I. STATUTORY AUTHORITY

1. This Settlement Agreement and Order is issued under the authority vested in the Administrator of the United States Environmental Protection Agency ("EPA") by Section 309(g) of the Clean Water Act (herein "the Act"), 33 U.S.C. § 1319(g). The Administrator has delegated this authority to the Regional Administrator of EPA Region 6, who hereby issues this document in accord with the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits", 40 C.F.R. Part 22, as a Consent Agreement within the meaning of 40 C.F.R. § 22.03(a), and as an "an order assessing a civil penalty" within the meaning of 40 C.F.R. § 22.18(b) and (c) and 33 U.S.C. §

II. STIPULATIONS

2. Espanola Mercantile Company, Inc., d.b.a. Espanola Transit Mix (herein "Respondent") is a corporation chartered under the laws of the State of New Mexico, and doing business in the State of New Mexico.

3. As a "corporation", Respondent is a "person" within the meaning of the Section 502(5) of the Act, 33 U.S.C. § 1362(5).

4. Respondent owns and operates a facility located in Espanola, New Mexico (the "facility), alleged in the Complaint to have discharged pollutants to the receiving waters of the Rio Grande, a navigable water of the United States within the meaning of Section 502 of the Act, 33 U.S.C. § 1362.

5. Respondent is, therefore, subject to the provisions of the Act, 33 U.S.C. § 1251 et seq., including Sections 301(a) and 309(g) of the Act, 33 U.S.C. §§ 1311(a) and 1319(g).

6. On January 11, 1993, EPA Region 6 issued to Respondent a Proposal to Assess a Class II Administrative Penalty under Clean Water Act § 309(g) ("the Complaimt") pursuant to Section 309(g)(2)(B) of the Act, 33 U.S.C. § 1319(g)(2)(B), Docket No. VI-93-1604, which included formal findings of violation, a notice of the proposed assessment of a civil penalty of $125,000 against Respondent, and a notice of Respondent's opportunity to request a hearing on the proposed administrative penalty assessment.

7. On January 11, 1993, the Surface Water Bureau of the New Mexico Environmental Department was notified and given an opportunity to consult with EPA regarding the proposed assessment of an administrative penalty against Respondent.

8. EPA notified the public of the Administrative Complaint and afforded the public thirty (30) days in which to comment an the Complaint and proposed penalty. At the expiration of the notice period, EPA had received no comments from the public.

9. Section 301 of the Act, 33 U.S.C. § 1311, makes it unlawful for any person to discharge any pollutant to the waters of the United States except with authorization and in compliance with effluent limitations established pursuant to the Act.

10. Respondent was alleged in the Complaint to have been required by the Act to make application for and to be issued an NPDES permit prior to any discharge of pollutants from its facility to the waters of the United States, as well as to comply with the other requirements and conditions of the issuance of such permit.

11. At the times described in the Complaint, Respondent had neither made application for, nor been issued, an NPDES permit for any discharges from the facility. Respondent was, therefore, alleged in the Complaint described above to have violated Section 301 of the Act, 33 U.S.C. § 1311, by discharging without a permit.

12. On January 22, 1993, Respondent timely filed a response to the Complaint and requested a Hearing regarding the violations alleged, addressing the specific allegations in the Complaint within the meaning of 40 C.F.R. § 22.15(b) and (d).

13. The Parties agree that settlement of this matter without litigation will save time and resources, that it is in the public interest, and that entry into this Settlement Agreement and order is the most appropriate means of resolving this matter.

14. Respondent admits the jurisdictional allegations of the Complaint and expressly waives its right to a hearing or appeal of this Order pursuant to Sections 309(g) (2) and (8) of the Act, 33 U.S.C. §§ 1319(g)(2) and (8), on penalty assessment, or on any other issue of law or fact relevant to this proceeding.

Respondent waives all defenses which have been or could have been raised to the claims set out in the Complaint, and waives its right to judicial review of this administrative assessment.

15. Respondent neither admits nor denies the findings of fact and conclusions of law contained in the Complaint, nor the allegations contained in the Stipulations of Fact and of Law herein, for the purposes of this Settlement Agreement and Order.

16. Before the taking of any testimony, and without adjudication of any issues of law or fact, the parties agree to the terms of this Settlement Agreement and Order and to its issuance; Respondent consents to the payment of the amount and by the method stated below.

17. Based on the foregoing Stipulations, EPA.Region 6 having taken into account the statutory requirements stated in Section 309(g)(3) of the Act, 33 U.S.C. § 1319(g)(3), EPA Region 6 hereby ORDERS, AND RESPONDENT AGREES, that Respondent shall pay to the United States the amount of FIFTY THOUSAND DOLLARS ($50,000) to settle all claims and allegations contained in the Complaint.

18. Payment shall be made within thirty (30) days of the effective date of this Settlement Agreement and order by mailing a money order, cashier's check, or certified check, payable to

"Treasurer of the United States", to the following address:

Regional Hearing Clerk (6C)
U.S. EPA, Region 6
P.O. Box 360582M
Pittsburgh, PA 15251

Docket No. VI-93-1604 should be clearly typed on the check to ensure credit for payment.

19. Respondent shall send simultaneous notice of each payment, including a copy of the money order, cashier's check, or certified check, to each of the following:

(1) Regional Hearing Clerk (6C)
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733

(2) Ms. Ruth Gibson (6W-EA)
Water Management Division
Enforcement Branch
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733

(3)Associate Regional Counsel
for Water Enforcement (6C-AW)
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733

Respondent's adherence to these procedures will ensure proper credit when payments are received.

20. If the United States does not receive payment within the time and under the terms specified herein, interest will accrue on the unpaid balance, from the due date, at the current annual rate prescribed and published by the Secretary of the Treasury in the Federal Register and the Treasury Fiscal Requirements Manual Bulletin, per annum, through the date of payment. Late payments and final payments shall include all accrued interest.

21. If all or part of the payment is overdue, EPA will impose a late-payment handling charge of $15, with an additional delinquent notice charge of $15 for each subsequent 30-day period. EPA will also apply a six percent (6%) per annum penalty on any principal amount not paid within ninety (90) days of the due date. Penalties under other federal statute for failure to make timely payment may also apply.

22. Failure by Respondent to pay the described amounts according to the terms of this Settlement Agreement and order, in full, by the due date, may subject Respondent to a civil action to collect the amounts described herein, including any fees, and interest described herein, plus all reasonable costs and expenses, including attorneys' fees, court costs, and other legal expenses incurred by the United State, pursuant to Section 309 (g) (9) of the Act, 33 U. S.,C. § 1319 (g) (9). In any such enforcement or collection action, neither the validity, amount, nor appropriateness of the settlement, nor the terms of this Settlement Agreement and Order, shall be subject to review.

V. GENERAL PROVISIONS

23. To execute this Agreement, Respondent shall forward two (2) copies of this Settlement
Agreement and Order, each with original signatures, to:

Ms. Darlene Whitten-Hill
Water Enforcement Branch (6W-EA)
U.S. EPA Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733

24. Issuance of this Order does not relieve Respondent from responsibility to comply with all requirements of the Act and the requirements of any permits issued thereunder, as described in Section 309 (g) (7) , 33 U. S. C. § 1319 (g) (7), nor does it constitute a waiver by EPA of its right to enforce compliance with the requirements of Respondent's permits or other requirements of the Act, except as to any requirement to pay any amount or perform any corrective action described herein for the violations alleged in the Complaint.

25. The provisions of this Settlement Agreement shall be binding upon Respondent, its officers, directors, agents, employees, successors and assignees.

26. Each party agrees to bear its own costs and attorneys fees in this matter, except to the extent that Respondent agrees herein to be responsible for reasonable costs and expenses of enforcement and collection proceedings for failure to comply with the terms of this Settlement Agreement and order.

VI. EFFECTIVE DATE

27. This Settlement Agreement and Order shall become effective on the date it is signed below by the Regional Administrator.

In recognition and acceptance of the foregoing:

Mr. Richard P. Cook
for Espanola Mercantile Company, Inc.
d.b.a. Espanola Transit Mix
Espanola, New Mexico

Myron O. Knudson, P.E.
Director, Water Management Division (6W)
EPA Region 6

Jane N. Saginaw
Regional Administrator (6A)
U.S. EPA Region 6

¹ Complainant's Response on the Merits to Respondent's Motion to Enforce Settlement Agreement, at 1. See also proposed agreements submitted by the parties.

² Complainant's Motion for Further Consideration, at 2-3.

³ 40 C.F.R. §§ 22.03, 22.03(a).

⁴ Respondent's version of the stipulations contains slightly different, but equally accurate and appropriate language. For instance, there is no why Respondent's language "and water quality standards" in stipulation 9 should not be used; in stipulation 11, Respondent proposes ". . . . NPDES permit for the discharges alleged to have come from the facility," while Complainant proposed . . . . NPDES permit for any discharges from the facility." Both are accurate, and both could be used since they are not inconsistent.

⁵ Complainant's Response on the Merits to Respondent's Motion to Enforce Settlement Agreement, at 9: Respondent's Reply to Response on the Merits to Motion to Enforce Settlement Agreement at 7-8; Complainant's Further Response to Respondent's Arguments in Favor of a Motion to Enforce Settlement Agreement, at 10-12.

⁶ But, see various circuit court decisions where Judge (now Justice) Scalia seemed to say that even where such interpretations are reasonable, if another interpretation seems more reasonable, the court may or will substitute it for the Agency's judgment. Before his elevation to the Circuit Court, Scalia was Chair of the Administrative Conference of the United States, and made a something of a specialty of administrative law.

⁷ Complainant states that following consideration of the parties' submissions, the parties "will then execute the selected document, and present it to the Court to resolve the case." Complainant's Third Request for Expedited Consideration, August 12, 1996.