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LAW OFFICE OF

DAVID A. LUDDER
A Professional Limited Liability Company

January 16, 2016

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Honorable Albert Lowe, Mayor


Town of Gordon
Post Office Box 46
Gordon, AL 36343

Re: Notice of Violation and Intent to File Suit under the Clean Water Act

Dear Mayor Lowe:

Pursuant to the Clean Water Act § 505, 33 U.S.C. § 1365, and 40 C.F.R. Part 135,
Subpart A, you are hereby notified that after the expiration of 60 days following service of this
notice, the Environmental Defense Alliance may file suit against the Town of Gordon for (1)
discharges of pollutants in violation of NPDES Permit No. AL0073202 issued by the Alabama
Department of Environmental Management pursuant to Alabama’s NPDES permit program
approved by the U.S. Environmental Protection Agency under Clean Water Act § 402(b), 33
U.S.C. § 1342(b); and (2) violations of requirements of Order No. 15-081-WP issued by the
Alabama Department of Environmental Management pursuant to Alabama’s NPDES permit
program approved by the U.S. Environmental Protection Agency under Clean Water Act §
402(b), 33 U.S.C. § 1342(b).

I. Violations of NPDES Permit No. AL0073202

Pursuant to § 402 of the Clean Water Act, 33 U.S.C. § 1342, the Alabama Department of
Environmental Management issued NPDES Permit No. AL0073202 authorizing the Town of
Gordon to discharge pollutants from the Town of Gordon Wastewater Treatment Plant, located
on Curtis Mixon Road in Gordon, Houston County, Alabama, into the Chattahoochee River at
approximately Latitude 31.14824E North and Longitude 85.07092E West, into the Chattahoochee
River subject to specific discharge limitations. The Town of Gordon has discharged pollutants
from Outfall 0011 into the Chattahoochee River in violation of the discharge limitations of
NPDES Permit No. AL0073202 from April 2012 through November 2015 as described in Tables
1 through 6 attached hereto. Additional violations may have occurred.

II. Violations of Order No. 15-081-WP

Pursuant to § 402 of the Clean Water Act, 33 U.S.C. § 1342, the Alabama Department of
Environmental Management issued Order No. 15-081-WP to the Town of Gordon on July 22,
2015 directing as follows:

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B. The [Town of Gordon] shall prepare and submit to the Department
an Engineering Report that addresses the need for changes in maintenance and
operating procedures, the potential for infiltration and inflow, the need for
modification of existing treatment and collection system works, and the need for
new or additional treatment and collection system works as necessary to achieve
compliance with applicable rules and regulations and permit conditions. The
Engineering Report must include a schedule for implementation (i.e., a
Compliance Plan) and cost of equipment and/or repairs needed to achieve
compliance, if known. The Engineering Report must include a plan for continued
maintenance and assessment of the collection system to minimize future
infiltration and inflow. The Engineering Report must be prepared by a
professional engineer licensed to practice in the State of Alabama. The
Engineering Report shall be submitted so that it is received by the Department no
later than ninety days after the date of issuance of this Order. * * *

C. The [Town of Gordon] shall prepare and submit detailed quarterly


Progress Reports to the Department describing the Permittee’s progress towards
achieving compliance wi th the items presented in the Compliance Plan, including
the cost of equipment and/or repairs needed to achieve compliance. The
Department must receive the Progress Reports no later than ninety days after the
date of issuance of this Order and continuing every ninety days thereafter that the
Permittee’s performance obligations under this Order remain incomplete. * * *

The Engineering Report and Quarterly Progress Report were each due to be submitted to the
Department on or before October 19, 2015. The Town of Gordon failed to submit the required
Engineering Report and Quarterly Progress Report as described in Table 7 attached hereto.

III. History of Previous Violations and Enforcement Actions

On June 15, 2005, the Alabama Department of Environmental Management issued a


Warning Letter (WL) to the Town of Gordon. The WL alleged violations of discharge
limitations in NPDES Permit No. AL0073202 for pH, BOD, Carbonaceous (CBOD), and Total
Suspended Solids (TSS) during the month of April 2005.

On November 30, 2005, the Alabama Department of Environmental Management issued


a Notice of Violation (NOV) to the Town of Gordon. The NOV alleged violations of discharge
limitations in NPDES Permit No. AL0073202 for CBOD during the months of December 2003
and February 2004; TSS during the months of January, February, September, November and
December, 2004; TSS during the months of January, June and August, 2005; pH during the
months of September through November, June, and July, 2005.

On September 26, 2006, the Alabama Department of Environmental Management issued


Consent Order No. 06-099-CWP to the Town of Gordon. The Order alleged violations of

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discharge limitations in NPDES Permit No. AL007320 for TSS, Fecal Coliform, and pH. The
Order assessed a civil penalty of $2,600; required the submission of an engineering report,
including a compliance plan, within 90 days; required the submission of semi-annual progress
reports; and required compliance with all discharge limitations within 365 days.

On February 9, 2007, the Alabama Department of Environmental Management issued a


WL to the Town of Gordon. The WL alleged that the Town of Gordon failed to submit the
engineering report, including compliance plan, required by Consent Order No. 06-099-CWP.

On June 6, 2007, Alabama Department of Environmental Management issued a NOV to


the Town of Gordon. The NOV alleged that the Town of Gordon failed to submit the
engineering report, including compliance plan, required by Consent Order No. 06-099-CWP.

On August 10, 2007, the Alabama Department of Environmental Management issued a


WL to the Town of Gordon. The WL alleged that the Town of Gordon failed to submit a
progress report required by Consent Order No. 06-099-CWP.

On April 5, 2013, the Alabama Department of Environmental Management issued a WL


to the Town of Gordon. The WL alleged violations of discharge limitations in NPDES Permit
No. AL0073202 for CBOD during the months of April 2012 and January 2013; TSS during the
months of April, October, and November, 2012; TSS during January 2013; and pH during the
month of January 2013.

On January 16, 2014, the Alabama Department of Environmental Management issued a


NOV to the Town of Gordon. The NOV alleged violations of discharge limitations in NPDES
Permit No. AL0073202 for CBOD for the months of April 2012; CBOD for the months of
January, April, May, July and September 2013; TSS for the months of April, October and
November 2012; TSS for the months of January and July 2013; and pH for the months of
January, May, June, July, August and September, 2013.

On July 22, 2015, Alabama Department of Environmental Management issued Order No.
15-081-WP to the Town of Gordon. The Order alleged violations of discharge limitations in
NPDES Permit No. AL0073202 for CBOD for the months of April, May, July, September
through November, 2013; CBOD for the months of January through July and September through
November, 2014; TSS for the months of July through September and November, 2013; TSS for
the months of April through November 2014; pH for the months of May through July, 2013; pH
for the months of March, April and October, 2014; and dissolved oxygen the month of October
2013. In addition to these effluent violations, the Order alleged failure to submit Notice of
Noncompliance forms (NCFs) and failure to submit complete NCFs. The Department
determined that no civil penalty would be assessed because the Town of Gordon does not have
the ability to pay a civil penalty. Order No. 15-081-WP directed that an engineering report be
submitted within 90 days and that quarterly progress reports be submitted every 90 days.

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IV. Sanctions

The Court may assess civil penalties of up to $37,500 per violation. Each day a violation
continues is a separate violation. Violations of monthly average limits and weekly average limits
are counted as violations for each day of the month and each day of the week, respectively. See
Atlantic States Legal Found. Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir. 1990). In
addition, the Court may award litigation expenses and attorney fees. Suit may be avoided if the
violations alleged herein have been permanently abated before the expiration of sixty (60) days
following the date of this notice. Please advise the undersigned of any measures that you may
undertake which you contend have permanently abated these violations before suit is filed.

Sincerely,

David A. Ludder
Attorney for
Environmental Defense Alliance

cc:

Hon. Gina McCarthy, Administrator


U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Hon. Heather McTeer Toney, Regional Administrator


U.S. Environmental Protection Agency-Region 4
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303-3104

Hon. Lance LeFleur, Director


Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, Alabama 36130-1463

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TABLE 1
MONTHLY AVERAGE PERCENT REMOVAL OF CARBONACEOUS BIOCHEMICAL
OXYGEN DEMAND (5-day) IN EFFLUENT DISCHARGED FROM OUTFALL 0011
Monitoring Period Discharge Limit Measured Value Violation Days
Nov 2015 ≥85% 81.9% 30
Oct 2015 ≥85% 84.4% 31
Sep 2015 ≥85% 72.8% 30
Jul 2015 ≥85% 55.3% 31
Jun 2015 ≥85% 78.0% 30
May 2015 ≥85% 68.0% 31
Apr 2015 ≥85% 78.2% 30
Jan 2015 ≥85% 84.3% 31
Nov 2014 ≥85% 79.6% 30
Oct 2014 ≥85% 82.2% 31
Sep 2014 ≥85% 82.2% 30
Jul 2014 ≥85% 58.5% 31
Jun 2014 ≥85% 65.4% 30
May 2014 ≥85% 84.3% 31
Apr 2014 ≥85% 55.3% 30
Mar 2014 ≥85% 66.4% 31
Feb 2014 ≥85% 76.3% 28
Jan 2014 ≥85% 76.3% 31
Nov 2013 ≥85% 66.3% 30
Oct 2013 ≥85% 82.9% 31
Sep 2013 ≥85% 78.6% 30
Jul 2013 ≥85% 66.8% 31
May 2013 ≥85% 79.2% 31
Apr 2013 ≥85% 58.7% 30
Jan 2013 ≥85% 82.5% 31
Apr 2012 ≥85% 84.9% 30
SUBTOTAL 791
TABLE 2
MONTHLY AVERAGE PERCENT REMOVAL OF TOTAL SUSPENDED SOLIDS IN
Monitoring Period Discharge Limit Measured Value Violation Days
Nov 2015 ≥65% 31.8% 30
Oct 2015 ≥65% 28.8% 31
Sep 2015 ≥65% 0.0% 30
Jul 2015 ≥65% 0.0% 31
Jun 2015 ≥65% 0.3% 30
May 2015 ≥65% 21.2% 31
Apr 2015 ≥65% 55.1% 30
Mar 2015 ≥65% 56.3% 31
Nov 2014 ≥65% 30.7% 30
Oct 2014 ≥65% 20.9% 31
Sep 2014 ≥65% 20.9% 30
Aug 2014 ≥65% 53.8% 31
Jul 2014 ≥65% 7.7% 31
May 2014 ≥65% 58.3% 31
Apr 2014 ≥65% 0.0% 30
Mar 2014 ≥65% 33.9% 31
Nov 2013 ≥65% 58.4% 30
Sep 2013 ≥65% 60.1% 30
Aug 2013 ≥65% 51.7% 31
Jan 2013 ≥65% 60.2% 31
Nov 2012 ≥65% 63.4% 30
Oct 2012 ≥65% 7.8% 31
Apr 2012 ≥65% 52.3% 30
SUBTOTAL 702
TABLE 3
DAILY MAXIMUM pH IN EFFLUENT DISCHARGED FROM OUTFALL 0011
Monitoring Period Discharge Limit Measured Value Violation Days
Nov 2015 ≤9.0 S.U. 10.0 S.U. 1
Oct 2015 ≤9.0 S.U. 9.6 S.U. 1
Sep 2015 ≤9.0 S.U. 10.0 S.U. 1
Aug 2015 ≤9.0 S.U. 9.4 S.U. 1
Jun 2015 ≤9.0 S.U. 9.7 S.U. 1
May 2015 ≤9.0 S.U. 9.4 S.U. 1
Apr 2015 ≤9.0 S.U. 9.8 S.U. 1
Jan 2015 ≤9.0 S.U. 9.1 S.U. 1
Oct 2014 ≤9.0 S.U. 9.9 S.U. 1
Apr 2014 ≤9.0 S.U. 10.0 S.U. 1
Apr 2014 ≤9.0 S.U. 10.3 S.U. 1
Mar 2014 ≤9.0 S.U. 9.8 S.U. 1
Jul 2013 ≤9.0 S.U. 9.2 S.U. 1
Jun 2013 ≤9.0 S.U. 10.2 S.U. 1
May 2013 ≤9.0 S.U. 9.3 S.U. 1
Jan 2013 ≤9.0 S.U. 9.3 S.U. 1
SUBTOTAL 16

TABLE 4
WEEKLY AVERAGE CONCENTRATION OF CARBONACEOUS BIOCHEMICAL OXYGEN
Monitoring Period Discharge Limit Measured Value Violation Days
Mar 2014 ≤37.5 mg/L 39.3 mg/L 7
SUBTOTAL 7

TABLE 5
MONTHLY AVERAGE CONCENTRATION OF CARBONACEOUS BIOCHEMICAL OXYGEN
Monitoring Period Discharge Limit Measured Value Violation Days
Mar 2014 ≤25 mg/L 27.4 mg/L 31
Jan 2013 ≤25 mg/L 29.5 mg/L 31
SUBTOTAL 62

Table 6
DAILY MINIMUM CONCENTRATION OF DISSOLVED OXYGEN IN EFFLUENT
DISCHARGED FROM OUTFALL 0011
Monitoring Period Discharge Limit Measured Value Violation Days
Oct 2013 ≥ 5.0 mg/L 3.9 mg/L 1
SUBTOTAL 1
Table 7
VIOLATIONS OF ORDER NO. 15-081-WP
Requirement Status Violation Days
Submit Engineering Report not later than
Report not submitted 89
October 19, 2015
Submit Quarterly Progress Report not later
Report not submitted 89
than October 19, 2015
SUBTOTAL 178

TOTAL VIOLATION DAYS 1,757