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United States v. Missouri Highways and Transportation Commission

United States District Court, W.D. Missouri, Central Division

July 20, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant.

ORDER

NANETTE K. LAUGHREY, District Judge.

The United States of America, on behalf of the Environmental Protection Agency (EPA), filed this lawsuit against the Missouri Highways and Transportation Commission (MHTC) alleging violations of the conditions of a National Pollution Discharge Elimination System (NPDES) permit issued to it by the State of Missouri pursuant to Section 402 of Clean Water Act, which authorized MHTC to discharge pollutants at two highway construction sites in Missouri. The United States and MHTC reached an agreement and drafted a consent decree. The original consent decree was lodged on April 8, 2015, and the United States published notice of the original consent decree in the Federal Register on April 14, 2015. See 80 Fed. Reg. 20014. One public comment was received, and in response to the Comment, the Parties modified their agreement to clarify one definition and to correct a typographical error. MHTC consents to the entry of the modified Consent Decree, and the United States requests that the Court enter the modified Consent Decree. For the reasons set forth below, the modified Consent Decree is approved and adopted by the Court, and the United States' Motion to Enter Consent Decree, [Doc. 7], is granted.

I. Background

A. NPDES Permit Violations[1]

MHTC engages in highway construction and improvement projects throughout the State of Missouri. Discharges of pollutants in the course of these projects require an NPDES permit issued by the EPA or an authorized state pursuant to Section 402 of the Clean Water Act. See 33 U.S.C. § 1342(p). MHTC applied for and received an NPDES permit for its road construction projects throughout the state. See [Doc. 8-3]. The NPDES permit imposes numerous requirements on MHTC's construction activities designed to reduce stormwater runoff into area waters. In particular, the NPDES permit requires MHTC to develop and implement a stormwater pollution prevention plan which sets forth a plan to control and reduce pollutants in stormwater discharges from construction activities. A central requirement of the pollution prevention plan is the selection of best management practices which are measures that prevent or minimize the discharges of pollutants. They include measures to prevent erosion and measures to capture sediment before it leaves the site.

In 2010 and 2011, the EPA inspected two of MHTC's large highway improvement projects. Following these inspections, MHTC provided the EPA with additional information about its construction activities at these projects, and the EPA re-inspected the projects. The EPA's inspections and review of documents revealed pervasive and numerous violations of the NPDES permit and project pollution prevention plans at these projects, including MHTC's failure to: (1) develop, implement and update the pollution prevention plan; (2) size and construct sedimentation basins; (3) stabilize graded areas; (4) install outlet controls on drainage channels; (5) install appropriate best management practices to prevent sediment migration; (6) prevent sediment migration onto roadways; (7) install energy dissipaters on pipe slope drains; (8) install inlet protection; (9) construct erosion control on stream crossings; (10) clear obstructions in rivers, streams and wetlands; (11) maintain and repair best management practices; (12) conduct Site Inspections; (13) keep water free of substances and turbidity; and (14) not store chemicals adjacent to stream banks.

B. Terms of the Consent Decree[2]

Under the Parties' modified Consent Decree, MHTC will pay a civil penalty of $750, 000 for the NPDES permit violations discussed above and will undertake extensive injunctive measures, some of which exceed the stormwater inspection requirements in MHTC's NPDES permit. Those injunctive measures include adherence to a specified stormwater compliance management structure and training regime, designation of a Stormwater Compliance and Environmental Specialist who will have overall responsibility for MHTC's compliance with stormwater and Consent Decree requirements, appointment of Resident Engineers who will be responsible for compliance with stormwater requirements at specific sites, designation of Environmental Construction Inspectors who will conduct the inspections required by the NPDES permit, creation and implementation of a training program, development of project-specific pollution prevention plans, physical inspection of construction sites, establishment of and compliance with a detailed stormwater inspection protocol, completion of various reports, and the creation and implementation of a Stormwater Compliance Database. MHTC must also require that each of its prime contractors appoint a Water Pollution Control Manager to be responsible for contractor stormwater compliance at each project.

C. Public Comment and the Parties' Responsive Modifications

After lodging the original consent decree, the Parties received one public comment from the Association of Missouri Cleanwater Agencies. See [Doc. 8-2]. The Comment outlined seven issues with the original consent decree: (1) the consent decree as written improperly applies to Municipal Separate Storm Sewer System discharges and permits in addition to NPDES construction permits; (2) the consent decree improperly mandates blanket compliance with Missouri Water Quality Standards; (3) the civil penalty to be paid is excessive; (4) the provision prohibiting MHTC from seeking reimbursement of the penalty from contractors is contrary to the public interest; (5) the consent decree improperly requires MHTC to comply with manufacturer recommendations and guidance documents; (6) the scope of the remedy impermissibly exceeds the scope of the alleged violations and imposes undue costs on MHTC; and (7) the web address for stormwater publications contains a typographical error. In response to this Comment, the Parties modified the original consent decree and submitted a modified Consent Decree for the Court's review.

II. Discussion

A district court is required to review a proposed consent decree for fairness, reasonableness, and consistency with the governing statute. U.S. v. Union Elec. Co., 132 F.3d 422, 430 (8th Cir. 1997). The balancing of competing interests affected by a proposed consent decree must be left, in the first instance, to the discretion of the Attorney General. United States v. Bechtel Corp., 648 F.3d 660, 666 (9th Cir. 1981). "The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is within the reaches of the public interest." Id.

Upon review of the modified Consent Decree attached to this Order, the Court finds that it is fair, reasonable, and consistent with the Clean Water Act's goal of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters while also recognizing the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution. See 33 U.S.C. § 1251. The modified Consent Decree is the result of arm's length negotiations, is approved by both Parties, will enhance MHTC's compliance with the Clean Water Act, specifically targets previous weaknesses in MHTC's compliance, and appropriately reflects the multiple and repeated violations documented at MHTC worksites.

The Court also concludes that the modifications implemented by the Parties in response to the Comment by the Association of Missouri Cleanwater Agencies are appropriate and that no further modifications based on that Comment are necessary for the reasons stated in the United States' Suggestions in Support of its Motion to Enter Consent Decree. [Doc. 8, pp. 20-29]. In particular, the modified Consent Decree was appropriately amended to clarify that the requirements within it do not apply to Municipal Storm Sewer System permits and to correct the typographical error in the website address on page 2 of Appendix B (Issues 1 and 7). The commenter's interpretation of Paragraph 28(c) of the Consent Decree to impose on MHTC a "blanket requirement" to comply with water quality standards (Issue 2) is incorrect because the Consent Decree only requires MHTC to comply with "the Missouri Water Quality Standards and with effluent limitations in the NPDES... [p]ermit." [Doc. 8-1, p. 25]. In other words, MHTC's required compliance is limited to the requirements within the NPDES permit. The commenter's concerns regarding the amount of the statutory penalty and the extent of the injunctive relief agreed to by the EPA and MHTC (Issues 3 and 6) do not require withdrawal of the modified Consent Decree. MHTC is in the best position to determine its ability to pay the penalty and to implement changes to its stormwater program. Further, the civil penalty agreed upon by the Parties is far less than the statutory maximum penalty for MHTC's numerous and repeated violations, which was in the tens of millions of dollars. The commenter also takes issue with Paragraph 10 of the proposed Consent Decree because it "contains an unusual clause prohibiting MHTC from seeking any reimbursement, indemnification, or insurance coverage for the civil penalty from any contractor, third party, or insurance policy" (Issue 4). [Doc. 8-2, p. 8]. The commenter suggests the provision is contrary to public policy and cites to Missouri Revised Statute § 434.100(1) and § 107.170(2). Section 434.100(1) states that "in any contract or agreement for public or private construction work, a party's covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence or wrongdoing is void as against public policy and wholly unenforceable." Section 434.100(1) applies to the formation of construction contracts, not settlement agreements and only prevents indemnification "for public or private construction work." Paragraph 10 of the proposed Consent Decree only prevents MHTC from seeking payment or reimbursements for this specific civil penalty for past violations and does not require MHTC to indemnify against future violations or future construction contracts. See [Doc. 8-1, pp. 14-15]. Likewise, Paragraph 10 of the proposed Consent Decree is not inconsistent with § 107.170(2), which requires a contractor performing public work to furnish a bond with sufficient sureties. Finally, the commenter suggests that the proposed Consent Decree requires compliance with non-binding manufacturer recommendations and guidance documents and argues that such a requirement is not appropriate if it is intended to convert unpromulgated non-binding materials into mandatory "Stormwater Requirements" (Issue 5). Paragraph 28(a) of the proposed Consent Decree requires MHTC to design, implement, manage, and maintain best management practices "in accordance with any relevant manufacturer specifications and good engineering practices, including but not limited to the manuals listed in Appendix B and any other applicable standards...." [Doc. 8-1, p. 25]. Nothing in Paragraph 28(a) converts manufacturer recommendations into mandatory requirements. The NPDES permit granted to MHTC also permits MHTC to select appropriate best management practices and clarifies that MHTC is not limited to the listed guideline manuals when selecting appropriate best management practices.

The modified Consent Decree is fair, reasonable, and consistent with the goals of the Clean Water Act. The Comment from the Association of Missouri Cleanwater Agencies does not require reconsideration of the modified Consent Decree or withdrawal of the settlement between the United States and MHTC. Therefore, the Court enters and adopts the modified Consent Decree and the United States' Motion to Enter Consent Decree, [Doc. 7], is granted. A signed Consent Decree will be filed contemporaneously with this Order.

III. Conclusion

For the reasons set forth above, the United States' Motion to Enter Consent Decree, [Doc. 7], is granted.

EXHIBIT 1

CONSENT DECREE

Table of Contents

I. JURISDICTION AND VENUE 1 II. APPLICABILITY 2 III. DEFINITIONS 2 IV. CIVIL PENALTY 6 V. COMPLIANCE REQUIREMENTS 7 VI. REPORTING REQUIREMENTS 24 VII. STIPULATED PENALTIES 25 VIII. FORCE MAJEURE 29 IX. DISPUTE RESOLUTION 31 X. INFORMATION COLLECTION AND RETENTION 34 XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 36 XII. COSTS 37 XIII. NOTICES 37 XIV. EFFECTIVE DATE 39 XV. RETENTION OF JURISDICTION 39 XVI. MODIFICATION 39 XVII. TERMINATION 39 XVIII. PUBLIC PARTICIPATION 40 XIX. SIGNATORIES/SERVICE 41 XX. INTEGRATION 41 XXI. FINAL JUDGMENT 42 XXII. APPENDICES 42

Whereas, Plaintiff United States of America, on behalf of the United States Environmental Protection Agency ("EPA") has filed a complaint in this action concurrently with this Consent Decree, asserting claims under Sections 301 and 402 of the Clean Water Act ("Act"), 33 U.S.C. §§ 1311 and 1342, against Defendant Missouri Highway and Transportation Commission violated, arising from violations of its NPDES Stormwater Permit at the Highway 54 and Highway 67 road construction projects in 2010 and 2011.

Whereas, Defendant does not admit any liability to the United States arising out of the transactions or occurrences alleged in the Complaint.

Whereas, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

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

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action, pursuant to Section 309 of the Act, 33 U.S.C. § 1319 and 28 U.S.C. §§ 1331, 1345, and 1355, and over the Parties. Venue lies in this District pursuant to 33 U.S.C. § 1319, and 28 U.S.C. §§ 1391 and 1395(a), because the violations alleged in the Complaint are alleged to have occurred in, and Defendant is doing business as a state agency in, this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court's jurisdiction over this Decree and any such action and over Defendant, and consents to venue in this judicial district.

Table of Contents

I. JURISDICTION AND VENUE 1 II. APPLICABILITY 2 III. DEFINITIONS 2 IV. CIVIL PENALTY 6 V. COMPLIANCE REQUIREMENTS 7 VI. REPORTING REQUIREMENTS 24 VII. STIPULATED PENALTIES 25 VIII. FORCE MAJEURE 29 IX. DISPUTE RESOLUTION 31 X. INFORMATION COLLECTION AND RETENTION 34 XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 36 XII. COSTS 37 XIII. NOTICES 37 XIV. EFFECTIVE DATE 39 XV. RETENTION OF JURISDICTION 39 XVI. MODIFICATION 39 XVII. TERMINATION 39 XVIII. PUBLIC PARTICIPATION 40 XIX. SIGNATORIES/SERVICE 41 XX. INTEGRATION 41 XXI. FINAL JUDGMENT 42 XXII. APPENDICES 42

Whereas, Plaintiff United States of America, on behalf of the United States Environmental Protection Agency ("EPA") has filed a complaint in this action concurrently with this Consent Decree, asserting claims under Sections 301 and 402 of the Clean Water Act ("Act"), 33 U.S.C. §§ 1311 and 1342, against Defendant Missouri Highway and Transportation Commission violated, arising from violations of its NPDES Stormwater Permit at the Highway 54 and Highway 67 road construction projects in 2010 and 2011.

Whereas, Defendant does not admit any liability to the United States arising out of the transactions or occurrences alleged in the Complaint.

Whereas, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

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

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action, pursuant to Section 309 of the Act, 33 U.S.C. § 1319 and 28 U.S.C. §§ 1331, 1345, and 1355, and over the Parties. Venue lies in this District pursuant to 33 U.S.C. § 1319, and 28 U.S.C. §§ 1391 and 1395(a), because the violations alleged in the Complaint are alleged to have occurred in, and Defendant is doing business as a state agency in, this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court's jurisdiction over this Decree and any such action and over Defendant, and consents to venue in this judicial district.

EXHIBIT 1

Table of Contents

I. JURISDICTION AND VENUE 1 II. APPLICABILITY 2 III. DEFINITIONS 2 IV. CIVIL PENALTY 6 V. COMPLIANCE REQUIREMENTS 7 VI. REPORTING REQUIREMENTS 24 VII. STIPULATED PENALTIES 25 VIII. FORCE MAJEURE 29 IX. DISPUTE RESOLUTION 31 X. INFORMATION COLLECTION AND RETENTION 34 XI. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 36 XII. COSTS 37 XIII. NOTICES 37 XIV. EFFECTIVE DATE 39 XV. RETENTION OF JURISDICTION 39 XVI. MODIFICATION 39 XVII. TERMINATION 39 XVIII. PUBLIC PARTICIPATION 40 XIX. SIGNATORIES/SERVICE 41 XX. INTEGRATION 41 XXI. FINAL JUDGMENT 42 XXII. APPENDICES 42

Whereas, Plaintiff United States of America, on behalf of the United States Environmental Protection Agency ("EPA") has filed a complaint in this action concurrently with this Consent Decree, asserting claims under Sections 301 and 402 of the Clean Water Act ("Act"), 33 U.S.C. §§ 1311 and 1342, against Defendant Missouri Highway and Transportation Commission violated, arising from violations of its NPDES Stormwater Permit at the Highway 54 and Highway 67 road construction projects in 2010 and 2011.

Whereas, Defendant does not admit any liability to the United States arising out of the transactions or occurrences alleged in the Complaint.

Whereas, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

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

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action, pursuant to Section 309 of the Act, 33 U.S.C. § 1319 and 28 U.S.C. §§ 1331, 1345, and 1355, and over the Parties. Venue lies in this District pursuant to 33 U.S.C. § 1319, and 28 U.S.C. §§ 1391 and 1395(a), because the violations alleged in the Complaint are alleged to have occurred in, and Defendant is doing business as a state agency in, this judicial district. For purposes of this Decree, or any action to enforce this Decree, Defendant consents to the Court's jurisdiction over this Decree and any such action and over Defendant, and consents to venue in this judicial district.

2. For purposes of this Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to Section 309 of the Act, 33 U.S.C. § 1319.

II. APPLICABILITY

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

4. Defendant shall provide an electronic copy of this Consent Decree to all employees and agents whose duties might reasonably include compliance with any provision of this Decree, as well as to any contractor retained to perform work required under this Consent Decree. Defendant shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree.

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

6. The requirements of this Consent Decree apply to all Projects. To the extent that a Project includes locations outside of the State of Missouri, this Consent Decree does not apply to such locations.

III. DEFINITIONS

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

a. "BMPs" shall mean Best Management Practices used to control pollutants in stormwater runoff, as described in an Applicable NPDES SW Permit, SWPPP or any other applicable law or regulation.

b. "Complaint" shall mean the complaint filed by the United States in this action.

c. "Clean Water Act" or "the Act" shall mean 33 U.S.C. §§ 1251-1387.

d. "Consent Decree" or "Decree" shall mean this Decree and all appendices attached hereto listed in Section XXII.

e. "Contractor" shall mean anyone working on a Project that is not directly employed by Defendant including the Prime Contractor and subcontractors of the Prime Contractors or other Contractors.

f. "Construction Activity" or "Construction Activities" shall mean the disturbance of soils associated with clearing, grading, excavation activities or other construction related activities.

g. "Date of Lodging" shall mean the date on which this Consent Decree is lodged with the Court for public comment.

h. "Day" shall mean a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day.

i. "Defendant" or "MHTC" shall mean the Missouri Highway Transportation Commission including its employees and agents and the Missouri Department of Transportation ("MoDOT"), a state agency that operates under the direction of the MHTC.

j. "EPA" shall mean the United States Environmental Protection Agency and any successor departments or agencies.

k. "Effective Date" shall have the definition provided in Section XIV.

l. "Final Stabilization" shall mean that perennial vegetation, pavement, buildings, or structures using permanent materials cover all areas of the Project that have been disturbed. With respect to areas that have been vegetated, vegetation cover shall be at least 70% plant density over 100% of the site.

m. "Interest" shall mean the rate specified in 28 U.S.C. § 1961.

n. "NPDES SW Permit" or "Applicable NPDES SW Permit" shall mean any Missouri State Operating Permit authorizing construction stormwater discharges from construction or land disturbance activities issued to Defendant under the Missouri Clean Water Law and/or the National Pollutant Discharge Elimination System of the federal Clean Water Act; and is not intended to include permits that authorize discharges from Municipal Separate Storm Sewer Systems (MS4s) or industrial activities other than construction or land disturbance activities.

o. "Oversight Inspector" shall mean the Defendant employee or Third-Party Consultant who conducts Oversight Inspections pursuant to Paragraph 31 of this Decree.

p. "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral.

q. "Parties" shall mean the United States and Defendant,

r. "Prime Contractor" shall mean the contractor that is awarded the contract and receives payment from Defendant for work at a Project.

s. "Project" shall mean any location in the State of Missouri where Defendant engages in land disturbance activities of greater than one (1) acre.

t. "Project-specific SWPPP" shall mean a Stormwater Pollution Prevention Plan (SWPPP) that is specific to the land disturbance activities at the Project and specifies Project-specific practices including appropriate structural and non-structural BMPs that will be implemented to best minimize the soil exposure, soil erosion and the amount of pollutants in stormwater runoff at the Project.

u. "Section" shall mean a portion of this Decree identified by a roman numeral.

v. "State" shall mean the State of Missouri.

w. "Statewide SWPPP" shall mean the Defendant's Stormwater Pollution Prevention Plan that applies to all Defendant's Projects under an NPDES SW Permit.

x. "Stormwater Deficiency" shall mean any condition at a Project that (a) constitutes non-compliance with Stormwater Requirements, (b) threatens potential noncompliance with Stormwater Requirements, or (c) requires corrective action to maintain compliance with Stormwater Requirements.

y. "Stormwater Requirements" shall mean all requirements (in their current form or as may be modified in the future) set forth in: (i) Applicable NPDES SW Permits; (ii) a SWPPP, (iii) any federal law or state law; or (iv) this Consent Decree that relate to stopping, preventing or minimizing pollutants in stormwater runoff from Construction Activity.

z. "SWPPP" shall mean the Stormwater Pollution Prevention Plan required by the NPDES SW Permit for a Project, including the Statewide SWPPP and Project-specific SWPPP.

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

IV. CIVIL PENALTY

8. Within sixty (60) Days after the Effective Date of this Consent Decree, Defendant shall pay the sum of $750, 000 as a civil penalty, together with Interest accruing from October 14, 2014.

9. Defendant shall pay the civil penalty due by FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be provided to Defendant, following the Effective Date of this Consent Decree, by the Financial Litigation Unit of the U.S. Attorney's Office for the Western District of Missouri, 400 East 9th Street, Kansas City, MO 64106. At the time of payment, Defendant shall send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter, which shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States v. Missouri Department of Transportation, and shall reference the civil action number and DOJ case number XX-X-X-X-XXXXX, to the United States in accordance with Section XIII of this Decree (Notices); by email to acctsreceivable.CINWD@epa.gov; and by mail to:

10. Payments to be Made Solely by Defendant. Defendant shall pay the civil penalty called for in the prior Paragraph, out of its own funds or state appropriations and shall not seek payments, reimbursement, indemnification or insurance coverage for this civil penalty from any Contractor, third party or agency of the United States including, but not limited to, the Federal Highway Administration ("FHWA"). Defendant shall not seek any litigation-related costs or its attorney fees (both private and internal), in this action or in anticipation of this action from any agency of the United States including, but not limited to, the FHWA. If any such costs or fees have previously been paid by reimbursement or otherwise from the FHWA to Defendant, these costs or fees shall be refunded by Defendant to FHWA.

11. Late Payment of Civil Penalty. If Defendant fails to pay the civil penalty required to be paid under Paragraph 8 of this Decree when due, Defendant shall pay a stipulated penalty of $1, 000.00 per Day for each Day that the payment is late.

V. COMPLIANCE REQUIREMENTS

12. Defendant shall complete the requirements of Paragraphs 13 through 34 pursuant to this Consent Decree.

13. Designation or Stormwater Compliance and Environmental Specialist. Defendant shall designate one individual as its Stormwater Compliance and Environmental Specialist not later than thirty (30) days after the Effective Date of this Decree. The Stormwater Compliance and Environmental Specialist shall have overall responsibility for Defendant's compliance with Stormwater Requirements and this Consent Decree and shall:

a. Be an employee of Defendant;

b. Have training and knowledge regarding Stormwater Requirements through CPESC certification or certification through a course that meets or exceeds the requirements set out in Appendix A and field experience with NPDES Permits and SWPPPs;

c. Oversee the development and maintenance of the Stormwater Training Program and annual reports;

d. Oversee Defendant's employees and Contractors at all Projects to ensure compliance with this Consent Decree and applicable Stormwater Requirements such as the NPDES SW Permits, and SWPPPs;

e. Have the authority and responsibility to issue stop work orders on a Project if necessary to ensure compliance with Stormwater Requirements and this Consent Decree;

f. Have the authority and responsibility to order the taking of measures to cease, correct, prevent, or minimize the consequences of, non-compliance with Stormwater Requirements and this Consent Decree where the cost of each such measure is under $100, 000 or, if the Stormwater Compliance and Environmental Specialist has spending authority higher than $100, 000, under the amount of that spending authority. Where the measures to cease, correct, prevent, or minimize the consequences of non-compliance with Stormwater Requirements and this Consent Decree exceed $100, 000 or a higher Stormwater Compliance and Environmental Specialist's spending authority, the Stormwater Compliance and Environmental Specialist shall immediately recommend to the Defendant's officials with the necessary spending authority, that they expediently authorize such spending on a Project to cease, correct, prevent, or minimize the consequences of non-compliance with Stormwater Requirements and this Consent Decree and document this recommendation in writing;

g. Be responsible for providing all written reports required under Section VI (Reporting Requirements);

h. Supervise the Oversight Inspection process and procedures required under Paragraph 31;

i. Review at least every fourteen (14) days the Stormwater Compliance Database list of all Stormwater Deficiencies not addressed within thirty (30) days pursuant to Paragraph 32, document each such review, and undertake and document appropriate follow-up action for each identified uncorrected Stormwater Deficiency to ensure it is addressed; and

j. Serve as Defendant's point of contact for the State and EPA for matters related to Defendant's compliance with Stormwater Requirements.

14. During absences of the Stormwater Compliance and Environmental Specialist from work (e.g. vacation, illness or other approved leave), he or she may temporarily delegate these authorities and responsibilities to another person provided that this person meets the qualifications set forth in Paragraph 13 and has the authority to carry out the responsibilities set forth in Paragraph 13.

15. Designation of Stormwater Resident Engineers. For each Project, Defendant shall designate an individual as the Stormwater Resident Engineer prior to commencement of construction or within sixty (60) days of the Effective Date, whichever is later. Each Stormwater Resident Engineer shall:

a. Be an employee of Defendant;

b. Complete stormwater training pursuant to Paragraph 20;

c. Review and sign (thereby indicating agreement with) the Project-specific SWPPP (including updates thereto), be responsible for implementing and updating the Project-specific SWPPP, and maintain familiarity with the Project-specific SWPPP;

d. Be on-site as necessary until Final Stabilization to supervise compliance with Stormwater Requirements and this Consent Decree and at least once every thirty (30) days;

e. Have the authority and responsibility to issue stop work orders on a Project if necessary to ensure compliance with Stormwater Requirements and this Consent Decree;

f. Have the authority and responsibility to order the taking of, measures to cease, correct, prevent, or minimize the consequences of, non-compliance with Stormwater Requirements and this Consent Decree where the cost of each such measure is under $50, 000 or, if the Stormwater Resident Engineer has spending authority higher than $50, 000, under the amount of that spending authority. Where the measures to cease, correct, prevent, or minimize the consequences of non-compliance with Stormwater Requirements and this Consent Decree exceed $50, 000 or a higher Resident Engineer's spending authority, the Resident Engineer shall immediately recommend to the Defendant's officials with the necessary spending authority, that they expediently authorize such spending on a Project to cease, correct, prevent, or minimize the consequences of non-compliance with Stormwater Requirements and this Consent Decree and document this recommendation in writing;

g. Review and sign (thereby indicating agreement with) each inspection report for each Project within his or her supervision within four (4) days of receiving each report to ensure it conforms with report requirements in the NPDES SW Permit and this Consent Decree and ensure that all Stormwater Deficiencies are corrected in a timely manner;

h. Update the Project-specific SWPPP as necessary to reflect changes in site conditions and BMPs;

i. Review at least every seven (7) days the Stormwater Compliance Database list of all Stormwater Deficiencies not addressed in seven days pursuant to Paragraph 32, document each review, and undertake and document appropriate follow-up action for each identified Stormwater Deficiency to ensure it is addressed;

j. Attend the Stormwater Erosion Control Preconstruction Conference pursuant to Paragraph 27; and

k. Be the point of contact for the Project for Defendant's employees, the Prime Contractor, Contractors and consultants regarding Stormwater Requirements and this Consent Decree.

16. During absences of a Stormwater Resident Engineer from work (e.g. vacation, illness or other approved leave), he or she may temporarily delegate these authorities and responsibilities to another person provided that this person meets the qualifications set forth in Paragraph 15 and has the authority to carry out the responsibilities set forth in Paragraph 15.

17. Designation of Environmental Construction Inspectors. Before commencement of Construction Activities at any Project, Defendant shall designate one or more employee(s) or consultants working directly for Defendant as the Environmental Construction Inspector(s) for that Project. At ongoing Projects, Defendant shall designate one or more employee(s) or consultant(s) working directly for Defendant as an Environmental Construction Inspector for that Project within thirty (30) days of the Effective Date of this Decree. The Environmental Construction Inspector(s) shall report to the Stormwater Resident Engineer or the Stormwater Compliance and Environmental Specialist. The Environmental Construction Inspectors shall:

a. Complete the stormwater training pursuant to Paragraph 20.;

b. Attend the Stormwater Erosion Control Preconstruction Conference pursuant to Paragraph 27;

c. Be on-site at least three days per week until all areas of the Site have been permanently seeded and mulched in accordance with the Missouri Standard Specifications defined in Sections 801, 802 and 805, and further referenced in the SWPPP under Section 806.8.6.3.8.2, Permanent Seeding and Mulching, and then one day every seven (7) Days until Final Stabilization is achieved;

d. Conduct all inspections in accordance with Stormwater Requirements at the Project;

e. Create, update, and distribute inspection reports as set forth in Paragraph 29 below and enter information into the Stormwater Compliance Database as set forth in Paragraph 32 below.

f. Update the Project-specific SWPPP, or expediently recommend such updates, as are necessary to reflect changes in site conditions and/or BMPs and document this recommendation in writing.

18. During absences of an Environmental Construction Inspector from work (e.g. vacation, illness or other approved leave), he or she may temporarily delegate these authorities and responsibilities to another person provided that this person meets the qualifications set forth in Paragraph 17 and has the authority to carry out the responsibilities set forth in Paragraph 17.

19. Stormwater Training Program. Within thirty (30) days of the Effective Date, Defendant shall implement a stormwater training program that trains attendees on at least all of the issues listed in Appendix A. This training program may be created and/or run by Defendant or a third party with expertise in stormwater training.

20. Stormwater Training for Defendant Employees. During the term of this Decree, the following Defendant employees shall complete stormwater training within sixty (60) days of the Effective Date or of assuming their position if not employed by Defendant ...


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