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California Sportfishing Protection Alliance v. Mineral Resources, LLC

United States District Court, E.D. California

July 3, 2019

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff,
v.
MINERAL RESOURCES, LLC, MRLLC INVESTORS, L.P. AND CHRIS VAN VELDHUIZEN, Defendants.

          ANDREW L. PACKARD, WILLIAM N. CARLON, Law Offices of Andrew L. Packard Attorneys for Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE.

          CONSENT JUDGMENT FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§ 1251 TO 1387

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

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

         WHEREAS, Defendants Mineral Resources, LLC and MRLLC Investors, L.P. (hereinafter “Mineral Resources” or “Defendants”) own and/or operate an approximately 240-acre facility at 1324 Cherokee Road, in Oroville, California where Defendants conduct various industrial activities including stripping overlying overburden materials; extracting raw silica sand and aggregate using heavy construction equipment; separating, processing and refining these materials through grading, separation and washing processes; stockpiling finished materials; and transportation of finished materials (collectively, the “Facility”);

         WHEREAS, CSPA and Defendants collectively shall be referred to as the “Parties;”

         WHEREAS, the Facility collects and discharges storm water from the Facility into storm water conveyances that discharge to Morris Ravine Creek, which drains to the Thermalito Diversion Pool, which is a tributary of the Feather River, which is a tributary of the Sacramento River, the Sacramento-San Joaquin Delta and the San Francisco Bay (a map of the Facility as configured at the time of the execution of this Agreement is attached hereto as Exhibit A and incorporated herein by reference);

         WHEREAS, Morris Ravine Creek, the Thermalito Diversion Pool, the Feather River, the Sacramento River, the Sacramento-San Joaquin Delta and the San Francisco Bay are waters of the United States within the meaning of the Clean Water Act;

         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 (“State Board”) Water Quality Order No. 14-57-DWQ, issued pursuant to Section 402(p) of the Clean Water Act (“Act”), 33 U.S.C. § 1342(p), (hereinafter “General Permit”) and, prior to July 1, 2015, were regulated by Water Quality Order No. 91-13-DWQ, as amended by Water Quality Orders 92-12-DWQ and 97-03-DWQ;

         WHEREAS, on or about April 13, 2018, Plaintiff provided written notice of Defendants' alleged violations of the Act (“Notice Letter”), 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 U.S. Attorney General; the Executive Director of the 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 CSPA's Notice Letter is attached hereto as Exhibit B and incorporated herein by reference);

         WHEREAS, Defendants deny the occurrence of the violations alleged in the Notice Letter and maintain that Mineral Resources has complied at all times with the provisions of the General Permit and the Clean Water Act or, alternatively, that there are no “ongoing and continuous” violations of the General Permit or the Act;

         WHEREAS, on or about June 13, 2018, CSPA filed a complaint against Defendants in the United States District Court, Eastern District of California (this matter is hereinafter referred to as “the Action”);

         WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter as to all entities and persons named in the Notice Letter and the Action without further litigation and enter into this Consent Judgment (“Agreement”);

         WHEREAS, for purposes of this Agreement only, the Parties stipulate that venue is proper in this Court, and that Defendants do not contest the exercise of jurisdiction by this Court to dismiss this matter with prejudice under the terms of this Agreement;

         WHEREAS, within five (5) calendar days of mutual execution, this Agreement shall be submitted to the United States Department of Justice (“USDOJ”) and the United States Environmental Protection Agency (“USEPA”) for the 45-day statutory review period, pursuant to 33 U.S.C. § 1365(c);

         WHEREAS, at the time the Agreement is submitted for review to the USDOJ and the USEPA, CSPA shall submit a Notice of Settlement in the District Court and inform the Court of the expected dismissal date following the expiration of the statutory review period identified above;

         AND WHEREAS, within ten (10) calendar days of expiration of the statutory review period, or the earlier receipt of non-objection from the United States Department of Justice, the Parties shall file with the Court this Agreement, and a Stipulation and Order that shall provide that Chris Van Veldhuizen shall be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) concurrently with the District Court's retention of jurisdiction for the enforcement of this Agreement as provided herein (the date of entry of this Agreement shall be referred to herein as the “Entry Date”).

         NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES AS FOLLOWS:

         I. COMMITMENTS OF DEFENDANTS

         1. Compliance with General Permit and the Clean Water Act.

         Throughout the term of this Agreement, Mineral Resources shall implement all measures needed to operate the Facility in compliance with the requirements of the General Permit and the Clean Water Act.

         2. Compliance with Waste Discharge Requirement Order No. R5-2003-0096.

         Throughout the term of this Agreement, Defendants shall implement all measures needed to operate the Facility in compliance with Waste Discharge Order (“WDR”) No. R5-2003-0096, a copy of which is attached hereto as Exhibit C.

         3. Implementation of Specific Storm Water Best Management Practices.

         Unless otherwise indicated below, on or before December 1, 2019, Mineral Resources shall complete the implementation and incorporation into the Facility's Storm Water Pollution Prevention Plan (“SWPPP”) of the following storm water source control measures/Best Management Practices (“BMPs”) at the Facility:

(a) Storm Water Pollution Prevention Plan. On or before June 30, 2019, Defendants agree to revise, certify and upload to SMARTS the Facility's SWPPP to comply with all the requirements in Section X of the General Permit. Defendants shall ensure that the revised SWPPP includes all new BMPs agreed to herein.
(b) Facility Mapping. On or before June 30, 2019, Defendants agree to revise the Facility's Site Map to comply with all of the requirements in Section X.E.1-3 of the General Permit. Mineral Resources shall ensure that the revised Site Map includes all areas of the Facility that are subject to industrial activities.
(c) Improvements to C-Pond and Beaver Pond. On or before June 30, 2019, Defendants shall expand the C-Pond and Beaver Pond (as identified on the Facility's Site Map attached as Exhibit A) to meet the design storm standards described in Section X.H.6 of the General Permit. Defendants shall include in their SWPPP hydrologic calculations of the volume of storm water to be treated by C-Pond and Beaver Pond certified by a California licensed professional engineer in accordance with the Professional Engineers Act (Bus. & Prof. Code § 6700, et seq.), as required by Section X.H.6.a of the General Permit. Defendants shall also include in their SWPPP engineering drawings indicating the dimensions of the C-Pond, including the design for the controlled drainage inflow and outflow points. The outflow of C-Pond shall be designed and constructed to permit safe sampling. These hydraulic calculations and engineering drawings shall be produced to Plaintiff on or before June 30, 2019.
(d) Improve Road to C-Pond. Defendants shall improve the road to C-Pond such that the sampling point at C-Pond is safely accessible at all times of the year, and especially during rain events. Defendants shall stabilize the slopes around the road to the C-Pond to promote access via this road in wet weather.
(e) Prevent All Unauthorized Non-Storm Water Discharges. Defendants shall prevent all Unauthorized Non-Storm Water discharges from the Facility in accordance with Section III.B of the General Permit. Defendants shall install any advanced BMPs necessary, including, but not limited to an impermeable berm or curb around each Processing Plant to prevent the discharge of process waters, or storm water that has comingled with process water, from discharging from the Facility. Defendants shall prevent all discharges of process waters into the Process Pond (as identified on the Facility's Site Map attached hereto as Exhibit A) and the C-Pond. Any water retained in the Processing Plant areas that is not used in the Facility's processing shall be pumped to the Upper Processing Ponds for storage without discharging.
(f) Install Drainage Ditches Along Southern Slope. Defendants shall install drainage ditches, based on the schematics attached hereto as Exhibit D, along the south side of the road running east-west in the Spoils and Reclamation Area. Defendants shall install drainage ditches, based on the schematics attached hereto as Exhibit D, along the Southern Slope such that the ditches will direct all storm water flows on the Southern Slope to the C-Pond. Defendants shall install check dams, based on the schematics attached hereto as Exhibit D, in each drainage ditch installed pursuant to this section of the Agreement in order to slow the flow of storm water within the ditches.
(g) Segregation of Authorized Non-Storm Water Discharges from Storm Water Conveyance Systems. Defendants shall direct the non-storm water leaching from the hillside north of the Process Plant away from any areas of industrial activity and prevent that non-storm water from comingling with any storm water associated with industrial activity.
(h) Stabilization of the Southern Slope. Defendants shall take all measures necessary to prevent erosion and rilling on the Southern Slope, as identified on the Facility's Site Map attached hereto as Exhibit A. Defendants shall expand the existing ditches running along the Southern Slope to accommodate flows from an 85th percentile 24-hour storm. Defendants shall install ditches as needed to divert all Southern Slope drainages to the C-Pond. Defendants shall install velocity- reduction structures based on the design schematics attached hereto as Exhibit D within all ditches on the Southern Slope. Defendants shall stabilize the Southern Slope by terracing and hydroseeding to prevent erosion and rilling.
(i) Installation of an Impermeable Berm Preventing Discharges Down Southern Slope Below the Office. Defendants shall remove the existing gravel berm and replace it with a comparable impermeable berm along the top of the Southern Slope as identified in the Facility's Site Map attached hereto as Exhibit A.
(j) Excavation and Maintenance of the Upper Process Ponds. Defendants shall excavate the Upper Process Ponds, as identified on the Facility's Site Map attached hereto as Exhibit A, to meet the specifications identified in the Facility's WDR. Defendants shall include in their SWPPP all hydrologic calculations, engineering drawings, and assumptions used to determine that the Process Ponds have sufficient capacity to accommodate allowable wastewater flow and design seasonal precipitation, and ancillary inflow and infiltration to prevent inundation or washout using total annual precipitation with a return period of 100 years, distributed monthly in ...

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