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California Sportfishing Protection Alliance v. Contech Construction Products

February 17, 2011

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
PLAINTIFF,
v.
CONTECH CONSTRUCTION PRODUCTS, INC. AN OHIO CORPORATION,
AND DAN MOODY, AN INDIVIDUAL DEFENDANTS.



CONFIDENTIAL SETTLEMENT COMMUNICATION

CONSENT AGREEMENT (Federal Water Pollution Control Act, 33 U.S.C.1251 to 1387) WHEREAS, Defendant CONTECH CONSTRUCTION PRODUCTS, INC. (hereinafter "CONTECH") owns an approximately 34-acre metal work facility, which manufactures metal culvert pipe, located at 2245 Canyon Creek Road in Redding, California (the "Facility"), and Defendant DAN MOODY is an employee of CONTECH;

WHEREAS, CSPA and Defendants collectively shall be referred to as the "Parties;" WHEREAS, the Facility collects and discharges storm water to Canyon Creek and Canyon Creek ultimately flows into the Sacramento River, and the Sacramento-San Joaquin Delta (a map of the Facility is attached hereto as Exhibit A and incorporated herein by reference);

WHEREAS, storm water discharges associated with industrial activity are regulated pursuant to the National Pollutant Discharge Elimination System ("NPDES"), General Permit No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 97-03-DWQ), issued pursuant to Section 402 of the Clean Water Act, 33 U.S.C. § 1342 (hereinafter "General Permit");

WHEREAS, on or about February 8, 2010 Plaintiff provided notice of Defendants' alleged violations of the Act, and of its intention to file suit against Defendants, to the Administrator of the United States Environmental Protection Agency ("EPA"); the Administrator of EPA Region IX; the Executive Director of the State Water Resources Control Board ("State Board"); the Executive Officer of the Regional Water Quality Control Board, Central Valley Region ("Regional Board"); and to Defendants, as required by the Act, 33 U.S.C. § 1365(b)(1)(A) (true and correct copies of CSPA's notice letters are attached as Exhibit B and incorporated herein by reference);

WHEREAS, Defendants deny the occurrence of the violations alleged in the Notices and maintain that they have complied at all times with the provisions of the General Permit, the Clean Water Act, and California Health & Safety Code sections 25249.5 et seq.; WHEREAS, CSPA filed a complaint ("Complaint") against Defendants in the United States District Court, Eastern District of California, on April 14, 2010 (the "Action");

WHEREAS, for purposes of this Consent Agreement, the Parties stipulate that venue is proper in this Court, and that Defendants do not contest the exercise of jurisdiction by this Court to enter this Consent Agreement;

WHEREAS, this Consent Agreement shall be submitted to the United States Department of Justice for the 45-day statutory review period, pursuant to 33 U.S.C. § 1365(c); and shall thereafter be submitted for approval by the Court, the date of which approval shall be referred to herein as the "Court Approval Date;"

WHEREAS, at the time the Consent Agreement is submitted for approval to the United States District Court, CSPA shall request a dismissal of all claims against both Defendants in the Complaint with prejudice and the Parties shall stipulate and request that the Court retain jurisdiction for the enforcement of this Consent Agreement as provided herein;

AND WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter without further litigation.

NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

I.COMMITMENT OF CONTECH

1.Compliance With General Permit and Clean Water Act. Beginning immediately, and throughout the Term of this Consent Agreement, (defined below at ¶ 18), Defendant CONTECH shall commence all measures needed to operate the Facility in full compliance with applicable requirements of the General Permit and the Clean Water Act, subject to any defenses available under the law.

2.CONTECH's

Implementation of Specific Storm Water Best Management Practices. CONTECH shall implement the following structural and non-structural best management practices ("BMPs") to improve the storm water pollution prevention measures at the Facility, as marked on Exhibit A:

(a) CONTECH shall apply an asphalt sealant to all paved areas of the Facility previously used for the application of paint, as designated on Exhibit A, within thirty (30) days of the Court Approval Date;

(b) CONTECH shall coat the metal roof and siding of the main fabricating building and the metal siding of the office building with sealant to reduce metals leaching from the metal roof and siding to storm water within sixty (60) days of the Court Approval Date. The locations of these buildings are shown on Exhibit A;

(c) CONTECH shall conduct an elevation survey to identify all points of storm water discharge at the Facility within sixty (60) days of the Court Approval Date;

(d) CONTECH shall annually vacuum and cover all drop inlets at the Facility during the Dry Season (June 1 through September 30) to reduce the amount of pollutants entering the Facility's discharge points;

(e) CONTECH shall design and install swales, berms and infiltration areas to reduce and redirect storm water flow at the Facility no later than September 30, 2011, except as set forth below. The locations of these swales, berms and infiltration areas are generally set forth on Exhibit A and described as follows:

(i) A parallel swale and berm at the northern end of the Facility yard beginning at the base of the hill and running east along the northern property boundary of the Facility;

(ii) Three (3) pairs of swales and berms perpendicular to the northern boundary swale and berm described above and running generally south east there from; and

(iii) Four (4) infiltration areas as generally designated on the attached Facility map (Exhibit A).

The Parties acknowledge that CONTECH's installation of some of the drainage features described in Paragraph 2(e) may be subject to various authorizations from state and local agencies and that these agencies might require significant alteration of the drainage feature plans as set forth on Exhibit A. Contech agrees to submit plans and / or applications to obtain necessary approvals to construct the drainage features to the City of Redding and other local land use authorities within seven (7) days of the Court Approval Date. Contech shall notify CSPA pursuant to the Notice provisions herein (at ¶ 24) within seven (7) days of any local authority requiring significant alteration of the drainage features set forth on Exhibit A. Contech shall apply for any additional state or federal permits or authorizations within thirty (30) days of the end of any appeal or review period applicable to Contech's local authorizations. In the event Contech is unable to complete construction of any drainage features described on Exhibit A by September 30, 2011 due to authorization delays, Contech shall complete construction of those drainage features by September 30, 2012 and the Term of this Consent Agreement shall be extended until May 30, 2015;

(f) CONTECH shall remove the two (2) existing catch basins located in the northern yard of the Facility that lead to Outfall #1 within sixty ...


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