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CM-2021-226 - 8/27/2021PENDING SIGNATURE FROM OTHER PARTY Jon Niermann, Chairman ��,TE 0,o� Emily Lindley, Commissioner 40 Bobby Janecka, Commissioner Toby Baker, &eeutive Director TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Prorecrinq Texas by Reducing and Preventing Pollution August 19, 2021 The Honorable Craig Morgan Mayor of Round Rock 221 East Main Street Round Rock, Texas 78664-5271 Re: Revised Proposed Agreed Order City of Round Rock; RN102787686 Docket No. 2020-1340-EAQ-E; Enforcement Case No. 59799 FOR SETTLEMENT PURPOSES ONLY Dear Mayor Morgan: Please find enclosed a revised proposed agreed order based on discussions Mr. Gerald Pohlmeyer of the City of Round Rock had with Mr. Caleb Olson of my staff in a telephone conference on July 8, 2021 and documents submitted on July 9, 2021. The following revisions have been made: 1. Section I (Jurisdiction and Stipulations): Paragraph No. 4 has been revised to reflect the modified penalty amount. 2_ Section I (Jurisdiction and Stipulations): Paragraph No. 9 has been revised to reflect the date demolition ceased at the Site. 3. Penalty Calculation Worksheet ("PCW"): Violation No.1, the violation events have been revised to reflect the dates demolition began and ceased at the Site. 4. PCW: Economic Benefit No.1, the language and dates in the delayed and avoided costs have been revised to reflect the dates demolition began and ceased at the Site. Although this revised order replaces the proposed order enclosed in the Texas Commission on Environmental Quality ("TCEQ") letter dated October 23, 2020, the terms and conditions noted in the October 23, 2020 letter still apply. If the City of Round Rock agrees with the revised order as proposed, please sign and return this order with an original signature and the penalty payment of $6,000 within two weeks of the date of this letter, (check payable to "TCEQ" and referencing the City of Round Rock, Docket No. 2020-1340-EAQ-E) to: Financial Administration Division, Revenue Operations Section Cashier's Office, MC 214 Texas Commission on Environmental Quality P.O. Box 13088 Austin, Texas 78711-3o88 vAl,-�-> v2 /- 2 The Honorable Craig Morgan Page 2 August 19, 2021 Enclosed for your convenience is a return envelope. Please note that any agreements we reach are subject to final approval by the Commission. For any questions or comments about this matter, please contact Mr. Olson at (817) 588-5856 or caleb.olson@tceq.texas.gov. Sincerely, —taoL� -b. for Kristy Deaver, Manager Enforcement Division Texas Commission on Environmental Quality KD/co Enclosures: Revised Proposed Agreed Order, Revised PCW, Return Envelope The Honorable Craig Morgan Page 3 August 19, 2021 bcc: Manager, Water Section, Austin Regional Office Mr. Caleb Olson, Coordinator, Enforcement Division, R-4 Central Records, MC 213, Building E, lst Floor EAQ_Wiliiamson County — City of Round Rock_CP_2021-o8-19_Revised Proposed Agreed Order Enforcement Division Electronic Reader File App 17 Revised 1'AO Cover Letter/5-5-2017 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY IN THE MATTER OF AN § BEFORE THE ENFORCEMENT ACTION § CONCERNING § TEXAS COMMISSION ON CITY OF ROUND ROCK § RN102787686 § ENVIRONMENTAL QUALITY AGREED ORDER DOCKET NO. 2020-1340-EAQ-E I. JURISDICTION AND STIPULATIONS On , the Texas Commission on Environmental Quality ("the Commission" or "TCEQ") considered this agreement of the parties, resolving an enforcement action regarding the City of Round Rock (the "Respondent") under the authority of TEx. WATER CODE chs. 7 and 26. The Executive Director of the TCEQ, through the Enforcement Division, and the Respondent together stipulate that: 1. The Respondent owns and operates property located at 2800 Oakmont Drive in Round Rock, Williamson County, Texas (the "Site"). The Site is near or adjacent to water in the state as defined in TEx. WATER CODE § 26.001(5). 2. The Executive Director and the Respondent agree that the TCEQ has jurisdiction to enter this Order pursuant to TEx. WATER CODE H 7.002, 7.051, and 7.073, and that the Respondent is subject to TCEQ's jurisdiction. The TCEQ has jurisdiction in this matter pursuant to TEx. WATER CODE § 5.013 because it alleges violations of TEx. WATER CODE ch. 26 and the rules of the TCEQ. 3. The occurrence of any violation is in dispute and the entry of this Order shall not constitute an admission by the Respondent of any violation alleged in Section II ("Allegations"), nor of any statute or rule. 4. An administrative penalty in the amount of $7,500 is assessed by the Commission in settlement of the violations alleged in Section II ("Allegations"). The Respondent paid $6,000 of the penalty and $1,5oo is deferred contingent upon the Respondent's timely and satisfactory compliance with all the terms of this Order. The deferred amount shall be waived only upon full compliance with all the terms and conditions contained in this Order. If the Respondent fails to timely and satisfactorily comply with any of the terms or requirements contained in this Order, the Executive Director may demand payment of all or part of the deferred penalty amount. 5. The Executive Director and the Respondent agree on a settlement of the matters alleged in this enforcement action, subject to final approval in accordance with 3o TEx. ADMIN. CODE § 70.1o(a). Any notice and procedures, which might otherwise be authorized or City of Round Rock DOCKET NO. 2020-1340-EAQ-E Page 2 required in this action, are waived in the interest of a more timely resolution of the matter. 6. The Executive Director may, without further notice or hearing, refer this matter to the Office of the Attorney General of the State of Texas ("OAG") for further enforcement proceedings if the Executive Director determines that the Respondent has not complied with one or more of the terms or conditions in this Order. 7. This Order represents the complete and fully -integrated agreement of the parties. The provisions of this Order are deemed severable and, if a court of competent jurisdiction or other appropriate authority deems any provision of this Order unenforceable, the remaining provisions shall be valid and enforceable. 8. This Order shall terminate five years from its effective date or upon compliance with all the terms and conditions set forth in this Order, whichever is later. g. The Executive Director recognizes that by December 21, 2o18, the Respondent completed the demolition project and ceased regulated activity at the Site. II. ALLEGATIONS During an investigation conducted on June 23, 2020, an investigator documented that the Respondent failed to obtain approval of an Edwards Aquifer Protection Plan prior to commencing a regulated activity over the Edwards Aquifer Recharge Zone, in violation of 30 Tux. ADmiN. CODE § 213.4(a)(i). Specifically, demolition of existing structures located at the Site occurred without prior approval. III. DENIALS The Respondent generally denies each allegation in Section II ("Allegations") IV. ORDERING PROVISIONS NOW, THEREFORE, THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY ORDERS that: The Respondent is assessed a penalty as set forth in Section I, Paragraph No. 4. The payment of this penalty and the Respondent's compliance with all of the requirements set forth in this Order resolve only the allegations in Section II. The Commission shall not be constrained in any manner from requiring corrective action or penalties for violations which are not raised here. Penalty payments shall be made payable to "TCEQ" and shall be sent with the notation "Re: City of Round Rock, Docket No. 2020-1340- EAQ-E" to: City of Round Rock DOCKET NO.2o2o-134o-EAQ-E Page 3 Financial Administration Division, Revenue Operations Section Attention: Cashier's Office, MC 214 Texas Commission on Environmental Quality P.O. Box 13o88 Austin, Texas 78711-3o88 2. All relief not expressly granted in this Order is denied. 3. The duties and provisions imposed by this Order shall apply to and be binding upon the Respondent. The Respondent is ordered to give notice of this Order to personnel who maintain day-to-day control over the Site operations referenced in this Order. 4. The Executive Director may grant an extension of any deadline in this Order or in any plan, report, or other document submitted pursuant to this Order, upon a written and substantiated showing of good cause. All requests for extensions by the Respondent shall be made in writing to the Executive Director. Extensions are not effective until the Respondent receives written approval from the Executive Director. The determination of what constitutes good cause rests solely with the Executive Director. 5. This Order, issued by the Commission, shall not be admissible against the Respondent in a civil proceeding, unless the proceeding is brought by the OAG to: (i) enforce the terms of this Order; or (2) pursue violations of a statute within the Commission's jurisdiction, or of a rule adopted or an order or permit issued by the Commission under such a statute. 6. This Order may be executed in separate and multiple counterparts, which together shall constitute a single instrument. Any page of this Order may be copied, scanned, digitized, converted to electronic portable document format ("pdf'), or otherwise reproduced and may be transmitted by digital or electronic transmission, including but not limited to facsimile transmission and electronic mail. Any signature affixed to this Order shall constitute an original signature for all purposes and may be used, filed, substituted, or issued for any purpose for which an original signature could be used. The term "signature" shall include manual signatures and true and accurate reproductions of manual signatures created, executed, endorsed, adopted, or authorized by the person or persons to whom the signatures are attributable. Signatures may be copied or reproduced digitally, electronically, by photocopying, engraving, imprinting, lithographing, electronic mail, facsimile transmission, stamping, or any other means or process which the Executive Director deems acceptable. In this paragraph exclusively, the terms: electronic transmission, owner, person, writing, and written, shall have the meanings assigned to them under TEx. Bus. ORG. CODE § I.002. 7. The effective date of this Order is the date it is signed by the Commission. A copy of this fully executed Order shall be provided to each of the parties. City of Round Rock DOCKET NO. 2020-1340-EAQ-E Page 4 SIGNATURE PAGE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY For the Commission Date For the Executive Director Date 1, the undersigned, have read and understand the attached Order. I am authorized to agree to the attached Order, and I do agree to the terms and conditions specified therein. I further acknowledge that the TCEQ, in accepting payment for the penalty amount, is materially relying on such representation. 1 also understand that failure to comply with the Ordering Provisions, if any, in this Order and/or failure to timely pay the penalty amount, may result in: • A negative impact on compliance history; • Greater scrutiny of any permit applications submitted; • Referral of this case to the Attorney General's Office for contempt, injunctive relief, additional penalties, and/or attorney fees, or to a collection agency; • Increased penalties in any future enforcement actions; • Automatic referral to the Attorney General's Office of any future enforcement actions; and • TCEQ seeking other relief as authorized by law. in addition, any falsification of any compliance documents may result in criminal prosecution. --W 6 q Signature Date WWS O!LAfTT� Name (Printed or typed) Authorized Representative of City of Round Rock /� �T Cf AqfK Title ❑ If nailing address has changed, please check this box and provide the new address below: InMuctions: Send the original, signed Order with penalty payment to the Financial Administration Division, Revenue Operations Section at the address in Ordering Provision i of this Order. Penalty Calculation Worksheet (PCW) Policy Revision 4 (April2014) PCW Revision March 26, 2014 PCW 9-Jul-2021 Screening 3-Se 2020 EPA DueO Respondent Reg. Ent. Ref. No. Facility/Site Region CASE INFORMATION Enf./Case IO No.EEdwards No. of Violations 1 Docket No. -EA -E Order Type 1660 Media Program(s) Aquifer Government/Non-Profit Yes Multi -Media Enf. Coordinator Caleb Olson EC's Team Enforcement Team 1 Admin. Penalty $ Limit Minimum ®0 Maximum 25 000 Penalty Calculation Section TOTAL BASE PENALTY (Sum of violation base penalties) Subtotal $7,5 00 ADJUSTMENTS (+/-) TO SUBTOTAL 1 Subtotals 2-7 are obtained by multiplying the Total Base Penalty (Subtotal 1) by the indicated percentage. Compliance History 0.0% Adjustment Subtotals 2, 3, & 7 0 Notes No adjustment for compliance history. Culpability No 0.0% Enhancement Subtotal 0 Notes The Respondent does not meet the culpability criteria. Good Faith Effort to Comply Total Adjustments Economic Benefit Total EBAmrunts tlS Y59 Es'.imated Cost of Compliance $100,061 SUM OF SUBTOTALS 1-7 OTHER FACTORS AS JUSTICE MAY REQUIRE Reduces or enhances the Final Subtotal by the indicated percentage_ Notes STATUTORY LIMIT ADJUSTMENT 0.0% Er.har:ement, 'Capped at the TOW EB $ Ama1nt Subtotal 5 10 Subtotal 6 10 Final Subtotal $7,500 Adjustment $0 Amount 7 500 Final Assessed Penalty 1$7,5 00 DEFERRAL r 20.00/oReduction Adjustment-$Y,500 Reduces the Final Assessed P nalty by the 1^d.cated percentage. Notes Deferral offered for expedited settlement. PAYABLE PENALTY $6,000 Screening Date 3-Sep-2020 Docket No. 2020-1340-EAQ-E Respondent City of Round Rock Case ID No. 59799 Reg. Ent. Reference No. RN102787686 Media Edwards Aquifer Enf. Coordinator Caleb Olson Compliance History Worksheet >> Compliance History Site Enhancement (Subtotal 2) PCW FDhcv ReOpon 4�ALU-12arJ) ACw Rer-slon March 26, 2014 N�.mhsr 6di� r► Written notices of violation ("NOVs") with same or similar violations as those in 0 0% NOVs the current enforcement action (number of NOVs meeting criteria ) Other written NOVs 0 0% Any agreed final enforcement orders containing a denial of liability (number of orders meeting criteria ) 0 0% Orders Any adjudicated final enforcement orders, agreed final enforcement orders without a denial of liability, or default orders of this state or the federal 0 0% government, or any final prohibitory emergency orders Issued by the commission Any non -adjudicated final court judgments or Consent decrees containing a denial of liability of this state or the federal government (number of judgments or 0 1% Judgments consent decrees meeting criteria ) and Consent Decrees Any adjudicated final court judgments and default judgments, or non -adjudicated final court judgments or consent decrees without a denial of liability, of this state 0 0% or the federal government Any criminal convictions of this state or the federal government (number of Convictions counts)0 0% Emissions Chronic excessive emissions events (number of events) 0 0% Letters notifying the executive director of an Intended audit conducted under the Texas Environmental, Health, and Safety Audit Privilege Act, 74th Legislature, 0 00/0 1995 (number of audits for which notices were submitted)- Audits- Disclosures ons r nv-iro-n—ment-al-, - - -... - ---- re--o-v--i--ude-the Tixb Health, and Safety Audit Privilege Act, 74th Legislature, 1995 (number of audits for which violations were 0 0% disclosed) Environmental management systems in place for one year or more No 0% Voluntary on -site compliance assessments conducted by the executive director No 0% Other under a special assistance program Participation in a voluntary pollutlon reduction program No 0% Early compliance with, or offer of a product that meets future state or federal No 0% government environmental requirements >> Repeat Violator (Subtotal 3) No >> Compliance History Person Classification (Subtotal 7) Satisfactory Performer >> Compliance History Summary Compliance History Notes Adjustment Percentage (Subtotal 2) 0% Adjustment Percentage (Subtotal 3) 0% Adjustment Percentage (Subtotal 7) 0% No adjustment for compliance history. Total Compliance History Adjustment Percentage (Subtotals 2, 3, & 7) oak >> Final Compliance History Adjustment Final Adjustment Percentage *capped at 100% o"k Screening Date 3-Sep-2020 Docket No. 2020-1340-EAQ-E PCW Respondent City of Round Rock Po&y aevsran a (APrd Z014) Case ID No. 59799 PCW Revision Mash 74, 20I4 Reg, Ent. Reference NO. RN102787686 Media Edwards Aquifer Enf. Coordinator Caleb Olson Violation Number 1 Rule Cite(s) 30 Tex. Admin. Code § 213.4(a)(1) Failed to obtain approval of an Edwards Aquifer Protection Plan ("EAPP") prior to Violation Description commencing a regulated activity over the Edwards Aquifer Recharge Zone. Specifically, demolition of existing structures located at the Site occurred without prior approval. Base Penalty S25 000 >> Environmental, Property and Human Health Matrix Harm Release Ma or Moderate Minor OR Actual Potential Percent 0.0% >>Programmatic Matrix Falsification Ma or Moderate Minor x Percent 5.0% Matrix Notes Violation Events 100% of the rule requirement was not met. Number of Violation Events® daily weekly x monthly quarterly semiannual annual single even[ im Adjustment 23 750 ;1 550 39 Number of violation days Violation Base Penalty;7,500 Six weekly events are recommended from the date demolition began (November 12, 2018) to the date the regulated activity ceased at the Site (December 21, 2018). Good Faith Efforts to Comply 0.-0% Reduction $0 Before NOE/NDV NOE/NOV to EDPRP/Settlement Orrer Extraordinary Ordinary N/A x Notes The Respondent does not meet the good faith criteria fo this violation. Economic Benefit (EB) for this violation Violation Subtotal ;7 500 Statutory Limit Test Estimated EB Amountl Violation Final Penalty Totall ;7,500 This violation Final Assessed Penalty (adjusted for limits) I 7,500 Economic Benefit Worksheet Respondent City of Round Rock Case ID No. 59799 Reg. Ent. Reference No. RN102767686 Media Edwards Aquifer Violation No. 1 Item Description Delayed Cost Equipment Buildings Other (as needed) Eng Ineering /Construction Land Record lteeping System Training/sampling Remediation/Disposal Permit Costs other (as needed) Notes for DELAYED cost$ Avoided Costs Disposal Personnel Inspection/RepoMrig/Sampling SupplEes/Equipment Fine nclal Assurance ONE-TIME avoided costs other (as needed) Notes for AVOIDED costs Item cost Date Required Final Date Yrs Interest Saved Percent Interest Years of Depreciation 5.01 15 Costs Saved ES Amount lOther delayed cast is the estimated amount to complete the demolition project and cease regulated activityll lI at the Site. Date required Is the date demolition began. Final date is the date the regulated activity up Ceased at the Site. me 0.00 1 so 0 s0 0.00 so so 0 0.00 0 0 so .00 so so so 0.00 so 0 s0 1.81 $1,293 $14,000 $15 293 Ont-t me avoided cost is the estimated amount to prepare, submit, and obtain approval of an EAPP. Date requ red Is the date demolition began. Final date is the screening date Approx. Cost of Compllance 100 061 TOTAL[--------$15 753 City of Round Rock ROUND ROOC TEXAS Agenda item Summary Agenda Number: Title: Consider executing a revised Agreed Order with Texas Commission on Environmental Quality for the resolution of an allegation that the City failed to obtain approval of an Edwards Aquifer Protection Plan prior to demolition of existing structures regarding the University Boulevard Widening - IH 35 to Sunrise Project. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 8/27/2021 Dept Director: Gary Hudder, Transportation Director Cost: $6,000.00 Indexes: RR Transportation and Economic Development Corporation (Type B) Attachments: Round Rock (EAQ)_Revised Enforcement Documents Department: Transportation Text of Legislative File CM-2021-226 This request is to address a TCEQ issue regarding the demolition of the DataMax site back in 2019. The TCEQ alleged that the City demolished the DataMax site and did not provide adequate notification of thi proposed work. The initial alleged violation came with a proposed fine of $37,500. This office through negotiations with the TCEQ has reduced the fine to $6,000 as long as we settle this issue by September 2021. While this office contends that there was no violation, it is in the City's best interest to settle this m and keep a positive working relationship with the TCEQ. Cost: $6,000.00 Source of Funds: RR Transportation and Economic Development Corporation City of Round Rock Page 1 of 1