RES 1999-3323 - Agmt with SID 303 and Schering-Plough for operation of WWTP on Boxelder Creek Res b332,3
,sRECEIVED Public Works Department
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City of Omaha
Don W.Elliott,P.E.
Hal Daub,Mayor Public Works Director
Honorable President
and Members of the City Council,
Transmitted herewith is a Resolution approving a Consent Agreement between the Nebraska
Department of Environmental Quality, the City of Omaha, Sanitary & Improvement District No.
303, and Schering-Plough. Section VI of the agreement details the conditions under which the
current wastewater treatment plant, which is operated by the City of Omaha and which is used by
S&ID 303 and Schering-Plough, can continue to operate.
The actions required by this agreement will minimize the discharge of pollutants from the plant
during the construction of the gravity sewer, SOS 5653 being the Boxelder Creek outfall sewer.
The temporary conditions under which the plant can operate are detailed in the agreement and
will expire when the gravity sewer line is completed.
The Public Works Department requests your consideration and approval of the attached
Resolution and Consent Agreement.
Respectfully submitted, Referred to City Council for Consideration:
,--- -1^ .i\I vz,..dfc[; ,,,,.,,„ (2.74„
.E. bate Mayor's Office/ ' Date
Don W. Elliott, P y
Public Works Director
Approved as to Funding:
:)C A.S \ c / 6
ouis D'Ercole Date
Finance Director
p:\pw 1\9891 skz.doc
BEFORE THE NEBRASKA DEPARTMENT OF ENVIRONMENTAL QUALITY
IN THE MATTER OF SANITARY AND ) CASE NO. 2057
IMPROVEMENT DISTRICT NUMBER 303 )
OF DOUGLAS COUNTY, NEBRASKA, and )
SCHERING-PLOUGH ANIMAL HEALTH )
CORPORATION, a Delaware Corporation, ) CONSENT AGREEMENT
and CITY OF OMAHA, NEBRASKA, )
Respondents. )
I. INTRODUCTION
1. This Consent Agreement is entered into voluntarily by the Department of
Environmental Quality (DEQ), and the Respondents, Sanitary and Improvement District
Number 303 of Douglas County, Nebraska (SID 303); Schering-Plough Animal Health
Corporation (Schering-Plough); and the City of Omaha, Nebraska (City of Omaha), pursuant to
the Nebraska Environmental Protection Act (NEPA), Neb. Rev. Stat. § 81-1501 et seq.
(Reissue 1994, Cum. Supp. 1998). This Consent Agreement establishes conditions and a
schedule of compliance for the Respondent SID 303's wastewater treatment facility and
conditions for the Respondent Schering-Plough's wastewater discharges necessary to achieve
and maintain compliance with the Respondent City of Omaha's National Pollutant Discharge
Elimination System (NPDES) permit, #NE0123447, issued by the DEQ for Dam Site 18
Wastewater Reclamation Project (City Plant), pending completion of a gravity interceptor
sewer. This Consent Agreement provides for the performance of activities specified in Section
VI.
b. "Pass through" is defined as "a discharge which exits the POTW into waters of
the State in quantities or concentrations which, alone or in conjunction with a discharge
or discharges from other sources is a cause of a violation of any requirement of the
POTW's NPDES permit (including an increase in the magnitude or duration of a
violation)"; and
c. "Significant industrial user" is defined to include "any industrial user that
discharges an average of 25,000 gallons per day or more of process water or
contributes a process waste stream which makes up 5 percent or more of the average
dry weather hydraulic or organic capacity of the POTW treatment plant."
6. Title 127, Chapter 3, prohibits any user from introducing pollutants to a POTW
that result in the "pass through" of pollutants through the POTW or "interference" with the
operation or performance of the POTW.
7. Each of the Respondents agrees to undertake all actions required by the terms
and conditions of this Consent Agreement. Each of the Respondents agrees that it will not
contest the basis or validity of this Consent Agreement in any proceedings by the DEQ to
enforce this Consent Agreement. Nothing in this paragraph shall limit or be deemed to limit
the right of any of the Respondents to assert any argument that it is in compliance with the
Consent Agreement in any proceeding initiated by the DEQ to enforce this Consent
Agreement.
8. By entering into this Consent Agreement, none of the Respondents admits or
denies any allegations set forth herein.
9. This Consent Agreement is binding on the DEQ and each of the Respondents
and their respective successors and assigns. Any change in ownership or corporate status of
any of the Respondents, including, but not limited to, any transfer of assets or real or personal
3
15. Effective May 11, 1989, the DEQ issued an NPDES permit to the Respondent
City of Omaha, #NE0123447, which authorizes the Respondent to discharge pollutants under
specified conditions to the Elkhorn River, in accordance with Title 119. The conditions of this
permit were extended by letter from the DEQ to the Respondent City of Omaha, dated
April 24, 1994, pending the effective date of a new permit.
16. Respondent SID 303's WWTF has been subject to periodic upset and
overloading. Respondent SID 303's NPP permit establishes effluent concentration limitations
for Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) of 30 milligrams per
liter (mg/1) for a 30-day average and 45 mg/1 for a 7 day maximum. The Respondent SID 303
has exceeded its NPP permit limitations on occasion. The Respondent SID 303's discharges
for the months of July through September, 1998, and October through December, 1998, are
respectively presented in the following tables. The discharge exceedences reported in these
tables are not intended to represent all of the exceedences which have occurred to date at the
Respondent SID 303's WWTF.
TABLE 1
Parameter July 1998 August 1998 September 1998
concentration (mg/1) concentration (mg/1) concentration (mg/1)
BOD reported 69 69 33 33 122 122
permit 30 45 30 45 30 45
condition monthly daily monthly daily monthly daily
•
average maximum average maximum average maximum
TSS reported 26 26 11 11 200 200
permit 30 45 30 45 30 45
condition monthly daily monthly daily monthly daily
average maximum average maximum average maximum
5
1
20. The WVVTF of both Respondent SID 303 and Respondent City of Omaha is a
"POTW" as defined in Title 119 and Title 127.
21. Respondents SID 303, Schering-Plough, and City of Omaha are prohibited by
Neb. Rev. Stat. § 81-1506(2)(c) from discharging any pollutants in excess of limitations
identified in their respective NPP and NPDES permits, except as otherwise provided in this
Consent Agreement.
22. Respondents SID 303 and City of Omaha are prohibited by Neb. Rev. Stat. §.
81-1506(2)(d) from operating their respective .WWTFs in a manner which would cause an
increase in the discharge of wastes into waters of the State above permit limits, except as
otherwise provided in this Consent Agreement. Such Respondents' permits require them at all
times to maintain their respective WWTFs in good working order and to operate as efficiently
as possible in order to achieve compliance with their permits.
23. Respondent Schering-Plough is a "significant industrial user" of the Respondent
SID 303's WWTF within the meaning of Title 127 of the Nebraska Administrative Rules and
Regulations.
24. DEQ alleges that Respondent SID 303 has discharged pollutants in excess of
effluent limitations specified in its NPP permit on numerous occasions.
25. DEQ and Respondents believe that the construction of a sewer extension to
intercept the discharges from Respondents SID 303 and Schering-Plough is in the best
interests of all parties to this Consent Agreement, and Schering-Plough's willingness to commit
to building the interceptor sewer will be beneficial to the environment.
26. The actions required by this Consent Agreement will minimize the threat of
interference with the Respondent City of Omaha's City Plant or the pass through of pollutants
to the Elkhorn River during the construction of the sewer extension.
7
following the close of each calendar month, beginning with the first calendar month
after the effective date of this Consent Agreement;
•E. Respondent SID 303 shall notify the DEQ, the Respondent City of Omaha and
Respondent Schering-Plough within 24 hours of any calculation of effluent flows based
on a weekly average in excess of the limit established in this Consent Agreement;
F. Respondent SID 303 shall immediately notify the Respondent City of Omaha,
Respondent. Schering-Plough, and DEQ if Respondent. SID 303 is experiencing
operational upset which it has reason to believe may cause an overflow or result in
"interference"with the operations the City Plant; and
G. Respondent SD 303 shall notify the DEQ, the Respondent City of Omaha and
Respondent Schering-Plough within 24 hours of any sampling performed by the
Respondent SID 303 which indicates exceedences of the effluent discharge limitations
contained in Respondent SID 303's NPP permit.
H. To the extent that SID 303's discharges exceed the effluent discharge
•
limitations contained in this Consent Agreement and cause the City of Omaha to
exceed the NPDES permit limits applicable to the City Plant, then to the extent that
DEQ brings an enforcement action against the City of Omaha or Schering-Plough, the
Respondents City of Omaha and Schering-Plough shall respectively have the right to
recover all penalties assessed against it from SID 303.
9
weekly average and the Peak Discharge limitation, beginning with the first Wednesday
after the effective date of this Consent Agreement;
F. Respondent Schering-Plough shall submit the results of daily and weekly
average effluent flow measurements made pursuant to paragraph 30.E. above to the
DEQ on a monthly basis, within the first 7 days following the close of each calendar
month, beginning with the first calendar month after the effective date of this Consent
Agreement;
G. Respondent Schering-Plough shall notify the DEQ, City of Omaha and SID 303
within 24 hours of any calculation of its daily effluent flows based on a weekly average
or Peak Discharge in excess of the limits established in this Consent Agreement; and
H. To the extent that Respondent Schering-Plough's discharges to SID 303's
WWTF exceed the Peak Discharge and such exceedence causes the City to violate its
NPDES permit limits at the City Plant, then, to the extent that the DEQ-brings an
enforcement action against the City of Omaha or SID 303, the Respondents City of
.
Omaha or SID 303 shall respectively have the right to recover all penalties assessed
against it caused by such exceedence of the Peak Discharge from Schering-Plough.
Respondent City of Omaha
31. Respondent City of Omaha agrees to accept the wastewater discharge flows
from Respondent SID 303 as set forth in this Consent Agreement pending completion of
construction of the interceptor sewer extension provided that:
A. Respondent SID 303 complies with paragraph 29 above;
B. Respondent Schering-Plough complies with paragraph 30 above; and
11
36. Notification required pursuant to this Consent Agreement to be made to the
Respondent SID 303 shall be provided to:
William A Hunt
21523 Arbor Street
Elkhorn, Nebraska 68022
37. Notification required pursuant to the Consent Agreement to be made to the
Respondent Schering-Plough shall be provided to:
Michael J. Bartkoski, Jr., Ph. D.
Director of Operations
Schering-Plough Animal Health Corp.
21401 West Center Road
Elkhorn, Nebraska 68022
VIII. COMPLIANCE WITH OTHER LAWS
all actions required bythis Consent Agreement
38. The Respondents shall performq g
in accordance with all applicable local, state, and federal laws, regulations, and permits.
IX. FORCE MAJEURE
39. Force majeure for the purposes of this Consent Agreement means any event
arising from causes beyond the reasonable control of any of the Respondents and any entity
controlled by any of the Respondents, including contractors and subcontractors, that delays or
prevents the timely completion of construction of•the interceptor sewer extension under this
Consent Agreement or the performance of any obligation under this Consent Agreement.
• Each of the Respondents shall exercise best efforts to anticipate any potential force majeure
and address the potential effects as the event is occurring, and following the event, to ensure
that any delay is minimized to the greatest extent practicable.
40. If any event occurs that may delay the completion of construction of the
interceptor sewer extension under this Consent Agreement, whether or not caused by a force
13
XI. NEGATION OF AGENCY RELATIONSHIP
46. Nothing contained in this Consent Agreement shall be construed to create,
either expressly or by implication, the relationship of agency between the DEQ and any of the
Respondents.
XII. THIRD PARTIES
47. Nothing in this Consent Agreement shall constitute or be construed as a bar or
release from any claim, cause of action or demand by or against any of the Respondents.
48. This Consent Agreement is not intended to extend any benefits or right to any
third party not a signatory to this Consent Agreement. In addition, the parties do not assume
any liability to third parties under this Consent Agreement. This Consent Agreement shall not
operate to waive any State governmental immunities provided by law or otherwise.
XIII. AMENDMENT
49. This Consent Agreement may be modified and amended in writing by mutual
agreement of the DEQ and the Respondents.
XIV. EFFECTIVE DATE
50. This Consent Agreement shall become effective on the date it is signed by the
Director of the DEQ or his designee. Unless this Consent Agreement is terminated as
provided in paragraph 44 above, this Consent Agreement shall terminate upon notification by
the DEQ to each of the Respondents that the interceptor sewer extension has been
constructed and Respondents SID 303 and Schering-Plough are discharging to the new
sewer.
15
XV. SIGNATURES
51 For Respondent SID 303: The undersigned representative of the Respondent
certifies that he or she is fully authorized to enter into the terms and conditions of this Consent
Agreement and to bind the Respondent.
By:
Title:
Date:
52. For Respondent Schering-Plough: The undersigned representative of the
Respondent certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Agr eme t and t bind the Respondent.
REVIEW
By: ��
Title: \)lCS - P(U i P 1 Th-tIAALA'(. Orxe 11v"1-
Date: 12.1 is VqCj
53. For Respondent City of Omaha: The undersigned representative of the
Respondent certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Agreeme 0'
and toed the 51.spondent.
By: %.� .: : � /..-.-. %. ..)
Title: I. pi
/L
Yi •
Date: 1?.(21 - City Clcrk
APPROVED AS TO FORM:
DEPUTY CITY ATTORNEY
16
XV. SIGNATURES
51 For Respondent SID 303: The undersigned representative of the Respondent
certifies that he or she is fully authorized to enter into the terms and conditions of this Consent
Agreement and to bind the Respo de t.
By:
Title: Net/J/444o--
Date: Wl9
52. For Respondent Schering-Plough: The undersigned representative of the
Respondent certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Agreement and to bind the Respondent.
By:
Title:
Date:
53. For Respondent City of Omaha: The undersigned representative of the
Respondent certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Agreement and to bind the Respondent.
By:
Title:
Date:
APPROVED AS TO FORM:
( / DEPUTY CITY ATTORNEY
16
XV. SIGNATURES
51 For Respondent SID 303: The undersigned representative of the Respondent
certifies that he or she is fully authorized to enter into the terms and conditions of this Consent
Agreement and to bind the Respondent.
By:
Title:
Date:
52. For Respondent Schering-Plough: The undersigned representative of the
Respondent certifies that he or she is fully authorized to enter into the terms and conditions of
this Consent Agr emert and t bind the Respondent.
By:
LEGAL,rii
n 1
Title: V LC.� ` P&,i Pam' 11hL 1Aj\Lkt. OPcrillcrto
Date:
Iz ;sttci
53. For Respondent City of Omaha: The undersigned representative of the
Respondent certifies that heg
g or she is fully authorized to enter into the terms and conditions of
49
this Consent A reemen.. t in h Resp dent.
�� Y� " y •
TTEST:
By:
Title: filto ,G
Date: Al* City Clerk
APPROVED AS TO FORM:
DEPUTY CITY ATTORNEY
16
• { •
•
2/P‘
54. For the DEQ: IT IS ORDERED and agreed this day o ,
By: .
Micha J. Linder, sq.
Director
Department of Environmental Quality
DOCS/356867.2
17
.. •
54. For the DEQ: IT IS ORDERED and agreed this day of
1999.
By:
Michael J. Linder, Esq.
Director
Department of Environmental Quality
DOCS/356867.2
17
C-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebr 19
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the City of Omaha operates a wastewater treatment plant which is
used by Sanitary& Improvement District No. 303 and Schering-Plough; and, -
WHEREAS, the wastewater treatment plant will be replaced by a gravity sewer
line known as SOS 5653 being the Boxelder Creek outfall sewer; and,
WHEREAS, the attached Consent Agreement, which by this reference becomes a
part herein, between the Nebraska Department of Environmental Quality and the parties listed
above details the temporary conditions under which the wastewater treatment plant can continue
to operate until the gravity line is completed; and,
WHEREAS, this agreement will expire after the wastewater treatment plant is
replaced by the gravity sewer.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
THAT, the Consent Agreement for the operation of the wastewater treatment
plant on Boxelder Creek between the Nebraska Department of Environmental Quality, the City
of Omaha, Sanitary & Improvement District No. 303, and Schering-Plough is hereby approved.
APPROVED AS TO F• :
r � 15)71 fSiST CITY ATTORNEY DATE
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