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Edwards v. City of Colfax

November 2, 2010

ALLEN EDWARDS, AN INDIVIDUAL; NANCY EDWARDS, AN INDIVIDUAL; AND ENVIRONMENTAL LAW FOUNDATION, A NON-PROFIT ORGANIZATION, PLAINTIFFS,
v.
THE CITY OF COLFAX, A MUNICIPAL CORPORATION, DEFENDANT.



ORDER RE: COMPLIANCE WITH SETTLEMENT AGREEMENT

WHEREAS Defendant City of Colfax ("City") is required to comply with the Settlement Agreement entered by this Court on January 23, 2009 ("Settlement Agreement");

WHEREAS Plaintiffs Allen Edwards, Nancy Edwards, and Environmental Law Foundation ("Plaintiffs") have moved for contempt, and to enforce the terms of the Settlement Agreement in this action;

WHEREAS in the interest of avoiding the costs of further litigation, and in resolving any Settlement Agreement compliance issues, Plaintiffs and the City (collectively, the "Parties") have agreed to the following activities and schedules for achieving compliance, which will be overseen by the District Court;

WHEREAS, on June 16 through July 5, 2009, and August 29 through at least September 17, 2009, the City re-routed flows from the wastewater treatment plant ("WWTP") into Pond Nos. 2 and 3, thereby eliminating effluent flows to Smuthers Ravine Creek;

WHEREAS, the City's Self Monitoring Reports document the discharge of approximately 66 million gallons of wastewater to Pond No. 3 between 1 February 2009 and 30 June 2010;

THEREFORE; the Parties agree to, and the Court orders, the following:

Stipulated Penalties

1. As required by the Settlement Agreement, and within fifteen (15) days of the entry of this Order the City shall pay the Edwards $10,000 in stipulated penalties for the spill from the seepage pump-back system at Pond No. 3 that occurred between September 29, 2009 through October 14, 2009 at a reported volume of 11,200 gallons. Payment shall be via certified check made payable to "Lawyers for Clean Water Attorney Client Trust Account" addressed to 1004 O'Reilly Avenue, San Francisco, CA 94129, sent overnight delivery.

2. The District Court will stay its decision on all other stipulated penalties sought by Plaintiffs, pending compliance with this Order. If the City complies with this Order, the Court's decision on stipulated penalties through the date of this order will be permanently stayed.

Compliance Activities

3. The purpose of this Order is to ensure compliance with the Settlement Agreement and NPDES Permit No. CA0079529 ("NPDES Permit"). Disputes regarding the City's compliance with effluent and receiving water limitations contained in the NPDES Permit and required by the Settlement Agreement, except as provided for in paragraphs 5-9 below, shall be addressed via the process set forth in paragraph 25 below.

4. Disputes regarding the City's compliance with its NPDES Permit Monitoring and Reporting Program (Attachment E to the NPDES Permit) as required by the Settlement Agreement, except as provided for in paragraphs 5-9 below, and the monitoring and reporting requirements of the Settlement Agreement, shall be addressed via the process set forth in paragraph 25 below.

Copper WER Study

5. The City shall submit a Water Effects Ratio ("WER") study for copper to the California Regional Water Quality Control Board, Central Valley Region, ("RWQCB") no later than March 31, 2012.

6. If, prior to October 31, 2012, the RWQCB approves the WER study, resulting in modification of effluent limitations for copper set forth in the NPDES Permit, with which the City can consistently comply prior to December 31, 2012, the City shall comply with the revised limitations. If the WER study fails to result in modified effluent limits for copper with which the City can consistently comply, the City shall initiate a source reduction study no later than November 30, 2012, and shall thereafter implement identified source control actions required to ensure consistent compliance with final effluent copper limitations contained in NPDES No. CA0079529 by January 1, 2014. During this period, and provided the City complies with the actions required by paragraphs 5 and 6 of this Order and the requirements of Cease and Desist Order No. R5-2010-0001, the City shall not be deemed in violation of the Settlement Agreement for exceeding the NPDES Permit's effluent limitations for copper.

PCHP Sampling

7. In September, October, and December 2010, and February, April, and June 2011, the City shall have its certified laboratory collect split effluent samples that will be analyzed under both EPA Method 8081A and mass spectrometry for the Persistent Chlorinated Hydrocarbon Pesticides ("PCHP") set forth in NPDES Permit No. CA0079529. The City shall provide Plaintiffs with the results of all PCHP analyses, including chain of custody, laboratory data, and all Quality Control/Quality Assurance data within five (5) business days of receipt of such data by the City.

8. If the sampling and analysis described in paragraph 7 above determines that any PCHP is detected by both EPA Method 8081A and mass spectrometry, or that any PCHP is quantifiably detected by EPA Method 8081A at or above the Minimum Level or Reporting Level defined in the NPDES Permit, then, within sixty (60) days of that determination, the City shall initiate a pollutant minimization program ("PMP") pursuant to Section IV.C.3.a. of the City's NPDES Permit to determine the source of PCHP and the steps required to eliminate PCHP in the WWTP effluent. The pollution prevention study shall be completed by December 31, 2012, and the actions identified in the PMP to reduce and/or eliminate PCHP in the effluent shall be implemented. In this circumstance, the City shall not be required to perform additional analysis under paragraph 7 of this Order using mass spectrometry regarding PCHP.

9. If the conditions set forth in paragraph 8 above are not met, and if, in any of the six analyses conducted pursuant to paragraph 7 above, at least one specific PCHP is detected at a level above the method detection limit but below the Minimum Level or Reporting Level by EPA Method 8081A, and that same PCHP is not detected by mass spectrometry in that sample, the City shall not be required to perform additional analysis under paragraph 7 of this Order using mass spectrometry regarding PCHP, and no further action to address previous PCHP sample results of "detected, not quantified" ("DNQ") via analysis by EPA Method 8081A by the City is necessary under this Order. Similarly, if all six analyses result in none of the PCHP being detected by EPA Method 8081A or mass spectrometry, the City shall not be required to perform any additional analysis under this Order using mass spectrometry, and no further action to address previous PCHP sample results of DNQ via analysis by EPA Method 8081A by the City is necessary under this Order. Nothing in this Order shall relieve the City of its responsibility to continue complying with the limit for PCHP contained in the NPDES Permit.

Infiltration and Inflow ("I&I")

10. No later than February 14, 2011, the City shall complete the current collection system pipeline repair/rehabilitation/replacement work being conducted by independent contractor McGuire Hester pursuant to the December 22, 2009 contract ("McGuire Hester Contract") with grant funds provided by the American Reinvestment and Recovery Act of 2009 ("ARRA"). The City shall use its best efforts to reallocate monies in the contract from sewer segments found not to require immediate repair through its condition assessment work to segments in need of immediate repair.

11. No later than February 14, 2011, the City shall remove obstructions from all sewer segments rated CI, as that term is defined in paragraph 26 of the Settlement Agreement, in its June 30, 2010 Wastewater Collection Condition Assessment due to obstruction and shall complete condition assessment of those sewer segments.

12. If CI sewer segments remain in the City's condition assessment after the City completes the work described in paragraphs 10 and 11 of this Order, the City will repair, replace, and/or rehabilitate those remaining segments by December 31, 2011. If repair, replacement, or rehabilitation of those segments is technically infeasible on or before December 31, 2011, the City may seek an extension of time from the Court to complete the collection system improvements. The City bears the burden of establishing such technical unfeasibility. If the City lacks funding for, or ability to fund, the remaining repair, replacement, or rehabilitation of CI sewer segments, the City will address this issue in the April 15, 2011 monthly report to the Court, and shall document the costs associated with the remaining work.

13. Plaintiffs shall be added to the Interested Parties list for the CEQA process related to any project involving hookups to the City's WWTP.

14. Within ten (10) calendar days of receipt, the City shall notify Plaintiffs of any application for building permits related to the Colfax Pines residential development project.

Flow Meter

15. The City has certified that an effluent flow meter has been installed, calibrated, and is in continuous operation at the City's WWTP.

16. The Parties understand that the United States Environmental Protection Agency ("U.S. EPA") and/or its contractor, PG Environmental, plans to conduct a follow-up inspection of the City's WWTP in November or December 2010. If this inspection is conducted by February 1, 2011, the City shall provide Plaintiffs a copy of the resulting inspection report within ten (10) calendar days of receipt. If, however, the inspection by U.S. EPA and/or PG Environmental does not occur by February 1, 2011, Plaintiffs shall be entitled to a visual physical inspection of the City's WWTP to confirm the location and function of the effluent flow meter, UV intensity meter, chlorine residual meter, and turbidity meter, and of the pipeline infrastructure at the City's retired interim wastewater treatment facility to confirm the facility's inability to discharge. Plaintiffs' inspection, if it is to occur, will be conducted by Plaintiffs' expert, Dr. Bruce Bell, to occur as soon as practicable, but no later than May 1, 2011. Fees or costs related to the inspection shall be paid from the compliance oversight budget set forth in paragraph 33 below.

17. Plaintiffs Allen and Nancy Edwards agree to allow all applicable statute(s) of limitations to expire on the Government Claims Act claims presented to the City and dated March 23, 2010 and July 5, 2010 ("2010 Claims"), and agree that once the statute(s) of ...


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