Californians for Alternatives to Toxics v. Kernen Construction Co. et al

Filing 126

ORDER granting 113 Motion to Approve Proposition 65 Settlement with AMENDED EXHIBITS. Signed by Judge Yvonne Gonzalez Rogers on 11/13/17. (fs, COURT STAFF) (Filed on 11/13/2017)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
7

CALIFORNIANS FOR ALTERNATIVES TO
TOXICS,
Plaintiff,

8
v.
9
10

KERNEN CONSTRUCTION CO., ET AL.,
Defendants.

CASE NO. 16-cv-04007-YGR
ORDER GRANTING PLAINTIFF'S MOTION TO
APPROVE PROPOSITION 65 SETTLEMENT
[CALIFORNIA HEALTH & SAFETY CODE
SECTION 25249.7(F)(4)]
Re: Dkt. No. 113

United States District Court
Northern District of California

11
12

Plaintiff Californians for Alternatives to Toxics filed its Motion to Approve Proposition 65

13

Settlement on September 11, 2017. (Dkt. No. 113.) The matter came on for hearing on November

14

7, 2017. Plaintiff appeared by and through its counsel, Andrew L. Packard and David Williams.

15

Defendants appeared by and through their counsel, Allison Jackson.

16

Having carefully considered the papers submitted on this motion, including the

17

supplemental memorandum of points and authorities in support of the motion (Dkt. No. 123), and

18

the hearing held on November 7, 2017, the Court GRANTS plaintiff’s motion. Specifically, the

19

Court makes the following findings as to the proposed Consent Agreement (“Consent

20

Agreement”), attached hereto as Exhibit 1, pursuant to California Health & Safety Code Section

21

25249.7(f)(4):

22
23

(a) The warning requirement of Chapter 6.6 of the Health & Safety Code does not apply to the
instant settlement;

24

(b) The award of attorney’s fees is reasonable under California law; and,

25

(c) The penalty amount is reasonable based on the criteria set forth in California Health &

26

Safety Code Section 25249.7(b)(2).

27

The corrected paragraph in plaintiff’s supplemental memorandum of points and authorities

28

in support of the motion (Dkt. No. 123) shall be deemed to replace the corresponding paragraph in

1
2

plaintiff’s original memorandum. (Dkt. No. 114.)
Pursuant to the parties’ Consent Agreement, the Court DISMISSES WITH PREJUDICE

3

plaintiff’s Clean Water Act claims and retains jurisdiction over the enforcement of the Consent

4

Agreement as provided therein.

5

The Clerk of the Court shall close the file.

6

This order terminates Docket No. 113.

7

IT IS SO ORDERED.

8

Dated: November 13, 2017
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2

EXHIBIT 1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

ANDREW L. PACKARD (State Bar No. 168690)
WILLIAM N. CARLON (State Bar No. 305739)
Law Offices of Andrew L. Packard
245 Kentucky Street, Suite B3
Petaluma, CA 94952
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
WILLIAM VERICK (State Bar No. 140972)
Klamath Environmental Law Center
1126 16th Street, Suite 204
Arcata, CA 95521
Tel: [phone]
Fax: [phone]
Email: [e-mail]
DAVID WILLIAMS (State Bar No. 144479)
Law Offices of David Williams
1990 N. California Blvd., 8th Floor
Walnut Creek, CA 94596
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
CALIFORNIANS FOR
ALTERNATIVES TO TOXICS
ALLISON G. JACKSON (State Bar No. 157078)
Harland Law Firm LLP
622 H Street
Eureka, CA 95501-1026
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants
KERNEN CONST. CO.; BEDROCK INVESTMENTS LLC;
SCOTT FARLEY; and KURT KERNEN
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

22
23

CALIFORNIANS FOR ALTERNATIVES
TO TOXICS, a non-profit corporation,

24
25
26
27

Plaintiff,
vs.

Case No. 4:16-CV-04007-YGR
CONSENT AGREEMENT
(Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 to 1387)

KERNEN CONSTRUCTION CO.,
BEDROCK INVESTMENTS, LLC, KURT

28
CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

KERNEN, and SCOTT FARLEY,
Defendants.

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

WHEREAS, Plaintiff Californians for Alternatives to Toxics (hereinafter “CATs”) is a
non-profit public benefit corporation dedicated to the preservation, protection, and defense of the
environment, wildlife, and natural resources of California’s waters;
WHEREAS, Defendants Kernen Construction Co., Bedrock Investments, LLC, Kurt Kernen,
and Scott Farley (hereinafter “Kernen” or “Defendants”) own and/or operate an approximately 37-acre
facility at 2350 Glendale Drive in McKinleyville, California which includes storage and
manufacturing of rock aggregate products, storing of scrap roofing shingles, storing of scrap metal,
and storage of soil and organic debris (collectively, the “Facility”) (a map of the Facility is attached
hereto as Exhibit A and incorporated herein by reference);
WHEREAS, CATs and Defendants collectively shall be referred to as the “Parties;”
WHEREAS, the Facility collects and discharges storm water from the Facility into Hall
Creek, which is a tributary of the Mad River; the Blue Lake hydrologic sub area of the Mad River
hydrologic unit is a source of domestic and municipal public drinking water;
WHEREAS, storm water discharges associated with industrial activity are regulated pursuant
to the National Pollutant Discharge Elimination System (“NPDES”), General Permit No. CAS000001,
State Water Resources Control Board (“State Board”) Water Quality Order No. 14-57-DWQ, issued
pursuant to Section 402(p) of the Clean Water Act (“Act”), 33 U.S.C. §1342(p), (hereinafter “General
Permit”) and, prior to July 1, 2015, were regulated by Water Quality Order No. 91-13-DWQ, as
amended by Water Quality Order 92-12-DWQ and 97-03-DWQ;
WHEREAS, on or about May 13, 2016, Plaintiff provided notice of Defendants’ violations of
the Act (“Clean Water Act Notice Letter”), and of its intention to file suit against Defendants to the
Administrator of the United States Environmental Protection Agency (“EPA”); the Administrator of
EPA Region IX; the U.S. Attorney General; the Executive Director of the State Board; the Executive

27
28
-2CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

WHEREAS, on or about July 15, 2016, CATs filed a complaint against Defendants in the

1
2

United States District Court, Northern District of California (this matter is hereinafter referred to as

3

“the Action”);
WHEREAS, on or about August 8, 2016, CATs filed a first amended complaint (“First

4
5

Amended Complaint”) incorporating a Proposition 65 claim in the Action upon the expiration of the

6

Proposition 65 Notice Letter;

7

WHEREAS, the parties agree that Defendants entering into this Consent Agreement is not any

8

admission of liability by Defendants regarding the claims made by Plaintiff in the complaint filed July

9

15, 2016 nor the First Amended Complaint filed August 8, 2016.

10

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

11

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

12

matter with prejudice under the terms of this Agreement;
WHEREAS, within five (5) calendar days of mutual execution, this Agreement shall be

13
14

submitted to the United States Department of Justice for the 45-day statutory review period, pursuant

15

to 33 U.S.C. § 1365(c);

16

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

17

Court, CATs shall notify the Court of the expected date of the expiration of the statutory review period

18

identified above;

19

AND WHEREAS, within ten (10) calendar days of expiration of the statutory review period, ,

20

the Parties shall file with the Court a Stipulation and Order that shall provide that the Clean Water Act

21

claims therein shall be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2)

22

concurrently with the District Court’s retention of jurisdiction for the enforcement of this Agreement

23

as provided herein (the date of entry of the Order to dismiss the Clean Water Act claims shall be

24

referred to herein as the “Court Approval Date”).

25
26

NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING
PARTIES AS FOLLOWS:

27

I.

COMMITMENTS OF DEFENDANTS

28
-4CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

1.

Compliance with General Permit and the Clean Water Act. Throughout the term

2

of this Agreement, Kernen shall continue implementing all measures needed to operate the Facility in

3

compliance with the requirements of the General Permit, the Clean Water Act and Proposition 65,

4

subject to any defenses available under the law.

5

2.

Implementation of Specific Storm Water Best Management Practices. Unless

6

otherwise indicated below, on or before October 1, 2017, Kernen shall complete the implementation

7

and incorporation into the Facility’s Storm Water Pollution Prevention Plan (“SWPPP”) of the

8

following storm water source control measures/Best Management Practices (“BMPs”) at the Facility:

9
10
11

(a)

Mandatory Minimum Best Management Practices. Kernen shall implement all

mandatory minimum BMPs set forth in Section X.H of the General Permit;
(b)

Containment of Discharges From The Aggregate Processing and Stock Storage

12

Area (“Upper Yard”). Defendants agree to construct a continuous impermeable berm, comprised of

13

either asphalt/concrete or soil, around the southern and western perimeters of the Upper Yard; see

14

continuous berm identified on the Facility Map attached hereto as Exhibit A). The berm shall be

15

constructed to prevent the discharge of storm water from anywhere along this perimeter, other than at

16

the discharge points shown on Exhibit A and designated as discharge points in the Facility SWPPP.

17

(c)

Elimination of Discharges from Entry Gate in the Northwest Corner of the Upper

18

Yard. Defendants agree to construct a four inch, “speed bump” style berm across the entire entry gate

19

in the Northwest corner of the Upper Yard in order to prevent discharges from occurring at this point.

20

(d)

Reconstruction of Discharge Point No.1 & Sampling Location for Sampling Point No.

21

1. Defendants agree to reconstruct this discharge point to collect and discharge all flows from the

22

three large drop inlets on the eastern half of the Upper Yard. Defendants shall submit to Plaintiff

23

drawings of their plan no later than September 1, 2017. Plaintiff shall have 45 days to review,

24

comment and either consent or disagree. In the event Plaintiff disagrees, the parties shall have

25

14 days to submit letters explaining their positions to the Honorable Joseph Spero. Chief

26

Magistrate Spero shall render a final binding, non-appealable decision. Monitoring samples for

27

these flows shall be taken at Sampling Point No. 1, as that location is designated on Exhibit

28
-5CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

A.
(e)

2

Employee Parking Lot Discharges. Defendants agree to maintain structural BMPs in

3

the Employee Parking Lot area (identified on the Facility Map attached hereto as Exhibit A) such that

4

no storm water associated with industrial activities commingles with exempted storm water flows in,

5

or discharges from, the Employee Parking Lot area. In the event that CATs can demonstrate that this

6

is occurring, Defendants shall be in material breach of this Agreement and subject to the imposition of

7

an additional mitigation payment to the Rose Foundation in an amount to be determined by the Parties

8

through the dispute resolution procedures set forth herein.
(f)

9

Advanced Filtration at All Discharge Points to Address COD, Al, Fe, Zn and Cu

10

Exceedances. Defendants agree to install, at each Facility discharge point on the Upper Yard, a

11

sediment catchment system functionally equivalent2 to Ultra-Pipe Socks, Ultra-Drain Guards and

12

Filtrexx EnviroSoxx, as appropriate, and to install a metal-absorbing filtration sock functionally

13

equivalent to UltraTech’s Ultra-Filter Sock, with heavy metal removal media as the last filtration

14

medium prior to discharge3;
(g)

15

Active Stockpile & Debris Management. Defendants agree to install

16

Filtrexx EnviroSoxx to control and manage each Facility stockpile or debris pile (including but

17

not limited to concrete, aggregate, gravel, soil, compost, wood debris, shingles, scrap metal, or

18

any other debris). (See Exhibit A for the location of each such pile, and its associated BMPs

19

as described herein.) These filtration socks shall be placed on the down gradient half of each

20

such pile such that all storm water flowing from the pile receives filtration through the socks.

21
22
23
24
25
26
27

As used in this Agreement, “functionally equivalent” shall mean that, in the event that Defendants
elect to use any alternative products not specified herein, they shall confer with Plaintiff in good faith
to obtain Plaintiff’s prior written agreement before use.
2

3

All storm water management products called for in this Agreement shall be used in accordance with
the manufacturer’s directions, and cleaned and inspected on a monthly basis during the Wet Season.
All such cleaning and inspections shall be logged with the date and the name of the individual
undertaking the cleaning or inspections; the logs shall be incorporated into and stored with the
SWPPP.

28
-6CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

If the metal socks do not work to reduce pollutant concentrations to below the Evaluation

2

Levels set forth in Exhibit D during the July 1-December 31, 2017 reporting period (or if

3

Defendants fail to collect all samples required under this Agreement during this reporting

4

period), then Defendants also agree to contain each such Facility stockpile or debris pile

5

within straw wattles (or their functional equivalent) and to access the active piles only from an

6

area uphill to the active pile. These containment wattles shall be installed on or before January

7

15, 2018.

8

(h)

9

Inactive Stockpiles and Debris Management. Kernen’s inactive stockpiles

and debris are designated on the Facility Site Map, attached as Exhibit A. Defendants agree

10

to contain all inactive stock piles and debris within a continuous and unbroken set of straw

11

wattles (or the functional equivalent) during the period from September 15th to May 15th.

12

(i)

Metal Parts & Equipment Storage. Defendants agree to store on pallets or

13

4 x 4 blocks (or the functional equivalent) all metal parts, equipment, non-debris (which

14

exempts scrap metal pile designated in Exhibit A), and any other metal objects capable of

15

being stored on pallets or 4 x 4 blocks such that storm water surface flows do not come into

16

contact with these items.

17

(j)

Secondary Containment Around All Oil Drums and Above Ground Storage

18

Tanks (“ASTs”). Defendants agree to install secondary containment, of sufficient size to

19

contain all spills within the containment structures, based on the volume of the stored

20

materials, for all oil drums and ASTs at the Facility. Defendants further agree that all oil

21

drums at the Facility shall be placed within areas with adequate secondary containment at all

22

times. These locations are identified on the Site Map attached hereto as Exhibit A.

23

(k)

Improved Spill Response/Spill Kits. Defendants agree to install six “spill

24

kits” at the Facility, placed throughout the Facility in a manner to best address spills of fuel,

25

lubricant, waste oil or any other fluid spills. The locations of each these spill kits are

26

identified on the Site Map attached hereto as Exhibit A.

27

(l)

Elimination of All Unauthorized Non-storm Water Discharges from the

28
-7CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

Facility. Defendants agree to eliminate all unauthorized, non-storm water discharges

2

occurring at the Facility, including but not limited to all waters associated with aggregate

3

processing and storage, and all waters associated with truck washing.

4

(m)

Subsurface Re-Routing of Storm Water Flowing From the Oil/Water

5

Separator at the Truck Wash Station. Defendants agree to re-route all storm water flowing

6

from the Oil/Water Separator at the Truck Wash Station (which, if discharged, would be an

7

unauthorized non-storm water discharge under the General Permit) to the County sanity sewer

8

so as to eliminate possible non-storm water discharge from Discharge Point No. 3. Defendants

9

shall confirm the City of Arcata’s agreement to allow this connection in writing to Plaintiff on

10

or before September 15, 2017; in the event that the City has not agreed to allow the connection

11

by that date, the Parties shall meet and confer in good faith in or before October 1, 2017 to

12

address the elimination of unauthorized non-storm water discharges from the Facility before

13

October 31, 2017. The location of this subsurface conveyance connecting to the sanitary

14

sewer is identified on the Site Map attached hereto as Exhibit A.

15
16
17

(n)

Battery Storage. Defendants agree to store all batteries at the Facility

inside at all times.
(o)

Containment of Discharges From The Soil/Gravel Yard and Ground

18

Asphalt Piles (“Lower Yard”). Defendants agree to install Filtrexx EnviroSoxx at the main

19

location where storm water discharges in a southerly direction from the Lower Yard into the

20

East-West Drainage Ditch along the perimeter of the Lower Yard, approximately midway

21

between Noisy Creek and Hall Creek (this location is identified in Exhibit A). Defendants

22

further agree to install Filtrexx EnviroSoxx at each of the existing gravel check dams in the

23

East-West drainage ditch from Noisey Creek to Hall Creek as depicted in Exhibit A.

24

Defendants further agree to prevent all storm water flowing from the Ground Asphalt Piles

25

located near Hall Creek at the Western end of the East-West Drainage from discharging from

26

the Facility.

27

(p)

Cease Accepting Construction and Demolition Debris. Defendants shall

28
-8CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

no longer accept Construction and Demolition debris, including scrap metal, at the Glendale

2

Yard no later than September 1, 2017.

3

(q)

Inspection, Maintenance and Repair of Storm Water Conveyance Located

4

Along East-West Road Forming the Southern Perimeter of the Lower Yard. Defendants agree

5

to inspect this conveyance on a monthly basis during the period from September 15th through

6

May 15th of each year, with all such inspections logged with the date and the name of the

7

individual undertaking the inspections; these logs shall be incorporated into and stored with

8

the SWPPP. Defendants agree to promptly repair any damage to this conveyance, including

9

the adjacent berming, with all such repairs logged with the date and the name of the individual

10

undertaking the repair inspections; these logs shall be incorporated into and stored with the

11

SWPPP.

12

(r)

Facility Mapping. On or before October 1, 2017, Defendants agree to revise the

13

Site Map appended to the current SWPPP to comply with all of the requirements in Section

14

X.E.1-3 of the General Permit and for use in documenting this Agreement.

15

(s)

Increased Employee Training. Kernen shall increase training for Kernen’s

16

Storm Water Pollution Prevention Team (“SWPPT”), including holding one training meeting

17

in January and one training meeting in October of each year. Kernen will incorporate the

18

holding of these twice-annual meetings in its new SWPPP. Kernen shall target training on

19

tracking what storm events qualify for sampling purposes, undertaking visual monitoring, and

20

logging and properly reporting data in the Facility’s SWPPP, Annual Report and the State’s

21

on-line reporting system (“SMARTS”). Kernen shall log these meetings with the date,

22

materials covered, written agenda, and a list of attendees for each, and shall retain these logs

23

with the SWPPP. Kernen shall have at least one member of the SWPPT, that meets the

24

certification qualifications, be formally certified as a Qualified Industrial Storm Water

25

Practitioner (“QISP”);

26
27
28
-9CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

(t)

1

Public Rain Data. Unless Kernen installs and maintains a fully automated

2

rain gauge at the Facility, the Parties shall use publicly-available rain data to resolve any

3

disputes under this Consent Agreement.
3.

4

SWPPP Amendments. On or before October 1, 2017 Defendants shall amend the

5

Facility SWPPP to incorporate all of the relevant requirements of this Agreement and the Revised

6

General Permit. These revisions shall reflect all then-current site conditions and practices and identify

7

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

8

areas, drop inlets, BMPs, and storm water flow vectors. These revisions shall also provide for

9

required data logging; weekly monitoring and maintenance of all Facility collection and discharge

10

points during the Wet Season; and twice-annual storm water management training for Facility

11

employees.
4.

12

Sampling Frequency. For the 2017-2018 and 2018-2019 reporting years ending

13

June 30th (2018 and 2019), Defendants shall collect and analyze samples from three (3) Qualifying

14

Storm Events4 (“QSEs”) within the first half of each reporting year (July 1 to December 31), and three

15

(3) QSEs within the second half of each reporting year (January 1 to June 30). The storm water

16

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

17

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

18

forth in Exhibit D, Defendants shall comply with the “Action Memorandum” requirements set forth

19

below.
5.

20

Sampling Parameters. All six (6) samples in each reporting year shall be analyzed

21

for each of the constituents listed in Exhibit D, including TMDLs, as applicable, by a laboratory

22

accredited by the State of California. All samples collected from the Facility shall be delivered to the

23
24
25
26

4

A Qualifying Storm Event (QSE) is defined in the Revised General Permit as a precipitation event
that: (a) Produces a discharge for at least one drainage area; and (b) is preceded by 48 hours with no
discharge from any drainage area. See Revised General Permit, Section XI(b)(1).

27
28
- 10 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

laboratory as soon as possible to ensure that sample “hold time” is not exceeded. Analytical methods

2

used by the laboratory shall comply with General Permit requirements in regards to both test method

3

and detection limit. See General Permit, Table 2, at 43. Sampling results shall be provided to CATs

4

within ten (10) days of Defendants’ receipt of the laboratory report from each sampling event,

5

pursuant to the Notice provisions below. Defendants agree to analyze all their storm water samples

6

taken during the first reporting period (July 1, 2017-December 31, 2017) for pentachlorophenol

7

(“PCP”) and polychlorinated biphenyl (“PCB”); if all three required samples are taken during QSEs

8

and the results are “non-detect” for PCP or for PCB then testing for that specific pollutant can be

9

discontinued for the term of the Agreement.

10

6.

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

11

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

12

above exceeds the Evaluation Levels set forth in Exhibit D, or if Defendants fail to collect and

13

analyze samples from six (6) QSEs, then Defendants shall prepare a written statement discussing the

14

exceedance(s) and/or failure to collect and analyze samples from six (6) storm events, the possible

15

cause and/or source of the exceedance(s), and additional measures that will be taken to address and

16

eliminate future exceedances and/or failures to collect required samples (“Action Memorandum”).

17

The Action Memorandum shall be provided to CATs not later than July 15 following the

18

conclusion of each reporting year, on July 15, 2018 and July 15, 2019. Such additional measures may

19

include, but are not limited to, further material improvements to the storm water collection and

20

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

21

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

22

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

23

event later than sixty (60) days after the due date of the Action Memorandum. Within seven (7) days

24

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

25

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

26

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

27

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

28
- 11 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

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

2

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

3

7.

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

4

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

5

Action Memorandum as set forth above, Defendants shall permit representatives of CATs to perform

6

up to three (3) physical inspections of the Facility during the term of this Agreement. These

7

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

8

photographing, and/or videotaping and CATs shall provide Defendants with a copy of all sampling

9

reports, photographs and/or video. CATs shall provide at least seventy-two (72) hours advance notice

10

of such physical inspection, except that Defendants shall have the right to deny access if circumstances

11

would make the inspection unduly burdensome and pose significant interference with business

12

operations or any party/attorney, or the safety of individuals. In such case, Defendants shall specify at

13

least three (3) dates within the two (2) weeks thereafter upon which a physical inspection by CATs

14

may proceed. Defendants shall not make any alterations to Facility conditions during the period

15

between receiving CATs’ initial seventy-two (72) hour advance notice and the start of CATs’

16

inspection that Defendants would not otherwise have made but for receiving notice of CATs’ request

17

to conduct a physical inspection of the Facility, excepting any actions taken in compliance with any

18

applicable laws or regulations. Nothing herein shall be construed to prevent Defendants from

19

continuing to implement any BMPs identified in the SWPPP during the period prior to an inspection

20

by CATs or at any time.

21

8.

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

22

this Agreement, Kernen shall provide CATs with courtesy copies of all documents submitted to, or

23

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

24

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

25

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

26

and reports shall be provided to CATs via email pursuant to the Notice provisions set forth below and

27

contemporaneously with Kernen’s submission(s) to, or, receipt from, such agencies.

28
- 12 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

9.

1

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

2

Defendants shall provide CATs with a copy of any amendments to the Facility SWPPP made during

3

the term of the Agreement within fourteen (14) days of such amendment.

4
5

II.

MITIGATION, CIVIL PENALTIES, COMPLIANCE MONITORING AND FEES AND

6

COSTS

7

10.

Mitigation Payment In Lieu Of Civil Penalties Under the Clean Water Act. As

8

mitigation to address any potential harms from the Clean Water Act violations alleged in CATs’ First

9

Amended Complaint, Defendants agree to pay the sum of $90,000 as follows. Defendants agree to

10

pay the sum of $70,000 to the Rose Foundation for Communities and the Environment for projects to

11

improve water quality in the Mad River watershed. Such mitigation payment shall be remitted directly

12

to the Rose Foundation at: Rose Foundation, Attn: Tim Little, 1970 Broadway, Suite 600, Oakland,

13

CA 94612 on March 1, 2018. Defendants further agree to pay the sum of $20,000 to the Redwood

14

Community Action Agency for use by its Natural Resources Services division for projects to improve

15

water quality in the Mad River watershed. Such mitigation payment shall be remitted directly to Val

16

Martinez, Redwood Community Action Agency, at 904 G Street, Eureka, CA 95501 on March 1,

17

2018.

18

11.

Stipulated Civil Penalties For Future Violations of Proposition 65.

19

Proposition 65 provides for civil penalties of up to $2500 per violation per day, pursuant to

20

California Health & Safety Code § 25249.7. In the event that Defendants discharge lead from

21

the facility in a concentration greater than 0.5 micrograms/liter, the Parties stipulate that

22

Defendants shall be liable for a stipulated civil penalty in the amount of $100 per discharge

23

measured and found to exceed this concentration level. Plaintiff shall remit 75% of this

24

amount to the State of California pursuant to Health & Safety Code § 25249.12(c)(1).

25

12.

Proposition 65 Civil Penalty; Additional Settlement Payment (“ASP”) Under

26

Proposition 65. Defendants agree to pay the sum of $25,000 as a civil penalty pursuant to Health &

27

Safety Code § 25249.7(b). Such payment shall be made to the “Law Offices of Andrew L. Packard

28
- 13 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

Attorney-Client Trust Account” on March 1, 2018; Plaintiff’s counsel shall promptly remit 75% of

2

this amount to the State of California pursuant to Health & Safety Code § 25192.

3

Defendants further agree to pay the additional sum of $25,000 in lieu of further civil penalties

4

to Val Martinez, Redwood Community Action Agency, at 904 G Street, Eureka, CA 95501 no later

5

than March 1, 2018. These additional funds shall be used to prevent, reduce or eliminate discharges of

6

Proposition 65-listed substances to sources of drinking water, with priority given to the Mad River

7

watershed, and consistent with the statutory goals of Proposition 65.

8

13.

Compliance Monitoring Funding. To defray CATs’ reasonable investigative,

9

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

10

compliance with this Agreement, Defendants agree to pay reasonable attorneys fees and costs

11

not to exceed $20,000 over the course of two wet seasons (beginning October 1, 2017 ending

12

April 1, 2019). Plaintiff shall submit periodic invoices reflecting attorneys fees and costs

13

expended. Defendants shall have seven days to either pay or dispute those fees. All payments

14

shall be made to the “Law Offices of Andrew L. Packard Attorney-Client Trust Account”. In

15

the event that Defendants dispute the invoice, they shall pay any part of the invoice not disputed

16

within seven days and provide written explanations for the disputed portion of the invoice.

17

Parties shall then meet and confer, in good faith, and if they are unable to resolve the dispute,

18

the Parties shall have fourteen days from the day that the payment was due to submit respective

19

letters to the Honorable Joseph Spero. Judge Spero will issue a final binding non-appealable

20

decision concerning the disputed charges. Compliance monitoring activities may include, but

21

shall not be limited to, site inspections, review of water quality sampling reports, review of

22

annual reports, discussions with Defendants concerning the Action Memoranda referenced

23

above, and potential changes to compliance requirements herein.

24

14.

Reimbursement of Fees & Costs. Defendants agree to reimburse CATs in the

25

amount of $275,000 to defray CATs’ reasonable investigative, expert, consultant, and attorneys’ fees

26

and costs, and all other costs incurred as a result of investigating the activities at the Facility, bringing

27

the action, and negotiating a resolution of this action in the public interest. Such payment shall be

28
- 14 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

made according to the following schedule: $100,000 shall be paid no later than October 1, 2017;

2

$100,000 shall be paid no later than December 1, 2017; and, $75,000 shall be paid no later than

3

September 1, 2018. All payments shall be made payable to the “Law Offices of Andrew L. Packard

4

Attorney Client Trust Account.”

5

III.

6

DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT AGREEMENT

15.

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

7

of values specified in Exhibit D and the Action Memoranda, if a dispute under this Agreement

8

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

9

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

10

a request for a meeting to determine whether a breach has occurred and to develop a mutually

11

agreed upon plan, including implementation dates, to resolve the dispute. If the Parties fail to

12

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

13

have passed after the meet-and-confer occurred or should have occurred, either Party shall be

14

entitled to all rights and remedies under the law, including filing a motion with the District Court

15

of California, Northern District, which shall retain jurisdiction over the Action until the

16

Termination Date for the limited purposes of enforcement of the terms of this Agreement. The

17

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

18

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

19

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

20

interpreting such provision.

21

16.

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

22

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

23

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

24

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

25

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

26

a “Released Defendant Party”) from, and waives all claims arising from or pertaining to the Notice

27

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

28
- 15 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

sanctions, mitigation (excluding all fees of attorneys, experts, and others, and costs per Section II

2

above), or any other sum incurred or claimed or which could have been claimed under the Clean

3

Water Act or Proposition 65 in this Action, for the alleged failure of Defendants to comply with the

4

Clean Water Act or Proposition 65 at the Facility, up to the Court Approval Date.
17.

5

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

6

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

7

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

8

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

9

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

10

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

11

related to the Action.

12

IV.

13

MISCELLANEOUS PROVISIONS

18.

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

14

costly litigation of the Clean Water Act claims in the Action. Nothing in this Agreement shall

15

be construed as, and Defendants expressly do not intend to imply, an admission as to any fact,

16

finding, issue of law, or violation of law, nor shall compliance with this Agreement constitute

17

or be construed as an admission by Defendant of any fact, finding, conclusion, issue of law, or

18

violation of law. However, this paragraph shall not diminish or otherwise affect the obligation,

19

responsibilities, and duties of the Parties under this Agreement.

20
21
22

19.

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

Agreement shall terminate on the “Termination Date,” which shall be February 1, 2020.
20.

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

23

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

24

be valid as an original.

25
26
27

21.

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.
22.

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

28
- 16 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1

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

2

the law of the United Sates, without regarding to choice of law principles.

3

23.

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

4

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

5

of this Agreement.

6

24.

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

7

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

8

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

9

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

10
11

expressly provided for therein.
25.

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

12

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

13

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

14

electronic mail transmission to the email addresses listed below:

15

18

Patricia Clary, Executive Director
Californians for Alternatives to Toxics
600 F Street, Suite 3
Arcata, California 95521
Tel. [phone]
E-mail: [e-mail]

19

With copies sent to:

16
17

20
21
22
23
24
25
26

Andrew L. Packard
Law Offices of Andrew L. Packard
245 Kentucky Street, Suite B3
Petaluma, California 94952
Tel: [phone]
E-mail: [e-mail]
Any notices or documents required or provided for by this Agreement or related thereto that are to be
provided to Defendant 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:

27
28
- 17 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1
2
3

Kurt Kernen
Kernen Construction Company
Bedrock Investments, LLC
2350 Glendale Drive
McKinleyville, CA 95519
E-mail:

4
5
6
7
8
9
10
11

Scott Farley
Kernen Construction Company
2350 Glendale Drive
McKinleyville, CA 95519
E-mail:
With copies sent to:
Allison G. Jackson
Harland Law Firm LLP
622 H Street
Eureka, California 95501
Tel: [phone]
E-mail: [e-mail]

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

Each Party shall promptly notify the other of any change in the above-listed contact information.
26.

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

27.

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

presented, the Parties shall use their best efforts to work together to modify the Agreement within
thirty (30) days so that it is acceptable to the Court. If the Parties are unable to modify this Agreement
in a mutually acceptable manner, this Agreement shall become null and void.
28.

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

shall not be interpreted for or against any Settling Party on the ground that any such party drafted it.
29.

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

upon by the Parties relating to the matters covered by the Agreement, and supersede any and all prior
and contemporaneous agreements, negotiations, correspondence, understandings, and communications
of the Parties, whether oral or written, respecting the matters covered by this Agreement. This
Agreement may be amended or modified only by a writing signed by the Parties or their authorized
representatives.
The Parties hereto enter into this Agreement and respectfully submit it to the Court for its

28
- 18 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

EXHIBIT A – Facility Site Map

18
19
20
21
22
23
24
25
26
27
28
- 20 CONSENT AGREEMENT

Case No. 4:16-CV-04007-YGR

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

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

24
25
26
27
28
SETTLEMENT AGREEMENT

et seq

et seq

See

San Francisco BayKeeper, Inc. v. Tosco Corp

see also Envtl. Def. Ctr., Inc. v. EPA

Ecological Rights Found. v. Pacific Lumber Co

See

see also

Id.

Sierra Club v. Union
Oil

Id

Cal. Sportfishing Prot. Alliance v.
Chico Scrap Metal, Inc.,

Water Quality Control Plan for the North Coast Region (Revised May 2011)

Santa Monica Baykeeper v. Kramer Metals,

See

See id.

May 15, 2011
May 16, 2011
May 17, 2011
May 18, 2011
May 25, 2011
May 26, 2011
May 27, 2011
May 28, 2011
May 29, 2011
May 31, 2011
June 1, 2011
June 2, 2011
June 6, 2011
June 28, 2011
June 29, 2011
July 19, 2011
September 25, 2011
October 3, 2011
October 4, 2011
October 5, 2011
October 6, 2011
October 10, 2011
October 11, 2011
October 12, 2011
November 3, 2011
November 4, 2011
November 6, 2011
November 7, 2011
November 17, 2011
November 18, 2011
November 19, 2011
November 20, 2011
November 23, 2011
November 24, 2011
November 25, 2011
December 15, 2011
December 26, 2011
December 28, 2011
December 29, 2011
December 30, 2011
December 31, 2011
January 5, 2012
May 7, 2013
May 16, 2013

January 19, 2012
January 20, 2012
January 21, 2012
January 22, 2012
January 23, 2012
January 25, 2012
January 26, 2012
January 30, 2012
February 1, 2012
February 8, 2012
February 10, 2012
February 11, 2012
February 13, 2012
February 18, 2012
February 25, 2012
February 29, 2012
March 1, 2012
March 2, 2012
March 6, 2012
March 11, 2012
March 12, 2012
March 13, 2012
March 15, 2012
March 16, 2012
March 17, 2012
March 18, 2012
March 19, 2012
March 20, 2012
March 21, 2012
March 22, 2012
March 24, 2012
March 25, 2012
March 27, 2012
March 28, 2012
March 29, 2012
March 30, 2012
March 31, 2012
April 1, 2012
April 2, 2012
April 4, 2012
April 5, 2012
April 9, 2012
February 18, 2014
February 19, 2014

April 10, 2012
April 11, 2012
April 12, 2012
April 13, 2012
April 14, 2012
April 17, 2012
April 18, 2012
April 19, 2012
April 20, 2012
April 26, 2012
April 27, 2012
May 3, 2012
May 4, 2012
May 22, 2012
May 25, 2012
June 3, 2012
June 4, 2012
June 5, 2012
June 23, 2012
June 26, 2012
July 1, 2012
July 17, 2012
July 18, 2012
July 20, 2012
October 12, 2012
October 13, 2012
October 16, 2012
October 20, 2012
October 22, 2012
October 23, 2012
October 24, 2012
November 1, 2012
November 3, 2012
November 9, 2012
November 10, 2012
November 20, 2012
November 21, 2012
November 28, 2012
November 29, 2012
November 30, 2012
December 1, 2012
December 2, 2012
October 21, 2014
October 23, 2014

December 4, 2012
December 5, 2012
December 12, 2012
December 16, 2012
December 17, 2012
December 18, 2012
December 19, 2012
December 20, 2012
December 21, 2012
December 22, 2012
December 23, 2012
December 24, 2012
December 25, 2012
December 26, 2012
December 27, 2012
December 29, 2012
January 10, 2013
January 11, 2013
January 24, 2013
January 26, 2013
January 27, 2013
January 28, 2013
February 6, 2013
February 7, 2013
February 8, 2013
February 19, 2013
February 20, 2013
February 23, 2013
February 28, 2013
March 1, 2013
March 6, 2013
March 7, 2013
March 20, 2013
March 21, 2013
March 27, 2013
March 31, 2013
April 1, 2013
April 4, 2013
April 5, 2013
April 6, 2013
April 7, 2013
April 8, 2013
March 21, 2015
March 22, 2015

May 17, 2013
May 22, 2013
May 26, 2013
May 27, 2013
May 28, 2013
May 29, 2013
May 30, 2013
June 19, 2013
June 24, 2013
June 26, 2013
September 17, 2013
September 18, 2013
September 21, 2013
September 22, 2013
September 23, 2013
September 25, 2013
September 29, 2013
September 30, 2013
November 3, 2013
November 8, 2013
November 12, 2013
November 13, 2013
November 19, 2013
November 20, 2013
December 3, 2013
December 7, 2013
January 8, 2014
January 9, 2014
January 10, 2014
January 11, 2014
January 12, 2014
January 29, 2014
January 30, 2014
February 7, 2014
February 8, 2014
February 9, 2014
February 10, 2014
February 13, 2014
February 14, 2014
February 15, 2014
February 16, 2014
December 19, 2015
December 20, 2015
December 21, 2015

February 27, 2014
February 28, 2014
March 1, 2014
March 2, 2014
March 3, 2014
March 4, 2014
March 5, 2014
March 6, 2014
March 9, 2014
March 10, 2014
March 17, 2014
March 25, 2014
March 26, 2014
March 27, 2014
March 28, 2014
March 29, 2014
March 31, 2014
April 1, 2014
April 20, 2014
April 22, 2014
April 23, 2014
April 24, 2014
April 25, 2014
April 27, 2014
May 5, 2014
May 9, 2014
May 10, 2014
May 18, 2014
May 19, 2014
May 20, 2014
June 25, 2014
June 26, 2014
June 27, 2014
June 28, 2014
September 18, 2014
September 24, 2014
September 25, 2014
September 26, 2014
October 15, 2014
October 18, 2014
October 20, 2014
March 10, 2016
March 12, 2016
March 13, 2016

October 24, 2014
October 25, 2014
October 26, 2014
October 31, 2014
November 7, 2014
November 13, 2014
November 15, 2014
November 20, 2014
November 21, 2014
November 22, 2014
November 29, 2014
December 1, 2014
December 3, 2014
December 4, 2014
December 6, 2014
December 8, 2014
December 11, 2014
December 12, 2014
December 13, 2014
December 16, 2014
December 17, 2014
December 18, 2014
December 19, 2014
December 20, 2014
December 21, 2014
December 22, 2014
December 25, 2014
December 30, 2014
January 16, 2015
January 18, 2015
February 2, 2015
February 3, 2015
February 5, 2015
February 6, 2015
February 7, 2015
February 9, 2015
February 10, 2015
February 27, 2015
February 28, 2015
March 12, 2015
March 16, 2015
March 23, 2015
March 24, 2015
March 25, 2015

March 28, 2015
March 31, 2015
April 6, 2015
April 7, 2015
April 14, 2015
June 2, 2015
July 9, 2015
July 10, 2015
August 29, 2015
September 17, 2015
September 18, 2015
October 17, 2015
October 26, 2015
October 28, 2015
November 1, 2015
November 2, 2015
November 8, 2015
November 9, 2015
November 10, 2015
November 15, 2015
November 16, 2015
November 17, 2015
November 18, 2015
November 20, 2015
November 24, 2015
November 25, 2015
December 2, 2015
December 3, 2015
December 4, 2015
December 6, 2015
December 9, 2015
December 10, 2015
December 11, 2015
December 12, 2015
December 13, 2015
December 14, 2015
December 17, 2015
December 18, 2015
December 22, 2015
December 23, 2015
December 24, 2015
December 25, 2015
December 28, 2015
December 30, 2015

January 5, 2016
January 6, 2016
January 8, 2016
January 9, 2016
January 10, 2016
January 12, 2016
January 13, 2016
January 14, 2016
January 15, 2016
January 16, 2016
January 17, 2016
January 18, 2016
January 19, 2016
January 20, 2016
January 22, 2016
January 23, 2016
January 24, 2016
January 25, 2016
January 29, 2016
January 30, 2016
February 4, 2016
February 13, 2016
February 18, 2016
February 19, 2016
February 20, 2016
February 22, 2016
February 27, 2016
February 29, 2016
March 2, 2016
March 3, 2016
March 5, 2016
March 6, 2016
March 7, 2016
March 9, 2016
March 14, 2016
March 15, 2016
March 20, 2016
March 21, 2016
March 22, 2016
March 23, 2016

March 27, 2016
April 4, 2016
April 9, 2016
April 14, 2016
April 15, 2016
April 22, 2016
April 23, 2016
April 24, 2016
April 27, 2016
April 28, 2016

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

EXHIBIT C – Proposition 65 Notice of Violation Letter

27
28
CONSENT AGREEMENT

et seq.

et seq

et seq.

et seq.

Water Quality Control Plan for the North Coast Region (Revised
May 2011)

et seq.

et seq.

EXHIBIT D

1
2

Parameter

Test Method

Reporting Units

3
4

Evaluation

Instantaneous
Maximum NAL

Level
pH

See Section
XI.C.2 of the
General
Permit

pH units

N/A

Less than 6.0
Greater than 9.0

Total Suspended Solids

SM 2540-D

mg/L

100

400

Oil & Grease

EPA 1664A

mg/L

15

25

Chemical Oxygen
Demand (COD)

COD

mg/L

120

Aluminum

EPA 200.8

mg/L

0.75

Iron

EPA 200.7

mg/L

1.0

Lead (H)

EPA 200.8

mg/L

0.069*

Zinc (H)

EPA 200.8

mg/L

0.11*

EPA 200.8

mg/L

0.0123*

SM4500-

mg/L as N

0.68

mg/L

0.000014

mg/l

7.9

5
6
7
8
9
10
11
12
13
14
15
16

Copper (H)

17
18

Nitrate plus Nitrite
Nitrogen

19
20
21

NO3-E
Polychlorinated
biphenyls (“PCBs”)
Aroclors

EPA Method

Pentachlorophenol

EPA Method

8082A

22
23
24
25
26

625
SM – Standard Methods for the Examination of Water and Wastewater, 18th edition
EPA – U.S. EPA test methods
(H) – Hardness dependent

27
28
CONSENT AGREEMENT

1

*These values assume a hardness value of 75 mg/L, based on historical hardness data from the United

2

States Geological Survey California Water Science Center:

3
4
5
6
7
8
9
10
11

All Units
mg/L
0-25 mg/L
25-50 mg/L
50-75 mg/L
75-100 mg/L
100-125 mg/L
125-150 mg/L
150-175 mg/L
175-200 mg/L
200-225 mg/L
225-250 mg/L
250+ mg/L

Benchmark Values (mg/L, total)
Lead

Zinc

Copper

0.014
0.023
0.045
0.069
0.095
0.122
0.151
0.182
0.213
0.246
0.262

0.04
0.05
0.08
0.11
0.13
0.16
0.18
0.20
0.23
0.25
0.26

0.0038
0.0056
0.0090
0.0123
0.0156
0.0189
0.0221
0.0253
0.0285
0.0316
0.0332

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