I, Daniel C. Sekerak, being duly sworn do depose and state:

1. I am a Special Agent with the Criminal Investigation Division (CID) of the United States Environmental Protection Agency (EPA) and have been so since December 1996. I am presently assigned to CID’s Portland, Oregon office. Prior to joining the EPA, I was a Special Agent with the U.S. Department of Energy, Office of Inspector General, for four years.

2. My responsibilities include investigating criminal violations of the environmental statutes administered by the EPA, including the Clean Water Act, 33 U.S.C. Section 1251 et seq.

3. I have been investigating allegations that during 1995, 1996, and 1997, City of Florence Wastewater Treatment Facility (WWTF) Supervisor Rick Mumpower failed to report the release of the WWTF’s sewage into the Siuslaw River, a navigable water of the United States, in violation of the Clean Water Act.

4. As set forth in this affidavit, I have probable cause to believe that evidence of violations of the Clean Water Act are located on the premises of the Florence WWTF, which is located at 794 Rhododendron Drive, Florence, Lane County, Oregon.

5. The Clean Water Act, 33 U.S.C. Section 1251 et seq., is a comprehensive water pollution statute which regulates the discharge of pollutants to the waters of the United States. The purpose of the Act, as contained in 33 U.S.C. Section 1251(a), is to restore and maintain the physical and biological integrity of the Nation’s waters.

6. Section 309 of the Clean Water Act includes the criminal liability provisions of the Act. Specifically, 33 U.S.C. Section 1319(c)(2) states:

Any person who --

(A) knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328 or 1325 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under Section 1344 of this title or by the Secretary of the Army or by a State;

--- shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both.

Based upon the facts developed to date, I have probable cause to believe that Sections 1311 and 1318 were violated in this case, as well as 18 U.S.C. Section 1001.

7. The elements of an offense under 33 U.S.C. Section 1311(a) are: a person -- without a permit or in violation of a permit -- knowingly -- discharged through a point source -- a pollutant -- into a water of the United States.

8. The Clean Water Act, 33 U.S.C. Section 1362(S), defines “person” as “an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a State, or any interstate body.”

9. The Clean Water Act, 33 U.S.C. Section 1362(14), defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock ... from which pollutants are or may be discharged.”

10. The Clean Water Act, 33 U.S.C. Section 1362(6) defines “pollutant” to include “chemical wastes, ... and industrial, municipal, and agricultural waste discharged into water.”

11. The Clean Water Act, 33 U.S.C. Section 1342(b), allows states to create their own permit program for discharges into navigable waters with its jurisdiction. The EPA has delegated the authority with regard to the issuance, enforcement, and compliance assurance of waste discharge permits (referred to as the National Pollutant Discharge Elimination System - NPDES) into navigable waters within its jurisdiction to the State of Oregon. The EPA delegated this authority to the Sate of Oregon, via a Memorandum of Agreement, dated September 26, 1973, and is still in effect, after revision and amendment, to the present day.

12. On July 14, 1992, the DEQ, pursuant to the federal Clean Water Act, issued NPDES permit number 100934 to the City of Florence for the operation of a “wastewater collection, treatment, control and disposal system and discharge to public waters adequately treated wastewaters ..., and only in conformance with all the requirements, limitations, and conditions set forth.” This permit remains in effect to the present day.

13. The Clean Water Act, 33 U.S.C. Section 1318, requires NPDES permittees to establish and maintain records, install, use, and maintain monitoring equipment, sample effluents, and report on a regular basis to the permit issuing agency regarding the facilitiy’s discharge of pollutants. The Clean Water Act, 33 U.S.C. Section 1319(c)(4), makes it a crime to submit false reports. 18 U.S.C. Section 1001 also penalizes false reports in a matter within the jurisdiction of a federal agency. Reports submitted pursuant to a NPDES permit, a federal program administered by a state agency under authority delegated by the EPA, is within the jurisdiction of a federal agency. The Florence WWTF’s NPDES permit requires that “monitoring reports shall also include a record of the quantity and method of use of all sludge removed from the treatment facility and a record of all applicable equipment breakdowns and bypassing.” “Bypass” is defined in the Florence WWTF NPDES permit as a “diversion of waste streams from any portion of the conveyance system or treatment facility.” In common terms, a bypass results in raw sewage entering the Siuslaw River. The permit specifies that “all monitoring information” be retained at the facility for a period of at least three years. Failure to retain such records constitutes a violation of the Clean Water Act, 33 U.S.C. Section 1318, with criminal penalties for knowing violations under 33 U.S.C. Section 1319(c)(2).

14. U.S. EPA Wetlands Coordinator Yvonne Vallete told me that the Siuslaw River has been designated as a “navigable water of the United States.”

15. The general conditions of the City of Florence’s federally enforceable NPDES permit specify that sewage bypasses must be reported orally (by telephone) within 24 hours from the time the permittee becomes aware of the circumstances. A written submission describing the noncompliance must be submitted to the DEQ within five days of the time the permittee becomes aware of the circumstances.

16. I have reviewed DEQ’s water quality file concerning the City of Florence. Based upon this review, my discussions with a DEQ employee, and an interview of an ex-employee of the Florence WWTF and documents provided by him, I have probable cause to believe that the Florence WWTF has failed to report sewage discharges, in violation of their permit, on ten separate occasions between August 1995 and February 1997.

17. On September 22, 1998, I interviewed an ex-employee of the Florence WWTF (hereafter described as CI-1). CI-1 told me that he was in a position to personally observe the operation of the City of Florence’s wastewater collection and disposal system.

18. CI-1 told me that Florence WWTF operators recorded sewage bypasses and overflows in a facility “log book.” After recording the bypass event in the log book, the operators were instructed to contact Plant Supervisor Rick Mumpower. It was Mr. Mumpower’s responsibility to report bypasses, overflows, or spills to the DEQ.,

19. CI-1 told me that Mr. Mumpower did not report all of the bypasses/overflows to the DEQ. CI-1 explained that fecal samples are taken as the normal procedure when an overflow, bypass, or spill has occurred if it was going to be reported. However, on a number of occasions, samples were not taken. According to CI-1, Mr. Mumpower once told him he would “get rid of the log book if something came down.” CI-1 told me he was recently told by an employee of the Florence WWTF that the log books were not in their normal location (a file cabinet located in the WWTF laboratory/office). The employee was unaware of the log books whereabouts.

20. CI-1 told me that he made copies of the Florence WWTF log books prior to his departure, then returned the originals to the WWTF. According to CI-1, the copied log books cover the period from march 1995 to march 1997, and contained entries on specific dates where bypasses and overflows were recorded by the WWTF operators.

21. On September 22, 1998, CI-1 reviewed the log books covering the period from March 1995 to March 1997 in my presence. During this review, CI-1 identified dates where sewage bypasses and overflows occurred which he believed were not reported to the DEQ.

22. On September 28, 1998, I provided E$Q Environmental Specialist Julie M. Berndt with a list of dates CI-1 identified to me when sewage discharges occurred and were not reported to the DEQ. Ms. Berndt told me that she checked these dates against DEQ’s records of dates where bypass or overflow events were reported by the Florence WWTF. Ms. Berndt told me that discharges were not reported to the DEQ, even though they were recorded in the Florence WWTF log book, on the following dates: August 29, 1995; January 15, 1996; February 7, 1996; February 19, 1996; July 14, 1996; July 15, 1996; December 2, 1996; December 8, 1996; January 12, 1997; and February 14, 1997.

23. Based upon my training and experience, and my discussions with Ms. Berndt, I know that discharge monitoring records, reports, notes, sample and analytical results, operator log books, related to the operation of the sewage plant, including sewage bypasses, overflows, or spills, are typically maintained at the WWTF.

24. Based upon the above facts and circumstances, I believe the following violations of federal law have occurred:

a). discharges in violation of a permit, in violation of 33 U.S.C. Section 1311.
b). failure to report bypasses, in violation of 33 U.S.C. Section 1318.
c). false reporting in discharge monitoring reports, in violation of 33 U.S.C. Section 1319(c)(4) and 18 U.S.C. 1001.
d). failure to maintain records, in violation of 33 U.S.C. Section 1318 and 1319(c)(2). (Note: original operator log books are evidence of illegal discharges and of false reporting punishable under 33 U.S.C. Section 1319(c)(4). If the original log books are missing, their absence is evidence of a criminal violation of 33 U.S.C. Section 1318, failure to maintain records required under the permit).

(signed) Daniel C. Sekerak
Signed and sworn to before me on Oct. 9, 1998.
(signed) Janice M. Stewart, U.S. Magistrate Judge

1. The Florence Wastewater Treatment Facility’s (WWTF) operator log book(s), or other such document(s), indicating when periods of noncompliance (unreported sewage bypasses, overflows, or spills) occurred, for the period of January 1995 to the present.

2. Records, notes, correspondence, sample or analytical results, computer-stored (but not the computers themselves) or otherwise, videotapes, containing, referring to , or evidencing information related to any discharge of pollutants in violation of the Florence WWTF’s NPDES permit.