HomeMy WebLinkAboutWastewater Treatment System Order No EPD-WQ-3576
Augusta Richmond GA .
DOCUMENT NAME: W 1\ S T 6" w A, e; lC' l' R. E:~"'r>" a;;:,vl ~ 'IS T6 r") {;) R be::R.-
No~ _e?u-W~- 3'57lo
DOCUMENT TYPE:
YEAR: ') ~ q"
. BOX NUMBER: tp
FILE NUMBER: 'l14 D S- ~
NUMBER OF PAGES:
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02101/99
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ENVIRONl\IENTAL PROTECTION DIVISION
OF IRE
DEP ARTMENT OF NATURAL RESOURCES
STATE OF GEORGIA
IN RE:
City of Augusta
Wastewater Treatment System
Order No. EPD-WQ-3576
Action No.
PETITION FOR HEARING
COMES NOW Petitioner, City of Augusta ("the City") and files this Petition for
Hearing with the Director of the Environmental Protection Division (hereinafter, "EPD''),
Harold F. Reheis ("the Director").. This Petition seeks a hearing on and reversal of the
December 28, 1998 City of Augusta Wastewater Treatment System Administrative Order
No. EPD- WQ-3576 ("the Order"), which imposes upon tne City numerous requirements that
are overbroad, onerous and beyond the authority of the Director. Significantly, the Order
does not allege any violations of pennit effluent limits and thus does not justify the relief
imposed. In addition, the Order contains many factual inaccuracies. By operation oflaw,
this appeal acts as a stay of the Order. DNR Rule 391-1-2-.10. A copy oftbe Order is
attached as Exhibit A.
SUMMARYOFARGUMffiNT
1. The order imposes upon the City numerous requirements that are overbroad,
"onerous and beyond the authority of the Director of the EPD.
2. The Order does not allege any violations of permit effluent limits or water quality
standards and thus does not justify the overbroad, onerous relief imposed.
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3. The Order contains many factual inaccuracies, and therefore lacks an adequate
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factual basis for the relief sought to be imposed.
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4. The Apri12, 1998 W1perrnitteddiscbarge, which was not a "major spill" based on
the amount and lack of evidence of any violation of water quality standards, was
also not caused by a failure of the City to comply with any previous order ofEPD
as the discharge was the resu1~ of an unknown connection by conunercial
businesses to the City's stormwater system, which was not related in any way to
the City Combined Sewer Overflow Separation Project.
5. The September 30, 1998 W1permitted discharge was the result of a previously
unlmown interconnection between the storm system and the sanitary system, and
not a failure of the City to comply with any previous order ofBPD.
6. The December 1-3, 1998 unpermitted discharge would have occurred regardless
of the completeness of the Combined Sewer Overflow Separation Project and
occurred as a result of a line collapse.
7. Although certain equipment was not properly functioning in all respects at the
time of the EPD' s inspection, such improper functioning did not affect the City's
ability to comply with the Permit or meet permit limits.
8. The Administrative Order was issued in violation of the Director's enforcement
. authority in that the Director failed to give the City an opportunity to secure the
City's cooperation prior to issuing the Administrative Order.
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9. The Administrative Order imposes requirements that are neither reasonable nor
practicable of attainment because of the limited time allowed for compliance with
its onerous requirements, and is therefore arbitrary and capricious.
10. The Director does not allege that the City committed any violations of water
quality standards or effluent standards lUlder the Pennit. While it may be correct
that the City could operate its wastewater treatment facility in a more efficient
manner, it is important to note that the City is operating the plant in compliance
with water quality standards and effluent limits. Therefore, there are no
conditions of pollution that warrant the expensive, aggressive program required
lUlder the Administrative Order.
11. EPD-audits the City's Industrial Pretreatment Program on a yearly basis. The
1997 inspection report dated June 13, 1997 indicated that the City was in
substantial compliance with the Indusrrial Pretreaunent Program..
STATEMENT OF LEGAL AUTHORITY AND nJRISDICTION
1.
Georgia. law provides legal authority for this Petition for Hearing pursuant to g 12-5-
43(a) of the Georgia Water Quality Control Act, which provides in relevant part that
"[w]henever a person is aggrieved or adversely affected by any action or by any order or
orders of the director, or by any action or by any order or orders pursuant to authority
. delegated by the director, such person may request and obtain.a hearing by filing a petition
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with the director no later than 30 days after such order or notice of action is served upon such
person." O.c.G.A. S l2-5-43(a).
2.
and enforce." O.C.G.A. S l2-2-2(c)(3)(A).
3.
By law, any petition for a hearing shaH be heard by an administrative law judge
appointed by the Chief Administrative Law Judge. a.c.G.A. ~ l2-l-2(a).
4.
The City is aggrieved or adversely affected by the issuance of the December 28, 1998
Order by the Director.
STATEMENT OF SPECJlIIC FACTUAL l\1ATTERS ASSERTED
5.
The City was issued National Pollutant Discharge Elimination System C"NPDES")
Pemrit No. GA0037621 ("the Penrut") on June i 7, 1996 by the Director for its Butler Creek
wastewater treatment facility (the "Facility"). The Pennit was modified and reissued on
April 1 , 1998.
6.
The Pennit authorizes the City to discharge treated wastewater in accordance with
effluent limitations, monitoring requirements, and other conditions as set forth in the Pennit.
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7.
The City previously owned and operated a combined sewer collection system, which
operated to allow combined sewer overt lows ("CSOs") to waters of the State and that were
authorized by NPDES Permit No. GA0036889, issued by the Director on March 31, 1992
(hereinafter, the "CSO NPDES Permit").
8.
The City was issued Administrative Order No. EPD- WQ-1865 by the Director on
March 31, 1992 (the "CSO Order"). The CSO Order required The City to submit to EPD
approvable plans and specifications for the construction of treatment units or CSO"
elimination projects needed to comply with the CSO !\TpDES Permit.
9.
In conformance with the CSO Order, on or before October 1,1992, The City
submitted to EPD plans and specifications for separation of the City's combined sewer
system (the "Sewer Separation Project"). These plans, which did not include final study of
the completeness of the sewer separation, were approved by EPD prior to implementation.
10.
The CSO Order established a December 31, 1995 compliance date to complete the
Sewer Separation Project. The City requested and received an extension deadline date of
December 31, 1996 to complete the Sewer Separation Project.
11.
The City completed the Sewer Separation Project on December 31, 1996, thereby
fully satisfying the requirements of the CSO Order. As the CSO Order (and plans submitted
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to EPD lUlder the CSO Order) did not call for a study of the completeness of the Sewer
Separation Project, a failure to conduct such a study is not a violation of the CSO Order.
12.
Following receipt of documentation from the City that the Sewer Separation Project
has been completed, EPD withdrew the CSO Permit.
13.
The Order alleges that theCity has experienced three major spills to waters of the
State due to the City's failure to fully comply with the CSO Consent Order u an April 2,
1998 alleged unpermitted discharge; a September 30, 1998 alleged unpermitted discharge;
and a December 1-3 alleged unpennitted discharge.
14.
The April 2, 1998 alleged unpennitted discharge referenced in the Order was not the
result of a failure to fully cornply with the CSO Order. As stated above, the City completed
all of the projects provided under the CSO Consent Order. In fact, the April 2, 1998 alleged
unpermitted discharge was not even related to the former combined sewer system and would
not have been addressed by the Sewer Separation Project. Rather, the alleged ul1permitted
discharge occurred from the unlmown connection by commercial businesses to the City's
stormwater system. The unknown connection was not related in any way to any action of the
City or to the Sewer Separation Project. In addition, the April 2, 1998 unpennitted discharge
was not a "maj or spill" under Permit Condition ILA.l 0 as there is no evidence that the spill
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exceeded 10,000 gallons, resulted in a water quality violation or that the spill exceeded the
weekly average permitted effluent limits for BOD or TSS by 50 percent or greater. 1
15.
The September 30, 1998 allegedunperrnitted discharge was not the result of a failure
to fully comply with the CSO Order. As stated above, the City completed all of the projects
required under the CSO Consent Order. This alleged unpermitted discharge was the result of
a previously unlmown and unauthorized interconnection between the storm system and the
sanitary system. Following completion of the Sewer Separation Proj ect in 1996, the City has
not experienced recurrent problems with unpermitted discharges caused by unknown
interconnections.
16.
The December 1 through 3, 1998 alleged unpermitted discharge was 110t the result of
a failure to fully comply with the CSO Order. As stated above, the City completed all of the
projects required under the CSO Consent Order. In addition, the circumstances leading to
the December 1-3, 1998 unpermitted discharges would have occurred regardless ofthe
completeness of the Sewer Separation Project. The alleged unpermitted discharge occurred
when a sanitary line leading to the Mid-City Interceptor coll-apsed. The collapse allowed the
sanitary flow to be divelted to an abandoned combined sewerline, which led to the Savannah
t ^lthough EPD states on pagc 7 of the Order tbt "laboratory results oftlle samples collected by EPD indicate these
unpermitted dischMges resulted in a violation of the water quality standJ.rds for fecal coliform bacteri~" it is
impossible to discern ifEPD is referring to all iliIee discharge events (Ap:il2, Sept. 30 and December 1-3), or only
the December 1-3 event. The "not to exceed any sample" element ofthc Georgi:l :ecal coliform bacteria water
quality standard applies only during the months oiNovembcr through April. Moreover, it is not clear from the
allegations that any elevated fecal colifonn would have been caused'by the allegec. unpermitted discharge rather
than other sources.
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River. The City subsequently repaired the sanitary line and plugged the former combined
line, thus preventing reCWTence. It was not the result of the City's alleged failure to properly
complete the Sewer Separation Project. Although this was a '~ajor spill," as it exceeded
10,000 gallons, it was not the result of the City's alleged violation of the CSO Order.
17.
EPD representatives visited the Facility during the week of December 7-11, 1998.
The stated purpose of this visit was to conduct an audit of the overall operation and
maintenance of the wastewater treatment facility.
18.
Following the site visit, representatives ofEPD met with the City in Atlanta, Georgia
on December 22, 1998, the Tuesday before Christmas. At this meeting, the City was advised
that an Administrative Order regarding the alleged unpennitted discharges and findings of
the December 7-11, 1998 audit was soon to be issued. Although requested by the City, EPD
did not allow the City the opportunity to voluntarily come into compliance. In fact, The City
was not even provided the opportunity to review the Order prior to issuance to confirm that
the factual allegations were accurate, many of which, as a result, are not.
19.
The Director attempted to serve the Order on the Mayor of Augusta on December 28,
1998, the first business day after Christmas or only three business days later. However, the
Order was improperly ad9Iessed to the "Honorable Robert Young, Mayor of Augusta" at the
Municipal Building address for the City of Augusta. The Honorable Robert Young did not
become Mayor of the City of Augusta until January 4, 1999.
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20.
The City was not provided EPD's audit fmdirlgs from EPD's December 1-7,1998 site
visit until January 25, 1998, almost one month after issuance of the Order.
2l.
The Director does not allege in the Order, and nor does the EPD state in its audit
fmdings dated January 25, 1998, that the City has violated any permit effluent limitations or
water quality standards.
22.
The Order inaccurately statesthat both the primary clarifiers and the secondary
clarifiers were short circuiting during the December 8, 1998 facility walk-through. However,
"short-circuiting" is a teclmical determination that is not possible to make by visual
observation of the exterior of a piece of equipment. In addition, although there was some
accumulation of solids in the equipment, the Facility's ability to meet permit limits was not
impaired.
23.
The Order also inaccurately states that "the conveyor belt for the bar screen and grit
chamber was not working properly." EPD merely observed an accumulation of grit that had
fallen off the conveyor belt, which is to be expected in the normal operation of the conveyor
belt. However, tlIis deposition of grit around the conveyor be1t.did not impair the City's
ability to comply with the Permit.
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24.
The Order states that EPD observed "sludge on the ground and near storm drains"
during the December 8, 1998 walk-through. It should be noted the Facility's storm drains
discharge back to the headwork of the Facility, thus the presence of the sludge near the storm
drain could not result in a discharge to waters of the State.
25.
The ''lmpennitted discharge" occurring from underneath the Facility's effluent
parshall flume structure toPhinizy ditch was actually a minimal leak of secondarily treated
effluent, which is in the process of being repaired by the City.
26.
At no time did the City create an "illegal dlUllp" adjacent to Pbinizy Ditch at the
Facility, as alleged in the Order. Rather, the City used this area to temporarily stockpile grit
and sand that was removed from the primarily clarifiers. The City has properly transported
and disposed of this grit and sand at a landfill facility.
27.
The City's discharge monitoring reports for the past year indicate that the City is
consistently in compliance with permit _ effluent limits, except for three instances of minor
exceedances of the Facility's effluent limit for fecal colifonn during periods of.extremely
high flow. It is unlikely that these minor exceedances resulted in a violation of water quality
standards.
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28.
EPD audits the City's Industrial Pretreatment Program on a yearly basis. TIle 1997
inspection report dated June .13, 1997 indicated that the City was in substantial compliance
with the Industrial Pretreatment Program.
29.
Neither the Order nor EPD's audit findings allege any violations with regard to
operations, maintenance or management of the City's Collection System. In fact, EPD's
.
audit did not include a review of Collection System operations.
30.
In 1997, the City has hired a technical consultant with expertise in the construction
and operation of wastewater treatment systems to review all operating systems of the
wastewater treannent facility and develop a master plan for improvements. The City
provided EPD with copies of the completed Comprehensive Performance Evaluation at the
December 1-7,1998 audit and advised EPD of the ongoing development of the Master Plan.
The Comprehensive Performance Evaluation was formally submitted to EPD by letter dated
December 18, 1998. The City's program and Master Plan was discussed. with EPD at the
DeceII}.ber' 22, 1998 meeting.
31.
The City is aggrieved and/or adversely affected by the Director.'s issuance of the
Order because the Order imposes upon the City obligations that are not authorized or
justified by the NPDES permit, federal or state statutes, state rules and regulations; existing
case authority and established legal principles. In addition, the Order was issued in violation
of ~e Director' 5 enforcement authority.
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STATEMJ:NT OF LEGAL ISSUES PRESENTED
I. Director's Enforcement Authority Under the Georgia Water Pollution Control
Act
32.
The Director's enforcement authority under the Georgia Water Pollution Control Act
("GWPCA") with regard to NPDES pennit violations and unpennitted discharges to waters
of the State stems from two starutory provisions -- O.e.G.A. ~ 12-5-23(b)(12) and O.C.G.A.
S 12-5-42(a). In re: City of Cornelia, Record No. OSAH-DNR-EPD-WQ-AH 11-95,1996
WL 375716, *5 (June 26, 1996).. These statutory provisions authorize the Director to issue
orders that impose permanent injlli1ctive reliefto address water pollution.
33.
Under O.C.G.A. 9 12-5-23(b)(12), the Director is authorized to "issue an order or
orders directing any particular person or persons to secure within the time specified therein
such operating results as are reasonable and practicable of attainment toward the control,
abatement, and prevention of pollution of waters of the state and the preservation of the
necessary quality for the reasonable use thereof." O.C.G.A. 9 12-5-23(b)(l2) (emphasis
added) .
34.
"Reasonable" and "practicable of attainrnent" are not defined in the statute or the
implementing regulations. However, as section 12-5-23(b)(12), in essence, allows the
Director to impose injunctive relief, Georgia law provides guidance on the meaning of these
terms. The Georgia Supreme Court has ruled that a mandatory or penn?TIent injWlction must
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37.
Section 12-5-42(a) has been interpreted to require the Director to attempt to
volWltarily secure an alleged violator's cooperation prior to issuing an Administrative Order.
For example, in In re Apollo Industries. Inc., the Administrative Law Judge held, in
interpreting this section of the GWPCA, that "the Director shall attempt 'to secure [an
alleged violator's] cooperation' and may issue a corrective action order '[w]henever [an
alleged violator] refuses to cooperate." Tn re Apollo Industries, Inc., No. DNR-EPD-WQ-AH
1-93, 1994 WL 19993 (Janu~y J 3, 1994), qz:oting O.c.G.A. 9 12-5-42(a). No such
opportunity was provided to the City.
38.
Representatives of EPD met with the City on December 22, 1998, the Tuesday
before Christmas. At this rneeting, the City was advised that an Administrative Order
regarding the alleged unpennitted discharges and findings of the December 7-11, 1998 audit
was soon to be issued.. Although requested by the City, EPD did not provide the City with
the opportunity to voluntarily corne into compliance. In fact, the City was not even given the
opportunity to review the Order prior to issuance to confirm that the factual allegations were
correct. As a result, the Administrative Order, which was issued only three business days
later, was issued in violation of O.c.G.A. S 12-5-42(a).
39.
The City is aggrieved or adversely affected by the Order because: (1) it was issued in
violation of O.C.G.A. S 12-5-23.(b)(12) as it imposes nwncrous requirements, as described in
greater detail below, that are neither reasonable nor practicable of attainment toward the
r
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control, abatement and prevention of pollution of waters of the State; and (2) it was issued in
violation of O.e.G.A. ~ 12-S-42(a) as the Director did not attempt to obtain The City's
cooperation prior to issuance of the Order.
II. Conditions 1 and 2 of the Order -- the Sewer Separation Project
40.
Conditions 1 and 2 of the Order require The City to undertake certain evaluations of
the completeness of the Sewer Separation Project. Among other things, Condition 1 requires
the City to submit, within 120 days of issuance of the Order, a preliminary evaluation of the
completeness of the Sewer Separation Project to EPD. Condition 2 requires the City to
submit the results ofa more thorough evaluation of the Sewer Separation Project to EPD
within 180 days of issuance of the Order.
41.
As described above, the City submitted a plan for the Sewer Separation Project to
EPD pursuant to the requirements of the CSO Consent Order. This plan did not call for a
detailed study of the completeness of the Sewer Separation Project. The Sewer Separation
Project was completep on or before December 31, 1996. Documentation was provided to
EPD of the completion of the Sewer Separation Project, EPD required no additional action
or review of the Sewer Separation Proj ect. In response to satisfaction of the CSO Consent
Order, EPD rescinded the CSO Permit Since completion ofthe project in 1996, the City has
not experienced recurrent problems with unpermitted discharges caused by unknown
interconnections between the storm system and sanitary system.
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42.
Although the Order does not specifically link alleged violations to the specific
requirements of the Order, the only alleged violations that could support a requirement to
conduct a detailed study of the completeness of the Sewer Separation are the three alleged
unpermitted discharges described in paragraphs 13 through 16 of this Petition. As stated
above, none of these alleged unpermitted discharges were the result of a failure to comply
with the CSO Consent Order. In addition, only one alleged unpermitted discharge, the
September 30, 1998 discharge, could even be remotely linked to the Sewer Separation
Project.
43.
In addition, Conditions 1 and 2 of the Order impose unreasonably aggressive time
schedules for completion.
44.
Upon information and belief, no other Unilateral Administrative Order in the State of
Georgia has imposed such onerous obligations for unpermitted discharges to waters of the
State. To impose such unprecedented obligations upon the City is an arbitrary and capricious
act that cannot be justified by legal or factual authority at' precedent.
45.
The City is aggrieved or adversely affected by Conditions 1 and 2 of the Order
because the requirements: (1) are neither "reasonable" or "practicable of attainment" under
O.c.G.A. S 12-5-23(b)(12); and (2) impose upon the City greater burdens than are necessary
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"
47.
The Director does not provide any support justifying imposition of this maintenance
management program. Specifically, the Director does not allege any violations with regard
to the operation and maintenance of the collection system. In addition, EPD's audit did not
review collection system operations.
48.
The requirements of Conditions 3 and 4 are not practicable of attainment in the time
frames provided in the Administrative Order. Although not directly stated in Conditions 3
and 4, what the Director is actually requesting the City to implement is a computerized
maintenance management program. This type of computerized program is expensive to
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purchase and expensive and time-consuming to implement. It is unlikely that any
municipality could purchase, develop and implement this program in the time frames
provided by the Administrative Order.
49.
Permit Condition 1l.A.1., requires that the permittee ''maintain and operate efficiently
all treatment or control facilities and related equipment installed or used by the permittee to
achieve compliance with this permit." In addition, the federal NPDES regulations, adopted
by reference by the Georgia regulations, require that a NPDES permittee "shall at all tjmes
properly operate and maintain all facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the pennittee to achieve compliance with the
conditions of [the] pemtit." Ga. R. & Regs. r. 391-3-6-.06(11)(a), incorporating by
reference, 40 C.F.R S 122.41(e). ,
50.
"Treatment or control facilities," as used under Permit Condition II.A.l., is not
directly defined under the Permit or NPDES regulations. The Georgia regulations contain a
broad definition of "sewerage system" that encompasses both wastewater treatment facilities
and the collection system. "Sewerage system" is defined as:
any system for the treatment or disposal of pollutants, including treatment
works, pipelines or conduits, pumping stations and force mains and all other
constructions, devices, and appliances appurtenant thereto, used for
conducting pollutants to the point of ultimate disposal. .
Ga. R & Regs. r. 391-3-6~.02(2)(c). The regulations also define the term "wastewater
treatment faciljties" to mean:
any device or system (including recycling or reclamation) used in the
treatment of sewage or other waterborne waste or pollutants.
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Ga. R. & Regs. r. 391-3-6-.02(2)(d). This latter defmition is more narrow in scope and
, encompasses only the actual treatnientfacilities and not the entire system u~lized in
conducting waterborne waste to its ultimate destination. Finally, the Permit defines the
"facility" as being located as "1820 Doug Barnard Parkway, Augusta, Georgia 30906" -- the
location of the City's wastewater treatment facility.
51.
Permit Condition ILA.l. and section 122.4l(e) of the Federal regulations are limited
in scope to the wastewater treatment facility based on the reading of the definitions and the
wording of the Permit. The Georgia regulations define "sewerage system" to encompass
both tbe wastewater treatment facilities and the collection system. EPD did not use tins
broad term in Permit Condition II. A. 1., but rather elected to use the more narrow term of
"facility." In addition, EPD included the words "collection system" in other permit
requirements, thus indicating that EPD distinguishes between the "facility" and the
"collection system." See Permit Condition ITA.7.
52.
EPD has not extended tile operations and maintenance requirements to the collection
system through proper notice and comment rolemaking.
53.
Upon information and belief, no other Unilateral Administrative Order in the State of
Georgia has imposed such onerous obligations on an NPDES pennittee alleged to be in
violation of its permit. To impose such unprecedented obligations upon the City is an
arbitrary and capricious act that cannot be justified by legal or factual authority or precedent.
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.54.
The City is aggrieved or adversely affected by Conditions 3 and 4 of the Order
because the requirements: (1) are neither "reasonable" or ''practicable of attainmenf' under
a.c.G.A. 9 12-5-23(12)(b); (2) impose upon the City greater burdens than are necessary to
protect the Director from the violations of which it complains. Prime Bank, Federal Savings
Bank v. Galler, 263 Ga. 286, 430 S.E.2d 735 (1993); Dawson v. Wade, 257 Ga. 552, 361
S.E.2d 181 (1987); (3) impose requirements that are not authorized under the Permit or
applicable law; and (4) impose improperly promulgated rules, adopted without proper notice
and comment.
IV. Conditions 5 and 6 -- Collection System Contingency and Emergency Response
Plan
55.
Conditions 5 and 6 of the Order require the City to develop and implement a vrritten
collection system contingency and emergency response plan. The Order requires The City to
follow detailed procedures for notifying EPD and other persons of "any sewage overflow."
The City is also required to develop a monitoring, sampling and analysis program for
receiving water bodies and an "investigative flow chart" for analysis of the overflow. This
plan must be submitted to EPD within thirty days of the effective date of the Order.
56.
As stated above in paragraph 46, the Director does not allege any violations with
regard to the operation and maintenance of the collection system as support for these
Adrninistrative Order requirements. In addition, EPD's audit did not review collection
system operations.
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57.
The thirty day time period for submittal of the plan to EPD is unreasonable and not
pr~cticable of attaimnent.
58.
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61. '
The City is aggrieved or adversely affected by Conditions 5 and 6 of the Order
becau,se the requirements: (1) are neither "reasonable" or "practicable of attainment" under
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63.
In support of this requirement, the Director alleges many operational deficiencies at
the wastewater treatment plant Although not stated directly in the Order, but yet obvious, is
the fact that the Director does not allege that the City conunitted any violations of water
quality standards or effiuent standards under the Permit. It may be correct that the City could
operate its \vastewater treatment facility in a more efficient manner. However, it is important
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to note that The City is operating the plant in cornuliance with water quality standards and
effluent limits. Therefore, there are no conditions of pollution that warrant the expensive,
aggressive program required under Condition 7.
64.
The 180 day time period to complete the onerous requirements detailed under
Condition 7 is not practicable of attairunent.
65.
In addition, The City advised EPD that it has already conducted a detailed review of
its wastewater treatment facility under a program substantially similar to the program
required under Condition 7. - Therefore, a requirement to incur the large expense of duplicate
efforts, of which EPD has knowledge, is unreasonable.
66.
As stated in paragraph 57 of this Petition, the primary goal of the GWPCA is to
protect waters of the State from pollution. To implement this purpose, the GWPCA prohibits
all discharges of pollution to waters of the State unless' authorized by an NPDES permit. The
purpose of the regulation governing the NPDES permit program "is to provide for the waste
treatment required and the uniform procedures and practices relating to the application for
issuance, modification, revocation and reissuance, and termination of pennits for the
discharge of any pollutant into waters of the State." Ga R. & Regs. r. 391-3-6-.06(1)
(emphasis added).
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67.
The City's NPDES permit supports the goals of the GWPCA and the NPDES pennit
program by establishing effluent and monitoring limits. Any discharge from a permitted
outfall not in compliance with effluent limits is a violation of the permit and the GWPCA.
68.
Tbe NPDES Permit requires the City to "maintain and operate efficiently all treatme11t
or control facilities and related equipment installed or used by the permittee to achieve
compliance vtith this oennit." Section IIA.I. Permit compliance is achieved by meeting
effluent limits. The Director has not alleged that the City violated its NPDES pennit by
exceeding effluent limits. The Director has not alleged <Ul.y incident of water pollution
related to the City's operation, maintenance or management of its wastewater treatment
facility. Therefore, Condition 7 of the Pennit, which requires development and
implementation of a Composite Correction Program, including a detailed evaluation of every
system ofthe City's wastewater treatment facility, is not authorized under applicable law or
the Pennit as it is not needed "to achieve compliance" with the NPDES Pennit.
69.
In addition, the Orde~ does not allege violations that would justify imposition of this
detailed program under the Pennit. Pemut Condition Il.A.I. requires a permittee to maintain
and operate efficiently all treatment or control facilities. "Efficient operation and
maintenance" is defIned under Pe.nnit Condition ILAJ. as:
effective perfomwnce, adequate funding, adequate operator staffing and
training, and adequate laboratory and process controls, including appropriate
quality assurance procedures.
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The Order refers to several "plant deficiencies" noted during the audit.2 However, these
"plant deficiencies" pertain only to equipment operation. EPD did not address or allege that
The City's perfonnance was "ineffective" (rather, the Facility was "effective" as it was in
compliance with all effluent limits); that the City had inadequate funding; that the City had
inadequate operator staffing and training; and only refers obliquely to violations of 40 C.F.R
Part 136 and Permit Condition LC.4 and LC.G with regard to the laboratory audit. The
information contained in the Order is insufficient to support this broad injunctive relief based
on the scarcity of violati ons alleged.
70.
In addition, there is no direct authority under the GWPCA to require a
permittee to conduct a "Composite Correction Program" (UCCP") under a Unilateral
Administrative Order. The CCP approach was developed by the United States
Environmental Protection Agency in 1984 as a voluntary program to be implemented by
owners and operators of wastewater treatment facilities to "economically improve the
performance of existing publicly. owned treatment works." However, neither EP A nor EPD
have adopted the CCP Program as a regulatory requirement. To th'e extent that EPD has
determined that aCCP Program should be imposed on pennittees, it must impose such a
requirement by a rule adopted by proper notice and comment rulemaking.
" As noted in paragraphs 22 through 25 of this Petition, several of these deficiencies are inacc~atc in their
description.
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7l.
Finally, even if EPD had authority to impose Condition 7 of the Order, the
requirements are above and beyond what is authorized by applicable law, reaching into areas
outside the jurisdiction of the GWPCA and the EPD. For example, the Order attempts to
regulate "worker safety" issues at the wastewater treatment facility. Worker safety falls
under the jurisdiction of the Occupational Safety and Health Act ("OSHA"). OSHA
specifically exempts municipalities from its worker safety requirements. 29 D.S.C. S 652(3).
In addition, under Condition 7 EPD extends its authority to require such items as a
"wastewater management organizational chart," an evaluation of "stafflllg resources," and
"budgetary commitments." EPD's authority under the GWPCA extends to preserving water
quality and preventing water pollution -- it does not extend to micro-management of
municipal governments.
72.
Upon information and belief, no other Unilateral Administrative Order in the State of
Georgia has imposed such onerous obligations upon NPDES permittees regarding operation
of a wastewater treatment facility. To impose such unprecedented obligations upon the City
is an arbitrary and capricious act that cannot be justified by legal or factual authority or
precedent.
73.
The City is aggrieved or adversely affected by Condition 7 of the Order because the
requirements: (1) are neither "reasonable" or "practicable of attainment" under a.c.G.A. S
12-5-23(12)(b); (2) impose upon the City greater burdens than are necessary to protect the
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Director from the violations of which it complains. Prime Bank, Federal Savings Bank v.
Galler, 263 Ga. 286, 430 S.E.2d 735 (1993); Dawson v. Wade, 257 Ga. 552,361 S.E.2d 181
(1987); (3) impose requirements that are not authorized under the Permit or applicable law;
and (4) impose improperly promulgated rules, adopted without proper notice and conunent.
PRAYER FOR RELlEF
WHEREFORE, the City of Augusta prays for the following relief:
(1) a detennination that the December 28, 1998 Order was beyond the scope of the
Director's authority and contrary to law; .
(2) an Order reversing the December 28, 1998 Order of the Director;
(3) an Order to the Director withdrawing tbe December 28, 1998 Order; and
(4) such other relief as the Administrative Law Judge deems appropriate.
RESPECTFULLY SUBMITTED
j/J~
J
G rgia Bar No. 733150
BURNSIDE, WALL, DANIEL, ELLISON &
REVELL
P.O. Box 2125
Augusta, Georgia 30903
(706) 722-0768
t!~d f~~ifP~jiIL
Georgia Bar No, 366750
Susan H. Ri.chardson
Georgia Bar No. 342562
KILP A TRICK STOCKTON LLP
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309
(404) 815-6500
28
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