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C O l"SENT ORDER I SSUE D UN D E R

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WA T E R P O L LU TI ON

**TI ~OL**  ACT WEST V IRGI N IA CO D E, C II APTER 22, ART ICLE II TO : Ci ty of Wh c.:c lin g Rusty Jebbia. Director o r Public Works PO Box 63-IR Wheeling

. \VV 26003

J l"TRODUCTION 0 :\TE:

**~fay 2011**  ORDER NO.: 7003

Th is Con

. ent Or de r is is s ued

**b~** the Director of the Di' ision of Watc.:r and \\ "aste \ lanagcmcnt (hereinafter

**·Oir~:: ctor** 

**'"**

**.** under

**th ~::**  authority of \\ 'e s t Virginia Code. Chapter 22. Article II. Section I et seq. to C ity of Whee lin g (hereinafter "Wheeling").

F I NO J !'iGS O F FAC T In suppon or thi s Order. the Director hereby finds the following: I

. Wheel ing operates a Public Owned Treatment Work s (J>OTW) locat ed in Wheeling. Ohio Cou nty, \Ves t Virginia. Wheeling was iss ued \\'V/N PDE S \\'ater Po lluti o n Com rol Pcnni t

**o.** \\'V0023230 on June 9

. 2006. 2. Liqui d As se t Disposal (LI\D) is a pri vate ly owned spec ial ty wastewater rece ivin g and treatment systc.: m in Wheeling. Ohio Coumy. West Virginia which accepts. or previou sly m:ccpted. a 'ariety of wa s tcwnter by tank truck s from so urce s associated with sepw gc and SC \\ age faci I it il.: s . s tom1 water fro m an intcrnnti o nal airport. wastewat er assoc iated with gas \\'ell dcvdopment nnd production. an d other wastc s treams from o th er acti\'i ti cs. 3. LAD is reco g ni zed by Wheeling as a Significant Indu s trial User (S IU) and is authorii'cd to di sc harge into Whecling ·s wastewater collection an d treatment sys tem by SIU Permit No

. 00 1-1 which expired o n September 30

. 2009 and was admi ni strati"cly l.!Xtcnded by \\'heeling. on a number or occasions. to 1\ larch 31. 20 I0. P romoting a hea lthy e nvironm e nt.City of Wheeling Consent Order Page2
4. SIU Permit No. 0014 issued to LAD by Wheeling allows LAD to discharge a maximum daily flow of200,000 gallons per day, except for a variance ofan additional 35,000 gallons per day from April 2, 2008 to January 1, 2009. 5. SIU Permit No. 0014 also limited the acceptance ofindustrial wastewater from the following: Columbia, People and East Ohio Gas Companies, Alta Corporation, Pittsburgh International Airport, Union Camp "A", American Truck Wash and various fast food restaurants. 6. Although violations noted within this paragraph have been addressed and are not currently occurring or continuing, the information provided herein establishes an historic rationale for the penalty assessed. On November 6, 2008, West Virginia Department of Environmental Protection (WVDEP) issued Order 6568 to Wheeling requiring the following:

a. Wheeling shall immediately modify its permit to LAD to include chloride limitations of9,000 lbs/day maximum daily and 6,000 lbs/day average monthly. Wheeling was further advised to conduct an evaluation to inhibit interference and was permitted to impose limits more stringent than required by this Order. b. Wheeling shall monitor chloride at Outlet 001 once per week and comply with the chloride limitations of 1,238 mgll average monthly and 2,484 mgll maximum daily.
c. Within ninety (90) days, Wheeling shall submit a permit modification application to the WVDEP to incorporate a local limit for chlorides. d. Wheeling shall use a new DMR for the remainder ofits WV/NPDES permit. Wheeling implemented this requirement. Wheeling did not appeal the conditions ofOrder 6568. 7. From chloride sampling data submitted by Wheeling and collected by Wheeling (denoted in red) and LAD (denoted in black) (refer to Table 1), LAD exceeded its 9,000 pound daily chloride limitation fifty (50) times from January 8, 2009 to February 4, 2010, a violation ofthe terms and conditions ofOrder 6568, a violation ofthe Code of West Virginia. Chapter 22, Article 11, Section I et seq. {§22-1 I- I et seq.). 8. By correspondence dated February 3, 2009 from Wheeling to WVDEP, Wheeling submitted a proposed timeline and requested an extension to submit a permit modification application to incorporate a local limit for chlorides as required by Order 6568. 9. On April21-22, 2009, WVDEP conducted a sampling inspection at LAD and determined LAD had failed to comply with Wheeling's SIU permit. Specifically, WVDEP identified and sampled industrial wastewater from tank trucks hauling wastewater associated with Marcellus shale drilling activity and discovered several violations. To date, Wheeling has failed to enforce the terms and conditions ofits Industrial User Permit Program.City ofWheeling Consent Order Page3
I0. On or about July 21, 2009, a plant upset began to develop at the Wheeling POTW which required several weeks of vigilant action necessary to recover, including the introduction of"seed" sludge from a neighboring POTW. II. On August 4, 2009, WVDEP personnel conducted a Pretreatment Compliance Inspection (PCO at Wheeling and detennined several deficiencies. 12. Although violations noted within this paragraph have been addressed and are not currently occurring or continuing, the infonnation provided herein establishes an historic rationale for the penalty assessed. On August 11, 2009, WVDEP issued Order 6568, Amendment Number 1 to Wheeling requiring the following:

a. Wheeling shall conduct a head-works analysis and establish a Maximum Allowable Headworks Loading (MAHL) for the pollutants ofconcern listed in the findings of fact. Ifthe actual loading ofany ofthe pollutant is more than 20% ofthe MAHL, a local limit must be developed for the pollutant and adopted. Wheeling must also develop a local limit for all pollutants that may cause interference, inhibition, or pass through at the POTW. Wheeling contracted KLH Engineers to conduct this study and provide recommended Maximum Allowable Industrial Loads (MAIL) for chlorides only. To date, the loading study for the additional pollutants ofconcern has not been conducted, a violation ofthe tenns and conditions ofOrder 6568 Amendment Number I (a violation of §22-11-1 et seq.). b. Oil and gas related wastewaters shall not be introduced or connected into a combined sewer at a point where there are combined sewer overflows between the introduction/connection point and the headworks. Wheeling has a total offour points in the collection system identified as combined sewer overflows between LAD and the POTW. Two, identified as Wl6 and W18, are located in such a manner that an overflow from either point is extremely unlikely due to its configuration and construction. The remaining two, identified as WI R and 0 IOR/002, are located between LAD and the POTW headworks and capable ofdischarging a percentage of LAD wastewater into the receiving stream. All are violations ofthe terms and conditions ofOrder 6568, Amendment Number 1 (a violation of §22-11-1 et seq.), and its WVINPDES pennit

c. Wheeling shall conduct a thorough testing on the nondomestic wastewater to detennine if it is pennissible and does not cause a fire or explosion hazard. On or before September 1 S, 2009, Wheeling shall modify its permit to LAD to require regular closed cap tlashpoint testing and to impose a minimum tlashpoint limitation of 140 degrees Fahrenheit. To date, Wheeling has failed to implement this requirement, a violation ofthe tenns and conditions ofOrder 6568, Amendment Number I (a violation of §22-11·1 et seq.). d. Due to the nature ofthe organic pollutants present in the nondomestic wastewater, Wheeling shall evaluate, on or before January 31, 2010, the necessity ofestablishing limits to be protective of workers. To date, Wheeling has failed to implement thisCity ofWheeling Consent Order Page4 requirement, a violation ofthe terms and conditions ofOrder 6568, Amendment Number 1 (a violation of §22-11-1 et seq.).

e. Wheeling shall take measures to ensure that the acceptance of LAD wastewater during wet weather does not lead to increased wet weather discharges from CSOs. f. Wheeling shall determine, on or before January 31,2010, ifthe wastewater is a hazardous waste. To date, Wheeling has failed to implement this requirement, a violation ofthe terms and conditions ofOrder 6568, Amendment Number 1 (a violation of §22-11-1 et seq.).
g. Wheeling shall coordinate with the Nuclear Regulatory Commission and/or WV Department ofHealth on or before January 31, 201 0 to determine what approvals might be necessary to accept Technology Enhanced Naturally Occurring Radioactive Materials (TENORM). h. Wheeling shall begin monthly composite (when permissible by method) monitoring for the pollutants listed in the Order at the discharge from Outlet 001 on or before September 2009.

1. Extended the deadline to January 31, 201 0 for submittal ofa permit modification application to the WVDEP to incorporate a local limit for chlorides. j. Wheeling shall continue to evaluate and determine the cause ofthe operational issues with its UV disinfection system and take corrective actions before January 31, 2010. Wheeling did not appeal the conditions ofOrder 6568, Amendment No. 1. 13. Although violations noted within this paragraph have been addressed and are not currently occurring or continuing, the information provided herein establishes an historic rationale for the penalty assessed. On August 21,2009, a meeting between Wheeling and LAD was held. A copy ofminutes recorded at the meeting revealed:

a. Wheeling admits that it is taking oil and gas wastewater "well above the 1% that is allowed". b. Wheeling expressed concerned about the lack ofdiversity in microorganisms and that the plant was essentially dead. c. Wheeling acknowledged that the LAD discharge killed the plant. d. Wheeling acknowledged statements from employees about uncharacteristic strong offensive odors causing breathing difficulty and light headedness. e. Wheeling acknowledged that the UV system was previously working but are now utilizing chlorination for disinfection and are experiencing an abnormally high chlorine demand. f. Wheeling acknowledged that LAD has been 

### in violation of Wheeling's SIU Permit No. 0014 as amended by Order 6568. g. Wheeling acknowledged that it had received a large volume ofblack solids from LAD since July.City of Wheeling Consent Order PageS h. Wheeling acknowledged that it, and LAD, had an ongoing grave situation and Wheeling could not wait 18 months for resolution. 14. By correspondence dated August 21,2009 from Wheeling to LAD, LAD was instructed to immediately cease acceptance and disposal ofany oil and gas related wastewater. This letter further clarified the directive as a mandate from WVDEP due to the existence of Combined Sewer Overflows (CSO) located between the LAD discharge into the sewer system and the Wheeling POTW. 15. By correspondence dated August 25,2009 from Wheeling to WVDEP, Wheeling confirmed that the POTW was recovering from "upsetn conditions and confirmed that LAD had ceased acceptance ofoil and gas wastewater into its system. Wheeling also confirmed that "seedn (from a neighboring POTW) had been introduced into its system to facilitate the recovery and offered hope that the facility would "come into compliance very shortlyn. 16. By correspondence dated September 21, 2009 from Wheeling to LAD, Wheeling extended SIU Permit No. 0014 to LAD until November 30,2009. The daily maximum flow was authorized as 200,000 gpd with no limitations on chloride. 17. By correspondence dated September 24,2009 from Wheeling to WVDEP, Wheeling requested written relief from Order 6568, Amendment Number 1. To date, relief has not been granted and the Order remains in full force and effect. 18. By report dated October 2009, KLH Engineers provided results ofa Maximum Allowable Headworks Loading {MAHL) analysis for Wheeling. The analysis recommended a Maximum Daily Industrial Load (MAIL) chloride concentration of 1,806 mg/1 from each ofits four industrial users. KLH further provided a balanced limit for the four industrial users by recommending that LAD have a chloride mass limit of3,723.80 lbs/day, a chloride concentration limit of 1,900 mg/1 and allotted a maximum daily flow of235,000 gallons. 19. On November 17, 2009, WVDEP conducted a Compliance Evaluation Inspection at Wheeling and documented several deficiencies.

a. Wheeling failed to comply 

### with all ofthe terms and conditions ofOrder 6568 and subsequent Addendum Number 1. b. The discharge from Wheeling was slightly turbid and causing a crispy white foam in the receiving stream, a violation of Legislative Rule, Title 47, Series 2, Section 3 {47CSR2-3). In response to a WVDEP Notice ofViolation issued to Wheeling on August 10,2007, Wheeling committed {by letter dated September 2, 2007) to control foam by dripping defoamer into the wastewater effluent. c. Wheeling was experiencing operational interference, inefficiency, or possible upset as diagnosed by several indicators including increase chlorine demand, sagging dissolved oxygen, loss ofclarity in effluent, ultra-violet disinfection failures and suspicious odors, all ofwhich were previously identified by Wheeling during upset conditions in July 2009. d. Wheeling had failed to enforce its Industrial User Permitting authority.City ofWheeling Consent Order Page6 20. By correspondence dated November 20, 2009 from Wheeling to LAD, Wheeling extended SIU Pennit No. 0014 to LAD until January 31, 2010. Further, the correspondence stated that the discharge limits may be affected by a wastewater treatment plant headwork's analysis that Wheeling had recently received and that the Wheeling pretreatment coordinator would communicate any details ofrequired changes to LAD as soon as possible. 21. By correspondence dated December I, 2009 from WVDEP to Wheeling, Wheeling was notified that USEPA rules for pretreatment program had been adopted by WVDEP and Wheeling must implement the same into its regulatory program. Wheeling was further advised to submit a pennit modification on or before June I, 201 0. 22. On January 21, 20 I0, during routine activities in the vicinity ofWheeling's Outlet 00 I, WVDEP discovered "Conditions Not Allowable", a significant amount ofcrispy white foam floating on the Ohio River emanating from and downstream ofWheeling's Outlet 001, a violation of47CSR2-3. Notice ofViolation No. NW-EAD-012110-001 was issued. 23. On January 21-22, 20 I0, WVDEP conducted a reconnaissance inspection at Wheeling and documented several deficiencies.

a. Wheeling failed to comply with all ofthe tenns and conditions of0rder6568 and subsequent Addendum Number 1 (a violation of §22-11-1 et seq.). b. The discharge from Wheeling was turbid and causing a crispy white foam in the receiving stream, a violation of47CSR2-3. c. Wheeling failed to operate the defoamer unit, a violation of its WV/NPDES pennit (Appendix A.II.l ). d. Wheeling was experiencing operational interference, inefficiency, or possible upset as diagnosed by several indicators including sagging dissolved oxygen, loss ofeffluent clarity, ultra-violet disinfection failures and suspicious odors, all ofwhich have previously been identified by Wheeling during upset conditions in July 2009. e. Wheeling affinned that it had experienced a "pass-through" ofa pink color after it was noted by WVDEP that the foam present in the effluent channels had a pink color, a violation of47CSR 10-14. The pink coloring was attributed by Wheeling to a confinned "red" effluent coming from LAD on January 20,2010. f. Wheeling failed to report an unlawful discharge ofred color, a violation of47CSR11- 

### 2. g. Wheeling has failed to enforce its Industrial User Pennitting authority. 24. By correspondence dated January 26, 20 I0 from Wheeling to LAD, Wheeling extended SIU Permit No. 0014 to LAD until March 31, 2010. Further, the correspondence stated that the discharge limits may be affected by a wastewater treatment plant headwork's analysis that Wheeling had recently received and that the Wheeling pretreatment coordinator would communicate any details ofrequired changes to LAD as soon as possible.City ofWheeling Consent Order Page7 25. A review ofWheeling's Discharge Monitoring Reports for 2008 and 2009 revealed eighteeen ( 18) excursions (refer to Table 2). 26. To date, Wheeling has not enforced SIU Permit No. 0014 issued to LAD. 27. On March I, 2010, WVDEP received Wheeling's annual pretreatment implementation activities report for January 1 thru December 31, 2009. Upon review ofthe annual report, WVDEP personnel determined that it revealed the following violations: a) Wheeling granted administrative extensions ofSIU permits for LAD, Swisher International, Allied Waste and North Park Landfill, all violations ofits WVINPDES permit (Section E.4.a). b) The annual report did not include: copy(ies) ofthe publication(s) ofthe SIU's in significant non-compliance (SNC), as required by its WV/NPDES permit (Section E.4.d); did not include a description oftimely and appropriate enforcement action taken by Wheeling to address LAD's SNC ofits chlorides limitation, a requirement of its WV/NPDES permit (Section E.4.e); and, did not provide a summary of violations regarding LAD's significant non-compliance ofits chlorides limitation, a requirement ofits WV/NPDES permit (Section E.6.d); all are violations ofits WV/NPDES permit (Section E.6.d). 28. On May 6, 2010, Wheeling representatives met with WVDEP personnel to discuss the draft Order. Wheeling submitted information for WVDEP's consideration, including a request to have its ability to pay a civil administrative penalty evaluated. Subsequent to the meeting, Wheeling submitted additional financial information related to that request. Upon review, in accordance with USEPA economic models, it was determined that Wheeling has a reduced ability. 29. Wheeling's additional information indicated that it was no longer accepting oil and gas wastewater into its system. The other information submitted by Wheeling warranted no additional changes to the draft Order.Tabl e I

1 /8/2009 1 6 071 1 /23 /2009 17 247 112911 009 21.559 21612009 30,525 2/6/2009 39 I 89 21 10/2009 15,91./ 2/ 10 /2009 18.-1 23 2111/2009 J?, 833 211212009 18,037 2112/2009 2 1.559 2

119/2009 /5,835 2/ 19/2009 17. 639 3/-1/2009 I05 .83-1 3/ 12/2009 70.556 3/19/2009 97.995 3/27/2009 43.118 31

3112009 28,847 4/ 1 /2 00 9 3 1 .384 41 1 12009 32,111 .J

/21 2009 }1.331 41

312009 5, 7 44 4

/

4

12 009

**2~.601** 41512009 43,564 4/ 8/2009 39 1 98 41812009 20,215 4

19/2009 36, l18 4

11012009 29,627 4

1 11/2009 20,435 4112 /

2009 205 4/ 17/2009 54,877 -1/23/2009 31,38 -1 -1/30/2009 35

. 278 517 1 2009 II 367 5/1 4/2009 39 1 98 5/2 1 /2009 23 519 5/27/2009 35,278 5

/

27/2009 36,033 6/-1/ 2009 25.479 C it ) o f Wheeling Consent Order Page 8

6/ 12/2009 31.358 6/ 18/2009 33

. 3 1 8 6

11812009 2 7 , 205 6/25/2009 50 .957 7/2/2009 17.639 71212 009 15,9 73 7 11 0/2009 35 .278 7/ 16/2009 39, 198 7/23/2009 48.998 8/6/2009 25. -179 8/ 14/2009 27 .439 8/ 18/2009 23 .519 8: 18 12009 17 ,564 S/

25 12009 I 6 7 3 8/27/2009 19-1 8

12 712 009 966 8

12812009 3232 9/ 1 /2 00 9 550 9 / 1/2009 406 9/2/2009 314 9 /212009 41 7 9 /312009 1014 9/4 12009 Ill 9

151 2009 191 91612009 1 79 9

1912009 1307 9/l 0/2 00 9 4560 9 / 1012 009 6071 9111/2009 

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1 1 112009 501 9/ 17/2009 1763 9/ 18/2009 780 9 //lJ /2009 1388 9/24/2009 1949 9

124 12009 2308 9/25/2009 2565 9 /25 12009 40 7 4 9/29/2009 8119**Cit~** of Wheeling Conse nt Order Pngc 9 Ta bl e I (con tinu ed)
112112010 3256 -t63 6 11221 2010 1057 9.]0/]009 5801 112312010 1792 I(} I012009 1849 1124 12010 96 I011/2009 282 1 /26 12 () 1() 1127 I 01 21

2009 4837 1 127 12010 353 10

! 2r 1009 66!)9 I '2 t/12 IJ10 742 I0

/6/2009 91

**~** _) 1 12912010 270 ltJ/61 2009 1 909 1 13 0120 I() 1990 10

/7/2009 5

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**0~** 1 13 112{) 1{) 105,') 10

171 2009 4521 21 11201 () 371 IO

t8 1 2009 3337 21 2/2(} I(} 2326 /()811009 3622 21 312010 3211 I0

/9/2009 6633 2f.l l 2() I 0 1384 /{}

**2009** 746

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**1~ 2009**  I 6179

1- Ifl 14 12009 45.f3 r _ _! _(J

/ 1512009 5735 10 16 • 2009 4035 I0 '23/2009 377 I I0

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2009 f-- 722

**19 2009**  849

**12 412009**  829
I 121 tV· '2009 532 121 16 1 2009 468 121 23/2009 1800 12/ 2912009 590 f. 7 120 10 7 93 1 /9 1 2010 276 1102010 238 

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.. 2010 541 J I J./ 120](1 l.f6.f /, 1512010 -I 459 1 /6.2010 439 1.1 71 2010 

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# I 11912010 526 I 20 '2010

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Parameter Limit (mg/1 1 count s , or '% ) Fecal Co liform 

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ecal Coliform 400' cnts Fecal Col if om1 

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- 15 ·' mg/1 % 1300 > 85 %- t \mmonia 30 1 mul l



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I **Ci t~**  of \\'ht:chng Const:n t Orde r Page I0

Repo rted (m g/1 1 cou nts or % }

>600 ClliS I >GOO C lli S 4 I0 ClliS 420 cnts 600 Cll i S

- 600 Cll i S 33 .1 mg/ 1 45.3 m g/1 84.7 °u 33.1

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7 111 I ' IORDER FOR COMPLIANCE City ofWheeling Consent Order Page II

Now, therefore, 

### in accordance with Chapter 22, Article 11, Section 1 et seq. ofthe West Virginia Code, it is hereby agreed between the parties, and ORDERED by the Director: 1. Whee1ing shall immediately take all measures to initiate compliance with all tenns and conditions ofits WV/NPDES pennit. 2. Administrative Order No. 6568 and Amendment No. 1 to Order No. 6568 are hereby rescinded as ofthe effective date ofthis Order. 3. Within thirty (30) days ofentry ofthis Order, Wheeling shall submit for approval a proposed corrective action plan and schedule, outlining action items and completion dates for how and when Wheeling will achieve compliance with all tenns and conditions ofthe permit and/or pertinent laws and rules. The corrective action plan shall be submitted to: Environmental Inspector Supervisor NW Regional Environmental Enforcement Office 2031 Pleasant Valley Road Fairmont, WV 26554 A copy ofthis plan shall be submitted to: ChiefInspector Environmental Enforcement- Mall Code 1#031328 WVDEP 601 57 1 h Street SE Charleston, WV 25304 Upon approval, the corrective action plan and schedule shall be incorporated into and become part ofthis Order, as iffully set forth herein. Failure to submit an approvable corrective action plan and schedule or failure to adhere to the approved schedule is a violation ofthis Order. 4. Upon entry ofthis Order, Wheeling shall continue to cease and desist acceptance ofall oil and gas wastewater. Once Wheeling has made sufficient improvements in its pretreatment program to properly regulate this waste stream, Wheeling may petition the WVDEP, in writing, to accept this waste stream. Wheeling shall not accept this waste stream at its facility until it receives written authorization from WVDEP. 5. Upon entry ofthis Order, Wheeling shall begin daily monitoring for chlorides at LAD by grab sample. Analytical results shall be maintained at the Wheeling POTW and available for review by WVDEP personnel upon request. Daily monitoring for chlorides shall continue until the continuous conductivity monitoring device described in Item No. 6 of this Order for Compliance is installed, calibrated and operating for a period sufficient for Wheeling to detennine a correlation between the chlorides level and the conductivity.City of Wheeling Consent Order Page 12 Wheeling shall continue the daily monitoring of chlorides for a minimum of thirty (30) days from installation, calibration and operation of the continuous conductivity monitoring device.
6. Within ninety (90) days of entry of this Order, Wheeling shall have installed a continuous conductivity monitoring and recording device at LAD to detect unlawful dumping or disposal of chloride saturated water. 7. Upon entry of this Order, Wheeling shall immediately initiate updating its Pretreatment Permitting strategy and management and identify all authorized users and sources. 8. Upon entry of this Order, Wheeling shall immediately maintain a daily log to document all pass through, interference and unauthorized spills. This log shall be maintained at the wastewater treatment plant and be available for review by WVDEP personnel upon request. The daily log shall reflect not only the date, time and description of incident, but also Wheeling's notification in accordance with 47CSR11-2. 9. Within forty-five (45) days of entry of this Order, Wheeling shall complete all necessary repairs to the UV disinfection unit and return it to service. 10. Upon entry of this Order, Wheeling shall return the defoamer unit to service and maintain its continuous operation, as necessary. Wheeling shall make no less than two visual observations per day of the effluent to determine foam control effectiveness and report all observations in a log book to be maintained at the wastewater treatment plant and be available for review by WVDEP personnel upon request. 11. Should the defoamer unit prove to be ineffective in controlling the foam at the discharge, Wheeling shall pursue either an alternative or simultaneous method of controlling the foam.
12. Because of Wheeling's Legislative Rule and permit violations, Wheeling shall be assessed a civil administrative penalty of fifty-nine thousand one hundred seventy dollars ($59,170) to be paid to the West Virginia Department of Environmental Protection for deposit in the Water Quality Management Fund in accordance with the following payment schedule: Payment I in the amount of $9,861 due on or before December I, 201 I. Payment 2 in the amount of $9,861 due on or before January I, 2012. Payment 3 in the amount of $9,861 due on or before February I, 2012. Payment 4 in the amount of $9,861 due on or before March I, 2012. Payment 5 in the amount of $9,86I due on or before April I, 2012. Payment 6 in the amount of $9,865 due on or before May 1, 2012.
Payments made pursuant to this paragraph are not tax-deductible for purposes of State or federaliaw. Payment shall be mailed to:Chief lnspec:tor City ofWheeling Consent Order Page 13

Environmental Enforcement- Mail Code 1#031328 WV-DEP 601 57 1b Street SE Charleston, WV 25304
OTHER PROVISIONS I . Wheeling hereby waives its right to appeal this Order under the provisions ofChapter 22, Article I 1, Section 21 ofthe Code ofWest Virginia. Under this Order, Wheeling agrees to take all actions required by the terms and conditions ofthis Order and consents to and will not contest the Director'sjurisdiction regarding this Order. However, Wheeling does not admit to any factual and legal determinations made by the Director and reserves all rights and defenses available regarding liability or responsibility in any proceedings regarding Wheeling other than proceedings, administrative or civil, to enforce this Order. 2. The Director reserves the right to take further action ifcompliance with the terms and conditions ofthis Order does not adequately address the violations noted herein and reserves all rights and defenses which he may have pursuant to any legal authority, as well as the right to raise, as a basis for supporting such legal authority or defenses, facts other than those contained in the Findings ofFact. 3. Ifany event occurs which causes delay in the achievement ofthe requirements ofthis Order, Wheeling shall have the burden ofproving that the delay was caused by circumstances beyond its reasonable control which could not have been overcome by due diligence (i.e., force majeure). Force majeure shall not include delays caused or contributed to by the lack of sufficient funding. Within three (3) working days after Wheeling becomes aware of such a delay, notification shall be provided to the Director/ChiefInspector and shall, within ten (10) working days ofinitial notification, submit a detailed written explanation ofthe anticipated length and cause ofthe delay, the measures taken and/or to be taken to prevent or minimize the delay, and a timetable by which Wheeling intends to implement these measures. Ifthe Director agrees that the delay has been or will be caused by circumstances beyond the reasonable control of Wheeling (i.e., force majeure), the time for performance hereunder shall be extended for a period oftime equal to the delay resulting from such circumstances. A force majeure amendment granted by the Director shall be considered a binding extension ofthis Order and ofthe requirements herein. The determination ofthe Director shall be final and not subject to appeal. 4. Compliance with the terms and conditions ofthis Order shall not in any way be construed as relieving Wheeling ofthe obligation to comply with any applicable law, permit, other order, or any other requirement otherwise applicable. Violations ofthe tenns and conditions ofthis Order may subject Wheeling to additional penalties and injunctive reliefin accordance with the applicable law.City of Wheeling Consent Order Page 14 5. The provisions of this Order are severable and should a court or board of competent jurisdiction de cl are any prov isions to be invali d or unenfo r ceab l e, all other provisions shall remain in fu ll force and effect. 6. This Or der is binding on Whee ling, its successors and ass igns.

7. This Order shall tenninate upon Wheeling's notification of full comp liance with the "Order for Com pli ance" and verification of this noti fication by WVDEP.

Date
Public No tice begin: Date

Public Notice end: Date

Scott G. Mandiro la, Dir ector Date Division of Water and Waste Management

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