dep west Virginia department of environmental protection Division of Water and Waste Management 601 57?? Street SE Charleston. WV 25304 Earl Ray Tomblin. Governor Randy C. Huffman. Cabinet Secretary Phone: (304) 926-0495 Fax: TO: (304) 926-0463 CONSENT ORDER ISSUED UNDER THE WATER POLLUTION CONTROL ACT WEST VIRGINIA CODE, CHAPTER 22, ARTICLE 11 West Virginia Department of Transportation DATE: April 30, 2015 Division of Highways Greg Bailey, State Highway Engineer 1900 Kanawha Blvd. 5 Room A-164 Charleston WV 25305 ORDER NO.: 8121 INTRODUCTION This Consent Order is issued by the Director of the Division of Water and Waste Management (hereinafter ?Director?), under the authority of West Virginia Code, Chapter 22, Article 11, Section 1 et seq. to West Virginia Department of Transportation (hereinafter FINDINGS OF FACT In support of this Order, the Director hereby ?nds the following: WVDOT is conducting land disturbance activity known as Corridor Sections 01 through 05 located near Davis, Tucker COunty, West Virginia. WVDOT was issued Water Pollution Control Permit No. 16637 on November 16, 201 1. . On January 7, 2014, West Virginia Department of Environmental Protection (WVDEP) and WVDOT entered into Consent Order No. 7886. The Order was issued in response to permit violations, creations of conditions not allowable in waters of the State, and Total Recoverable Iron exceedances at the aforementioned site. The Order required WVDOT to submit a proposed plan of corrective action to WVDEP outlining action items and completion dates for how and when WVDOT would achieve compliance with all terms and conditions of its permit and pertinent laws and rules. On March 12, 2014, WVDEP personnel conducted an inspection of the facility after receiving complaints regarding muddy water leaving the site. During the inspection, a Promoting a healthy environment. Consent Order Page 2 violation of the following section of WV Legislative Rules was observed and docmnented: a. 47CSR2 Sections 3.2.b and caused conditions not allowable in waters of the State by creating visible color and sediment deposits in the receiving stream. As a result of the aforementioned violation, Notice of Violation (NOV) No. W-l4?47-06- 202 was issued to WVDOT. . On April 3, 2014, WVDEP personnel conducted an inspection of the facility after receiving a complaint on April 2, 2014 concerning water quality in Beaver Creek. The subsequent investigation revealed that a sediment basin on the project failed and released muddy water and sediment into Beaver Creek. A violation of the following section of WV Legislative Rules was observed and documented: a. 47CSR2 Section caused conditions not allowable in waters of the State by creating visible ?oating, settleable, or suspended solids in the receiving stream. As a result of the aforementioned violation, NOV No. I-14-47-13-MJA was issued to WVDOT. . On August 5, 2014, WVDEP personnel conducted an inspection of the facility. During the inspection, a violation of the following section of WV Legislative Rules was observed and documented: a. 47CSR2 Sections 3.2.a and caused conditions not allowable in waters of the State by creating visible suspended solids and sediment deposits in Beaver Creek. As a result of the aforementioned violation, NOV No. W-14-47-25-202 was issued to WVDOT. . On August 14, 2014, WVDEP personnel conducted an inspection of the facility. During the inspection, a violation of the following section of WV Legislative Rules was observed and documented: a. 47CSR2 Sections 3.2.a and caused conditions not allowable in waters of the State by creating visible suspended solids and sediment deposits in Beaver Creek. As a result of the aforementioned violation, NOV No. W-14-47-29-202 was issued to WVDOT. . On August 22, 2014, WVDEP personnel conducted a review of facility records from the time period of June 30, 2013 through July 31, 2014. During this review, the following violations of the terms and conditions of permit were observed: Consent Order Page 3 a. Section A Fifteen (15) exceedances of permit parameters were observed and documented (Table 1). These exceedances can be further de?ned as: i. Minor violations-four (4) ii. Moderate violations-seven (7) Major violations-four (4) 8. On September 4, 2014, WVDEP personnel conducted an inspection of the facility. During the inspection, a violation of the following section of WV Legislative Rules was observed and documented: a. 47CSR2 Sections 3.2.b and caused conditions not allowable in waters of the State by creating a visible color and sediment deposits in Beaver Creek. As a result of the aforementioned violation, NOV No. W-14-47-32-202 was issued to WVDOT. 9. On January 14, 2015, WVDEP personnel and representatives of WVDOT met to discuss the terms and conditions of this Order. 10. On February 8, 2015, WVDEP personnel conducted a review of facility records from the time period of June 30, 2013 through December 31, 2014. During this review, the following violations of the terms and conditions of permit were observed: a. Section A - Thirty (30) exceedances of permit parameters were observed and documented (Table 1). These exceedances can be further de?ned as: i. Minor violations-seven (7) ii. Moderate violations-nineteen (19) Major violations-four (4) ORDER FOR COMPLIANCE Now, therefore, in accordance with Chapter 22, Article 11, Section 1 et seq. of the West Virginia Code, it is hereby agreed between the parties, and ORDERED by the Director: 1. WVDOT shall immediately take all measures to initiate compliance with all terms and conditions of its permit and pertinent laws and rules. 2. Within thirty (30) days of the effective date of this Order, WVDOT shall submit for approval a proposed plan of corrective action and schedule, outlining action items and completion dates for how and when WVDOT will achieve compliance with all terms and conditions of its permit and pertinent laws and rules. The plan of corrective action shall make reference to Permit No. WV0116637 and Order No. 8121. Consent Order Page 4 The plan of corrective action shall be submitted to: WVDEP Environmental Inspector Supervisor NE Regional Environmental Enforcement Of?ce 22288 Northwestern Pike Romney, WV 26757-8005 A copy of this plan shall be submitted to: Chief Inspector Environmental Enforcement - Mail Code #031328 WVDEP 601 57?? Street SE Charleston, WV 25304 Upon approval, the plan of corrective action and schedule shall be incorporated into and become part of this Order, as if fully set forth herein. Failure to submit an approvable plan of corrective action and schedule or failure to adhere to the approved schedule is a violation of this Order. . Because of West Virginia Legislative Rules and permit violations, WVDOT shall be assessed a civil administrative penalty of seventy-four thousand one hundred ?ve dollars ($74,105) to be paid to the West Virginia Department of Environmental Protection for deposit in the Water Quality Management Fund within thirty (30) days of the effective date of this Order. Payments made pursuant to this paragraph are not tax- deductible for purposes of State or federal law. Payment shall include a reference to the Order No. and shall be mailed to: Chief Inspector Environmental Enforcement - Mail Code #031328 WV-DEP 601 57th Street SE Charleston, WV 25304 Consent Order Page 5 OTHER PROVISIONS . WVDOT hereby waives its right to appeal this Order under the provisions of Chapter 22, Article 11, Section 21 of the Code of West Virginia. Under this Order, WVDOT agrees to take all actions required by the terms and conditions of this Order and consents to and will not contest the Director?s jurisdiction regarding this Order. However, WVDOT does not admit to any factual and legal determinations made by the Director and reserves all rights and defenses available regarding liability or responsibility in any proceedings regarding WVDOT other than proceedings, administrative or civil, to enforce this Order. . The Director reserves the right to take further action if compliance with the terms and conditions of this Order does not adequately address the violations noted herein and reserves all rights and defenses which he may have pursuant to any legal authority, as well as the right to raise, as a basis for supporting such legal authority or defenses, facts other than those contained in the Findings of Fact. . If any event occurs which causes delay in the achievement of the requirements of this Order, WVDOT shall have the burden of proving that the delay was caused by circumstances beyond its reasonable control which could not have been overcome by due diligence force majeure). Force majeure shall not include delays caused or contributed to by the lack of suf?cient funding. Within three (3) working days after WVDOT becomes aware of such a delay, noti?cation shall be provided to the Director/Chief Inspector and WVDOT shall, within ten (10) working days of initial noti?cation, submit a detailed written explanation of the anticipated length and cause of the delay, the measures taken and/or to be taken to prevent or minimize the delay, and a timetable by which WVDOT intends to implement these measures. If the Director agrees that the delay has been or will be caused by circumstances beyond the reasonable control of WVDOT force majeure), the time for performance hereunder shall be extended for a period of time equal to the delay resulting from such circumstances. A force majeure amendment granted by the Director shall be considered a binding extension of this Order and of the requirements herein. The determination of the Director shall be ?nal and not subject to appeal. . Compliance with the terms and conditions of this Order shall not in any way be construed as relieving WVDOT of the obligation to comply with any applicable law, permit, other order, or any other requirement otherwise applicable. Violations of the terms and conditions of this Order may subject WVDOT to additional penalties and injunctive relief in accordance with the applicable law. . The provisions of this Order are severable and should a court or board of competent jurisdiction declare any provisions to be invalid or unenforceable, all other provisions shall remain in ?ill force and effect. . This Order is binding on WVDOT, its successors and assigns. Consent Order Page 6 7. This Order shall terminate upon noti?cation of full compliance with the ?Order for Compliance? and veri?cation of this noti?cation by WVDEP. hm?a? Greg Bailey, State Highway Engineer West Virginia Department of Transportation Public Notice begin: Public Notice end: Scott G. Mandirola, Director Division of Water and Waste Management RECEIVED MAY 06 2015 ENVIRONMENTAL ENFORCEMENT Date Date Date Date Table One: WVDOT DMR Exceedance Summary Outlet 004 DMR Exceedances - MAX. DAILY - 06130113 thro 12/31/ 14 Date Parameter Units eported max. daily max. 10113114 Iron. total recoverable mg/l 1.5 6.82 12131114 Iron. total recoverable mg/l 1.5 6.69 Outlet 007 DMR Exceedances - VIAX. DAILY - 06130113 thro 12131114 Permitted Reported max. daily max. 8131113 Iron. total recoverable mg? 1.5 7.31 12131114 Iron. total recoverable mg/l 1.5 3.73 Date Parameter Units Outlet 010 DMR Exceedances - MAX. DAILY - 06130113 through 12131114 . I Degree nl Date Parameter Units Permmw Reported "11- l-Zvccedam-c max. daily max. daily Min \lmt Maj 8131113 Iron. total recoverable mg11 15 18.5 ?33% - 11130113 Iron. total recoverable mg11 1.5 4.74 216% - 01131114 Iron. total recoverable mg11 1.5 2.18 45% - - 3131114 Iron. total recoverable tug/1 1.5 1.53 2% - - 04130114 Iron. total recoverable mg/] 1.5 1.74 16% . 5131114 Iron. total recoverable mg/l 1.5 7.49 399% .. 8131114 Iron, total recoverable mg11 1.5 2.32 55% - - 9130114 Iron. total recoverable mg/l 1.5 1.8 20% 10131114 Iron. total recoverable mg11 1.5 4.6 207% 12131114 Iron. total ree0verab e mg/l 1.5 3.66 144% - Outlet 011 DMR Exceedances - DAILY 06/30/13 through 12131114 Degree 01 null-cumpllallet? Date Parameter Units Permitted RePo?ed '11. max. daily max. daily .\lin \Iml Haj 8131113 Iron, total recoverable I I 1.5 1.83 Outlet 012 DMR Exceedances - MAX. DAILY - 06/30/13 thro 12131114 Permitted Reported max. max. daily 3.09 5.29 3.18 5.91 4.06 Date Parameter Units 1131114 Iron. total recoverable 04130114 Iron. total recoverable mg/l 5131114 Iron. total recoverable rag/1 10131114 Iron. total recoverable 12131114 Iron, total recoverable Ln Ln Ln Ln Ln Outlet 014 DMR Exceedances - MAX. DAILY -06130113 th 12131114 Date Parameter Units Permmed Rewrth max. daily max. 5 12.6 06130114 Iron, total recoverable mg11 4.38 1. 1. 08131114 Iron, total recoverable mg/l 1. 6.59 1. 1. 1. 05131114 Iron. total recoverable 9130114 Iron. total recoverable 4.14 10131114 Iron, total recoverable tug/1 4.98 12131114 Iron. total recoverable 4.88 Table One: WVDOT DMR Exceedance Summary Outlet 015 DMR Exceedances - MAX. DAILY ~06i30113 thro 12/311'14 Permitted Reported max. max. daily 04/30fl4 Iron. total recoverable mg/I 1.5 "5.4 Date Parameter Units 0680/14 lron.totalrecaverablc mg/I 1.5 1-1.2 881/14 lron.total recoverable nlgx?l 1.5 l.59 10i31f14 Iron.totalrccovcrable mg/I L5 9.45 chrt?v ul' Totals ?in \lml \Iaj Photo Attachment WVDOT March 12, 2014 1 Beaver Creek entering Blackwater River on March 12, 2014 2 Muddy water leaving Corridor on March 12, 2014 Photo Attachment WVDOT March 12, 2014 424* . 4 Muddy water from above mentioned pond entering Beaver Creek on March 12, 2014 Photo Attachment WVDOT March 12, 2014 6 Muddy water discharging from pond 11 on March 12, 2014 Photo Attachment WVDOT April 3, 2014 v. D- Photo Attachment WVDOT April3,2014 Photo Attachment WVDOT April 3, 2014 Photo Attachment WVDOT August 5 and 1, 2014 "taunt. if "it: . . .a-L 525a: -. Figure 2: August 5, 2014 - Mud in ditch in Section 5 Photo Attachment WVDOT August 5 and 14? 2014 . at? I. 7m? ?if I4 Figure 4: August 5, 2014 Muddy water entering Beaver Creek through the ground Photo Attachment WVDOT Augu?t 5 and 14, 2014 a. Hr." ?r ?13? I . h. Figure 6: August 14, 2014 - Mud entering Beaver Creek in Section 5 Photo Attachment WVDOT Figure 8: August 14, 2014 - Pond 13 (Section 5) discharging sediment laden water Photo Attachment WVDOT September 4, 2014 2 Beaver Creek in Section 4 near Section 5 05/06/15 Responsible Party: Base Penaltv Calculation WVDOT (pursuant to -6.1) Treatment System Design Maximum Flow: Receiving Stream: MGD Page 1 of 5 Beaver Creek Treatment System Actual Average Flow: MGD (if known) Enter and rate each ?nding as to Potential and Extent. Potential for Harm Factor 33 4a 53 6a 7ai 7aii 8a 1) Factor Range 8) Amount of Pollutant Released b) Toxicity of Pollutant 2615.1th 0mm nv1ronment d) Length of Time Actual Exposure and 6) Effects thereon Average Potem'Factor 2) Extent of Factor Deviation Factor Range Degrewor Compliance Potential for Harm Factors: l)c - Sensitivity of the Environment Potentially Affected (0 for "dead" stream) l)d - Length of Time of Violation l)c - Actual HumaniEnvironmental Exposure and Resulting Effects thereon ExampleslGuidance: Note: Rate as for Minor, 2 for Moderate and 3 for Major. Rate as 0 if it does not apply. Minor exceedance of permit limit by for Avg. or <=100% for Daily Max, exceed numeric WQ standard by 100%, or report doesn't contain some minor information. Moderate exceedance of permit limit by 41% and 300% for Avg. 101% and 600% for Daily Max, exceed numeric WQ standard by 101% and of 600% or report doesn't fully address intended subject matter. Maio exceedance of permit limit by 301% for Avg. 601% for Daily Max. exceed numeric WQ standard by 601%, failure to submit a report, failure to obtain a permit. failure to report a spill. etc. Note that a facility in SNC should be rated as major for length of time and degree of non?compliance. Narrative WQ standard violations - case-by?case. Page 2 of 5 Continue rating Findings of Facts (FOF) here, if necessary. Otherwise, continue on Page 3. Potential or Factor Harm Factor Ran Amount of Pollutant Released 1 t0 3 Toxicity of Pollutant to 3 Sensitivity of the Environment Length of Time I to 3 0t03 Actual ExpOSure and Effects thereon 0 to 3 Average Potential for Harm FactOr Extent of Factor Deviation Factor Range Degree of Non- Compliance 1 to 3 Extent of Deviation from Requirement Major Moderate Minor Potential for $8?000 to Major $10,000 $6,000 to $8,000 $5,000 to $6,000 *0 $4,000 to Human Health Moderate $5,000 $3,000 to $4,000 $2,000 to $3,000 9r $1,500 to Envnronment Minor $2,000 $1,000 to $1,500 Up to $1,000 Potential for Extent ot FOF Harm Deviation Penalty Factor Base Penalty 3a Moderate Major $4,400 1 $4,400 4a Moderate Major $4,400 1 $4.400 5a Moderate Major $4,400 1 $4,400 6a Moderate Major $4,400 1 $4,400 7ai Minor Minor $1,000 4 $4,000 7aii Minor Moderate $1,500 7 $10,500 Minor Major $2,000 4 $8,000 8a Moderate Major $4,400 1 $4,400 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 0 FALSE FALSE FALSE 1 $0 Total Base Penalty $44,500 Page 3 of 5 Page 4 of 5 Penalty Adjustment Factors (pursuant to 47CSR1-6.2) Penalty Adjustment Factor 6.2.b.1 - Degree of or absence of willfulness and/or negligence - 0% to 30% increase 6.2.b.4 - Previous compliance/noncompliance history - 0% to 100% increase - based upon review of last three (3) years - Warning maximum of 5% each, N.O.V. maximum of 10% each, previous Order maximum of 25% each - Consistent DMR violations for <1 year 10% maximum, for >1 year but <2 years 20% maximum, for >2 years but <3 years 30% maximum, for >3 years 40 maximum 6.2.b.6 - Economic bene?ts derived by the responsible party (increase to be determined) 6.2.b.7 - Public Interest (increase to be determined) 6.2.b.8 - Loss of enjoyment of the environment (increase to be determined) 6.2.b.9 - Staff investigative costs (increase to be determined) 6.2.b.10 - Other factors Size of Violator: 0 - 50% decrease NOTE: This factor is not available to discharges that are causing a water quality violation. This factor does not apply to a commercial or industrial facility that employees or is part of a corporation that employees more than 100 individuals. Av WW Flow 100,000 0 Additional Other factors to be determined for increases or decreases on a case-by-case basis. Public Notice Costs (cost for newspaper advertisement) 6.2.b.2 - Good Faith - 10% decrease to 10% increase 6.2.b.3 - Cooperation with the Secretary - 0% to 10% decrease 6.2.b.5 - Ability to pay a civil penalty - 0% to 100% decrease Page 5 of 5 Base Penalty Adiustments (pursuant to 47CSR1-6.2) Base Penalty Penalty Adjustment Factor Increase Decrease Adjustments 6.2.b.1 Willfulness and/or negligence 20 $8,900 6.2.b.4 - Compliance/noncompliance history 25 $11,125 6.2.b.6 Economic bene?ts - (?at monetary increase) 314?000 $14,000 6.2.b.7 - Public Interest - (?at monetary increase) $0 6.2.b.8 - Loss of enjoyment (?at monetary increase) $0 6.2.b.9 - investigative costs - (?at monetary increase) $0 6.2.b.10 Other factors (size ofviolator) $0 6.2.b.10 Additional Other Factors - Increase (?at monetary increase) $0 6.2.b.10 - Additional Other Factors Decrease (?at monetary decrease) $0 Public Notice Costs (?at monetary increase) $30 $30 6.2.b.2 Good Faith - Increase $0 6.2.b.2 - Good Faith - Decrease $0 6.2.b.3 - Cooperation with the Secretary 10 ($4,450) 6.2.b.5 - Ability to Pay $0 Penalty Adjustments $29,605 Penalty $74,105 Estimated Economic Benefit Estimated item Benefit Monitoring Reporting Installation Maintenance of Pollution Control Equipment $14,000 expenses and cost of equipment/materials needed for compliance Permit Application or Modi?cation Competitive Advantage Estimated Economic-Benefit $14,000 Avoided cost of initial installation and two (2) years of maintenance of pollution Comments: . control equrpment.