California Sportfishing Protection Alliance v. A.L. Gilbert Company

Filing 37

ORDER signed by Judge Kimberly J. Mueller on 9/24/2015 GRANTING 34 Stipulation and Proposed Order re First Request for Entry onto Designated Property. (Zignago, K.) Modified on 9/25/2015 (Zignago, K.).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE,
Plaintiff,

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No. 1:15-cv-00533-KJM-SKO

ORDER
v.
A.L. GILBERT COMPANY,
Defendant.

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WHEREAS, on July 16, 2015, plaintiff California Sportsfishing Protection

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Alliance (“CSPA” or “Plaintiff”) propounded its First Request for Entry onto Designated

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Property (“Dry Weather Request”) to Defendant A.L. Gilbert Company (“Defendant”);

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WHEREAS, pursuant to Federal Rule of Civil Procedure 34(a)(2), CSPA’s Dry

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Weather Request seeks entry onto Defendant’s property with its main address at 304 North

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Yosemite Avenue, Oakdale, California 95361 (“Facility”). As an exhibit to the Dry Weather

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Request, CSPA provided a site map that was submitted by Defendant with its Notice of Intent to

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Comply with the Industrial Storm Water Permit dated March 25, 1992;

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WHEREAS, on August 14, 2015, Defendant timely responded and objected to
CSPA’s Dry Weather Request;

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WHEREAS, the parties have met and conferred in an effort to resolve disputed
issues concerning CSPA’s Dry Weather Request;

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WHEREAS, while reserving all rights and objections, the parties have reached
consensus as to terms and conditions for CSPA’s Dry Weather Inspection of the Facility;

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THEREFORE, the Parties hereby stipulate and agree and request that the court so
order that CSPA may conduct an inspection of the Facility during dry weather as follows:

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Date and Duration of Inspection

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CSPA shall conduct a Dry Weather Inspection on October 22, 2015, which shall
begin no later than 10:00 a.m.

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2.

CSPA’s Dry Weather Inspection shall last no more than four (4) hours.

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3.

CSPA will be permitted up to and including four (4) representatives at the Dry

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Weather Inspection who will be accompanied by Defendant’s representatives

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during the inspection. CSPA’s representatives shall be free to step away during the

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inspection, at sufficient distance to be out of earshot but within view of

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Defendant’s representatives, to have brief, private conversations.

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4.

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CSPA will notify Defendant of the individual representatives that will attend the
Dry Weather Inspection at least forty-eight (48) hours prior to the inspection.

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CSPA and its representatives shall follow any and all safety measures and/or
instructions provided to them during the inspection.

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Scope of Inspection

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6.

CSPA’s inspection shall include all outdoor areas of potential storm water

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pollution, including, but not limited to the following:

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a.

Areas related to feed product manufacturing and processing, if any;

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shipping and receiving areas; equipment and vehicle maintenance,

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cleaning, fueling, and storage areas; areas used to unload raw materials;

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areas used to load finished products; liquid feed, fat, and molasses tanks, if

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any; mineral and soy oil tanks, if any; unprocessed material storage areas,

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and scrap storage, if any; boiler operations, truck washing station, and on-

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site railroad tracks, if any;

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b.

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Any areas or equipment from which any liquids, runoff, or fugitive dust or
debris may drain, or be drained, or discharged, if any;

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c.

All storm drains and all storm water conveyances;

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d.

All storage areas, including all areas where equipment, parts, chemicals,

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fluids, and waste are stored;

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e.

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All pollution management measures, or Best Management Practices
(BMPs), such as bermed areas, areas with secondary containment and so

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on;

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f.

All entrances and exits;

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g.

All Storm Water Pollution Prevention Plans, Monitoring and Reporting

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Plans, sampling data and other storm water monitoring information, or any

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other records or documents kept by the Defendant at the Facility related to

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water quality at the facility.

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7.

Indoor areas may be viewed but not entered.

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8.

Both parties will be permitted to take photograph(s) and/or video(s) during the Dry

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Weather Inspection. However, CSPA shall not photograph or videotape any of

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Defendant’s employees or customers. Defendant’s employees and customers shall

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not intentionally or inadvertently obstruct CSPA’s taking of photographs and/or

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videos during the inspection.

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9.

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The Parties shall exchange any photographs and/or videos taken during CSPA’s
Dry Weather Inspection within ten (10) business days of the inspection.

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CSPA will be permitted to collect samples of non-storm water discharges that are

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observed during the Dry Weather Inspection. CSPA shall provide Defendant’s

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representatives with split samples of any non-storm water discharge samples

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collected during the Dry Weather Inspection, if feasible and requested. Defendant

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will provide its own sampling equipment, preservative, and/or chain of custody
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forms. At least seventy two (72) hours prior to the Dry Weather Inspection CSPA

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shall provide Defendant’s representatives with its intended types of samples (e.g.,

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liquid, soil, and/or solid), types of equipment (e.g., sampling bottles), parameters,

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and test methods so that Defendants’ representatives shall have sufficient time to

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have equipment on hand to take samples along with CSPA during the inspection.

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In the event there is a rain event sufficient to generate storm water discharges from

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the facility during the Dry Weather Inspection, CSPA will be permitted to collect

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storm water samples from all discharge points during the Dry Weather Inspection.

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CSPA shall provide Defendant’s representatives with split samples of any storm

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water discharge samples collected during the Dry Weather Inspection, if feasible

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and requested. Defendant will provide its own sampling equipment, preservative,

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and/or chain of custody forms. At least seventy two (72) hours prior to the Dry

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Weather Inspection CSPA shall provide Defendant’s representatives with its

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intended types of samples (e.g., liquid, soil, and/or solid), types of equipment (e.g.,

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sampling bottles), parameters, and test methods so that Defendants’ representatives

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shall have sufficient time to have equipment on hand to take samples along with

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CSPA during the inspection.

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12.

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sample collected during the Dry Weather Inspection.
13.

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CSPA will provide Defendant with a copy of the lab results of any analysis of any

Defendant will provide Plaintiff with a copy of the lab results of any analysis of
any split or other samples collected during the Dry Weather Inspection.

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Nothing in this stipulation and agreement shall constitute a waiver by any party of

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further discovery rights, including the right to demand further inspections, or

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objections to further discovery.

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IT IS SO ORDERED.

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DATED: September 24, 2015.

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UNITED STATES DISTRICT JUDGE

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