Sludge Watch ==> Maryland - Waste water treatment plant fined over sludge storage

[maureen.reilly at sympatico.ca]

Sludgewatch Admin

Looks like Salisbury continues to be in sludge trouble....a few years back 
they were hit with $16000 in fines for issues related to the heavy metal 
limits for arsenic and selenium (what is being grown in those fields now, I 
wonder...?  Where IS that food labelling bill...?)

42 counts! And now this problem...

See the EPA Initial Decision below this story...or for a better format see 
it at:
http://www.epa.gov/aljhomep/orders/salisbu2.pdf




.........................................................
Daily Times
Salisbury, Maryland

May 20, 2006 Saturday

Waste water treatment plant fine


By Monique Lewis
Staff Writer

SALISBURY -- The Maryland Department of the Environment issued an 
administrative order, complaint and $25,000 penalty to the city Friday in 
response to violations at the Salisbury Wastewater Treatment Plant.
The complaint alleges that the city violated state water pollution control 
laws and failed to comply with the re-quirements of its National Pollutant 
Discharge Elimination System Permit and its state wastewater discharge 
permit from September 2005 through January.

The violations include improper storage of dewatered sludge and storage of 
liquid sludge in a biosolids lagoon at the plant, which resulted in the 
placement of pollutants in a position likely to discharge to the Wicomico 
River.

"These are serious violations of Maryland's water pollution control laws and 
we must act now to protect the Wicomico River, which leads to the Chesapeake 
Bay," said MDE Secretary Kendl P. Philbrick.

Joe Albero, of Delmar, spurred the investigation when he snapped several 
pictures of the plant on Feb. 9 and 10 and submitted some to MDE.

Mayor Barrie Parsons Tilghman said she wants to work with MDE but is also 
frustrated.
"I'm more than a little disappointed that this sludge lagoon has been there 
for many years before John Jacobs became the city public works director and 
I the mayor," she said.
MDE's inspection report on Feb. 22 stated that MDE approved the lagoon in 
1987 and 1989. However, the records did not show approval for the sludge 
application after the 1989 permit, which expired Dec. 6, 1992. City Public 
Works Superinten-dent Dave Winslow presented another MDE document that 
approved the lagoon June 19, 1996.

"We're certainly going to remove the lagoon," Tilghman said. "We certainly 
didn't hide it. The problem is that you have to pay (the fine) and it's 
expensive to remove the sludge lagoon."
Tilghman said the city may appeal.

"The mayor said at a previous public City Council meeting that my pictures 
were absolutely useless -- they had no credibility whatsoever," Albero said. 
"Now I've been vindicated."

* Reach Monique Lewis
at 410-845-4656 or
mlewis at salisbury.gannett.com

..........................................................
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http://www.epa.gov/aljhomep/orders/salisbu2.pdf

Page 1
UNITED STATESENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATORIN THE MATTER OF:))CITY OF SALISBURY, 
MARYLAND)DOCKET No. CWA-III-219)Respondent)INITIAL DECISIONDATED: February 
8, 2000CWA: Pursuant to Section 309(g) of the Clean Water Act, 33 U.S.C. § 
1319(g), Respondent theCity of Salisbury, Maryland, is assessed a penalty of 
$16,000.00 for 42 violations arising from itsfailure to monitor its sludge 
for arsenic and selenium in the first quarter of 1996 in violation of 
40C.F.R. §§ 503.16 and 503.17; failure to report 1996 pollutant 
concentration data in violation of40 C.F.R. § 503.18; and for land applying 
sludge in 1996 and 1997 containing pollutants in excessof the concentration 
ceilings in violation of 40 C.F.R.§ 503.13.PRESIDING OFFICER: CHIEF 
ADMINISTRATIVE LAW JUDGE SUSAN L. BIRO APPEARANCES:For Complainant:Kerry 
Nelson, EsquireAssistant Regional CounselU.S. EPA Region III1650 Arch 
StreetPhiladelphia, PA. 19103-2029For Respondent:F. Paul Calamita, 
EsquireMcGuire, Woods, Battle & Boothe, L.L.P.One James Center901 East Cary 
StreetRichmond, Virginia 23219-4030
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2I. PROCEDURAL HISTORYOn July 15, 1998, Complainant initiated this 
administrative proceeding pursuant to Section309(g) of the Clean Water Act 
("CWA"), 33 U.S.C. § 1319(g). Respondent, the City ofSalisbury, Maryland, 
owns and operates a publicly owned treatment works ("POTW") inSalisbury that 
treats domestic sewage. The Complaint charges Respondent, in one 
undesignatedcount, with forty-two (42) violations of the sludge regulating 
provisions of CWA § 405 (33U.S.C. § 1345), and its implementing regulations 
codified at 40 C.F.R. § 503. Complainant seeksassessment of an aggregated 
penalty in the amount of $16,000. Section 405(d)(1) of the CWA directs the 
Administrator to issue "regulations providingguidelines for the disposal of 
sludge and the utilization of sludge for various purposes.” 33U.S.C. § 
1345(d)(1). The regulations governing the use or disposal of sewage sludge 
are foundat 40 C.F.R. § 503 and impose upon persons engaging in use or 
disposal of sewage sludgespecific requirements.

The Complaint charges Respondent with violating the sludge 
regulatoryrequirements governing: (a) monitoring under 40 C.F.R. §§ 
503.16/503.17; (b) data reportingunder 40 C.F.R. § 503.18; and (c) pollutant 
concentration ceilings under 40 C.F.R. 503.13. By Motion filed May 21, 1999, 
Complainant moved for accelerated decision on the issueof liability only, 
for each of the three types of violations described in the Complaint. 
Respondentvigorously opposed Complainant’s Motion as to the data reporting 
and pollution concentrationceiling violations, but conceded liability as to 
the monitoring violations. In an Order issued July30, 1999, it was held that 
the undisputed facts established Respondent’s liability for the alleged
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1Specifically, Respondent was found liable for failing to monitor for 
arsenic and seleniumin the first quarter of 1996 in violation of 40 C.F.R.§§ 
503.16 and 503.17, and for failing in 13instances to report sludge 
monitoring data collected in 1996 on its 1996 sludge DischargeMonitoring 
Report (DMR) in violation of 40 C.F.R. § 503.18. Unfortunately, the 
Ordermisstated the number of alleged violations as “24," rather than 
“42.”2Mr. Elliott was not named as a witness in Complainant’s initial or 
rebuttal prehearingexchange. He was added as a witness pursuant to an Order, 
issued August 27, 1999, grantingComplainant’s Motion to Supplement its 
Prehearing Exchange, filed August 17, 1999. Complainant moved to add Mr. 
Elliott as a witness in response to statements attributed to him inan August 
3, 1999 article in the Salisbury Daily Times. In fairness to Respondent, the 
Order3violations of 40 C.F.R. § 503.16 (monitoring) and 40 C.F.R. § 503.18 
(data reporting).1TheOrder further held that Respondent had raised genuine 
issues of material fact as to its allegedviolations of 40 C.F.R. § 503.13 
(pollutant ceiling concentrations) and Complainant’s Motion wasdenied as to 
those violations. On August, 4, 1999, subsequent to this tribunal’s Order on 
Complainant’s Motion forAccelerated Decision, Respondent filed a Motion for 
Reconsideration of those elements of theOrder granting accelerated decision 
to Complainant. Respondent argued that the part 503regulations were not 
applicable to Respondent when the violations alleged in the 
Complaintoccurred. Respondent’s Motion for Reconsideration was denied in an 
Order issued August 23,1999. The Order on accelerated decision left two 
issues to be resolved at hearing: (1) whetherRespondent land applied sludge 
that contained pollutant concentrations in excess of those allowedunder 40 
C.F.R. § 503.13; and (2) the appropriate penalty to be assessed for 
Respondent’sviolations.At the hearing, Complainant called three witnesses in 
presenting its case in chief: LisaPacera, an environmental scientist and 
enforcement officer in EPA Region 3; Wilmer Elliott,2the
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granting Complainant’s Motion provided Respondent the opportunity to 
supplement itsprehearing exchange in order to rebut any anticipated 
testimony by Mr. Elliott. Respondentavailed itself of this opportunity, 
filing a supplemental prehearing exchange on September 3, 1999.3A “treatment 
works” is a facility which treats waste water by various methods, 
includingthickening, stabilizing, dewatering, in preparation for its 
disposal back into waterways, or its finaluse, i.e., by being applied to 
land as a fertilizer. “Sewage sludge” is the solid/liquid residuegenerated 
during the treatment of sewage. Waste water is treated in order to reduce 
and/orcontrol the levels of pollutants returned to navigable waters so as to 
maintain the quality of thewater. See, CWA §§ 201(b), 212(2)(A); 40 C.F.R. § 
503.9(aa) and (w). 4director of public works for the City of Salisbury; and 
Dr. Alan Rubin, a senior scientist at EPAresponsible for developing, 
maintaining and amending the EPA’s sludge regulations. Complainantalso 
presented two rebuttal witnesses, Robin Costas, a chemist in EPA Region 3, 
and YvonneCiccone, a chemical engineer with Science Applications 
International Corporation. Complainantidentified 32 exhibits at hearing, 
numbers 1 through 27 of which were received into evidence. Respondent called 
four witnesses at the hearing: Robert Bastian, senior environmentalscientist 
in EPA’s office of wastewater management; David Winslow, superintendent of 
theSalisbury POTW; Alan Porianda, solids manager at the Salisbury POTW; and 
Clyde Wilber,member of a private engineering firm who assists municipalities 
with water and wastewaterprograms. Respondent identified 33 exhibits at 
hearing, 30 of which were received into evidence.II. RESPONDENT’S LIABILITY 
FOR VIOLATIONS OF 40 C.F.R. § 503.13DUE TO LAND APPLICATION OF SLUDGE 
CONTAINING POLLUTANTS ABOVECEILING CONCENTRATIONSAs established in the 
previously issued Order on Complainant’s Motion for AcceleratedDecision, 
Respondent, in its capacity as owner and operator of a publicly owned 
treatment works(“POTW”), generates sewage sludge during the treatment of 
domestic sewage.3Respondent’s
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4Table 1 of 40 C.F.R. § 503.13 establishes the following pollutant ceiling 
concentrationsmeasured in milligrams per kilogram: Arsenic75 mg/kgCadmium85 
mg/kgMolybdenum 75 mg/kgNickel420 mg/kg5POTW has a design flow capacity of 
one million gallons per day and is required to maintain anapproved 
pretreatment program. In the years 1996 and 1997, Respondent applied to land 
335.84and 490.02 metric tons of sewage sludge, respectively. Respondent, 
therefore, was subject to therequirements of 40 C.F.R. §§ 503.13, 503.16 and 
503.18 at all times relevant to the charges inthis proceeding.Under 40 
C.F.R. § 503 land application of sewage sludge is prohibited “if 
theconcentration of any pollutant in the sewage sludge exceeds the ceiling 
concentration for thepollutant in Table 1 of § 503.13." Table 1 of part 503 
lists ceiling concentrations for ninepollutants including arsenic, cadmium, 
molybdenum and nickel, the four pollutants at issue in thisproceeding.4See, 
40 C.F.R. § 503.10 (40 C.F.R. Part 503 Subpart B “applies to any person 
whoprepares sewage sludge that is applied to the land [and] to any person 
who applies sewage sludgeto the land . . .”). The applicable burden of proof 
to establish liability is set forth in the Consolidated Rulesof Practice, 40 
C.F.R. Part 22, as amended, 64 Fed. Reg. 40176 (July 23, 1999), at § 22.24 
asfollows:(a) The complainant has the burdens of presentation and persuasion 
that theviolation occurred as set forth in the complaint . . . . Following 
complainant’sestablishment of a prima facie case, respondent shall have the 
burden of presentingany defense to the allegations set forth in the 
complaint . . . .
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5CWA § 308 (33 U.S.C. § 1318) authorizes the EPA Administrator to request 
owners oroperators of point sources of pollution, such as POTWs, to provide 
information necessary tocarry out the purposes of CWA § 405. 6The respondent 
has the burdens of presentation and persuasion for any affirmative defenses. 
(b) Each matter of controversy shall be decided by the Presiding Officer 
upon apreponderance of the evidence.Complainant asserts that Respondent’s 
liability is clearly established by the admissionsRespondent made in the 
quarterly Discharge Monitoring Reports (DMRs) it submitted as well asthe 
admissions the Respondent made in its response to a CWA § 308 letter5(“308 
Response”)issued to it by Complainant. Lisa Pacera testified that she 
reviewed these documents in the courseof her investigation of Respondent’s 
sludge land application program and found the violationswhich were 
subsequently alleged in the Complaint. Ms. Pacera’s examination of 
Respondent’s1996 and 1997 sludge DMRs revealed that Respondent reported that 
a sludge sample taken onApril 19, 1996 contained a concentration of 97 mg/kg 
of arsenic (Tr. 36), where the threshold is75 mg/kg, and that a sludge 
sample taken on March 18, 1997 showed concentrations of 370mg/kg of cadmium 
and 1100 mg/kg of nickel (Tr. 41-42), when the thresholds for 
thosepollutants is 85 mg/kg and 420 mg/kg, respectively. See also, 
Complainant’s Exhibits (“CX”) 2and 3 (DMRs for 1996 and 1997). Ms. Pacera 
further testified that information provided inRespondent’s 308 Response 
established the dates on which the sludge sampled on April 19, 1996and March 
18, 1997 was applied to land. Tr. 44-46. Specifically, the sludge sampled 
April 19,1996 was applied to land on April 19, May 2 and May 15, 1996, and 
the sludge sampled onMarch 18, 1997 was applied to land on March 18 and 24 
and April 7-9, 1997. CX 5 (308
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6Due to a scriveners’s error, the additional land application date of July 
17, 1996 wasinadvertently was omitted from the Accelerated 
Decision.7Response).Ms. Pacera’s examination of Respondent’s 308 Response 
also revealed a concentration of2100 mg/kg of nickel in a sludge sample 
taken on June 25, 1996 from Respondent’s facility(where the threshold is 420 
mg/kg) (Tr. 38), and a concentration of 150 mg/kg of molybdenum ina sample 
taken August 26, 1996 (where the threshold is 75 mg/kg) (Tr. 40). CX 5. Ms. 
Paceratestified further that the 308 Response showed that the sludge sampled 
June 25, 1996 and August26, 1996 was applied to land. Tr. 44-46. 
Specifically, the sludge sampled on June 25, 1996 wasapplied to land June 26 
and 27 and July 2, 8-11, 17, 18 and 22, 1996, and the sludge sampledAugust 
26, 1996 was applied to land on August 26, September 20, 23 and 24, 1996. 
6Respondent’s DMRs for 1996 and 1997, and its 308 Response are reports 
required by lawand as such “may be used to establish a [respondent’s] 
liability.” Sierra Club v. Simkins Inds.,Inc., 847 F.2d 1109, 1115, n. 8 
(4thCir. 1988), cert. denied, 491 U.S. 904 (1989); ChesapeakeBay Foundation 
v. Bethlehem Steel Corp., 608 F. Supp. 440, 451 (D. Md. 1985); Public 
InterestResearch Group of New Jersey v. Yates Industries, Inc., 757 F. Supp. 
438, 447 (D.N.J. 1991), onreconsideration, 1993 WL 118195 (D.N.J. April 12, 
1993)(DMRs may be deemed admissionswhen establishing liability in summary 
judgment motions); see also U.S. v. Ward, 448 U.S. 242(1982). The DMR 
reports must be signed, and Respondent’s DMRs were signed, with thefollowing 
certification: I certify under penalty of law that I have personally 
examined and am familiar withthe information submitted herein; and based on 
my inquiry of those individuals
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8immediately responsible for obtaining the information, I believe that the 
submittedinformation is true, accurate and complete. I am aware that there 
are significantpenalties for submitting false information , including the 
possibility of fine andimprisonment. * * * (emphasis added). CX 2, 3. 
Respondent argues that the signed certification was “qualified” or 
conditional, due to thecomments on the DMRs and attachments thereto and, 
therefore, the DMRs cannot be used asadmissions to show that exceedances 
occurred. Respondent’s Post-Hearing Brief at 4-5. Specifically, Respondent 
stated in the “Comments” section of the DMRs at issue that reportedlevels of 
arsenic, nickel and cadmium are “uncharacteristic” or “atypical” of 
Respondent’s sludge(CX 2, 3), and explained in a cover letter that 
Respondent believed that the level of arsenic wasdue to either a 
contaminated sample or analysis interference. RX 14. However, data reported 
onDMRs may be deemed admissions of liability even where the DMRs are 
submitted with commentsdisputing the accuracy of the reports. Yates 
Industries, 757 F. Supp. at 447 (Liability establishedfor exceedances 
reported on DMRs where DMR cover letters stated that the data reported 
arebelieved to be a “bad sample,” “mistakenly switched or 
cross-contaminated”). Moreover, relianceon DMRs “to establish liability is 
consistent with the legislative history and avowed policy of the[CWA].” 
Chesapeake Bay Foundation v. Bethlehem Steel, 608 F. Supp. at 451-52. 
Quotinglegislative history, the District Court stated, The discussion in 
Congress regarding monitoring and enforcement reveals thatCongress intended 
to keep enforcement actions simple and speedy. Monitoring andreporting 
requirements were added because of a recognized need to obtainaccurate 
information and were designed to be enforceable. . . . “One purpose ofthese 
requirements is to avoid the necessity of lengthy fact-finding, 
investigations,and negotiations at the time of enforcement. Enforcement of 
violations ofrequirements of this Act should be based on relatively narrow 
fact situationsrequiring a minimum of discretionary decision making or 
delay. . . . the factualbasis for enforcement of requirements would be 
available at the time enforcementis sought, and the issue before the courts 
would be a factual one of whether there
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9had been compliance.” S. Rep. No. 92-414, 92ndCong. 2d Sess., reprinted in 
1972U.S. Code Cong. & Ad. News 3745, 3746. Id.If enforcement of exceedances 
of pollutant limits could be avoided by merely “qualifying” thecertification 
on the DMR, then the intent of Congress of streamlined enforcement would 
beseverely frustrated. Moreover, the availability of “qualifying” the 
certification would render it anullity, and would create the perverse result 
of rewarding sloppy laboratory practices. Respondent argues further that the 
“qualified” analytical results may establish a primafacie case of failure to 
monitor rather than of land applying sewage sludge which exceedsregulatory 
limits of pollutants, because Respondent merely failed to appropriately 
certify thevalidity of the sampling data at issue. However, Federal case law 
supports a finding of liabilityfor a monitoring violation rather than for a 
discharge violation only where laboratory error hasbeen shown, by sufficient 
credible evidence. PIRG of New Jersey v. Elf Atochem North America,Inc., 817 
F.Supp. 1164, 1179, 1180 (D. N.J. 1993). The sufficiency of Respondent’s 
evidence isdiscussed below. Thus, by presenting Respondent’s DMRs and 308 
Response, Complainant has carried itsburden of coming forward with evidence 
that Respondent land applied sludge containingconcentrations of pollutants 
in excess of the regulatory limits in violation of 40 C.F.R. § 503.13. With 
Complainant having established its prima facie case, the burden shifts to 
Respondentto rebut that evidence by showing that the sludge it applied to 
land on the dates detailed in theComplaint did not, in fact, contain 
concentrations of pollutants in excess of the regulatory ceilingsfound in 
table 1 of part 503.13. Respondent maintains that it has carried its burden 
by presentingevidence at the hearing demonstrating that the lab results 
reported from the four sampling dates in
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10question showing the exceedance levels were incorrect, and argues, 
therefore, a priori, that thesludge it applied to land on the dates listed 
in the Complaint did not contain pollutants in excess ofregulatory limits. 
Respondent offers several arguments as to why the lab results in question 
must be wrong. As a preliminary matter, Respondent seeks to show that as a 
result of the various processesinvolved in generating, storing and dredging 
sludge, the sludge in its lagoons is homogeneous. The process by which 
sludge is generated begins when solids are thickened and filtered out of 
theplant’s wastewater, after which they are pumped to an anaerobic digester. 
Tr. 409-11. At alltimes relevant hereto, Respondent had two 400,000 gallons 
capacity digesters operating at itssludge plant. The digesters contain 
organisms that feed on, and thereby break down, the organicmatter in the 
sludge. Tr. 411. Mr. Winslow testified that as the sludge is processed in 
thedigesters it is completely mixed. Tr. 414-15. The nearly “complete mix” 
provided by thedigesters has been verified by taking samples every ten feet 
to the bottom of the digester, Mr.Winslow stated. Tr. 415. Once the sludge 
has passed through the digesters it goes to a holding tank and is thenpumped 
once a week into lagoons where it is stored until it is removed for land 
application. Tr.412. The process of adding sludge to the lagoons causes more 
mixing, Respondent maintains,because the sludge is pumped into the lagoons 
through several pipes in the bottoms of thelagoons. Tr. 427 (Winslow). When 
this is done the added sludge can be seen coming up from thebottom and 
spreading across the top of the lagoons. Tr. 427-28 (Winslow), 598-601 
(Porianda). In the lagoons further mixing occurs, according to Respondent. 
First, wind acts on the
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11lagoons, which are above ground, churning up and moving around the top 
layer of sludge. Tr.424-27 (Winslow), 602-605 (Porianda), 964 (Wilber). 
Second, the dredge, which pumps sludgefrom the lagoons into tanker trucks 
for land application, makes a track several feet wide byseveral feet deep as 
it moves across the lagoon, which the remaining sludge fills in as the 
dredgepasses. Tr. 427-30 (Winslow), 611 (Porianda). Third, as the sludge 
sits in the lagoon, additionalanaerobic activity occurs, causing further 
mixing as the gases created by the biological action ofthe bacteria bubble 
to the surface. Tr. 607 (Porianda). All of this yields a lagoon of sludge 
that isthoroughly mixed and homogeneous, Respondent asserts. Tr. 517, 651 
(Porianda), 970 (Wilber). Respondent represents that in a homogeneous lagoon 
any metals present should be moreor less evenly distributed and therefore 
should show up consistently in any samples, yet this is notthe case with 
Respondent’s sample results. That Respondent’s historical results, as well 
as resultsobtained from resampling, do not show levels of metals approaching 
those found in the samplesfrom the four dates listed in the Complaint is 
reason to question them, Respondent contends. Mr.Wilber characterized the 
sampling results detailed in the Complaint as “outliers.” Tr. 931-32. 
“Outlier” is a statistical concept that describes a data point that does not 
fit with the rest of a dataset, being either much higher or much lower than 
the majority of the data points in that set. Outliers may be the result of 
lab error, sampling error, administrative error or they may not be theresult 
of any error, but in fact represent correct data. Id. Mr. Wilber testified 
that in his opinion,and employing EPA guidance in comparing the results at 
issue with the rest of the sludge datacollected by Respondent between 1993 
and 1997, the data points that are the focus of this caseare far from the 
norms indicated by Respondent’s data set and thus are outliers. Tr. 941-44, 
949.
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12Where such outliers are encountered, Mr. Wilber testified, the next step 
is to examine thesample test results in the context of other indicators of 
lab test reliability including whether therewas digester inhibition, whether 
there were any subsequent tests done on the sludge, and thequality assurance 
and quality control (“QAQC”) procedures and data from the lab performing 
thetests. Tr. 944-45. Respondent contends that an examination of available 
information on theseother factors leads to the inescapable conclusion that 
the arsenic, nickel, cadmium andmolybdenum results referenced in the 
Complaint do not represent true data, but rather are theresult of lab error. 
The absence of digester inhibition between 1996 and mid 1997 is one 
indicator that thetests results at issue here were erroneous, Respondent 
argues. Digester inhibition occurs whenthe living organisms in the digester 
are exposed to substances that are toxic to them, like themetals involved 
here, causing the organisms to die and the digester either to work at a 
slower rateor to shut down altogether, depending on the amount of toxins to 
which it is exposed.Respondent points to Mr. Wilber’s conclusions, based on 
his analysis of digester inhibition levels,that the level of arsenic found 
in the April 19, 1996 sample, and the level of nickel found in theJune 25, 
1996 sample, which is twelve times the inhibition level, could not have been 
correct asthe levels found would have caused inhibition. Tr. 975, 982. The 
level of cadmium found in theMarch 18, 1997 sample would likely not on its 
own have caused inhibition but in combinationwith the level of nickel found 
in the same sample, which was seven times the inhibition level,inhibition 
would have occurred. Tr. 976, 1165. In reaching his conclusions Mr. Wilber 
used the
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7Respondent’s Exhibit 7 presents the following list of digester inhibition 
levels, asmeasured in milligrams per liter (“mg/l”), from the Water 
Pollution Control Federation (Tr.1059):Nickel – 2 mg/l soluble; 10 mg/l 
totalArsenic – 1.6 mg/l solubleCadmium – 0.02 mg/l soluble or less than 20 
mg/l total.These numbers are the same as those found in EPA’s “Prelim” 
program according to Mr. Wilber. Tr. 954, 1054. The “Prelim” program is a 
computer program or guidance document fordetermination of whether to impose 
local limits on industries to prevent toxins from impacting awastewater 
treatment plant. Tr. 954-955. The value for soluble nickel is the same as 
that statedin EPA’s 1979 Process Design Manual for Sludge Treatment and 
Disposal. CX 32. 8As for molybdenum, which has no known inhibition level, 
Mr. Wilber testified that eitherthe test finding high levels had to be wrong 
or the test finding low levels had to be wrong; bothcould not be correct. 
Tr. 1041-42. 9Respondent makes the following representations as to follow-up 
sample results and changes in the sampled lagoons between the original 
sample date and the follow-up sample date:1) The lagoon that showed an 
arsenic exceedance on April 19, 1996 wasresampled on June 24, 1996 and 
showed a nondetectible amount of arsenic; and that13digester inhibition 
figures found in Respondent’s Exhibit (RX) 77, and made certain 
conservativeassumptions about how the metals entered the digesters and the 
amount of sludge mixing thatoccurred. Tr. 1163. Respondent states that 
despite the levels of metals reported fromRespondent’s contract lab, CT & E 
Environmental Services Incorporated (“CT & E”),Respondent had no documented 
difficulties with its digesters due to high levels of metals in 1996or 
1997.8Tr. 417-18 (Winslow). This is proof that the results returned by CT&E 
must bewrong, Respondent asserts. This conclusion is buttressed, Respondent 
argues, by results from subsequent sampling ofits lagoons. These later 
samples did not contain metals in amounts that the results from the 
foursamples at issue here would suggest, Respondent maintains.9Mr. Wilber 
testified that based on
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between April 19 and June 24, 1996, only 130,000 gallons, or 7% of the total 
volume, wasremoved.2) The lagoon that showed a nickel exceedance on June 25, 
1996 was resampledon October 22, 1996 and showed a nondetectible amount of 
nickel; and that between June25 and October 22, 1996, only 365,000 gallons, 
or approximately 17% of the totalvolume, was removed.3) The lagoon that 
showed a molybdenum exceedance on August 26, 1996 wasresampled on May 18, 
1998 and showed a concentration of 5.84 mg/kg of molybdenum;and that between 
August 26, 1996 and May 18, 1998, only 115,000 gallons, orapproximately 6% 
of the total volume, was removed. 4) The lagoon that showed cadmium and 
nickel exceedances on March 18, 1997was resampled on April 9, 1997, and 
showed nondetectible amounts of those pollutants;and that between March 18 
and April 9, 1997, only 80,000 gallons, or approximately 4%of the total 
volume, was removed.RX 8 and 9.14his calculations, which included an 
assumption that the lagoon was more or less completelymixed, the nickel 
resample value from the lagoon that produced the 2100 mg/kg result 
shouldhave been approximately 700 mg/kg, not non-detect. Tr. 986. Mr. Wilber 
also testified that if thesampling results at issue were correct, his 
calculations for the resample results from the lagoonyielding the cadmium 
and second nickel exceedance, as well as the lagoons yielding the arsenicand 
molybdenum exceedances, should have shown higher levels of these metals. Tr. 
988-89. Moreover, the resample results were in keeping with the historical 
results of its sludgesampling, and these historical results show a low 
degree of variation, Respondent represents. Tr.1050. The relatively large 
number of sampling events also indicates, in Mr. Wilber’s opinion, thatany 
“hot spots,” or areas with high concentrations of metals in the lagoons, 
would have beendiscovered. Tr. 1121.Respondent avers that further support 
for its argument that laboratory errors explain the
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15pollutant concentration results at issue here is found in the 
investigation report prepared by theMaryland Department of the Environment 
(MDE) addressing problems at Respondent’s contractlab, CT&E . The report 
details a variety of analytical, personnel and QAQC problems at CT&Eand 
concludes that National Pollutant Discharge Elimination System (NPDES) 
metals datagenerated by the lab may be viewed by MDE as “inaccurate or 
unacceptable.” RX 10. Thereport, dated July 12, 1996, was completed after 
two of the four sample dates for which lab testsshowed Respondent’s sludge 
to contain metals in excess of the regulatory ceilings. RX 10. Respondent 
asserts that the problems documented in this report, especially when 
considered inlight of other evidence presented at hearing, shows that its 
sludge did not contain the levels ofmetals indicated in the four sample 
results returned by CT&E.Respondent also argues that several additional 
facts presented at hearing support itsposition that CT&E returned erroneous 
results from the four samples in question. First is theabsence of evidence 
that any industrial user subject to the pretreatment program is responsible 
forthe levels of metals allegedly found in Respondent’s sludge. RX 6; Tr. 
997. Second, MDE tookfield measurements in and around the fields on which 
sludge was applied and did not find elevatedlevels of metals. Tr. 997-99. 
Third, analytical results for metals concentrations in sludge obtainedby 
three other users of CT&E in May and August of 1996 were unusually high. RX 
11; Tr. 679,800-01. Examining the evidence presented in this case as a 
whole, Respondent contends, it isclear that CT&E’s results were erroneous 
and that Respondent’s sludge did not containconcentrations of any pollutants 
in excess of the regulatory limits. While Respondent has presented credible 
evidence calling into question the reliability oftest results from its 
contract lab, Respondent’s arguments are ultimately unavailing. Respondent
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10See, Tr. 613, 833-34 (testimony of Mr. Porianda that he did not believe 
the data wascorrect, and that he “disqualified” his certification in the 
“comments” section of the DMRs).11Although Respondent contacted its 
laboratory to retest the nickel sample from June 25,1996 (Tr. 581-82), and 
sampled a lagoon within 15 days from receipt of sampling results whichshowed 
cadmium and nickel exceedances on March 18, 1997, Respondent did not sample 
thelagoons showing arsenic exceedances on April 19, 1996, nickel exceedances 
on June 25, 1996,and molybdenum exceedances on August 26, 1996, until two 
months, four months and 21months, respectively, after the original samples 
were taken. CX 5; RX 8, 9.12See, definition of “preponderance of evidence”: 
“Evidence which is of greater weight ormore convincing than the evidence 
which is offered in opposition to it” and “evidence which ismore credible 
and convincing to the mind.” Black’s Law Dictionary 616 (Abridged 5thed. 
1983). Upon receipt of a DMR showing exceedances that are “qualified,” the 
obligation cannotreasonably be placed on EPA to determine whether the 
exceedances are valid or not; thesubmitter of the data has the access to 
relevant information and to resampling. 16reported the data, certifying it 
as “true, accurate and complete” on the DMRs, albeit with“qualification” or 
reservation manifested in the comments on the DMRs and cover letters. CX 
2,3.10However, Respondent did not have such reservations about its data as 
to make immediateefforts to resample as soon as the results were received, 
and cannot now take advantage of itsfailure to do so.11Legislative history 
of the CWA, as noted above, and the required certificationon the DMRs, 
emphasize the need for accurate reporting and simple enforcement, and 
evidenceCongress’ and EPA’s intent to place heavy reliance on data reported 
on DMRs in the context ofenforcement. Thus, in order to balance such heavy 
reliance, and notwithstanding its“qualification” of reported data, 
Respondent bears a heavy burden to show laboratory error, inorder to prevail 
under the preponderance of evidence standard of 40 C.F.R. § 
22.24.12YatesIndustries, 757 F. Supp. at 447 (“in light of the strong 
evidentiary emphasis placed on DMRs,defendant has a heavy burden to 
establish faulty [laboratory] analysis,” even where DMR coverletters 
indicated defendant’s belief that samples were bad); Elf Atochem, 817 F. 
Supp. at 1178
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17(“‘heavy burden’ imposed on defendants seeking to prove laboratory error 
is consistent with oneof the purposes behind the Act [CWA] as reflected in 
legislative history”). To meet that burden, Respondent must show “that there 
were errors in the actual testsperformed.” Id.; SPIRG v. Tenneco Polymers, 
602 F. Supp. 1394, 1400 (D. N. J. 1985). Federal courts have required 
“direct evidence of reporting inaccuracies.” Yates Industries, 757 F.Supp. 
at 447. Direct evidence was held sufficient to find liability for discharge 
violations whereparallel testing at another laboratory of the samples at 
issue produced results that did notconstitute a violation, and where a 
letter from the laboratory acknowledged that the results wereinaccurate due 
to a testing error and that retesting of samples showed non-detectable 
levels of thepollutant. Elf Atochem, 817 F. Supp. at 1179-1180. However, 
circumstantial evidence oflaboratory error was held sufficient to deny a 
motion for summary judgment as to liability fordischarge violations, where 
defendant submitted (1) results of split sampling conducted over a six-month 
period showed numerous divergences from measurements obtained from 
otherlaboratories; (2) reports of two independent audits of the laboratory 
identifying deficiencies in thelaboratory’s operations; and (3) and EPA 
report on the laboratory’s performance on a DMRQuality Assurance Program 
conducted during the time the sampling results at issue wereobtained, 
finding measurements were beyond the acceptable range of error. Id. at 
1180-81.Respondent’s evidence does not meet the level of evidence produced 
by the defendant inElf Atochem. Respondent did not present any direct 
evidence that the sampling results wereerroneous. Mr. Wilber’s expert 
testimony that the data at issue were “statistical outliers,” raisesa 
critical red flag as to their validity, Respondent argues. Tr. 847, 848, 
944; see, RX 5;Respondent’s Post- Hearing Brief at 7. However, as Mr. Wilber 
conceded, “outliers” are not per
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13The same is true of the school sludge results provided in Respondent’s 
Exhibit 11. Asto the field tests conducted by MDE on the sites where 
Respondent applied its sludge, both Mr.Wilber and Dr. Rubin testified that 
the information from such tests does not provide a basis fromwhich to draw 
any positive conclusions. Tr. 271-73, 306-07(Rubin); 998-999 (Wilber),18se 
invalid. Tr. 932, 944; see, Sierra Club v. Union Oil Co. of California, 813 
F.2d 1480, 1490(9thCir. 1987)(CWA and regulations promulgated thereunder 
“make no provision for ‘rare’violations”; finding that district court erred 
in excusing exceedances based on the number ofacceptable readings), vacated 
and remanded on other grounds, 485 U.S. 931 (1988), reinstatedand remanded, 
853 F.2d 667, on remand, 716 F. Supp. 429, (N.D. Cal. 1988). While the 
reporton CT&E produced by MDE raises general questions about the lab’s 
reliability, it says nothingdirectly about the test results at issue 
here.13Particularly noteworthy is that the MDE reportexamined CT&E’s NPDES 
metals testing procedures, but not its sludge metals testingprocedures. 
Direct evidence could have been presented to prove that the lab results at 
issue wereerroneous. According to Ms. Costas, when a POTW or other lab 
customer thinks it has receivedincorrect results from its lab, the first 
step to take is to ask the lab to reanalyze the sample. Tr.182. The second 
step is to examine the lab’s quality assessment and quality control 
(QAQC)data. The QAQC data provides a step by step look at the handling and 
processing of a sampleincluding checks, in the form of quality control 
samples, on the results of the analyses run on asample. Tr. 1184-85. A third 
strong, direct indicator of possible errors in a specific test result isthe 
result from a split sample. A split sample represents a portion of the 
original sample that isthen analyzed separately from the rest of the sample, 
typically by a separate lab. If the labsinvolved produce markedly different 
results, this is an indication that one of the labs may be
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14It is important to keep in mind that while the tests results may be in 
error, merelyshowing that they are erroneous does not lead unequivocally to 
the conclusion that Respondent’ssludge did not contain pollutants in excess 
of the ceiling concentrations. Elf Atochem, 817 F.Supp. 1164 n. 15 (“Even 
direct proof that laboratory results are erroneous does not necessarilyprove 
that a discharge violation did not occur”). The tests results could be 
erroneously high, andanother accurate test could still show that 
Respondent’s sludge contained pollutants above theregulatory threshold, 
although perhaps not to the level of the erroneous test results.19producing 
unreliable results. Tr. 1194. Significantly, Respondent did not present any 
of thesetypes of direct evidence of erroneous lab results at hearing. See, 
Tr. 1087.Respondent also did not present any direct evidence showing that, 
in fact, the foursamples in question did not contained concentrations of the 
pollutants at issue above theregulatory ceilings.14As to the circumstantial 
evidence presented by Respondent, Complainant’s rebuttalwitnesses, Ms. 
Costas and Ms. Ciccone, offered persuasive testimony challenging the 
testimonyand conclusions of Respondent’s witnesses. Ms. Ciccone testified 
that, contrary to thecontentions of Respondent, sludge, which is composed of 
a combination of water and solids, isnot by its nature very uniform and does 
not mix readily. Tr. 1252, 1263-64. As such, any mixingthat occurs in the 
digester is imperfect at best. Tr. 1259. Ms. Ciccone added that this 
expectationwas further confirmed in this instance by the fact that when 
Respondent emptied its digesters atleast one of them had a substantial 
amount of grit on its bottom. Id. As to mixing that may occur after the 
sludge leaves the digesters, Ms. Ciccone testifiedthat, while taken 
together, the effects of pumping the sludge into the lagoons, dredging, 
wind, andbubbling from ongoing anaerobic activity would produce some 
additional mixing, the sludge inRespondent’s lagoons, like that in other 
lagoons she has had experience with, would likely benonuniform. Tr. 1263-64. 
Ms. Ciccone also noted that because sludge does not mix readily, it is
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20likely that some of it had accumulated in certain areas of the lagoon. Id. 
The nonuniform nature of sludge presents difficulties for sludge sampling 
and resampling. For example, because it is nonhomogeneous, the chance that a 
single sample taken from a tankertruck might contain metals in amounts not 
previously detected is “pretty good,” Ms. Cicconetestified. Tr. 1265. For 
the same reason, the fact that previous sampling results did not showmetals 
at the levels found in the April 19, June 25, and August 26, 1996 and March 
18, 1997samples does not show that the samples at issue here did not have 
the levels of metals found bythe tests performed by CT&E. In addition to the 
sampling difficulties presented by its nonuniformity, the addition 
andsubtraction of sludge from the lagoons raises further doubts about 
attaching any meaning to theresults obtained from resampling the sludge, Ms. 
Ciccone and Ms. Costas testified. Tr. 1282-86(Ciccone), 1197-98 (Costas). 
Ms. Ciccone testified that as a result of these problems nomeaningful 
comparisons could be made between the results returned by CT&E and the 
results ofRespondent’s resampling. Tr. 1282-87. Moreover, Ms. Ciccone 
questioned the reliability of Respondent’s historical averagesgiven the 
inconsistent detection levels in CT&E’s lab analyses. Tr. 1269. Detection 
levels are thelevels below which the test cannot determine the presence of 
the pollutant. Her examination ofthe available lab data sheets for testing 
conducted in 1996 indicated that “in a significant amountof the cases the 
detection limits for the parameters in question, especially for cadmium and 
nickel,were so high that I feel it’s somewhat misleading” to treat all the 
nondetect readings as zeros. Id. In at least one instance the non-detectible 
limit was above the federal regulatory ceiling renderingthe “non-detect” 
test result legally meaningless. Tr. 906.
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15Mr. Winslow testified that in certain instances the septage was not tested 
before it wasplaced in the lagoons. Tr. 530.21Ms. Ciccone also discussed 
ways in which significant amounts of metals may have enteredRespondent’s 
lagoons without causing digester inhibition. First, she noted that 
Respondent takesin septage and that the septage is treated with lime before 
it is added to the lagoons. Tr. 1265,1267. According to Ms. Ciccone, 
treating septage with lime has the effect of concentrating anymetals that 
may be present in the septage by changing the metals from a soluble form to 
aninsoluble form. Tr. 1267-68. In addition, while septage is typically 
tested before it is added tothe lagoons, the tests done are not designed to 
pick up metals.15Tr. 533, 561.Ms. Ciccone’s testimony also calls into 
question Respondent’s argument that the POTW’sindustrial users could not 
have been the source of elevated levels of metals because records showno 
pretreatment violations during 1996 or 1997. Specifically, she observed that 
two ofRespondent’s regulated industrial users, both of which are permitted 
as metal finishers, are onlyrequired to monitor two to three times a 
quarter, and that they could potentially be releasingmetals at other times 
that would not be detected through monitoring. Tr. 1274-75. The POTWalso has 
unregulated industrial users and combined sewers that could contribute 
metals to thewastewater stream. Tr. 1254-55. Waste from these industries, 
unlike septage sludge, passes through the treatment plant, butthe fact that 
the waste caused no digester inhibition does not prove that it was free of 
metals, Ms.Ciccone testified. While Ms. Ciccone testified that the digester 
inhibition figures compiled byRespondent “have been around for a long time,” 
and “you do keep running across the same set ofnumbers” in relevant 
reference materials, she and Mr. Wilber testified that there are other
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22accepted numbers that vary significantly from those used by Respondent. 
Tr. 1277(Ciccone);1059-60 (Wilber). Ms. Ciccone testified further that no 
one full scale study of digester inhibitionhas been done and, based on 
research she has done on the issue of digester inhibition levels, thesource 
of some of the inhibition numbers is somewhat obscure and their precise 
impact on anyparticular digester uncertain. Tr. 1277-79. As to the numbers 
found in the Prelim program, Ms.Ciccone testified that when a user obtains a 
metal value that should have caused inhibition but didnot, the Prelim 
program directs that its inhibition value be disregarded. Tr. 1279-80. 
Ms.Ciccone concluded that in her opinion inhibition is not a number that can 
be calculated inisolation, and that she considers published inhibition 
numbers to be guidelines rather than explicitlimits. Tr. 1362-63, 1365. 
Complainant’s rebuttal witnesses, in challenging the testimony and 
conclusions ofRespondent’s witnesses, called into question the reliability 
of Respondent’s evidence andwitnesses’ testimony. The proponent of 
witnesses’ testimony and evidence has the burden ofproving that, by a 
preponderance of evidence, it is reliable. In re Paoli R.R. Yard PCB 
Litigation,35 F.3d 717, 744 (3rdCir. 1994). Federal courts’ examination of 
the reliability of evidence indetermining admissibility under Federal Rule 
of Evidence 702 may provide useful guidance indetermining the weight of 
evidence presented in an administrative proceeding. In the landmarkcase of 
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 593-94 (1993), 
theSupreme Court listed four factors to consider:(1) whether the theory or 
technique can be tested,(2) whether it has been subject to peer review, (3) 
whether the technique has a high known orpotential rate of error, and (4) 
whether the theory has attained general acceptance within the
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16Other factors courts have considered are anecdotal evidence, temporal 
proximity, andimproper extrapolation. Allison v. McGhan Medical Corporation, 
184 F.3d 1300, 1312 (11thCir.1999). The soil samples taken from fields on 
which the sludge at issue was applied were takenmore than a year later after 
the application (Tr. 632-33), and thus its evidentiary weight isdiminished. 
The fact that a retest by the laboratory of a sludge sample with an initial 
resultshowing high level of copper found a much lower value (CX 5) is of 
very little weight. 23scientific community.16Respondent’s theory that the 
data could not be correct because thedigesters were not inhibited is not 
very reliable in light of the Daubert factors, considering that ithas not 
been fully tested and considering the potential rate of error.In sum, after 
full consideration of all of the evidence submitted in this matter, it is 
foundthat Respondent has failed to present evidence sufficient to rebut the 
information evidencingviolations contained in its sludge DMRs and 308 
Response. Accordingly, Respondent is liable for27 violations of 40 C.F.R. § 
503.13.III. PENALTYAdministrative penalties for violations of CWA § 405 are 
determined in accordance withCWA § 309(g). Section 309(g)(2)(A) provides for 
class I civil penalties of up to $10,000 perviolation and a maximum class I 
penalty of $25,000. Section 309(g)(3) directs that "the 
nature,circumstances, extent and gravity of the violation, or violations, 
and, with respect to the violator,ability to pay, any prior history of such 
violations, the degree of culpability, economic benefit orsavings (if any) 
resulting from the violation, and such other matters as justice may require" 
are tobe considered in determining the amount of any penalty to be assessed. 
In addition, ConsolidatedRule of Practice 22.27(b) (64 Fed Reg. 40187 (July 
23, 1999)) provides that "[i]f the PresidingOfficer decides to assess a 
penalty different in amount from the penalty proposed by complainant,
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17Consolidated Rule 22.27(b) also directs that the presiding officer 
consider, in addition tothe factors enumerated in the statute, any civil 
penalty guidelines issued under the statute. TheAgency has not issued any 
civil penalty guidelines for assessment of penalties for violations ofCWA § 
405. Accordingly, the statutory penalty factors alone will guide assessment 
of the penaltyin this case.24the Presiding Officer shall set forth in the 
initial decision the specific reasons for the increase 
ordecrease."17Complainant argues that its proposed penalty of $16,000, which 
was calculated withreference to EPA General Enforcement Policies GM 21 and 
22, is appropriate based on itsapplication of the statutory penalty factors 
to the facts of this case. Respondent responds inopposition that it made 
efforts in good faith to comply, that it had a well-managed NPDESprogram 
headed by experienced professionals, that there was no threat to human 
health or theenvironment, that it reported every analytical result of its 
sludge to EPA or MDE, and that itgained no economic benefit of any 
non-compliance.Nature, Circumstances, Extent and Gravity of the ViolationsIn 
calculating its proposed penalty, Complainant considered together the 
statutory factorsof nature, circumstances, extent and gravity (hereinafter 
“gravity”). Ms. Pacera testified thatbased on her consideration of the 
facts, and after considering the $10,000 maximum penalty perviolation that 
could be sought in a class I administrative proceeding, she proposed an 
amount of$1,000 per violation under the gravity factors, for a total of 
$42,000. In evaluating the circumstances, extent and gravity of Respondent’s 
monitoring andreporting violations, Ms. Pacera took account of the following 
factors. First, Respondent did notreport required data for one year. Tr. 59. 
This is significant, Ms. Pacera testified, because data is
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25the way EPA determines compliance with the CWA sludge regulations. Id. 
Second, Ms. Paceratook into consideration that 80% of the time Respondent 
reported only the lower value ofsampling results, and that in two instances 
the unreported results exceeded the regulatory ceilings. Tr. 59. In 
evaluating the gravity of Respondent’s 27 violations of 40 C.F.R. § 503.13 
regardingland applications, Ms. Pacera took into consideration several 
facts. First, she considered that,with the exception of the arsenic level, 
which was 1.5 times the regulatory ceiling, Respondent’ssamples showed 
levels of pollutants two to four times above the regulatory ceiling. Tr. 
57-58. Second, she considered the number of land applications at issue. 
Third, she factored in thepotential for environmental harm presented by the 
application to agricultural land of sludge withhigh pollutant 
concentrations, specifically, the possibility that humans or animals might 
come incontact with the pollutants. Tr. 57. I find Complainant’s calculation 
of $1,000 for the gravity of each of Respondent’s 15monitoring and reporting 
violations is reasonable and is hereby adopted. However,Complainant’s 
proposed penalty for the gravity of Respondent’s land application 
violations, doesnot seem sufficient. As Complainant points out, there is a 
potential for environmental harm whensludge with pollutants in excess of the 
regulatory limits is applied to land. Such violations aretherefore generally 
considered more “serious” than monitoring and reporting violations. 
ElfAtochem, 817 F. Supp. at 1180 (citing Yates Industries, 757 F. Supp. at 
454 (reporting andmonitoring violations do not “produce the kind of direct 
environmental impact” that is the primarytarget of the CWA)). Moreover, an 
approach to penalty assessment under the CWA that treatsviolations involving 
the discharge of pollutants to the environment more seriously is supported 
by
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26the testimony of Dr. Rubin. Dr. Rubin testified that each of the 
pollutants involved here presentsparticular risks to humans and the 
environment. For example, arsenic presents a special hazard tochildren under 
the age of six (Tr. 262-63), cadmium is a kidney toxicant, (Tr. 265), nickel 
cansuppress the growth of plants, and molybdenum, by interfering with the 
body’s absorption ofcopper, can cause gastrointestinal and growth problems ( 
Tr. 268). Accordingly, Respondent is assessed a penalty of $2,000 for each 
of its 27 land applicationviolations for a total gravity amount of $54,000. 
Adding this to the $15,000 assessed forRespondent’s monitoring and reporting 
violations yields a total penalty of $69,000 under thenature, circumstances, 
extent and gravity factors.Ability to PayMs. Pacera testified that a penalty 
of $16,000 was within Respondent’s ability to paybased on her calculation of 
approximately $2 for each of the 8,155 households that 1990 censusdata 
showed Salisbury to contain. Tr. 76-77. In addition to this, there was 
evidence presented athearing indicating that Respondent’s wastewater 
treatment program has a budget ofapproximately one million dollars and, that 
as of July 1, 1999, it raised the rate it charges itsresidents for water 
treatment services from $1.74 per thousand gallons, which was one of 
thelower rates in the state, to $2.24 per thousand gallons of water. Tr. 
245, 927. Given thisevidence, and the fact that Respondent has presented no 
evidence and made no argument to thecontrary, Respondent is deemed able to 
pay at least the $16,000 penalty proposed byComplainant.
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27History of Prior ViolationsMs. Pacera testified that Respondent has a 
history of prior CWA violations. Specifically,MDE issued a complaint/order 
to Respondent in May of 1997 for failure to submit monthlyreports related to 
its combined sewer overflow system, and data provided by Respondent to 
MDEshowed 22 violation of the effluent limits in Respondent’s NPDES permit 
in the period 1993 to1998. Ms. Pacera also testified, however, that she did 
not assess any additional amount under thisfactor because she was not aware 
of these prior violations at the time she drew up her penaltycalculation. 
Respondent’s history of prior violations justifies an increase of 15% of the 
amountassessed for the gravity of Respondent’s violations, or 
$10,350.CulpabilityComplainant proposes an amount of $5,000 for what it 
characterizes as lack of good faithunder the culpability factor. Tr. 68. 
This lack of good faith is evident, Complainant represents, inthe fact that 
all of Respondent’s 42 violations could have been prevented because none of 
themwere the consequence of factors beyond its control. Tr. 69. Respondent 
could have prevented itsland application violations by having its sludge 
analyzed before it was sent out for landapplication. Tr. 68. As to 
Respondent’s monitoring and reporting violations, Complainantcontends that 
Respondent could easily have monitored for arsenic and selenium in the first 
quarterof 1996 but did not, and that Respondent was responsible for knowing 
what its data reportingrequirements were under 40 C.F.R. part 503.18. Tr. 
69. Complainant also asserts that Respondent acted slowly in dealing with 
its exceedances;
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28specifically, that it took Respondent a year from the date of its arsenic 
exceedance to takecorrective action and that if Respondent had acted sooner 
it could have prevented many laterviolations. Tr. 69. Complainant also 
maintains that applying contaminated sludge to land isevidence of a lack of 
concern for the environment or laws and regulations. Tr. 72. 
Finally,Complainant considered the certification statements contained on the 
DMRs. Complainant arguesthat these statements are important to determining 
compliance under the self-monitoring regimeof the CWA. Tr. 70-71.Respondent 
makes several arguments in opposition to Complainant’s proposed 
$5,000increase under the culpability factor. With regard to its land 
application violations, Respondentasserts that it was unaware that its 
sludge contained pollutant concentrations that exceeded theregulatory limits 
when that sludge was applied to land. In addition, Respondent argues that 
itrelied on MDE, albeit erroneously, in continuing to land apply its sludge 
despite the high pollutantvalues it received from CT&E. Tr. 444, 620, 675, 
744-745.Turning to its monitoring violations, Respondent maintains that it 
was not bad faith thatled to its failure to monitor for arsenic and selenium 
in the first quarter of 1996; rather, it was badweather and the protocol 
established by Mr. Porianda for monitoring its sludge for the 
pollutantslisted in table 1 of part 503.13, a protocol based on an incorrect 
understanding of the part 503rules. According to Mr. Porianda, the protocol 
he created for complying with the part 503 rulesinvolved monitoring for the 
nine required pollutants in the first month of each quarter. Tr. 582-3,593. 
In January of 1996 Respondent’s lagoon was frozen over, making sampling 
impossible inthat month. When the lagoons unfroze in February or March and 
Respondent resumed samplingit did not monitor for arsenic and selenium 
because, under the protocol, Respondent was not due
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29to monitor for those pollutants in those months. Tr. 680, 831-832. 
Respondent’s first argument, that it did not know it was land applying 
contaminatedsludge is without merit. Respondent had a duty to learn the 
concentration of pollutants in itssludge before it applied that sludge to 
land. 40 C.F.R. § 503.7. Respondent’s other arguments, inparticular its 
reliance on MDE, as well as the overall testimony provided by Mr. Winslow 
and Mr.Porianda, weigh against assessing the $5,000 increase proposed by 
Complainant for culpability. Accordingly, Respondent is assessed a penalty 
increase in the amount of $2,000 based on itsculpability.Economic 
BenefitComplainant contends that an economic benefit of $7,925 accrued to 
Respondent as aconsequence of its violations in this case. For Respondent’s 
sludge application violationsComplainant made the following calculations. 
The cost of expedited sampling in order to learnthe concentration of 
pollutants before land applying sludge was estimated by Ms. Pacera to be$150 
based on EPA lab information. Tr. 62. Multiplying this number by four 
sampling eventsyielded an amount of $600. Tr. 63. Complainant calculated an 
amount of $200 per week forrental of a tanker truck to hold the dredged 
sludge until the expedited sample results werereturned by the lab. Tr. 64. 
This figure was arrived at based on search of sources on the internet.Id. 
Multiplying $200 by four sampling events yielded an amount of $800. Id. 
Complainant thenadded the projected cost of landfilling the sludge that 
contained exceedances. This number wascalculated based on number of tons of 
sludge applied multiplied by a $40 per ton tipping fee. Tr.66. The estimated 
tipping fee was based on information from MDE. The total cost of landfilling
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30would have been $6,375, Complainant avers. Id.As to Respondent’s reporting 
violations, Complainant calculated an amount of $100 basedon the personnel 
time needed to gather the necessary information and submit it to EPA. Tr. 
67. For the monitoring violations, Complainant estimated $50 based on EPA 
lab informationconcerning cost of analysis for the metals arsenic and 
selenium. Adding all of these numbers together yields a total economic 
benefit of $7,925.Complainant’s calculation of Respondent’s economic benefit 
is reasonable and will be adoptedwith one amendment. Complainant proposed 
the amount of $200 per week, for a total of $800for four sampling events, 
for rental of a tanker truck to store dredged sludge while Respondentawaits 
its sample test results. Testimony at hearing established that Respondent 
owns the tankertrucks it uses to transport sludge to the farms where it is 
applied and thus would not haveincurred any rental costs while awaiting its 
test results. Tr. 679-80. Accordingly, the economicbenefit amount will be 
reduced by $800 for a total of $7,125. Other Factors as Justice May 
RequireComplainant reached its ultimate proposed penalty figure of $16,000 
after reducing thepenalty in consideration of Respondent’s status as a 
municipality with limited financial resources. Tr. 61, 75-76. While there is 
little support in the record for such a reduction, I find that it is 
notunreasonable based on the facts of this case and in light of the $25,000 
penalty cap on class Iadministrative actions under CWA § 309(g)(2)(A), and 
it is within the Agency’s enforcementdiscretion to so reduce the penalty, 
and therefor, the reduced penalty will not be disturbed.
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31CONCLUSIONIn light of all of the factors of this case, I find appropriate 
the imposition of a civil penaltyin the amount of $16,000 against 
Respondent, the City of Salisbury, Maryland, for its failure tomonitor 
sludge in violation of 40 C.F.R. § 503.16; for its failure to report data 
regarding the landapplication of sludge in violation of 40 C.F.R. § 503.18 
and for land applying sludge containingpollutants in excess of the 
concentration ceilings in violation of 40 C.F.R. 503.13.
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32ORDER1.Respondent is assessed a civil penalty of $16,000.00.2.Payment of 
the full amount of this civil penalty shall be made within 60 days of 
theservice date of this Order by submitting a certified or cashier's check 
in the amount of $16,000.00,payable to the Treasurer, United States of 
America, and mailed to:EPA - Region IIIP.O. Box 360515Pittsburgh, PA 
152513.A transmittal letter identifying the subject case and the EPA docket 
number, aswell as Respondent's name and address must accompany the 
check.4.If Respondent fails to pay the penalties within the prescribed 
statutory period afterentry of this Order, interest on the penalty may be 
assessed.5.Pursuant to 40 C.F.R. §22.30(a) (64 Fed. Reg. 40186 et seq. (July 
23, 1999)), thisInitial Decision shall become the Final Order of the Agency, 
unless an appeal is taken within thirty(30) days from the service date of 
this Order or the Environmental Appeals Board elects on itsown initiative to 
review this decision. Susan L. BiroChief Administrative Law JudgeDate: 
February 8, 2000Washington, D.C.