The URL can be used to link to this page

Home My WebLink About1990 Ordinance No. 005ClmINANCE NO. s. SERIES OF 1990 BY AUTHORITY CXXJNCIL BIU. NO. 2 INl'RCOUCED BY CXXJNCIL MEl-mER HABENICHT 9 (i) AN ClmINANCE APPROVING SE:ITLEMENr WITH THE COLORl\00 DEPAR'IMENI' OF HEALTH <ll THE AUDI Wl\l'ER TRF.A'lMEITT PLl\NI' CEASE AND DESIST ORDER. WHERE/IS, a Cease and Desist Orcer was issued July 13, 1989 by the Colorado Departrrent of Heal t.'l as a result of discharge of bacl,.-wash water fran the Allen Water Filter Treatr..ant Pla.,t; and l~IEREl'.S, the Colorado Departrent of Health has sent ootice that the State will sattle t.'le Order for the sum of $6,750; 1100, THEREFORE, BE IT ORO.= BY THE CITY COONCIL OF THE CITY OF l:N,LEl·>:XJD I COI.aW)() I THAT: Section l. The settlement by the City of Englewood to the State of Colorado, Departnent of Health, as ;,,malty for the discharge of backwash water fran Allen Water Filter Treatment ?lant on July 13, 1989 for the sum of ~6, 750 is hereby approved, a ccpy of which is attached as Exhibit A. Section 2. 'nle Director of Finance is authorized to pay said sum to the State of Colorado, DepartrrP.nt of Heal th, in full settlerrent of the July 13, 1989 discharge of bacl,..,,,.ash water. Introduced, read in full, and passed on first reading on the 8th day of January, 1990. Published as a Bill for an Ordinance on the 11th day of January, 1990. Read by title and passed on final reading on the 5th day of February, 1990. Published by title as Ordinance No . £ Series of 1990, on the 8th day of February, 1990. I, Patricia H, crew, City Clerk of the City of Englewood, Coloraoo, hereby certify that the foregoing is a true COP't of the Ordinance passed on final reading and published by title as Ordinance !lo. £_, Series of 1990, f2-1ue,-. ~ ~,,,. Patricia H. crew '-.....,) STATE OF COLORADO COLORADO DEPARTMENT OF HEALTH 4210 hn 11\h Avenue v~:;·:1l3~~~0J'1do~1•l~llO No\'ember 30 , 1989 Mr, Rick DeWitt, Attorney City of Enilewood 3400 S. Ela ti Street Endewod, 00 80110 ~ rlo~~IlVI~J~ •t . d ,,,, -C..:·,' til c.r,i i!',\'~t• .. .,:- RE : ~~Ci:, 1\I01 n1 y /.~' Proposed s ettlement '·'/ 1 ,,_,, Notice of Violation/Cease & Desist Oro fl , 1989 Allen Water Treatment Plant No Pennit Dear Mr , Delii tt : lo, lomu Ccwtl1'10f Thomu M. Vtmol\ M,0 , htcwth-1 Dhtc1or In li&ht of the infonnation obtained at our meetint on October 3, 1989, we have recalculated the penalty for the purposes of proposina a settlement in the above-referenced matter . We will aaree to chana:e t wo item!I in the assessment : 1} in the "willf'ulneaa" catc&ory, we a11ree to lower the percenta&e from 25" to 10" (of the buio penalty); 2) in the cate1ory titled "discount for cooperation" we a1ree to upSrade the cooperat!,on from "fair" to "fair/1ood" ~nich amounts to a chanse in the discount from 5" to 10%, The chan,es we are willina to make result in a new total for the 15 days of discharre of $6,750 , We are prepared to settle this matter for this amount and would a&ree to close out the action, Please contact me re1ardina this. If you concur "ith the penalty, we can proceed to draft a settlement a1reement for your sianature, We need your response by December 10, 1989, I can be reached at 331-4759 should you "ish to discuss this, Thank you for your cooperation in t.hi ■ matter, Sincerely, ~ff/.~ Sand:i• H:.rek l!n&inffrinl Technician hmita and Wo,,.,..nt Section WATER QJALI'IY CQffllOL DMSIQ,I MEMORANDUM TO: Mayor Van ~yke Members of City Council PROM: Rick DeWitt, City Attorney DAT E: Cecember S, 1989 RE: Al len Wa t er Tre a tment Plant Cease & Desist Order . A Ce ase a nd Desist Order was issued July 13, 1989, to Mayor Van Dyke and referred to the Utilitie s Department, as a result of discharge of backwash water from the Allen Water Filter Treatment Plant. The discharges were found to c o ntain 82 Mg/L of total suspended solids and .47 Mg/L of total copper in the divisions analysis. The City's analysis indicated 74 Mg/L of total suspended solids, aluminum concentration of .6 Mg/L, copper concentrate of .46 M~/L, and chlorine concentration of .l Mg/L. The discharge contained pollutants as defined by C.R.S. 25-8-103 (14). The Mike Woika acting on behalf of the City, essentially admitted every allegation in the Cease and Desist Order. A meeting was held at the Colorado Department of Health where the issue was discussed particularly with respect to penalty. The City was requesting that no penalty be imposed. The Health Department was discussing a penalty of $12,468.75. There was some discussion of a penalty of $4781.00. We have received notice that the State will settle for $6,750. In reviewing the penalty assessment work sheet, you will see the factors t :,at are consiJered. In reality there is virtually no criteria for this analysis. The optioas that are available in this matter are : 1. Con tinue to negotiate. 2 . Accept the negotiated penalty amount of $6,750. 3. Fight the penalty imposed and then appeal. ~ My recommendation is to pay the penalty at the pt·esent C t i ••~. The bases for thi s recommendation is that: 1. It is cost effective. 2. Our real defense is the amount of harm to the "River System", it has been our argument that the discharge actually improved in quality . It has also been our argument that ~verythinq that could have been done was do ne. The fact is that tr.ere was a violation of the statute. With the payment of the sum of $6,750.00, it is still nominal when dealing with a multimillion dollar operation. I f we cooperate on this one, we will continue to obtain cocperation from the Health Department on other violations as tt"y may occur. The alternative of l i tigating the question does not seem appropriat e at the present time. There are no cases on this subject and although there is an opportunity to make new law, I cannot recommend this at the expense of Englewood. The assessment is approxima t ely l/2 the original assessment the State was requesting. Litigation will certainly cost much more than $6,750.00 i n terms of staff time and dedication. The problem will be th ;,t in the future we will also be considered 11 uncooper1:1.t · ve. 11 It s hould also be pointed out that there was a violation of the terms of the statute, though these are not significant violations , statutes are written in such a way that there is virtually no chance of avoiding liability. The real question is not so much whether we pay, or don't pay, it is how much we pay. This is usually within the ~ound discretion of the agency and so long as it is not unconscionable the courts will generally agree with the agency imposed penalty. The issue of negotiation is a touchy one. We have previously tried for a settlement requiring no payment; then we discussed the most favorable circumstances of $4,781.00. From the analysis we were able to get the State to move on the willfulness issue and from fair to fair/good in coope:.:ation. What they are essentially saying is that Englewood is negligent but not that it was unintentional. This is probably .1 fair assessment of the situation. Englewood is not ignorant in the operation of the system, it knew full well what was happening, there were alternatives available such as pumping and possibly other technic~l ways to avoid the discharge. It was also the option of requesting a permit for the discharge, whether this would have been granted or not is uncertain,. but probably would have been granted considering the nature of th~ discharge. In any respec t o ur management appears to be too competent to say that it wn~ unintentional. -2 - STATE OF COLORADO COLORADO DEPARTMENT OF HEALTH 4l10 hu 11th Avtn ue Den ver, Colo:1do 80210 Phont ()OJ) ll0•8lll November 30, 1989 Mr, Rick DeWitt, Attorney City of Endewood 3400 S. Ela ti Street Enilewwod, CX) 80110 RE: Proposed settlement Notice of Violation/Cease & Desist Ord-.,-.:_o_::,.,-·-• 1989 Allen Water Treatment Plant No Pennit Dear Mr. Del,itt : l:oy lomtt Ccrlt1n0t Thom11 M. v,mon, M .D, hteutlvtDl,utor In liaht of the information obtained at our meetina on October 3, 1989, we have recalculated the penalty for the PJI1X)Ses of proposina a settlement in the above-referenced matter. We will a&ree to chanie two items in the assessment: 1) in the "willfulnes■" ·cate&ory, we aeree to lower the percentaee from 25" to 101' ( of the maic penalty); 2) in the cateeory titled "discount for 000peraticn" we a,ree to UJ)llrade the cooperation from "fair" to "fair/eood" which amounts to a chanae in the discount fr0111 5" to 101', The ch&lliles we are willina to make result in a new total for the 15 dayw of dischar,ie of $6,750. We are prepared to settle this matter for thia amount and would &ilree to close out the action. Please contact me re&ardin& this . If you concur with the penalty, we can ;,roceed to draft a settlement &ilreement for your si11nature. We need your response by December 10, 1989. I can be reached at 331-4759 ahould you 1<iah to diacuss thi ■• Thank you for your cooperation in this matter, Sincerely, ~ fnA-kle__ Sandy Marek l!nlineerl">I Technician F9nli ta and Enfo~t Section WATl!R QJAI.I'IY CXJfflD. DIVISIQI ... ! . CCLCRACC DEPARTMENT OF HEAL TH '1ichJtrd O. Lamm Gov111,not Thom11 M. Vtmon, M.0 . E•1cullv1 Olrtctor PENALTY ASSESSHENT IIORK SHEET F.nt1ty : f"'Jfewoo,:Q, -A If t..,, ;::.;I~,-Pia. ,., +- Perait No.: No,,(., County P,-r GI. f Prepnrer:Af::r?:t<: I. BASIC PE/IALTY: Severity facto r: severe 111i0derate Dulc penalty per day of viohtion:. ___ c:¥__,2.:.,S::..,,D:..D><--_______ _ ---------------------------- A, POTENTIAL DAHACE: extraordinafy hi&h moder at• @1070 a. IIILJ.ruL.~ESS: ~® ~k~,e{.°nuo ~i. neallgenco . ~ \. nJntcintio .... i c. VIOLATION HISTOlll : ., .., previou1 incident ■ ■•me lite ~ ,m<o .. <MHoo<, o< different •it• , , .-C:::prlor ~. Y7~:.. D, (01scoui;r FOil COOPEllATION: _.-,c:::-. @s-% ---------C('b poo'r...O .. f?,1 , 1-~ ~,-is· -c