California Sportfishing Protection Alliance v. Mendocino Forest Products Company LLC

Filing 50

ORDER granting 49 Stipulated Amended Consent Agreement. Signed by Judge Vince Chhabria on February 11, 2019. (vclc2S, COURT STAFF) (Filed on 2/11/2019)

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PILLSBURY WINTHROP SHAW PITTMAN LLP
WAYNE M. WHITLOCK (SBN 137409)
[e-mail]
2550 Hanover Street
Palo Alto, CA 94304-1115
Telephone:
[phone]
Facsimile:
[phone]
MARK E. ELLIOTT (SBN 157759)
[e-mail]
725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MENDOCINO FOREST PRODUCTS
COMPANY, LLC

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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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Plaintiff,

Case No. 3:17-CV-01223 (VC)
STIPULATION AMENDING CONSENT
AGREEMENT; [PROPOSED] ORDER
THEREON

v.
MENDOCINO FOREST PRODUCTS
COMPANY, LLC

(Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 to 1388)

Defendant.

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Plaintiff California Sportfishing Protection Alliance (“CSPA”) and Defendant Mendocino

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Forest Products Company, LLC (“MFP”) (collectively the "Parties") in the above-captioned action

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stipulate and agree to the following Amendment of Consent Agreement.

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WHEREAS, CSPA is a non-profit public benefit corporation dedicated to the

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preservation, protection, and defense of the environment, wildlife, and natural resources of

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California’s waters;

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STIPULATION AMENDING CONSENT
AGREEMENT
Case No. 3:17-CV-01223 (VC)

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WHEREAS, MFP owns and/or operates an approximately 176-acre facility at 850 Kunzler

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Ranch Road, in Ukiah, California where it conducts various sawmill and planning mill activities

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including log storage and handling, milling of lumber, lumber planing, fenceline operations, wood

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surface protection, lumber drying, lumber storage and shipping, maintenance of the manufacturing

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and rolling stock equipment and systems, and wood treating (collectively, the “Facility”);

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WHEREAS, CSPA and MFP entered into a Consent Agreement settling CSPA’s

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allegations of MFP’s non-compliance with the Clean Water Act on November 14, 2017 (“Consent

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Agreement”); See, ECF Dkt. No. 48.

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WHEREAS, on January 5, 2018 the Court entered an order granting the Parties’ December

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29, 2017 stipulation to dismiss the action with prejudice under FRCP 41(a)(2), with the Court

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retaining jurisdiction over the parties for the purpose of resolving any disputes between the Parties

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with respect to enforcement of any provision of the Consent Agreement until November 30, 2020,

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ECF Dkt. No. 48;

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WHEREAS, Paragraph I.2 of the Consent Agreement set forth commitments of MFP,

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including the implementation of numerous Best Management Practices (“BMPs”) intended to

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eliminate or reduce pollutants in MFP’s storm water discharges to the Russian River;

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WHEREAS, during implementation of those BMPs, MFP notified CSPA that certain

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changes were necessary due to circumstances beyond MFP’s control that it encountered when

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work began on the original BMPs. In addition, MFP notified MFP of certain other changes that

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would be operationally superior for Facility storm water management. CSPA has fully reviewed

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and concurred with these changes, and the Parties have agreed to incorporate them into this

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Stipulation Amending Consent Agreement1;
WHEREAS, on October 1, 2018, MFP provided CSPA with a memorandum

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memorializing its Level 1 Exceedance Response Action (“ERA”) Evaluation for Total Suspended

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While this stipulation changes the BMPs that will be implemented in certain drainage areas in
2018, it does not amend the implementation deadlines, which remain October 1, 2018 as per the
original Consent Agreement.
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STIPULATION AMENDING CONSENT
AGREEMENT
Case No. 3:17-CV-01223 (VC)

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Solids as required by Section XII.C.1 of the Revised General Permit. BMPs added to the MFP

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Facility’s Stormwater Pollution Prevention Plan (“SWPPP”) pursuant to the Level 1 ERA

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Evaluation necessitate changes in the SWPPP Site Map. The Parties have agreed to incorporate

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conforming changes to Exhibit A, 2018 Facility Map and other applicable Consent Agreement

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Exhibits in this Stipulation Amending Consent Agreement (“Stipulated Amendment”); and

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WHEREAS, Paragraph 28 of the Consent Agreement provides that it may be amended
only by a writing signed by the Parties or their authorized representatives; and,
WHEREAS, within five (5) calendar days of mutual execution, this Agreement shall be

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submitted to the Attorney General, United States Department of Justice, Citizen Suit Coordinator

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and the Administrator, Environmental Protection Agency, for the 45-day statutory review period,

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pursuant to 33 U.S.C. § 1365(c).

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NOW, THEREFORE, THE PARTIES STIPULATE AS FOLLOWS:

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1.

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Paragraph I.2(o) of the Consent Agreement is replaced by the following:
(o)

Drainage Areas 008, 019 and 022. The DPs for 008, 019 and 022 shall remain

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separate and sampled at their current location for the 2017-2018 Reporting Year. On or

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before October 1, 2018, MFP shall combine DAs 008 and 022, and all storm water from

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former DA 008 shall be routed to and sampled at DP 022. Drainage Area 019 shall remain

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separate and sampled at DP 019.

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2.

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Drainage Area 022

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Paragraph I.2(q) of the Consent Agreement is replaced by the following:

(q)

Construction of New Northern Infiltration BMP in DA 022. On or before

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October 1, 2018, MFP shall construct a new infiltration BMP adjacent to the north end of DA

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022 (formerly DA 008). See Exhibit A, 2018 Facility Map for location of the northern

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infiltration BMP and Exhibit C, Infiltration BMPs Dimensions Table for approximate

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dimensions. MFP shall prepare construction drawings for this infiltration BMP (formerly DA

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STIPULATION AMENDING CONSENT
AGREEMENT
Case No. 3:17-CV-01223 (VC)

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008 Infiltration BMP), with a level of detail similar to those as-built drawings prepared under

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Paragraph I.2(l), above, and provide them to CSPA by June 1, 2018 pursuant to the notice

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provisions below. The northern infiltration BMP shall connect to an existing infiltration BMP

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in DA 022 (the southern infiltration BMP), and excess storm water, if any, shall discharge via

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DP 022. See Exhibit A, 2018 Facility Map.

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3.

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Paragraphs I.2(t)-(x) of the Consent Agreement are replaced by the following:
(t)

Combination of Drainage Areas 008 and 022. On or before October 1, 2018,

MFP shall combine DAs 008 and 022 as described in Paragraph I.2(o) by connecting the two
infiltration BMPs located within these drainage areas. See Exhibit A, 2018 Facility Map.

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(u)

[Removed]

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(v)

Installation of Berms Along Hensley Creek. On or before October 1, 2018,

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MFP shall add berms along Hensley Creek as needed to direct all sheet flow to the infiltration

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BMPs discussed in (q) above. See Exhibit A, 2018 Facility Map.

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(w)

Reestablishment of Discharge Point 022. On or before October 1, 2018, MFP

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shall relocate and reestablish DP 022 at the existing infiltration BMP in DA 022 (the southern

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infiltration BMP described in item (q) above) and reconfigure berms as necessary to direct

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sheet flow to the infiltration BMP. See Exhibit A, 2018 Facility Map.

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(x)

[Removed]

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4.

Paragraphs I.2(ee)-(gg) of the Consent Agreement are replaced by the following:
(ee)

Combination of Drainage Areas 001 and 017. On or before October 1, 2018,

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MFP shall regrade as needed to combine DAs 001 and 017. MFP shall route storm water

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from existing DAs 001 and 017 under the railroad to the new DA 024 RR-East Infiltration

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BMP. See Exhibit A, 2018 Facility Map.

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(ff)

Construction of Drainage Area 024 RR-East Infiltration BMP. On or before

October 1, 2018, MFP shall construct a new infiltration BMP located between the railroad

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STIPULATION AMENDING CONSENT
AGREEMENT
Case No. 3:17-CV-01223 (VC)

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tracks and DAs 015 and 016.

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(gg)

Rerouting of Storm water Flows from DAs 001 and 017. On or before October

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1, 2018, MFP shall reroute drainage from the new DA 024 RR-East Infiltration BMP to the

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East Field Infiltration BMP for further infiltration and ultimate discharge at DP 024. When

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this reconfiguration is complete, DAs 001 and 017 will become part of DA 024. See Exhibit

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A, 2018 Facility Map for the locations and Exhibit C, Infiltration BMPs Dimensions

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Table for the approximate dimensions of these BMPs.

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5.

Exhibit A, 2018 Facility Site Map; Exhibit C, Infiltration BMPs Dimensions

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Table, and Exhibit H, Sampling Parameters of the Consent Agreement are replaced by the

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attached Exhibits A, C and H of the same titles; each replacement exhibit has been updated for

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consistency with the changes described herein.

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6.

Separate from the reimbursement of attorneys’ fees as provided for in Paragraph 12 in

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the Consent Agreement and, without revising or amending the same, MFP agrees to reimburse

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CSPA in the amount of $6,000 to defray CSPA’s reasonable investigative, expert, consultant, and

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attorneys’ fees and costs, and all other costs incurred as a result of negotiating this Addendum. Such

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payment shall be made payable to the “Law Offices of Andrew L. Packard Attorney Client Trust

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Account” and remitted to the firm within ten (10) day of the Parties’ filing of this Stipulated

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Amendment.

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7.

All other terms of the Consent Agreement and other Exhibits thereto remain in full

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force and effect.

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STIPULATION AMENDING CONSENT
AGREEMENT
Case No. 3:17-CV-01223 (VC)

DATED:

February 11, 2019

NO

5

The Honorable E R
N
United States District Judge

hhabr ia

H

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RT

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ince C
J u d ge V

D IS T IC T
R

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R NIA

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FO

3

ERED

O ORD
IT IS S

LI

PURSUANT TO STIPULATION, IT IS SO ORDERED.

A

S

UNIT
ED

2

RT
U
O

1

S DISTRICT
TE
C
TA

OF

C

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[PROPOSED] ORDER RE STIPULATION
AMENDING CONSENT AGREEMENT
Case No. 3:17-CV-01223 (VC)

EXHIBIT A – 2018 Facility Map

E

!
D
(

011

E

Lumber
Storage

E

Chip
Bins

Drainage
Area 025
(former 012)
(See Note 4)

E EE

%

%

025

E

Maintenance
Shop

E

Lumber
Storage

Chip
Bins

015

Boneyard

Sta
t

West Field

Drainage
Area 023

024

023

North State

East Field
Infiltration BMP
(Drainage Area 024)
(See Notes 2 & 3)

Drainage Area 024
(former 001) (See Note 3)

eS
t.

Stormwater
Diversion
Valve
East Field
Infiltration
BMP

Russian River

RR-East
Infiltration
BMP

Air Dry Yard

Drainage
Area 015

Dry
Kiln
Drainage
Area 016

Infiltration Trench

Northern
Infiltration
BMP

Drainage
Southern Area 022
Infiltration
BMP

022

!
D
(

Drainage
Area 025

E

Remanufacturing

E

Forestry
Building

!
.

%
E

Drainage
Area 011

Boneyard
Shipping
Area Truck Gas and Diesel
Shop
Fueling Area
Oil/Water
Separator

E

Drainage
Planer
Area 022
Mill
(former 008)
(See Note 5)

E

Fenceline

E

Storage
Drainage Lumber
Area 025 Storage
(former 004)
(See Note 4)

Chip
Bins

!
D
(
019

E

Nor Cal

!
D
(
Lumber
Storage

!
D
(

Drainage
Area 019

E

Drainage
Area 020

016

E

Run-on

Blocked Ditch

Sealed Drain Inlet

l

%

E
Storage

E

Bermed Drop Inlet

E
!
D
(
E
"
)

020

006

!
D
(
Drainage
Area 024 Millwright
Shop
(former 017)
(See Note 3)
g RR-West
ildin Infiltration
r Bu
Sorte
BMP

Log Yard

018E Drainage
Area 024
(former 002)
(See Note 2)

"
)
E

Railroad

Incisor
Building

Drainage
Area 006

E

Wood
Treating
Plant

Pipe to Tanks

Run-on

Water Tanks

Pond

!
D
(

Aboveground Pipe to Pond

mil
Saw

%

Pipe to Pond

Log Yard
(See Note 2)

%

%

Lu
St mbe
or
ag r
e

Drainage
Area 018
018W

N.

%

Path: X:\B70039\Maps\2018\10\ExhibitA_2018_Facility_Map_2018-10-31.mxd

!
.

He

!
D
(

k

%

n sl
ey C
re e

Pallini La
ne

Railroad

Run-on

Pump Station

"
)

N

0

2018 Facility Map

800

Exhibit A

Mendocino Forest Products Ukiah Sawmill
Ukiah, CA
31 October 2018
B70039.00

(Scale in Feet)

400

1. Aerial imagery provided by ESRI's ArcGIS Online,
dated 31 October 2017.

Sources

5. Stormwater from the Drainage Area 008 infiltration BMP
("northern infiltration BMP") will be routed through the existing
Drainage Area 022 BMP ("southern infiltration BMP") and ultimately
discharge at Discharge Point 022. When this reconfiguration is
complete, Drainage Area 008 will become part of Drainage Area 022.

4. Stormwater from Drainage Areas 004 and 012 will be diverted to an
infiltration BMP in Drainage Area 025 and ultimately discharge at
Discharge Point 025. When this reconfiguration is complete,
Drainage Areas 004 and 012 will become part of Drainage Area 025.

3. Stormwater from Drainage Areas 017 and 001 will be diverted to
the RR-East infiltration BMP and then on to the East Field for further
infiltration and ultimately discharge at Discharge Point 024. When
this reconfiguration is complete, Drainage Areas 017 and 001 will
become part of Drainage Area 024.

2. Stormwater in the log yard when sprinkler water is not being
applied to the log decks will be diverted to an infiltration BMP
in the East Field and ultimately discharge at Discharge Point 024.
Stormwater in the southeastern log handling and storage area
collected at the pump station will be diverted to an infiltration BMP
in the East Field and ultimately discharge at Discharge Point 024.

1. All locations are approximate.

Notes

BMP = Best Management Practice
WDR = Waste Discharge Requirement

Abbreviations

Facility Boundary

Area subject to WDR

Non-Industrial Area

Areas of Impervious Pavement

Drainage Area

Existing or New/Expanded Infiltration BMP Location

Berm

% Drainage Ditch

Culvert

Stormwater Flow Direction

Run-On Sampling Location
Drop Inlet or Culvert Inlet

Ó
)

Stormwater Monitoring Location

!
D
(
!
.

(All locations, dimensions, and configurations are approximate)

Legend

±

rk r
Fo ve
st R i
Ea sian
s
Ru

!
D
(

!
D
(%

%

!
D
(

EXHIBIT C – Infiltration BMPs Dimensions Table

022

024

52%

Percent

96%
44%
9%
6%

1.7
5.1
21.7
0.6
18.8

East Field Infiltration BMP (3)

Combined 024 (includes former 001,
former 017, former 002, Log Yard, RREast Infiltration BMP and East Field
Infiltration BMP Drainage Areas)
former 004 (3)
former 012 (3)
Combined 025 (includes former 004 and
former 012 Drainage Areas)

73%

1.5

14%

53%

14.7
5.7
22.1

11.6

6.3
5.4

7.0

0.0

1.6
2.3
2.0
0.03

1.1

3.4
7.2
1.3
0.9
0.9

5.2

47%

57%
6%

86%

100%

4%
56%
91%
94%

27%

50%
11%
4%
61%
20%

42%

48%

Percent

10.5

8.4
0.3

42.4

18.8

0.1
2.9
19.7
0.6

0.4

3.4
0.9
0.1
1.4
0.2

3.8

3.5

Acres

Pervious Area

85%

100%
92%

54%

--

100%
100%
100%
--

29%

98%
-79%
100%
3%

71%

72%

Urban
Land (2)

--

---

3%

2%

---100%

71%

-16%
21%
-97%

4%

4%

--

---

44%

98%

-----

--

-84%
----

7%

8%

12%

---

--

--

-----

--

------

--

--

2%

-8%

--

--

-----

--

2%
-----

18%

16%

Pervious Area Predominant Soil Types (1)
XerofluventsRussian
Coal Loam
Xerofluvents
Riverwash
Loam
Complex

Exhibit C - Infiltration BMPs Dimensions Table
Mendocino Forest Products - Ukiah Sawmill, Ukiah, California

6.5

10,460 sq ft

---

--

18.8 acres

---10,400 sq ft

4,200 sq ft

4,400 sq ft
8,800 sq ft
1,200 sq ft
1,400 sq ft
800 sq ft

3,400 sq ft (4)

7.5

---

--

3

---4.5

1

7
9
3
5
3

4

Additional Infiltration Trench:
Approximately 4 ft x 250 ft x 4 ft

6,900 sq ft

41.8

---

--

----25.1
25.1
31.4

35.5

20.9
125.4
27.8
20.9
41.8

25.1

25.1

New/Expanded Infiltration BMP
Dimensions
Percolation
Rate
Depth
Area
(minutes/inch)
(ft)

EKI B70039.00

Page 1 of 1

EKI Environment & Water, Inc.
October 2018

Notes:
1. Soil types for pervious areas were determined based on the USDA's Web Soil Survey website (https://websoilsurvey.sc.egov.usda.gov/) for Mendocino County, Eastern Part and Southwestern Part of Trinity County, California.
2. Urban land does not have a predominant soil type provided in the USDA's Web Soil Survey data. The predominant non-urban soil type in the vicinity is Russian Loam (or Cole Loam, if the East Field Infiltration BMP is excluded).
3. Shaded drainage areas are incorporated into the combined areas and predominant soil types shown below the shading.
4. Area represents the southern infiltration BMP. The total area of the northern and southern infiltration BMPs and infiltration trench in Drainage Area 022 is approximately 11,300 sq ft.
5. Includes area adjacent to the RR-East Infiltration BMP that drains to the infiltration BMP.

43%
94%

49.4

0%

50%
89%
96%
39%
80%

6.9
8.1
1.4
2.3
1.1

Combined 022 (includes former 008
Drainage Area)
011
015
018E
018W
019
former 001 (includes RR-West
Infiltration BMP) (3)
former 017 (3)
former 002 (3)
Log Yard (3)
RR-East Infiltration BMP (3)(5)

3.7

Acres

Impervious Area

58%

7.2

Acres

Total Area

9.0

former 008 (includes Northern
Infiltration BMP) (3)

Drainage Area
Name

Abbreviations:
-- = not applicable
BMP = best management practice
sq ft = square feet

025

EXHIBIT H – Sampling Parameters

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EXHIBIT H – Sampling Parameters

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Parameter

NAL Value

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pH (Field test)

6.0-9.0 s.u.

7

Total Suspended Solids

100 mg/L

8

Oil & Grease

15 mg/L

9

Zinc

0.26 mg/L

Copper (DA 006 only)

0.0332 mg/L

Propiconazole* (at DP 006, 011, 022 and 025 only)

N/A

Chemical Oxygen Demand

120 mg/L

Dioxin** (at DP 022 and 023 only)

N/A

10
11
12
13
14
15
16

*This parameter may be eliminated from the sampling required under this Agreement as

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follows. In the event that four consecutive samples at a given discharge point are “nondetects” for the parameter at issue, sampling for that parameter at that Discharge Point may be
discontinued.
** The term ‘dioxins’ as used in this Agreement refers to the total toxic equivalency (TEQ),
calculated using the 2005 World Health Organization toxic equivalency factors (TEFs),
adopted by the California Office of Environmental Health Hazard Assessment in 2011, of 17
specific chlorinated dibenzodioxins and chlorinated dibenzofurans analyzed using US EPA
Method 1613. This parameter may be eliminated from the sampling required under this
Agreement in the event that two consecutive samples at the specified discharge point(s) have
values less than or equal to samples taken concurrently from the Russian River upstream of the
discharge and within 200 yards of the Facility.

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