California Sportfishing Protection Alliance v. Butte County Department of Public Works et al

Filing 24

ORDER signed by Judge Lawrence K. Karlton on 11/3/2011 APPROVING Consent Agreement; DISMISSING 1 Complaint, with prejudice, pursuant to F.R.Cv.P. 41(a)(2). The Court shall retain and have jurisdiction over the Parties with respect to disputes arising under the Consent Agreement attached herein. CASE CLOSED. (Attachments: # 1 Consent Agreement, # 2 Exhibit A, # 3 Exhibit B) (Michel, G)

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ROBERT J. TUERCK (Bar No. 255741)
Jackson & Tuerck
P. O. Box 148
429 W. Main Street, Suite C
Quincy, CA 95971
Tel: [phone]
E-mail: [e-mail]
ANDREW L. PACKARD (Bar No. 168690)
ERIK M. ROPER (Bar No. 259756)
HALLIE B. ALBERT (Bar No. 258737)
Law Offices of Andrew L. Packard
100 Petaluma Blvd. N., Suite 301
Petaluma, CA 94952
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non-profit
corporation,

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Case No. 2:10-CV-03203-LKK-KJM
CONSENT AGREEMENT

Plaintiff,

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

vs.
BUTTE COUNTY DEPARTMENT OF
PUBLIC WORKS, et. al.
Defendants.

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WHEREAS, Plaintiff California Sportfishing Protection Alliance (hereinafter “CSPA”) is a

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non-profit public benefit corporation dedicated to the preservation, protection, and defense of the

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environment, wildlife, and natural resources of California’s waters;

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WHEREAS, Defendant Butte County Department of Public Works (hereinafter “DPW”), a
department of the County of Butte, a political subdivision organized under the laws of the State of

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CONSENT AGREEMENT

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California which owns an approximately one hundred and eighty nine (189) acre landfill facility

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located at 1023 Neal Road, in Chico, California (the “Facility”), and Defendant Mike Crump, is the

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Director of DPW, which operates the Facility, and that Defendant Shawn H. O’Brien is the Assistant

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Director of Public Works and is listed as the Facility Operator in the Complaint;

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

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WHEREAS, the Facility collects and discharges storm water to Butte Creek, which ultimately

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flows into the Sacramento River, and the Sacramento-San Joaquin Delta (a map of the Facility is

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attached hereto as Exhibit A and incorporated herein by reference);

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WHEREAS, storm water discharges associated with industrial activity are regulated pursuant

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to the National Pollutant Discharge Elimination System (“NPDES”), General Permit No. CAS000001

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[State Water Resources Control Board], Water Quality Order No. 91-13-DWQ (as amended by Water

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Quality Order 92-12 DWQ and 97-03-DWQ), issued pursuant to Section 402 of the Clean Water Act,

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33 U.S.C. § 1342 (hereinafter “General Permit”);

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WHEREAS, on or about September 29, 2010, Plaintiff provided notice of Defendants’

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violations of the Act, and of its intention to file suit against Defendants, to the Administrator of the

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United States Environmental Protection Agency (“EPA”); the Administrator of EPA Region IX; the

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Executive Director of the State Water Resources Control Board (“State Board”); the Executive Officer

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of the Regional Water Quality Control Board, Central Valley Region (“Regional Board”); and to

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Defendants, as required by the Act, 33 U.S.C. § 1365(b)(1)(A) (true and correct copies of CSPA’s

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notice letter are attached as Exhibit B and incorporated herein by reference);

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WHEREAS, Defendants deny the occurrence of the violations alleged in the Notices and

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maintain that they have complied at all times with the provisions of the General Permit and California

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Health & Safety Code sections 25249.5 et seq.;

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WHEREAS, CSPA filed a complaint (“Complaint”) against Defendants in the United States

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District Court, Eastern District of California, on November 11, 2010, creating the present lawsuit

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(hereinafter “the action”);

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WHEREAS, for purposes of this Consent Agreement, the Parties stipulate that venue is proper

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- 2[PROPOSED] CONSENT AGREEMENT

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in this Court, and that Defendants do not contest the exercise of jurisdiction by this Court to enter this

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Consent Agreement;

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WHEREAS, this Consent Agreement shall be submitted to the United States Department of

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Justice for the 45-day statutory review period, pursuant to 33 U.S.C. § 1365(c); and shall thereafter be

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submitted for approval by the Court, the date of which approval shall be referred to herein as the

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“Court Approval Date;”

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WHEREAS, at the time the Consent Agreement is submitted for approval to the United States

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District Court, CSPA shall request a dismissal of the Complaint with prejudice and the Parties shall

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stipulate and request that the Court retain jurisdiction for the enforcement of this Agreement as

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provided herein;
AND WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter

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without further litigation.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING

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

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I.

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COMMITMENT OF DEFENDANTS
1.

Compliance With General Permit & Clean Water Act. Beginning immediately, and

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throughout the term of this Consent Agreement, Defendants shall commence all measures needed to

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operate the Facility in full compliance with the requirements of the General Permit and the Clean

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Water Act, subject to any defenses available under the law.

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2.

Defendants’ Implementation of Specific Storm Water Best Management Practices

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On or Before October 1, 2011. Defendants shall complete the implementation of the following storm

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water control measures/best management practices (“BMPs”):

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(a)

Defendants shall construct an interceptor ditch that would flow to the main
discharge point west of the Primary Sediment Basin (hereinafter “PSB”). The ditch
would run along existing perimeter access roadway and would discharge to main
discharge point. The west side of ditch would include native grasses, above ground
landscaping soil berms with trees and monitoring wells. This area would be kept free of
industrial activity;

(b)
Defendants shall divert storm water from grassy swales along the main
stockpile to the interceptor ditch;
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(c)
Defendants shall designate consistent sampling locations, one of which
will be at the fence point closest to the concrete weir of the PSB;
(d)

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Defendants shall visually monitor grassy swales for discharges;

(e)
Defendants shall collect and analyze storm water samples from the
interceptor ditch, which includes runoff from the grassy swales adjacent to the soil
stockpile east of the access road, on the condition that CSPA agrees to remove this
condition upon a satisfactory showing that the samples do not contain concentrations of
pollutants in excess of EPA Benchmarks;

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(f)
Defendants shall employ the use of anchored geo-textiles, or equivalent
best management practices (BMP), in ditches as necessary in order to prevent erosion;
(g)

Defendants shall update the measuring rods in the basins so that they
reflect depth and discharge values. CSPA is open to the Defendants continuing to
manually monitor the capacity so long as commit to doing so on a daily basis, incorporate
this into the facility’s SWPPP, and keep a daily record of these activities; and

(h)
Defendants shall update the SWPPP and Facility Map annually to reflect
total existing storage capacity of basins and graphically show the flow between the
various basins. Defendants shall also incorporate the locations of items 2(a) – 2(g) on the
Facility Map.
(i)

Defendants will construct an additional storm water basin prior to
commencement of the 2011-2012 Wet Season, which begins on October 1, 2011. The
Parties acknowledge that Defendants’ installation of some of the storm water basin may
be subject to various constraints that are beyond the Defendants’ control (project bidding,
construction permits, weather, etc.). Defendants agree to submit any and all construction
plans and / or applications to obtain necessary approvals to construct the basin to the
appropriate agencies and land use authorities within seven (7) days of the Court Approval
Date. Defendants shall notify CSPA pursuant to the Notice provisions herein (at ¶ 24)
within seven (7) days of any delay in the construction of the basin. If Defendants are
unable to complete the basin prior to October 31, 2011, or the first significant
precipitation falling on or after October 1, 2011, whichever comes first, then the term of
this agreement shall be extended by one calendar year in accordance with the terms of
paragraph 18 herein. Under no circumstances shall Defendants complete construction of
the basin at the earliest possible date, but in no case later than October 1, 2012.
However, if the basin is completed prior to October 31, 2011 or the first significant
precipitation, whichever comes first, the termination date of this agreement shall remain
September 30, 2014. For purposes of this paragraph, the first significant precipitation is
defined as any storm event(s) that result in a storm water discharge from the Facility.

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3.

SWPPP Amendments/Additional BMPs. Within 30 days of mutual execution of this

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Consent Agreement, Defendants shall formally amend the SWPPP for the Facility to incorporate all of

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- 4[PROPOSED] CONSENT AGREEMENT

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the relevant requirements of this Consent Agreement, as well as the revised Facility map attached

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hereto as Exhibit A.
4.

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Sampling Frequency. Defendants shall collect and analyze samples from at least four

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(4) storm events, as qualified in the General Permit1 for sampling purposes, in the 2011-2012 Wet

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Season, three (3) storm events in the 2012-2013 Wet Season, and three (3) storm events in the 2013-

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2014 Wet Season.

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discharges for sampling in any given year, Defendants shall be required to sample and analyze storm

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water from each of the Facility’s actual discharges during that year. The storm water sample results

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shall be compared with the values set forth in Exhibit C, attached hereto, and incorporated herein by

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reference. If the results of any such samples exceed the parameter values set forth in Exhibit C,

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Defendants shall comply with the “Action Memorandum” requirements set forth below.
5.

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If sufficient rainfall does not result in the requisite number of storm water

Sampling Parameters. All samples shall be analyzed for each of the constituents

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listed in Exhibit C by a laboratory accredited by the State of California. All samples collected from

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the Facility shall be delivered to the laboratory as soon as possible to ensure that sample “hold time” is

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not exceeded. Analytical methods used by the laboratory shall be adequate to detect the individual

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constituents at or below the values specified on Exhibit C. Sampling results shall be provided to

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CSPA within seven (7) working days of Defendants’ receipt of the laboratory report from each

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sampling event pursuant to the Notice provisions below.
6.

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“Action Memorandum” Trigger; CSPA Review of “Action Memorandum”; Meet-

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and-Confer. If any sample taken during the three (3) Wet Seasons referenced in Paragraph 4 above

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exceeds the evaluation levels set forth in Exhibit C, Defendants shall prepare a written statement

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discussing the exceedance(s), the possible cause and/or source of the exceedance(s), and additional

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measures that will be taken to address and eliminate the problem and future exceedances (“Action

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Memorandum”). The Action Memorandum shall be provided to CSPA upon completion and in any

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case no later than 30 days after Defendants’ receipt of the sample results at issue. Recognizing that a

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“Qualifying Storm Events” under the General Permit are those events in which (i) the samples taken are
preceded by at least three (3) working days during which no storm water discharges from the Facility have
occurred; (ii) the samples are collected within the first hour that flow is observed at the Discharge Point being
sampled; and (iii) the samples are collected during daylight operating hours.

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SWPPP is an ongoing iterative process meant to encourage innovative BMPs, such additional

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measures may include, but are not limited to, taking confirmation samples, further material

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improvements to the storm water collection and discharge system, installation of a storm water

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filtration system, and/or modifying other industrial activities or management practices at the Facility.

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Such additional measures, to the extent feasible, shall be implemented immediately and in no event

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later than 60 days after the due date of the Action Memorandum.

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implementation, the Facility SWPPP shall be amended to include all additional BMP measures

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designated in the Action Memorandum. CSPA may review and comment on an Action Memorandum

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and suggest any additional pollution prevention measures it believes are appropriate; however,

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CSPA’s failure to do so shall not be deemed to constitute agreement with the proposals set forth in the

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Action Memorandum. Upon request by CSPA, Defendants agree to meet and confer in good faith (at

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the Facility, if requested by Plaintiff) regarding the contents and sufficiency of the Action

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Memorandum.
7.

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Within seven (7) days of

Inspections During the Term of This Agreement. In addition to any site inspections

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conducted as part of the meet-and-confer process concerning an Action Memorandum as set forth

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above, Defendants shall permit representatives of CSPA to perform up to three (3) physical

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inspections of the Facility during operating hours on weekdays during the term of this Consent

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Agreement. These inspections shall be performed by CSPA’s counsel and consultants and may

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include sampling, photographing, and/or videotaping and CSPA shall provide Defendants with a copy

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of all sampling reports, photographs and/or video within fourteen (14) business days of CSPA’s site

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inspection. CSPA shall provide at least two working days’ advance written2 notice of such physical

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inspection, except that Defendants shall have the right to deny access if circumstances would make the

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inspection unduly burdensome and pose significant interference with business operations or any

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party/attorney, or the safety of individuals. In such case, Defendants shall specify at least three (3)

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dates within the two (2) weeks thereafter upon which a physical inspection by CSPA may proceed.

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Defendants shall not make any alterations to Facility conditions during the period between receiving

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For purposes of the inspection notice, written notice may be sent to the email addresses listed in Paragraph 24
of this agreement.

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CSPA’s initial forty-eight (48) hour advance notice and the start of CSPA’s inspection that Defendants

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would not otherwise have made but for receiving notice of CSPA’s request to conduct a physical

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inspection of the Facility, excepting any actions taken in compliance with any applicable laws or

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regulations. Nothing herein shall be construed to prevent Defendants from continuing to implement

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any BMPs identified in the SWPPP during the period prior to an inspection by CSPA or at any time.
8.

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Defendants’ Communications with Regional and State Boards. During the term of

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this Consent Agreement, Defendants shall provide CSPA with copies of all documents submitted to

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the Regional Board or the State Board concerning storm water discharges from the Facility, including,

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but not limited to, all documents and reports submitted to the Regional Board and/or State Board as

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required by the General Permit. Such documents and reports shall be provided to CSPA pursuant to

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the Notice provisions herein (at ¶ 24) and contemporaneously with Defendants’ submission to such

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agencies.

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9.

SWPPP Amendments.

Defendants shall provide CSPA with a copy of any

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amendments to the Facility SWPPP made during the term of the Consent Agreement within fourteen

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(14) days of such amendment.

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II.

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MITIGATION, COMPLIANCE MONITORING AND FEES AND COSTS
10.

As mitigation of the Clean Water Act violations alleged in CSPA Complaint,

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Defendants agree to pay the sum of $40,000 to the Rose Foundation for Communities and the

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Environment for projects to improve water quality in Butte Creek and downstream watersheds,

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including, but not limited to Butte Creek, and the Sacramento River and Sacramento River and/or

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Sacramento-San Joaquin River Delta. The mitigation payment shall be made directly to the Rose

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Foundation at 6008 College Avenue, Oakland, CA 94618 (Attn: Tim Little), within seven (7) days

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after the Court Approval Date.

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11.

Defendants agree to reimburse CSPA in the amount of $37,500 to defray CSPA’s

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reasonable investigative, expert, consultant and attorneys’ fees and costs, and all other costs incurred

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as a result of investigating the activities at the Facility, bringing the Action and negotiating a

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resolution in the public interest. Such payment shall be made to the Jackson & Tuerck Attorney-

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- 7[PROPOSED] CONSENT AGREEMENT

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Client Trust Account within seven (7) days after the Court Approval Date.
12.

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Compliance Monitoring Funding.

To defray CSPA’s reasonable investigative,

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expert, consultant and attorneys’ fees and costs associated with monitoring Defendants’ compliance

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with this Consent Agreement, Defendants agree to contribute $4,000 for each year covered by this

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Consent Agreement to a compliance monitoring fund maintained by CSPA. Compliance monitoring

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activities may include, but shall not be limited to, site inspections, review of water quality sampling

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reports, review of annual reports, discussions with representatives of Defendants concerning the

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Action Memoranda referenced above, and potential changes to compliance requirements herein,

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preparation for and participation in meet-and-confer sessions, water quality sampling and analysis, and

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compliance related activities. The first such payment in the amount of $4,000 shall be made payable

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to the Jackson & Tuerck Attorney-Client Trust Account within seven (7) days of the Court Approval

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Date. The second and third installments of $4,000 each shall be made payable to the Jackson &

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Tuerck Attorney-Client Trust Account on June 1, 2012 and 2013, respectively. In the event that the

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term of this agreement is extended to accommodate construction of the storm water basin described in

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Paragraph 2(i), a fourth installment of $4,000 shall be made to the Jackson & Tuerck Attorney-Client

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Trust Account on June 1, 2014. If the reasonable cost of monitoring Defendants’ compliance with its

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obligations hereunder is less than the total fees and costs for compliance monitoring, Plaintiff shall

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refund the excess within fourteen (14) business days of the conclusion of the term of this agreement.

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III.

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DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT AGREEMENT
13.

With the exception of the timelines set forth above for addressing exceedances of

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values specified on Exhibit C and Action Memoranda, if a dispute under this Consent Agreement

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arises, or either Party believes that a breach of this Consent Decree has occurred, the Parties shall meet

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and confer within seven (7) days of receiving written notification from the other Party of a request for

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a meeting to determine whether a violation has occurred and to develop a mutually agreed upon plan,

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including implementation dates, to resolve the dispute. If the Parties fail to meet and confer, or the

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meet-and-confer does not resolve the issue, after at least seven days have passed after the meet-and-

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confer occurred or should have occurred, either Party shall be entitled to all rights and remedies under

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- 8[PROPOSED] CONSENT AGREEMENT

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the law, including filing a motion with the District Court of California, Eastern District, which shall

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retain jurisdiction over the Action for the limited purposes of enforcement of the terms of this Consent

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Agreement. The Parties shall be entitled to seek fees and costs incurred in any such motion, and such

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fees and costs shall be awarded, pursuant to the provisions set forth in Section 505(d) of the Clean

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Water Act, 33 U.S.C. §1365(d), and applicable case law interpreting such provision.

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14.

CSPA Waiver and Release.

Upon Court approval and entry of this Consent

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Agreement, CSPA, on its own behalf and on behalf of its members, subsidiaries, successors, assigns,

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directors, officers, agents, attorneys, representatives, and employees, releases Defendants and their

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officers, directors, employees, shareholders, parents, subsidiaries, and affiliates, and each of their

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predecessors, successors and assigns, and each of their agents, attorneys, consultants, and other

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representatives (each a “Released Defendant Party”) from, and waives all claims which arise from or

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pertain to the Action, including, without limitation, all claims for injunctive relief, damages, penalties,

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fines, sanctions, mitigation, fees (including fees of attorneys, experts, and others), costs, expenses or

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any other sum incurred or claimed or which could have been claimed in this Action, for the alleged

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failure of Defendants to comply with the Clean Water Act at the Facility, up to the Effective Date of

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this Consent Decree. In addition, for the period beginning on the Effective Date and ending on

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September 30, 2014, CSPA agrees that neither CSPA, its officers, executive staff, members of its

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governing board nor any organization under the control of CSPA, its officer, executive staff, or

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members of its governing board, will file any lawsuit against Defendants seeking relief for the alleged

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violations of the Clean Water Act or violations of the General Permit at the Neal Road Landfill

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facility. CSPA further agrees that, beginning on the Effective Date and ending on September 30,

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2014, CSPA will not support other lawsuits, by providing financial assistance, personnel time or other

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affirmative actions, against Defendants that may be proposed by other groups or individuals who

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would rely upon the citizen suite provision of the Clean Water Act to challenge Defendant’s

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compliance with the Clean Water Act or the General Permit at the Neal Road Landfill facility.

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Defendants’ Waiver and Release. Defendants, on their own behalf and on behalf of

those Released Defendant Parties under its control, releases CSPA (and its officers, directors,

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- 9[PROPOSED] CONSENT AGREEMENT

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employees, members, parents, subsidiaries, and affiliates, and each of their successors and assigns, and

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its agents, attorneys, and other representative) from, and waives all claims and cross-claims which

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may arise from or pertain to the Action, including all claims for fees (including fees of attorneys,

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experts, and others), costs, expenses or any other sum incurred or claimed or which could have been

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claimed for matters associated with or related to the Action.
16.

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Upon the Court Approval Date, the Parties shall file with the Court a Stipulation and

Order that shall provide that:
a.

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the Complaint and all claims therein shall be dismissed with prejudice pursuant

to Federal Rule of Civil Procedure 41(a)(2); and

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b.

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the Court shall retain and have jurisdiction over the Parties with respect to

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disputes arising under this Agreement. Nothing in this Consent Agreement shall be construed

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as a waiver of any party’s right to appeal from an order that arises from an action to enforce the

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terms of this Consent Agreement.

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IV.

MISCELLANEOUS PROVISIONS
17.

The Parties enter into this Consent Agreement for the purpose of avoiding prolonged

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and costly litigation. Nothing in this Consent Agreement shall be construed as, and Defendants

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expressly do not intend to imply, an admission as to any fact, finding, issue of law, or violation of law,

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nor shall compliance with this Consent Agreement constitute or be construed as an admission by

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Defendants of any fact, finding, conclusion, issue of law, or violation of law. However, this paragraph

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shall not diminish or otherwise affect the obligation, responsibilities, and duties of the Parties under

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this Consent Agreement.

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18.

The term of this Consent Agreement shall conclude on September 30, 2014, unless

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construction of the basin described in Paragraph 2(i) is delayed for reasons beyond Defendants’

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control. If construction of the basin described in Paragraph 2(i) of this Consent Agreement is not

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completed prior to October 31, 2011, or the first significant precipitation falling on or after October 1,

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2011, whichever comes first, then the term of this agreement shall be extended by one calendar year to

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September 30, 2015.

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19.

The Consent Agreement may be executed in one or more counterparts which, taken

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together, shall be deemed to constitute one and the same document. An executed copy of this Consent

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Agreement shall be valid as an original.

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20.

In the event that any of the provisions of this Consent Agreement is held by a court to

be unenforceable, the validity of the enforceable provisions shall not be adversely affected.
21.

The language in all parts of this Consent Agreement, unless otherwise stated, shall be

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construed according to its plain and ordinary meaning. This Consent Agreement shall be construed

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pursuant to California law, without regarding to conflict of law principles.

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22.

The undersigned are authorized to execute this Consent Agreement on behalf of their

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respective parties and have read, understood and agreed to be bound by all of the terms and conditions

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of this Consent Agreement.

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23.

All agreements, covenants, representations and warranties, express or implied, oral or

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written, of the Parties concerning the subject matter of this Consent Agreement are contained herein.

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This Consent Agreement and its attachments are made for the sole benefit of the Parties, and no other

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person or entity shall have any rights or remedies under or by reason of this Stipulated Judgment,

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unless otherwise expressly provided for therein.

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24.

Notices.

Any notices or documents required or provided for by this Consent

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Agreement or related thereto that are to be provided to CSPA pursuant to this Consent Agreement

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shall be hand-delivered or sent by U.S. Mail, postage prepaid, and addressed as follows or, in the

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alternative, shall be sent by electronic mail transmission to the email addresses listed below:

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Bill Jennings, Executive Director
California Sportfishing Protection Alliance
3536 Rainier Avenue
Stockton, CA 95204
E-mail: [e-mail]

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With copies sent to:
Robert J. Tuerck, Esq.
Jackson & Tuerck
P.O. Box 148
429 W. Main Street, Suite C

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Quincy, CA 95971
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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And to:

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Andrew L. Packard
Law Offices of Andrew L. Packard
100 Petaluma Boulevard North, Suite 301
Petaluma, CA 94952
Tel: [phone]
E-mail: [e-mail]
Any notices or documents required or provided for by this Consent Agreement or related thereto that
are to be provided to Defendants pursuant to this Consent Agreement shall be sent by U.S. Mail,
postage prepaid, and addressed as follows or, in the alternative, shall be sent by electronic mail
transmission to the email addresses listed below:

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Mike Crump, Director
Department of Public Works
7 County Center Drive
Oroville, California 95965
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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With copies sent to:

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Bruce S. Alpert, County Counsel
Office of the County Counsel
25 County Center Drive, Suite 210
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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Each Party shall promptly notify the other of any change in the above-listed contact information.

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25.

Signatures of the Parties transmitted by facsimile or email shall be deemed binding.

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26.

No Party shall be considered to be in default in the performance of any of its

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obligations when a failure to perform is due to a “Force Majeure.” A Force Majeure event is any

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circumstances beyond the Party’s control, including, without limitation, any act of God, war, fire,

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earthquake, flood, and restraint by court order or public authority. A Force Majeure event does not

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include normal inclement weather, such as anything less than or equal to a 100 year/24-hour storm

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event, or inability to pay. Any Party seeking to rely upon this paragraph shall have the burden of

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establishing that it could not reasonably have been expected to avoid, and which by exercise of due

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diligence has been unable to overcome, the Force Majeure.
27.

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If for any reason the Court should decline to approve this Consent Agreement in the

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form presented, the Parties shall use their best efforts to work together to modify the Consent

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Agreement within thirty (30) days so that it is acceptable to the Court. If the Parties are unable to

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modify this Consent Agreement in a mutually acceptable manner, this Consent Agreement shall

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become null and void.
28.

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This Consent Agreement shall be deemed to have been drafted equally by the Parties,

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and shall not be interpreted for or against any Settling Party on the ground that any such party drafted

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it.

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29.

This Consent Agreement and the attachments contain all of the terms and conditions

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agreed upon by the Parties relating to the matters covered by the Consent Agreement, and supersede

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any and all prior and contemporaneous agreements, negotiations, correspondence, understandings, and

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communications of the Parties, whether oral or written, respecting the matters covered by this Consent

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Agreement. This Consent Agreement may be amended or modified only by a writing signed by the

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Parties or their authorized representatives, and then by order of the Court.

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30.

Where implementation of the actions set forth in this Consent Decree, within the

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deadlines set forth above becomes impossible, despite the timely good faith efforts of the Parties, the

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Party who is unable to comply shall notify the other in writing within seven (7) days calendar days of

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the date that the failure becomes apparent, and shall describe the reason for the non-performance. The

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Parties agree to meet and confer in good faith concerning the non-performance and, where the Parties

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concur that the non-performance was or is impossible, despite the timely good faith efforts of one of

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the Parties, new performance deadlines shall be established. In the event that the Parties cannot timely

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agree upon the terms of such a stipulation, either of the Parties shall have the right to invoke the

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dispute resolution procedure described herein.

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- 13 [PROPOSED] CONSENT AGREEMENT

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31.

Except in case of an emergency but subject to the regulatory authority of any applicable

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governmental authority, any breach of or default under this Consent Agreement capable of being cured

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shall be deemed cured if, within five (5) days of first receiving notice of the alleged breach or default,

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or within such other period approved in writing by the Party making such allegation, which approval

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shall not be unreasonably withheld, the party allegedly in breach or default has completed such cure

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or, if the breach or default can be cured but is not capable of being cured within such five (5) day

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period, has commenced and is diligently pursuing to completion such cure.

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The Parties hereto enter into this Consent Agreement and respectfully submit it to the Court for
its approval and entry as an Order and Final Judgment.

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Dated: ___________________

California Sportfishing Protection Alliance

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By:

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___________________________________
Bill Jennings, Executive Director

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Dated: ___________________

Butte County Department of Public Works

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By:

___________________________________
Mike Crump, Director

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- 14 [PROPOSED] CONSENT AGREEMENT

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EXHIBIT A – Facility Site Map

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CONSENT AGREEMENT

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EXHIBIT B – Notice of Violation

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[PROPOSED] CONSENT AGREEMENT

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EXHIBIT C – Sampling Parameters

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Parameter

Value

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pH

6.0 – 9.0

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Specific Conductivity

200 µmhos/cm

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Total Suspended Solids

100 mg/L

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Oil & Grease

15 mg/L

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Chemical Oxygen Demand

120 mg/L

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Biochemical Oxygen Demand

30 mg/L

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Nitrate + Nitrite Nitrogen*

0.68 mg/L

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Iron*

1.0 mg/L

Copper*

0.0636 mg/L

Cadmium*

0.0159 mg/L

Lead*

0.0816 mg/L

Nickel*

1.417 mg/L

Mercury*

0.0024 mg/L

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* If the storm water samples demonstrate that concentration levels of these identified pollutants are
below the sampling values specified in the Exhibit C for three (3) consecutive sampling events, then
they may be removed from the monitoring program.

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[PROPOSED] CONSENT AGREEMENT