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California Sportfishing Protection Alliance, A Non-Profit Corporation v. Butte County Department of Public Works

November 4, 2011

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
PLAINTIFF,
v.
BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, ET. AL. DEFENDANTS.



CONSENT AGREEMENT

(Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1387)

WHEREAS, Plaintiff California Sportfishing Protection Alliance (hereinafter "CSPA") is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of California's waters;

WHEREAS, Defendant Butte County Department of Public Works (hereinafter "DPW"), a department of the County of Butte, a political subdivision organized under the laws of the State of California which owns an approximately one hundred and eighty nine (189) acre landfill facility 2 located at 1023 Neal Road, in Chico, California (the "Facility"), and Defendant Mike Crump, is the Director of DPW, which operates the Facility, and that Defendant Shawn H. O'Brien is the Assistant 4 Director of Public Works and is listed as the Facility Operator in the Complaint; 5

WHEREAS, CSPA and Defendants collectively shall be referred to as the "Parties;" WHEREAS, the Facility collects and discharges storm water to Butte Creek, which ultimately 6 7 flows into the Sacramento River, and the Sacramento-San Joaquin Delta (a map of the Facility is 8 attached hereto as Exhibit A and incorporated herein by reference); 9

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. 91-13-DWQ (as amended by Water Quality Order 92-12 DWQ and 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 September 29, 2010, Plaintiff provided notice of Defendants' 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 letter 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 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 November 11, 2010, creating the present lawsuit (hereinafter "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 2 Consent Agreement;3

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 5 submitted for approval by the Court, the date of which approval shall be referred to herein as the 6 "Court Approval Date;" 7

WHEREAS, at the time the Consent Agreement is submitted for approval to the United States District Court, CSPA shall request a dismissal of the Complaint with prejudice and the Parties shall 9 stipulate and request that the Court retain jurisdiction for the enforcement of this 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 SETTLING PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

I.COMMITMENT OF DEFENDANTS

1.Compliance With General Permit & Clean Water Act. Beginning immediately, and throughout the term of this Consent Agreement, Defendants shall commence all measures needed to operate the Facility in full compliance with the requirements of the General Permit and the Clean Water Act, subject to any defenses available under the law.

2.Defendants' Implementation of Specific Storm Water Best Management Practices On or Before October 1, 2011. Defendants shall complete the implementation of the following storm water control measures/best management practices ("BMPs"):

(a) Defendants shall construct an interceptor ditch that would flow to the main discharge point west of the Primary Sediment Basin (hereinafter "PSB"). The ditch would run along existing perimeter access roadway and would discharge to main discharge point. The west side of ditch would include native grasses, above ground landscaping soil berms with trees and monitoring wells. This area would be kept free of industrial activity;

(b) Defendants shall divert storm water from grassy swales along the main stockpile to the interceptor ditch;

(c) Defendants shall designate consistent sampling locations, one of which will be at the fence point closest to the concrete weir of the PSB;

(d) Defendants shall visually monitor grassy swales for discharges;

(e) Defendants shall collect and analyze storm water samples from the interceptor ditch, which includes runoff from the grassy swales adjacent to the soil stockpile east of the access road, on the condition that CSPA agrees to remove this condition upon a satisfactory showing that the samples do not contain concentrations of pollutants in excess of EPA Benchmarks;

(f) Defendants shall employ the use of anchored geo-textiles, or equivalent best management practices (BMP), in ditches as necessary in order to prevent erosion;

(g) Defendants shall update the measuring rods in the basins so that they reflect depth and discharge values. CSPA is open to the Defendants continuing to manually monitor the capacity so long as commit to doing so on a daily basis, incorporate this into the facility's SWPPP, and keep a daily record of these activities; and

(h) Defendants shall update the SWPPP and Facility Map annually to reflect total existing storage capacity of basins and graphically show the flow between the various basins. Defendants shall also incorporate the locations of items 2(a) -- 2(g) on the Facility Map.

(i) Defendants will construct an additional storm water basin prior to commencement of the 2011-2012 Wet Season, which begins on October 1, 2011. The Parties acknowledge that Defendants' installation of some of the storm water basin may be subject to various constraints that are beyond the Defendants' control (project bidding, construction permits, weather, etc.). Defendants agree to submit any and all construction plans and / or applications to obtain necessary approvals to construct the basin to the appropriate agencies and land use authorities within seven (7) days of the Court Approval Date. Defendants shall notify CSPA pursuant to the Notice provisions herein (at ¶ 24) within seven (7) days of any delay in the construction of the basin. If Defendants are unable to complete the basin prior to October 31, 2011, or the first significant precipitation falling on or after October 1, 2011, whichever comes first, then the term of this agreement shall be extended by one calendar year in accordance with the terms of paragraph 18 herein. Under no circumstances shall Defendants complete construction of the basin at the earliest possible date, but in no case later than October 1, 2012. However, if the basin is completed prior to October 31, 2011 or the first significant precipitation, whichever comes first, the termination date of this agreement shall remain September 30, 2014. For purposes of this paragraph, the first significant precipitation is defined as any storm event(s) that result in a storm water discharge from the Facility.

3.SWPPP Amendments/Additional BMPs. Within 30 days of mutual execution of this Consent Agreement, Defendants shall formally amend the SWPPP for the Facility to incorporate all of the relevant requirements of this Consent Agreement, as well ...


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