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United States v. Town of Ticonderoga

United States District Court, N.D. New York

July 27, 2018

UNITED STATES OF AMERICA and STATE OF NEW YORK by and through the NEW YORK DEPARTMENT OF HEALTH Plaintiffs,
v.
TOWN OF TICONDEROGA, NEW YORK, Defendant.

          Jeffery H. Wood Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice

          Robert E. Maher Assistant Section Chief Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice

          John D. Hoggan, Assistant United States Attorney Northern District of New York

          FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY: Eric Schaaf Regional Counsel U.S. Environmental Protection Agency, Region 2

          ERIC T. SCHNEEDERMAN Attorney General State of New York Attorney for Plaintiff New York State Department of Health

          LISA M BURIANEK Assistant Attorney General Environmental Protection Bureau The Capitol Albany, New York 12224

          FOR THE TOWN OF TICONDEROGA: Hon. Joseph Giordano, Town Supervisor Town of Ticonderoga

          CONSENT DECREE

          GARY I. SHARPE U.S. DISTRICT JUDGE.

         TABLE OF CONTENTS

         I. JURISDICTION AND VENUE.......................................................................................................2

         II. APPLICABILITY............................................................................................................................2 m.

         III DEFINITIONS.................................................................................................................................3

         IV. CIVIL PENALTY............................................................................................................................4

         V. COMPLIANCE REQUIREMENTS................................................................................................4

         VI. SUPPLEMENTAL ENVIRONMENTAL PROJECTS...................................................................8

         VII. REPORTING REQUIREMENTS..................................................................................................11

         VIII. STIPULATED PENALTIES..........................................................................................................12

         IX. FORCE MAJEURE........................................................................................................................14

         X. DISPUTE RESOLUTION..............................................................................................................15

         XI INFORMATION COLLECTION AND RETENTION.................................................................17

         XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS.......................................................18

         XIII. COSTS...........................................................................................................................................19

         XIV. NOTICES.......................................................................................................................................19

         XV. EFFECTIVE DATE.......................................................................................................................20

         XVI. RETENTION OF JURISDICTION................................................................................................20

         XVII. MODIFICATION...........................................................................................................................20

         XVIII. TERMINATION............................................................................................................................21

         XIX. PUBLIC PARTICIPATION...........................................................................................................21

         XX. SIGNATORIES/SERVICE............................................................................................................21

         XXI. INTEGRATION.............................................................................................................................22

         XXII. FINAL JUDGMENT......................................................................................................................22

         Whereas Plaintiffs United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), and the State of New York, by and through the New York Department of Health, ("State" or "New York") have filed a complaint in this action concurrently with this Consent Decree, alleging that the Town of Ticonderoga, New York ("Defendant" or "Ticonderoga") has violated and continues to violate the Long Term 2 Enhanced Surface Water Treatment Rule promulgated pursuant to Section 1412 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300g-1, and portions of the New York State Sanitary Code promulgated pursuant to Sections 201 and 205 of the New York Public Health Law.

         Whereas Ticonderoga, located in Essex County, New York, on behalf of water districts 9N and 74 Water District (SW01), Street Road Water District (SWO2), Alexandra Water District No. l(SWO3), Homeland Water District (SWO4), Alexandra Water District No. 2(SWO5), Central Water District (SWO6), Park Avenue Water District (SW07) and Shore Airport Water District (SWO9) and out of district users including but not limited to the Eagle Lake-Chilson Users operates a public water system. The Complaint against Ticonderoga alleges that it failed to provide the required treatment for Cryptosporidium, and failed to cover or provide the required treatment for an uncovered finished water storage facility, by the regulatory deadline of October 1, 2014. The Complaint also alleges that Ticonderoga failed to provide redundant chlorination to protect residents in the event that the primary chlorination station fails or loses power, failed to adequately treat unfiltered surface water received by certain users, defined below as the "Eagle Lake - Chilson Users," and failed to keep its filtration plant in continuous working order.

         Whereas in October 2016, the Ticonderoga Town Board passed a bond resolution for final design of the Ticonderoga water system improvements on behalf of the above water districts.

         Whereas in February 2017, Ticonderoga submitted a complete New York State Drinking Water Revolving Fund financing application to the New York State Environmental Facilities Corporation and the New York State Department of Health. The application included an engineering report and documentation of State Environmental Quality Review Act review, district formation, and bond resolution.

         Whereas in December 2014, the New York Housing Trust Fund Corporation awarded Ticonderoga $600, 000 in New York State Community Development Block Grant program funds. In October 2017, New York's Environmental Facilities Corporation Board of Directors approved a Drinking Water State Revolving Fund grant for up to $2 million and 0% interest loan for $10, 033, 104.00, as well as a Water Infrastructure Improvement Act (WIIA) Grant for up to $ 1 million. These grants and loan are intended to fund Ticonderoga's work to bring its drinking water system into compliance with Federal and State laws and regulations.

         Whereas Defendant does not admit any liability to the United States or New York 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 among the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, before the taking of any testimony, without the adjudication or admission of any issue of fact or law except as provided in Section I and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

         I. JURISDICTION AND VENUE

         1. This Court has jurisdiction over the subject matter of this action, and over the Parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 1414(b) of SDWA, 42 U.S.C. § 300g-3(b). This Court has supplemental jurisdiction over the State law claims asserted by New York pursuant to 28 U.S.C. § 1367. Venue lies in this District pursuant to 28 U.S.C. §§ 1391(b) and 1395(a) because Defendant is located in this judicial district and the violations alleged in the Complaint are alleged to have occurred in this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court's jurisdiction over this Decree and any such action and over Defendant and consents to venue in this judicial district.

         2. For purposes of this Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to Section 1414(b) of SDWA, 42 U.S.C. § 300g-3(b), and New York Public Health Law § 1100.

         II. APPLICABILITY

         3. The obligations of this Consent Decree apply to and are binding upon the United States and the State, and upon Defendant and any successors, assigns, or other entities or persons otherwise bound by law.

         4. No transfer of ownership or operation of the Ticonderoga Water Department, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve Defendant of its obligation to ensure that the terms of the Decree are implemented. At least 30 Days prior to such transfer, Defendant shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to EPA Region 2, the United States Attorney for the Northern District of New York, and the United States Department of Justice, in accordance with Section XIV (Notices). Any attempt to transfer ownership or operation of the Ticonderoga Water Department without complying with this Paragraph constitutes a violation of this Decree.

         5. Defendant shall provide a copy of this Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Decree, as well as to any contractor retained to perform work required under this Consent Decree. Defendant shall condition any contract entered into by Defendant after the Effective Date upon performance of the work in conformity with the terms of this Consent Decree.

         6. In any action to enforce this Consent Decree, Defendant shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any actions necessary to comply with the provisions of this Consent Decree.

         IE. DEFINITIONS

         7. Terms used in this Consent Decree that are defined in the Act or in the National Primary Drinking Water Regulations shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

"Complaint" shall mean me complaint filed by the United States and the State in this action;
"Day" shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day;
"Defendant" shall mean the Town of Ticonderoga;
"Eagle Lake - Chilson Users" shall mean those users who receive water from the water main between the Eagle Lake Chlorination Station and Chilson Reservoir as of the Effective Date of this Consent Decree.
"Eagle Lake - Chilson Water System Improvements" shall mean those actions necessary to correct all legal and regulatory violations associated with the Eagle Lake - Chilson Users' water supply, including actions necessary to cease water transmission to Eagle Lake - Chilson Users who disconnect from the Ticonderoga public water system.
"EPA" shall mean the United States Environmental Protection Agency and any of its successor departments or agencies;
"Effective Date" shall have the definition provided in Section XV.
"Paragraph" shall mean a portion of this Decree identified by an arabic numeral;
"Parties" shall mean the United States, the State, and Defendant;
"Section" shall mean a portion of this Decree identified by a roman numeral;
"State" shall mean the State of New York, by and through the New York Department of Health; and
"United States" shall mean the United States of America, acting on behalf of EPA.

         IV. CIVIL PENALTY

         8. Within 60 Days after the Effective Date, Defendant shall pay the sum of $50, 000 as a civil penalty. No. interest shall accrue if the civil penalty is paid within 60 Days after the Effective Date.

         9. Defendant shall pay half of the civil penalty due to the U.S. Department of Justice account, in accordance with instructions provided to Defendant by the Financial Litigation Unit ("FLU") of the United States Attorney's Office for the Northern District of New York after the Effective Date. The payment instructions provided by the FLU will include a Consolidated Debt Collection System ("CDCS") number, which Defendant shall use to identify all payments required to be made in accordance with this Consent Decree. The FLU will provide the payment instructions to:

Hon. Joseph Giordano
Supervisor, Town of Ticonderoga
132 Montcalm Street
Ticonderoga, NY, 12883
518-585-6265

         supervisor@townofticonderoga.org on behalf of Defendant. Defendant may change the individual to receive payment instructions on its behalf by providing written notice of such change to the United States and EPA in accordance with Section XIV (Notices).

         At the time of payment, Defendant shall send notice that payment has been made: (i) to EPA via email at cinwdacctsreceivable@epa.gov or via regular mail at EPA Cincinnati Finance Office, 26 W. Martin Luther King Drive, Cincinnati, Ohio 45268; and (ii) to the United States via email or regular mail in accordance with Section XIV. Such notice shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States and State ...


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