United States of America, et al v. City of Welch, et al
Filing
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MEMORANDUM OPINION AND ORDER granting 4 JOINT MOTION to enter proposed consent decree filed on 11/30/2011 with the court's approval on this same date; that the court retain jurisdiction pursuant to Section XXII of the proposed consent decree and any other provision contemplating the potential for future action by the court. Signed by Judge David A. Faber on 2/6/2012. (cc: counsel of record) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
THE UNITED STATES OF AMERICA, and
THE STATE OF WEST VIRGINIA
Plaintiffs,
v.
Civil Action No. 1:11-00647
CITY OF WELCH, WEST VIRGINIA,
and
WELCH SANITARY BOARD
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court is the parties’ joint motion to enter
proposed consent decree, filed on November 30, 2011.
4).
(Doc. #
For reasons more fully expressed herein, the court ADOPTS
and ENTERS the parties’ proposed consent decree.
I.
Factual and Procedural History
This case involves claims brought by the Plaintiffs
against the City of Welch, West Virginia and the Welch Sanitary
Board (collectively the “City”) for violations of the Clean
Water Act, 33 U.S.C. § 1251 et seq., in connection with Welch’s
operation of its municipal wastewater and sewer system.
1).
(Doc. #
The Plaintiffs in this case are the United States of
America, by authority of the Attorney General of the United
States, on behalf of the Administrator of the Environmental
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Protection Agency (“EPA”), and the State of West Virginia
(“State”), through the West Virginia Department of Environmental
Protection (“WVDEP”).
The Complaint was filed September 20,
2011, (Doc. # 1) and was brought pursuant to Section 309(b) and
(d) of the Clean Water Act (“CWA”), 33 U.S.C. § 1319(b) and (d),
and Section 22 of the West Virginia Water Control Act (“WPCA”),
W.Va. Code § 22-11-22.
The Plaintiffs sought injunctive relief
and assessment of penalties against the City of Welch, West
Virginia, and the Welch Sanitary Board [collectively “Welch”]
for the discharge of pollutants in violation of Section 301(a)
of CWA and Sections 6 and 8 of the WPCA.
33 U.S.C. § 1311(a),
W.Va. Code §§ 22-11-6 and 8.
The Plaintiffs assert that the Defendants have violated
these sections by failing to meet the limitations and conditions
contained in a National Pollutant and Discharge Elimination
System (“NPDES”) permit issued by the WVDEP under Section 402(a)
of the CWA.
33 U.S.C. § 1342.
The Complaint alleged three
claims which include: (1) failing to submit a Long Term Control
Plan (“LTCP”) as required by the 1994 Combined Sewer Overflow
Policy, 59 Fed. Reg. 18688 (“1994 CSO Policy”); (2) violating
its NPDES permit by failing to develop and implement Nine
Minimum Controls (“NMCs”); and (3) violating its NPDES permit by
exceeding the effluent limitations in its 2003 and 2008 National
Pollutant Discharge Elimination System (“NPDES”) permits for
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discharges from the wastewater treatment plant.
(Doc. ## 1, 5
at p. 3).
On September 21, 2011, Plaintiffs lodged with this court a
proposed consent decree, resolving the claims brought in this
lawsuit. (Doc. # 3).
In accordance with 28 C.F.R. § 50.7, W.
Va. Code § 47-10-16.2c and Section XXI of the consent decree,
notice of the proposed consent decree was published October 14,
2011 in the Federal Register, 76 Fed. Reg. 63954, and in “Welch
News,” a newspaper published in Welch, West Virginia.
The
notice invited the public to comment on the proposed settlement
within thirty days.
The Plaintiffs did not receive any public
comments on the proposed consent decree.
This Motion is unopposed: Defendants specifically
consented to the entry of the Decree “without further notice.”
See Doc. # 3 at ¶ 86. Additionally, on November 22, 2011,
counsel for Plaintiffs notified counsel for Defendants that this
Motion was to be filed as an “unopposed” motion.
The 30 day
public comment period required by Section XXI of the proposed
consent decree, 28 C.F.R. § 50.7, and W. Va. Code R. § 47-1016.2c expired on November 14, 2011, and no comments were
received.
II.
Consent Decree Standard
A consent decree is “a negotiated agreement that is
entered as a judgment of the court and thus has attributes of
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both contracts and judicial decrees.”
Local 93, Int’l Ass’n of
Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986);
United States v. ITT Contintental Baking Co., 420 U.S. 223
(1975).
Additionally, “[a] consent decree is also a continuing
order, one having prospective effect.”
Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 381-82, (1994).
Where
“the parties agree to the Court’s continuing jurisdiction to
enforce the decree . . . a party aggrieved by the other’s
noncompliance may apply for an order to show cause why the
noncompliant party should not be held in contempt.”
Id.
(internal citations omitted).
The United States Court of Appeals for the Fourth Circuit
has explained that when considering whether to enter a proposed
consent decree, the general principle to be followed is that
settlements are to be encouraged.
United States v. North
Carolina, 180 F.3d 574, 581 (4th Cir. 1999).
“The presumption
in favor of settlement is particularly strong where a consent
decree has been negotiated by the Department of Justice on
behalf of a federal administrative agency specially equipped,
trained, or oriented in the field. EPA is such an agency.”
United States v. Cannons Eng’g Corp., 720 F. Supp. 1027, 1035
(D. Mass. 1989), aff’d, 899 F.2d 79 (1st Cir. 1990)
(holding that the consent decree was fair and reasonable and
should be approved) (internal citations and quotations omitted).
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Yet, a district court should not blindly accept the terms of a
proposed settlement.
(4th Cir. 1975).
Flinn v. FMC Corp., 528 F.2d 1169, 1173
Instead, before entering a consent decree the
court must satisfy itself that the agreement is “fair, adequate,
and reasonable” and “is not illegal, a product of collusion, or
against the public interest.”
United States v. Colorado, 937
F.2d 505, 509 (10th Cir. 1991).
III. Analysis
The United States and the State submit that the proposed
consent decree is fair, adequate, and reasonable because it was
negotiated at arm’s length and in good faith, the settlement
addresses the allegations in the Complaint, and the settlement
is consistent with the enforcement goals of the Clean Water Act.1
The consent decree was vetted, examined, and agreed to by the
Plaintiffs and the Defendants after review.
The proposed consent decree requires Defendants to: (1)
implement injunctive measures through a LTCP to eliminate
combined sewer overflows (“CSOs”) by December 31, 2027 by
completely separating its combined sewer collection system at an
approximate cost of $16 - 23 million; (2) develop a plan to
address effluent violations by the wastewater treatment plant;
1
The Court notes that this case is closely connected to U.S. v.
City of Welch, Civil Action No. 77-cv-00163, and notes that the
parties have moved the court to terminate the prior orders
entered in that casebetween the parties upon the entry of the
new proposed consent decree. See Doc. # 77.
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(3) develop a plan to implement the NMCs that mitigate the CSOs’
effects; (4) pay the United States a civil penalty of $2,500;
and (5) pay the State a civil penalty of $2,500. (Doc. # 3).
The court finds that the proposed consent decree is fair,
adequate and reasonable.
The settlement is fair, based on
months of arm’s length negotiations.
The United States, the
State, counsel for Welch, and engineers and representatives from
the City government of Welch have engaged in numerous settlement
discussions prior to the filing of the Complaint.
at pp. 4-5.
See Doc. # 5,
Negotiations were based on information obtained by
the EPA and WVDEP, which was shared with Welch during the
settlement negotiations.
Welch agreed to undertake compliance
projects on an aggressive timeline to substantially reduce the
discharge of pollutants, rather than undergo expensive and timeconsuming litigation.
The United States asserts that the settlement is adequate
and reasonable because the settlement is designed to penalize
Welch “appropriately” for the violations of the CWA, and to
serve as a deterrent to future similar conduct by Welch.
# 5, at pg. 5).
(Doc.
Were the case to proceed to trial, the
Plaintiffs would need to establish Welch’s liability under
Sections 301 of the Clean Water Act, 33 U.S.C. § 1311(a), and
Section 8 of the WPCA, W. Va. Code § 22-11-8. If Welch was found
liable, the court would then consider the following factors in
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assessing a civil penalty: “the seriousness of the violation or
violations, the economic benefit (if any) resulting from the
violation, any history of such violations, any good-faith
efforts to comply with the applicable requirements, the economic
impact of the penalty to the violator, and such other matters as
justice may require.” 33 U.S.C. § 1319(d).
Here, the civil penalty and injunctive relief reflected in
the proposed consent decree are fair and reasonable in light of
the factors cited above. The proposed consent decree requires
that Welch pay civil penalties and completely separate its
combined sewer collection system at an approximate cost of $16 23 million. The civil penalties address past violations of the
CWA, while also deterring future violations. In addition, the
settlement is reasonable because it requires a comprehensive
injunctive relief program designed to substantially reduce and
eliminate CSO discharges. Welch has undertaken several measures
to help reduce discharge and to ensure compliance with the
applicable regulations.
Finally, the settlement is not illegal or contrary to the
public interest.
On the contrary, the proposed consent decree
seeks to achieve the goal of deterrence through a penalty that
removes the economic benefit of noncompliance and reflects the
gravity of the violation. The settlement comports with the goals
of the CWA, which are to eliminate the discharge of pollutants
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into navigable waters and to provide for water quality
sufficient for “the protection and propagation of fish,
shellfish, and wildlife and . . . recreation in and on the
water.” 33 U.S.C. § 1251(a) and (b).
IV.
Conclusion
Given the amount of time the two parties have conducted
settlement negotiations, the fair, adequate and just agreement
between the parties, the desirability of the proposed long-term
solution, and as no person has opposed entry of the consent
decree, the court ORDERS as follows:
1. That the proposed consent be entered with the court’s
approval on this same date; and
2. That the court retain jurisdiction pursuant to Section XXII
of the proposed consent decree and any other provision
contemplating the potential for future action by the court.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to all counsel of record.
It is SO ORDERED on this 6th day of February, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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