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California Sportfishing Protection Alliance v. City of Stockton

September 30, 2009

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
CITY OF STOCKTON, A MUNICIPAL CORPORATION, DEFENDANT.



CONSENT DECREE

The following Consent Decree is entered into by and between Plaintiff California Sportfishing Protection Alliance ("Plaintiff" or "CSPA"), and defendant City of Stockton ("City" or "Defendant"). The entities entering into this Consent Decree are each referred to herein as "Settling Party" and collectively as "Settling Parties."

WHEREAS, CSPA is a non-profit public benefit corporation dedicated to the preservation, protection, and restoration of the environment, the wildlife and the natural resources of all waters of California, including the San Joaquin River and the Sacramento-San Joaquin River Delta;

WHEREAS, the City is a municipal corporation and is the permittee on the Waste Discharge Requirements for City of Stockton Regional Wastewater Control Facility,National Pollutant Discharge Elimination System ("NPDES") Permit No. CA0079138, Order No. R5-2008-0154 ("2008 Stockton WWTP Permit") and the previous NPDES permit Waste Discharge Requirements for City of Stockton Regional Wastewater Control Facility,National Pollutant Discharge Elimination System ("NPDES") Permit No. CA0079138, Order No. R5-2002-0083 ("2002 Stockton WWTP Permit");

WHEREAS, the City is a permittee on the Waste Discharge Requirements for City of Stockton and County of San Joaquin Storm Water Discharges from Municipal Separate Storm Sewer System, San Joaquin County, National Pollutant Discharge Elimination System ("NPDES") Permit No. CAS083470, Order No. R5-2007-0173, California Regional Water Quality Control Board -- Central Valley Region ("2007 Stockton Stormwater Permit") and the previous NPDES permit Waste Discharge Requirements for City of Stockton and County of San Joaquin Storm Water Discharges from Municipal Separate Storm Sewer System, San Joaquin County, National Pollutant Discharge Elimination System ("NPDES") Permit No. CAS083470, Order No. R5-2002-0181, California Regional Water Quality Control Board -- Central Valley Region, as amended by Resolution No. R5-2003-0133 ("2002 Stockton Stormwater Permit");

WHEREAS, on July 1, 2008, CSPA provided the Defendant, the Administrator and the Regional Administrator for Region IX of the United States Environmental Protection Agency ("EPA"), the Executive Director of the California State Water Resources Control Board ("State Board"), and the Executive Officer of the California Regional Water Quality Control Board, Central Valley Region ("Regional Board") with a Notice of Violation and Intent to File Suit ("Notice Letter") under section 505(a) of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1365(a). The Notice Letter alleged that Defendant violated and continues to violate the Clean Water Act for discharges of pollutants in violation of the 2002 Stockton WWTP Permit;

WHEREAS, on September 16, 2008, Plaintiff filed its complaint in the United States District Court for the Eastern District of California ("District Court") against Defendant, Case No. CV-08-2184-LKK-KJM (hereinafter "Complaint");

WHEREAS, on September 17, 2008, Plaintiff sent Defendant a letter notifying the Defendant of Plaintiff's intent to seek a peremptory writ of mandate ordering the Defendant to comply with the Clean Water Act, the Porter-Cologne Water Quality Control Act ("Porter-Cologne"), the Statewide Waste Discharge Requirements for Sanitary Sewer Systems - State Water Resources Control Board Order No. 2006-0003 ("SSO WDR"), the 2002 Stockton WWTP Permit, the San Joaquin County Ordinance and City of Stockton Municipal Code;

WHEREAS, on October 13, 2008, CSPA provided the Defendant, the EPA, the State Board, and the Regional Board with a Supplemental Notice of Violation and Intent to File Suit ("Supplemental Notice Letter") under section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a). The Supplemental Notice Letter alleged that Defendant violated and continues to violate the Clean Water Act for discharges of pollutants in violation of the 2002 Stockton WWTP Permit;

WHEREAS, on October 30, 2008, Plaintiff filed its first amended complaint in this case (Case No. CV-08-2184-LKK-KJM) (hereinafter "First Amended Complaint");

WHEREAS, Defendant denies CSPA's allegations that it has violated the Clean Water Act and/or any of the permits as alleged in the First Amended Complaint, denies that it failed to perform its duties under the Clean Water Act, Porter-Cologne, the SSO WDR, the San Joaquin County Ordinance, or the Stockton Municipal Code as alleged in the First Amended Complaint, and denies it has liability to CSPA or other citizen groups;

WHEREAS, the Parties, through their authorized representatives and without either adjudication of the First Amended Complaint's claims or admission by Defendant of any alleged violation or other wrongdoing, have chosen to resolve this action through settlement and avoid the costs and uncertainties of further litigation;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties each hereby agree as follows:

I. GENERAL OBJECTIVES

1. The objectives of this Consent Decree are:

a. To ensure that Defendant uses, implements, and improves ways, means, and methods to prevent sanitary sewer overflows;

b. To ensure that the City uses, implements, and improves ways, means, and methods to prevent violations of, or comply with, applicable permits, laws, and regulations as related to sanitary sewer overflows.

II. DEFINITIONS

2. Unless otherwise expressly defined herein, terms used in this Consent Decree, which are defined in the CWA, Porter-Cologne, or in regulations implementing these statutes, have the meaning assigned to them in the applicable statutes, regulations, or rules. Whenever terms listed below are used in this Consent Decree, the following definitions apply:

a. "2002 Stockton WWTP Permit" means Waste Discharge Requirements for City of Stockton Regional Wastewater Control Facility,National Pollutant Discharge Elimination System ("NPDES") Permit No. CA0079138, Order No. R5-2002-0083, California Regional Water Quality Control Board -- Central Valley Region.

b. "2008 Stockton WWTP Permit" means Waste Discharge Requirements for City of Stockton Regional Wastewater Control Facility,National Pollutant Discharge Elimination System ("NPDES") Permit No. CA0079138, Order No. R5-2008-0154, California Regional Water Quality Control Board -- Central Valley Region.

c. "2002 Stockton Stormwater Permit" means Waste Discharge Requirements for City of Stockton and County of San Joaquin Storm Water Discharges from Municipal Separate Storm Sewer System, San Joaquin County, National Pollutant Discharge Elimination System ("NPDES") Permit No. CAS083470, Order No. R5-2002-0181, California Regional Water Quality Control Board -- Central Valley Region, as amended by Resolution No. R5-2003-0133.

d. "2007 Stockton Stormwater Permit" means Waste Discharge Requirements for City of Stockton and County of San Joaquin Storm Water Discharges from Municipal Separate Storm Sewer System, San Joaquin County, National Pollutant Discharge Elimination System ("NPDES") Permit No. CAS083470, Order No. R5-2007-0173, California Regional Water Quality Control Board -- Central Valley Region.

e. "CCTV" means closed-circuit television.

f. "City" means the City of Stockton located in San Joaquin County, California.

g. "Condition Assessment Inspection" means an inspection of a sewer reach by CCTV that results in documentation of a Condition Assessment Rating for the inspected sewer reach. "Condition Assessment Inspection" does not include CCTV inspection for cleaning quality assurance/quality control, spill follow-up, FOG source investigations, or other types of CCTV inspection unless those inspections yield a Condition Assessment Rating for the entire sewer reach.

h. "Condition Assessment Rating" means an assignment of the condition given based on the Pipeline Assessment and Certification Program Standard ("PACP").

i. "CSPA" means California Sportfishing Protection Alliance.

j. "day" means a calendar day. In computing any period of time under this Consent Decree, where the last day of such period is a Saturday, Sunday, Federal or State or City Holiday, or City Furlough Day, the period runs until the close of business on the next day that is not a Saturday, Sunday, Federal or State or City Holiday, or City Furlough Day. In no event shall the number of City Furlough Days used for computing time periods as defined here exceed 14 days in a calendar year.

k. "Easement Sewers" means sanitary sewers upon, over, across, or through land not owned by the City but which the City owns an easement upon, over, across, and/or through for the purpose of maintaining and providing sanitary sewer services, including for the purpose of installing or maintaining sanitary sewer infrastructure.

l. "FOG" means fats, oil, and grease.

m. "FSE" means Food Service Establishment, any facility where food is served and intended for individual portion service, and includes the site at which individual portions are provided.

n. "Grease interceptor" is as defined in the Stockton Municipal Code and Stockton Standard Plans and Specifications.

o. "Lower Lateral Spill" or "Lower Lateral SSO" means an unintentional discharge, release, or spill of sewage caused by a blockage or other problem in a Lower Lateral owned by the City of Stockton, and has the same meaning as those terms defined in Section A.1. of the Statewide General Waste Discharge Requirements for Sanitary Sewer Systems, State Water Resources Control Board Order No. 2006-0003, or any amendment thereto, and which currently means: "any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from a sanitary sewer system.

p. "Lower Lateral" means the lateral line owned by the City connecting a home or other structure to the City's sewer main extending from the sewer main to the back of the public right-of-way or City clean out, whichever is applicable to the lateral connection. Lower Laterals are generally connected to Private Laterals.

q. "NPDES" means National Pollutant Discharge Elimination System.

r. "Private Lateral" means the private sanitary sewer lateral or line connecting a home or other structure to the Lower Lateral, generally extending from the outside of the foundation of the structure to the public right-of-way or the City's cleanout, whichever is applicable.

s. "Sanitary Sewer Overflow" or "SSO" has the same meaning as those terms are defined in Section A.1. of the SSO WDR, or any amendment thereto, and which currently means: "any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from the Stockton Collection System. SSOs include: (i) Overflows or releases of untreated or partially treated wastewater that reach waters of the United States; (ii) Overflows or releases of untreated or partially treated wastewater that do not reach waters of the United States; and (iii) Wastewater backups into buildings and on private property that are caused by blockages or flow conditions within the publicly owned portion of a sanitary sewer system." For purposes of this definition, "waters of the United States" has the meaning as set forth in 40 C.F.R. § 122.2.

t. "Sanitary Sewer Overflow Emergency Response Plan" shall mean the current version of the City's Sanitary Sewer Overflow Emergency Response Plan as of the Effective Date, as submitted to the State Board pursuant to the SSO WDR.

u. "sewer segment" means any section of publicly owned sewer line or pipe located between: (1) two manholes/maintenance holes; (2) a pump station and a manhole/maintenance hole; (3) a pump station or a manhole/maintenance hole and a headworks structure; or (4) a sewer line or pipe otherwise identifiable as a discrete section.

v. "SSMP" means the Sewer System Management Program developed and implemented by Stockton for the Stockton Collection System in accordance with the SSO WDR. The goal of an SSMP is to provide a plan and schedule to properly manage, operate, and maintain all parts of the sanitary sewer system. This will help reduce and prevent SSOs, as well as mitigate any SSOs that do occur. The bulk of Stockton's SSMP includes collection system condition monitoring; collection system operations, maintenance and repair; a FOG program; legal authority; and an SSO response plan. Sections of Stockton's SSMP are still being developed.

w. "SSO WDR" means Statewide General Waste Discharge Requirements for Sanitary Sewer Systems, State Water Resources Control Board Order No. 2006-0003, as amended by Order No. WQ 2008-0002-EXEC.

x. "Stockton Collection System" means the sewer pipes and lines, manholes or maintenance holes, pump stations, and all appurtenances thereto under ownership of the City of Stockton that are used to convey wastewater generated by residential, commercial, and industrial sources to the Stockton WWTP. For purposes of this Consent Decree, the Stockton Collection System does not include private laterals or other privately owned or operated infrastructure that connects to the Stockton Collection System.

y. "Stockton WWTP" means the wastewater treatment facility and all equipment, storage, and other infrastructure used by Stockton to treat sanitary sewage located downstream of the headworks to such facility until its point of discharge.

z. "Upper Lateral" means the private sanitary sewer lateral or line connecting a home or other structure to the Lower Lateral, generally extending from the outside of the foundation of the structure to the public right-of-way or the City's cleanout, whichever is applicable.

aa. "year" shall mean a calendar year, unless otherwise specified.

III. JURISDICTION AND VENUE

3. Plaintiff alleges that: a) this District Court has jurisdiction over the subject matter of the claims asserted by Plaintiff pursuant to section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1), 28 U.S.C. §§ 1331 and 2201 (an action for declaratory and injunctive relief arising under the Constitution and laws of the United States), and 28 U.S.C. § 1367(a), which provides supplemental jurisdiction for claims based on state law, including, but not limited to, California Code of Civil Procedure § 1085, the California Water Code §§ 13000 et seq. (the "Porter-Cologne Water Quality Control Act" or "Porter-Cologne"), San Joaquin County Ordinance, Title 5, and the City of Stockton Municipal Code, Chapter 7; b) venue is proper in this judicial district pursuant to sections 309(b) and 505(c) of the Clean Water Act, 33 U.S.C. §§ 1319(b), 1365(c), and 28 U.S.C. §§ 1391(b) and (c); and c) the First Amended Complaint filed herein states claims for which relief can be granted. For purposes of settlement, the Settling Parties waive all objections that they may have to the Court's jurisdiction to enter and retain jurisdiction over this Consent Decree.

IV. EFFECT OF CONSENT DECREE

4. Plaintiff does not, by their consent to this Consent Decree, warrant or aver in any manner that the Defendant's compliance with this Agreement will constitute or result in compliance with any Federal or State law or regulation. Nothing in this Agreement shall be construed to affect or limit in any way the obligation of the Defendant to comply with all applicable Federal, State and local laws and regulations governing any activity required by this Consent Decree.

5. Nothing in the Consent Decree shall be construed as an admission by Defendant, and does not intend to imply any admission as to any fact, finding, issue of law, or violation of law, nor shall compliance with this Consent Decree be construed as an admission by Defendant of any fact, finding, conclusion, issue of law, or violation of law.

V. APPLICABILITY

6. The provisions of this Consent Decree apply to and bind the Settling Parties, including any successors or assigns. The Settling Parties certify that their undersigned representatives are fully authorized to enter into this Consent Decree, to execute it on behalf of the Settling Parties, and to legally bind the Settling Parties to its terms.

7. The Settling Parties agree to be bound by this Consent Decree and not to contest its validity in any subsequent proceeding to implement or enforce its terms. By entering into this Consent Decree, the Defendant does not admit liability for any purpose as to any allegation or matter arising out of the Notice Letter, Supplemental Notice Letter and/or First Amended Complaint.

8. No change in ownership or corporate or other legal status of the Defendant or any transfer of the Defendant's assets or liabilities shall in any way alter the responsibilities of the Defendant or any of its successors or assigns thereof, under this Consent Decree. In any action to enforce this Consent Decree, the Defendant shall not raise as a defense the failure by any of its agents, servants, contractors, employees, and successors or assigns to take actions necessary to comply with this Consent Decree.

VI. EFFECTIVE DATE AND TERMINATION DATE

9. The term "Effective Date," as used in this Consent Decree, shall mean the last date for the United States Department of Justice to comment on the [proposed] Consent Decree, i.e., the 45th day following the United States Department of Justice's receipt of the [proposed] Consent Decree and Stipulated Dismissal.

10. This Consent Decree will terminate five (5) years from the Effective Date if the City meets its SSO Reduction Performance Standard for the year 2013 (as set forth in Section VII below). Failure to comply with the SSO Reduction Performance Standard in 2013 will result in year to year extensions of the Consent Decree until the City achieves an SSO rate of no more than five (5) SSOs per 100 miles of sewer in a year, in accordance with Section VII below. If either Settling Party has invoked the dispute resolution process pursuant to Section XVIII and the dispute has not been resolved at the time the Consent Decree would otherwise terminate, the Consent Decree shall continue in effect until the dispute is resolved, either through mutual agreement of the Settling Parties or by the Court.

VII. SSO AND SPILL REDUCTION PERFORMANCE STANDARDS

11. SSO Reduction. It is the goal of this Consent Decree to reduce Stockton Collection System SSOs, which are comprised of spills from both sewer mains and Lower Laterals. The City shall reduce its SSOs from sewer mains and Lower Laterals as provided in Table 1 and subsections of this paragraph, which set forth the SSO Reduction Performance Standards that the City must meet.

Maximum

Number of SSOs Per 100 Calendar Year Miles of Sewer /Year*fn1

2009 24 2010 20 2011 15 2012 10 2013 5 Table 1 -- SSO Reduction Performance Standards

a. For purposes of establishing the SSO Reduction Performance Standards, a SSO of 50 gallons or less caused by a blockage or defect in a Lower Lateral and not reaching a surface water body will not be counted.

b. For purposes of establishing the SSO Reduction Performance Standards, the miles of sewer lines excluding Lower Laterals as of the Effective Date equals 918.65 miles, and subsequently updated in the Annual Report required under Section XV of this Consent Decree.

c. Compliance with SSO Reduction Performance Standards shall be determined using the miles of sewer excluding lower laterals reported by the City in each year's Annual Report required under Section XV of this Consent Decree.

d. Compliance or non-compliance with the SSO Reduction Performance Standard shall be documented by the City in each year's Annual Report required under Section XV of this Consent Decree.

e. Failure to meet the SSO Reduction Performance Standards shall be a violation of this Consent Decree and subject to the dispute resolution process set forth in Section XVIII.

f. In order to assist in reaching the above SSO Reduction Performance Standards, the City shall implement the programs described hereafter.

VIII. SSO INVESTIGATION, RESPONSE AND REPORTING

12. The terms, conditions, obligations, and requirements of the City's current Sanitary Sewer Overflow Emergency Response Plan are incorporated into this Consent Decree, and are enforceable pursuant to this Consent Decree.

13. The City recognizes that proper identification of the cause of SSOs is essential to prevention of future SSOs.

14. Within ninety (90) days of the effective date of this Consent Decree the City shall prepare and implement a standard operating procedure ("SSO Cause Determination SOP") aimed at the proper and consistent determination of the cause of each SSO. At a minimum, for main line blockages the City shall ensure that its responders open the maintenance hole downstream of where the cause of the blockage appears, insert a trap, and observe and report FOG, roots, or specific types of debris that appear to have been the cause of the SSO. For Lower Lateral blockages, at a minimum the City shall ensure that responders identify any material retained on the cleaning tools used to clear the blockage. The City shall provide a copy of the SSO Cause Determination SOP to CSPA for review and comment within seven (7) days of its finalization. CSPA shall provide the City, in writing, with all recommended revisions to the SSO Cause Determination SOP within twenty-one (21) days of receipt of such SSO Cause Determination SOP. The City shall consider each of CSPA's recommended revisions and indicate within forty-five (45) days of receipt whether the City accepts each such recommendation for revision. If the City does not accept each of CSPA's recommendations, and remaining differences cannot be informally resolved promptly between the Settling Parties, then CSPA may seek dispute resolution pursuant to Section XVIII of this Consent Decree. In any such dispute resolution process, the City shall demonstrate that the elements or actions set forth in the SSO Cause Determination SOP are designed to ensure causes of the SSOs can be readily and accurately determined. To the extent the Settling Parties do not dispute specific original provisions of the SSO Cause Determination SOP or specific recommended revisions, the City shall implement all undisputed provisions or revisions. After the Settling Parties have reached agreement on the SSO Cause Determination SOP or after the dispute resolution process resolves any dispute concerning the SSO Cause Determination SOP, the City shall begin implementation of the SSO Cause Determination SOP as an enforceable requirement of this Consent Decree within sixty (60) days of agreement or upon the schedule set forth therein.

15. Within one hundred eighty (180) days upon reaching agreement with CSPA regarding the SSO Cause Determination SOP, the City shall complete training of all City personnel that respond to SSOs in the methods and practices used to identify the root causes of SSOs and shall certify to CSPA that the training has been completed. All new employees who may respond to SSOs shall be trained in the methods and ...


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