Northern California River Watch v. City of Sausalito

Filing 23

STIPULATION AND ORDER DISMISSING CASE. Signed by Judge Samuel Conti on 1/22/09. (tdm, COURT STAFF) (Filed on 1/27/2009)

January 22, 2009

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SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS This Settlement Agreement and Mutual Release of Claims ("Agreement") is entered into between Northern California River Watch ("River Watch") and the City Of Sausalito ("The City") (collectively "the Parties") as of the last date executed below (the "Effective Date"), with respect to the following facts and objectives. RECITALS A. River Watch is a 501(c)(3) non-profit public benefit corporation organized under the laws of the State of California, dedicated to the protection, enhancement and restoration of the rivers, creeks, streams, tributaries and groundwater of Northern California. B. The City is a public agency organized under Part 1, Division 2, Government Code Section 53000 et seq. The City's wastewater collection system operates under the Statewide General Waste Discharge Requirements For Wastewater Collection System Agencies. C. On August 16, 2007 River Watch sent the City a Notice of Violations and Intent to File Suit ("60 Day Notice Letter") under Section 505 of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1365, a copy of which is attached hereto as Exhibit A. On August 20, 2007 River Watch sent the City a Notice of Violations and Intent to File Suit ("90 Day Notice Letter") under Section 7002 of the Federal Resource Conservation And Recovery Act ("RCRA") 42 U.S.C. §6972, a copy of which is attached as Exhibit B. D. On October 5, 2007, the Parties met for an initial settlement conference, together with the Sausalito-Marin City Sanitary District ("District"), Tamalpais Community Services District ("TCSD") and the Golden Gate National Park Service, each of which is an independent Sanitary Sewer Collection System Agency whose wastewater flow is conveyed to and treated by the District. Each of these independent Agencies was also served with a 60 Day Notice Letter from River Watch. River Watch has settled its claims against the District and TCSD. E. On April 15, 2008, River Watch filed a Clean Water Act and RCRA Complaint (the "Complaint") against the City in Federal District Court for the Northern District of California. A copy of the Complaint is attached as Exhibit C. F. The City, TCSD and the District operate independent sanitary sewer collection systems that convey sewage to a sewage treatment plant operated by the District. The successful operation of the entire collection system and the treatment plant require coordination and cooperation between the three agencies. Addressing peak wet weather flows and salt water intrusion may require the undertaking of substantial capital projects by one or more of the three agencies, either independently or jointly. The City cannot within the time frame set forth in this Settlement Agreement, fully resolve the peak wet weather flow capacity or the salt water without substantial cooperation and coordination among the three agencies. G. On April 10, 2008 the United States Environmental Protection Agency, Region IX, filed an administrative order for compliance against the City, the District and TCSD ("EPA
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Order" or "A.O."). The Parties agree that many of the issues set forth in this Settlement Agreement are also addressed in that A.O. Specifically, Section VII of the A.O., IMPLEMENTATION STUDY AND REPORT, provides that by October 15, 2008 the TCSD, the District and the City shall complete a study that evaluates options for collaboration between the agencies on efforts to implement and comply with the requirements of the A.O. That Section goes on to require the three agencies to address, among other things, issues of staff deployment, coordination on condition and capacity assessments, coordination on capacity issues throughout the collection system and collaboration on Capital Improvement Programs. Section VII also requires adoption of strategies to assure the planning and funding necessary to complete the requirements of the A.O. River Watch and the City agree and acknowledge that cooperation among the TCSD, the District and the City is pivotal for the City to be able to meet the conditions of the A.O. and this Settlement Agreement. H. River Watch and the City, through their authorized representatives and without adjudication of River Watch's claims as set forth in the 60 Day and 90 Day Notice Letters and the Complaint, and without admission by the City of any alleged violation or wrongdoing, or any fact alleged in the 60 Day Notice Letter, the 90 Day Notice Letter and/or the Complaint, have chosen to resolve in full River Watch's allegations against the City as set forth in the 60 Day and 90 Day Notice Letters and the Complaint with respect to all facilities and equipment owned or operated by the City, and/or for which the City is legally responsible. In mutual consideration for the resolution of River Watch's allegations, the Parties agree to the following: AGREEMENT I. SUPPLEMENTAL ENVIRONMENTAL PROJECTS A. Funding for Investigation and Repair of Private Laterals.

1. River Watch and the City agree that leakage and/or releases from sewer laterals owned by private third-parties ("Private Laterals") may enter or have impacts on, among other things, nearby storm drains which discharge to waters of the Central San Francisco Bay. Within twelve (12) months of the date of Effective Date of this Agreement, the City shall provide funding for a Sewer Enhancement Project ("SEP") in the amount of One Hundred Thousand Dollars ($100,000.00) for investigation and repair of Private Laterals located within the City, including, as appropriate, a reduced cost or grant program for Private Lateral replacement. The SEP shall be reasonably approved by River Watch for the purpose of assuring consistency with the intent of the project, as set forth herein. The City shall provide a description of the proposed SEP in writing to River Watch within ninety (90) days of the Effective Date of this Settlement Agreement. 2. As an alternative to the SEP described in Section I.A.1 above relating to the inspection and improvement of Private Laterals, the City may propose, and the Parties may agree in writing, that the funding provided by the City pursuant to that Section I.A.1 be applied to an alternative SEP, consistent with the intent of this Agreement. If the Parties can not agree on an alternative SEP, the SEP in A1 above will apply.
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II.

COLLECTION SYSTEM PROGRAMS A. Inflow and Infiltration ("I/I") Study.

1. Within twenty-four (24) months of the Effective Date of this Agreement, the City shall continue to undertake to complete an Inflow and Infiltration ("I/I") assessment within the City to determine I/I "hot spots" within the City's system, i.e. segments of sewage pipelines where structural damage may allow significant infiltration and inflow of stormwater, ground water and/or sea water into pipelines. A salt water intrusion study shall also be completed to determine the areas of potential salt water intrusion within the City's collection system. The City has already engaged RMC Engineers to perform portions of this study. The studies will also provide for targeted field investigations to identify sources of I/I. The primary methods of identifying I/I will be smoke testing, physical inspections of manholes and, in areas of salt water intrusion, closed circuit television inspection of sewer pipelines. The City can satisfy the requirements of this Section II.A.1 through compliance with Section IV.B, Capacity Assessment, of the A.O. To the extent the requirements of, or the current October 15, 2010 completion date for, A.O. Section IV.B is modified by the EPA, then the City's obligations under this Section II.A.1 shall be similarly modified, and EPA's modifications will apply to, and control, this Agreement, unless River Watch obtains a final determination that EPA's modification(s) was arbitrary and capricious, as that term is used in the Federal Administration And Procedures Act. 2. In 2000, the City retained RMA/Engineering and Management to prepare a Management, Information, Monitoring and Reporting System for the City of Sausalito Sanitary Sewer System. The work included a Condition Assessment ("Assessment"). The Assessment evaluated the condition of each pipeline segment in the City' sewage collection system and rated s each of the segments based on the following three categories: (i) segments with defects that require immediate repair (i.e. Damage Severity Index (DSI) > 25) ("Category One"); (ii) segments with defects that do not require immediate repair at the time of assessment (i.e. DSI > 10 < 25) ("Category Two"); and (iii) segments with few or no defects that do not require repair within the near term (i.e. DSI < 10) ("Category Three"). 3. Within twenty-four (24) months of the Effective Date of this Agreement the City shall complete a re-inspection of all sewage collection pipelines owned or maintained by the City, which have not been video inspected since January 1, 2000, which were classified as Category Two in the Assessment. The City can satisfy the requirements of this Section II.A.3 through compliance with A.O. Section IV.A, Sewer Pipe Maintenance Hole Inspection and Condition Assessment. To the extent the requirements of, or the current April 15, 2010 completion date for, A.O. Section IV.A is modified by the EPA, then the City's obligations under this Section II.A.3 shall be similarly modified, and EPA's modifications will apply to, and control, this Agreement, unless River Watch obtains a final determination that EPA's modification(s) was arbitrary and capricious, as that term is used in the Federal Administration And Procedures Act. B. Prioritize Capital Improvements Program. 1. On or before October 15, 2010, the City shall develop a Capital
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Improvements Program designating as highest priority for repair or replacement at least the following: 1) segments of the City's sewer pipelines determined to be sources of sewage contamination within storm drains, and 2) segments of the City's sewer pipelines identified by the I/I assessment as sources of salt water intrusion. The second/next level of priority for repair or replacement shall be based on and include segments of the City's sewer pipelines identified in the I/I assessment as sources of high inflow and infiltration. 2. The City's Capital Improvements Program shall include repair or replacement of damaged sewer lines identified in the referenced I/I assessment and/or the Capacity Assessment identified in A.O. IV.B, within five (5) years as may be necessary to reduce to the maximum extent practical unpermitted discharges from the City's collection system The City can satisfy the requirements of this Section II.B.2 through compliance with A.O. Section V, CAPACITY ASSURANCE. To the extent the requirements of, or the current October 13, 2013 completion date for, A.O. Section V is modified by EPA, then the City's obligations under this Section II.B.2 shall be similarly modified, and EPA's modifications will apply to, and control, this Agreement, unless River Watch obtains a final determination that EPA's modification(s) was arbitrary and capricious, as that term is used in the Federal Administration And Procedures Act. Beginning with the current fiscal year (2008-2009), and continuing in each 3. fiscal year thereafter, the City will expend, or encumber in its Sewer Fund, no less than $150,000 per fiscal year and use those funds to complete the repairs and replacements of sewer lines identified in the Capital Improvements Program as having defects rated grade 4 or 5 according to the Pipeline Assessment and Certification Program (PACP) currently used by the City, or the equivalent grade(s) should the City's assessment methodology change. City' obligation to s expend or encumber such funding pursuant to this Section II.B.3 shall terminate upon the earlier of (1) approval by EPA of the plan required by Section VI.A of the A.O. or (2) the City's determination that 85% of the City-owned sewer lines have no grade 4 or 5 defects according to the City's current PACP, or the equivalent grade(s) should the City's assessment methodology change. To the extent the EPA modifies Section VI. of the A.O., then the City's obligations under this Section II.B.3 shall be similarly modified, and EPA's modifications will apply to, and control, this Agreement, unless River Watch obtains a final determination that EPA's modification(s) was arbitrary and capricious, as that term is used in the Federal Administration And Procedures Act. 4. The City and River Watch recognize that compliance with the provisions of this Section II are in part dependent on actions of both TCSD and the District. This specifically applies with regard to salt water intrusion issues and peak wet weather flows. On the Effective Date of this Settlement Agreement it is understood that three agencies are working to coordinate a joint project for development of peak wet weather flow retention basin(s) and other required improvements to the system. Similarly, reduction or elimination of salt water intrusion depends on cooperation from and coordination with TCSD and the District. River Watch and the City acknowledge that the City will be required to play a role in organizing joint efforts and obtaining cooperation between itself, TCSD and the District, but the City acting alone may not be able to fully address peak flow and salt water intrusion issues. River Watch will not take enforcement actions against the City provided the City has undertaken those activities which it can within its jurisdictional boundaries and made substantial and reasonable efforts to obtain cooperation from
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the two other agencies. III. SOURCE CONTROL

The City shall cooperate with the District to develop a source control program that permits the District to comply with all source control requirements set forth in the District' NPDES s Permit. IV. SEWAGE SYSTEM OVERFLOW REPORTING

Within twelve (12) months of the Effective Date of this Agreement, the City shall post a telephone number on its web site that private citizens can call to report sewage system overflows. The web site location will contain a list of all sewage system overflows in the City's service area for the previous twelve (12) months, including volume, location, and any discharge to a storm drain or directly to surface water. The web site will inform private citizens that they are entitled to a response to any reported overflow, whether reported electronically or by telephone. V. PRIVATE SEWER LATERAL INSPECTION

Within twelve (12) months following the Effective Date of this Agreement, the City shall consider amending its current Ordinance 18.12.110 to make inspection of the lateral by the City mandatory, in conjunction with repair of the main line to which the lateral is connected and to make repair or rehabilitation of the lateral mandatory as deemed necessary by the City Engineer. In the alternative, the City shall implement a voluntary upgrade program such as that adopted by the Tamalpais Community Services District ("TCSD") in Ordinance No. 83. River Watch recommends coordinating mandatory inspection of private laterals with repair of the main trunk line to which the private laterals are attached. River Watch also recommends the TCSD voluntary program where the agency negotiates low group rates for lateral repairs with the contractor repairing or replacing the main line and encourages voluntary participation with a loan program. VI. ADMINISTRATIVE ORDER REPORTS

The following provisions from the A.O. are incorporated into this Agreement and, subject to the provisions below in this Section VI., are enforceable by River Watch as terms of this Agreement: Section III.C. Pump Station Reliability Certification Section IV. COLLECTION SYSTEM ASSESSMENTS All Provisions Section V. CAPACITY ASSURANCE All Provisions Section VI. INFRASTRUCTURE RENEWAL All Provisions
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To the extent the EPA modifies any of the above sections of the A.O., or any others referred to elsewhere in this Agreement, the City's corresponding obligation under this Agreement shall be similarly modified, and EPA's modifications will apply to, and control, this Agreement, unless River Watch obtains a final determination that EPA' modification(s) was arbitrary and capricious. Similarly, any determination by the EPA that the City is in compliance, or has complied, with any of the above terms in the A.O. shall also mean that the City is in compliance, or has complied, with the City's corresponding obligation under this Agreement, unless River Watch obtains a final determination that EPA's decision(s) was arbitrary and capricious, as that term is used in the Federal Administration And Procedures Act. The City shall submit all reports and studies required under the A.O. to River Watch simultaneously with submitting them to the EPA. The City may submit such reports to River Watch in electronic format. The City shall notify River Watch of any amendments to the A.O. If the City seeks an extension to any of the deadlines set forth in the A.O., the City will provide written notice to River Watch of the request for modification of the schedule at the same time it presents a formal request to the EPA. VII. ATTORNEYS' FEES AND COSTS

Within thirty (30) days of the Effective Date of this Agreement, the City District shall pay River Watch the sum of Forty-Five Thousand Dollars ($45,000) in full satisfaction of all claims by River Watch for attorneys' fees and costs incurred in this matter, and for any fees associated with enforcement and monitoring of this Agreement, including all time spent by River Watch reviewing reports and studies required under this Agreement, reviewing study protocols, consulting with experts and all additional activities necessary in connection with this Agreement. Only action taken by River Watch to enforce this Agreement in a court of law or by arbitration may be subject to a claim by River Watch for additional fees, pursuant to Section X, ENFORCEMENT, of this Agreement. Payment is to be made payable to Northern California River Watch. VIII. SETTLEMENT AND RELEASE OF CLAIMS River Watch, on its own behalf and on behalf of its members, subsidiaries, successors, assigns, directors, officers, affiliates, agents, attorneys, representatives, and employees, forever releases and discharges all persons, including the City and its officials, officers, directors, employees, agents, attorneys, representatives, predecessors, successors and assigns, and any other person or entity acting on the City's behalf, from all actions, causes of action, claims, damages, expenses, fees (including experts and attorneys fees), fines, injunctive relief, liabilities, losses, orders, penalties, requirements, sanctions, and any other sum incurred or claimed or which could have been claimed in the Complaint, and/or the Notice Letters, including but not limited to any future claim based on an alleged failure of the City to comply with the Clean Water Act, RCRA and/or the Porter-Cologne Water Quality Control Act (Water Code, §§ 13000, et seq.) for a period of seven (7) years following the Effective Date (collectively, "Claims"). This release includes, without limitation, a release, and covenant not to sue, for any Claims or injunctive relief which could have been asserted with respect to any activities in alleged violation of or arising
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under the Clean Water Act, RCRA or the Porter-Cologne Water Quality Control Act, arising prior to the Effective Date or that may arise for a period of seven (7) years following the Effective Date. River Watch further expressly waives any rights or benefits available to it under the provisions of California Civil Code § 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. IX. FORCE MAJEURE

A. Separate from, and in addition to any other limitations on the City's obligations under this Agreement, the City's obligation to comply with one or more of the provisions of this Agreement shall be deferred to the extent and for the duration that the delay in compliance is caused by an event or circumstance beyond the reasonable control of the City or any entity controlled by the City, including its contractors, and which event or circumstance could not have been reasonably foreseen and prevented by the exercise of due diligence by the City. Delays due to unanticipated or increased costs or expenses associated with the completion of any work or activity under this Agreement, or the City' failure to make timely and bona fide applications and s to exercise diligent efforts to obtain permits, or normal inclement weather shall not, in any event, be considered to be circumstances beyond the City' control. s B. If any event or circumstance occurs which causes or may cause a delay in the City' s compliance with any provision of this Agreement and the City seeks relief as set forth in Paragraph IX.A above, the City shall comply with the following provisions: 1. The City shall provide written notice to River Watch within thirty (30) days of the date that the City first knew of the event or circumstance.

2. The City's notice shall specifically refer to this section of this Agreement and describe the anticipated length of time the delay may persist, the cause or causes of the delay, the measures taken or to be taken by the City to prevent or minimize the delay, the schedule by which the measures will be implemented, and the anticipated date of compliance. The City shall adopt all reasonable measures to avoid and minimize such delays. 3. If River Watch disagrees with the City's notice, the Parties shall meet and confer in good faith to determine whether the Parties concur that the delay was an event or circumstance beyond the reasonable control of the City or any entity controlled by the City, including its contractors, which event or circumstance could not have been reasonably foreseen and prevented by the exercise of due diligence by the City. X. ENFORCEMENT
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A. The Parties covenant and agree that, if either Party determines the other is in violation of one or more terms of this Agreement, they shall provide notice to the other in writing of what actions or inactions they deem to be in violation of this Agreement. Within thirty (30) days of receipt of such notice, the Party receiving the notice shall respond to the notice in writing. If the Parties still dispute compliance with this Agreement, within an additional thirty (30) days, the Parties will meet and confer in a good faith attempt to resolve their dispute. If the Parties cannot informally resolve the dispute, they will enter into binding arbitration, conducted by an arbitrator agreed upon by both Parties. Either Party may request that the presiding judge of the Marin County Superior Court may select an arbitrator if the Parties cannot reach an agreement. The arbitration shall be conducted in accordance with the arbitration rules and procedures of JAMS or other conventional rules agreed to by the Parties. The arbitrator shall be empowered to determine a prevailing party and award payment of reasonable attorneys' fees and costs to that party. To the extent there are multiple issues with a different prevailing party for one or more issues, the arbitrator may take those facts into account in terms of an award for fees and costs. The arbitration shall be binding and not subject to appeal, except for errors of law, which will be deemed in excess of the arbitrator's powers and reviewable by the federal court in which the subject action was filed. B. If River Watch asserts the City is in violation of this Agreement and the City corrects the action or inaction within sixty (60) days of notice from River Watch, no further enforcement action under the terms of this Agreement shall be taken by either Party. XI. GENERAL PROVISIONS A. Notice.

Unless otherwise provided herein or until the Parties otherwise agree in writing, all communications and notice between the Parties regarding this Agreement shall be through the following addresses: City of Sausalito: City of Sausalito 420 Litho Street Sausalito, CA 95965 Attn: City Manager Tel. [phone] Fax. [phone] Email: [e-mail]

cc:

Stuart I. Block Cox, Castle & Nicholson LLP 555 California Street, 10th Floor San Francisco, CA 94105 Tel. [phone]
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Fax. [phone] Email: [e-mail] River Watch: Northern California River Watch 6741 Sebastopol Avenue, Suite 140 Sebastopol, CA 95472 Attn:____________________ Email: [e-mail] Jerry Bernhaut, Esquire P.O. Box 5469 Santa Rosa, CA 95402-5469 Tel. [phone] Fax. [phone] Email: [e-mail] Entire Agreement.

cc:

B.

This Agreement constitutes the entire agreement between the Parties. It is expressly understood and agreed that this Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by authorized representatives of the Parties hereto. The Parties hereby agree and acknowledge that they will make no claim at any time or place that this Agreement has been orally altered or modified or otherwise changed by oral communication of any kind or character. This Agreement shall supersede all previous agreements whether written or oral, that may have been reached between the Parties in connection with this matter and provides the sole remedy from any party to any other party regarding this matter. C. No Factual or Legal Mistake.

This Agreement shall not be subject to attack on the ground that any or all of the legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate or inappropriate. The Parties acknowledge that they entered into this Agreement solely based on their own independent investigation of the facts and circumstances material to this Agreement and not in any manner or to any degree based on any statement or omission by other parties and or their respective counsel. D. Voluntary.

This Agreement is entered into by each Party freely and voluntarily. Each of the Parties has had the benefit of advice of counsel of their choice in the negotiating, drafting and executing of this Agreement and the language in all parts of this Agreement is the product of the efforts of all counsel. Accordingly, neither the entire Agreement nor any provision in it shall be deemed to
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Notice of Violations and Intent to File Suit dated August 16, 2007 (hereafter, "CWA NOTICE") made part of this pleading and attached hereto as EXHIBIT A. 2. DEFENDANTS are routinely violating the CWA's prohibition against discharging a pollutant

from a point source to Waters of the United States without a National Pollutant Discharge Elimination System("NPDES") permit, CWA §301(a), 33 U.S.C. §1311(a), in the course of their operation of their Sewage Collection System. Point source discharges to waters of the United States are occurring due to numerous sewage pipeline surface overflows to waters of the United States as well as ongoing underground overflows from aging, deteriorated sewer lines to hydrologically connected waters of the United States, including Richardson Bay. DEFENDANTS collect residential and commercial sewage which is pumped to the treatment plant in the City of Sausalito operated by the Sausalito-Marin City Sanitary District, (hereafter "SMCSD"). SMCSD has identified DEFENDANTS' collection system as a significant source of increased wet weather flows into the treatment plant because of the high level of inflow and infiltration ("I/I") of stormwater and groundwater into the DEFENDANTS' sewer system through cracks, eroded sections and misaligned joints. The SMCSD has identified high salinity I/I into DEFENDANTS' sewer system as a major source of saltwater intrusion into the SMCSD treatment plant, which the SMCSD identifies as a significant factor in causing total suspended solids and biological oxygen demand effluent limit violations. High wet weather flows into SMCSD's treatment plant, caused in significant part by I/I into DEFENDANTS' sewer lines, creates the need for SMCSD to direct excess flows to bypass biological treatment units directly to secondary clarifiers, and then to be blended with fully treated effluent. Blending is a compromised treatment process permitted when no feasible alternative is available to prevent loss of life, personal injury, or severe property damage, 40 C.F.R. §122.41(m)(4)(1). Blending has resulted in a number of effluent limit violations when the blended effluent was tested. DEFENDANTS' sewer lines are point sources under the CWA. DEFENDANTS have no NPDES Permit for the discharge of pollutants from a point source to waters of the United States. 3. DEFENDANTS are also routinely violating the Basin Plan, Environmental Protection Agency

("EPA") regulations codified in the Code of Federal Regulations, and toxics standards promulgated by the State Water Resources Control Board in the course of DEFENDANTS' operation of the sewage

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collection system, as described in the CWA NOTICE. 4. Under 33 U.S.C. § 1251(e), Congress declared its goals and policies with regard to public

participation in the enforcement of the CWA. 33 U.S.C. §1251(e) provides, in pertinent part: Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan or program established by the Administrator or any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. 5. DEFENDANTS illegally discharge to waters which are habitat for threatened or endangered

species as that term is defined by the California EPA and the United States EPA. 6. Plaintiff also brings this citizens' suit against DEFENDANTS under the citizen suit enforcement

provisions of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., (hereafter, "RCRA"), specifically Sections 7002(a)(1)(A), 42 U.S.C.§ 6972(a)(1)(A) and 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), to stop DEFENDANTS from repeated and ongoing violations of the RCRA. These violations are detailed in the Notice of Violations and Intent to File Suit dated August 20, 2007 (hereafter, "RCRA NOTICE") made part of this pleading and attached hereto as EXHIBIT B. 7. DEFENDANTS are routinely violating the RCRA's regulatory mandates applicable to

hazardous or solid wastes by causing untreated sewage, a hazardous waste under the RCRA, to be discharged or deposited where it is or probably will be discharged into waters of the State, thereby creating or threatening to create, conditions of pollution or nuisance. ( 42 U.S.C. § 6972(a)(1)(A)). 8. DEFENDANTS are routinely violating the RCRA's prohibition against creating an imminent and

substantial endangerment to human health and the environment by the operation of their sewage collection system, as identified in the RCRA NOTICE, which has caused contamination of soil, groundwater and surface water with fecal coliform and other pathogens, (42 U.S.C. § 6972(a)(1)(B)). 9. RIVER WATCH seeks declaratory relief, injunctive relief to prohibit future violations, the

imposition of civil penalties, and other relief for DEFENDANTS' violations of the CWA § 301, 33 U.S.C. § 1311 prohibition against discharging a pollutant to waters of the United States without a NPDES Permit, the RCRA's standards and regulations applicable to hazardous or solid wastes and DEFENDANTS' violation of the RCRA's prohibition against creating an imminent and substantial

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endangerment to human health and the environment. II. PARTIES 10. Plaintiff, NORTHERN CALIFORNIA RIVER WATCH, is a 501(c)(3) non-profit public benefit

corporation duly organized under the laws of the State of California, with headquarters and main office located at 6741 Sebastopol Avenue, Suite 140, Sebastopol, California. RIVER WATCH is dedicated to protect, enhance and help restore the surface and subsurface waters of Northern California. Its members live in Northern California including Marin County where DEFENDANTS' sewage collection system facilities and operations are located. 11. Members of RIVER WATCH live nearby to waters affected by DEFENDANTS' illegal

discharges. Said members have interests in the watersheds identified in this Complaint, which interests are or may be adversely affected by DEFENDANTS' violations. Said members use the effected waters and effected watershed areas for domestic water, recreation, sports, fishing, swimming, hiking, photography, nature walks, religious, spiritual and shamanic practices, and the like. Furthermore, the relief sought will redress the injury in fact, likelihood of future injury and interference with the interests of said members. 12. RIVER WATCH is informed and believes and on such information and belief alleges that

Defendant CITY OF SAUSALITO. is a City formed under California Government Code § 34000 et. sec., with administrative offices located at 420 Litho Street, Sausalito, Marin County, California. 13. DEFENDANTS DOES 1 - 10, Inclusive, respectively, are persons, partnerships, corporations

and entities, who are, or were, responsible for, or in some way contributed to, the violations which are the subject of this Complaint or are, or were, responsible for the maintenance, supervision, management, operations, or insurance coverage of DEFENDANTS' sewage collection system facilities and operations. The names, identities, capacities, and functions of DEFENDANTS DOES 1 - 10, Inclusive are presently unknown to RIVER WATCH , who shall seek leave of court to amend this Complaint to insert the true names of said DOES Defendants when the same have been ascertained. III. JURISDICTIONAL ALLEGATIONS 14. Subject matter jurisdiction is conferred upon this Court by Section 505(a)(1) of the CWA, 33

U.S.C. § 1365(a)(1), which states in part that, "any citizen may commence a civil action on his own

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behalf against any person . . . .who is alleged to be in violation of (A) an effluent standard or limitation . . . . or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." For purposes of Section 505, "the term `citizen' means a person or persons having an interest which is or may be adversely affected." 15. Subject matter jurisdiction is further conferred upon this Court by RCRA § 7002(a)(1), 42

U.S.C. § 6972(a)(1), which states in part that, "...any person may commence a civil action on his own behalf (A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition requirement , prohibition or order which has become effective pursuant to this chapter, or (B) against any person ...who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 16. Members and supporters of RIVER WATCH reside in the vicinity of, derive livelihoods from,

own property near, and/or recreate on, in or near and/or otherwise use, enjoy and benefit from the waterways and associated natural resources into which DEFENDANTS' discharge pollutants, or by which DEFENDANTS' operations adversely affect their interests, in violation of CWA § 301(a), 33 U.S.C.§1311(a), CWA § 505(a)(1), 33 U.S.C.§ 1365(a)(1), CWA § 402, 33 U.S.C.§ 1342 and RCRA § 7002 (a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). The health, economic, recreational, aesthetic and environmental interests of RIVER WATCH and its members may be, have been, are being, and will continue to be adversely affected by DEFENDANTS' unlawful violations. RIVER WATCH and its members contend there exists an injury in fact to them, causation of that injury by DEFENDANTS' complained of conduct herein, and a likelihood that the requested relief will redress that injury. 17. Pursuant to CWA § 505(b)(1)(A), 33 U.S.C.§1365(b)(1)(A), notice of the CWA violations

alleged in this Complaint was given more than sixty (60) days prior to commencement of this lawsuit, to: (a) defendant City of Sausalito (b) the United States EPA, Federal and Regional, and (c) the State of California Water Resources Control Board. 18. Pursuant to CWA § 505(c)(3), 33 U.S.C. § 1365(c)(3), a copy of this Complaint has been

served on the United States Attorney General and the Administrator of the Federal EPA.

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19.

Pursuant to Section RCRA § 7002 (2)(A), 42 U.S.C. § 6972(2)(A), notice of the RCRA

violations alleged in this Complaint was given more than ninety (90) days prior to the commencement of this lawsuit to: (a) defendant City of Sausalito, (b) the United States Environmental Protection Agency, Federal and Regional,(c) the State of California Water Resources Control Board, and (d) the State of California Integrated Waste Management Board. 20. Pursuant to CWA § 505(c)(1), 33 U.S.C. § 1365(c)(1), venue lies in this District as the sewage

collection system facilities under DEFENDANTS' operation and/or control, and the sites where illegal discharges occurred, which are the source of the violations complained of in this action, are located within this District. 21. Pursuant to RCRA § 7002(a)&(b), 42 U.S.C. §§ 6972(a)&(b) venue lies in this District as

DEFENDANTS' sewage system collection facilities are located in this District. All of the sites of pollution are located in this District as well. IV. GENERAL ALLEGATIONS 22. RIVER WATCH incorporates by reference all the foregoing including EXHIBITS A and B

as though the same were separately set forth herein. 23. DEFENDANTS own and operate a separate sanitary sewage collection system which collects

sewage from approximately 6,200 connections servicing a population of approximately 7,454 in southern Marin County. Sewage collected by DEFENDANTS' collection system is conveyed to the sewage collection system operated by SMCSD and thereafter conveyed to SMCSD's wastewater treatment plant. DEFENDANTS' sewer lines discharge pollutants both directly and indirectly into the waterways referenced below. 24. All illegal discharges and activities complained of in this Complaint occur in the waterways

named in the CWA NOTICE, all of which are waters of the United States, and at the locations identified in detail in the CWA NOTICE and the RCRA NOTICE. 25. The Regional Water Quality Control Board has determined that the watershed areas and

affected waterways are beneficially used for drinking water, water contact recreation, non-contact water recreation, fresh water habitat, wildlife habitat, preservation of rare and endangered species, fish migration, fish spawning, industrial service supply, navigation, and sport fishing.

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V. STATUTORY AND REGULATORY BACKGROUND CWA § 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of pollutants from a "point source"

into the navigable waters of the United States, unless such discharge is in compliance with applicable effluent limitations as set by the EPA and the applicable State agency. These limits are to be incorporated into a NPDES permit for that point source specifically. The effluent discharge standards or limitations specified in a NPDES Permit define the scope of the authorized exception to the 33 U.S.C. § 1311(a), such that violation of a permit limit places a polluter in violation of 33 U.S.C. § 1311(a) and thus in violation of the CWA. Additional sets of regulations are set forth in the Basin Plan, California Toxics Plan, the Code of Federal Regulations and other regulations promulgated by the EPA and the State Water Resources Control Board.. CWA § 301(a) prohibits discharges of pollutants or activities not authorized by, or in violation of an effluent standard or limitation or an order issued by the EPA or a State with respect to such a standard or limitation including a NPDES permit issued pursuant to CWA § 402, 33 U.S.C. § 1342. The sewage collection system facilities and sewer lines owned and operated by DEFENDANTS are point sources under the CWA. 27. The affected waterways detailed in this Complaint and in the CWA NOTICE are navigable

waters of the United States within the meaning of CWA § 502(7), 33 U.S.C. § 1362(7). 28. The Administrator of the EPA has authorized the Regional Water Quality Control Board to

issue NPDES permits, subject to specified conditions and requirements, pursuant to CWA § 402, 33 U.S.C. § 1342. 29. DEFENDANTS have no NPDES permit for discharging pollutants from their sewage collection

system to waters of the United States. Without a NPDES Permit, all unauthorized point source discharges from DEFENDANTS' sewage collection system to waters of the United States are illegal. DEFENDANTS' sewer lines are a point source. Discharges from this point source via surface overflows and tributary ground waters to waters of the United States, without a NPDES permit, are illegal. 30. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) permits an action against any person who

violates a PERMIT, STANDARD or REGULATION pursuant to the RCRA. DEFENDANTS have stored, handled and disposed of materials containing untreated sewage, defined as hazardous wastes under the RCRA, in a manner which has allowed these pollutants to be discharged to soil and

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groundwater adjacent to DEFENDANTS' sewer collection system and sewer lines, in violation of regulations regarding the use and disposal of hazardous wastes. (RCRA § 3004 (d), 42 U.S.C. §6924(d)). 31. RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B) permits an action against any person who

has contributed to or who is contributing to the past or present handling of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. The untreated sewage stored and conveyed in DEFENDANTS' sewage collection system consists of solid wastes and hazardous wastes pursuant to RCRA §6903(27), 42 U.S.C. § 6972(27), and RCRA § 6903(5), 42 U.S.C. § 6972 (5). Pollutants from untreated sewage in DEFENDANTS' sewer lines have leached into soil and ground water adjacent to DEFENDANTS' sewer lines, creating an imminent and substantial endangerment to health and the environment. VI. DEFENDANTS' VIOLATIONS 32. DEFENDANTS' discharges of pollutants from their sewage collection system to waters of the

United States without a NPDES Permit, as detailed in the CWA NOTICE incorporated herein by reference as Exhibit A, are violations of CWA §301(a), 33 U.S.C. § 1311(a) The violations are established in Regional Water Quality Control Board Files for DEFENDANTS' sewage collection system facilities, as well as in studies conducted by DEFENDANTS in compliance with orders from regulatory agencies . 33. The enumerated violations are detailed in the CWA NOTICE, incorporated herein by reference,

and below, designating the section of the CWA violated by the described activity. 34. The location of the discharges are the discharges points as described in the CWA NOTICE,

incorporated herein by reference. 35. DEFENDANTS' discharges to soil and groundwater violate the RCRA's regulations regarding

the storage and disposal of hazardous wastes. The violations are established in Regional Water Quality Control Board Files for DEFENDANTS' sewage collection system facilities, as well as in studies conducted by DEFENDANTS in compliance with orders from regulatory agencies 36. DEFENDANTS' discharges to soil and ground water violate the RCRA's prohibition against

creating an imminent and substantial endangerment to health and the environment. The violations are

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established in Regional Water Quality Control Board Files for DEFENDANTS' sewage collection system, as well as in studies conducted by DEFENDANTS in compliance with orders from regulatory agencies . 37. The enumerated violations are detailed in the RCRA NOTICE incorporated herein by reference,

and below, designating the section of the RCRA violated by the described activity. VII. CLAIMS FOR RELIEF A. FIRST CLAIM FOR RELIEF Violation of CWA 33 U.S.C. § 1251 et seq., 33 U.S.C. § 1342 (a) and (b), 33 U.S.C. § 1311 Discharge of Pollutants from Point Sources to United States Waters Without a NPDES Permit 38. RIVER WATCH realleges and incorporates by reference the allegations of Paragraphs 1

through 37 including EXHIBIT A as though fully set forth herein. 39. DEFENDANTS have and continue to violate the CWA as evidenced by the discharges of

pollutants from a point source without a NPDES permit in violation of CWA § 301, 33 U.S.C. § 1311. 40. RIVER WATCH contends the violations of DEFENDANTS alleged herein are ongoing and

will continue after the filing of this Complaint. RIVER WATCH alleges herein all violations which may have occurred or will occur prior to trial, but for which data may not have been available or submitted or apparent from the face of the reports or data submitted by DEFENDANTS to the Regional Water Quality Control Board or to RIVER WATCH prior to the filing of this Complaint. RIVER WATCH will file additional amended complaints if necessary to address DEFENDANTS' State and Federal violations which may occur after the filing of this Complaint. Each of DEFENDANTS' violations is a separate violation of the CWA. 41. RIVER WATCH avers and believes and on such belief alleges that without the imposition of

appropriate civil penalties and the issuance of appropriate equitable relief, DEFENDANTS will continue to violate the CWA as well as State and Federal standards with respect to the enumerated discharges and releases. RIVER WATCH avers and believes and on such belief alleges that the relief requested in this Complaint will redress the injury to RIVER WATCH and its members, prevent future injury, and protect the their interests which are or may be adversely affected by DEFENDANTS' violations of the CWA, as well as other State and Federal standards.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. 42.

B. SECOND CLAIM FOR RELIEF Violation of 42 U.S.C. § 6901 et seq., specifically 42 U.S.C. § 6972(a)(1)(A) RIVER WATCH reallege and incorporates by reference the allegations of Paragraphs 1

through 41 including EXHIBIT B as though fully set forth herein. 43. RCRA § 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A) permits an action against any person who

violates a PERMIT, STANDARD or REGULATION pursuant to the RCRA. Civil penalties may be assessed against any person or entity in violation of this section, under the provisions of 42 U.S.C. §§ 6928 (a) and (g). 44. DEFENDANTS' storage and handling of untreated sewage at their sewage collection system

facilities, defined as hazardous wastes under the RCRA, has caused the discharge of hazardous wastes to soil and groundwater in violation of regulations regarding the use and disposal of hazardous wastes. (RCRA §3004 (d), 42 U.S.C. §6924(d)). 45. RIVER WATCH avers and believes and on such belief alleges that without the imposition of

appropriate civil penalties and the issuance of appropriate equitable relief, DEFENDANTS will continue to violate a PERMIT, STANDARD or REGULATION pursuant to the RCRA, specifically RCRA § 3004 (d), 42 U.S.C. §6924(d). C. THIRD CLAIM FOR RELIEF Violation of 42 U.S.C. § 6901 et seq., specifically 42 U.S.C. § 6972(a)(1)(B) RIVER WATCH realleges and incorporate by reference the allegations of Paragraphs 1 through

55 including EXHIBIT B as though fully set forth herein. 47. RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), provides that any person may commence

a civil action against any person or governmental entity including a past or present generator, transporter, owner or operator of a treatment, storage or disposal facility who has contributed to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or to the environment. 48. DEFENDANTS own and operate a sewage collection system in which they have stored and

conveyed and from which they have discharged untreated sewage containing fecal coliform and other pollutants.

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49.

DEFENDANTS have stored untreated sewage in a manner which has allowed it to leach

pollutants into soil and ground water adjacent to DEFENDANTS' sewer lines. 50. The pollutants listed above, are known to be hazardous to the environment and if released into

the environment in sufficient quantity to pose an imminent and substantial risk. 51. For purposes of the RCRA, untreated sewage is "solid waste" and " hazardous waste" within the

meaning of the statute. 52. RIVER WATCH is informed and believes, and thereon alleges that amounts of untreated sewage

released by DEFENDANTS from their sewage collection system are in sufficient quantity to pose an imminent and substantial risk to both the environment and human health. VIII. RELIEF REQUESTED 53. 54. Declare DEFENDANTS to have violated and to be in violation of the CWA; Issue an injunction ordering DEFENDANTS to immediately operate their sewage collection

system in compliance with the CWA; 55. Order DEFENDANTS to pay civil penalties of $27,500.00 per violation per day for their

violations of the CWA; 56. Declare DEFENDANTS to have violated and to be in violation of RCRA § 6972(a)(1)(A) for

violation of a PERMIT, STANDARD or REGULATION regarding the storage and disposal of hazardous wastes, specifically RCRA § 3004 (d), 42 U.S.C. §6924(d); 57. Enjoin DEFENDANTS from storing and disposing of hazardous wastes in their sewage collection

system in a manner which violates RCRA §3004 (d), 42 U.S.C. §6924(d); 58. Order DEFENDANTS to pay civil penalties of $25,000.00 per violation per day for their

violations of RCRA § 6972(a)(1)(A); 59. Declare DEFENDANTS to have violated and to be in violation of the RCRA for discharging

toxic pollutants from their sewage collection system which are known human pathogens in sufficient quantity to pose an imminent and substantial risk to health; 60. Enjoin DEFENDANTS from discharging toxic pollutants from their sewage collection system

which toxins pose an imminent and substantial risk to health and the environment;

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