Matt Salnick v. Ameron Pole Products, LLC

Filing 56

CONSENT JUDGMENT by Judge Consuelo B. Marshall: The storm water pollution control measures required by this Consent Decree shall designed and operated to manage storm water discharges, through full compliance with the IGP. Ameron will appoint a Q ualified Industrial Storm Water Practitioner ("QISP") within sixth(60) days after the Effective Date; Within forty-five (45) days after the Effective Date, Ameron shall revise the SWPPP for the Ameron Facility to include any BMPs required b y the Consent Decree and comply with all provision of the Permit. Ameron shall submit its SWPPP, including any revisions, to Plaintiff for review comment. Plaintiff shall provide comments, if any, to Ameron within sixty (60) days of receipt of SWPPP . Ameron shall incorporate Plaintiff's comments into the SWPPP, or shall justify in writing why any comment is not incorporated within fifteen (15) days of receiving comments. Within ninety (90) days of the Effective Date, Ameron shall review it s plan for monitoring all storm water discharges from the Ameron Facility that meet the requirements of this Consent Decree and Section XI of the Permit, and incorporate the same into its SWPPP. Ameron shall make a one-time payment of Fifteen Thousan d Dollars ($15,000.00) to compensate Plaintiff's Counsel for costs and fees to be incurred for monitoring Ameron's compliance with this Consent Decree. To remediate the alleged environmental harms resulting from non compliance with the 1997 Storm Water Permit and IGP alleged in the Complaint, Ameron agrees to make a payment of Eight Thousand Five Hundred Dollars ($8,500.00) to "The Nature Conservancy. Ameron shall pay a total of Fifty-One Thousand Five Hundred Dollars (& #036;51,500.00) to Brodsky & Smith, LLC for their investigation fees and co expert-consultant fees and costs, and reasonable attorneys' fees incurred as a result of investigating, preparing the lawsuit and negotiating this Consent Decree. This Court shall retain jurisdiction over this matter. Related to: Order, 55 . See order for further details. (MD JS-6. Case Terminated ) (shb)<Attachments>(shb)

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Evan J. Smith(SBN 242352)
Ryan P. Cardona(SBN 302113)
BRODSKY &SMITH,LLC
9595 Wilshire Blvd., Ste. 900
Beverly Hills, CA 90212
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

CLERK, U.S. DISTRICT COURT

MAY ~ 4 2019
CENTRAL D T

CALIFQRNIA

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Attorneysfor Plaintiff
Tarifa B. Laddon(SBN 240419)
Amanda Semaan(SBN 293896)
FAEGRE BAKER DANIELS LLP
1 1766 Wilshire Blvd., Suite 750
Los Angeles, CA 90025
Tel: [phone]
Fax: [phone]
Email: [e-mail]

13 Attorneysfor Defendant
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MATT SALNICK,

Civil Case No.: 2:17-cv-00359-CBM(JCx)

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Plaintiff,

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vs.

CONSENT DECREE

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~

AMERON POLE PRODUCTS,LLC,

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Defendant,

(
Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 et seq.)

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CONSENT DECREE
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Civil Case No.: 2:17-cv-00359-CBM(JCx)

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CONSENT DECREE
The following Consent Decree is entered into by and between Matt Salnick ("Plaintiff')
Ameron Pole Products, LLC ("Ameron"). The entities entering into this Consent Decree are each

4 ~ individual "Settling Party" and collectively the "Settling Parties."
5

WHEREAS,Plaintiff is a citizen of the State of California.

6

WHEREAS,Plaintiff is concerned with the environmental health of the Sespe Creek and

7 Santa Clara River Watershed, of which the Sespe Creek is a part, and uses and enjoys the waters of
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Sespe Creek, its inflows, outflows and other waters of the Santa Clara River Watershed;
WHEREAS, Ameron is the owner and operator of a facility that operates as a manufacturer

10 traditional and contemporary concrete poles located at 1020 B Street, Fillmore, CA 93015,
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referred to by the Settling Parties as the "Facility;"
WHEREAS,Plaintiff's use and enjoyment ofthese waters are negatively affected by the polluti
allegedly caused by the operations at the Facility;
WHEREAS, Plaintiff acts in the interest of the general public to prevent pollution in

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waterways, for the benefit of their ecosystems, and for the benefits of all individuals and communiti

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who use these waterways for various recreational, educational, and spiritual purposes;

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WHEREAS,the discharges from the Facility are regulated by the National Pollutant

18 Elimination System("NPDES"),General Permit No. CAS000001,[State Water Resources Control Boy
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Water Quality Order No. 92-12-DWQ, as amended by Order No. 97-03-DWQ ("1997 Storm W

2 Permit"), and as amended by Order No. 2014-0057-DWQ ("IGP"), and the Federal Water Pollux
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Control Act, 33 U.S.C. §§ 1251 et seq. ("Clean Water Act" or "CWA");
WHEREAS, the Facility is listed as operating under SIC Code 3272, relating to

23 Products, except Block and Brick. Defendant applied for coverage under the California Industrial Gener
24 Permit on March 27, 1992, and was issued WDID No. 4 56I001604. Defendant reapplied for covera~
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under the 2015 Industrial Stormwater Permit on April 1, 2015, and was granted the continued use of i

2 previously issued WDID No. The March 27, 1992, and April 1, 2015 "Notice of Intents" for the Facili
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Consent Decree
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Civil Case No. 2:17-CV-00546

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to comply with the terms of the Industrial Stormwater Permit list "Ameron Pole Product" and"

2 Pole Products" as the Operator and Facility names, respectively;
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WHEREAS, on October 13, 2016, Plaintiff sent Ameron, the United States En

4 Protection Agency ("EPA"), EPA Region IX, the State Water Resources Control Board ("State Board";
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and the Regional Water Quality Control Board —Los Angeles Region ("Regional Board") a notice o

6 intent to file suit ("Notice Letter") under Sections 505(a) and (b) of the Clean Water Act, 33 U.S.C. §~.
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1365(a) and (b). The Notice Letter alleged violations of Section 301(a) ofthe Clean Water Act, 33 U.S.0

8 § 1311(a) and violations ofthe 1997 Storm Water Permit and the IGP at the Ameron Facilityi;
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WHEREAS,on January 17, 2017,Plaintiff filed a complaint against Ameron in the United

10 District Court, Central District of California(Case No.), alleging violations of Section 301(a) ofthe C
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Water Act, 33 U.S.C. § 1311(a), and violations of the Storm Water Permit at the Ameron Facili

12 (
"Complaint");
13

WHEREAS, Plaintiff alleges Ameron to be in violation of the substantive and proce

14 requirements of the 1997 Storm Water Permit, the IGP and the Clean Water Act with respect to
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Ameron Facility;
WHEREAS,on March 10, 2017, Ameron filed an answer in response to the Complaint, den

17 all allegations in the Notice Letter and Complaint relating to the Ameron Facility ("Answer");
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WHEREAS, on August 30, 2017, Ameron uploaded a 2016-2017 Storm Water Season Level

19 Exceedance Response Action Evaluation &Report (the "Level 1 ERA Report"), prepared by its QISP
2 adding revised and additional BMPs to the Facility's monitoring and reporting program with the goal
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preventing future numeric action level exceedances, and to comply with the IGP;
WHEREAS, on September 26, 2017, Plaintiff's consultant conducted an inspection of
Facility;
WHEREAS,on October 3, 2017, Ameron uploaded a revised SWPPP to SMARTS,attached
incorporated herewith as Exhibit A,containing the BMPs described in the August 30, 2017, Level 1

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'For purposes of this Consent Decree, the NPDES permit and any amendments thereto in effect at the

27 time of Ameron's required compliance with the terms of this Consent Decree shall be referred to as "the
Industrial General Permit" or "IGP."
28 Consent Decree
Civil Case No. 2:17-CV-00546
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US.117907935.01

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Report;

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WHEREAS,Ameron continues to deny all allegations in the Notice Letter and Complaint relati

3 to the Ameron Facility;
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WHEREAS,Plaintiff and Ameron have agreed that it is in the Settling Parties' mutual interest
enter into a Consent Decree setting forth terms and conditions appropriate to resolving the allegations

6 forth in the Complaint without further proceedings; and
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WHEREAS, all actions taken by Ameron pursuant to this Consent Decree shall be made
compliance with all applicable federal and state laws and local rules and regulations.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING

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10 PARTIES AND ORDERED AND DECREED BY THE COURT AS FOLLOWS:
11

1
.

The Court has jurisdiction over the subject matter of this action pursuant to Section 505(a

12 ofthe Clean Water Act, 33 U.S.C. § 1365(a);
13

2
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Venue is appropriate in the Central District of California pursuant to Section 505(c)(1) o

14 the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Ameron Facility is located within this District.
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3
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The Complaint states claims upon which relief may be granted pursuant to Sectior

16 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1);
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Plaintiff has standing to bring this action;

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The Court shall retain jurisdiction over this matter for purposes of enforcing the terms o:

19 this Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Cour
2 to resolve any motion to enforce this Consent Decree.
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OBJECTIVES
It is the express purpose of the Settling Parties entering into this Consent Decree to further

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objectives set forth in the Clean Water Act, 33 U.S.C. §§ 1251, et seq., and to resolve those issues alle;

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by Plaintiff in his Complaint. Specifically, Ameron agrees to comply with Receiving Water Limitat

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VI.A. in the IGP which requires that Ameron "shall ensure that industrial storm water discharges ...

2 not cause or contribute to the exceedance of any applicable water quality standards in any a
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27 receiving water," and Effluent Limitation V.A. of the IGP which requires that Ameron "shall imp
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Consent Decree
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Best Management Practices (`BMPs") that comply with the BATBCT requirements of the [IGP]

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reduce or prevent discharges of pollutants in [Ameron's] storm water discharge in a manner that refl

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best industry practice considering technological availability and economic practicability

4 achievability." Ameron shall develop and implement BMPs necessary to achieve compliance
5 BAT/BCT standards and with the applicable water quality standards as those terms are defined by
6 IGP. Nothing herein shall be interpreted as an admission by Ameron that it has previously failed to compl
7 with these or any other requirements of the CWA or the IGP.
8 II.

AGENCY REVIEW AND TERM OF CONSENT DECREE

9 A.

Agency Review and Comment. Plaintiff shall submit this Consent Decree to the United S

10 Department of Justice and the EPA (collectively "Federal Agencies") within three (3) days of the
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signature of the Settling Parties for agency review consistent with 40 C.F.R. § 135.5. The agency revie`

12 period expires forty-five (45) days after receipt by both agencies, as evidenced by writte
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acknowledgement of receipt by the agencies or the certified return receipts, copies of which shall b

14 provided to Ameron if requested. In the event that the Federal Agencies object to entry of this Conser
15 Decree,the Settling Parties agree to meet and confer to attempt to resolve the issues)raised by the Feder
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Agencies within a reasonable amount of time.

17 B
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Effective Date. The term "Effective Date" as used in this Consent Decree shall mean the day th

18 ~ Court enters this Consent Decree.
19 C
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Termination Date. This Consent Decree shall terminate two (2) years after the Effective

"Termination Date"), or at such time as Ameron ceases to have stormwater discharges subject to the I
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and Ameron: 1) files all necessary and appropriate submissions regarding the same to the State

22 and/or the Regional Board; and 2)provides notice ofsuch filing to Plaintiff, unless there is a prior ongoing
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unresolved dispute regarding Ameron's compliance with this Consent Decree.

24 III.

POLLUTION CONTROL REQUIREMENTS

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Storm Water Pollution Reduction Measures

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The storm water pollution control measures required by this Consent Decree shall

27 designed and operated to manage storm water discharges, through full compliance with the IGP.
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Consent Decree
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2.

Commencing from the Effective Date through the termination date, Ameron shall engag

2 in the following activities to achieve compliance with the Permit and this Consent Decree:
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(
a)

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( days after the Effective Date;
60)
(
b)

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Ameron will appoint a Qualified Industrial Storm Water Practitioner("QISP")within sixt

Certify and submit to Plaintiff, the Court and the RWQCB via SMARTS the QISP'
identification number, name, and contact information (telephone number, e-mail address;

3
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In addition to the activities described in Sections III.A.2(a) above, Ameron will assure th

incorporation of the following BMPs, as more fully described in Ameron's SWPPP, which shall b

9 implemented at the Facility, the boundaries of which are outlined on the Ameron Facility Site Ma
10 accompanying the SWPPP ("Site Map"),(the SWPPP and Site Map are attached as Exhibit"A" hereto;
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The Parties agree that the SWPPP may be modified from time to time as more fully described in thi

12 Consent Decree. In the event of a modification to the SWPPP or Facility Site Map during the term ofthi
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Consent Judgment, Ameron will provide a copy of the revised exhibits to Plaintiff and the Court in th

14 manner described herein, and to the RWQCB via SMARTS.
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(
a)

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Non-Structural BMPs
(
i)

Good Housekeeping

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a Observe and maintain industrial activity outdoor areas;
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b Minimize or prevent material tracking offsite;
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c Minimize dust generated by industrial activities;
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d Cleanup areas affected by rinse and wash water;
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e To the extent practical, cover stored industrial materials that can be
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mobilized by contact with storm water;

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) Contain stored non-solid industrial materials or wastes;
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g Prevent improper disposal of rinse/wash waters; and
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h Minimize flows ofoffsite storm water and NSWDs into material handling areas.'~~
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i Waste receptacles exposed to storm water shall be tightly closed or
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covered when not in use, to the extent practicable.
Consent Decree
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(ii)

Preventative Maintenance

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a Identify industrial equipment and systems that may leak;
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b Observe the equipment and systems to detect leaks;
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c Establish a schedule for maintenance; and
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d Establish procedures for maintenance and repair.
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(
iii)

Spill Prevention and Response Procedures

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a Establish procedures and/or controls to minimize spills and leaks;
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b Develop and implement spill and leak response procedures to prevent Indust
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materials from being discharged;

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c Clean up spills and leaks promptly;
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d Identify and describe needed spill and leak response equipment; and
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e Train Storm Water Team in appropriate spill response.
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(
iv)

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Material Handling and Waste Management
a Prevent or minimize handling of industrial materials or wastes that can
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readily mobilized;

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b Utilize engineered solution for liquid materials or wastes stored outdoors to
)

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extent possible;

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c Cover industrial waste disposal containers and industrial material stor;
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containers that contain industrial materials to the extent practicable when

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facility is not in operation;

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d Divert run-on and storm water generated from the Facility, within the Facility
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away from all stockpiled materials to the extent possible;

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e Observe and clean as appropriate any outdoor material or waste that could c
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contamination to storm water if contact is made.

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(
v)

Employee Training. Ameron will provide sufficient training to Ameron

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members assigned to perform activities required by the SWPPP including:

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a Preparing or acquiring necessary and appropriate training materials;
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Consent Decree
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Civil Case No. 2:17-CV-00546

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b) Providing a training schedule; and

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c Maintaining training documentation.
)

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vi)
(

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Quality Assurance and Record Keeping
a Develop and implement management procedures to ensure implementation
)

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plans;

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b Develop a method oftracking and recording program implementation; and
)

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c Maintain implementation records (i.e., BMP deployment records, employe
)

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training logs, spill occurrence and clean-up records).
(
b)

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Advanced BMPs. Advanced BMPs,as set forth below, and in addition to what has alread
been included in the revised SWPPP uploaded to SMARTS on October 3, 201

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(
incorparated herewith) will be implemented in order to prevent and reduce storm

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contact with industrial pollutants, including:

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(
i)

Ameron will cover with appropriate material all raw product containing zinc

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aluminum stored outside and utilized at the Facility up through the time such raw mat

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is utilized in the production process. The SWPPP will be amended to include the al

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description in the appropriate BMP sections;

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(
ii)

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and

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(
iii)

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Scrap Metals and Cement will be added to the SWPPP's list ofIndustrial Materials

The Facility Site Map will be revised to include residential homes across the

f
rom the Facility.
4
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Within forty-five (45) days after the Effective Date, Ameron shall revise the SWPPP

22 the Ameron Facility to include any BMPs required by the Consent Decree and comply with all provisi
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of the Permit.
5
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Ameron shall submit its SWPPP, including any revisions, to Plaintiff for review

comment. Plaintiff shall provide comments, if any, to Ameron within sixty (60) days of receipt of

2 SWPPP. Ameron shall incorporate Plaintiff's comments into the SWPPP, or shall justify in writing v
6
27 any comment is not incorporated within fifteen (15) days of receiving comments.
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Consent Decree
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6.

Throughout the term of this Consent Decree, Ameron shall submit any SWPPP revision

2 made pursuant to the requirements of this Section III.A to Plaintiff for review and comment within tee
3 ( days of the SWPPP revision. Plaintiff will provide comments, if any, to Ameron within thirty (30
10)
4 days of receipt of such revised SWPPP. Ameron shall incorporate Plaintiff's comments into the SWPPI
5

or shall justify in writing why any comment is not incorporated within fifteen (15) days of receiving

6 comments.
.
7 B

Numeric Action Level ("NAL") for Discharges from the Ameron Facility.

Ameror

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acknowledges that Numeric Action Levels ("NALs")in the IGP are applicable to the Facility and that i

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will continue to act in conformity with the IGP and the SWPPP for the Facility, as may be amended from

10 time to time.
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1
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Exceedance Response Actions(ERAS)

12

a.

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Response Action requirements ofthe permit as stated in IGP § XII.

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C
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Ameron acknowledges that it is required to comply with the Exceedance

Sampling and Analysis
1
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Ameron has installed a recording rain gauge capable of recording rainfall to 0.1 inches

16 the Ameron Facility.

Ameron shall maintain. the recording rain gauge in accordance with t

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manufacturers' recommendations, maintain records of all maintenance and rain data, and provide su

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rain gauge data in Ameron's Monitoring Report described in Part F below for the term of this Conse

19 Decree. In the event there is a dispute about the quantity of rainfall at the Facility, the rain gauge install
2
0 pursuant to this section shall be deemed to be the actual rainfall at the site.
21

2
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Within ninety(90)days ofthe Effective Date, Ameron shall review its plan for monitori

22 all storm water discharges from the Ameron Facility that meet the requirements of this Consent Decr
23
24

and Section XI of the Permit, and incorporate the same into its SWPPP.
3
.

Ameron shall submit any revisions to its Monitoring Plan for the Ameron Facility

25

Plaintiff for review and comment. Plaintiff shall provide comments, if any, to Ameron within thirty (3

2
6

days ofreceipt ofthe Monitoring Plan. Ameron shall incorporate Plaintiff's comments into the Monitari:

27 Plan, or shall justify in writing why any comment is not incorporated within fifteen(15)days ofreceivi:
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Civil Case No. 2:17-CV-00546

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comments.

2
3

4
.

During the life of this Consent Decree, and as set forth in the IGP, Ameron shall collect

samples of any Qualifying Storm Event ("QSE"), as defined in the IGP, from at least one QSE during

4 each quarter of each reporting year from each sampling point at the Ameron Facility in conformity wit
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its "Monitoring Plan" and in compliance with the IGP. However, nothing herein shall require Ameron t

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conduct sampling in quarters when a QSE,as defined by the IGP, does not occur.

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8

5
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as more fully described in the Monitoring Plan.

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10

Ameron shall comply with the analytical methods as required by Section XI.B of the IG

6
.

Ameron shall request that results of all sample analyses required by this Consent Decre

be reported to it within thirty (30) days oflaboratory receipt of the sample.

11

7
.

During the term of the Consent Decree, Ameron will give notice to Plaintiff of the fil:

12 of any reports or other documents containing the complete laboratory results of samples collected
13

required by this Consent Decree concurrently with the posting of the same on SMARTS.

14 D.

Visual Observations. During the life of this Consent Decree, Ameron shall conduct

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document visual observations pursuant to Section XI.A of the IGP and as more fully described in

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Ameron SWPPP.

17 E
.
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Annual Comprehensive Facility Compliance Evaluation. Ameron shall give notice, pursuan

to Paragraph VILE. hereof, to Plaintiff when Ameron submits an Annual Comprehensive Facilit

19 Compliance Evaluation("Annual Evaluation")to the State Board no later than July 15 ofeach year durin
20 the term ofthis Consent Decree. The Annual Evaluation shall contain all information required by the IG
21

and/or the SWPPP.

22 IV.MONITORING AND REPORTING
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24
25

A
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Site Inspections.
1.

Once during the life of this Consent Decree, Plaintiff may conduct an inspection of th

Facility up to forty-five (45) days prior to the Termination Date. Up to three (3) of Plaintiff'

26 representatives may attend the site inspection. The site inspection shall occur during normal busines
27 hours. Plaintiff and Ameron shall work in good faith to select a mutually acceptable date for
28

Consent Decree
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inspection, which will be scheduled at least ten (10) business days in advance. Ameron's personnel

2 contractors may accompany Plaintiffls representatives) throughout the inspection.
3

2
.

Plaintiff shall provide Ameron with any comments regarding the Site Inspection wi

4 seventy-two (72) hours ofthe completion thereof. Said comments shall be prepared, signed and certifier
5

by Plaintiff's designated QISP. Ameron shall respond to Plaintiff's comments within thirty (30) days o

6 the date on which they are received; however, Ameron is not obligated to respond to any comment
7 regarding the Site Inspection received after seventy-two (72) hours has passed.
8 B
.

Compliance Monitoring and Oversight. Ameron shall make aone-time payment of Fifteen

9

Thousand Dollars ($15,000.00) to compensate Plaintiff's Counsel for costs and fees to be incurred fo

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monitoring Ameron's compliance with this Consent Decree. Payment shall be made within fourteen(14

11

business days of the Effective Date payable to "Brodsky &Smith, LLC" via U.S. Mail.

12 C
.
13

Ameron Document Provision. During the life of this Consent Decree, within ten (10) days

Ameron shall give notice to Plaintiff ofall documents related to storm water quality at the Ameron Facility

14 that are submitted to the Regional Board, the State Board, and/or any state or local agency, county, o
15

municipality. Any correspondence related to Ameron's compliance with the Permit or storm water quality

16 received by Ameron from any regulatory agency, state or local agency, county, or municipality shall bf
17 provided to Plaintiff within ten (10) days of receipt by Ameron. Provided, however, that this Consen
18 Decree shall not require Ameron to disclose any information or documents subject to the Attorney Clien
19 Privilege or the Attorney Work Product doctrine.
20

V ENVIRONMENTAL PROJECT &REIMBURSEMENT OF LITIGATION FEES &COSTS
.

21

A
.

Environmental Project. To remediate the alleged environmental harms resulting from non

22 compliance with the 1997 Storm Water Permit and IGP alleged in the Complaint, Ameron agrees to makf
23

a payment ofEight Thousand Five Hundred Dollars($8,500.00)to "The Nature Conservancy" and mailer

24 to The Nature Conservancy, attention E.J. Remson,601 South Figueroa Street, Suite 1425, Los Angeles
25

CA 90017 to fund the Santa Clara River Conservation Program, dedicated to the acquisition, restoration

2 and creation of aquatic, riparian and other important habitats in the Santa Clara River Watershed. ThE
6
27 payment shall be made within fourteen(14) business days ofthe Effective Date.
28

Consent Decree
7907935.01
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Civil Case No. 2:17-CV-00546

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B.

Reimbursement of Attorneys' Fees and Costs. Ameron shall pay a total of Fifty-One Thous.

2 Five Hundred Dollars ($51,500.00) to "Brodsky &Smith, LLC" for their investigation fees and co
3

expert/consultant fees and costs, and reasonable attorneys' fees incurred as a result of investigating ,

4

preparing the lawsuit and negotiating this Consent Decree. Payment shall be made payable to "Brod

5 & Smith, LLC" within fourteen (14) business days of the Effective Date via U.S. Mail.
6

VI.

7 A.
8

DISPUTE RESOLUTION AND RETENTION OF JURISDICTION
Continuing Jurisdiction.

This Court shall retain jurisdiction over this matter until

Termination Date defined above for the purposes ofimplementing and enforcing the terms and conditi

9 ofthis Consent Decree and adjudicating all disputes among the Parties that may arise under the provisi~
10 ofthis Consent Decree, unless a Party files and is granted a timely motion requesting an extension of ti
11

for the Court to retain jurisdiction. The Court shall have the power to enforce this Consent Decree v'

12 all available legal and equitable remedies, including contempt.
13

B
.

Meet and Confer. A Party to this Consent Decree shall invoke the dispute resolution procedu

14 ofthis Section by notifying the other Party in writing of the matters)in dispute. The Settling Parties shy
15

then meet and confer in good faith (either telephonically or in person)in an attempt to resolve the dispu

16

informally over a period often(10) days from the date ofthe notice. The Parties may elect to extend th

17 time in an effort to resolve the dispute without court intervention.
18

C
.

Dispute Resolution. Ifthe Parties cannot resolve a dispute by the end of meet and confer inforr

19 negotiations, then the parties shall attempt to settle the dispute through mediation provided by
2
0 American Arbitration Association ("AAA") pursuant to AAA's Commercial Mediation Provisions
21

effect at the time the act or acts being disputed occurred.

22 D.
23

Burden of Proof. In any dispute resolution proceeding, the Party invoking the dispute resol

procedures provided herein shall have the burden of demonstrating that the other Party has failed to

24 its obligations as set forth herein.
25 E
.

Enforcement Fees and Costs. If formal dispute resolution is not successful, then the parties ma

2 f a motion to enforce the settlement with the Court. The litigation costs and fees incurred in prosecutin
6 ile
27 a motion to enforce such shall be awarded to the prevailing party.
28

Consent Decree
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VI.

2 I~
3

MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE
Plaintiffs Public Release of Claims. This Consent Judgment is a final and binding

between Plaintiff, on his own behalf, and on behalf of the public and in the public interest, and Ameron

4 and their parents, subsidiaries, affiliated entities under common ownership, directors, officers, agents
5

employees, attorneys, if any (collectively "Releasees"), and shall have a preclusive effect such that nc

6 other person or entity, whether purporting to act in his, her, or its interests or the public interest shall bf
7 permitted to pursue and/or take any action with respect to any violation of the CWA that was alleged it
8 the Complaint, or that could have been brought pursuant to the Notice. Nothing in this Consent Decref
9

waives the rights of the United States to enforce its rights under Federal Law.

10 B
.
11

Plaintiffs Release of Additional Claims. As to Plaintiff for and in his individual capacity only

this Consent Judgment shall have preclusive effect such that he shall not be permitted to pursue and/o~

12 take any action with respect to any other statutory or common law claim, to the fullest extent that any o:
13

the foregoing were or could have been asserted by him against Ameron or the Releasees based on the fact:

14 alleged in the Complaint and the Notice, whether or not based on actions committed by Ameron.
15
16

C
.

Waiver of Rights Under Section 1542 of the California Civil Code
1
.

Plaintiff acting in his individual capacity waives all rights to institute any form of le

17

pion, and releases all claims against Ameron, and the Releasees,(referred to collectively in this Sect

18

the "Claims"). In furtherance ofthe foregoing, Plaintiff waives any and all rights and benefits which

19

w has, or in the future may have, conferred upon him with respect to the Claims by virtue of

20

visions of § 1542 of the California Civil Code, which provides as follows:

21

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DO

22

NOT KNOW OR SUSPECT EXIST IN HIS FAVOR AT THE TIME OF EXECUTING T]

23

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED ~

24

SETTLEMENT WITH THE DEBTOR.

25

2
.

2
6
27

Plaintiff understands and acknowledges that the significance and consequence of t

ver of California Civil Code § 1542 is that even if Plaintiff suffers future damages arising out of
ting from, or related directly or indirectly to, in whole or in part, the facts in the Complaint, P

28 ~ Consent Decree
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Civil Case No. 2:17-CV-00546

1

not be able to make any claim for those damages against Releasees.

2 D.

Ameron's Release of Plaintiff. Ameron, on behalf of itself, its past and current age

3 representatives, attorneys, successors and/or assignees, hereby waives any and all claims against Plain
4 his attorneys, and other representatives for any and all actions taken or statements made (or those
5

could have been taken or made) by Plaintiff and his attorney and other representatives, whether in

6 course of investigating the Claims or otherwise.
7 E.

Parties' Release. Unless specifically provided for in this Consent Decree, the Parties, on

8 own behalf and on behalf of their current and former officers, directors, employees, and each of
9 successors and assigns, and their agents, and other representatives release all persons including, wit
10 limitation, all other Parties to this Consent Decree (and each of their direct and indirect parent
11

subsidiary companies and affiliates, and their respective current and former officers, directors, members

12 employees, shareholders, and each oftheir predecessors, successors, and assigns, and each oftheir agents
13 attorneys, consultants, and other representatives) from any additional attorneys' fees or expenses relates
14 to the resolution of this matter.
.
15 F

Nothing in this Consent Decree limits or otherwise affects any Party's right to address or take an

16 position that it deems necessary or appropriate in any formal or informal proceeding before the Stat
17 Board, Regional Board, EPA, or any other administrative body on any other matter relating to Ameron'
18 compliance with the IGP or the Clean Water Act occurring or arising after the Effective Date of thi
19 Consent Decree.
20 VII.

MISCELLANEOUS PROVISIONS

21

No Admission of Liability. Neither this Consent Decree, the implementation of additional

A
.

22 modified BMPs, nor any payment pursuant to the Consent Decree shall constitute or be construed as
23 f
inding, adjudication, admission, or acknowledgment of any fact, law, or liability, nor shall it be construf
24 as an admission of violation of any law, rule, or regulation. Ameron maintains and reserves all defense
25

it may have to any alleged violations that may be raised in the future.

26 B
.

Construction. The language in all parts of this Consent Decree shall be construed according

27 its plain and ordinary meaning, except as to those terms defined in the IGP, the Clean Water Act,
28

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14

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1

specifically herein.

2 C
.
3

Choice of Law and Venue. The laws ofthe United States shall govern this Consent Decree, witY

venue proper only in the Central District of California.

4 D
.

Severability. In the event that any provision, paragraph, section, or sentence of this Conser

5

Decree is held by a court to be unenforceable, the validity of the enforceable provisions shall not b

6

adversely affected.

.
7 E

8

Correspondence and Notices. Any and all notices and/or correspondence between the Partie

provided for or permitted under this Consent Decree shall be in writing and personally delivered or ser

9 by:
10

1.

First-class (registered or certified) mail return receipt requested; or

11

2
.

Overnight or two-day courier; or

12

3
.

By email with confirmed receipt only (thus at the risk of the email sender); on any

13

by the other Party to the following addresses:

14

If to Plaintiff:

15

Evan J. Smith, Esquire
Brodsky &Smith,LLC
Two Bala Plaza, Suite 510
Bala Cynwyd,PA 19004
T: 877.354.2590
Email: [e-mail]

16

17
18
19

If to Ameron:

2
0

Tarifa B. Laddon, Esquire
Faegre Baker Daniels LLP
11766 Wilshire Blvd., Suite 750
Los Angeles, CA 90025
T: 310.500.2090
Email: [e-mail]

21
22
23
24

Any change of address or addresses shall be communicated in the manner described above for givi

25

notices.

2
6

F
.

Counterparts. This Consent Decree maybe executed in any number of counterparts, all of whic:

27 together shall constitute one original document. Telecopy, email of a .pdf signature, or facsimile copie
28

Consent Decree
US.117907935.01

15

Civil Case No. 2:17-CV-00546

1

of original signature shall be deemed to be originally executed counterparts of this Consent Decree.

2 G
.
3

Modification of the Consent Decree. Except as otherwise provided herein, this Consent Decree.

and any provisions herein, may not be changed, waived, discharged, or terminated unless by a written

4 instrument, signed by the Settling Parties, or upon motion of any Party as provided by law and upon al
5

entry of a modified Consent Judgment by the Court. If any Settling Party wishes to modify any provision

6

of this Consent Decree, the Settling Party must notify the other Settling Party in writing at least twenty

7 one (21) days prior to taking any step to implement the proposed change.
8 H
.

Full Settlement. This Consent Decree contains the sole and entire agreement and understanding

9 of the Parties with respect to the entire subject matter hereof, and any and all discussions, negotiations
10 commitments and understandings related thereto. No representations, anal or otherwise, express o:
11

implied, other than those contained herein have been made by any party hereto. No other agreements no

12 specifically referred to herein, oral or otherwise, shall be deemed to exist or to bind any ofthe Parties.
.
13 I

Integration Clause. This is an integrated Consent Decree. This Consent Decree is intended tc

14

be a full and complete statement of the terms of the Consent Decree between the Settling Parties anc

15

expressly supersedes any and all prior oral or written Consent Decrees, covenants, representations, anc

16

warranties (express or implied) concerning the subject matter of this Consent Decree.

17 J
.
18

Authority of Counsel. The undersigned representatives for Plaintiff and Ameron each certify

he/she is fully authorized by the party whom he/she represents to approve this Consent Decree as to fc

.
19 K

Authority. Ameron certifies that its undersigned representative is fully authorized to enter

2 this Consent Decree, to execute it on behalf of Ameron, and to legally bind Ameron to its terms.
0
21

L
.

Agreement to be Bound. The Settling Parties, including any successors or assigns, agree to b

22 bound by this Consent Decree and not to contest its validity in any subsequent proceeding to implemen
23

or enforce its terms.

24
25
26
27
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Case 2:17-cv-00359-CBM-JC Document 53-1 Filed 04/16/19 Page 17 of 122 Page ID
#
:218

1

VIII.

2

The Parties hereby respectfully request that the Court promptly approve and enter this Consent nz~ree

3

Upon entry of this Consent Decree, Plaintiff and Defendant waive their respective rights to a hearing c~

COURT APPROVAL

trial on the allegations of the Complaint and Notice which are at issue in this action. if this ~'c.~nsin

5

Uccree is not approved by the Court, it shall. be of no force and effect, and it may not be used in arr

6

proceeding for any purpose.
IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as of the

7
8

first set forth below.

9

SO AGREED AND APPROVED AS TO CONTENT

10

Dated:

J ~. 2. r _

11

. ~j _

~~.~.'
_

12
13

Dated; l' 3 ~1 20~
~
_a._ .

_

14 '

A1~fFRON POLE PRODUCTS,LLC
By;
~
~
—_.
Alexandra Besse
VP and General Manager, Ameron Pole Products

15 '
16
17
l8
19

APPROVED AS TO FORi~1
/ 71 4
i Dated: ~_~ l ~~~ C~'~

BRODSKY & S~

LLC
~~~;

20
21

Evan J. Smith (SBN:242352)
Attorneys for Plaintiff

22
23
24

Dated:✓

FAEG1~ -'

~I~I~L~ LLP

f

25

B y:
T~tri a
,~ clan (Sf3, :~4(~~19)
attorneys for Ameron Pole Products, LLC

26
27
IT IS SO ORDERED.

28

~
Consent Decree ^g
US I U907935A1

17

Civil Case No. 2:17-CV-005 46

1

VIII. COURT APPROVAL

2 The Parties hereby respectfully request that the Court promptly approve and enter this Consent Decree.
3

Upon entry of this Consent Decree, Plaintiff and Defendant waive their respective rights to a hearing o

4 trial on the allegations of the Complaint and Notice which are at issue in this action. If this Consen
5

Decree is not approved by the Court, it shall be of no force and effect, and it may not be used in an

6

proceeding for any purpose.
IN WITNESS WHEREOF,the undersigned have executed this Consent Decree as of the dat

7

8 f set forth below.
irst
9

SO AGREED AND APPROVED AS TO CONTENT

10 Dated:

PLAINTIFF

11
Matt Salnick

12
13

Dated:

14

By:
Alexandra Besse
VP and General Manager, Ameron Pole Products

15
16

AMERON POLE PRODUCTS,LLC

APPROVED AS TO FORM

17 Dated:
18

BRODSKY &SMITH,LLC

By:
Evan J. Smith (SBN:242352)
Attorneys for Plaintiff

19 '
20
21

Dated:

FAEGRE BAKER DANIELS LLP
By:
Tarifa B. Laddon (SBN:240419)
Attorneys for Ameron Pole Products, LLC

22
23
IT IS SO ORDERED.

24
25

The Honorable Conseulo B. Marshall
United States District Court Judge
Central District of California

26
27
28

~
.~

Date: ~5~' / h~ /

Consent Decree
US117907935.01

17

Civil Case No. 2:17-CV-00546