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California Sportfishing Protection Alliance, A Non-Profit Corporation v. Stockton Recycling

April 17, 2012

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
PLAINTIFF,
v.
STOCKTON RECYCLING, INC., A CALIFORNIA CORPORATION, AND JAMES WILLIAMS, AN INDIVIDUAL,
DEFENDANTS.



[PROPOSED] CONSENT AGREEMENT

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

WHEREAS, Plaintiff California Sportfishing Protection Alliance (hereinafter "CSPA" or "Plaintiff") 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 Stockton Recycling, Inc. (hereinafter "SRI") owns an approximately 5-acre recycling facility located at 410 S. Lincoln Street, in Stockton, California ("Facility No. 1");

WHEREAS, SRI owns an approximately 4-acre recycling facility located at 1533 Waterloo Road, in Stockton, California ("Facility No. 2"); 2

WHEREAS, SRI owns an approximately 3-acre recycling facility located at 2435 East Weber Ave., in Stockton, California ("Facility No. 3"); 4

WHEREAS, Facility No. 1, Facility No. 2 and Facility No. 3 collectively shall be referred to 5 as "Defendants' Facilities" in this Consent Agreement, unless otherwise noted; 6

WHEREAS, Defendant James Williams is the owner and president of SRI;

WHEREAS, Defendants SRI and James Williams collectively shall be referred to as "Defendants" in this Consent Agreement, unless otherwise noted; 9

WHEREAS, CSPA and Defendants collectively shall be referred to as the "Parties;" WHEREAS, Defendants collect and discharge storm water from Defendants' Facilities to the City of Stockton's municipal storm drain system, which ultimately discharges storm water into the San Joaquin River, and the Sacramento-San Joaquin Delta (maps of Facility Nos. 1, 2 and 3 are attached hereto as Exhibits A, B and C, respectively, 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. 91-13-DWQ (as amended by Water Quality Order 92-12 DWQ and 97-03-DWQ) (hereinafter "General Permit"), issued pursuant to Section 402 of the Clean Water Act (the "Act"), 33 U.S.C. § 1342;

WHEREAS, on or about January 13, 2011, Plaintiff provided notice of Defendants' alleged violations of the Act for their alleged failure to comply with the General Permit with respect to their operation of Facility No. 1, and of its intention to file suit against Defendants ("Notice Letter No. 1"), 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) (a true and correct copy of Notice Letter No. 1 is attached as Exhibit D and incorporated herein by reference);

WHEREAS, on or about March 9, 2011, Plaintiff provided notice of Defendants' alleged 2 violations of the Act for their alleged failure to comply with the General Permit with respect to their 3 operation of Facility No. 2, and of its intention to file suit against Defendants, to the Administrator of 4 the United States Environmental Protection Agency ("EPA"); the Administrator of EPA Region IX; 5 the Executive Director of the State Water Resources Control Board ("State Board"); the Executive 6 Officer of the Regional Water Quality Control Board, Central Valley Region ("Regional Board"); and 7 to Defendants, as required by the Act, 33 U.S.C. § 1365(b)(1)(A) (a true and correct copy of Notice 8 Letter No. 2 is attached as Exhibit E and incorporated herein by reference); 9

WHEREAS, on or about April 11, 2011, Plaintiff provided notice of Defendants' alleged violations of the Act for their alleged failure to comply with the General Permit with respect to their operation of Facility No. 3, 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) (a true and correct copy of Notice Letter No. 3 is attached as Exhibit F and incorporated herein by reference);

WHEREAS, Defendants deny the occurrence of the violations alleged in the Notice Letters Nos. 1, 2 and 3, and maintain that they have complied at all times with the provisions of the General Permit;

WHEREAS, on March 15, 2011, CSPA filed a complaint ("Complaint No. 1") against Defendants in the United States District Court, Eastern District of California, alleging various violations of the Act and the General Permit based upon Defendants' operation of Facility No. 1;

WHEREAS, on May 9, 2011, CSPA filed a complaint ("Complaint No. 2") against Defendants in the United States District Court, Eastern District of California, alleging various violations of the Act and the General Permit based upon Defendants' operation of Facility No. 2;

WHEREAS, on June 14, 2011, CSPA filed a complaint ("Complaint No. 3") against Defendants in the United States District Court, Eastern District of California, alleging various violations of the Act and the General Permit based upon Defendants' operation of Facility No. 3; 2

WHEREAS, Civil case number S-11-705-LKK/CKD has been consolidated by stipulation of 3 the Parties and Order of this Court dated December 16, 2011, with the following two related actions: 4

(a) California Sportfishing Protection Alliance, a non-profit corporation, Plaintiff, v. Stockton 5 Recycling, Inc., a California corporation, James Williams, an individual, and Fred Espino, an 6 individual, Action No. CIV. NO. S-11-1239-LKK/CKD; and (b) California Sportfishing Protection 7 Alliance, a non-profit corporation, Plaintiff, v. Stockton Recycling, Inc., a California corporation, 8 James Williams, an individual, Action No. CIV. NO. S-11-1599-LKK/CKD;

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 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 SETTLING PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

I.COMMITMENT OF DEFENDANTS

1.Compliance With General Permit & Clean Water Act. Subject to the conditions and contingencies described below, throughout the term of this Consent Agreement, Defendants shall commence all measures needed to operate Defendants' Facilities in full compliance with the requirements of the General Permit and the Clean Water Act, subject to any defenses available under 2 the law. 3

2.Re Facility No. 1, Cessation Of Industrial Operations & Filing A Notice Of Termination With The Regional Board. In November of 2010, Defendants submitted a Project 5 4 Description and Initial Study for East Stockton Transfer and Recycling Station for Modification to the 6 Use Permit [for Facility No. 3, a.k.a., East Stockton Transfer and Recycling Station] ("Facility Use 7 Modification Application") to the City of Stockton ("City"). By submitting the Facility Use 8 Modification Application to the City, Defendants sought to cease industrial operations at Facility No. 1 9 and transfer those industrial operations to Facility No. 3. On February 8, 2012, the City issued its final approval of Defendants' Facility Use Modification Application. Accordingly, Defendants shall cease all industrial operations at Facility No. 1 no later than October 1, 2012. Defendants' cessation of industrial operations at Facility No. 1 will result in the removal of all SRI inventory (e.g., all recyclable and non-recyclable materials) and vehicles from Facility No. 1. Defendants may store unused equipment which is for sale at Facility No. 1 after October 1, 2012, but shall tarp such equipment to prevent rain from coming in contact with such equipment. Further, no later than October 1, 2012, Defendants shall publicly declare their intent to terminate regulation of Facility No. 1 under the General Permit by filing a Notice of Termination ("NOT") with the Regional Board. Consistent with General Permit Provision No. 9, Defendants' NOT shall provide all documentation requested by the Regional Board. Within seven (7) calendar days of receiving Regional Board approval of an NOT for Facility No. 1, Defendants shall deliver a copy of that approved NOT to CSPA in a manner consistent with the Notice provisions described below.

3.Defendants' Implementation of Specific Storm Water Best Management Practices ("BMPs") At Facility No. 1 (Lincoln Street) On Or Before October 15, 2012. Subject to the provisions described above in ΒΆ 2, if by October 1, 2012 Defendant has not ceased industrial operations at Facility No. 1 as described in the preceding paragraph, then on or before October 15, 2012, Defendants shall complete the ...


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