California Sportfishing Protection Alliance v. Georgia-Pacific Gypsum LLC et al

Filing 31

ORDER DISMISSING CASE. Signed by Judge Susan Illston on 7/23/13. (tfS, COURT STAFF) (Filed on 7/24/2013)

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

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
Case No. 3:12-CV-06274-SI
PROTECTION ALLIANCE, a non-profit
corporation,
Plaintiff,

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vs.
GEORGIA-PACIFIC GYPSUM LLC, a
Delaware limited liability company;
GEORGIA-PACIFIC BUILDING
PRODUCTS LLC, a Delaware limited
liability company,

STIPULATION TO DISMISS
PLAINTIFF’S CLAIMS WITH
PREJUDICE; [PROPOSED] ORDER
GRANTING DISMISSAL WITH
PREJUDICE [FRCP 41(a)(2)]
(Federal Water Pollution Control Act,
33 U.S.C. § 1251 et seq.)

Defendants.

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STIP TO DISMISS; ORDER THEREON

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CASE NO. 3:12-CV-06274-SI

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Plaintiff California Sportfishing Protection Alliance (“PLAINTIFF” or “CSPA”), and
Defendants in the above-captioned action hereby stipulate as follows:
WHEREAS, on or about October 11, 2013, CSPA provided DEFENDANTS with a

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Notice of Violations and Intent to File Suit (“60-Day Notice Letter”) under Section 505 of the

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Federal Water Pollution Control Act (“Act” or “Clean Water Act”), 33 U.S.C. § 1365;

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WHEREAS, on December 11, 2013, CSPA filed its Complaint against DEFENDANTS

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in this Court, California Sportfishing Protection Alliance v. Georgia Pacific Gypsum LLC, et

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al.; USDC, N.D. Cal., Case No. 3:12-cv-06274-SI;

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WHEREAS, CSPA and DEFENDANTS, through their authorized representatives and

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without either adjudication of CSPA’s claims or admission by DEFENDANTS of any alleged

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violation or other wrongdoing, have chosen to resolve in full by way of settlement the

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allegations of CSPA as set forth in CSPA’s 60-Day Notice Letter and Complaint, thereby

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avoiding the costs and uncertainties of further litigation. A copy of the Parties’ proposed

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settlement agreement (“Settlement Agreement”) entered into by and between CSPA and

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DEFENDANTS is attached hereto as Exhibit A and incorporated by reference.

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WHEREAS, CSPA submitted the Settlement Agreement via certified mail, return

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receipt requested, to the U.S. EPA and the U.S. Department of Justice (“the agencies”) and the

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45-day review period set forth at 40 C.F.R. § 135.5 has been completed without objection by

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the agencies.

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NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between

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the Parties that CSPA’s claims, as set forth in its 60-Day Notice Letter and Complaint, be

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dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Parties

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respectfully request an order from this Court dismissing such claims with prejudice. In

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accordance with Paragraph 19(b) of the Settlement Agreement, the Parties also request that this

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Court retain and have jurisdiction over the Parties through September 30, 2015, for the sole

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STIP TO DISMISS; ORDER THEREON

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CASE NO. 3:12-CV-06274-SI

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purpose of resolving any disputes between the parties with respect to enforcement of any

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provision of the Settlement Agreement.

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Dated: July 22, 2013

LAW OFFICES OF ANDREW L. PACKARD

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By:__/s/
_________________
Andrew L. Packard
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE

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Dated: July 22, 2013

COX CASTLE NICHOLSON

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By:__/s/____________________________
Robert Doty (As authorized by L.R. 131)
Attorneys for Defendants
GEORGIA-PACIFIC GYPSUM LLC and
GEORGIA-PACIFIC BUILDING PRODUCTS
LLC

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STIP TO DISMISS; ORDER THEREON

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CASE NO. 3:12-CV-06274-SI

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[PROPOSED] ORDER

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Good cause appearing, and the Parties having stipulated and agreed,
IT IS HEREBY ORDERED that Plaintiff California Sportfishing Protection Alliance’s claims
against Defendants Georgia-Pacific Gypsum LLC and Georgia Pacific Building Products LLC as set
forth in CSPA’s 60-Day Notice Letter and Complaint filed herein, are hereby dismissed with prejudice,
each side to bear their own attorney fees and costs, except as provided for by the terms of the
accompanying Settlement Agreement.
IT IS FURTHER ORDERED that the Court shall retain and have jurisdiction over the Parties
with respect to disputes arising under the Settlement Agreement attached to the Parties’ Stipulation to
Dismiss as Exhibit A until September 30, 2015.
IT IS SO ORDERED.

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7/23/13
Dated: __________________

_____________________________
United States District Court Judge

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STIP TO DISMISS; ORDER THEREON

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CASE NO. 3:12-CV-06274-SI

EXHIBIT A

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ANDREW L. PACKARD (State Bar No. 168690)
LAURIE A. MIKKELSEN (State Bar No. 260313)
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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NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non-profit
corporation,

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Case No. 3:12-cv-06274-SI

SETTLEMENT AGREEMENT

Plaintiff,
vs.

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GEORGIA-PACIFIC GYPSUM LLC, a
Delaware limited liability company;
GEORGIA-PACIFIC BUILDING
PRODUCTS, LLC, a Delaware limited
liability company,

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

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, Georgia-Pacific Gypsum LLC and Georgia-Pacific Building Products, LLC

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(hereinafter “GP” and “Defendants”) own an approximately 37-acre gypsum product manufacturing

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and distribution facility located at 801 Minaker Driver in Antioch, California (the “Facility”);

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

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SETTLEMENT AGREEMENT

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WHEREAS, the Facility collects and discharges storm water from the Facility to the San

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Joaquin River and the Sacramento-San Joaquin River Delta (the “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 October 11, 2012, Plaintiff provided notice of Defendants’ violations

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of the Act (“CSPA Notice Letter”), and of its intention to file suit against Defendants and others, to the

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

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EPA Region IX; the U.S. Attorney General; the Executive Director of the State Water Resources

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Control Board (“State Board”); the Executive Officer of the Regional Water Quality Control Board,

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Central Valley Region (“Regional Board”); and to Defendants, as required by the Act, 33 U.S.C. §

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1365(b)(1)(A) (a true and correct copy of CSPA’s Notice Letter is attached as Exhibit B and

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incorporated herein by reference);

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WHEREAS, Defendants deny the occurrence of the violations alleged in the Notice Letter and

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maintains that GP has complied at all times with the provisions of the General Permit and the Clean

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Water Act;

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WHEREAS, the Parties agree that it is in their mutual interest to resolve the Clean Water Act

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matter as to all entities and persons named in the Notice Letters without litigation and enter into this

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Settlement Agreement (“Agreement”);

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WHEREAS, in order to gain the jurisdiction of the federal court, CSPA filed a complaint

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(“Complaint”) against Defendants in the United States District Court, Eastern District of California, on

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December 11, 2012 (this matter hereinafter referred to as “the Action”);

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WHEREAS, for purposes of this Agreement, the Parties stipulate that venue is proper in this
Court, and that Defendants do not contest the exercise of jurisdiction by this Court to dismiss this

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SETTLEMENT AGREEMENT

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matter with prejudice under the terms of this Agreement;

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

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

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

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Approval Date;”

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

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Court, CSPA shall submit a Notice of Settlement and inform the Court of the expected dismissal date;
AND WHEREAS, upon expiration of the statutory review period, the Parties shall file with

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the Court a Stipulation and Order that shall provide that the Complaint and all claims therein shall be

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dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) and retain jurisdiction

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for the enforcement of this Agreement as provided herein (the date of entry of the Order to dismiss

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shall be referred to herein as the “Court Approval Date”).
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING

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PARTIES AS FOLLOWS:

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I.

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COMMITMENT OF DEFENDANTS
1.

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

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and throughout the term of this Agreement, GP shall continue implementing all measures needed to

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operate the Facility in compliance with the requirements of the General Permit1 and the Clean Water

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Act, subject to any defenses available under the law.

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2.

Implementation of Specific Storm Water Best Management Practices. On or

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before August 30, 2013, GP shall complete the implementation of the following storm water control

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measures/best management practices (“BMPs”):

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A.

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Storm Water Pollution Prevention Plan Mapping. GP will revise the

Facility SWPPP map to display all information required under the General Permit. The
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Defendants agree to comply with the NPDES General Permit for storm water discharges associated with
industrial activities, under Order No. NPDES No. CAS000001, State Water Resources Control Board Water
Quality Order No. 91-13-DWQ, as amended by Order No. 97-03-DWQ, that is current during the lifetime of
this agreement.

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SETTLEMENT AGREEMENT

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map will identify the flow paths of all Facility storm water and all discharge points and

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areas to monitor so as to avoid the creation of new, undesignated discharge points. The

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map will also clearly identify individual drainage sub-areas.

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B.

Inspect, Repair & Maintain Currently Employed BMP Treatment Systems.

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GP will inspect, repair and maintain all structural BMPs currently employed at the Facility,

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including but not limited to (1) attachment of all drain inlet filter bags; (2) placement of

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filter bags in any drain inlet that does not currently have one; and, (3) weekly inspection

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during the wet season and maintenance of all inlets to prevent clogging and to ensure

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functionality.

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C.

Storm Water System Review. GP will conduct a system wide evaluation of

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its storm water collection, conveyance and discharge system to determine what options are

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available and feasible to eliminate, reduce and/or treat its storm water discharge such that

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the Facility will comply with California’s storm water discharge requirements. This

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written evaluation shall include consideration of the relative costs and feasibility of (1)

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installing an infiltration basin at Outfall B sized to handle the flow capacity of the 95th

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percentile of historical rainfall for the region for a 2-year, 24-hour storm event at the

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Facility; (2) installing a treatment and/or filter system at Outfall B sized to handle the flow

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capacity of the 95th percentile of historical rainfall for the region for a 2-year, 1-hour storm

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event at the Facility; and (3) any further alternative measures incorporating infiltration,

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treatment and/or filtration that is properly sized, designed and implemented to achieve

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pollutant concentrations that are below EPA Benchmarks and California Toxics Rule

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levels. Defendants shall provide a copy of the evaluation to CSPA no later than September

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1, 2013, together with Defendants’ selected option or options and a schedule for

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implementation of the selected option or options. GP shall make best efforts to implement

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the selected option or options on or before November 1, 2013; in the event that, despite

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having made best efforts, GP is unable to implement the selected option or options on or

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before November 1, 2013, it shall so notify CSPA of this fact as soon as it becomes

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SETTLEMENT AGREEMENT

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apparent to GP, and shall provide detailed written monthly status updates to CSPA on the

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first of each month, beginning on December 1, 2013 and continuing until the selected

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option or options are fully implemented. All selected options shall be fully implemented

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on or before August 1, 2014, at which point GP shall confirm this fact in writing to CSPA.

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D.

Berms in Area 2: GP will increase berming in the area around Outfall C to

prevent storm water in Area 2 from traveling into Area 1 and discharging out Outfall C.
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Piping. GP will inspect, map, and clean the storm water conveyance pipes

at the facility.
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Housekeeping:

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1. GP will remove or cover stockpiled metal and boneyard materials.

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2. GP will increase tracking control, including improving the Tire Wash to

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eliminate offsite street tracking and establishing measures to limit vehicle tracking

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from Area 2 into all other areas.

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3. GP will employ a regenerative sweeper on all paved surfaces of the Facility.

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This measure will include sweeping the entrance, the area past the railway on

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Minaker Drive, and Minaker Drive for 600 feet in each direction from the Main

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Entrance to the Facility. The sweeping will take place weekly during the Wet

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Season and monthly during the Dry Season.

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4. GP will make spill kits available and use around the Air Compressor.

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G.

Additional BMP measures in second year of Compliance Monitoring: If

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GP’s storm water discharge samples collected during the 2013-2014 Wet Season still

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contain pollutant concentrations above EPA benchmark values, then GP shall evaluate and

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implement additional appropriate measures as agreed upon by both Parties.

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H.

Rain Gauge. GP has a rain gauge onsite and agrees to maintain that rain

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gauge and to record daily rainfall at the Facility and maintain daily records of the rainfall

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recorded by that rain gauge in the Facility SWPPP.

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SETTLEMENT AGREEMENT

3.

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SWPPP Amendments/Additional BMPs. Within 60 days of the Court Approval

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Date for this Agreement, GP shall formally amend the Facility SWPPP to incorporate all of the

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relevant requirements of this Agreement, as well as revise the Facility map attached hereto as Exhibit

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A. These revisions shall reflect all current site conditions and practices and to identify potential

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Contaminants of Concern (“COC”), identify the location of all pervious and impervious areas, drain

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inlets, BMPs, and storm water flow vectors. These revisions shall also provide for weekly monitoring

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and maintenance of all Facility collection and discharge points; and bi-annual storm water

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management training for Facility employees.
4.

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Sampling Frequency. GP shall collect and analyze samples from four (4) storm

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events, as qualified in the General Permit2 for sampling purposes, in the first of two Wet Seasons

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occurring during the term of this Agreement (2013-2014).3 If none of the four samples exceed

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benchmark values, then GP is required to sample at least twice during the second Wet Season

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occurring during the term of this Agreement (2014-2015). If any of the four samples taken during the

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first year of compliance monitoring contain values that exceed benchmark levels, then GP must

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sample four (4) storm events again the second year of compliance monitoring (2014-2015). The storm

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water sample results shall be compared with the values set forth in Exhibit C, attached hereto, and

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incorporated herein by reference. If the results of any such samples exceed the parameter values set

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forth in Exhibit C, GP shall comply with the “Action Memorandum” requirements set forth below.
5.

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

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

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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. General Permit, Section B.5.b.
However, consistent with General Permit Section B.8.b., in the event that GP can demonstrate good cause as to
why it was unable to collect samples of storm water discharges within the first hour of discharges occurring
during an otherwise qualifying storm event, GP may collect storm water discharge samples as soon as
practicable during an otherwise qualifying storm event occurring during daylight operating hours.

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In the event that, despite having made best efforts, GP is unable to implement the measures described in I.2.C
above on or before November 1, 2013, the term of this agreement shall be extended one additional year, to
include the 2015-2016 Wet Season. See Paragraph 11 and fn 4, below.

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SETTLEMENT AGREEMENT

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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) business days of GP’s receipt of the laboratory report from each sampling

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event pursuant to the Notice provisions below.

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“Action Memorandum” Trigger; CSPA Review Of “Action Memorandum”;

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Meet-and-Confer. If any sample taken during the two (2) Wet Seasons referenced in Paragraph 4

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above exceeds the evaluation levels set forth in Exhibit C, or if GP fails to collect and analyze the

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agreed upon number of samples, then GP shall prepare a written statement discussing the

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exceedance(s) and/or failure to collect and analyze samples from the agreed upon number of storm

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events, the possible cause and/or source of the exceedance(s), and additional measures that will be

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taken to address and eliminate future exceedances and/or failure to collect samples (“Action

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Memorandum”). The Action Memorandum shall be provided to CSPA not later than July 15

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following the conclusion of each Wet Season. Recognizing that a SWPPP is an ongoing iterative

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process meant to encourage innovative BMPs, such additional measures may include, but are not

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limited to, taking confirmation samples, further material improvements to the storm water collection

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and discharge system, changing the type and frequency of Facility sweeping, changing the type and

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extent of storm water filtration media or modifying other industrial activities or management practices

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at the Facility. Such additional measures, to the extent feasible, shall be implemented immediately if

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feasible and in no event later than sixty (60) days after the due date of the Action Memorandum.

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Within seven (7) days of implementation, the Facility SWPPP shall be amended to include all

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additional BMP measures designated in the Action Memorandum. CSPA may review and comment

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on an Action Memorandum and suggest any additional pollution prevention measures it believes are

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appropriate and upon request by CSPA, GP agrees to meet and confer in good faith (at the Facility, if

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requested by Plaintiff) regarding the contents and sufficiency of the Action Memorandum. CSPA’s

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failure to comment or make suggestions in response to an Action Memorandum shall not be deemed to

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constitute agreement with any of the proposals set forth in the Action Memorandum.

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SETTLEMENT AGREEMENT

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7.

Inspections During The Term Of This Agreement. In addition to any site

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inspections conducted as part of the settlement process and the meet-and-confer process concerning an

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Action Memorandum as set forth above, GP shall permit representatives of CSPA to perform two (2)

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physical inspections of the Facility during the term of this Agreement. GP will allow a third

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inspection should the Facility exceed any bench mark values after the second inspection. These

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inspections shall be performed by CSPA’s counsel and consultants and may include sampling,

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photographing, and/or videotaping and CSPA shall provide GP with a copy of all sampling reports,

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photographs and/or video. CSPA shall provide at three business days advance notice of such physical

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inspection, except that GP 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, GP shall specify at least three (3) dates

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

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not make any alterations to Facility conditions during the period between receiving CSPA’s initial

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advance notice and the start of CSPA’s inspection that GP would not otherwise have made but for

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receiving notice of CSPA’s request to conduct a physical inspection of the Facility, excepting any

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actions taken in compliance with or required by any applicable laws or regulations. Nothing herein

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shall be construed to prevent GP from continuing to implement any BMPs identified in the SWPPP

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during the period prior to an inspection by CSPA or at any time.

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8.

GP Communications To/From Regional and State Water Boards. During the

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term of this Agreement, GP shall provide CSPA with copies of all documents submitted to, or received

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from, the Regional Water Board or the State Water Board concerning storm water discharges from the

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Facility, including, but not limited to, all documents and reports submitted to the Regional Water

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Board and/or State Water Board as required by the General Permit. Such documents and reports shall

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be provided to CSPA pursuant to the Notice provisions set forth below and contemporaneously with

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GP’s submission(s) to, or, receipt from, such agencies.

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9.

SWPPP Amendments. Pursuant to the Notice provisions set forth below, GP shall

provide CSPA with a copy of any amendments to the Facility SWPPP made during the term of the

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SETTLEMENT AGREEMENT

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Agreement within ten(10) business days of such amendment.

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II.

MITIGATION, COMPLIANCE MONITORING AND FEES AND COSTS
10.

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Mitigation Payment In Lieu Of Civil Penalties. As mitigation to address any

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perceived or potential harms from the Clean Water Act violations alleged in CSPA’s Complaint, and

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without admitting any harm occurred, GP agrees to pay the sum of $50,000, to the Rose Foundation

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for Communities and the Environment (“Rose Foundation”) within 30 days of the Court Approval

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Date for projects to improve water quality in the San Joaquin River and/or the

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Sacramento-San Joaquin River Delta. Payment shall be remitted directly to the Rose Foundation by

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mailing it to: Rose Foundation, Attn: Tim Little, 1970 Broadway, Suite 600, Oakland, CA 94612.
11.

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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 GP’s compliance with this

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Agreement, GP agrees to contribute $10,000 for the first of two Wet Seasons covered by this

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Agreement and $5,000 for the second Wet Seasons ($15,000 total for the life of the Agreement4), to a

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compliance monitoring fund maintained by counsel for CSPA as described below. The first $10,000

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shall be paid within thirty (30) days of the Court Approval Date and the second $5,000 shall be paid

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by December 1, 2013. All such payments shall be payable to “Law Offices of Andrew L. Packard

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Attorney-Client Trust Account.” Compliance monitoring activities may include, but shall not be

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limited to, site inspections, review of water quality sampling reports, review of annual reports,

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discussions with representatives of GP concerning the Action Memoranda referenced above, and

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potential changes to compliance requirements herein, preparation for and participation in meet-and-

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confer sessions, water quality sampling and analysis, and compliance-related activities.
12.

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Fees & Costs. GP agrees to reimburse CSPA in the amount of $35,000 to defray

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

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

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However, in the event that, despite having made best efforts, GP is unable to implement the measures
described in I.2.C above on or before November 1, 2013, GP shall be obligated to contribute an additional
$5,000 to the compliance monitoring fund to cover CSPA’s compliance monitoring costs for the 2015-2016
Wet Season. Such payment shall be due on or before December 1, 2015.

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SETTLEMENT AGREEMENT

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resolution in the public interest. This payment shall be made payable to “Law Offices of Andrew L.

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Packard Attorney-Client Trust Account” and remitted to CSPA’s counsel within ten (10) days of the

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Court Approval Date.

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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 Agreement arises, or

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either Party believes that a breach of this Agreement has occurred, the Parties shall meet and confer

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

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

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

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confer does not resolve the issue, after at least seven (7) days have passed after the meet-and-confer

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

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

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jurisdiction over the Action for the limited purposes of enforcement of the terms of this Agreement.

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

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costs shall be awarded, pursuant to the provisions set forth in the then-applicable federal Clean Water

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Act and Rule 11 of the Federal Rules of Civil Procedure, and applicable case law interpreting such

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provision.

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14.

CSPA’s Waiver and Release. Upon the Court Approval Date of this Agreement,

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

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officers, agents, attorneys, representatives, and employees, releases Defendants and its officers,

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directors, employees, shareholders, parents, subsidiaries, and affiliates, and each of its predecessors,

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successors and assigns, and each of their agents, attorneys, consultants, and other representatives (each

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a “Released Defendant Party”) from, and waives all claims which arise from or pertain to the Action,

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including, without limitation, all claims for injunctive relief, damages, penalties, fines, sanctions,

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mitigation, fees (including fees of attorneys, experts, and others), costs, expenses or any other sum

27

incurred or claimed or which could have been claimed in this Action, for the alleged failure of

28
SETTLEMENT AGREEMENT

1
2

Defendants to comply with the Clean Water Act at the Facility, up to the Court Approval Date.
15.

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

3

any Released Defendant Party under its control, release CSPA (and its officers, directors, employees,

4

members, parents, subsidiaries, and affiliates, and each of their successors and assigns, and its agents,

5

attorneys, and other representative) from, and waives all claims which arise from or pertain to the

6

Action, including all claims for fees (including fees of attorneys, experts, and others), costs, expenses

7

or any other sum incurred or claimed or which could have been claimed for matters associated with or

8

related to the Action.

9

16.

CSPA’s Covenant Not to Sue. For the period beginning on the Court Approval

10

Date of this Agreement and ending on the Termination Date of this Agreement, CSPA agrees that

11

neither CSPA, its officers, executive staff, members of its governing board nor any organization under

12

the control of CSPA, its officers, executive staff, or members of its governing board, will file any

13

lawsuit against Defendants, or against the other entities or persons set forth in the Notice Letters,

14

seeking relief for alleged violation of the Clean Water Act or violation of the General Permit at the

15

Facility. CSPA further agrees that, beginning on the Court Approval Date of this Agreement and

16

ending on the Termination Date of this Agreement, CSPA will not support other lawsuits, by

17

providing financial assistance, personnel time or other affirmative actions, against Defendants, or

18

against the other entities or persons set forth in the Notice Letters, that may be proposed by other

19

groups or individuals who would rely upon the citizen suit provision to challenge Defendants’

20

compliance with the Clean Water Act or the General Permit at the Facility.

21
22

17.

The Parties acknowledge that they are familiar with section 1542 of the California

Civil Code, which provides:

23

A general release does not extend to claims which the creditor does not know or

24

suspect to exist in his favor at the time of executing the release, which if known by him

25

must have materially affected his settlement with the debtor.

26

While CSPA asserts that California Civil Code section 1542 applies to general releases only, and that

27

the release in Paragraph 16 above is a limited release, the Parties hereby waive and relinquish any

28
SETTLEMENT AGREEMENT

1

rights or benefits they may have under California Civil Code section 1542 with respect to any other
claims against each other arising from, or related to, the allegations and claims as set forth in the

2

Notice Letters and/or the Complaint, up to and including the Court Approval Date of this Agreement.

3
18.

4
5
6
7

shall submit this Agreement to the United States Department of Justice (“DOJ”) for the statutory
45-day agency review period set forth in 33 U.S.C. §1365(c) and submit a Notice of Settlement to the
federal District Court.
19.

8
9

a.

b.

12

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

14

terms of this Agreement.

15

19
20
21
22
23
24
25
26
27

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

disputes arising under this Agreement. Nothing in this Agreement shall be construed as a

13

18

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

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

11

17

Within seven (7) days of the expiration of the agency review period, the Parties shall

file with the Court a Stipulation and Order providing that:

10

16

Within five (5) business days of the mutual execution of this Agreement, Plaintiff

IV.

MISCELLANEOUS PROVISIONS
20.

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

costly litigation. Nothing in this Agreement shall be construed as, and Defendants expressly does not
intend to imply, an admission as to any fact, finding, issue of law, or violation of law, nor shall
compliance with this Agreement constitute or be construed as an admission by Defendants of any fact,
finding, conclusion, issue of law, or violation of law. However, this paragraph shall not diminish or
otherwise affect the obligation, responsibilities, and duties of the Parties under this Agreement.
21.

The Agreement shall be effective upon mutual execution by all Parties. The

Agreement shall terminate on the “Termination Date,” which shall be September 30, 2015, unless,
despite having made best efforts, GP is unable to implement the measures described in I.2.C above on
or before November 1, 2013, in which case the “Termination Date” of the agreement shall be
September 30, 2016.

28
SETTLEMENT AGREEMENT

1

22.

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

2

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

3

be valid as an original.

4
5
6

23.

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

unenforceable, the validity of the enforceable provisions shall not be adversely affected.
24.

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

7

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

8

California law, without regarding to conflict of law principles.

9

25.

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

10

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

11

of this Agreement.

12

26.

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

13

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

14

Agreement and its attachments are made for the sole benefit of the Parties, and no other person or

15

entity shall have any rights or remedies under or by reason of this Agreement, unless otherwise

16

expressly provided for therein.

17

27.

Notices. Any notices or documents required or provided for by this Agreement or

18

related thereto that are to be provided to CSPA pursuant to this Agreement shall be hand-delivered or

19

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

20

electronic mail transmission to the email addresses listed below:

21

23

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

24

With copies sent to:

25

Andrew L. Packard
Law Offices of Andrew L. Packard
100 Petaluma Boulevard North, Suite 301
Petaluma, CA 94952
Tel: [phone]

22

26
27
28

SETTLEMENT AGREEMENT

1
2
3
4
5

E-mail: [e-mail]

Any notices or documents required or provided for by this Agreement or related thereto that are to be
provided to Defendants pursuant to this 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:

6

8

Michael Evans
801 Minaker Road
Antioch, California 94509
[e-mail]

9

With copies sent to:

7

10
11
12
13

J. Michael Davis
133 Peachtree Street
Atlanta, Georgia 30303
[e-mail]
Each Party shall promptly notify the other of any change in the above-listed contact information.

14

28.

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

15

29.

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

16

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

17

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

18

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

19

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

20

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

21

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

22

diligence has been unable to overcome, the Force Majeure.

23

30.

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

24

presented, the Parties shall use their best efforts to work together to modify the Agreement within

25

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

26

in a mutually acceptable manner, this Agreement shall become null and void.

27

31.

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

28
SETTLEMENT AGREEMENT

1

EXHIBIT A – Facility Site Map

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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27
28
SETTLEMENT AGREEMENT

1

EXHIBIT B – CWA Notice of Violation and Intent to Sue Letter

2
3
4
5
6
7
8
9
10
11
12
13
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15
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18
19
20
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28
SETTLEMENT AGREEMENT

October 11, 2012
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Robert Cyphers, Plant Manager
Jeremiah Davis, Environmental Engineer and Facility Contact
Michael Woody, Senior Environmental Engineer and Facility Contact
Fred Curcio, Plant Manager
Georgia-Pacific Building Products LLC
Georgia-Pacific Gypsum LLC
801 Minaker Drive
P.O. Box 460
Antioch, CA 94509
Rick Turner, Facility Operator Contact
Manoj Mathur, Facility Operator Contact
Georgia-Pacific Building Products LLC
555 Park Place
Atlanta, GA 30303
CT Corporation System, Agent for Service of Process
Georgia-Pacific Gypsum LLC
818 W. 7th Street, 2nd Floor
Los Angeles, CA 90017
CT Corporation System, Agent for Service of Process
Georgia-Pacific Building Products LLC
818 W. 7th Street, 2nd Floor
Los Angeles, CA 90017
CT Corporation System, Agent for Service of Process
Georgia-Pacific Gypsum LLC
1201 Peachtree St. NE
Atlanta, GA 30361

Notice of Violation and Intent To File Suit
October 11, 2012
Page 2 of 18

CT Corporation System, Agent for Service of Process
Georgia-Pacific Building Products LLC
1201 Peachtree St. NE
Atlanta, GA 30361
Re:

Notice of Violations and Intent to File Suit Under the Federal Water
Pollution Control Act

Dear Messrs. Cyphers, Davis, Woody, Curcio, Turner and Mathur:
I am writing on behalf of the California Sportfishing Protection Alliance
(“CSPA”) in regard to violations of the Clean Water Act (“the Act”) occurring at the
Georgia-Pacific Gypsum LLC and Georgia-Pacific Building Products LLC (“GeorgiaPacific”) facility, located at 801 Minaker Drive in Antioch, California (“the Facility”).
The WDID identification number for the Facility is 5S07I020674. CSPA is a non-profit
public benefit corporation dedicated to the preservation, protection and defense of the
environment, wildlife and natural resources of the San Joaquin River, the SacramentoSan Joaquin River Delta and other California waters. This letter is being sent to you as
the responsible owner, officer, or operator of the Facility. Unless otherwise noted,
Georgia-Pacific Gypsum LLC, Georgia-Pacific Building Products LLC, Robert Cyphers,
Jeremiah Davis, Michael Woody, Fred Curcio, Rick Turner and Manoj Mathur shall
hereinafter be collectively referred to as Georgia-Pacific.
This letter addresses Georgia-Pacific’s unlawful discharges of pollutants from the
Facility to the City of Antioch’s storm water drainage system, the San Joaquin River and
the Sacramento-San Joaquin Delta. This letter addresses the ongoing violations of the
substantive and procedural requirements of the Clean Water Act and National Pollutant
Discharge Elimination System (“NPDES”) General Permit No. CAS000001, State Water
Resources Control Board Water Quality Order No. 91-13-DWQ, as amended by Order
No. 97-03-DWQ (“General Permit” or “General Industrial Storm Water Permit”).
Section 505(b) of the Clean Water Act provides that sixty (60) days prior to the
initiation of a civil action under Section 505(a) of the Act (33 U.S.C. § 1365(a)), a citizen
must give notice of intent to file suit. Notice must be given to the alleged violator, the
U.S. Environmental Protection Agency (“the EPA”), and the State in which the violations
occur.
As required by the Clean Water Act, this Notice of Violation and Intent to File
Suit provides notice of the violations that have occurred, and continue to occur, at the
Facility. Consequently, Georgia-Pacific Gypsum LLC, Georgia-Pacific Building
Products LLC, Robert Cyphers, Jeremiah Davis, Michael Woody, Fred Curcio, Rick
Turner and Manoj Mathur are hereby placed on formal notice by CSPA that, after the
expiration of sixty (60) days from the date of this Notice of Violation and Intent to File
Suit, CSPA intends to file suit in federal court against Georgia-Pacific Gypsum LLC,
Georgia-Pacific Building Products LLC, Robert Cyphers, Jeremiah Davis, Michael

Notice of Violation and Intent To File Suit
October 11, 2012
Page 3 of 18

Woody, Fred Curcio, Rick Turner and Manoj Mathur under Section 505(a) of the Clean
Water Act (33 U.S.C. § 1365(a)), for violations of the Clean Water Act and the General
Permit. These violations are described more fully below.
I.

Background.

Georgia-Pacific owns and operates a gypsum product manufacturing facility
located in Antioch, California. The Facility falls under Standard Industrial Classification
(“SIC”) Code 3275 (“Concrete, Gypsum, and Plaster Products”). The Facility is
primarily used to handle, store, manufacture and transport gypsum and gypsum
production-related materials such as wallboard. Other activities at the Facility include
the use and storage of heavy machinery and motorized vehicles, including trucks used to
haul materials to, from and within the Facility.
Georgia-Pacific discharges storm water from its approximately 37-acre Facility
through at least three (3) discharge points into the City of Antioch’s storm water drainage
system, the San Joaquin River and the Sacramento-San Joaquin Delta (“the Delta”). The
Delta and its tributaries are waters of the United States within the meaning of the Clean
Water Act.
The Central Valley Regional Water Quality Control Board (“Regional Board” or
“Board”) has established water quality standards for the San Joaquin River, Sacramento
River and the Delta in the “Water Quality Control Plan for the Sacramento River and San
Joaquin River Basins,” generally referred to as the Basin Plan. The Basin Plan includes a
narrative toxicity standard which states that “[a]ll waters shall be maintained free of toxic
substances in concentrations that produce detrimental physiological responses in human,
plant, animal, or aquatic life.” For the Delta, the Basin Plan establishes standards for
several metals, including (at a hardness of 40 mg/L): arsenic – 0.01 mg/L; copper – 0.01
mg/L; iron – 0.3 mg/L; and zinc – 0.1 mg/L. Id. at III-3.00, Table IIII-1. The Basin Plan
states that “[a]t a minimum, water designated for use as domestic or municipal supply
(MUN) shall not contain lead in excess of 0.015 mg/L.” Id. at III-3.00. The Basin Plan
also provides that “[t]he pH shall not be depressed below 6.5 nor raised above 8.5.” Id. at
III-6.00. The Basin Plan also prohibits the discharges of oil and grease, stating that
“[w]aters shall not contain oils, greases, waxes, or other materials in concentrations that
cause nuisance, result in a visible film or coating on the surface of the water or on objects
in the water, or otherwise adversely affect beneficial uses.” Id. at III-5.00.
The Basin Plan also provides that “[a]t a minimum, water designated for use as
domestic or municipal supply (MUN) shall not contain concentrations of chemical
constituents in excess of the maximum contaminant levels (MCLs).” Id. at III-3.0. The
EPA has issued a recommended water quality criterion for aluminum for freshwater
aquatic life protection of 0.087 mg/L. EPA has established a secondary MCL, consumer
acceptance limit for aluminum of 0.05 mg/L to 0.2 mg/L. EPA has established a
secondary MCL, consumer acceptance limit for zinc of 5.0 mg/L. EPA has established a
primary MCL, consumer acceptance limit for Sulfate of 500 mg/L. EPA has established

Notice of Violation and Intent To File Suit
October 11, 2012
Page 4 of 18

a secondary MCL, consumer acceptance limit for Sulfate of 250 mg/L. EPA has
established a primary MCL, consumer acceptance limit for the following: chromium –
0.1 mg/L; copper – 1.3 mg/L; and lead – 0.0 (zero) mg/L. See
http://www.epa.gov/safewater/ mcl.html. The California Department of Health Services
has also established the following MCL, consumer acceptance levels: aluminum – 1
mg/L (primary) and 0.2 mg/L (secondary); chromium – 0.5 mg/L (primary); copper – 1.0
mg/L (secondary); iron – 0.3 mg/L; and zinc – 5.0 mg/L. See California Code of
Regulations, title 22, §§ 64431, 64449.
EPA has also issued numeric receiving water limits for certain toxic pollutants in
California surface waters, commonly known as the California Toxics Rule (“CTR”). 40
CFR § 131.38. The CTR establishes the following numeric limits for freshwater surface
waters: arsenic – 0.34 mg/L (maximum concentration) and 0.150 mg/L (continuous
concentration); chromium (III) – 0.550 mg/L (maximum concentration) and 0.180 mg/L
(continuous concentration); copper – 0.013 mg/L (maximum concentration) and 0.009
mg/L (continuous concentration); lead – 0.065 mg/L (maximum concentration) and
0.0025 mg/L (continuous concentration).
The Regional Board has also identified waters of the Delta as failing to meet
water quality standards for unknown toxicity, electrical conductivity, numerous
pesticides and mercury. See http://www.swrcb.ca.gov/tmdl/docs/2002reg5303dlist.pdf.
Discharges of listed pollutants into an impaired surface water may be deemed a
“contribution” to the exceedance of CTR, a water quality standard, and may indicate a
failure on the part of a discharger to implement adequate storm water pollution control
measures. See Waterkeepers Northern Cal. v. Ag Indus. Mfg., Inc., 375 F.3d 913, 918
(9th Cir. 2004); see also Waterkeepers Northern Cal. v. Ag Indus. Mfg., Inc., 2005 WL
2001037 at *3, 5 (E.D. Cal., Aug. 19, 2005) (finding that a discharger covered by the
General Industrial Storm Water Permit was “subject to effluent limitation as to certain
pollutants, including zinc, lead, copper, aluminum and lead” under the CTR).
The General Permit incorporates benchmark levels established by EPA as
guidelines for determining whether a facility discharging industrial storm water has
implemented the requisite best available technology economically achievable (“BAT”)
and best conventional pollutant control technology (“BCT”). The following benchmarks
have been established for pollutants discharged by Georgia-Pacific: iron – 1.0 mg/L and
total suspended solids – 100.0 mg/L. The State Water Quality Control Board has also
proposed adding a benchmark level for specific conductance, 200 µmhos/cm. Additional
EPA benchmark levels have been established for other parameters that CSPA believes are
being discharged from the Facility, including but not limited to, aluminum – 0.75 mg/L;
arsenic – 0.16854 mg/L; copper – 0.0636 mg/L; cyanide – 0.0636 mg/L; chemical
oxygen demand – 120 mg/L; magnesium – 0.0636 mg/L; manganese – 1.0 mg/L; lead
0.0816 mg/L; mercury – 0.0024 mg/L; and zinc – 0.117 mg/L.
II.

Georgia-Pacific Is Violating the Act by Discharging Pollutants From the
Facility to Waters of the United States.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 5 of 18

Under the Act, it is unlawful to discharge pollutants from a “point source” to
navigable waters without obtaining and complying with a permit governing the quantity
and quality of discharges. Trustees for Alaska v. EPA, 749 F.2d 549, 553 (9th Cir. 1984).
Section 301(a) of the Clean Water Act prohibits “the discharge of any pollutants by any
person . . .” except as in compliance with, among other sections of the Act, Section 402,
the NPDES permitting requirements. 33 U.S.C. § 1311(a). The duty to apply for a
permit extends to “[a]ny person who discharges or proposes to discharge pollutants. . . .”
40 C.F.R. § 122.30(a).
The term “discharge of pollutants” means “any addition of any pollutant to
navigable waters from any point source.” 33 U.S.C. § 1362(12). Pollutants are defined
to include, among other examples, a variety of metals, chemical wastes, biological
materials, heat, rock, and sand discharged into water. 33 U.S.C. § 1362(6). A point
source is defined as “any discernable, confined and discrete conveyance, including but
not limited to any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants are
or may be discharged.” 33 U.S.C. § 1362(14). An industrial facility that discharges
pollutants into a navigable water is subject to regulation as a “point source” under the
Clean Water Act. Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d
305, 308 (9th Cir. 1993). “Navigable waters” means “the waters of the United States.”
33 U.S.C. § 1362(7). Navigable waters under the Act include man-made waterbodies and
any tributaries or waters adjacent to other waters of the United States. See Headwaters,
Inc. v Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001).
The San Joaquin River and the Delta and its tributaries are waters of the United
States. Accordingly, Georgia-Pacific’s discharges of storm water containing pollutants
from the Facility are discharges to waters of the United States.
CSPA is informed and believes, and thereupon alleges, that Georgia-Pacific has
discharged and is discharging pollutants from the Facility to waters of the United States
every day that there has been or will be any measurable flow of water from the Facility
since October 11, 2007. Each discharge on each separate day is a separate violation of
Section 301(a) of the Act, 33 U.S.C. § 1311(a). These unlawful discharges are ongoing.
Consistent with the five-year statute of limitations applicable to citizen enforcement
actions brought pursuant to the federal Clean Water Act, Georgia-Pacific is subject to
penalties for violations of the Act since October10, 2007.
III.

Pollutant Discharges in Violation of the NPDES Permit.

Georgia-Pacific has violated and continues to violate the terms and conditions of
the General Permit. Section 402(p) of the Act prohibits the discharge of storm water
associated with industrial activities, except as permitted under an NPDES permit such as
the General Permit. 33 U.S.C. § 1342. The General Permit prohibits any discharges of
storm water associated with industrial activities that have not been subjected to BAT or
BCT. Effluent Limitation B(3) of the General Permit requires dischargers to reduce or

Notice of Violation and Intent To File Suit
October 11, 2012
Page 6 of 18

prevent pollutants in their storm water discharges through implementation of BAT for
toxic and nonconventional pollutants and BCT for conventional pollutants. BAT and
BCT include both nonstructural and structural measures. General Permit, Section A(8).
Conventional pollutants are TSS, Oil & Grease (“O&G”), pH, biochemical oxygen
demand (“BOD”), and fecal coliform. 40 C.F.R. § 401.16. All other pollutants are either
toxic or nonconventional. Id.; 40 C.F.R. § 401.15.
Further, Discharge Prohibition A(1) of the General Permit provides: “Except as
allowed in Special Conditions (D.1.) of this General Permit, materials other than storm
water (non-storm water discharges) that discharge either directly or indirectly to waters of
the United States are prohibited. Prohibited non-storm water discharges must be either
eliminated or permitted by a separate NPDES permit.” Special Conditions D(1) of the
General Permit sets forth the conditions that must be met for any discharge of non-storm
water to constitute an authorized non-storm water discharge.
Receiving Water Limitation C(1) of the General Permit prohibits storm water
discharges and authorized non-storm water discharges to surface or groundwater that
adversely impact human health or the environment. Receiving Water Limitation C(2) of
the General Permit also prohibits storm water discharges and authorized non-storm water
discharges that cause or contribute to an exceedance of any applicable water quality
standards contained in a Statewide Water Quality Control Plan or the applicable Regional
Board’s Basin Plan.
As recently as May 1, 2008, the Regional Board, Region 5, sent Georgia-Pacific a
letter (“the May 2008 letter”) conveying its conclusion that, among other things, GeorgiaPacific’ 2006-2007 Annual Report contained evidence that the BMPs then in effect at the
Facility were not sufficient to reduce pollutant concentrations below EPA benchmark
levels. The May 2008 letter informed Georgia-Pacific that its 2006-2007 Annual Report
indicated storm water samples in excess of US EPA benchmark values for certain
parameters. Based on this evidence, the Regional Board ordered Georgia-Pacific to: (1)
Review previously submitted Annual Reports and identify the number of consecutive
years that the Facility has exceeded benchmark levels; (2) Identify sources of pollutants
at the Facility that contributed to the exceedances; (3) Review current BMPs; (4) Modify
existing BMPs or implement additional BMPs to reduce or eliminate discharge of
pollutants; and (5) Modify the SWPPP and Monitoring Plan for the Facility and maintain
a copy of these required documents at the Facility.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 7 of 18

Based on its review of available public documents, CSPA is informed and
believes: (1) that Georgia-Pacific continues to discharge these very same pollutants in
excess of benchmarks and (2) that Georgia-Pacific has failed to implement BMPs
adequate to bring its discharge of these and other pollutants in compliance with the
General Permit. Georgia-Pacific’ ongoing violations are discussed further below.
A.

Georgia-Pacific Has Discharged Storm Water Containing Pollutants
in Violation of the Permit.

Georgia-Pacific has discharged and continues to discharge storm water with
unacceptable levels of Iron (Fe), Total Suspended Solids (TSS), Sulfate (SO2−4) and
Specific Conductance (SC) in violation of the General Permit. These high pollutant
levels have been documented during significant rain events, including the rain events
indicated in the table of rain data attached hereto as Attachment A. Georgia-Pacific’
Annual Reports and Sampling and Analysis Results confirm discharges of materials other
than storm water and specific pollutants in violation of the Permit provisions listed above.
Self-monitoring reports under the Permit are deemed “conclusive evidence of an
exceedance of a permit limitation.” Sierra Club v. Union Oil, 813 F.2d 1480, 1493 (9th
Cir. 1988).
The following discharges of pollutants from the Facility have violated Discharge
Prohibitions A(1) and A(2) and Receiving Water Limitations C(1) and C(2) of the
General Industrial Storm Water Permit:
1.

Date

Discharge of Storm Water Containing Iron (Fe) at
Concentration in Excess of Applicable EPA Benchmark Value.
Sampling
Location

Parameter

Concentration
in Discharge

Benchmark
Value

4/25/2012

B

Fe

8.22 mg/L

1.0 mg/L

10/3/2011

B

Fe

2.09 mg/L

1.0 mg/L

2/25/2011

B

Fe

3.86 mg/L

1.0 mg/L

4/28/2010

B

Fe

2.8 mg/L

1.0 mg/L

1/3/2008

B

Fe

9.2 mg/L

1.0 mg/L

10/12/2007

B

Fe

1.9 mg/L

1.0 mg/L

Notice of Violation and Intent To File Suit
October 11, 2012
Page 8 of 18

2.

Date

Discharge of Storm Water Containing Total Suspended Solids
(TSS) at Concentration in Excess of Applicable EPA
Benchmark Value.
Parameter

4/25/2012

Sampling
Location
B

1/3/2008
10/12/2007

Date

Benchmark
Value
100 mg/L

B

3.

TSS

Concentration
in Discharge
230 mg/L

TSS

190 mg/L

100 mg/L

B

TSS

200 mg/L

100 mg/L

Discharge of Storm Water Containing Specific Conductance
(SC) at Concentration in Excess of Proposed EPA Benchmark
Value.
Sampling
Location

Parameter

Concentration in
Discharge

4/25/2012

B

SC

1980 µmhos/cm

Proposed
Benchmark
Value
200 µmhos/cm

10/3/2011

B

SC

1980 µmhos/cm

200 µmhos/cm

2/25/2011

B

SC

636 µmhos/cm

200 µmhos/cm

4/28/2010

B

SC

940 µmhos/cm

200 µmhos/cm

10/19/2009

B

SC

830µmhos/cm

200 µmhos/cm

4/7/2009

B

SC

890 µmhos/cm

200 µmhos/cm

11/26/2008

B

SC

1900 µmhos/cm

200 µmhos/cm

1/3/2008

B

SC

870 µmhos/cm

200 µmhos/cm

10/12/2007

B

SC

2100 µmhos/cm

200 µmhos/cm

Notice of Violation and Intent To File Suit
October 11, 2012
Page 9 of 18

4. Discharge of Storm Water Containing Sulfate (SO2−4) at
Concentration in Excess of EPA and/or California Water
Quality MCL Primary and/or Secondary Value.
Date

Parameter

4/25/2012

Sampling
Location
B

10/3/2011

B

SO2−4

2/25/2011

B

SO2−4

4/28/2010

B

SO2−4

10/19/2009

B

SO2−4

4/7/2009

B

SO2−4

11/26/2008

B

SO2−4

1/3/2008

B

SO2−4

10/12/2007

B

SO2−4

SO2−4

Concentration Water Quality
in Discharge
Value
1180 mg/L
Primary -500 mg/L
Secondary -250 mg/L
1100 mg/L
Primary -500 mg/L
Secondary -250 mg/L
315 mg/L
Primary -500 mg/L
Secondary -250 mg/L
480 mg/L
Primary -500 mg/L
Secondary -250 mg/L
370 mg/L
Primary -500 mg/L
Secondary -250 mg/L
410 mg/L
Primary -500 mg/L
Secondary -250 mg/L
910 mg/L
Primary -500 mg/L
Secondary -250 mg/L
460 mg/L
Primary -500 mg/L
Secondary -250 mg/L
1200 mg/L
Primary -500 mg/L
Secondary -250 mg/L

CSPA’s investigation, including its review of Georgia-Pacific’s analytical results
documenting pollutant levels in the Facility’s storm water discharges well in excess of
EPA’s benchmark values for iron and total suspended solids, the State Board’s proposed
benchmark levels for specific conductivity, and the EPA’s water quality primary and
secondary MCLs for Sulfate indicates that Georgia-Pacific has not implemented BAT
and BCT at the Facility for its discharges of Iron (Fe), Total Suspended Solids (TSS),
Specific Conductance (SC), Sulfate (S) and other pollutants, in violation of Effluent
Limitation B(3) of the General Permit. Georgia-Pacific was required to have
implemented BAT and BCT by no later than October 1, 1992 or the start of its
operations. Thus, Georgia-Pacific is discharging polluted storm water associated with its
industrial operations without having implemented BAT and BCT.
CSPA is informed and believes that Georgia-Pacific has known that its storm
water contains pollutants at levels exceeding EPA Benchmarks and other water quality
criteria since at least October 11, 2007. CSPA alleges that such violations also have
occurred and will occur on other rain dates, including during every single significant rain

Notice of Violation and Intent To File Suit
October 11, 2012
Page 10 of 18

event that has occurred since October 11, 2007, and that will occur at the Facility
subsequent to the date of this Notice of Violation and Intent to File Suit. Attachment A,
attached hereto, sets forth each of the specific rain dates on which CSPA alleges that
Georgia-Pacific has discharged storm water containing impermissible levels of Iron (Fe),
Total Suspended Solids (TSS), Specific Conductance (SC), Sulfate (S) and other
unmonitored pollutants (e.g. aluminum (Al) and zinc (Zn)) in violation of Discharge
Prohibitions A(1) and A(2) and Receiving Water Limitations C(1) and C(2) of the
General Permit.
These unlawful discharges from the Facility are ongoing. Each discharge of
storm water containing any pollutants from the Facility without the implementation of
BAT/BCT constitutes a separate violation of the General Permit and the Act. Consistent
with the five-year statute of limitations applicable to citizen enforcement actions brought
pursuant to the federal Clean Water Act, Georgia-Pacific is subject to penalties for
violations of the General Permit and the Act since October 11, 2007.
B.

Georgia-Pacific Has Failed to Implement an Adequate Monitoring &
Reporting Plan.

Section B of the General Industrial Storm Water Permit requires that dischargers
develop and implement an adequate Monitoring and Reporting Plan by no later than
October 1, 1992 or the start of operations. Sections B(3), B(4) and B(7) require that
dischargers conduct regularly scheduled visual observations of non-storm water and
storm water discharges from the Facility and to record and report such observations to the
Regional Board. Section B(5)(a) of the General Permit requires that dischargers “shall
collect storm water samples during the first hour of discharge from (1) the first storm
event of the wet season, and (2) at least one other storm event in the wet season. All
storm water discharge locations shall be sampled.” Section B(5)(c)(i) further requires
that the samples shall be analyzed for total suspended solids, pH, specific conductance,
and total organic carbon. Oil and grease may be substituted for total organic carbon.
Section B(5)(c)(ii) of the General Permit further requires dischargers to analyze samples
for all “[t]oxic chemicals and other pollutants that are likely to be present in storm water
discharges in significant quantities.” Section B(10) of the General Permit provides that
“facility operators shall explain how the facility’s monitoring program will satisfy the
monitoring program objectives of [General Permit] Section B.2.”
Based on its investigation, CSPA is informed and believes that Georgia-Pacific
has failed to develop and implement an adequate Monitoring & Reporting Plan. First,
based on its review of publicly available documents, CSPA is informed and believes that
Georgia-Pacific has failed to collect storm water samples during at least two qualifying
storms events, as defined by the General Permit, during the past five Wet Seasons.
Second, based on its review of publicly available documents, CSPA is informed and
believes that Georgia-Pacific has failed to conduct the monthly visual monitoring of
storm water discharges and the quarterly visual observations of unauthorized non-storm
water discharges required under the General Permit during the past five Wet Seasons.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 11 of 18

Third, based on its review of publicly available documents, CSPA is informed and
believes that for the past five Wet Seasons Georgia-Pacific has failed to analyze samples
for other pollutants that are likely to be present in significant quantities in the storm water
discharged from the Facility. Each of these failures constitutes a separate and ongoing
violation of the General Permit and the Act. Consistent with the five-year statute of
limitations applicable to citizen enforcement actions brought pursuant to the federal
Clean Water Act, Georgia-Pacific is subject to penalties for violations of the General
Industrial Storm Water Permit and the Act since October 11, 2007. These violations are
set forth in greater detail below:
1.

Georgia-Pacific Has Failed to Collect Storm Water Samples
During at Least Two Rain Events In Each of the Last Five Wet
Seasons.

Based on its review of publicly available documents, CSPA is informed and
believes that Georgia-Pacific has failed to collect storm water samples from all discharge
points during at least two qualifying rain events at the Facility during each of the past five
years, as required by the General Permit. For example, CSPA notes that the Annual
Report filed by Georgia-Pacific for the Facility for the 2010-2011 Wet Season reported
that Georgia-Pacific analyzed samples of storm water discharged during only one
qualifying storm event that season.
Georgia-Pacific reported in all five Wet Seasons (i.e., 2007-2008; 2008-2009;
2009-2010; 2010-2011; and 2011-2012 Wet Seasons), that the Facility sampled the first
storm of the season, when in fact it did not sample the first storm of the season during
three of the last five Wet Seasons. For example, Georgia-Pacific reported in its 20092010 Annual Report that it sampled the first storm of the Wet Season, but GeorgiaPacific’ first sample is from October 19, 2009. Based upon its review of publicly
available rainfall data, CSPA is informed and believes that the first storm of the 20092010 Wet Season occurred as early as Tuesday, October 13, 2009, when 3.09” of rain fell
on the Facility. This failure to adequately monitor storm water discharges constitutes
separate and ongoing violations of the General Permit and the Act.
2.

Georgia-Pacific Has Failed to Collect Storm Water Samples
from Each Discharge Point During at Least Two Rain
Events In Each of the Last Five Wet Seasons.

Based on its review of publicly available documents, CSPA is informed and
believes that Georgia-Pacific has failed to collect storm water samples from all discharge
points during at least two qualifying rain events at the Facility during each of the past five
Wet Seasons. Despite acknowledging three discharge points at the Facility, GeorgiaPacific only sampled one discharge point. Further, based on its investigation, CSPA is
informed and believes that storm water discharges from the Facility at points other than
the three sampling/discharge points currently designated by Georgia-Pacific. This failure

Notice of Violation and Intent To File Suit
October 11, 2012
Page 12 of 18

to adequately monitor storm water discharges constitutes separate and ongoing violations
of the General Permit and the Act.
3.

Georgia-Pacific Has Failed to Conduct the Monthly Wet
Season Observations of Storm Water Discharges Required by
the General Permit.

The General Permit requires dischargers to “visually observe storm water
discharges from one storm event per month during the Wet Season (October 1 – May
30).” General Permit, Section B(4)(a). As evidenced by the lack of Facility personnel
documenting their observation of qualified storm events on Form 4 Monthly Visual
Observations contained in Georgia-Pacific’ annual reports for the last five Wet Seasons,
CSPA is informed and believes that Georgia-Pacific has failed to properly conduct this
requirement of the General Permit.
Specifically, Georgia-Pacific failed to conduct monthly visual observations of
discharges from qualifying storm events for most months during any of the past five Wet
Seasons. Instead, Georgia-Pacific has either documented its visual observations of storm
water that discharged during non-qualifying storm events or asserted that a qualifying
storm never occurred at the Facility for most months during the entire Wet Season of
each of the past five years (discussed further below). However, based on publicly
available rainfall data, CSPA is informed and believes that there were many qualifying
storm events during each of these Wet Seasons that Georgia-Pacific could have observed.
For example, Georgia-Pacific reported in its 2011-2012 Annual Report that there were no
discharges during the month of December, 2011, when in fact, it rained 0.17” at the
Facility on Thursday, December 15, 2011. Further, Georgia-Pacific reported in its 20102011 Annual Report that there were no discharges during the month of December, 2010,
when in fact, it rained 0.24” at the Facility on Tuesday, December 14, 2010.GeorgiaPacific’ failure to conduct this required monthly Wet Season visual monitoring extends
back to at least October 11, 2007. Georgia-Pacific’ failure to conduct this required
monthly Wet Season visual monitoring has caused and continues to cause multiple,
separate and ongoing violations of the General Permit and the Act.
4.

Georgia-Pacific Is Subject to Penalties for Its Failure to
Implement an Adequate Monitoring & Reporting Plan Since
October 11, 2007.

CSPA is informed and believes that publicly available documents demonstrate
Georgia-Pacific’ consistent and ongoing failure to implement an adequate Monitoring
Reporting Plan in violation of Section B of the General Permit. For example, while in its
2010-2011 Annual Report Georgia-Pacific only reported having collected samples of
storm water discharged during one qualifying storm event.
Additionally, Georgia-Pacific is in violation of the General Permit’s requirement
that the testing method employed in laboratory analyses of pollutant concentrations

Notice of Violation and Intent To File Suit
October 11, 2012
Page 13 of 18

present in storm water discharged from the Facility be “adequate to satisfy the objectives
of the monitoring program.” General Permit Section B.10.a.iii. Georgia-Pacific
exceeded holding time for pH in nearly every sample taken in any of the last five Wet
Seasons (i.e., 2007-2008; 2008-2009; 2009-2010; 2010-2011; and 2011-2012 Wet
Seasons). The lab reports in each of those Annual Reports identify these holding time
exceedances, which can interfere with the validity of the analysis. Georgia-Pacific is in
violation of the General Permit for failing to employ laboratory test methods and
detection limits that are adequate to, among other things, “ensure that storm water
discharges are in compliance with the Discharge Prohibitions, Effluent Limitations, and
Receiving Water Limitations specified in this General Permit.” General Permit Section
B.2.a. (“Monitoring Program Objectives”).
Accordingly, consistent with the five-year statute of limitations applicable to
citizen enforcement actions brought pursuant to the federal Clean Water Act, GeorgiaPacific is subject to penalties for these violations of the General Permit and the Act since
October 11, 2007.
C.

Georgia-Pacific Has Failed to Implement BAT and BCT.

Effluent Limitation B(3) of the General Permit requires dischargers to reduce or
prevent pollutants in their storm water discharges through implementation of BAT for
toxic and nonconventional pollutants and BCT for conventional pollutants. BAT and
BCT include both nonstructural and structural measures. General Permit, Section A(8).
CSPA’s investigation indicates that Georgia-Pacific has not implemented BAT and BCT
at the Facility for its discharges of Iron (Fe), Total Suspended Solids (TSS), Specific
Conductance (SC), Sulfate (SO2−4) and other unmonitored pollutants in violation of
Effluent Limitation B(3) of the General Permit.
To meet the BAT/BCT requirement of the General Permit, Georgia-Pacific must
evaluate all pollutant sources at the Facility and implement the best structural and nonstructural management practices economically achievable to reduce or prevent the
discharge of pollutants from the Facility. Based on the limited information available
regarding the internal structure of the Facility, CSPA believes that at a minimum
Georgia-Pacific must improve its housekeeping practices, store materials that act as
pollutant sources under cover or in contained areas, treat storm water to reduce pollutants
before discharge (e.g., with filters or treatment boxes), and/or prevent storm water
discharge altogether. Georgia-Pacific has failed to adequately implement such measures.
Georgia-Pacific was required to have implemented BAT and BCT by no later than
October 1, 1992. Therefore, Georgia-Pacific has been in continuous violation of the BAT
and BCT requirements every day since October 1, 1992, and will continue to be in
violation every day that it fails to implement BAT and BCT. Georgia-Pacific is subject
to penalties for violations of the General Permit and the Act occurring since October 11,
2007.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 14 of 18

D.

Georgia-Pacific Has Failed to Develop and Implement an Adequate
Storm Water Pollution Prevention Plan.

Section A(1) and Provision E(2) of the General Permit require dischargers of
storm water associated with industrial activity to develop, implement, and update an
adequate storm water pollution prevention plan (“SWPPP”) no later than October 1,
1992. Section A(1) and Provision E(2) requires dischargers who submitted an NOI
pursuant to Water Quality Order No. 97-03-DWQ to continue following their existing
SWPPP and implement any necessary revisions to their SWPPP in a timely manner, but
in any case, no later than August 9, 1997.
The SWPPP must, among other requirements, identify and evaluate sources of
pollutants associated with industrial activities that may affect the quality of storm and
non-storm water discharges from the facility and identify and implement site-specific
best management practices (“BMPs”) to reduce or prevent pollutants associated with
industrial activities in storm water and authorized non-storm water discharges (General
Permit, Section A(2)). The SWPPP must also include BMPs that achieve BAT and BCT
(Effluent Limitation B(3)). The SWPPP must include: a description of individuals and
their responsibilities for developing and implementing the SWPPP (General Permit,
Section A(3)); a site map showing the facility boundaries, storm water drainage areas
with flow pattern and nearby water bodies, the location of the storm water collection,
conveyance and discharge system, structural control measures, impervious areas, areas of
actual and potential pollutant contact, and areas of industrial activity (General Permit,
Section A(4)); a list of significant materials handled and stored at the site (General
Permit, Section A(5)); a description of potential pollutant sources including industrial
processes, material handling and storage areas, dust and particulate generating activities,
a description of significant spills and leaks, a list of all non-storm water discharges and
their sources, and a description of locations where soil erosion may occur (General
Permit, Section A(6)).
The SWPPP also must include an assessment of potential pollutant sources at the
Facility and a description of the BMPs to be implemented at the Facility that will reduce
or prevent pollutants in storm water discharges and authorized non-storm water
discharges, including structural BMPs where non-structural BMPs are not effective
(General Permit, Section A(7), (8)). The SWPPP must be evaluated to ensure
effectiveness and must be revised where necessary (General Permit, Section A(9),(10)).
Receiving Water Limitation C(3) of the Order requires that dischargers submit a report to
the appropriate Regional Water Board that describes the BMPs that are currently being
implemented and additional BMPs that will be implemented to prevent or reduce the
discharge of any pollutants causing or contributing to the exceedance of water quality
standards.
CSPA’s investigation and review of publicly available documents regarding
conditions at the Facility indicate that Georgia-Pacific has been operating with an
inadequately developed or implemented SWPPP in violation of the requirements set forth

Notice of Violation and Intent To File Suit
October 11, 2012
Page 15 of 18

above. Georgia-Pacific has failed to evaluate the effectiveness of its BMPs and to revise
its SWPPP as necessary. Accordingly, Georgia-Pacific has been in continuous violation
of Section A(1) and Provision E(2) of the General Permit every day since October 1,
1992, and will continue to be in violation every day that it fails to develop and implement
an effective SWPPP. Georgia-Pacific is subject to penalties for violations of the Order
and the Act occurring since October 11, 2007.
E.

Georgia-Pacific Has Failed to Address Discharges Contributing to
Exceedances of Water Quality Standards.

Receiving Water Limitation C(3) requires a discharger to prepare and submit a
report to the Regional Board describing changes it will make to its current BMPs in order
to prevent or reduce the discharge of any pollutant in its storm water discharges that is
causing or contributing to an exceedance of water quality standards. Once approved by
the Regional Board, the additional BMPs must be incorporated into the Facility’s
SWPPP. The report must be submitted to the Regional Board no later than 60-days from
the date the discharger first learns that its discharge is causing or contributing to an
exceedance of an applicable water quality standard. Receiving Water Limitation C(4)(a).
Section C(11)(d) of the Permit’s Standard Provisions also requires dischargers to report
any noncompliance. See also Provision E(6). Lastly, Section A(9) of the Permit requires
an annual evaluation of storm water controls including the preparation of an evaluation
report and implementation of any additional measures in the SWPPP to respond to the
monitoring results and other inspection activities.
As indicated above, Georgia-Pacific is discharging elevated levels of Iron (Fe),
Total Suspended Solids (TSS), Specific Conductance (SC), and Sulfate (SO2−4) and other
unmonitored pollutants that are causing or contributing to exceedances of applicable
water quality standards. For each of these pollutant exceedances, Georgia-Pacific was
required to submit a report pursuant to Receiving Water Limitation C(4)(a) within 60days of becoming aware of levels in its storm water exceeding the EPA Benchmarks and
applicable water quality standards.
Based on CSPA’s review of available documents, Georgia-Pacific was aware of
high levels of these pollutants prior to October 11, 2007. Likewise, Georgia-Pacific has
generally failed to file reports describing its noncompliance with the General Permit in
violation of Section C(11)(d). Lastly, the SWPPP and accompanying BMPs do not
appear to have been altered as a result of the annual evaluation required by Section A(9).
Georgia-Pacific has been in continuous violation of Receiving Water Limitation C(4)(a)
and Sections C(11)(d) and A(9) of the General Permit every day since October 11, 2007,
and will continue to be in violation every day it fails to prepare and submit the requisite
reports, receives approval from the Regional Board and amends its SWPPP to include
approved BMPs. Georgia-Pacific is subject to penalties for violations of the General
Permit and the Act occurring since October 11, 2007.
F.

Georgia-Pacific Has Failed to File Timely, True and Correct Reports.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 16 of 18

Section B(14) of the General Permit requires dischargers to submit an Annual
Report by July 1st of each year to the executive officer of the relevant Regional Board.
The Annual Report must be signed and certified by an appropriate corporate officer.
General Permit, Sections B(14), C(9), (10). Section A(9)(d) of the General Permit
requires the discharger to include in their annual report an evaluation of their storm water
controls, including certifying compliance with the General Industrial Storm Water
Permit. See also General Permit, Sections C(9) and (10) and B(14).
CSPA’s investigation indicates that Georgia-Pacific has submitted incomplete
Annual Reports and purported to comply with the General Permit despite significant
noncompliance at the Facility. For example, Georgia-Pacific reported in every Annual
Report filed for the past five Wet Seasons (i.e., 2007-2008; 2008-2009; 2009-2010; 20102011; and 2011-2012) that it observed the first storm of every Wet Season. However, as
discussed above, based on CSPA’s review of publicly available rainfall data, CSPA
believes this cannot possibly be true.
Further, Georgia-Pacific failed to comply with the monthly visual observations of
storm water discharges requirement for every single Annul Report filed for the Facility
for each of the last five years. In the last five Wet Seasons, Georgia-Pacific never made
more than four monthly visual observations of storm water discharges, out of the eight
month Wet Season. In the 2011-2012 Annual Report, Georgia-Pacific observed only one
storm event, in April 2012, and failed to observe discharge for any of the other seven
months in the 2011-2012 Wet Season. However, based on publicly available rainfall
data, CSPA is informed and believes that storm events produced discharge at the Facility
in most, if not every month of the 2011-2012 Wet Season. For example, CSPA is
informed and believes that there were several qualifying storm events that fell on the
Facility in February 2012, including, but not necessarily limited to, Tuesday, February 7,
2012, on which date it rained 0.45”. Further, in the 2010-2011 Annual Report, GeorgiaPacific reported “no discharge” observed for every single month of the Wet Season.
However, CSPA is informed and believes that on Tuesday, March 15, 2011, 0.19” of rain
fell on the Facility.
These are only a few examples of how Georgia-Pacific has failed to file
completely true and accurate reports. As indicated above, Georgia-Pacific has failed to
comply with the Permit and the Act consistently for at least the past five years; therefore,
Georgia-Pacific has violated Sections A(9)(d), B(14) and C(9) & (10) of the Permit every
time Georgia-Pacific submitted an incomplete or incorrect annual report that falsely
certified compliance with the Act in the past years. Georgia-Pacific’ failure to submit
true and complete reports constitutes continuous and ongoing violations of the Permit and
the Act. Georgia-Pacific is subject to penalties for violations of Section (C) of the
General Permit and the Act occurring since October 11, 2007.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 17 of 18

IV.

Persons Responsible for the Violations.

CSPA puts Georgia-Pacific Gypsum LLC, Georgia-Pacific Building Products
LLC, Robert Cyphers, Jeremiah Davis, Michael Woody, Fred Curcio, Rick Turner and
Manoj Mathur under on notice that they are the persons responsible for the violations
described above. If additional persons are subsequently identified as also being
responsible for the violations set forth above, CSPA puts Georgia-Pacific Gypsum LLC,
Georgia-Pacific Building Products LLC, Robert Cyphers, Jeremiah Davis, Michael
Woody, Fred Curcio, Rick Turner and Manoj Mathur on notice that it intends to include
those persons in this action.
V.

Name and Address of Noticing Party.

Our name, address and telephone number is as follows: California Sportfishing
Protection Alliance, Bill Jennings, Executive Director; 3536 Rainier Avenue, Stockton,
CA 95204; Phone: [phone].

VI.

Counsel.

CSPA has retained legal counsel to represent it in this matter. Please direct all
communications to:
Andrew L. Packard
Erik M. Roper
Emily J. Brand
Law Offices of Andrew L. Packard
100 Petaluma Boulevard, Suite 301
Petaluma, CA 94952

VII.

Tel. [phone]
Fax. [phone]
Email:
[e-mail]
[e-mail]
[e-mail]

Penalties.

Pursuant to Section 309(d) of the Act (33 U.S.C. § 1319(d)) and the Adjustment
of Civil Monetary Penalties for Inflation (40 C.F.R. § 19.4) each separate violation of the
Act Georgia-Pacific Gypsum LLC, Georgia-Pacific Building Products LLC, Robert
Cyphers, Jeremiah Davis, Michael Woody, Fred Curcio, Rick Turner and Manoj Mathur
to a penalty of up to $32,500 per day per violation for all violations occurring after March
15, 2004, and $37,500 per day per violation for all violations occurring after January 12,
2009, during the period commencing five years prior to the date of this Notice of
Violations and Intent to File Suit. In addition to civil penalties, CSPA will seek
injunctive relief preventing further violations of the Act pursuant to Sections 505(a) and
(d) (33 U.S.C. §1365(a) and (d)) and such other relief as permitted by law. Lastly,
Section 505(d) of the Act (33 U.S.C. § 1365(d)), permits prevailing parties to recover
costs and fees, including attorneys’ fees.

Notice of Violation and Intent To File Suit
October 11, 2012
Page 18 of 18

CSPA believes this Notice of Violations and Intent to File Suit sufficiently states
grounds for filing suit. We intend to file a citizen suit under Section 505(a) of the Act
against Georgia-Pacific Gypsum LLC, Georgia-Pacific Building Products LLC, Robert
Cyphers, Jeremiah Davis, Michael Woody, Fred Curcio, Rick Turner and Manoj Mathur
and their agents for the above-referenced violations upon the expiration of the 60-day
notice period. If you wish to pursue remedies in the absence of litigation, we suggest that
you initiate those discussions within the next 20 days so that they may be completed
before the end of the 60-day notice period. We do not intend to delay the filing of a
complaint in federal court if discussions are continuing when that period ends.
Sincerely,

Bill Jennings, Executive Director
California Sportfishing Protection Alliance

SERVICE LIST
Lisa Jackson, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Jared Blumenfeld
Administrator, U.S. EPA – Region 9
75 Hawthorne Street
San Francisco, CA, 94105
Eric Holder
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Dorothy R. Rice, Executive Director
State Water Resources Control Board
1001 I Street Sacramento, CA 95814
P.O. Box 100
Sacramento, CA 95812-0100
Pamela Creedon, Executive Officer
Regional Water Quality Control Board
Central Valley Region
11020 Sun Center Drive #200
Rancho Cordova, CA 95670-6114

ATTACHMENT A
Notice of Intent to File Suit, Georgia-Pacific (Antioch, CA)
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Nov.
Nov.
Nov.
Dec.
Jan.
Jan.
Jan.
Jan.
Jan.
Feb.
Feb.
Mar.
Mar.
Mar.
Mar.
Mar.
April
April
April
April

15
18
19
16
04
05
28
03
04
05
06
05
19
24
15
19
20
21
22
23
07
29
16
24
25
27
31
10
12
13
25

2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012
2012

* Dates gathered from publicly available rain and weather data collected at stations located near the
Facility.

EXHIBIT C

1
2
3

Parameter

Value

4

pH

6.0 – 9.0 s.u.

5

Total Suspended Solids

100 mg/L

6

Specific Conductance

200 mg/L

7

Oil & Grease

15 mg/L

8

Zinc

0.117 mg/L

9

Aluminum

0.75 mg/L

10

Selenium

0.2385 mg/L

11

Manganese

1.0 mg/L

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SETTLEMENT AGREEMENT