COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION NORTHEAST REGIONAL OFFICE 205B Lowell Street, Wilmington, MA 01887 a (978) 694-3200 DEVAL L. PATRICK IAN A. BOWLES Governor Secretary TIMOTHY P. LWRRAY LAURIE BURT Lieutenant Governor Commissioner June 25, 2010 Mr. Harold W. Clarke, Commissioner Massachusetts Department Of Corrections 50 Maple Street, Suite 3 Milford, MA 01757 NOTICE OF ISSUANCE OF ADMINISTRATIVE ORDER ENCLOSED IS AN IMPORTANT DOCUNIENT. FAILURE TO RESPOND TO THIS DOCUMENT COULD RESULT IN SERIOUS LEGAL CONSEQUENCES. Dear Respondent: You are hereby noti?ed that the Massachusetts Department Of Environmental Protection is issuing the enclosed Administrative Order to you. The reasons for issuing this Administrative Order and your right to appeal are explained in the document. Please read this Administrative Order carefully. Failure to take adequate action in response to it will result in serious legal consequences. Please contact Attorney Heidi M. Zisch of MassDEP's Of?ce of General Counsel at (978) 694- 3330 if you have any questions. Very truly yours, Stephen (hymn Deputy Region rector cc: Heidi M. Zisch, Esq, Jeffery 3. Quick, A.I.A., DOC Dir. Div. of Resource Management Margaret Bacon, P.E., Deputy Dir. Div. of Resource Management, PDF via email CERTIFIED MAIL NO. 7007 0220 0002 1500 8505 This information is available in alternate format. Call Donald M. Comes, ADA Coordinator at 617-556-1057. 866639-7622 or 617674-6868. Fax {978) 694-3499 {5 Printed on Recycled Paper COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION In the Matter of: Massachusetts Department of UNILATERAL ADMINISTATIVE ORDER Corrections - Concord File No. UAO-NE-10-1N001 I. THE PARTIES 1. The MassaChusetts Department of Environmental Protection (?the Department? 01' is a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. 0. 21A, 7. maintains its principal office at One Winter Street, Boston, Massachusetts 02108, and its Northeast Regional Office at 2058 Lowell Street, Wilmington, Massachusetts 01887. 2. MCI-Concord is a medium security correctional facility located at 965 Elm Street, Concord, Massachusetts 01742 It is operated by the Massachusetts Department of Corrections (?Respondent?), a duly constituted agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 27, Respondent?s principal office is located at 50 Maple Street, Suite 3, Milford, Massachusetts 01757. H. STATEMENT OF FACTS AND LAW 3. MassDEP?s authon'ty to issue this Unilateral Administrative Order (?Order?) and to set deadlines for compliance is conferred by the Massachusetts Clean Waters Act, M.G.L. c. 21, 26?53, and the Surface Water Discharge Permit Regulations at 314 CMR 3.00. has authority under M.G.L. c. 21A, 16 and the Administrative Penalty Regulations at 310 CMR 5.00 to assess civil administrative penalties to persons in noncompliance with the laws and regulations set forth above. 4. The following facts have led to issue this Order: A. The Site contains multiple buildings, primarily within the walled prison compound. Additional prison buildings surround the walled compound as well as adjacent parcels, which are also considered part of the Site. These additional facilities house prison affiliated functions and other state departments such as the state police barracks and a Massachusetts Department of Transportation-Highway Division?s Public Works facility. All facilities on the Site are connected into and serviced by the wastewater treatment plant that is on?site at the facility and that the Respondent owns and operates. MCI-Concord UA O-NE-I Page 2 0f 7 On June 14, 2010, received a complaint via email citing a suspect. outfall along the Assabet River in a location that is directly adjacent to and emanating from the MCI-C facility. The complaint identified a sewage odor, discolored water, and debris. The complaint stated specifically that the suspect outfall was not the outfall for the WWTP. On June 15, 2010, staff made an unannounced site visit to the MCI-C WWTP. The Respondent, specifically the staff of the WWTP, were aware of a complaint call regarding sewerage discharge from the MCI-C facility and had performed an inspection of the WWTP outfall prior to MassDEP?s site visit. The staff determined that WWTP was being operated properly and was not the source of the discharge related to the complaint. staff was unaware of the outfall pipe emanating from the grounds related to the complaint call. Based on details of the complaint that was received by a rough location for the outfall discharge was identified by staff for further investigation by MCI-C WWTP staff. Due to security concerns and limited access around the facility, MCI-C WWTP staff referred to MCI-C operations staff with the appropriate level of responsibility to better address access and prison specific operations issues for the facility as a whole. On June 16, 2010, staff reViewed the US. Environmental Protection Agency?s database for compliance with the National Pollutant Discharge Elimination System Phase 11 Small M84 General Permit Annual Report. Annual Report was certified by Jeffery J. Quick, and Director of Division of Resource Management for the Respondent on April 30, 2009 for the reporting period from April 1, 2008 to March 31, 2009. The report states that MCI-C completed mapping their drain system. On June 16, 2010, as referred by WWTP staff, staff emailed Domenic Tnfante, an operations manager for the facility, and transmitted a copy of the complaint call. MassDEP?s email to Mr. Infante also requested a copy of storm water system map and stated that staff would be in contact shortly to arrange for sampling of the suspect storm water outfall. Mr. Infante responded via email that day, noting that was initiating an investigation to try to determine the source of contaminants to the storm drain outfall. On June 16, 2010, USEPA staff collected water samples from MCI-C suspect st01m drain outfall. On June 22, 2010, staff met on?site with Daniel Freitas, Chief Operator of the WWTP, and Margaret Bacon, Deputy Division Director of Resource Management for the Respondent. A copy of the current utilities site C1 - Concord UA Page 3 0f 7 map for MCI-C was given to staff, although it was explained that the map is still a ?work in progress.? The Respondent had begun illicit connection detection work prior to MassDEP?s arrival that day and were actively dye testing the system to identify sources. Several large areas tributary to the suspect outfall had been eliminated as potential sources of contamination and further work was being done in areas involving the active prison population. inspected the suspect outfall and collected water samples for testing at MassDEP?s NERO laboratory. staff noted a distinct sewage odor and observed white growth along the extent of the storm drain outfall discharge channel, gray turbid water coming from the storm drain, and a variety of trash debris associated with the storm drain outfall such as blue rubber gloves, paper and rags, and plastics including but not limited to a used pill blister packet. On June 22, 2010, Ms. Bacon emailed a status report of the Respondent?s illicit connection detection work, as requested by staff person Joseph Nerden during the earlier on-site inspection that day. The status report stated that the Respondent started dye testing on June 18, 2010 and were continuing to conduct dye. tests in order to pin-point the location of an earlier positive dye test. The Respondent had also sampled the suspect discharge and the results were inconclusive based on the data received to date but fecal coliform was extremely high, registering meaning ?too numerous to count.? On June 23, 2010, USEPA transmitted to results of their water quality sampling petfmmed on June 16, 2010. Of the parameters being sampled and analyzed for, E. Coli (16,160 100 ml), and Enterococci (10,462 100ml) counts were substantially in excess of Massachusetts water quality standards for the Assabet River, which are 235 I100ml and 104 100 ml, respectively. Two other parameters, surfactants and ammonia, were above ?indicator? thresholds established by USEPA to document a wastewater discharge to the storm drain system. Pharmaceutical testing is still in progress and therefore results not then available. On une 23, 2010, analytical results from sampling taken on June 22, 2010, exceeded water quality limits for E. coli bacteria. results for E. coli were 43,520 100ml. 6. The Clean Waters Act, M.G.L. c. 21, 43(2), provides that person shall discharge pollutants into waters of the commonwealth nor construct, install, modify, operate, or maintain an outlet for such discharge or any treatment works withdut a currently valid permit. . 7. The Clean Waters Act, M.G.L. 0.21, 26A defines ?pollutant? as Cor-word UA O-NE-I 0-1 N001 Page 4 0f 7 element or property of sewage, agricultural, industrial or commercial waste, runoff, leachate, heated effluent, or other matter, in whatever form and whether originating at a point or major nonpoint source, which is or may be discharged, drained or otherwise introduced into any sewerage system, treatment works or waters of the commonwealth. This statutory section also defines ?waters of the commonwealth? as?. . .all waters within the jurisdiction of the commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, coastal waters and groundwaters.? 8. The Clean Waters Act, 21, 42 provides: Any person who, directly or indirectly, throws, drains, runs, discharges or allows the discharge of any pollutants into waters of the commonwealth, except in conformity with a permit issued under section forty-three; or who violates any provision of this chapter, any valid regulation, order or permit prescribed or issued by the director thereunder shall be punished by a fine of not less than a two thousand five hundred dollars and not more than twenty-five thousand dollars for each day such violation occurs or continues, or by imprisonment for not more than one year, or by both; or shall be subject to a civil penalty not to exceed twenty-five thousand dollars per day of such violation, which may be assessed in an action brought on behalf of the Commonwealth in any court of competent jurisdiction. 9. The Clean Waters Act, 21, 44, provides: Whenever it appears that there are discharges of pollutants without a required permit, or in contravention of any regulation, standard or plan adopted by the . . [it] may order the discharger to apply forthwith for a permit, or for a new permit, and to cease and desist from making or allowing further discharges beyond a specified date until compliance with the order is fully achieved. Issuance of an order under the paragraph shall not be deemed an election to forego any action for criminal or civil penalties under section forty? two. 10. The Surface Water Discharge Permit Regulations, adopted, in part, pursuant to the Clean Waters Act, M.G.L. c.2l, 26 through 53, specifically the provisions of 314 CMR 303(1) state, in relevant part that: No person shall discharge pollutants to surface waters of the Commonwealth without a currently valid permit from the Department pursuant to 21, sec. 43 and 314 CMR 3.00, unless exempted in 314 CMR 3.05. No person shall construct, install, modify, operate or maintain an outlet for such a discharge or any treatment works required to treat such discharge without having first obtained MCI?Concord UA 0-1 Page 5 0f7 a discharge permit in accordance with 314 CNER 3.03( 1) and written approval from the Department for such activity, unless exempted pursuant to 314 CMR 3.05. 11. The Surface Water Discharge Permit Regulations, specifically the provisions of 314 CMR 3.02 define ?discharge? in relevant part to be: any addition of any pollutant or combination of pollutants to waters of the Commonwealth from any source, including but not limited to, discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person, which do not lead to a and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. . .. 12. By allowing the discharge of untreated sanitary sewerage to discharge to the Assabet River, which is a surface water of the Commonwealth, without a valid permit, the Respondent violated the Massachusetts Clean Waters Act, M.G.L. c. 21, 26 through 53, and the Surface Water Discharge Permit Regulations, specifically the provisions of 314 CMR 303(1). ORDER 13. This Order shall be binding on Respondent and its successors and assigns. Respondent shall not violate this Order and shall not allow or suffer his employees, agents, or contractors to violate this Order. 14. For the reasons stated above, hereby orders Respondent to perform the following action within the time frame set forth therein. A. On or before July 15, 2010, Respondent shall identify all illicit connections to the storm drain system by any and all means necessary, including but not limited to dye testing and using closed caption television cameras On or before July 15, 2010, Respondent shall submit to for review and approval, a written report which summarizes the activities involved in the investigation and confirmation of illicit connections to the storm drain, with a schedule for eliminating the confirmed illicit connections. Starting on June 28, 2010, Respondent shall submit written status reports, to weekly via email, due by noon on Mondays and reporting activity for the prior week, including any plans and schedules detailing progress of the illicit connection detection and removal work. Written reports are required until the completion of the illicit Connection removal work. Respondent shall conduct two rounds of water quality sampling once all illicit connections have been removed from the storm drain system. The dates and time MCI-Concord 0-1 Page 6 0f 7 of the two rounds of confirmatory sampling, the parameters to be sampled, and the timeframe for reporting analytical results must be reviewed and approved by prior to the Respondent conducting any sampling and analysis. 15. Pursuant to M.G.L. c.21, 46A: Any person aggrieved by an order, permit determination or other action of the director, other than an order consented to, may obtain judicial review by filing an application for review in the Superior Court within thirty days after receipt of notice of the ?nal decision of the director. The Superior Court shall have jurisdiction in equity to enforce any order, decision or determination of the director, and any provision of sections twenty-six to ?fty~three, inclusive, or regulations issued thereunder. 16. This Order shall be complied with during the pendency of any appeal. 17. Respondent is notified that if it fails to comply with this Order, Respondent shall be punished by fine of not less than two thousand five hundred dollars nor more than twenty-five thousand dollars for each day such violation occurs or continues or by imprisonment for not more than one year, or shall be subject to civil penalty not to exceed twenty-five thousand dollars per day of such violation. 18. Respondent is notified that if it fails to comply with this Order, M.G.L. 0. 21A, 16 provides for civil administrative penalties of up to twenty?five thousand dollars ($25,000) for each day after the issuance of this Order that a violation identi?ed in this Order continues or is repeated and for each violation of this Order. 19. Notwithstanding the above, reserves the right to exercise the full extent of its legal authority in order to obtain full compliance with all applicable requirements including but not limited to referring this case to the Of?ce of the Attorney General for criminal prosecution or civil action including court imposed civil penalties, or administrative penalties imposed by 20. Nothing in this Order shall be construed or operate as barring, diminishing, adjudicating, or in any way affecting any legal or equitable right of the Department to issue any future order with respect to the subject matter covered by this Order or in any way affecting any other claim, action, or demand that the Department may have with respect thereto. In particular, the Department reserves the right to require additional actions to prevent the reoccurrence of that set forth in Section ll of this order. CI~Concord UA OVNE-I Page 7 0f 7 Issued By: MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION ?la?f Richard J. @halpin, Regiona Di' ctor Northeast Regional Office - 205B Lowell Street Wilmington, MA 01887 Date: June 25, 2010