United States of America et al v. Nevada Department Of Transportation

Filing 6

CONSENT DECREE and FINAL JUDGMENT. Signed by Judge Miranda M. Du on 9/13/2016. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:16-cv-00453-MMD-VPC Document 2-1 Filed 07/28/16 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

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UNITED STATES OF AMERICA
and
STATE OF NEVADA,DEPARTMENT
OF CONSERVATION AND NATURAL
RESOURCES,DIVISION OF ENVIORNMENTAL
PROTECTION,

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Plaintiffs,
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Case No. 3:16-cv-453-MMD-VPC

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TRANSPORTATION,
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Defendant.
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CONSENT DECREE
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TABLE OF CONTENTS

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I.

JURISDICTION AND VENUE ......................................................................................... 4

II.

APPLICABILITY.........................................o.....................................................................'

III.

DEFINITIONS.....................................................e.............................................................. E

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IV.

COMPLIANCE REQUIREMENTS................................................................................... S

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V.

CERTIFICATION OF REPORTS AND SUBMISSIONS............................................... 2C

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VI.

CIVIL PENALTY............................................................................................................. 21

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VII.

SUPPLEMENTAL ENVIRONMENTAL PROJECT...................................................... 22

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VIII. STIPULATED PENALTIES ............................................................................................ 23

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IX.

FORCE MAJEURE .......................................................................................................... 26

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DISPUTE RESOLUTION ................................................................................................ 28

XI.

INFORMATION COLLECTION AND RETENTION ................................................... 31

XII.

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EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS......................................... 33

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XIII. M~SCELLANEOUS ......................................................................................................... 34
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XIV. NOTICES..........................................................................................................................35

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XV.

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XVI. RETENTION OF JURISDICTION .................................................................................. 36

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XVII. MODIFICATION .........................:................................................................................... 37

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XVIII. TERMINATION............................................................................................................... 37

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XIX. PUBLIC PARTICIPATION ................e............................................................................ 38

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XX.

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EFFECTIVE DATE e......................................................................................................... 36

SIGNATORIES ................................................................................................................ 39

XXI INTEGRATION e.............................................................................................................. 39
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XXII APPENDICES .................................................................................................................. 39
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XXIII. FINAL JUDGMENT .e...........e..........................................o............................................... 40

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The United States of America, on behalf ofthe United States Environmental Protection
Agency(EPA), and the State of Nevada, Department of Conservation and Natural Resources,
Division of Environmental Protection(NDEP), by and through its counsel ofrecord, have filed a

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Complaint in this matter concurrently with this Consent Decree, alleging that the Nevada

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Department of Transportation(NDOT)has violated Section 301(a)ofthe Clean Water Act, 33

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U.S.C. § 1311(a), by discharging pollutants in stormwater in violation of the terms ofNational

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Pollutant Discharge Elimination System(NPDES)Permit Number NV0023329 which authorizes

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storm water and certain non-storm water discharges from NDOT's municipal separate storm

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sewer system(MS4).

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In May,2012,EPA presented an audit report which identified potential deficiencies in

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NDOT's compliance with the Clean Water Act. Since then, NDOT has worked with EPA,the

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Nevada Governor's Office, NDEP and others to enhance NDOT's stormwater program and

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improve regulatory compliance.
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The Parties recognize and acknowledge NDOT's significant remedial action which

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includes, but is not limited to, NDOT's request in 2015 for an additional $13.1 million dollar

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budget amendment from the Nevada State Legislature to fund a new Stormwater Division within

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NDOT which was granted.

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NDOT states that the approved budget amendment included fifty nine(59)stormwater
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positions (including a new Deputy Director position to manage NDOT's environmental

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programs), an allocation of$7.6 million in new stormwater equipment, and additional funding

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for stormwater related training, operations and travel. NDOT continues to make significant

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progress on stormwater enhancements in the field. Stormwater improvement projects recently

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completed or currently under construction add up to over $33 million in expenditures, and nearly
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$15 million is allotted for projects scheduled for 2016-2017.

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In addition, the Parties recognize that new legislation was enacted which granted
NDOT's Director new powers to enforce discharge permitting requirements. These new

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enforcement powers authorize the Director to conduct an independent investigation of any act

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that may constitute an unauthorized discharge onto a state highway, within aright-of
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into, onto or by way of a conveyance system or for a violation of an encroachment permit issued

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by the Director. The legislation empowers the Director to impose a civil penalty of up to

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$25,000.00 per day for any violation and further provides that the Director may request that the
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Nevada Attorney General institute a criminal prosecution ofthe violation. In addition, the

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legislation established an Advisory Committee on Transportational Stormwater Management to

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enhance transparency and communications with affected stakeholders.

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By agreeing to entry ofthis Consent Decree, NDOT makes no admission oflaw or fact

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with respect to the allegations in the Complaint. For the purposes of avoiding litigation among
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the Parties, however, NDOT agrees to the requirements ofthis Consent Decree.
The Parties recognize, and the Court by entering this Consent Decree finds, that this

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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.

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NOW,THEREFORE,before the taking of any testimony, upon the pleadings, without

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adjudication or admission of any issue offact or law except as provided in Section I and with the

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consent.ofthe Parties, it is hereby ADJUDGED,ORDERED,AND DECREED as follows:

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I.

JURISDICTION AND VENUE

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1.

This Court has jurisdiction over the subject matter ofthis action and over the Parties

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pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and 33 U.S.C. §§1319 and 1365. This Court has

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supplemental jurisdiction over the State law claims asserted by NDEP pursuant to 28 U.S.C. §

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1367. Venue lies in this judicial district pursuant to 33 U.S.C. § 1319(b)and under 28 U.S.C.

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§§ 1391(b),(c)and 1395(a), because the defendant may be found here and because the

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transactions and occurrences giving rise to the Complaint occurred in this judicial district. For
purposes ofthe Decree and any action to enforce this Decree, NDOT consents to the Court's

7 jurisdiction over this Decree and any such action and over NDOT and consents to venue in this
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judicial district.

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2.

For purposes ofthis Consent Decree, NDOT agrees that the Complaint states claims

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which relief may be granted pursuant to the Clean Water Act, 33 U.S.C. § 1251 et. seq.
II.

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APPLICABILITY

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3.

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NDEP,and NDOT and any successor agencies or other entities or persons otherwise bound by

The obligations ofthis Consent Decree apply to and are binding upon the United States,

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law.
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4.

Within ten(10)Days ofthe Effective Date, NDOT shall provide a copy ofthis Decree to

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all officers, employees, and agents whose duties might reasonably include compliance with any

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provision of this Consent Decree. NDOT shall also provide a copy ofthis Consent Decree to

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each Contractor retained by NDOT to implement this Decree. NDOT may comply with the

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preceding sentences by providing a link to a website on which this Consent Decree is posted. If,
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more than ten(10)Days after the Effective Date, a Contractor is retained by NDOT to

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implement provisions ofthis Decree, NDOT shall provide such Contractor a copy ofthe Decree

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within ten(10)Days of such retention. NDOT shall condition any such contract upon

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performance ofthe work in conformity with the terms ofthis Consent Decree.

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5.

In any action to enforce this Consent Decree, NDOT shall not raise as a defense the
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failure by any of its officers, directors, employees, agents or Contractors to take any actions

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necessary to comply with the provisions ofthis Consent Decree.

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III.

DEFINITIONS

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6.

Except as specifically provided in this Decree, definitions for the terms used in this

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Decree shall be incorporated from the Clean Water Act and the regulations promulgated

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to the Act. Whenever terms listed below are used in this Decree,the following definitions apply

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"Clean Water Act" or "Act" shall mean the Federal Water Pollution Control Act, as

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amended, 33 U.S.C. §§ 1251-1387.
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"Complaint" shall mean the complaint filed by the United States and NDEP in this

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action.
"Consent Decree" shall mean this Decree and all appendices attached hereto.
"Construction Projects" shall mean any location owned or operated by NDOT at which

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there is or will be construction activities including clearing, grading and excavation that result it
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ground-disturbing activities greater than or equal to one acre (other than routine maintenance

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results in ground disturbance between one and five acres that is performed to maintain the

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original line and grade, hydraulic capacity, or original purpose ofthe facility), as defined by the

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National Pollutant Discharge Elimination System(NPDES)stormwater construction regulations

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set forth at 40 C.F.R. § 122.26(b)(14)(x) and (b)(15).
"Construction General Permit" shall mean either the Nevada National Pollutant

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Discharge Elimination System(NPDES)General Permit Authorizing Discharges Associated

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with Construction Activity or EPA's NPDES General Permit for Discharges from Construction

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Activities.
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"Contractor" shall mean an entity or natural person who is not an employee of NDOT,
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procured by NDOT in order to provide services in support of the specific requirements ofthis

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Consent Decree.

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"Day" shall mean a calendar day unless expressly stated to be a business day. In

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computing any period of time under this Consent Decree, where the last day would fall on a

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Saturday, Sunday, or federal or State holiday, the period shall run until the close of business of

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the next business day.

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"Effective Date" shall have the definition provided in Section XV.
"Encroachment Projects or Encroachment Construction Projects" shall mean any locatio:

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or portion of a location within NDOT's right-of-way that discharges into NDOT's MS4,not

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and excavation that result in ground-disturbing activities greater than or equal to one acre (other

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than routine maintenance that results in ground disturbance between one and five acres that is

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performed to maintain the original line and grade, hydraulic capacity, or original purpose ofthe
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facility) as defined by the National Pollutant Discharge Elimination System(NPDES)
stormwater construction regulations set forth at 40 C.F.R. § 122.26(b)(14)(x) and (b)(15).
"EPA" shall mean the United States Environmental Protection Agency and any of its
successor departments, agencies, or instrumentalities.

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"Geographic Information System" or "GIS" shall mean any information system that
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integrates, stores, edits, analyzes, shares, and displays geographic information for informing

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decision making. GIS applications are tools that allow users to create interactive queries (user-

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created searches), analyze spatial information, edit data in maps, and present the results of all

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these operations.
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"Large MS4" shall mean the entities covered under the Las Vegas Valley MS4 Permit or
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the Truckee Meadows MS4 Permit.
"Major Maintenance Facility" shall mean an NDOT maintenance facility where the
facility conducts major equipment repairs and servicing and houses multiple maintenance crews.

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Activities and operations at these facilities include some or all ofthe following: major vehicle or

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equipment repair; vehicle or equipment cleaning at a wash pad, wash rack, or steam pad; storage

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of vehicles, equipment, or waste material; and fueling.

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"Minor Maintenance Facility" shall mean any NDOT maintenance facility described by

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the MS4 Permit that is not a Major Maintenance Facility.
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"MS4 Permit" shall mean the NPDES municipal separate storm sewer system(MS4)

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permit issued by NDEP to NDOT. Unless otherwise specified,"MS4 Permit" shall refer to the

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current version.

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"NDOT" shall mean the Nevada Department of Transportation, including all of its

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divisions and regions.
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"NDEP" shall mean the Nevada Division of Environmental Protection, including all of
divisions and regions.
"New Development Projects" shall mean Construction Projects that disturb greater than
or equal to one acre, or less than one acre if it is part of a larger common plan of development or

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sale that would disturb one acre or more, which create impervious surface area, as described by
the MS4 Permit.
"Notice of Intent" or "NOI" shall mean a form filed with either EPA or NDEP,giving
notice that the party identified on the form requests authorization to discharge pursuant to a

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Construction General Permit.
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"Outfall" shall mean "major outfall" as defined by 40 C.F.R. § 122.26(b)(5).
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"Paragraph" shall mean a portion of this Decree identified by an arabic numeral.

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"Parties" shall mean the United States, on behalf of EPA; NDEP,and NDOT.

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"Redevelopment Projects" shall mean Construction Projects that 1)create additional

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impervious surface area on an already developed roadway or site, or 2)require demolition or

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complete removal of existing structures or impervious surfaces and replacement with new

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impervious surfaces or structures, as described by the MS4 Permit.

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"Section" shall mean a portion ofthis Decree identified by a roman numeral.

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"State" shall refer to the State ofNevada.
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"SWMP" shall mean a Stormwater Management Program Plan developed and

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implemented as required by NDOT's MS4 Permit and modified as required by this Consent

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Decree."2013 SWMP"shall mean the SWMP approved by NDEP on February 15, 2013.

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"United States" shall mean the United States of America, acting on behalf of EPA.

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"Year" shall mean a calendar year.
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IV.

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COMPLIANCE REQUIREMENTS

NDOT shall fully comply with all requirements ofthe Clean Water Act, including all

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terms and conditions of applicable NPDES Permits.

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Stormwater Management Pro~am Plan(SWMP).NDOT shall modify the 2013 SWMP

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to integrate changes described in this Consent Decree. The modified SWMP shall be provided to

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EPA and NDEP no later than 18 months after the effective date of the 2016 NDOT NPDES MS4

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Permit. If the effective date ofthe 2016 MS4 Permit is delayed past June 30, 2016, NDOT will

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update and provide the SWMP no later than December 31,2017.

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a.

Within 15 days ofthe date specified above, NDOT shall post the modified

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on NDOT's website. Each calendar year, NDOT shall verify that the most recent SWMP is
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posted on its website and report in the Annual Report whether a new SWMP has been posted.

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Annual Report. NDOT shall post to NDOT's website an Annual Report and notify EPA

and NDEP of such posting, beginning with the first Annual Report due after the Effective Date.

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Annual Reports shall be due to EPA and NDEP on the date required by NDOT's MS4 Permit,

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and posted on NDOT's website fifteen(15)Days later. The Annual Report shall include, but is

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not limited to, the information below:

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a.

A quantitative assessment that reports NDOT's activities and whether NDOT met

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measurable goals, as described in NDOT's MS4 Permit and SWMP.
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b.

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A qualitative assessment that incorporates a discussion of how successful NDOT

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has been in meeting implementation timelines, whether metrics tracked by NDOT are effective

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in measuring specific activities, and whether specific activities have been effective in reducing

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the discharge of pollutants from the MS4. Where available, the assessment shall include a

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discussion of water quality monitoring data, as required by NDOT's MS4 Permit. Where
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monitoring data is not available, NDOT shall evaluate the need for water quality monitoring in

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determining SWMP effectiveness.

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c.

The Annual Report shall include a budget broken down by major components of

the SWMP.

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d.

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The Annual Report shall include a discussion of changes to the SWMP to

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incorporate new activities, modify existing activities, and verify the current SWMP is posted on

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NDOT's webpage.

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10.

Public Stormwater Education Program. NDOT shall continue to implement the

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Stormwater Education Program described in the 2013 SWMP,and shall update the SWMP to
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incorporate the following changes:
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Enhanced Stormwater Management Website

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Within sixty (60)Days ofthe Effective Date, NDOT shall update and maintain its

stormwater management website to include, but not be limited to: 1)links to its NPDES permit

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and this Consent Decree; 2)the three most recent Annual Reports; 3)links to NDOT's Adopt-AHighway page and Sponsor-A-Highway page; 4)current versions of NDOT's employee and

contractor stormwater training materials; 5)the current version of NDOT's Illicit Discharge
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Planning and Design Guide; and 7)contacts for reporting possible stormwater violations to
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NDOT,NDEP,and EPA.
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ii.

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NDOT shall ensure the stormwater management website is easily accessible by

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the public, including, but not limited to, a prominent link on NDOT's homepage. NDOT shall

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provide for a mechanism to track the number of visitors to the webpage and report this

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information in the Annual Report.
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11.

Employee Training. Within 270 Days ofthe Effective Date, NDOT shall submit to EPA

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and NDEP,and implement, a Stormwater Certification Program which shall provide specialized

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training for employees involved in the illicit discharge detection and elimination program,

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construction site runoff program, post-construction stormwater management program, and

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operation and maintenance ofthe MS4, as required by NDOT's MS4 Permit. NDOT shall report
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the number and types of employees trained each year in the Annual Report.

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12.

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Site Runoff Control Program described in the 2013 SWMP and shall make and implement the

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Construction Site Runoff Control. NDOT shall continue to implement the Construction

changes described in this Paragraph. The Construction Site Runoff Control Program shall apply

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to all Construction Projects or Encroachment Construction Projects.
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a.
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Within 270 Days ofthe Effective Date, NDOT shall ensure that the Construction

Site Runoff Control Program includes but is not limited to the following elements: 1) procedures
for review of construction plans, including a requirement to use a Construction Stormwater

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Review Checklist, a requirement to check whether a Notice of Intent to be covered under an

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applicable Construction General Permit has been filed, and a process for ensuring that

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Stormwater Pollution Prevention Plans, as required by the applicable Construction General
Permit, are reviewed; 2)a requirement that all Construction Projects comply with NDOT's

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Construction Site BMP Manual; 3)a system to track the location of all active NDOT
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construction contracts in a manner compatible with NDOT's mapping system, as described in

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Paragraph 15.b; and 4)a description ofthe inspection process and follow-up enforcement by

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NDOT. NDOT shall use its best efforts to incorporate Encroachment Projects into its tracking

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system. NDOT shall submit a report to EPA within 270 Days ofthe Effective Date, describing

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how the Construction Site Runoff Control Program has been modified.
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b.

Construction Site Oversight Inspections: NDOT shall conduct oversight

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NDOT's contractors or other parties working within NDOT's right-of-way are properly
implementing and maintaining BMPs,conducting inspections as required by the Construction

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General Permit, and otherwise minimizing the discharge of pollutants. Until the plan described

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the sentence below is approved, NDOT shall conduct the oversight inspections at least at the

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same frequency as compliance inspections required by the Construction General Permit. Each

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inspection shall be documented on a standardized inspection form, developed by NDOT.If

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NDOT chooses, it can develop a different inspection form for Encroachment Construction
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Projects. Within 180 days of the Effective Date, NDOT shall submit for review and approval, a
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plan to prioritize inspections and inspection frequencies of all Construction Projects and

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Encroachment Construction Projects, which plan shall consider the nature of the construction

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activity, topography, soil characteristics, and water quality. For this submittal, if EPA has not

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responded within thirty(30)Days,the plan is approved.
Post-Construction Stormwater Management Proms.NDOT shall continue to

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13.

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the Post-Construction Stormwater Management Program described in the 2013 SWMP and shall

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make and implement the changes described in this Paragraph. Within one year ofthe Effective

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Date, NDOT shall ensure the Post-Construction Stormwater Management Program includes, but

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is not limited to, the elements described in this Paragraph. If NDOT chooses, it can update and

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use NDOT's Planning and Design Guide to comply with this requirement. NDOT shall submit a

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report to EPA within one year ofthe Effective Date, describing how the Post-Construction Site

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Runoff Control Program has been modified.

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a.

Project Applicability. NDOT shall require all New Development Projects,

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Redevelopment Projects, and Encroachment Projects to comply with the Post-Construction

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Stormwater Management Program. NDOT shall develop and submit aflow-chart or other

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mechanism to describe the decision making process for determining which classes of New

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Development Projects, Redevelopment Projects, and Encroachment Projects will be required to

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install post-construction BMPs. The Post-Construction Stormwater Management Program shall

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require the installation ofpost-construction controls for all New Development Projects or

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Redevelopment Projects that discharge to impaired waters, and shall require a robust evaluation

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ofthe need for post-construction controls for all other areas.

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b.

Post-Construction Control Measures and Technical Specifications. NDOT shall

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develop or adopt technical standards that govern the selection, installation, and maintenance of
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post-construction control measures implemented for New Development Projects,

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Projects, and Encroachment Projects. The technical standards shall consider design storm

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duration and/or intensity, pollutants of concern generated at the site, and maintainability, and

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shall promote low impact development.
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Long-Term Operation and Maintenance. NDOT shall ensure that all New

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Development Projects and Redevelopment Projects and Encroachment Projects subject to post-

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construction control measure requirements after the Effective Date, have an operation and

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maintenance plan, monitoring plan where applicable, and a process of verification of ongoing

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maintenance ofinstalled controls, which shall include inspections, recorded on an inspection
form.

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d.

Tracking Database. NDOT shall develop and implement an electronic inventory

ofpost-construction control measures as required by the MS4 Permit. The inventory shall be

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used to record the location and maintenance obligations for post-construction control measures
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and be compatible with NDOT's mapping systems.

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14.

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described in this Paragraph to the Illicit Discharge Detection and Elimination program described

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Illicit Discharge Detection and Elimination. NDOT shall implement the changes

in the 2013 SWMP.

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a.

NDOT shall use the current version of NDOT's Illicit Discharge Detection and

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Elimination Field Guide, which provides a list and description or examples of illicit discharges

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that are considered to be significant contributors of pollutants to NDOT's MS4,and describes or

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version to the general public through publication on NDOT's website.

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b.

Field Screening
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i.

Inspection Plan. Within 180 Days ofthe Effective Date, NDOT shall develop and

implement an Outfall Inspection Plan for dry weather visual inspections. The Outfall Inspection
Plan shall: a)identify the division or group within NDOT responsible for conducting the

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inspections; b)describe inspection and recordkeeping procedures; c)require the use of a

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inspection form and include an example form; and d)include a prioritization plan. The Outfall

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Inspection Plan shall also include procedures to trace and eliminate illicit discharges.

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1)

NDOT shall use a database to record the location, size, and type of pipe,

which is compatible with NDOT's mapping system, as described in Paragraph 15.b. As new

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Outfalls are discovered or installed, they shall be initially inspected, and Outfall information
shall be included in the inventory.

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2)

When developing the prioritization plan, NDOT shall take into account

previous annual dry weather visual inspection data, activities in the watershed of the Outfall,

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whether the Outfall discharges to impaired or unique waters, and the likelihood that illicit
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discharges will be present. NDOT shall rank all known Outfalls as high or low priority. At a

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minimum, all Outfalls with previous dry weather discharges shall be considered high priority

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Outfalls, unless NDOT has investigated the source and determined the discharge to be

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authorized. NDOT shall review the prioritization of all known Outfalls on an annual basis. The

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prioritization plan shall be included in the Annual Report. Upon implementation, all high
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priority Outfalls shall be inspected at least once per year and low priority Outfalls shall be

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inspected at least once every three years.

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ii.

Inspection Form. NDOT shall create and maintain records of all Outfall

inspections using a standard inspection form, which shall require inspectors to record physical

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Outfall conditions, any flow characteristics (including color, odor, clarity, solids, foam, oil
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sheen, etc.), and information about activities in the surrounding area, including receiving waters.

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NDOT shall also maintain records of all illicit discharge investigations in the database described

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by Paragraph 14.b.i(1).

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15.

NDOT's Operation and Maintenance Program. Within one year of the Effective Date,

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NDOT shall develop and implement a Storm Sewer System Operation and Maintenance Pro

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and shall describe the Operation and Maintenance Program in the SWMP.

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a.

NDOT shall ensure that the Operation and Maintenance Program includes

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procedures for the following activities as required by the MS4 Permit: 1)inspection, cleaning,
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and routine maintenance ofthe storm sewer system including roadways, catch basins, storm

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drain inlets, open channels, washes, culverts, and retention/detention basins; 2)evaluating and

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conducting erosion abatement projects on slopes greater than 3:1 or where active erosion is

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occurring or prone to occur; 3)street and highway maintenance in urbanized areas, including

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sweeping after snow storms; 4)street and highway maintenance in other areas; and 5)
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maintaining information about the types and quantities of abrasives and/or deicing agents used.
b.

Storm Sewer System Mapping. Within thirty(30)Days ofthe Effective Date,

NDOT shall submit for review and approval, a schedule to develop a comprehensive storm
system map that identifies all NDOT assets including inlets, pipes, above ground drainage

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features, Outfalls, post-construction control measures, maintenance facilities (including saldsand

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storage), and material pits (to the extent they impact the storm sewer system). The schedule shall

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also include a date by which the map will include locations where NDOT Outfalls discharge to

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impaired waters. The schedule shall describe tasks to be completed on asemi-annual basis. The

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schedule shall discuss the process by which NDOT vv~ll ensure that new assets are added to the
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map. For this submittal, if EPA has not responded within thirty (30)Days,the schedule is
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approved.

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i.

The map shall be developed in a geographic information system (GIS)format and

include relevant information for each asset class. For pipes, drainage features and Outfalls,

4
5
6

information shall include the type of material and size. The map shall identify adjacent Large
MS4s.

7
8
9

ii.

The schedule shall ensure NDOT has all Outfalls and associated drainage features

mapped by December 31, 2016, with the entire map (all Outfalls and associated drainage
features as well as maintenance facilities, material pits and impaired waters) to be completed by

10
11
12

December 31, 2018.
c.

Storm Sewer System Inspections and Maintenance. NDOT shall conduct periodic

13

physical inspections ofthe storm sewer system, including storm water conveyances, catch

14

basins, storm drain inlets, open channels, washes, culverts, and retention/detention basins, to

15
identify structural defects, trash and debris accumulation, and other constraints that limit the
16
17

ofstormwater or are potential sources of pollutants. In addition to any periodic inspections,

18

NDOT sha11 conduct maintenance and cleaning as needed. At a minimum,NDOT shall identify

19

high priority components ofthe storm sewer system for annual inspections and cleaning. High

20

priority components are locations where there is a greater risk for discharge of pollutants, based

21
22

on such factors as the types of activities in the sub-watershed or proximity to impaired waters.

23

Newly identified high priority components shall be listed in the Annual Report. High priority

24

components shall be inspected at least once per year and cleaned in accordance with the

25

Operation and Maintenance Program.

26
d.

NDOT shall conduct annual inspections of at least five(5) post construction

27
28

BMPs,(such as retention basins) using Unmanned Aerial Vehicles(UAV)or other means.
17

1

NDOT shall record the condition of inlet and outlet structures, side slopes and the basin floor to

2

determine the level of erosion, sediment, or debris in the basin. If NDOT uses UAVs,NDOT

3

shall 1)collect imaging and 3-D terrain modeling data to demonstrate the condition ofthe basin

4
5

and 2)submit a report to EPA and NDEP,no later than August 31, 2018, evaluating the

6

usefulness of UAVs in conducting inspections of post-construction BMPs.

7

16.

8

for review and approval: 1)NDOT's Facility Pollution Prevention Plan(Plan) which shall

Maintenance Facilities. Within thirty(30)Days ofthe Effective Date, NDOT shall

9
describe maintenance facilities covered under the Plan and the process for storm water pollution
10 ~'
11

prevention plan development, inspections, and corrective action where needed; and 2)NDOT's

12

Maintenance Facality BMP Manual which shall describe BMPs to be implemented at various

13

facilities.

14

a.

NDOT shall ensure that all maintenance facilities receive an annual

15
comprehensive inspection which takes into account the results of any more frequent inspections.
16
17

NDOT shall also inspect all Major Maintenance Facilities on a quarterly basis, and Minor

18

Maintenance Facilities at least one time per year in addition to the annual comprehensive

19

inspection. NDOT shall use a standard inspection form, and indicate (by title) the entity

20

responsible for conducting the inspection.

21
b.

22

NDOT shall also ensure that the updated SWMP includes a list of all maintenance

23

facilities, including all vehicle maintenance facilities, asphalt and concrete batch plants, solid

24

waste transfer stations (including decant facilities), and active exposed material stockpiles. The

25

list shall be sorted into Major Maintenance Facilities and Minor Maintenance Facilities and the

26
SWMP shall describe the methodology for the designation.
Z7
28

17.

Quarterl~portin~. Once per quarter, starting the first full calendar quarter after the
18

1

Effective Date and continuing until the Consent Decree is terminated in accordance with Section

2

XVIII(Termination), NDOT,NDEP and EPA shall have quarterly meetings to discuss progress

3

in complying with the terms ofthis Consent Decree. In-person meetings are not required. The

4
5

meeting shall be held after the end of each calendar quarter. Ten (10)Days prior to each

6

quarterly meeting, NDOT shall provide to EPA and NDEP a report that includes 1)a list of all

7

tasks required by Paragraphs 8-17 and Appendix A ofthe Consent Decree to be completed that

8

quarter, 2) whether or not specific deadlines for each task were met, and 3)a list of all tasks due

9
the next quarter.
10
11

18.

Deliverables. For any plan, report, or other item that is required to be submitted to EPA

12

pursuant to this Consent Decree, NDOT shall incorporate EPA's and NDEP's comments,if any.

13

EPA shall submit comments within thirty(30)Days. For any plan,report, or other item that is

14

required to be submitted for approval pursuant to this Consent Decree, EPA,after consultation

15
with NDEP,shall in writing:(i) approve the submission;(ii) approve the submission upon
16
17

specified conditions;(iii) approve part ofthe submission and disapprove the remainder; or (iv)

18

disapprove the submission.

19
20

a.

Ifthe submission is approved pursuant to Subparagraph (i) above, NDOT shall

take all actions required by the plan, report, or other document, in accordance with the schedules

21
22

and requirements ofthe plan, report, or other document, as approved. Ifthe submission is

23

conditionally approved or approved only in part, pursuant to Subparagraph (ii) or (iii), NDOT

24

shall, upon written direction of EPA,after consultation with NDEP,take all actions required by

25

the approved plan, report, or other item that EPA,after consultation with NDEP,determines are

26

technically severable from any disapproved portions or conditions placed on conditionally

27
28

approved portions, subject to NDOT's right to dispute only the specified conditions or the
19

1

disapproved portions under Section X (Dispute Resolution).

2
3

If the submission is disapproved in whole or in part pursuant to Subparagraph (iii)

b.

or (iv), NDOT shall, within thirty(30)days or such other time as agreed to in writing, correct all

4
5

deficiencies and resubmit the plan, report, or other item, or disapproved portion thereof, for

6

approval, in accordance with the preceding Subparagraph. If the resubmission is approved in

7

whole or in part, NDOT shall proceed in accordance with the preceding Subparagraph.

8

Any Stipulated Penalties applicable to the original submission, as provided in

c.

9
Section VIII (Stipulated Penalties), shall accrue during the 30-day period or other period
10
11

specified for resubmission, but shall not be payable unless the resubmission is untimely or is

12

disapproved in whole or in part; provided that, if the original submission was so deficient as to

13

constitute a material breach of NDOT's obligations under this Decree, the Stipulated Penalties

14

applicable to the original submission shall be due and payable notwithstanding any subsequent

15
resubmission.
16
d.

17

If a resubmitted plan, report, or other item, or portion thereof, is disapproved in

18

whole or in part, EPA,after consultation with NDEP, may again require NDOT to correct any

19

deficiencies, in accordance with the preceding Paragraphs, or may itself correct any deficiencies,

20

subject to NDOT's right to invoke Dispute Resolution and to the right ofEPA and NDEP to seek

21
22

Stipulated Penalties as provided in the preceding Paragraphs.
V.

23

CERTIFICATION OF REPORTS AND SUBMISSIONS

Except as otherwise expressly provided in this Consent Decree, any report or other

24

19.

25

document submitted by NDOT pursuant to this Decree that makes any representation concerning

26
compliance or noncompliance with any requirement ofthis Decree, the Act or its implementing
27
28

regulations, or any applicable permit, shall be certified by a Responsible Officer of NDOT. The
I~1;

certification shall be in the following form:
2

I certify under penalty oflaw that I have examined and am familiar with the
information submitted in this document and all attachments and that this
document and its attachments were prepared either by me personally or under my
direction or supervision in a manner designed to ensure that qualified and
knowledgeable personnel properly gather and present the information contained
therein. I further certify, based on my personal knowledge or on my inquiry of
those individuals immediately responsible for obtaining the information, that the
information is true, accurate and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fines and
imprisonment for knowingly and willfully submitting a materially false statement.

0

6
7
8
9

VI.

CIVIL PENALTY

10
11

20.

NDOT shall pay a civil penalty of $120,000 which shall be split between the United

12

States and NDEP as described below.

13

21.

14

civil penalty of$60,000, plus interest accruing from the date on which this Consent Decree is

Within seven(7)days after the Effective Date, NDOT shall pay to the United States a

15
lodged with the Court. Interest shall be calculated in accordance with the rate specified in 28
16
17
18
19
20

U.S.C. § 1961.
a.

Payment shall be made by FedWire Electronic Funds Transfer(EFT)to the U.S.

Department of Justice in accordance with instructions to be provided to NDOT,following
lodging ofthe Consent Decree, by the Financial Litigation Unit ofthe U.S. Attorney's Office for

21
22

the District of Nevada. At the time of payment, NDOT shall send a copy ofthe EFT

23

authorization form and the EFT transaction record, together with a transmittal letter, which shall

24

state that the payment is for the civil penalty owed pursuant to the Consent Decree in United

25

States et al. v. Nevada Department ofTransportation, and shall reference the DOJ case number

26

90-5-1-1-11031, to the United States in accordance with Section XIV ofthis Decree (Notices);

27
28

by email to cinwd acctsreceivable@epa.~ov; and by mail to:
21

EPA Cincinnati Finance Office
26 West Martin Luther King Drive
Cincinnati, OH 45268

1
2
3
22.

Within ten(10)days after the Effective Date, NDOT shall pay to NDEP a civil penalty

4
5
6

$60,000, plus interest accruing from the date on which this Consent Decree is lodged with the
Court. Interest shall be calculated in accordance with the rate specified in 28 U.S.C. § 1961.

7
8

At least three business days in advance, NDOT shall notify NDEP of its intent to

a.

make payment. Upon receiving such notice, NDEP shall submit a Journal Voucher Document

9
(JVD)to NDOT and NDOT will then complete its portion ofthe JVD and submit to the State
10
11

Controller to process transfer offunds.
VII.

12
13
14

23.

SUPPLEMENTAL ENVIRONMENTAL PROJECT

NDOT shall implement a Supplemental Environmental Project(SEP), Real-Time Water

Quality Data Availability, in accordance vv~th all provisions of Appendix A.

15
NDOT is responsible for the satisfactory completion ofthe SEP in accordance

a.
16

or
17 i with the requirements of this Decree. NDOT may use contractors consultants in planning and
18
19
20

implementing the SEP.
With regard to the SEP, NDOT certifies the truth and accuracy of each ofthe

b.
following:

21
22

i.

that all cost information provided to EPA in connection with EPA's approval of

23

the SEP is complete and accurate and that NDOT in good faith estimates that the cost to

24

implement the SEP is $200,000;

25

ii.

that, as ofthe date of executing this Decree, NDOT is not required to perform or

26
develop the SEP by any federal, state, or local law or regulation and is not required to perform or
27
28

develop the SEP by agreement, grant, or as injunctive relief awarded in any other action in any
22

1

i~' fOTUTTI;

2
3

iii. that the SEP is not a project that NDOT was planning or intending to construct,
perform, or implement other than in settlement of the claims resolved in this Decree;

4
iv. that NDOT has not received and will not receive credit for the SEP in any other
5
6

enforcement action;
that NDOT will not receive any reimbursement for any portion ofthe SEP from

7

v.

8

any other person; and

9

vi. that NDOT is not a party to any open federal financial assistance transaction that

10
11

is funding or could fund the same activity as the SEP described in Appendix A. For purposes of

12

these certifications, the term "open federal financial assistance transaction" refers to a grant,

13

cooperative agreement, loan, federally-guaranteed loan guarantee, or other mechanism for

14

providing federal financial assistance whose performance period has not yet expired.

15
VIII.

STIPULATED PENALTIES

16
17

24.

NDOT shall be liable for stipulated penalties to the United States and NDEP for

18

violations ofthis Consent Decree as specified below, unless excused under Section IX (Force

19

Majeure). A violation includes failing to perform any obligation required by the terms ofthis

20

Decree, including any work plan or schedule approved under this Decree, according to all

21
22
23
24
25

applicable requirements of this Decree and within the specified time schedule established by or
approved under this Decree. NDOT shall pay Stipulated Penalties in the following amounts:
a.

For failure to pay the civil penalty required under Section VI(Civil Penalty)

due: $1,000 for each day that the payment is late;

26
b.

For each failure to complete a task as required by Paragraphs 8-17 and Appendix

27
28 '

A ofthe Consent Decree and as identified during the quarterly meeting described by Paragraph
23

1

17:

2

i.

Failure to complete one(1)task: $7,500;

ii.

Failure to complete 2-3 tasks: $25,000

3
4
iii. Failure to complete more than three(3)tasks: $40,000.

5
6

25.

If NDOT has not completed the tasks)identified as incomplete in the previous quarterly

7

meeting within 90 Days, the amounts in Paragraph 24.b shall be doubled, and shall continue to

8

double quarterly until the task is completed.

9
26.

NDOT shall pay stipulated penalties to the United States and NDEP within thirty(30)

10
11

Days of a written demand by either Plaintiff. Defendant shall pay 50 percent ofthe total

12

stipulated penalty amount due to the United States and 50 percent to NDEP. The Plaintiff makin

13

a demand for payment of a stipulated penalty shall simultaneously send a copy ofthe demand to

14

the other Plaintiff.

15
27.

Either Plaintiff may,in the un-reviewable exercise of its discretion, reduce or waive

16
17

stipulated penalties otherwise due to it under this Consent Decree.

18

28.

NDOT shall pay Stipulated Penalties owing to the United States by EFT in accordance

19' with Section VI(Civil Penalty), Paragraph 21, above. Any payment of Stipulated Penalties shall
20
21
22

be accompanied by a transmittal memorandum referencing DOJ No. 90-5-1-1-11031 and United
States Attorney's Office file number[ 2016 V00196 and stating that payment of Stipulated
~

23

Penalties is being made and describing the violations for which payment is being made.

24

29.

25

shall submit a JVD to NDOT and NDOT will then complete its portion ofthe JVD and submit to

NDOT shall pay Stipulated Penalties owing to NDEP by Journal Voucher(JVD). NDEP

26
~ the State Controller to process transfer offunds.
27
28

30.

Interest. If NDOT fails to pay Stipulated Penalties according to the terms ofthis Consent
24

1

Decree, NDOT shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961,

2

accruing as ofthe date payment became due. Nothing in this Paragraph shall be construed to

3

limit the United States or NDEP from seeking any remedy otherwise provided for by law for

4
5

NDOT's failure to pay any stipulated penalties.
The payment of Stipulated Penalties sha11 not alter in any way NDOT's obligation to

6

31.

7

comply with the requirements ofthis Decree.

8

32.

9

Subject to the provisions of Section XII ofthis Consent Decree (Effect of

Settlement/Reservation of Rights), the Stipulated Penalties provided for in this Consent Decree

10
11

shall be in addition to any other rights, remedies, or sanctions available to the United States or

12

NDEP (including but not limited to, statutory penalties, additional injunctive relief, mitigation or

13

offset measures, and/or contempt)for NDOT's violation ofthis Consent Decree or applicable

14

law. Where a violation ofthis Consent Decree is also a violation ofthe Clean Water Act, NDOT

15
shall be allowed a credit for any Stipulated Penalties paid against any statutory penalties i
16
17

for such violation.
Stipulated Penalties shall continue to accrue _during any dispute resolution period, but

18

33.

19

need not be paid until the following:

20

a.

If the dispute is resolved by agreement or by a decision ofthe United States or

21
22

NDEP that is not appealed to this Court, NDOT shall pay accrued Stipulated Penalties

23

determined to be owing to the United States or NDEP within fifteen(15)Days ofthe agreement

24

or the receipt of EPA's decision or order;

25
26

b.

If the dispute is appealed to the Court and the United States or NDEP prevails in

whole or in part, NDOT shall pay all accrued Stipulated Penalties determined by the Court to be

27
28

owed to the United States or NDEP within thirty(30)Days of receipt ofthe Court's decision or
25

1

order, except as provided in Subparagraph c, below;

2
3

c.

If any Party appeals the District Court's decision, NDOT shall pay all accrued

penalties determined to be owing, together with interest, within fifteen(15)Days of receiving

4
5

final appellate court decision.
IX.

6

FORCE MAJEURE

7

34.

8

from causes beyond the control ofNDOT,its Contractors, or any entity controlled by NDOT

"Force Majeure," for purposes ofthis Consent Decree, is defined as any event arising

9
delays or prevents the performance of any obligation under this Consent Decree despite NDOT's
10
11

best efforts to fulfill the obligation. The requirement that NDOT exercise "best efforts to fulfill

12

the obligation" includes using best efforts to anticipate any potential Force Majeure event and

13

best efforts to address the effects of any potential Force Majeure event(a) as it is occurring and

14

(b)following the potential Force Majeure, such that the delay and any adverse effects ofthe

15
delay are minimized."Force Majeure" does not include NDOT's financial inability to perform
16
17 I~ any obligation under this Consent Decree.
If any event occurs or has occurred that may delay the performance of any obligation in

18

35.

19

Paragraphs 8-17, whether or not caused by a Force Majeure event, NDOT sha11 notify (orally or

20

by email) David Wampler at(415)972-3975 or Wampler.david(a~epa. o~v and Bruce Holmgren

21
22

at(775)687-9433 or Bholm ^
rg e(a,ndep.nv.gov within 72 hours after the time NDOT first knew

23

of, or in the exercise of reasonable diligence under the circumstances should have known of, any

24

event that might delay completion of any requirement ofthis Decree, whether or not caused by a

25

Force Majeure event. The United States or NDEP may designate alternative representatives to

26
~ receive oral notification at their discretion by sending NDOT a written designation in accordance
27
28

~ with Section XIV (Notices). Within seven(7) days thereafter, NDOT shall provide in writing to

1

EPA and NDEP an explanation and description ofthe reasons for the delay; the anticipated

2

duration ofthe delay; all actions taken or to be taken to prevent or minimize the delay; a

3

schedule for implementation of any measures to be taken to prevent or mitigate the delay or the

4
5

effect ofthe delay; NDOT's rationale for attributing such delay to a Force Majeure event if it

6

intends to assert such a claim; and a statement as to whether, in the opinion of NDOT,such

7

may cause or contribute to an endangerment to public health, welfare or the environment. NDOT

8

shall include with any notice all available documentation supporting the claim that the delay was

9

attributable to a Force Majeure. Failure to comply with the above requirements shall preclude

10
11

NDOT from asserting any claim of Force Majeure for that event for the period oftime of such

12

failure to comply, and for any additional delay caused by such failure. NDOT shall be deemed to

13

know of any circumstance of which NDOT,any entity controlled by NDOT,or NDOT's

14

Contractors knew or should have known.

15
36.

If EPA,after a reasonable opportunity for review and comment by NDEP,agrees,that the

16
17

delay or anticipated delay is attributable to a Force Majeure event, the time for performance of

18

the obligations under this Consent Decree that are affected by the Force Majeure event will be

19

extended by EPA for such time as is necessary to complete those obligations. An extension of

20

the time for performance ofthe obligations affected by the Force Majeure event shall not, of

21
22

itself, extend the time for performance of any other obligation. EPA will notify NDOT in writing

23

ofthe length ofthe extension, if any, for performance ofthe obligations affected by the Force

24

Majeure event.

25

37.

26

If EPA,after a reasonable opportunity for review and comment by NDEP,does not agree

that the delay or anticipated delay has been or will be caused by a Force Majeure event, EPA

27
28

notify NDOT in writing of its decision.
27

1 1138
2
3

If NDOT elects to invoke Dispute Resolution, it must do so no later than fifteen(15)

Days after receipt of the United States' notice. In any such dispute, NDOT bears the burden of
proving, by a preponderance ofthe evidence that the delay or anticipated delay has been or will

4
5

be caused by a Force Majeure event, that the duration ofthe delay or the extension sought was or

6

will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate

7

the effects ofthe delay, and that NDOT complied with the requirements of Paragraphs 34 and 35

8

If NDOT carries this burden, the delay at issue shall be deemed not to be a violation by NDOT

9
the affected obligation of this Consent Decree identified to EPA and the Court.
10
X.

11

DISPUTE RESOLUTION

Unless otherwise expressly provided for in this Decree,the dispute resolution procedures

12

39.

13

ofthis Section shall be the exclusive mechanism to resolve disputes arising under or with respect

14

to this Consent Decree. NDOT's failure to seek resolution of a dispute under this Section shall

15
preclude NDOT from raising any such issue as a defense to an action by the United States to
16
17

enforce any obligation of Defendant arising under this Decree.

18

40.

19

Consent Decree shall first be the subject ofinformal negotiations. The dispute shall be

20

Informal Dispute Resolution. Any dispute subject to dispute resolution under this

considered to have arisen when NDOT sends the United States a written Notice of Dispute.

21
22

Such Notice of Dispute shall state clearly the matter in dispute. The period ofinformal negotia-

23

tions shall not exceed twenty(20)days from the date the dispute arises, unless that period is

24

modified by written agreement ofthe United States and NDOT.If the Parties cannot resolve a

25

dispute by informal negotiations, then the position advanced by the United States sha11 be

26
considered binding unless, within fifteen(15)days after the conclusion of the informal negotia27
28

tion period, NDOT invokes formal dispute resolution procedures set forth in Paragraph 41,
28

1

below.

2

41.

3

Formal Dispute Resolution.
a.

Within fifteen(15)days after the conclusion ofthe informal negotiation period,

4
5

NDOT may invoke formal dispute resolution procedures by serving on the United States a

6

written Statement of Position regarding the matter in dispute. The Statement ofPosition shall

7

include, but need not be limited to, any factual data, analysis, or opinion supporting NDOT's

8

position and any supporting documentation relied upon by NDOT.

9
b.

The United States shall serve its Statement of Position within 45 Days ofreceipt

10
11

of NDOT's Statement of Position. The United States' Statement of Position shall include, but

12

need not be limited to, any factual data, analysis, or opinion supporting that position and any

13

supporting documentation relied upon by the United States.

14

c.

Following receipt of all Statements of Position submitted pursuant to Paragraphs

15
41 a and b above, EPA's Enforcement Division Director will issue a final decision resolving the
16
17

dispute. The Enforcement Division Director's decision shall be binding on Defendant, unless

18

Defendant files a motion for judicial review ofthe dispute in accordance with the following

19

Paragraph.

20

42.

Petitions to the Court. In the event that the Parties cannot resolve a dispute by informal

21
22
23

or formal negotiations as set forth above, the following procedures shall apply:
a.

NDOT may seek judicial review ofthe dispute by filing with the Court and

24

serving on the United States, a Motion requesting judicial resolution of the dispute. The Motion

25

shall be filed within ten(10)Days ofreceipt ofthe Enforcement Division Director's decision set

26
forth in Paragraph 41.c, above.
27
28

b.

The Motion shall attach all Statements of Position, the Enforcement Division
29

1

Director's decision, and shall contain a written statement of NDOT's position on the matter in

2

dispute, including any supporting factual data, analysis, opinion, and documentation, and shall

3

set forth the relief requested and any schedule within which the dispute must be resolved for

4
5
6

orderly implementation ofthe Consent Decree. NDOT shall serve such Motion on the United
States electronically and by overnight delivery.

7
8

c.

The United States shall respond to NDOT's Motion within the time period

allowed by the Local Rules ofthe Court.

9
d.

NDOT may file a reply memorandum to the extent permitted by the Local Rules.

e.

Disputes Concerning Matters Accorded Record Review. Except as otherwise

10
11
12

provided in this Consent Decree, in any dispute brought under Paragraph 42 pertaining to the

13

adequacy or appropriateness of plans, procedures to implement plans, schedules or any other

14

items requiring approval by EPA under this Consent Decree; the adequacy ofthe performance

15
work undertaken pursuant to this Consent Decree; and all other disputes that are accorded
16
17

on the administrative record under applicable principles of administrative law, NDOT shall havf

18

the burden of demonstrating, based on the administrative record, that the decision ofthe

19

Enforcement Division Director is arbitrary and capricious or otherwise not in accordance with

20

law.

21
f.

22

Other Disputes. Except as otherwise provided in this Consent Decree, in any

23

dispute brought under Paragraph 42, NDOT shall bear the burden of demonstrating that its

24

position complies with this Consent Decree and better furthers the objectives ofthe Consent

25

Decree.

26
~ 43.

Effect on Other Obligations. The invocation of dispute resolution procedures under this

27
28

Section sha11 not, by itself, extend, postpone, or affect in any way any obligation of NDOT under
30

1

this Consent Decree, unless and until final resolution ofthe dispute so provides. Stipulated

2

Penalties with respect to the disputed matter shall continue to accrue from the first Day of

3

noncompliance, but payment shall be stayed pending resolution ofthe dispute as provided above.

4
5
6

If NDOT does not prevail on the disputed issue, Stipulated Penalties shall be assessed and paid
as provided in Section VIII (Stipulated Penalties).

7
8
9

XI.
44.

INFORMATION COLLECTION AND RETENTION

The United States and NDEP,and their representatives, contractors, and consultants,

shall have the right of entry into any facility covered by this Consent Decree, at all reasonable

10
11

times, upon presentation of credentials, to:

12

a.

monitor the progress of activities required under this Consent Decree;

13

b.

verify any data or information submitted to the United States or NDEP in

14

accordance with the terms of this Consent Decree;

15
c.

obtain samples and, upon request, splits of any samples taken by NDOT or its

16 I
17

representatives, Contractors, or consultants;

18

d.

obtain documentary evidence, including photographs and similar data; and

19

e.

assess NDOT's compliance with this Consent Decree.

20 ~'

45.

Upon request, NDOT shall provide EPA or NDEP,or their authorized representatives,

21
22 '~

splits of any samples taken by NDOT. Upon request, EPA or NDEP shall provide NDOT splits

23

of any samples taken by EPA or NDEP.

24

46.

25

shall instruct its Contractors and agents to preserve, all non-identical copies of all documents,

26

Until five(5) years after the termination of this Consent Decree, NDOT shall retain, and

records, or other information (including documents, records, or other information in electronic

27
28

form)in its or its Contractors' or agents' possession or control, or that come into its or its
31

1

Contractors' or agents' possession or control, and that relates in any manner to NDOT's perfor-

2

mance of its obligations under this Consent Decree. This information-retention requirement

3

shall apply regardless of any contrary institutional policies or procedures. At any time during

4
5
6

this information-retention period, the United States may request copies of any documents,
records, or other information required to be maintained under this Paragraph.

7 Im
8

At the conclusion ofthe information-retention period provided in the preceding

Paragraph, NDOT shall notify the United States and NDEP at least ninety(90)days prior to the

9
destruction of any documents, records, or other information subject to the requirements ofthe
10
11 'I

preceding Paragraph and, upon request by the United States or NDEP,NDOT shall deliver any

12

such documents, records, or other information to EPA or NDEP, NDOT may assert that certain

13

documents, records, or other information is privileged under the attorney-client privilege or any

14

other privilege recognized by federal law. If NDOT asserts such a privilege, it shall provide the

15
following:(1)the title of the document,record, or information;(2)the date ofthe document,
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17

record, or information;(3)the name and title of each author ofthe document, record, or

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information;(4)the name and title of each addressee and recipient;(5)a description ofthe

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subject ofthe document, record, or information; and(6)the privilege asserted by NDOT.

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However, no documents, records, or other information created or generated pursuant to the

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requirements ofthis Consent Decree shall be withheld on grounds of privilege.
48.

NDOT may also assert that information required to be provided under this Section is

24 'I protected as Confidential Business Information(CBI)under 40 C.F.R. Part 2. As to any
25

information that NDOT seeks to protect as CBI,NDOT shall follow the procedures set forth in

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40 C.F.R. Part 2.
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49.

This Consent Decree in no way limits or affects any right of entry and inspection, or any
32

1

right to obtain information, held by the United States pursuant to applicable federal or State laws

2

regulations, or permits, nor does it limit or affect any duty or obligation of NDOT to maintain

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documents, records, or other information imposed by applicable federal or State laws,

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5

regulations, or permits.
XII.

6

EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

This Consent Decree resolves the civil claims ofthe United States and NDEP for the

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50.

8

violations alleged in the Complaint filed in this action through the date oflodging.

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51.

The United States and NDEP reserve all legal and equitable remedies available to enforce

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11

the provisions ofthis Consent Decree, except as expressly stated in Paragraph 50. This Consent

12

Decree shall not be construed to limit the rights ofthe United States or NDEP to obtain penalties

13

or injunctive relief under the Act or its implementing regulations, or under other federal or State

14

laws, regulations, or permit conditions, except as expressly specified in Paragraph 50. The

15
United States and NDEP further reserve all legal and equitable remedies to address any immi
16
17

and substantial endangerment to the public health or welfare or the environment arising at, or

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posed by, NDQT's facilities, whether related to the violations addressed in this Consent Decree

19

or otherwise.

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52.

In any subsequent administrative or judicial proceeding initiated by the United States or

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22

NDEP for injunctive relief, civil penalties, other appropriate relief relating to NDOT's violations,

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NDOT shall not assert, and may not maintain, any defense or claim based upon the principles of

24

waiver, res judicata, collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or

25

other defenses based upon any contention that the claims raised by the United States or NDEP in

26
the subsequent proceeding were or should have been brought in the instant case, except with
27
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respect to claims that have been specifically resolved pursuant to Paragraph 50.
33

11 53.
2
3

This Consent Decree is not a permit, or a modification of any permit, under any federal,

State, or local laws or regulations. NDOT is responsible for achieving and maintaining complete
compliance with all applicable federal, State, and local laws, regulations, and permits; and

4
5

NDOT's compliance with this Consent Decree shall be no defense to any action commenced

6

pursuant to any such laws, regulations, or permits, except as set forth herein. The United States

7

and NDEP do not, by consent to the entry of this Consent Decree, warrant or waive in any

8

manner that NDOT's compliance with any aspect ofthis Consent Decree will result in

9
compliance with provisions ofthe Clean Water Act or its implementing regulations or with any
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11

other provisions offederal, State, or local laws, regulations, or permits. Notwithstanding the

12

United States and NDEP's review and approval of any data, reports, or plans submitted pursuant

13

to this Decree, NDOT shall remain solely responsible for its compliance vv~th this Decree.

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54.

This Consent Decree does not limit or affect the rights of NDOT or ofthe United States

15
or NDEP against any third parties, not party to this Consent Decree, nor does it limit the rights
16
17

third parties, not party to this Consent Decree, against NDOT,except as otherwise provided by

18

law.

19

55.

20

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.

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XIII.

22

MISCELLANEOUS

Headings. Headings in this Decree are provided for convenience only and shall not

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56.

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the substance of any provision.

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57.

Costs of Suit. The Parties shall bear their own costs of this. action, including attorneys'

26
fees, except that the United States and NDEP shall be entitled to collect the costs (including
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28

attorneys' fees)incurred in any action necessary to collect any portion ofthe civil penalty or any
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1

Stipulated Penalties due but not paid by NDOT.

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XIV.
58.

NOTICES

Unless otherwise specified in this Decree, whenever notification, submission, or

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5

communication is required by the terms ofthis Decree, such notification, submission, or

6

communication shall be addressed to the following at the addresses specified below (or to such

7

other addresses as may be thereafter designated by written notice to the parties):

8

As to the United States:

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By email: [e-mail]
Re: DJ # 90-5-1-1-11031
By mail: EES Case Management Unit
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-5-1-1-11031

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As to EPA:
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Chief, Water II Enforcement Office
Enforcement Division, ENF 3-2
U.S. EPA,Region 9
75 Hawthorne St.
San Francisco, CA 94105
Wampler.david(a~epa.Gov

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Connor Adams,
Enforcement Division, ENF 3-2
U.S. EPA,Region 9
75 Hawthorne St.
San Francisco, CA 94105
[e-mail]

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As to NDEP:

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Bruce Holmgren, Bureau Chief
Bureau of Water Pollution Control
Nevada Division of Environmental Protection
901 S. Stewart St, Suite 4001
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Carson City, NV 89701
Bholm~re(a~ndep.nv. o~v

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As to NDOT:

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Dave Gaskin, Deputy Director
Nevada Department of Transportation
1263 South Stewart Street
Carson City, NV 89712
d ag skin(a,dot.state.nv.gov

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59.

Notifications to or communications with NDOT,EPA,NDEP,or the United States shall

be deemed submitted:

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a.

when sent by mail, on the date they aze postmarked and sent by certified mail,

12
return receipt requested;
13
b.

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delivery service; or

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when sent by overnight delivery, on the date they are picked up by the overnight

c.

when made electronically, on the date they are sent by electronic mail with

confirmation of receipt.

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XV.

EFFECTIVE DATE

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The Effective Date of this Consent Decree shall be the date upon which this Consent

20

60.

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Decree is entered by the Court or a motion to enter the Consent Decree is granted, whichever

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occurs first, as recorded on the Court's docket.

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XVI.

RETENTION OF JURISDICTION

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61.

The Court shall retain jurisdiction over this case until termination ofthis Consent Decree,

26

for the purpose of resolving disputes arising under this Decree or entering orders modifying this

27

Decree, pursuant to Sections X(Dispute Resolution) and XVII(Modification), or effectuating or

28

enforcing compliance with the terms ofthis Decree.
36

1
2
3

XVII.
62.

MODIFICATION

The terms ofthis Consent Decree may be modified only by a subsequent written

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5

agreement signed by all the Parties. The deadlines set forth in Section IV (Compliance

6

Requirements) ofthis Consent Decree may be modified, and those and other non-material

7

modifications ofthis Decree shall be made by written agreement ofthe parties with notification

8

to the Court. Where the modification constitutes a material change to this Decree, it shall be

9
effective only upon approval by the Court.
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11

63.

Any disputes concerning modification ofthis Decree shall be resolved pursuant to

12

Section X(Dispute Resolution), provided, however, that, instead ofthe burden of proof provided

13

by Paragraph 42,the Party seeking the modification bears the burden of demonstrating that it is

14

entitled to the requested modification in accordance with Federal Rule of Civil Procedure 60(b).

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XVIII.

TERMINATION

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Request to Terminate Decree. By December 31, 2018 or when NDOT has completed the

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64.

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compliance requirements described in Paragraphs 8-17, NDOT may request the United States

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and NDEP's consent to termination ofthis Decree. In seeking such consent, NDOT shall

20

provide a written report to the United States and NDEP that demonstrates:

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22

a.

23

Decree;

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b.

NDOT has paid all civil penalties, Stipulated Penalties, and interest due under

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There are no unresolved matters subject to Dispute Resolution pursuant to Secti

X(Dispute Resolution);

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c.

No enforcement action under this Decree is pending; and

d.

NDOT has fully and successfully completed the compliance requirements set

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forth in Section IV (Compliance Requirements) and Appendix A.

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65.

Response to Request for Termination

3
a.

Following receipt by the United States and NDEP of NDOT's Request for

41
5

Termination, the Parties shall confer informally concerning the Request and any disagreement

6

that the Parties may have as to whether NDOT has satisfactorily complied with the requirements

7

for termination ofthis Consent Decree. If the United States, after consultation with NDEP,

8

agrees that the Decree may be terminated, the Parties shall submit, for the Court's approval, a

9
joint stipulation terminating the Decree.
10
b.

11

If the United States, after consultation with NDEP,does not agree that the Decree

12

may be terminated, NDOT may invoke Dispute Resolution under Section X ofthis Decree.

13

However,NDOT shall not seek Dispute Resolution of any dispute regarding termination until

14

sixty(60)days after service of its Request for Termination.

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XIX.

PUBLIC PARTICIPATION

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66.

This Consent Decree shall be lodged with the Court for a period of not less than thirty

18

(30)Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States

19

reserves the right to withdraw or withhold its consent if the comments regarding the Consent

20

Decree disclose facts or considerations indicating that the Consent Decree is inappropriate,

21
improper, or inadequate. NDOT consents to entry ofthis Consent Decree without fiurther notice
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23

and agrees not to withdraw from or oppose entry ofthis Consent Decree by the Court or to

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challenge any provision ofthe Decree, unless the United States has notified Defendant in writing

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that it no longer supports entry ofthe Decree.

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// //
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////
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XX.

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67.

SIGNATORIES

Each undersigned representative of NDOT,NDEP,and the Assistant Attorney General

for the Environment and Natural Resources Division ofthe Department of Justice certifies that

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he or she is fully authorized to enter into the terms and conditions ofthis Consent Decree and to

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execute and legally bind the Party he or she represents to this document.

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68.

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challenged on that basis. NDOT agrees to accept service of process by mail with respect to all

9

This Consent Decree may be signed in counterparts, and its validity shall not be

matters arising under or relating to this Consent Decree and to waive the formal service

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11

requirements set forth in Rules 4 and 5 ofthe Federal Rules of Civil Procedure and any

12

applicable Local Rules ofthis Court including, but not limited to, service of a summons. The

13

Parties agree that NDOT need not file an answer to the Complaint in this action unless or until

14

the Court expressly declines to enter this Consent Decree.

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XXI.

INTEGRATION

16
This Consent Decree and its Appendices constitute the final, complete, and exclusive

17

69.

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agreement and understanding among the Parties with respect to the settlement embodied in the

19

Decree and supersede all prior agreements and understandings, whether oral or written,

20

concerning the settlement embodied herein. Other than the Appendices, which are attached to

21
22

and incorporated in this Decree, and submittals that are subsequently submitted and approved

23

pursuant to this Decree, no other document, nor any representation, inducement, agreement,

24

understanding, or promise, constitutes any part of this Decree or the settlement it represents, nor ~

25

shall it be used in construing the terms ofthis Decree.

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XXII.

APPENDICES

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70.

Appendix A is attached to and incorporated into this Consent Decree.
39

XXIII.

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71.

FINAL JUDGMENT

Upon approval and entry ofthis Consent Decree by the Court, this Consent Decree shall

constitute a final judgment ofthe Court as to the United States, NDEP,and NDOT.

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SO ORDERED THIS

13th

DAY OF

September

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UNITED STATES DISTRICT JUDGE

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C~17

2016

We hereby consent to entry of the foregoing Consent Decree, subject to the Notice and
Provisions of28 C.F.R. § 50.7 and Paragraph 66 ofthis Decree:

FOR THE UNITED STATES OF AMERICA

Date:
~ssistant At~oi'~e~~eneral
United States Department of Justice
Environment and Natural Resources
Division
Washington, D.C. 20530

Date:

~ "(~
LOR

ONAS

Senior Attorney
United States Department of Justice
Environmental and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington, D.C. 20044

41

We hereby consent to entry ofthe foregoing Consent Decree, subject to the Notice and
Provisions of28 C.F.R. § 50.7 and Paragraph 66 of this Decree:

Date:

~ ~ ~ /~
MARK POLL NS

`
~,
`~ ~

j~
~. ~"-`~
r

-

Director
Water Enforcement Division
O€face of Enforcement and Com liance Assurance
U.S. Environmental Protection AgencY
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

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1

We hereby consent to entry ofthe foregoing Consent Decree, subject to the Notice and
Provisions of 28 C.F.R, § 50.7 and Paragraph 66 ofthis Decree:

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3
4
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Date: 3 ~

2-a tG

~ ~~%~~~✓~
ALEXIS STRAUSS

6

Acting Regional Administrator
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, California 94105

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(

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Date: ~~ ~~ `~t~1~1

~~~

~~
~~'`~'

Fi T Fi~l RT DTtF

Assistant Regional Counsel
U.S. Environmental Protection Agency,
Region 9
75 Hawthorne Street
San Francisco, California 94105

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1 ~ We hereby consent to entry of the foregoing Consent Decree:
2
FOR THE NEVADA DIVISION OF ENVIRONMENTAL
PROTECTION

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Date: 7 ~ ~

5~

7

DAVE EMME

8

Administrator
Nevada Division of Environmental Protection

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..

~~'e hereb}~ consent to entn• af'the foregoing Consent Decree:
[~OR TFIE NE:VAC)A DIVISION OI~ ENVIRONMENTAII
PR4TECTtON

3
-~

6
Date:
D:~v~ E~t~t~
f~dministrator
Nevada Division of Em iranmc;ntal }'rotection

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Appro~~ed as tc~ Farm:
Date:
KATIE . t1R~ISTRO\G

I~e~uty Aftorne~• General
tievada Attorney General's Of[icc

i~
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1$
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?1
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~~
~j

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~7
Z8
~-4

1
We hereby consent to entry of the foregoing Consent Decree:
2
FOR TIC NEVADA DEPARTMENT OF
TRANSPORTATION

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`~--fir~~'

6

-~~---~

Date:
7

RUDY MALFABON
D1TCCtOC

g

Nevada Department of Transportation

►~
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Approved as to Legality and Fort:

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Date:
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1
ENNIS GALLAGHER

ChiefDeputy Attorney Ge al
Nevada Attorney General's Office

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45

Appendix A
Making Continuous Real-time Water Quality Data Available to the Public

1. Purpose. This project consists of upgrades to water quality monitoring devices to provide
continuous monitoring and transmit the data to a central location to be uploaded to a
publicly available platform. Real-time data from continuous monitoring can be used to
improve the understanding of temporal variances in hydrology and water quality and can
lead to more effective resource management,including improving the design and
selection of stormwater BMPs. The purpose ofthis supplemental environmental project
(Project) is to 1)collect continuous water quality data and make it available to the public
in real-time, 2)evaluate the benefits of making this data available in real-time through an
online interface, and 3)provide and evaluate the effectiveness ofreal-time notifications
to appropriate personnel when certain monitoring data and/or equipment operational
thresholds are exceeded. NDOT will evaluate the usefulness of posting the data on a
publicly available website by measuring how often the webpage is visited as well as
through formation of a Project Evaluation Group(PEG). NDOT will evaluate how PEG
members use the data and,through the PEG,explore whether other types of data would
be useful.
2. NDOT shall develop, install, and maintain:l)hardware and software to remotely operate
and calibrate monitoring equipment and to transmit monitoring data; 2)sensors and any
hardware or other modifications to monitoring sites in order to provide continuous
monitoring of hydrologic, hydraulic and water quality data; 3)a Data Management
System(DMS)to retrieve, store and access data in order to make selected data available
to the public; and 4)apublicly-available web page to display the water quality

monitoring data. NDOT shall analyze and evaluate the continuous monitoring data and
coordinate with other MS4s and other interested parties through formation of a PEG.
NDOT shall prepare a project completion report summarizing the results ofthe Project
including an evaluation ofthe Project benefits, as set forth in Appendix A,Paragraph 5.
3. Planning. By July 1, 2016, NDOT shall provide a Plan to EPA and NDEP for review and
approval in accordance with Paragraph 18 (Deliverables), describing:
a. At least three (3)locations where NDOT proposes to implement the Project,
including a narrative justification for choosing each location. NDOT shall choose
locations where the data will be most useful such as areas with sensitive or
impaired waters and/or a large urban population. If the location changes during
project planning, NDOT will send a revised Plan describing the new sites to EPA
for review and approval;
b. A description ofthe specific data that will be collected at each monitoring
location. All sites shall, at a minimum,include sensors for continuous monitoring
o£ precipitation, flow rate andlor water level, air temperature, humidity, and
water temperature. In addition, each site will contain at least one continuous
monitoring sensor that will measure a water quality parameter(or its surrogate)
other than temperature, such as: pH, conductivity, turbidity, dissolved oxygen, or
other parameters;
c: A description of which real-time data will be posted on a publicly available
website;
d. A description of how NDOT will determine when real-time notification of NDOT
personnel will occur, describing which monitoring data and/or equipment

operational thresholds will trigger the notification;
e. A description, by job title, of which NDOT personnel will receive real-time
notifications when monitoring data and/or equipment operational thresholds are
exceeded; and
f. A description ofthe list ofthe members invited to join the PEG. At a minimum,
NDOT shall invite a representative from each of the regulated MS4s in Nevada
and NDEP. NDOT shall consider inviting other interested parties in the
watersheds ofthe Project locations to participate in the PEG.
4. Project. NDOT shall operate the Project for a minimum of twelve(12) months in
accordance with the Plan described in Appendix A,Paragraph 3. During the Project,
NDOT shall convene the PEG at least three (3)times. NDOT shall:
a. Develop and implement a Data Management System(DMS)to retrieve, store and
provide access to the continuous monitoring data. The DMS shall also be capable
of connecting to future water quality monitoring devices to provide wider
geographic coverage.
b. Develop a publicly accessible web interface to display the continuous water
quality monitoring data, as described by the Plan. The webpage shall link from
NDOT's webpage.
c. By June 1, 2017, install and maintain hardware and software at a minimum of
three(3) sites as identified in the Plan, with the following capabilities:
i. Transmittal of continuous water quality data to the DMS,as identified in
the Plan. Selected data, as described in the Plan, shall be available on the
publicly accessible website within one(1)hour of sample collection;

3

ii. Remote operation and calibration of monitoring equipment as needed; and
iii. Providing real-time notifications to designated NDOT personnel when
water quality and/or operational parameters are exceeded, as described in
the Plan.
5. Completion Report. No later than July 31, 2018, NDOT shall submit a Completion
Report to EPA and NDEP which includes:
a. a detailed description ofthe Project as implemented, including 1)the number of
visits to the publicly accessible webpage that hosts the real-time water quality
data, 2)the number of alerts, if any, provided to the appropriate personnel when
operational or water quality parameters were exceeded including what actions
resulted, if any,from the alert; and 3)an evaluation ofthe overall Project,
including feedback from the PEG;
b. an itemized list of all eligible Project costs expended;
c. certification that the SEP has been fully implemented pursuant to the provisions
of this Decree; and
d. a description ofthe environmental and public health benefits resulting from
implementation ofthe SEP (with a quantification ofthe benefits and pollutant
reductions, if feasible).

4