested, Respondent may confer informally with EPA about the alleged violations or the amount of the proposed penalty. Respondent may wish to appear at any informal conference or formal hearing personally, by counsel or other representative, or both. To request an informal conference on the matters described in this Complaint, please contact Mr. Joshua Waldmeier at (214) 665-8064. Docket No. CWA-06-2013-1864 Page 8 27. If this action is settled without a formal hearing and issuance of an opinion by the Presiding Officer pursuant to 40 C.F.R. 22.27, this action will be concluded by issuance of a Consent Agreement and Final Order ("CAFO") pursuant to 40 C.F.R. 22.18(b). The issuance of a CAFO would waive Respondent's right to a hearing on any matter stipulated therein or alleged in the Complaint. Any person who commented on this Complaint would be notified and given an additional thirty (30) days to petition EPA to set aside any such CAFO and to hold a hearing on the issues raised in the Complaint. Such a petition would be granted and a hearing held only if the evidence presented by the petitioner's comment was material and was not considered by EPA in the issuance of the CAFO. 28. Neither assessment nor payment of a penalty in resolution of this action will affect Respondent's continuing obligation to comply with all requirements of the Act, the applicable regulations and permits, and any separate Compliance Order issued under Section 309(a) of the Act, 33 U.S.C. 1319(a), including one relating to the violations alleged herein. r . Compliance Assurance and Enforcement Division Docket No. CWA-06-2013-1864 Page9 CERTIFICATE OF SERVICE I certify that the foregoing Class I Administrative Complaint was sent to the following persons, in the manner specified, on the date below: Original hand-delivered: Copy by certified mail, return receipt requested: Copy: Copy hand-delivered: Regional Hearing Clerk (6RC-D) U.S. EPA Region 6 1445 Ross Ave., Suite 1200 Dallas, TX 75202-2733 Mr. Juan Lopez, Co-op President Village of Abiquiu P.O. Box 133 Abiquiu, NM 87510 Mr. Bruce Yurdin, Acting Bureau Chief Surface Water Quality Bureau New Mexico Environment Department P.O. Box 5469 Santa Fe, NM 87502 Mr. Russell Murdock (6RC-EW) U.S. EPA, Region 6 1445 Ross Ave., Suite 1200 Dallas, TX 75202-2733 Dated=------------~-- ~:tE.D sr4 ~ ."'~- "' ~ ~ ~ ~ ~....../..1 ll: \ ~: <.<'..z.. f(..~ l".q.( PRO"t~(i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION6 1445ROSSAVENUE,SUITE1200 DALLAS, TEXAS 75202-2733 August 2, 2013 CERTIFIED MAIL-RETURN RECEIPT REQUESTED: 7005 1820 0003 7458 8354 Mr. Bruce Yurdin, Acting Bureau Chief Surface Water Quality Bureau New Mexico Environment Department P.O. Box 5469 Santa Fe, NM 87502-5469 Re: Notice of Proposed Administrative Penalty Assessment Docket Number: CWA-06-2013-1864 NPDES Permit Number: NM0024830 Dear Mr. Yurdin: Enclosed is a copy oftbe Administrative Complaint (Complaint), which tbe Environmental Protection Agency (EPA) is issuing to tbe Village of Abiquiu (Respondent), pursuantto Section 309(g) of the Clean Water Act (CWA) 33 U.S.C. 1319(g). EPA is issuing tbe Complaint to administratively assess a Class I civil penalty of$10,000.00 against tbe Respondent for violation of the CWA. Because the violation has occurred in the State of New Mexico, I am offering you an opportunity to confer with us regarding the proposed penalty assessment. You may request a conference within two weeks ofreceipt of this letter. The conference may be in person or by telephone and may cover any matters relevant to the proposed penalty assessment. If you wish to request a conference or if you have any comments or questions regarding the matter, please contact Mr. Joshua Waldmeier, of my staff, at (214) 665-8064. Sincerely, --~00~ <!~liance ,..- Assurance and Enforcement Division Enclosure