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

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


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 ¶ 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 implementations of the following storm water control measures/best management practices ("BMPs") at Facility No. 1:

(a) Defendants shall install a storm water filter system meeting the minimum specifications described in Exhibit H and at the general location described in Exhibit A which is attached hereto and incorporated herein by this reference;

(b) Defendants shall install filters manufactured by Innovative Resources, Inc. or 4 equivalent filters meeting the minimum specifications described in Exhibit H which is attached hereto and incorporated herein by this reference in the storm water drop inlets at Facility No. 1, described on the Facility Map attached hereto as Exhibit A which is attached hereto and incorporated herein by this reference;

(c) Defendants shall refrain from conducting industrial activities or storing materials used in such industrial activities (e.g., any recyclable materials, forklifts or other vehicles, etc.) within a three (3) foot radius of any unsealed storm water drop inlet at Facility No. 1. In the event that Defendants are unable to comply with this requirement with respect to any storm water drop inlet at Facility No. 1, Defendants shall seal that drop inlet with concrete;

(d) Defendants shall channel all storm water at Facility No. 1 that would otherwise flow off-site into the filtration system discussed above in subclause (a) as depicted on Exhibit A;

(e) Defendants shall install berms constructed of material as determined necessary to create a reasonably impermeable barrier around the inside of the border of Facility No. 1 at those locations described in Exhibit A, in a manner designed to channel storm water that would otherwise flow off-site to the filtration system discussed above in subclause (a);

(f) Defendants shall either (i) install entrance-wide reasonably impermeable berms or make changes to surface material and grade at all gated points of vehicle ingress/egress at Facility No. 1 designed in a manner that prevents storm water discharge from these gated areas while still allowing for vehicle clearance, or (ii) install entrance-wide grated trench drains at all gated points of vehicle ingress/egress at Facility No. 1 designed in a manner that captures storm water therein and then pumps that water to the filtration system discussed above in subclause (a);

(g) Defendants shall install a paved area at the two site entrances as depicted in Exhibit A;

(h) Defendants shall create, use and maintain a visual inspection checklist for use during visual inspections of storm water and non-storm water discharges from Facility No. 1;

(i) Defendants shall perform regular maintenance of storm water drainage system at Facility No. 1 in order to identify and remove any settled contaminants (e.g., paper waste) from storm water drains and conveyances therein;

(j) Defendants shall regularly monitor and maintain the storm water drainage system, BMPs and drop inlets for Facility No. 1; document such maintenance; and maintain records thereof with the SWPPP for Facility No. 1 as required by the terms of the General Permit. Further, Defendants shall ensure that appropriate personnel are properly trained in storm water management and that records of any such storm water management training of Facility No. 1 personnel shall also be maintained along with the SWPPP for Facility No. 1;

(k) Defendants shall install a rainfall recording device at Facility No. 1 and maintain documentation at Facility No. 1 of the daily rainfall occurring at Facility No. 1 during the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons. In addition to the rainfall data gathered from the rainfall recording device installed at Facility No. 1, Defendants may elect to also maintain documentation of precipitation data recorded off-site at other nearby, reliable rainfall gauges (e.g., Stockton Fire Station #4*fn1 );

(l) Defendants shall install any device(s) necessary to record instances during which the filtration capacity of the storm water filtration system reflected in Exhibit H is exceeded (a.k.a., "flow meter"). Further, Defendants shall maintain documentation of the data recorded by the device(s) contemplated by this subsection at Facility No. 1. In order to avoid disputes as to whether the capacity of the storm water filtration system installed at Facility No. 1 was exceeded during storm events occurring during the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons, Defendants shall provide CSPA timely documentation of such filtration system exceedances within seven (7) calendar days of each such occurrence, subject to the Notice provisions set forth below;

(m) Subject to the contingencies described above, Defendants shall install a storm water treatment system. The proposed storm water treatment system for Facility No. 1 will initially be installed with 40 gpm treatment capacity and with 10,000 gallon capacity storage tank. In the event that the filtration capacity of the storm water filtration system installed at Facility No. 1 is exceeded during three (3) or more storm events occurring during the 2012- 2013, 2013-2014 or 2014-2015 Wet Seasons, before the commencement of the next Wet Season, Defendants shall increase the storm water treatment system's gpm flow rate capacity and/or its storage capacity as needed to account for the amount of storm water by volume that bypassed the system untreated during the previous Wet Season as measured by the device(s) required by subclause (l) above. The IRI Water Decontaminator system model no. WD-4BS composed of four modules with eight high filtration cartridges per module is designed to increase flow and retention time by adding additional modules. Each high filtration module for Facility No. 1 is rated at 40 gpm. Single or multiple modules will be added if effluent concentrations are not reduced to below US EPA Multi-Sector Permit Parameter Benchmark Values. Additionally, if actual site runoff flow rates exceed system design flow rates, additional modules with the most applicable flow rate will be evaluated for installation. An emergency overflow will be installed in the system.

4.Defendants' Implementation of Specific Storm Water Best Management Practices At Facility No. 2 (Waterloo Road) On Or Before Oct. 1, 2012. On or before Oct. 1, 2012, Defendants shall complete the implementations of the following BMPs at Facility No. 2:

(a) Defendants shall install a storm water filter system meeting the minimum specifications in Exhibit J and at the general location described in Exhibit B which exhibits are attached hereto and incorporated herein by this reference;

(b) Defendants shall install filters manufactured by Innovative Resources, Inc. or equivalent filters meeting the minimum specifications described in Exhibit J which is attached hereto and incorporated herein by this reference in the storm water drop inlets at Facility No. 2 as described on the Facility Map attached hereto as Exhibit B which is attached hereto and incorporated herein by this reference;

(c) Defendants shall refrain from conducting industrial activities or storing materials used in such industrial activities (e.g., any recyclable materials, forklifts or other 6 vehicles, etc.) within a three (3) foot radius of any unsealed storm water drop inlet at Facility 7 No. 2. In the event that Defendants are unable to comply with this requirement with respect to 8 any storm water drop inlet at Facility No. 2, Defendants shall seal that drop inlet with concrete;

(d) Defendants shall channel all storm water at Facility No. 2 that would otherwise flow off-site into the filtration system discussed above in subclause (a) as depicted on Exhibit B;

(e) Defendants shall install berms constructed of materials determined to be necessary to create a reasonably impermeable barrier around the inside of the border of Facility No. 2 at the locations shown on Exhibit B in a manner designed to channel storm water that would otherwise flow off-site to the filtration system discussed above in subclause (a);

(f) Defendants shall install entrance-wide reasonably impermeable berms or make changes to the surface and grade at all gated points of vehicle ingress/egress at Facility No. 2 designed in a manner that prevents storm water discharge from these gated areas while still allowing for vehicle clearance. Specifically, at the north ingress/egress point located on Bradford Road, the internal Facility road will be graveled to the proposed location of the treatment system and tracking controls (CASQA Construction BMP TC-1) will be installed from Bradford Road to the treatment system;

(g) Defendants shall prevent vehicles or motorized equipment from driving on the unpaved northern portion of Facility No. 2 during the period from October 1 through May 30 of each Wet Season during the term of this Consent Agreement except for purposes of accessing the treatment system that will be installed on a concrete pad in this unpaved portion of the property. To access the treatment system, Defendants shall install:

i. at the entrance to the unpaved portion of the property from Bradford Street, the 2 California Stormwater Quality Association BMP for a stabilized construction 3 entrance/exit (TC-1) as commonly used for construction sites. TC-1 will be constructed 4 at the back gate for the Waterloo facility at Bradford Street. The dimension of TC-1 5 will be 50 feet in length and 10 feet in width. TC-1 will be constructed with 6 approximately 12-inches depth of angular 3" to 6" diameter rock aggregate. Geotextile 7 fabric will be installed between the native material and the rock.

ii. from the end or most interior point of the TC-1 entrance/exit at the Bradford 9 Street gate a gravel roadway will be installed with 1" to 2" diameter rock aggregate. Geotextile fabric will be installed between the native material and the rock. The gravel roadway will be approximately 6-inches in depth. The treatment system will be installed on a concrete pad, while the storage container will be installed on a 1" to 2" diameter rock aggregate pad.

(h) Defendants shall employ a regenerative sweeper on all paved surfaces of Facility No. 2, daily during the Wet Season, and weekly during the Dry Season;

(i) Defendants shall create, use and maintain a visual inspection checklist for use during visual inspections of storm water and non-storm water discharges from Facility No. 2;

(j) Defendants shall perform regular maintenance of storm water drainage system at Facility No. 2 in order to identify and remove any settled contaminants (e.g., paper waste) from storm water drains and conveyances therein;

(k) Defendants shall inspect the oil-water separator at Facility No. 2 at least twice per year. Further, Defendants shall pump out the contents of the oil-water separator at least twice a year and dispose of it in accordance with all relevant governing federal, state and local laws, regulations and/or ordinances;

(l) Defendants shall regularly monitor and maintain the storm water drainage system, BMPs and drop inlets for Facility No. 2; document such maintenance; and maintain records thereof with the SWPPP for Facility No. 2 as required by the terms of the General Permit. Further, Defendants shall ensure that appropriate personnel are properly trained in storm water management and that records of any such storm water management training of Facility No. 2 personnel shall also be maintained along with the SWPPP for Facility No. 2.

(m) Defendants shall install a rainfall recording device at Facility No. 2 and 4 5 maintain documentation at Facility No. 2 of the daily rainfall occurring at Facility No. 2 during 6 the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons. In addition to the rainfall data 7 gathered from the rainfall recording device installed at Facility No. 2, Defendants may elect to 8 also maintain documentation of precipitation data recorded off-site at other nearby, reliable rainfall gauges (e.g., Stockton Fire Station #4*fn2 );

(n) Defendants shall install any device(s) necessary to record instances during which the filtration capacity of the storm water filtration system reflected in Exhibit J is exceeded (a.k.a., "flow meter"). Further, Defendants shall maintain documentation of the data recorded by the device(s) contemplated by this subsection at Facility No. 2. In order to avoid disputes as to whether the capacity of the storm water filtration system installed at Facility No. 2 was exceeded during storm events occurring during the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons, Defendants shall provide CSPA timely documentation of such filtration system exceedances within seven (7) calendar days of each such occurrence, subject to the Notice provisions set forth below;

(o) The proposed storm water treatment system for Facility No. 2 will initially be installed with 70 gpm treatment capacity and with 10,000 gallon capacity storage tank. In the event that the filtration capacity of the storm water filtration system installed at Facility No. 2 is exceeded during three (3) or more storm events occurring during the 2012-2013, 2013-2014 or 2014-2015 Wet Seasons, before the commencement of the next Wet Season, Defendants shall increase the storm water filtration/treatment system's gpm flow rate capacity and/or its storage capacity as needed to account for the amount of storm water by volume that bypassed the system untreated during the previous Wet Season as measured by the device(s) required by subclause (n) above. The IRI Water Decontaminator system model no. WD-4BS composed of 2 four modules with eight high filtration cartridges per module is designed to increase flow and 3 retention time by adding additional modules. Each high filtration module for Facility No. 2 is 4 rated at 40 gpm. Single or multiple modules will be added if effluent concentrations are not 5 reduced to below US EPA Multi-Sector Permit Parameter Benchmark Values. Additionally, if 6 actual site runoff flow rates exceed system design flow rates, additional modules with the most 7 applicable flow rate will be evaluated for installation. An emergency overflow will be installed 8 in the system.

5.Defendants' Implementation of Specific Storm Water Best Management Practices At Facility No. 3 (East Weber Avenue) On Or Before Oct. 1, 2012. On or before Oct. 1, 2012, Defendants shall complete the implementations of the following BMPs at Facility No. 3:

(a) Defendants shall install a storm water filter system meeting the minimum specifications described in Exhibit K and at the general location described in Exhibit C which is attached hereto and incorporated herein by this reference;

(b) Defendants shall install filters manufactured by Innovative Resources, Inc. or equivalent filters meeting the minimum specifications described in Exhibit K which is attached hereto and incorporated herein by this reference in the storm water drop inlets at Facility No. 3 as described on the Facility Map attached hereto as Exhibit C which is attached hereto and incorporated herein by this reference;

(c) Defendants shall refrain from conducting industrial activities or storing materials used in such industrial activities (e.g., any recyclable materials, forklifts or other vehicles, etc.) within a three (3) foot radius of any unsealed storm water drop inlet at Facility No. 3. In the event that Defendants are unable to comply with this requirement with respect to any storm water drop inlet at Facility No. 3, Defendants shall seal that drop inlet with concrete;

(d) Defendants shall channel all storm water that would otherwise flow off-site at Facility No. 3 into the filtration system discussed above in subclause (a) as depicted on Exhibit C;

(e) Defendants shall install berms constructed of materials determined to be necessary to create a reasonably impermeable barrier around the inside of the border of Facility No. 3 at the locations shown on Exhibit C in a manner designed to channel all storm water that 3 4 would otherwise flow off-site to the filtration system discussed above in subclause (a);

(f) Defendants shall either (i) install entrance-wide reasonably impermeable berms 5 6 or make changes to surface material or grade at all gated points of vehicle ingress/egress at 7 Facility No. 3 designed in a manner that prevents storm water discharge from these gated areas 8 while still allowing for vehicle clearance, or (ii) install entrance-wide grated trench drains at all 9 gated points of vehicle ingress/egress at Facility No. 3 designed in a manner that captures storm water therein and then pumps that water to the filtration system discussed above in subclause (a);

(g) Defendants shall employ a regenerative sweeper on all paved surfaces of Facility No. 3, daily during the Wet Season, and weekly during the Dry Season;

(h) Defendants shall create, use and maintain a visual inspection checklist for use during visual inspections of storm water and non-storm water discharges from Facility No. 3;

(i) Defendants shall perform regular maintenance of storm water drainage system at Facility No. 3 in order to identify and remove any settled contaminants (e.g., paper waste) from storm water drains and conveyances therein;

(j) Defendants shall inspect the oil-water separator at Facility No. 3 at least twice per year. Further, Defendants shall pump out the contents of the oil-water separator at least twice a year and dispose of it in accordance with all relevant governing federal, state and local laws, regulations and/or ordinances;

(k) Defendants shall regularly monitor and maintain the storm water drainage system, BMPs and drop inlets for Facility No. 3; document such maintenance; and maintain records thereof with the SWPPP for Facility No. 3 as required by the terms of the General Permit. Further, Defendants shall ensure that appropriate personnel are properly trained in storm water management and that records of any such storm water management training of Facility No. 3 personnel shall also be maintained along with the SWPPP for Facility No. 3.

(l) Defendants shall install a rainfall recording device at Facility No. 3 and 2 3 maintain documentation at Facility No. 3 of the daily rainfall occurring at Facility No. 3 during 4 the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons. In addition to the rainfall data 5 gathered from the rainfall recording device installed at Facility No. 3, Defendants may elect to 6 also maintain documentation of precipitation data recorded off-site at other nearby, reliable rainfall gauges (e.g., Stockton Fire Station #4*fn3

(m) Defendants shall install any device(s) necessary to record instances during 8 which the filtration capacity of the storm water filtration system reflected in Exhibit K is exceeded (a.k.a., "flow meter"). Further, Defendants shall maintain documentation of the data recorded by the device(s) contemplated by this subsection at Facility No. 3. In order to avoid disputes as to whether the capacity of the storm water filtration system installed at Facility No. 3 was exceeded during storm events occurring during the 2012-2013, 2013-2014 and 2014-2015 Wet Seasons, Defendants shall provide CSPA timely documentation of such filtration system exceedances within seven (7) calendar days of each such occurrence, subject to the Notice provisions set forth below;

(n) The proposed storm water treatment system for Facility No. 3 will initially be installed with 150 gpm treatment capacity and with 10,000 gallon capacity storage tank. In the event that the filtration capacity of the storm water filtration system installed at Facility No. 3 is exceeded during three (3) or more storm events occurring during the 2012-2013, 2013-2014 or 2014-2015 Wet Seasons, before the commencement of the next Wet Season, Defendants shall increase the storm water filtration/treatment system's gpm flow rate capacity and/or its storage capacity as needed to account for the amount of storm water by volume that bypassed the system untreated during the previous Wet Season as measured by the device(s) required by subclause (m) above. The IRI Water Decontaminator system model no. WD-4BS composed of four modules with eight high filtration cartridges per module is designed to increase flow and retention time by adding additional modules. Each high filtration module for Facility No. 3 is 2 rated at 40 gpm. Single or multiple modules will be added if effluent concentrations are not 3 reduced to below US EPA Multi-Sector Permit Parameter Benchmark Values. Additionally, if 4 actual site runoff flow rates exceed system design flow rates, additional modules with the most 5 applicable flow rate will be evaluated for installation. An emergency overflow will be installed 6 in the system.

6.Flow Meters. Contemporaneous with installation of the proposed storm water 8 treatment system for each Facility, Defendants shall install continuous flow meters that shall measure 9 and record the total volume of all storm water fully treated at the Facility (Total Treated Flow) and the total volume of all treated flow and all storm water bypassing the treatment system and discharging from the Facility (Total Facility Flow). Defendants shall measure and report the total volume of all storm water bypassing the treatment system and discharging from each Facility by subtracting the Total Treated Flow from the sum of the Total Facility Flow. Defendants stipulate that this method of calculating the volume of storm water bypassing the Filtration System is technically appropriate and accurate. The storm water flow records shall be compiled monthly. Defendants will pursue installation of a digital logging flow meter as part of the permanent system. By October 1, 2012, Defendants shall provide CSPA with a description of the installed flow meters, including their type, location, and flow capacity. In the interim, Defendants shall provide CSPA with flow records for the amount of treated water under the existing system along with notes and dates indicating if, when, and for how long there is bypass from the existing system based upon visual observation, the protocol for this visual observation, and an estimate of the volume of water bypassing the system. From October 1, 2012 through February 2013, Defendants shall e-mail and send via first class mail to CSPA the flow records obtained for each of those months by the 15th of the following month. For each wet season, Defendants shall e-mail and send via first class mail the compiled flow records for the entire wet season to CSPA not later than July 30th following the conclusion of each wet season. At the request of CSPA, the parties shall promptly meet and confer regarding any question about the adequacy or location of the flow meters.

7.SWPPP Amendments/Additional BMPs. Within 30 days of mutual execution of this 2 Consent Agreement, Defendants shall formally amend the SWPPP for each of Defendants' Facilities 3 to incorporate all of the relevant requirements of this Consent Agreement, as well as the revised 4 Facility maps attached hereto as Exhibits A, B and C. With respect to the SWPPP maps, each map 5 attached hereto depicts, among other things: (a) the flow vector/path of storm water throughout the 6 entirety of each of Defendants' Facilities (including individual drainage sub-areas); and, (b) all points 7 of storm water discharge and all designated storm water sampling locations. In the event of any 8 conflict between the narrative requirements of this Consent Agreement and the description of the types 9 of BMPs and their locations on Exhibits A, B and C, the locations of the BMPs as shown on Exhibits A, B and C shall control.

8.Sampling Frequency. Defendants shall collect and analyze samples of storm water discharged from Facility Nos. 1, 2 and 3, during five (5) storm events at each of Defendants' Facilities, as qualified in the General Permit*fn4 for sampling purposes, in each of the three Wet Seasons occurring during the term of this Consent Agreement (2012-2013, 2013-2014 and 2014-2015). The storm water sample results shall be compared with the values set forth in Exhibit G, attached hereto, and incorporated herein by reference. If the results of any such samples exceed the parameter values set forth in Exhibit G, Defendants shall comply with the "Action Memorandum" requirements set forth below.

9.Sampling Parameters. All samples shall be analyzed for each of the constituents listed in Exhibit G by a laboratory accredited by the State of California. All samples collected from Defendants' Facilities shall be delivered to the laboratory as soon as possible to ensure that sample "hold time" is not exceeded. Analytical methods used by the laboratory shall be adequate to detect the individual constituents at or below the values specified on Exhibit G. Sampling results shall be provided to CSPA within seven (7) days of Defendants' receipt of the laboratory report from each sampling event pursuant to the Notice provisions below. 2

10."Action Memorandum" Trigger; CSPA Review Of "Action Memorandum"; Meet- 3 and-Confer. If any sample taken during the three (3) Wet Seasons referenced in Paragraph 8 above 4 exceeds the evaluation levels set forth in Exhibit G, or if Defendants fail to collect and analyze 5 samples from five (5) storm events (provided such qualifying storm events have occurred during a Wet 6 Season) from each of Defendants' Facilities, as qualified in the General Permit, or if the treatment 7 capacity of the storm water treatment system installed at any of Defendants' Facilities is exceeded 8 during three (3) or more storms occurring during any Wet Season throughout the term of this Consent 9 Agreement, Defendants shall prepare a written statement discussing the EPA benchmark value exceedance(s) and /or failure to collect and analyze samples from five (5) storm events and/or the exceedance of the treatment capacity of the storm water filtration system installed at any of Defendants' Facilities, the possible cause and/or source of the exceedance(s) and/or failure to collect and analyze samples from five (5) storm events at each of Defendants' Facilities, and additional measures that will be taken to address and eliminate the problem(s) and future exceedances ("Action Memorandum"). The Action Memorandum shall be provided to CSPA not later than July 15 following the conclusion of each of the three full Wet Seasons occurring during the term of this Consent Agreement (2012-2013, 2013-2014 and 2014-2015). Recognizing that a SWPPP is an ongoing iterative process meant to encourage innovative BMPs, such additional measures may include, but are not limited to, making further material improvements to the storm water collection and discharge system, changing the frequency of Facility sweeping, changing the type and extent of storm water filtration media or modifying other industrial activities or management practices at any or all of Defendants' Facilities. Such additional measures, to the extent feasible, shall be implemented immediately and in no event later than sixty (60) days after the due date of the Action Memorandum. Within seven (7) days of implementation of BMP modifications/improvements at any of Defendants' Facilities, the SWPPP for the appropriate Facility/Facilities shall be amended to include all additional BMP measures designated in the Action Memorandum. CSPA may review and comment on an Action Memorandum and suggest any additional pollution prevention measures it believes are appropriate; however, CSPA's failure to do so shall not be deemed to constitute agreement with the proposals set 2 forth in the Action Memorandum. Upon request by CSPA, Defendants agree to meet and confer in 3 good faith (at Defendants' Facilities, if requested by Plaintiff) regarding the contents and sufficiency of 4 the Action Memorandum. 5

11.Inspections During The Term Of This Agreement. In addition to any site 6 inspections conducted as part of the meet-and-confer process concerning an Action Memorandum as 7 set forth above, Defendants shall permit representatives of CSPA (i.e., its counsel and/or storm water 8 consultant) to perform up to three (3) physical inspections of Defendants' Facilities during the term of 9 this Consent Agreement. These inspections shall be performed by CSPA's counsel and/or consultant(s) and may include sampling, photographing, and/or videotaping and CSPA shall provide Defendants with a copy of all sampling reports, photographs and/or video. CSPA shall provide at least forty-eight (48) hours advance notice of such physical inspection, except that Defendants shall have the right to deny access if circumstances would make the inspection unduly burdensome and pose significant interference with the business operations of any party/attorney, or the safety of individuals. In such case, Defendants shall specify at least three (3) dates within the two (2) weeks thereafter upon which a physical inspection by CSPA may proceed. Defendants shall not make any alterations to conditions at Defendants' Facilities during the period between receiving CSPA's initial forty-eight (48) hour advance notice and the start of CSPA's inspection that Defendants would not otherwise have made but for receiving notice of CSPA's request to conduct a physical inspection of Defendants' Facilities, excepting any actions taken in compliance with any applicable laws or regulations. Nothing herein shall be construed to prevent Defendants from continuing to implement any BMPs identified in the SWPPP during the period prior to an inspection by CSPA or at any time.

12.Defendants' Communications To/From Regional and State Boards. During the term of this Consent Agreement, Defendants shall provide CSPA with copies of all documents submitted to or received from the Regional Board or the State Board concerning storm water discharges from Defendants' Facilities, including, but not limited to, all documents and reports submitted to the Regional Board and/or State Board as required by the General Permit. Such documents and reports shall be provided to CSPA pursuant to the Notice provisions herein and 2 contemporaneously with Defendants' submission to such agencies. 3

13.SWPPP Amendments. Defendants shall provide CSPA with a copy of any 4 amendments to the SWPPP for any of Defendants' Facilities made during the term of the Consent 5 Agreement within fourteen (14) days of such amendment. 6

II. MITIGATION, COMPLIANCE MONITORING AND FEES AND COSTS 7

14.Mitigation Payment In Lieu Of Civil Penalties. As mitigation of the Clean Water Act violations alleged in Complaint No. 1, Complaint No. 2 and Complaint No. 3, Defendants agree to 9 pay the sum of $100,000.00 within seven (7) days after the Court Approval Date to the Rose Foundation for Communities and the Environment ("Rose Foundation") for projects to improve water quality in the San Joaquin River and/or the Sacramento-San Joaquin River Delta. Payment shall be provided to the Rose Foundation by mailing it to: Rose Foundation for Communities and the Environment, Attn: Tim Little, 6008 College Avenue, Oakland, CA 94618.

15.Compliance Monitoring Funding. To defray CSPA's reasonable investigative, expert, consultant and attorneys' fees and costs associated with monitoring Defendants' compliance with this Consent Agreement, Defendants agree to contribute $20,000 total for the life of the Consent Agreement, to a compliance monitoring fund maintained by counsel for CSPA as described below. Compliance monitoring activities may include, but shall not be limited to, site inspections, review of water quality sampling reports, review of annual reports, discussions with representatives of Defendants concerning the Action Memoranda referenced above, and potential changes to compliance requirements herein, preparation for and participation in meet-and-confer sessions, water quality sampling and analysis, and compliance-related activities. The first such payment in the amount of $10,000 shall be made payable to the "Law Offices of Andrew L. Packard Attorney-Client Trust Account" within seven (7) days of the Court Approval Date, with a second installment of $10,000 due on June 1, 2012.

16.Fees & Costs. Defendants agree to reimburse CSPA in the amount of $82,000.00 to defray CSPA's reasonable investigative, expert, consultant and attorneys' fees and costs, and all other costs incurred as a result of investigating the activities at Defendants' Facilities, bringing the three 2 actions and negotiating a resolution in the public interest.Such payment shall be made to the "Law 3 Offices of Andrew L. Packard Attorney-Client Trust Account" within seven (7) days after the Court 4 Approval Date. CSPA shall bear all other attorney fees, expert consultant and witness fees, and costs 5 incurred by CSPA in this action except as provided in this Consent Agreement. Defendants shall bear 6 all of their attorneys' fees, expert consultant and witness fees, and costs incurred by Defendants in this 7 action except as provided in this Consent Agreement. 8

III. DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT AGREEMENT 9

17.With the exception of the timelines set forth above for addressing exceedances of values specified on Exhibit G and Action Memoranda, if a dispute under this Consent Agreement arises, or either Plaintiff or Defendants believe that a breach of this Consent Agreement has occurred, the Parties shall meet and confer within seven (7) days of receiving written notification from another Party of a request for a meeting to determine whether a violation has occurred and to develop a mutually agreed upon plan, including implementation dates, to resolve the dispute. If the Parties fail to meet and confer, or the meet-and-confer does not resolve the issue, after at least seven days have passed after the meet-and-confer occurred or should have occurred, either Party to that dispute shall be entitled to all rights and remedies under the law, including filing a motion with the District Court of California, Eastern District, which shall retain jurisdiction over the Action for the limited purposes of enforcement of the terms of this Consent Agreement. The Parties shall be entitled to seek fees and costs incurred in any such motion, and such fees and costs shall be awarded, pursuant to the provisions set forth in Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), and applicable case law interpreting such provision.

18.CSPA's Waiver and Release. Upon Court approval and entry of this Consent Agreement, CSPA, on its own behalf and on behalf of its members, subsidiaries, successors, assigns, directors, officers, agents, attorneys, representatives, and employees, releases Defendants and their officers, directors, employees, shareholders, parents, subsidiaries, and affiliates, and each of their predecessors, successors and assigns, and each of their agents, attorneys, consultants, and other representatives (each a "Released Defendant Party") from, and waives all claims which arise from or 2 pertain to the Action, including, without limitation, all claims for injunctive relief, damages, penalties, 3 fines, sanctions, mitigation, fees (including fees of attorneys, experts, and others), costs, expenses or 4 any other sum incurred or claimed or which could have been claimed in this Action, for the alleged 5 failure of Defendants to comply with the Clean Water Act at Defendants' Facilities, up to the Effective 6 Date of this Consent Agreement. 7

19.Defendants' Waiver and Release. Defendants, on their own behalf and on behalf of 8 those Released Defendant Parties under their control, release CSPA (and its officers, directors, 9 employees, members, parents, subsidiaries, and affiliates, and each of their successors and assigns, and its agents, attorneys, and other representative) from, and waive all claims which arise from or pertain to the Action, including all claims for fees (including fees of attorneys, experts, and others), costs, expenses or any other sum incurred or claimed or which could have been claimed for matters associated with or related to the Action.

20.On or about the Court Approval Date, the Parties shall file with the Court a Stipulation and Order that shall provide that:

a. the Complaint and all claims therein shall be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2); and

b. the Court shall retain and have jurisdiction over the Parties with respect to disputes arising under this Agreement. Nothing in this Consent Agreement shall be construed as a waiver of any party's right to appeal from an order that arises from an action to enforce the terms of this Consent Agreement.

IV. MISCELLANEOUS PROVISIONS

21.The Parties enter into this Consent Agreement for the purpose of avoiding prolonged and costly litigation. Nothing in this Consent Agreement shall be construed as, and Defendants expressly do not intend to imply, an admission as to any fact, finding, issue of law, or violation of law, nor shall compliance with this Consent Agreement constitute or be construed as an admission by Defendants of any fact, finding, conclusion, issue of law, or violation of law. However, this paragraph


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