CONSENT ORDER 89-0588
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CITY OF CLEARWATER
Interdepartment Correspondence Sheet
TO:
Cyndie Gou~eau, City Clerk
Leo W. Schrader, Assistant City Attorney ~
October 30, 1989 LJJ7
City of Clearwater East and ~a~~~
Consent Order OGC - Case NO.~~~~~~
FROM:
DATE:
RE:
Enclosed for filing is the original Consent Order No. 89-0588
relative to the East and Northeast WWTPs, which has been executed
by all parties. This Order became effective October 26, 1989.
Should there. be any questions in this regard, please call me.
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Oct 30 1988
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Enclosure
Copies:
Ron H. Rabun, City Manager
Charles A. Hunsicker, Assft City Manager, Operations
William C. Baker, Public Works Director
John Dennis, Briley, Wild & Associates
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
STATE OF FLORIDA DEPARTMENT )
OF ENVIRONMENTAL REGULATION, )
)
Complainant, )
)
vs. )
)
CITY OF CLEARWATER, BY AND )
THROUGH ITS CITY COMMISSION, )
)
Respondent. )
)
OGC Case No. 89-0588
CONSENT ORDER
This Consent Order is entered into between the State of Florida Department
of Environmental Regulation ("Department") and City of Clearwater ("Respondent")
to reach sett 1 ement of certa i n matters at issue between the Department and
Respondent.
The Department finds and Respondent admits the following:
1. The Department is the administrative agency of the State of Florida
charged with the responsibility to protect Florida's air and water resources and
to administer and enforce the Florida Air and Water Pollution Control Act,
Chapter 403, Florida Statutes, and the rules and regulations promulgated
thereunder in Florida Administrative Code Chapter 17.
2. Respondent is a municipality in the State of Florida. Respondent
owns and operates the City of Clearwater Northeast Pollution Control Facility,
a 8.0 MGD type I wastewater treatment plant discharging chlorinated effluent to
Old Tampa Bay ("Northeast plant"). The Northeast plant is located at 3290 State
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Road 580 and McMullen Booth Road, Clearwater, Florida in the area of latitude
280 I' 15", longitude 820 421 0" and Section 21, Township 28S, Range 16E
("northeast propertil). Respondent owns the northeast property on wh i ch the
Northeast plant is located. Respondent operates the Northeast plant under
Department permit DT52-120340 which expired on June 30, 1988.
3. Respondent owns and operates the City of Clearwater East Pollution
Control Facility, a 5.0 MGD type I wastewater treatment plant discharging
chlorinated effluent to Old Tampa Bay ("East plant"). The East plant is located
on State Road 60, Clearwater, Florida, in the area of latitude 270 58' 32",
longitude 820 491 40" and Section 16, Township 29S, Range 16E ("east property").
Respondent owns the east property on which the East plant is located. Respondent
operates the East plant under Department permit DT52-64441 which expired June
1, 1988 .
4. The northeast plant and the East plant have a common point of
discharge to Old Tampa Bay and therefore are subject to Section 403.086(1)(c),
Florida Statutes (1987), which states that "...facilities for sanitary sewage
disposal may not dispose of any wastes into Old Tampa Bay, ...without providing
advanced waste treatment, as defined in subsection (4)...". Subsection (6) of
the above sect i on states that, "On or after October 1, 1990, a 11 of the
facilities covered in paragraph (c) of subsection (1) shall be required to meet
the standards set forth in subsections (4) and (5)" (in order to continue to
discharge to the subject surface waters).
5. In order to achieve compliance with Section 403.086(1)(c), Florida
Statutes, the City on April 6, 1988, submitted an application (number 147700)
to upgrade the Northeast plant, and an application (number 148990) on May 5,
1988, to upgrade the East plant. On November 10, 1988, the Department issued
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a Notice of Intent to issue a construction permit to upgrade the Northeast plant
and East plant to provide AWT treatment with a discharge of reclaimed water to
Old Tampa Bay. On November 21, 1988, Brooker Creek Preservation, Inc. filed a
petition for an administrative hearing contesting the proposed permits. Before
any evidentiary hearing 'was held, the parties reached an agreement on all
disputed issues and filed for voluntary dismissal. On April 7, 1989, an Order
dismissing the proceedings was entered.
6. On April 11, 1989, the Department issued permits DC52-147700 for the
Northeast plant and DC52-148990 for the East plant. However, it is recognized
by Respondent and the Department that the October 1, 1990, deadline to achieve
compliance with Section 403.086(1)(c), Florida Statutes, will not be met due to
the delay caused by the petition contesting the permits.
7. Department personnel and Respondent have discussed the issues
outlined 1n paragraphs 4, 5 and 6.
THEREFORE, having reached a resolution pursuant to Florida Administrative
Code Rule 17-103.110, Respondent and the Department mutually agree and it is
ORDERED:
8. Respondent shall comply with the following schedule in order to
achieve compliance with Section 403.086(1)(c), Florida Statutes, for the
Northeast plant and East plant:
Northeast
plant
East plant
Start of Construction 07-19-89
07 -13-89
08-02-89
Bids Awarded 07-06-89
Facilities in Compliance
with AWT Standards
pursuant to Section 403.086 03-03-91
03-03-91
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9. As stipulated penalties, to assure compliance with the Consent Order,
Respondent agrees to pay to the Department $500.00 per day for each and every
day Respondent or its agents/contractors fail to meet any of the deadlines or
fails to comply with any requirements or conditions specified in this Order
unless such delay has been caused by circumstances beyond the control of
Respondent. Failure to meet more than one deadline or requirement shall
constitute a separate violation for each failure. Within 30 days of written
demand from the Department, Respondent shall make payment of the appropriate
amount to the Department's "Pollution Recovery Fund" by certified check,
cash i er' scheck, county warY'ant, or money order un 1 ess a pen a 1 ty payment is
disputed by Respondent as provided in paragraph 10. Payment shall be sent to
the Department of Environmental Regulation, Southwest District, 4520 Oak Fair
Boulevard, Tampa, Florida 33610-7347. The Department may make demands for
payment at any time after violations occur. Nothing in this paragraph shall
prevent either party from filing suit to specifically enforce the terms of this
Consent Order. However, if any event occurs which causes delay or the reasonable
likelihood of delay in the achievement of the deadlines or requirements of this
Consent Order, Respondent shall have the right and the burden of proving the
delay was or will be caused by circumstances beyond the reasonable control of
the Respondent or its agents/contractors and could not have been or cannot be
overcome by Respondent's or its agents/contractors due d i 1 i gence. . Upon
occurrence of the event, Respondent shall promptly notify the Department orally
and shall within 14 calendar days notify the Department in writing of the
anticipated length, if known, and cause of delay, and the time table by which
Respondent and its agents/contractors intend to implement these measures. If
the parties can agree that delay or anticipated delay has been or will be caused
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by circumstances beyond the reasonable control of Respondent or its
agents/contractors, the time for performance hereunder shall be extended for a
period equal to the delay resulting from such circumstances. Such agreement
shall be confirmed by letter from the Department accepting or if necessary
modifying the extension request. Respondent and its agents/contractors shall
adopt all reasonable measures necessary to avoid or minimize delay. Failure of
Respondent to comply with the notice requirements of this paragraph shall
constitute a waiver of Respondent's right to request an extension of the
requirements of this Consent Order.
10. If the parties cannot agree that the delay or anticipated delay has
been or wi 11 be caused by circumstances beyond the reasonab 1 e contro 1 of
Respondent or its Agents/Contractors, Respondent may file a Petition for Formal
or I nforma 1 Admi n i strat i ve Heari ng proceed i ngs, if Respondent objects to the
Department's final agency action, pursuant to Section 120.57, Florida Statutes,
and Chapters 17-103 and 28-5 Florida Administrative Code. The petition must
conform with the requirements of Florida Administrative Code Rule 28-5.021 and
must be received by the Department's Office of general Counsel, 2600 Blair Stone
Road, Tallahassee, Florida 32399-2400, within 21 days after receipt of notice
from the Department of any action Respondent wishes to challenge.
11. Respondent shall allow authorized representatives of the Department
access to the properties and plants at reasonable times for purposes of
determining compliance with this Order and the rules and regulations of the
Department.
12. The Department hereby expressly reserves the right to initiate
appropriate legal action to prevent or prohibit the future violation of
applicable statutes, or the rules promulgated thereunder.
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13. The Department, for and in consideration of the complete and timely
performance by Respondent of the obligations agreed to in this Consent Order,
hereby waives its right to seek judicial imposition of damages, or civil or
criminal penalties for alleged violations outlined in this Consent Order.
Respondent waives its right to an administrative hearing pursuant to Section
120.57, Florida Statutes, of the terms of this Consent Order. Respondent
acknowledges its right to appeal the terms of this Consent Order pursuant to
Section 120.68, Florida Statutes, but waives that right upon signing this Consent
Order.
14. Entry of this Consent Order does not relieve Respondent of the need
to comply with applicable federal, state or local laws, regulations or
ordinances, but entry of this Consent Order shall excuse noncompliance therewith
to the extent provided for in this Consent Order and so long as Respondent
complies with this Consent Order no penalty, civil or criminal, shall be imposed
upon Respondent except such pena 1 ty as is spec i fica 11 y prov i ded for by th is
Consent Order.
15. The terms and conditions set forth in the Consent Order may be
enforced in a court of competent jurisdiction pursuant to Sections 120.69 and
403.121, Florida Statutes. Failure to comply with terms of this Consent Order
shall constitute a violation of Section 403.161(1)(b), Florida Statutes.
16. Respondent shall publish the following notice in a newspaper of
general circulation in Pinellas County, Florida. The notice shall be published
one time only within fourteen (14) days after execution of the Consent Order by
the Department and notice to Respondent of such execution.
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State of Florida Department of Environmental Requlation
Notice of Proposed Aqency Action
The Department of Environmental Regulation gives notice of agency action
of entering into a Consent Order with the City of Clearwater pursuant to
Florida Administrative Rule 17-103.110. The Consent Order addresses past
discharges of wastewaters to waters of the State.
The Consent Order is available for public inspection during normal business
hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal
holidays, at the Department of Environmental Regulation, Southwest
District, 4520 Oak Fair Boulevard, Tampa, Florida 33610.
Persons whose substant i a 1 interests are affected by the above proposed
agency action have a right, pursuant to Section 120.57, Florida Statutes,
to petition for an administrative determination (hearing) on the proposed
action. The petition must conform to the requirements of chapters 17-103
and 28-5, Florida Administrative Code, and must be filed (received) with
the Department's Office of General Counsel, 2600 Blair Stone Road,
Tallahassee, Florida 32399, within twenty-one (21) days of publication
of this notice. Failure to file a petition within the twenty-one (21) days
constitutes a waiver of any right such person has to an administrative
determination (hearing) pursuant to Section 120.57, Florida Statutes.
If a petition is filed, the administrative hearing process is designed to
formulate agency action. Accordingly, the Department's final action may
be different from the proposed agency action. Persons whose substantial
interests will be affected by any decision of the Department have the right
to intervene in the proceeding. A petition for intervention must be filed
pursuant to Model Rule 28-5.207, Florida Administrative Code at least five
(5) days before the final hearing and be filed with the Hearing Officer
if one has been assigned at the Division of Administrative Hearings,
Department of Administration, 2009 Apalachee Parkway, Tallahassee, Florida
32399. If no Hearing Officer has been assigned, the petition is to be
filed with the Department's Office of General Counsel, 2600 Blair Stone
Road, Tallahassee, Florida 32301. Failure to petition to intervene
within the allowed time frame constitutes a waiver of any right such person
has to an administrative determination (hearing) under Section 120.57,
Florida Statutes.
17. This Consent Order is final agency action of the Department pursuant
to Section 120.69, Florida Statutes, and Florida Administrative Code Rule 17-
103.110(3), and it is final and effective on the date filed with the Clerk of
the Department unless a Petition for Administrative Hearing is filed as required
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by Chapter 120, Florida Statutes. Upon the timely filing of a petition, this
Consent Order will not be effective until further order of the Department.
18. This Consent Order once in effect'shall remain in effect as to each
plant described in the this Consent Order until a permit to operate that
respective plant is issued at which time Respondent shall have no other
obligation to comply with the terms of this Order except for the payment of any
unpaid stipulated penalties for past violations of the requirements of this
Order.
Date:
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CITY OF CLEARWATER, FLORIDA
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By:
i a Garvey
Mayor-Commissioner
Ron H. Rabun
City Manager
Approved as to form
and correctness:
Attest:
~
M. A. Galbraith,
City Attorney
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Cynthia E. Goudeau'~ ---=---
Cit}^' Clerk
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DONE AND ORDERED this
Florida.
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Copies:
Office of General Counsel
Department of Environmental Regulation
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
~~day of
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o L{ --- , 1989, in Tampa,
STATE OF FLORIDA DEPARTMENT
OF ENVIR~
Richard D. Garrity, Ph.rr.
Deputy Assistant Secretary
Southwest District
4520 Oak Fair Boulevard
Tampa, Florida 33610-7347
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