R24-241 1 RESOLUTION NO. R24-241
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, AUTHORIZING THE MAYOR TO SIGN THE FLORIDA
5 DEPARTMENT OF ENVIRONMENTAL PROTECTION CONSENT ORDER
6 FOR RESOLUTION OF ENFORCEMENT ACTION, OGC FILE NO. 23-1330;
7 AND FOR ALL OTHER PURPOSES.
8
9 WHEREAS, the Florida Department of Environmental Protection (FDEP) desires to enter
10 into a Consent Order (CO) with the City of Boynton Beach without the City admitting or denying
11 the department's findings for violations due to an unauthorized discharge from the collection
12 system into the Intracoastal Waterway in July 2023 resulting in exceedances of the surface water
13 quality standard for Enterococci within the impacted surface water, and an updated Sewer
14 Overflow Response Plan and Operations and Maintenance Manual was not on file; and
15 WHEREAS, the City and FDEP desire to mutually resolve the matter and the City agrees to
16 comply with the corrective actions within the time periods set out in the CO; and
17 WHEREAS, the City Commission, upon the recommendation of staff, has deemed it in the
18 best interests of the city's citizens and residents to authorize the Mayor to sign the Florida
19 Department of Environmental Protection Consent Order for resolution of enforcement action,
20 OGC File No. 23-1330.
21
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
23 BEACH, FLORIDA, THAT:
24 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
25 being true and correct and are hereby made a specific part of this Resolution upon adoption.
26 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
27 approve a Consent Order between the State of Florida Department of Environmental Protection
28 and the City (the "Order"), in form and substance similar to that attached as "Exhibit A."
29 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby
30 authorizes the Mayor to execute the Order and any ancillary documents required to accomplish
31 the purposes of the Order and this Resolution.
32
33 SECTION 4. The executed Order shall be forwarded to Dr. Poonam Kalkat, Utilities
34 Director, to obtain execution of the Order by FDEP. Dr. Poonam Kalkat, Utilities Director, shall be
35 responsible for ensuring that one fully executed Order is returned to the City to be provided to
36 the Office of the City Attorney.
37 SECTION 5. This Resolution shall take effect in accordance with law.
38
39
40 PASSED AND ADOPTED this /S day of QCD1W 2024.
41 CITY OF BOYNTON BEACH, FLORIDA
42 YES NO
43 Mayor-Ty Penserga
44
45 Vice Mayor-Aimee Kelley
46
47 Commissioner-Angela Cruz
48
49 Commissioner-Woodrow L. Hay
50
51 Commissioner-Thomas Turkin brscri341-17w1(�4�5
52
53 VOTE 9-0
54 A T ,T:
5.
5 1 „ do 4:y
57 Mayle• 1- esus, MPA, MC Ty • ► -
58 City Cle May.•
59 ONB
60 jQO�Q°RA7E •. y , APPROVED AS TO FORM:
61 (Corporate Seal) ;p;s).�,,�
62 IZ': �j� eo�0
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64 %\ . Shawna G. Lamb
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FSO City Attorney
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT ) IN THE OFFICE OF THE OF
ENVIRONMENTAL PROTECTION ) SOUTHEAST DISTRICT
)
v. ) OGC FILE NO. 23-1330
)
CITY OF BOYNTON BEACH )
)
CONSENT ORDER
This Consent Order (Order) is entered into between the State of Florida
Department of Environmental Protection (Department) and City of Boynton Beach
(Respondent), pursuant to Section 120.57(4), Florida Statutes (F.S.), to settle certain
matters at issue between the Department and Respondent.
The Department finds, and Respondent neither admits nor denies the following:
1. The Department is the administrative agency of the State of Florida
having the power and duty to protect Florida's air and water resources and to
administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules
promulgated and authorized in Title 62, Florida Administrative Code (F.A.C.). The
Department has jurisdiction over the matters addressed in this Order.
2. The Respondent is a municipal corporation in the State of Florida and a
person as defined in Section 403.031(5), F.S.
3. Respondent owns and operates the City of Boynton Beach Collection
System (System), a system of pipes and lift stations that collect sewage in the City of
Boynton Beach and delivers it to a regional wastewater treatment facility. The System
does not operate under a DEP approved domestic wastewater permit; however, the
following collection system ID has been generated by the Department for the System:
FLSSOA486. The City of Boynton Beach Utilities offices are located in Palm Beach County
at 124 E. Woolbright Road, Boynton Beach, Florida. Respondent owns the Property on
which the System is located.
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Consent Order 23-1330
4. The Department finds the following violation(s) occurred:
a) For six (6) days, the System had an unauthorized discharge from the
collection system, in violation of Rule 62-620.300, F.A.C., resulting in 22 million gallons
of untreated wastewater being discharged into the Intracoastal Waterway, Class III
marine waters of the state,which caused or contributed to a total of 9 days of exceedances
of the surface water quality standard for Enterococci within the impacted surface water,
in violation of Rules 62-604.130(1) and 62-302.530(6)(c), F.A.C., and
b) The City of Boynton Beach Utilities Sewer Overflow Response Plan
and Operation and Maintenance Manual was not updated as stipulated per Rule 62-
604.500(4)(b), F.A.C.
Having reached a resolution of the matter, Respondent and the Department
mutually agree, and it is
ORDERED:
5. Respondent shall comply with the following corrective actions within the
time periods set out herein:
(a) Within 120 days of the effective date of this Order, Respondent shall
submit to the Department a plan and schedule that outlines measures to be taken by the
Respondent to reduce the number of SSOs from the System. The plan shall include but
not be limited to methods by which Respondent can detect unauthorized discharges more
rapidly. The plan and schedule shall adhere to the following:
i. The completion date of the plan and schedule, including
obtaining any necessary Department permit(s) or permit
modification(s), shall be no later than three years from the effective
date of this Order.
ii. If the Department has any comments on the plan and/or
schedule, it will provide such comments in writing no later than 45
days from the Department's receipt of the plan. Respondent shall
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Consent Order 23-1330
modify the plan to address Department comments and shall submit
the modified plan within 60 days of receipt of Department
comments.
(b) Within 120 days of the effective date of this Consent Order,
Respondent shall submit a plan and schedule (hereinafter, Lift Station Plan) to the
Department for comment and approval to bring all of the System's lift stations into
compliance with the standards specified in the "Recommended Standards for
Wastewater Facilities," the current version of which is referenced in Rule 62-604.300(2)(g),
F.A.C. The Lift Station Plan shall specifically describe how emergency pumping
capability is provided for all pump stations,including during long-duration wide-spread
power outages.
(c) Within 270 days of the effective date of this Consent Order,
Respondent shall develop a documented Capacity, Management, Operation, and
Maintenance (CMOM) and Asset Management program in accordance with US EPA
document 305-B-05-002 dated January 2005 ("Guide for Evaluating Capacity,
Management, Operation, and Maintenance (CMOM) Programs at Sanitary Sewer
Collection Systems").
(d) Within 365 days following Department acceptance of the
documented Asset Management and CMOM program described in 5.(c)., Respondent
shall fully implement for the entire System a documented Asset Management and
Capacity, Management, Operation, and Maintenance (CMOM) program in accordance
with US EPA document 305-B-05-002 dated January 2005 ("Guide for Evaluating
Capacity, Management, Operation, and Maintenance (CMOM) Programs at Sanitary
Sewer Collection Systems"). The CMOM shall address all pipes and conflict boxes
located in tidally influenced areas, subject to corrosion and bedding/movement issues
leading to pipe failure and be earlier than previously projected.
(e) Within 120 days of the effective date of this Consent Order,
Respondent shall submit to the Department a plan and schedule for conducting an
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Consent Order 23-1330
inventory of and mapping conflict structures located throughout the System. The final
completion date for the inventory and mapping shall be no later than two (2) years after
the effective date of this Consent Order.
(f) Every six (6) months after the effective date of this Order and
continuing until all corrective actions have been completed, Respondent shall submit to
the Department a written report containing information about the status and progress of
projects being completed under this Order, information about compliance or
noncompliance with the applicable requirements of this Order, including construction
requirements and effluent limitations,and any reasons for noncompliance. These reports
shall also include a projection of the work Respondent will perform pursuant to this
Order during the 12-month period that will follow the report. It shall also document
reasonable further progress in implementing the CMOM in accordance with sub-
Paragraphs 5(c) and 5(d) of the Order. Respondent shall submit the reports to the
Department within 30 days of the end of each six-month period ending July 31 and
January 31 of each year. Respondent's first report shall be due February, 2025.
6. Respondent's completion of all corrective actions required in Paragraph
5(a)-(f) of this Order within the respective deadlines specified thereunder shall constitute
full compliance with Chapter 62-604, F.A.C.
7. Within 30 days of the effective date of this Order, Respondent shall pay
the Department $183,008.00 in settlement of the regulatory matters addressed in this
Order. This amount includes $182,008.00 for civil penalties and $1,000.00 for costs and
expenses incurred by the Department during the investigation of this matter and the
preparation and tracking of this Order. The civil penalty, in this case, includes two
violations that each warrant a penalty of$2,000.00 or more.
8. Respondent agrees to pay the Department stipulated penalties in the
amount of$1,000.00 per day for each and every day Respondent fails to timely comply
with any of the requirements of Paragraphs 5 and 6 of this Order. Additionally,
Respondent shall pay the Department stipulated penalties for any discharges from the
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Consent Order 23-1330
collection/transmission system. Respondent agrees to pay stipulated penalties as
follows:
Amount/day/discharge Discharge Volume
$1,000.00 up to 5,000 gallons
$2,000.00 5,001 to 10,000 gallons
$5,000.00 10,001 to 25,000 gallons
$10,000.00 25,001 to 100,000 gallons
$15,000.00 in excess of 100,000 gallons
9. The Department may demand stipulated penalties at any time after
violations occur during the effective period of this Order. Respondent shall pay
stipulated penalties owed within 60 days of the Department's issuance of a written
demand for payment and shall do so as further described in Paragraph 10 below.
Nothing in this paragraph shall prevent the Department from filing suit to specifically
enforce any terms of this Order. Any stipulated penalties assessed under this paragraph
shall be in addition to the civil penalties agreed to in Paragraph 7 of this Order.
10. Respondent shall make all payments required by this Order by cashier's
check, money order, or online payment. Cashier's check or money order shall be made
payable to the "Department of Environmental Protection" and shall include both the
OGC number(23-1330) assigned to this Order and the notation"Water Quality Assurance
Trust Fund." Online payments by e-check can be made by going to the DEP Business
Portal at: http://www.fldepportal.com/go/pay/. Please note it may take a number of
days after this order is final, effective, and filed with the Clerk of the Department before
the ability to make online payment is available.
11. Except as otherwise provided, all submittals and payments required by this
Order shall be sent to Denise Watts, Environmental Specialist II, Department of
Environmental Protection, Southeast District Office, 3301 Gun Club Road, MSC 7210-1
West Palm Beach, FL 33406 or electronically to: Denise.Watts@FloridaDEP.gov. All
submittals shall include the notation"OGC No. 23-1330" in the subject line.
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Consent Order 23-1330
12. In-Kind Project Option for Civil Penalties: In lieu of making cash payment of
$182,008.00 in civil and stipulated penalties as set forth in Paragraph 7 above, Respondent may
elect to offset this amount by implementing an in-kind penalty project,which must be approved
by the Department. An in-kind project must be either an environmental enhancement,
environmental restoration, or a capital/system improvement project. The Department may also
consider the donation of environmentally sensitive land as an in-kind project. The value of the
in-kind penalty project shall be one and a half times the civil penalty offset amount,which,in this
case, is the equivalent of at least $273,012.00. If Respondent chooses to implement an in-kind
project, Respondent shall notify the Department of its election within 15 days of the
effective date of this Consent Order. Notwithstanding the election to implement an in-
kind project, payment of the remaining$1,000.00 in costs must be paid within 30 days of
the effective date of this Consent Order. If Respondent elects to implement an in-kind
project, Respondent shall comply with all the requirements and time frames in Exhibit A,
entitled In-Kind Projects.
13. Pollution Prevention Project Option for Civil or Stipulated Penalties: In
lieu of making a cash payment of $182,008.00 in civil penalties as set forth in Paragraph
7, Respondent may elect to off-set the amount by implementing a Pollution Prevention
(P2) Project, which must be approved by the Department. P2 is a process improvement
that reduces the amount of pollution that enters the environment by conserving resource
(including water, raw materials, chemicals, and energy) use or by minimizing waste
generation (including domestic and industrial wastewater, solid and hazardous waste,
and air emissions). A P2 Project must reduce pollution or waste within the process
beyond what is required by federal, state, or local law in order to be eligible for civil
penalty offset under this Order. If Respondent chooses to implement a P2 Project,
Respondent shall notify the Department of its election within 15 days of the effective date
of this Order (for the civil penalties of $182,008.00) or within 15 days of notification by
the Department that stipulated penalties are being assessed under Paragraph 8. Within
30 days of the effective date of this Order, Respondent must pay $1,000.00 for costs and
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Consent Order 23-1330
expenses incurred by the Department during the investigation of this matter and the
preparation and tracking of this Order.
i. If Respondent elects to implement a P2 Project as provided in this
Paragraph, Respondent shall submit a completed P2 Project Plan (Plan)
within 60 days of the effective date of this Order. The Plan must be
completed using Exhibit B, "P2 Project Plan" template.
ii. In the event the Department requires additional information to
process the Plan described in this Paragraph, Respondent shall provide a
modified Plan containing the information requested by the Department
within 15 days of the date of the request.
iii. If any balance remains after the entire P2 credit is applied to the
allowable portion of the civil penalty,Respondent shall pay the difference
within 30 days of written notification by the Department to Respondent
that the balance is due.
14. Respondent shall allow all authorized representatives of the Department
access to the System and the Property at reasonable times for the purpose of
determining compliance with the terms of this Order and the rules and statutes
administered by the Department.
15. In the event of a sale or conveyance of the System or of the Property upon
which the System is located, if all of the requirements of this Order have not been fully
satisfied, Respondent shall, at least 30 days prior to the sale or conveyance of the
System or Property, (i) notify the Department of such sale or conveyance, (ii) provide
the name and address of the purchaser, operator, or person(s) in control of the System,
and (iii) provide a copy of this Order with all attachments to the purchaser, operator,
or person(s) in control of the System. The sale or conveyance of the System or the
Property does not relieve Respondent of the obligations imposed in this Order.
16. If any event, including administrative or judicial challenges by third
parties unrelated to Respondent, occurs which causes delay or the reasonable
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Consent Order 23-1330
likelihood of delay in complying with the requirements of this Order,Respondent shall
have the burden of proving the delay was or will be caused by circumstances beyond
the reasonable control of Respondent and could not have been or cannot be overcome
by Respondent's due diligence. Neither economic circumstances nor the failure of a
contractor, subcontractor, materialman, or other agent (collectively referred to as
"contractor") to whom responsibility for performance is delegated to meet
contractually imposed deadlines shall be considered circumstances beyond the control
of Respondent (unless the cause of the contractor's late performance was also beyond
the contractor's control). Upon occurrence of an event causing delay,or upon becoming
aware of a potential for delay, Respondent shall notify the Department by the next
working day and shall, within seven calendar days, notify the Department in writing
of(i) the anticipated length and cause of the delay, (ii) the measures taken or to be taken
to prevent or minimize the delay, and (iii) the timetable by which Respondent intends
to implement these measures. If the parties can agree that the delay or anticipated
delay has been or will be caused by circumstances beyond the reasonable control of
Respondent, the time for performance hereunder shall be extended. The agreement to
extend compliance must identify the provision or provisions extended, the new
compliance date or dates, and the additional measures Respondent must take to avoid
or minimize the delay, if any. Failure of Respondent to comply with the notice
requirements of this paragraph in a timely manner constitutes a waiver of Respondent's
right to request an extension of time for compliance for those circumstances.
17. The Department, for and in consideration of the complete and timely
performance by Respondent of all the obligations agreed to in this Order, hereby
conditionally waives its right to seek judicial imposition of damages or civil penalties
for the violations described above up to the date of the filing of this Order. This waiver
is conditioned upon Respondent's complete compliance with all of the terms of this
Order.
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Consent Order 23-1330
18. This Order is a settlement of the Department's civil and administrative
authority arising under Florida law to resolve the matters addressed herein. This Order
is not a settlement of any criminal liabilities which may arise under Florida law, nor is
it a settlement of any violation which may be prosecuted criminally or civilly under
federal law. Entry of this Order does not relieve Respondent of the need to comply with
applicable federal, state, or local laws, rules, or ordinances.
19. The Department hereby expressly reserves the right to initiate
appropriate legal action to address any violations of statutes or rules administered by
the Department that are not specifically resolved by this Order.
20. Respondent is fully aware that a violation of the terms of this Order may
subject Respondent to judicial imposition of damages, civil penalties up to $15,000.00
per day per violation, and/or criminal penalties.
21. Respondent acknowledges and waives its right to an administrative
hearing pursuant to sections 120.569 and 120.57, F.S., on the terms of this Order.
Respondent also acknowledges and waives its right to appeal the terms of this Order
pursuant to section 120.68, F.S.
22. The terms and conditions set forth in this Order may be enforced in a
court of competent jurisdiction pursuant to sections 120.69 and 403.121, F.S. Failure to
comply with the terms of this Order constitutes a violation of section 403.161(1)(b), F.S.
23. This Consent Order is a final order of the Department pursuant to
section 120.52(7), F.S., and it is final and effective on the date filed with the Clerk of the
Department unless a Petition for Administrative Hearing is filed in accordance with
Chapter 120, F.S. Upon the timely filing of a petition, this Consent Order will not be
effective until further order of the Department.
24. Respondent shall publish the following notice in a newspaper of daily
circulation in Palm Beach County, Florida. The notice shall be published one time only
within 30 days of the effective date of the Order. Respondent shall provide the
Department a certified copy of the published notice within 10 days of publication.
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Consent Order 23-1330
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
NOTICE OF CONSENT ORDER
The Department of Environmental Protection ("Department") gives
notice of agency action of entering into a Consent Order with CITY OF
BOYNTON BEACH pursuant to section 120.57(4), Florida Statutes. The
Consent Order addresses the Sanitary Sewer Overflow described in State
Watch Office # 2023-5384 at impacting the Intracoastal Waterway near East
Ocean Boulevard in Boynton Beach. The Consent Order is available for
public inspection during normal business hours, 8:00 a.m. to 5:00 p.m.,
Monday through Friday, except legal holidays, at the Department of
Environmental Protection, 3301 Gun Club Road, MSC 7210-1 West Palm
Beach, FL 33406
Persons who are not parties to this Consent Order but whose
substantial interests are affected by it have a right to petition for an
administrative hearing under sections 120.569 and 120.57, Florida Statutes.
Because the administrative hearing process is designed to formulate final
agency action, filing a petition concerning this Consent Order means that
the Department's final action may differ from the position it has taken in
the Consent Order.
The petition for an administrative hearing must contain all of the
following information:
a) The name and address of each agency affected and each agency's file or
identification number (Consent Order 23-1330);
b) The name, address, e-mail address, facsimile number, and telephone
number of the petitioner if the petitioner is not represented by an attorney or a qualified
representative;
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Consent Order 23-1330
c) The name, address, and telephone number of the petitioner's
representative (if any),which shall be the address for service purposes during the course
of the proceeding;
d) An explanation of how the petitioner's substantial interests will be
affected by the agency determination;
e) A statement of when and how the petitioner received notice of the
agency decision;
f) A statement of all disputed issues of material fact. If there are none,the
petition must so indicate;
g) A concise statement of the ultimate facts alleged, including the specific
facts the petitioner contends warrant reversal or modification of the agency's proposed
action;
h) A statement of the specific rules or statutes the petitioner contends
require reversal or modification of the agency's proposed action,including an explanation
of how the alleged facts relate to the specific rules or statutes; and
i) A statement of the relief sought by the petitioner, stating precisely
the action petitioner wishes the agency to take with respect to the agency's proposed
action.
The petition must be filed (received) at the Department's Office of General
Counsel, 3900 Commonwealth Boulevard, MS# 35, Tallahassee, Florida 32399-3000 or
received via electronic correspondence at Agency_Clerk@floridadep.gov,within 21 days
of receipt of this notice. A copy of the petition must also be mailed at the time of filing to
the Southeast District Office at 3301 Gun Club Road, MSC 7210-1 West Palm Beach, FL
33046. Failure to file a petition within the 21-day period constitutes a person's waiver of
the right to request an administrative hearing and to participate as a party to this
proceeding under sections 120.569 and 120.57, Florida Statutes. Before the deadline for
filing a petition, a person whose substantial interests are affected by this Consent Order
FDEP v. City of Boynton Beach Page 12 of 22
Consent Order 23-1330
may choose to pursue mediation as an alternative remedy under section 120.573, Florida
Statutes. Choosing mediation will not adversely affect such a person's right to request an
administrative hearing if mediation does not result in a settlement. Additional
information about mediation is provided in section 120.573,Florida Statutes and Rule 62-
110.106(12), Florida Administrative Code.
25. Electronic signatures or other versions of the parties' signatures, such as
.pdf or facsimile, shall be valid and have the same force and effect as originals.
26. No modifications of the terms of this Order will be effective until reduced
to writing, executed by both Respondent and the Department, and filed with the clerk
of the Department.
27. The rules referenced in this Consent Order may be examined at any
Department Office or may be obtained by written request to the District Office
referenced in Paragraph 11 above. The rules referenced in this Consent Order are also
available at: https:/Ifloridadep.gov/ogc/ogc/content/rules.
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Consent Order 23-1330
FOR THE RESPONDENT: CITY OF BOYNTON BEACH
The undersigned certifies that as the Mayor of the City of Boynton
Beach, he is authorized and empowered to negotiate, enter into and execute, in the name
and on behalf of the Respondent, CITY OF BOYNTON BEACH, this Consent Order, entered
into between Respondent and the State of Florida Department of Environmental
Protection.
' /000Z/
Ty Penserg. Date
Mayor, Cit .f Boynton Beach
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FDEP v. City of Boynton Beach Page 14 of 22
Consent Order 23-1330
DONE AND ORDERED this # day of Month, Year, in County, Florida.
STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Sirena Davila District
Director Southeast District
Filed, on this date, pursuant to section 120.52, F.S., with the designated Department
Clerk, receipt of which is hereby acknowledged.
Clerk Date
Copies furnished to:
- Kathryn Rossmell, Esq., Counsel for Respondent (krossmell@llw-law.com)
- FDEP Agency Clerk- Lea Crandall
- Kelley F. Corbari, FDEP Sr. Asst. General Counsel Kelley.Corbari@FloridaDEP.gov
FDEP v. City of Boynton Beach Page 15 of 22
Consent Order 23-1330
EXHIBIT A
IN-KIND PROJECTS
Introduction
Proposal
a. Within 60 days of the effective date of this Consent Order, or of the Department's
notification that applying stipulated penalties to an in-kind project is acceptable, Respondent
shall submit a detailed in-kind project proposal to the Department for evaluation. The
proposal shall include a summary of benefits, proposed schedule for implementation and
documentation of the estimated costs which are expected to be incurred to complete the project.
These costs shall not include those incurred in developing the proposal or obtaining approval
from the Department for the in-kind project.
b. If the Department requests additional information or clarification due to a
partially incomplete in-kind project proposal or requests modifications due to deficiencies with
Department guidelines,Respondent shall submit all requested additional information,
clarification, and modifications within 15 days of receipts of written notice.
c. If upon review of the in-kind project proposal, the Department determines that
the project cannot be accepted due to a substantially incomplete proposal or due to substantial
deficiencies with minimum Department guidelines; Respondent shall be notified,in writing, of
the reason(s) which prevent the acceptance of the proposal. Respondent shall correct and
redress all the matters at issue and submit a new proposal within 30 days of receipt of written
notice. In the event that the revised proposal is not approved by the Department, Respondent
shall make cash payment of the penalties as set forth in paragraph 7 above, within 30 days of
Department notice.
d. Within 120 days of the effective date of this Consent Order, or of the
Department's notification that applying stipulated penalties to an in-kind project is acceptable,
Respondent shall obtain approval for an in-kind project from the Department. If an in-kind
project proposal is not approved by the Department within 120 days of the effective date of this
Consent Order or of the Department's notification that applying stipulated penalties to an in-
kind project is acceptable, then Respondent shall make cash payment of the stipulated penalties
FDEP v. City of Boynton Beach Page 16 of 22
Consent Order 23-1330
as set forth in paragraph 7 above,within 30 days of Department notice.
e. Within 180 days of obtaining Department approval for the in-kind proposal or in
accordance with the approved schedule submitted pursuant to paragraph (a) above,
Respondent shall complete the entire in-kind project.
f. During the implementation of the in-kind project, Respondent shall place
appropriate sign(s) at the project site indicating that Respondent's involvement with the project
is the result of a Department enforcement action. Respondent may remove the sign(s) after the
project has been completed. However, after the project has been completed Respondent shall
not post any sign(s) at the site indicating that the reason for the project was anything other than
a Department enforcement action.
g. In the event Respondent fails to timely submit any requested information to the
Department,fails to complete implementation of the in-kind project or otherwise fails to comply
with any provision of this paragraph, the in-kind penalty project option shall be forfeited, and
the entire amount of civil penalties shall be due from the Respondent to the Department within
30 days of Department notice. If the in-kind penalty project is terminated and Respondent
timely remits the cash payment of assessed penalty,no additional penalties shall be assessed for
failure to complete the requirement of this paragraph.
h. Within 15 days of completing the in-kind project, Respondent shall notify the
Department of the project completion and request a verification letter from the Department.
Respondent shall submit supporting information verifying that the project was completed in
accordance with the approved proposal and documentation showing the actual costs incurred to
complete the project. These costs shall not include those incurred in developing the proposal or
obtaining approval from the Department for the project.
i. If upon review of the notification of completion, the Department determines that
the project cannot be accepted due to a substantially incomplete notification of completion or
due to substantial deviations from the approved in-kind project; Respondent shall be notified,
in writing, of the reason(s) which prevent the acceptance of the project. Respondent shall
correct and redress all the matters at issue and submit a new notification of completion within
15 days of receipt of the Department's notice. If upon review of the new submittal, the
Department determines that the in-kind project is still incomplete or not in accordance with the
FDEP v. City of Boynton Beach Page 17 of 22
Consent Order 23-1330
approved proposal, the in-kind penalty project option shall be forfeited, and the entire amount
of the assessed penalty shall be due from the Respondent to the Department within 30 days of
Department notice. If the in-kind penalty project is terminated and Respondent timely remits
the cash payment of the assessed penalty,no additional penalties shall be assessed for failure to
complete the requirements of this paragraph.
FDEP v. City of Boynton Beach Page 18 of 22
Consent Order 23-1330
EXHIBIT B
P2 PROJECTS
P2 Project Plan (Plan)
(Note: Provide the information specified and delete existing text within parentheses)
(Facility Name)
(Address)
(Telephone)
(Preparer Name/Title)
A. Project Description: (Summarize P2 Projects selected. Describe the processes or
operations to be modified, and the specific changes to be made. Include details such as the
specific equipment to be installed, materials to be substituted, and the actual changes to be
made to processes or operations. Include manufacturer or vendor information, and
specifications.)
B. Environmental and Economic Benefits: (Explain why and how each Project proposed
constitutes P2.
Specify how each material,chemical,water and energy is saved, and from which processes or
operations. Specify how each solid and hazardous waste, industrial wastewater and air
emissions are generated,the waste type, and from which processes or operations. Describe
generally in paragraph format.
Estimate the annual savings in resources-raw materials,chemicals,water, and energy at the
process or operation front end. Estimate the annual reductions in wastes-solid and hazardous
waste,wastewater, and air emission reductions at the process or operation back end.
Figures quoted should represent weights or volumes annually, and should be equalized for
production rate changes. Associated cost savings should be included. Describe specifically
using the tables provided.
Complete the first table for each per Project individually. Add or average corresponding
figures from each Project table to complete the Plan table,for multiple Projects.)
(Project Name)
Annual Resource Consumption Comparison
Quantity Used (gal/lb/kwh-specify) Purchasing Cost ($) Percent
Item Before After Reduction Before After Reduction (0/0)
Reduction
Water
FDEP v. City of Boynton Beach Page 19 of 22
Consent Order 23-1330
Chemicals
Materials
Energy
Total Annual Cost Savings =
Annual Waste Generation Comparison
Quantity Generated (gal/lb/tons- Disposal Cost($) Percent
Item specify) (%)
Before After Reduction Before After Reduction Reduction
Hazardous Waste
Industrial Wastewater
Solid Waste
Air Emissions
Total Annual Cost Savings =
Total Annual Avoided Cost Savings =
Summary of All P2 Projects
Annual Resource Consumption Comparison
Quantity Used (gal/lb/kwh-specify) Purchasing Cost ($) Percent
Item Before After Reduction Before After Reduction (%)
Reduction
Water
Chemicals
Materials
Energy
Total Annual Cost Savings =
Annual Waste Generation Comparison
Quantity Generated (gal/lb/tons- Disposal Cost($) Percent
Item specify) (%)
Before After Reduction Before After Reduction Reduction
Hazardous Waste
Industrial Wastewater
Solid Waste
Air Emissions
Total Annual Cost Savings =
Total Annual Avoided Cost Savings =
C. Project Cost: (Include per Project the itemized, subtotal and Project total costs. A
projected payback period in months or years needs to be included.
Provide a grand total cost for all Projects and an averaged projected payback period,for multiple
FDEP v. City of Boynton Beach Page 20 of 22
Consent Order 23-1330
Projects. Use list or table format for all.)
D. Implementation Schedule: (Provide a brief discussion of the steps necessary to
implement the Projects and expected time frames for completion. A table or list format is
preferred. The schedule shall include a list of milestones with dates, or timeframes based on
Plan approval date, including Progress and Final Report submittals. Provide a description of
any anticipated problems and options. The implementation should take no longer than six months to
complete.)
E. Project Reporting:
1. Within 90 days of approval of the Project Plan, the Respondent shall submit a P2
Project Progress Report to the Department that describes the Respondent's progress in
implementing the P2 Project and meeting the requirements in the Plan, and includes a list of
equipment ordered, purchased, and/or installed.
2. Within 180 days of approval of the Plan, the Respondent shall submit to the
Department a P2 Project Final Report that includes the following.
a. A confirmation that the information presented in Sections A-C of the
Summary is unchanged,or an updated version with the sections changed appropriately. A
statement that the Project(s) was/were implemented successfully. An explanation of any
problems encountered and corrections applied.
b. Attached expense reports,receipts,purchasing instruments and other
documents itemizing costs expended on preparing and implementing the Project.
3. The Department shall review the Final Report and determine:
a. Whether the project was properly implemented; and
b. Which expenses apply toward pollution prevention credits.
4. A$1.00 pollution prevention credit for each$1.00 spent on applicable costs will
be applied against the portion of the civil penalty that can be offset.
a. The following costs are allowable to offset the allowable amount of the
civil penalty:
i. Preparation of the P2 Project;
ii. Design of the P2 Project;
iii. Installation of equipment for the P2 Project;
iv. Construction of the P2 Project;
v. Testing of the P2 Project;
vi. Training of staff concerning the implementation of the P2 Project; and
vii. Capital equipment needed for the P2 Project.
b. The following costs shall not apply toward P2 credit:
i. Costs incurred in conducting a waste audit;
ii. Maintenance and operation costs involved in implementing the P2
Project;
iii. Monitoring and reporting costs;
FDEP v. City of Boynton Beach Page 21 of 22
Consent Order 23-1330
iv. Salaries of employees who perform their job duties;
v. Costs expended to bring the facility into compliance with current law,
rules and regulations;
vi. Costs associated with a P2 Project that is not implemented;
vii. Costs associated with a P2 Project that has not been approved by the
Department; and
viii. Legal costs.
c. If any balance remains after the entire P2 credit is applied to the allowable
portion of the civil penalty, Respondent shall pay the difference within 30 days of written
notification by the Department to the Respondent that the balance is due.
5. The Department may terminate the P2 Project at any time during the development
or implementation of it, if the Respondent fails to comply with the requirements in this
document, act in good faith in preparing and implementing the project, or develop and
implement the P2 Project in a timely manner. The Respondent may terminate the P2 Project at
any time during its development or implementation.
FDEP v. City of Boynton Beach Page 22 of 22
Consent Order 23-1330
EXHIBIT C
P2 PROTECTS
P2 Project Progress/Final Report(Report)
(Note: Provide the information specified and delete existing text within parentheses)
(Facility Name)
(Address)
(Telephone)
(Preparer Name/Title)
A. Project Description: (Confirm that the Project(s) were implemented as originally described in
the P2 Project Summary/Plan, or explain and justify any changes made. Summarize any changes
made from the original description by revising details for equipment installed, materials
substituted, and the actual changes made to processes or operations. Include any changed
manufacturer or vendor information, and specifications.)
B. Environmental and Economic Benefits: (Confirm that the natures and types of resources,
and wastes predicted to be affected in the original Summary/Plan, are unchanged. Describe and explain
any notable changes in resources saved up front, or wastes reduced at back of affected processes, or
operations. Specify the types and nature of each change. Update the original table, as
applicable.)
Insert the original table(s) from this Section of the Summary or Plan. Update information for
any changed resource or wastes. Correct numbers presented in the table(s)for any parameters
actually monitored-only if results monitoring was included as part of implementation in the original
Summary or Plan.)
C. Project Cost: (Include per Project the actual itemized, subtotal and project total costs
realized for each element and component of the project-including any changed items or costs.
The projected payback period in months or years needs to be confirmed or corrected.
Provide a grand total cost for all Projects and an averaged projected payback period,for multiple
Projects. Use list or table format for all.)
D. Project Reporting:
(Indicate both the dates the Project was started and completed. Confirm that the
information presented in Sections A-C of the Plan is unchanged, or that sections have been
changed appropriately. Provide a statement that the Project(s) was/were implemented
successfully, and explanation of potential problems and corrections applied. Attach expense
reports, receipts, purchasing instruments and other documents itemizing costs expended on
preparing and implementing the Projects.)