Ecological Rights Foundation v. Schmidbauer Lumber et al

Filing 35

ORDER Re 34 Notice of Settlement. Signed by Judge Haywood S. Gilliam, Jr. on 6/14/2017. (ndrS, COURT STAFF) (Filed on 6/14/2017)

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ENVIRONMENTAL ADVOCATES
JODENE ISAACS, ESQ. (SBN 226895)
5135 Anza Street
San Francisco, CA 94121
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ECOLOGY LAW CENTER
FREDRIC EVENSON, ESQ. (SBN 198059)
P.O. Box 1000
Santa Cruz, CA 95061
Telephone: [phone]
[e-mail]

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Attorneys for Plaintiff
ECOLOGICAL RIGHTS FOUNDATION
GREBEN & ASSOCIATES
JAN A. GREBEN, ESQ. (SBN 103464)
125 E. De La Guerra Street, Suite 203
Santa Barbara, California, 93101
Telephone: [phone]
Email: [e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ECOLOGICAL RIGHTS FOUNDATION,

CASE NO. 1:16-cv-07401-HSG

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Plaintiff,
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v.

NOTICE OF SETTLEMENT;
[PROPOSED] ORDER

SCHMIDBAUER LUMBER, INC. and
SCHMIDBAUER BUILDING SUPPLY, LLC,
Defendants.

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NOTICE OF SETTLEMENT; [PROPOSED ORDER]

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TO THE CLERK OF THE COURT, ANY INTERESTED PARTIES, AND THEIR

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ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that Plaintiff, Ecological Rights Foundation, and Defendant,

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Schmidbauer Lumber, Inc. (collectively, the “Parties”) have reached settlement in the above-

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captioned case and have executed a [Proposed] Consent Decree which is attached as Exhibit 1.

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Final settlement is contingent upon the federal agencies’ 45-day review period of the [Proposed]

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Consent Decree described below.

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PLEASE TAKE FURTHER NOTICE that, in accordance with federal law, no judgment

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disposing of this action may be entered prior to forty-five (45) days following the receipt of the

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proposed settlement by the United States Department of Justice (“DOJ”) and the national and

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Region IX offices of the United States Environmental Protection Agency (“federal agencies”).

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(See 33 U.S.C. §1365(c); 40 C.F.R. § 135.5.) Plaintiff will provide the [Proposed] Consent

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Decree to the federal agencies for review. Upon notice of non-objection by DOJ to this Court, the

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Parties request that the Court execute the Consent Decree and dismiss Plaintiff’s claims with

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prejudice. Should the federal agencies object to the settlement, or the Parties cannot informally

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resolve any concerns raised by the federal agencies, a Notice that the settlement is null and void

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will be submitted.

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NOW THEREFORE, for the reasons set forth above, the Parties hereby stipulate, and

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respectfully request, that the Court enter an order vacating all further proceedings in this matter

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and enter the proposed consent agreement (attached as Exhibit 1) as the final judgment in this

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case following the 45 day review period required by 40 C.F.R. § 135.5.

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RESPECTFULLY SUBMITTED,

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DATED: June 5, 2017

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By: /s/ Jodene Isaacs
Jodene Isaacs, Attorneys for Plaintiff
ECOLOGICAL RIGHTS FOUNDATION

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NOTICE OF SETTLEMENT; [PROPOSED ORDER]

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DATED: June 5, 2017

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By: /s/ Jan Greben
Jan Greben, Attorney for Defendants
SCHMIDBAUER LUMBER, INC. and
SCHMIDBAUER BUILDING SUPPLY, LLC

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED: _________________
6/14/2017

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___________________________________
Hon. Judge Haywood S. Gilliam, Jr.

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NOTICE OF SETTLEMENT; [PROPOSED ORDER]

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EXHIBIT 1

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Christopher Sproul (State Bar No. 126398)
Jodene Isaacs (State Bar No. 226895)
ENVIRONMENTAL ADVOCATES
5135 Anza Street
San Francisco, California 94121
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Fredric Evenson (State Bar No. 198059)
ECOLOGY LAW CENTER
P.O. Box 1000
Santa Cruz, CA 95061
Telephone: [phone]
Email: [e-mail]
Attorneys for Plaintiff
ECOLOGICAL RIGHTS FOUNDATION

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ECOLOGICAL RIGHTS FOUNDATION,

Civil Case No. 16-cv-07401-HSG

Plaintiff,

[PROPOSED] CONSENT DECREE

v.

(Federal Water Pollution Control
Act, 33 U.S.C. §§ 1251 et. seq.)

SCHMIDBAUER LUMBER, INC. and
SCHMIDBAUER BUILDING SUPPLY,
Defendant.

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WHEREAS, Plaintiff Ecological Rights Foundation (“ERF”) is a non-profit public

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benefit corporation dedicated to the preservation, protection, and restoration of the

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environment, the wildlife and the natural resources of all waters of California, including

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Humboldt Bay;

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WHEREAS, Plaintiff alleges that Defendants Schmidbauer Lumber, Inc. is owner and

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operator of the lumber mill facility located at 1099 West Waterfront Drive, Eureka, California

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(hereinafter "the Facility”) or have caused pollutants to be discharged to waters of the United

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States from the Facility;
WHEREAS, Plaintiff alleges storm water flows off-site from the Facility at five

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different discharge points or outfalls; each outfall discharges into the City of Eureka’s

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Municipal Separate Storm Sewer System (“MS4”) which discharges to Humboldt Bay;

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WHEREAS, discharges from the Facility are regulated by the National Pollutant

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Discharge Elimination System (“NPDES”) General Permit No. CAS000001 [State Water

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Resources Control Board] (“Storm Water Permit”)1 and the Federal Water Pollution Control

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Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act” or “CWA”);

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WHEREAS, on October 10, 2016, ERF provided notice of violations of the CWA by

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Schmidbauer Lumber, Inc. and Schmidbauer Building Supply, LLC and of ERF's intention to

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file suit against these entities (collectively “Defendants” or “Schmidbauer.”) Notice was

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provided to the Administrator of the United States Environmental Protection Agency ("EPA");

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the Regional Administrator of EPA Region IX; the Executive Director of the California State

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Water Resources Control Board ("State Board"); the Executive Officer of the California

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Regional Water Quality Control Board, Region 1 ("Regional Board"); the U.S. Attorney

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General, and the Defendants ("Notice Letter") as required by the CWA, 33 U.S.C. §

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1365(b)(1)(A);

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27 1 The Storm Water Permit was adopted by the State Board through Order No. 2014-0057-DWQ which went into
effect July 1, 2015. Industrial storm water discharges that occurred prior to that date were subject to Order No. 97-

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WHEREAS, on December 30, 2016, Plaintiff filed a complaint against Schmidbauer

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Lumber, Inc. and Schmidbauer Building Supply, LLC, in the United States District Court,

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Northern District of California (Case No. 16-07401-NJV) alleging ongoing violations of the

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CWA (hereinafter “Complaint”);

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WHEREAS, Schmidbauer denies all allegations in the Notice Letter and Complaint,

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and maintain that the operations at the Facility are in compliance with the requirements of the

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CWA and the Storm Water Permit;

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WHEREAS, this Consent Decree shall be submitted to the EPA and United States
Department of Justice ("DOJ") for the statutory review period pursuant to 33 U.S.C. §1365(c)
and 40 C.F.R. § 135.5;

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WHEREAS, Plaintiff and Defendants that it is in the Parties’ mutual interest to enter

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into a Consent Decree setting forth terms and conditions appropriate to resolving the

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allegations set forth in the Complaint without further proceedings and without any admission

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of liability on the part of the Defendants;

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WHEREAS, all actions taken by Defendants pursuant to this Consent Decree shall be

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made in compliance with all applicable Federal and State laws and local rules and regulations;

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and

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WHEREAS, Plaintiff agrees that Schmidbauer Building Supply, LLC is not a party to

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this Consent Decree and will be dismissed from the complaint.

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NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND
ORDERED AND DECREED BY THE COURT AS FOLLOWS:

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I.

GENERAL OBJECTIVES

1.

The objectives of this Consent Decree are:
a. To ensure that Schmidbauer continues to improve storm water quality as necessary to
comply with the Storm Water Permit;
b. To ensure that Schmidbauer continues to use, implement, and improve ways, means, and
methods to prevent or reduce the discharge of pollutants in storm water runoff from the

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Facility; and

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c. To further the goals and objectives of the CWA.

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defined in the CWA or in regulations or rules promulgated under the CWA have the meaning

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assigned to them in the statutes or regulations or rules. Whenever terms listed below are used

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in this Consent Decree, the following definitions apply:

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Unless otherwise expressly defined herein, terms used in this Consent Decree which are

“Consent Decree” means this Consent Decree and any attachments or documents
incorporated by reference.

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“Day” means a calendar day. In computing any period of time under this Consent Decree,

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where the last day of such period is a Saturday, Sunday, or Federal or State Holiday, the period

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runs until the close of business on the next day that is not a Saturday, Sunday, or Federal or

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State Holiday.

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"Design Storm" means the volume of runoff produced from an 85th percentile 24-hour

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storm event, as determined from the National Oceanic and Atmospheric Administration’s

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Eureka, California rainfall records.

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"Dry Season" means the five-month period beginning May 1st of any given year and
ending September 30th of the same year.

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“Effective Date” means the effective date of this Consent Decree, which shall be the last

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day for EPA and DOJ to comment on the Consent Decree, i.e., the 45th day following these

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agencies’ receipt of the Consent Decree, or the date on which these agencies provide notice

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that they require no further review, whichever occurs earlier.

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“Execution Date” means the date on which this Consent Decree is executed by the
Plaintiff and Defendant, i.e., June 1, 2017.

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“Wet Season” means the seven-month period beginning October 1st of any given year

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and ending April 30th of the following year.

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II.

JURISDICTION AND VENUE

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3.

This Court has jurisdiction over the subject matter of the claims asserted by Plaintiff

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pursuant to CWA section 505(a), 33 U.S.C. § 1365(a), 28 U.S.C. §§ 1331, 1355, and 1367.

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Venue is proper in this judicial district pursuant to section CWA §§ 309(b), 505(c), 33 U.S.C.

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§§ 1319(b), 1365(c), and 28 U.S.C. §§ 1391(b) and (c). The parties waive any and all

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objections that they may have to the Court’s jurisdiction to enter and enforce this Consent

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Decree.

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4.

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the Clean Water Act, 33 U.S.C. § 1365.

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5.

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III.

The Complaint states claims upon which relief may be granted pursuant to Section 505 of

Plaintiff has standing to bring this action.
EFFECT OF CONSENT DECREE/RELEASE OF CLAIMS

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that Schmidbauer’s compliance with this Consent Decree will constitute or result in

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compliance with any federal or state law or regulation.

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federal, state, or local law and in no way relieves Schmidbauer of its responsibilities to comply

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with all applicable federal, state and local laws and regulations.

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Consent Decree (including but not limited to the payment of any stipulated payments) and the

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completion of all storm water quality improvement measures required pursuant to this Consent

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Decree resolves Plaintiff’s civil claims for the violations alleged against Schmidbauer in this

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Action.

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releases Schmidbauer, and its partners and its and their officers, directors, employees,

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successors and assigns, from all CWA violations alleged in the Complaint up to and including

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the Effective Date of this Consent Decree. Except for claims for Schmidbauer’s failure to

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comply with this Consent Decree, Plaintiff further releases Schmidbauer, and its partners and

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its and their officers, directors, employees, successors and assigns, from all claims pertaining to

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alleged violations of the CWA that may occur due to discharges of storm water from the

Plaintiff does not, by its consent to this Consent Decree, warrant or aver in any manner

This Consent Decree is neither a permit nor a modification of existing permits under any

Compliance with this Consent Decree, including all monetary payments due under this

Plaintiff's Release: Upon the Effective Date of this Consent Decree, Plaintiff hereby

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Facility between the Effective Date and the termination of this Consent Decree.

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its general partners hereby release Plaintiff and its officers, directors, employees, members,

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attorneys, and each of their successors and assigns, from, and waives all claims which arise

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from or pertain to this action, including all claims for fees (including fees of attorneys, experts,

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

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claimed for matters associated with or related to Plaintiff’s Notice Letter and Complaint up to

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the Effective Date.

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IV.

APPLICABILITY

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The provisions of this Consent Decree apply to and bind Plaintiff and Schmidbauer

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(collectively, “Parties”), including any successors or assigns. The Parties certify that their

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undersigned representatives are fully authorized to enter into this Consent Decree, to execute it

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on behalf of the Parties, and to legally bind the Parties to its terms.

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any subsequent proceeding to implement or enforce its terms. By entering into this Consent

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Decree, Schmidbauer does not admit liability for any purpose as to any allegation or matter

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arising out of the Action. Nothing in this Consent Decree shall constitute an admission of any

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fact or a waiver of any right or defense unless specifically set forth herein.

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13.

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of Schmidbauer's assets or liabilities shall in any way alter the responsibilities of Schmidbauer

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or any of its successors or assigns thereof, under this Consent Decree. In any action to enforce

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this Consent Decree, Schmidbauer shall not raise as a defense the failure by any of its agents,

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servants, contractors, employees, successors or assigns to take actions necessary to comply

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with this Consent Decree, unless such actions were prevented by a force majeure.

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of any portion of either Facility does not relieve Schmidbauer of its obligations under this

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Consent Decree. Not later than thirty (30) days prior to sale or transfer of ownership or

Defendant’s Release: Upon the Effective Date of this Consent Decree, Schmidbauer and

The Parties agree to be bound by this Consent Decree and not to contest its validity in

No change in ownership or corporate or other legal status of Schmidbauer or any transfer

Except as otherwise provided in this Part, the sale or transfer of ownership or operation

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operation of any portion of either Facility, Schmidbauer shall give written notice of this

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Consent Decree to each purchaser or successor in interest. Schmidbauer also shall give written

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notification to Plaintiff, in accordance with Part XII (NOTICES AND SUBMISSIONS), of the

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anticipated sale or transfer of ownership or operation of the Facility at least thirty (30) days

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prior to the scheduled date of such sale or transfer and may seek from the Court a modification

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of this Decree that would transfer responsibility for compliance with some or all of these

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provisions to its successor. The Court shall grant such request if the successor is ready, willing

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and able to fully implement obligations the successor would assume under this Consent

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Decree.

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V.

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STORM WATER QUALITY IMPROVEMENT MEASURES
A. Site Mapping

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15.

Site Mapping: By August 15, 2017, Schmidbauer shall update as necessary the Site Map

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for the Facility’s SWPPP. The Site Map shall clearly identify the property boundaries, ground

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type (e.g., pervious or impervious) on all portions of the Facility; berms, dikes, walls and other

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structures controlling the flow of surface water, components of the Facility storm water

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conveyance system, including but not limited to storm water pipes, drop inlets, any storm water

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storage or treatment infrastructure (as well is the capacity of such infrastructure) and all other

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physical structures or items relevant under this Consent Decree. The Site Map shall further

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indicate the direction and pattern of storm water flows at and off the Facility.

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implemented, Schmidbauer shall identify on the Site Map every location at which storm water

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and non-storm water from an industrial area is known to be discharged or which may

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potentially be discharged, e.g., driveways (“Designated Discharge Points or Designated

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Discharge Locations”). Each Designated Discharge Point or Discharge Location shall be

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numbered and clearly labeled on the Site Map.

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storage areas at the Facility where materials used at the Facility are stored (“Material Storage

Designated Discharge Points: By August 15, 2017, to the extent not already

Designation of Storage Areas: To the extent not already implemented, the outdoor

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Areas”) shall be designated on the Facility’s Site Map.

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information required by the Section X.E.3 of the 2015 Industrial Stormwater Permit. The

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SWPPP shall further describe industrial activities that generate wood waste, saw dust,

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particulates or other pollutants that may be deposited within the Facility's boundaries and

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identify their discharge locations and the characteristics of such wood waste, saw dust,

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particulate and other pollutants; and a description of the primary areas of the Facility where

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wood waste, saw dust, particulate and other pollutants would settle.

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B.

Storm Water Pollution Control Measures

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19.

In addition to maintaining the current BMPs at the Facility, Schmidbauer shall develop

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and implement the additional BMPs identified below for Areas 1 through Area 7 as identified

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on Schmidbauer’s June 15, 2015 SWPPP, as well as any other BMPs necessary to comply with

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the provisions of this Consent Decree and the Storm Water Permit. Specifically, Schmidbauer

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shall develop and implement BMPs with the goal of preventing and/or reducing the level of

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pollutants in storm water discharged from the Facility below the Tier Two Levels in Table 1,

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attached as Exhibit 1 to this Consent Decree, and to use best efforts to reduce the levels of

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pollutants in storm water discharges below the Tier One Levels in Table 1. An exceedance of a

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Tier One or Tier Two Level, by itself, shall not be considered a violation of this Consent

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Decree. The minimum BMPs to be developed and implemented for each process area as

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designated on the SWPPP Map are set forth below

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reducing pollutants, including metals, in stormwater discharges within Area 1 and Area 3 that

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shall be replaced at the beginning of each Wet Season (i.e., by October 1) and every two

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months or as deemed necessary based on monitoring data during the Wet Season that this

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Consent Decree is in effect.

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implement such measures as are necessary to prevent water from discharging from the Facility

Pollutant Generating Activities: The Site Map shall describe include all of the

By August 15, 2017, Schmidbauer shall deploy media filter inserts that are designed for

By August 15, 2017, Schmidbauer shall inspect the perimeter of each Facility and

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perimeter at any location other than Designated Discharge Locations.

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Oceanic and Atmospheric Administration’s Eureka, California Woodley Island weather station

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in designing an active treatment system and monitoring rain events

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saw dust, fine particulate matter, or other materials that can be tracked or entrained in storm

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water discharging from the Facility are principally conducted within designated Industrial

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Activity Areas shown on the Site Map prepared pursuant to Paragraphs 15 through 18.

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By August 15, 2017, Schmidbauer shall use meteorological data from the National

Schmidbauer shall operate the Facility such that activities that generate wood waste,

Schmidbauer shall regularly monitor and maintain the storm water conveyance system

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and treatment or retention structures at the Facility in a manner that to control and reduce wood

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waste, debris and materials not related to the control and treatment of storm water (e.g., wood

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pulp, sawdust, metals, and other debris).

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year that this Consent Decree is in effect, Schmidbauer shall cover each storm water drop inlet

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with a solid material that will prevent wood waste, saw dust and solids from collecting in the

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inlet. These covers may be removed prior to the start of any forecasted precipitation with a

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likelihood of occurrence of 50% or greater as determined by the NOAA forecast for the Eureka

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area available at http://www.wrh.noaa.gov/eka/.

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C.

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26.

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Facility’s SWPPPs as necessary to ensure that the sweeping and cleaning actions deployed at

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the Facility, in conjunction with other appropriate BMPs, are sufficient to reduce the potential

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for pollutants to become entrained in storm water flows, to prevent pollutants from being

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blown off the Facility, to keep paved areas of the Facility as clean as practicable, and to

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prevent pollutants from being tracked off the Facility onto surface streets. Schmidbauer’s

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sweeping and cleaning BMPs shall be specified in detail in the Facility’s Site Housekeeping

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Plan and shall specifically include at least the following measures: (a) identification of (i) areas

Starting July 15, 2017 and in following years during from June 1 to September 30 of each

Site Housekeeping Plan
By August 15, 2017, Schmidbauer shall modify the BMPs currently contained in the

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where mechanical sweeping (or scraping) is feasible by mechanical sweepers, mechanical

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brooms (such as mower style vacuum sweepers), or backhoe equipped with scraper, (ii) areas

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where manual sweeping only, as needed, is feasible, and (iii) areas where sweeping is not

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feasible (such as unpaved areas, or under piles of materials that are not reasonably movable),

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(b) Wet Season and Dry Season schedules for mechanical and manual sweeping of areas

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identified as appropriate for daily sweeping, except during periods of rain, (c) Wet Season and

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Dry Season schedules for sweeping of the public streets and curbs, where accessible, permitted

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and/or necessary to prevent tracking, with a sweeper near the Facility entrances, (d) triggers for

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more frequent ad hoc sweeping or cleaning such as visual accumulation of wood waste, saw

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dust or debris, (e) a schedule for the annual inspection and comprehensive site cleaning, (f)

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sweeping of curbs downstream of the Facility and small berms in driveways as needed based

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on observations during Facility inspections to keep materials from lodging in these areas where

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they can be picked up by storm water and deposited into area storm drains, and (g)

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specification that Schmidbauer will collect and dispose of all wastes generated during Facility

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cleaning and sweeping in a manner that complies with all local, state, and federal laws.

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the sweeping and any other site cleaning activity performed which identifies the employee

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and/or contractor who conducted the sweeping or cleaning, the location of the sweeping or

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cleaning, and the date of the sweeping or cleaning activities. The form for this log or checklist

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shall be adopted by Schmidbauer as part of the Site Housekeeping Plan referred to in the

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preceding paragraphs. Schmidbauer shall direct employees and/or contractors to accurately

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complete this form for those sweeping and cleaning actions specified in such log in accordance

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with the Site Housekeeping Plan. Schmidbauer shall make the sweeping and cleaning log or

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checklist available for inspection by Plaintiff at the site inspection authorized herein or

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otherwise with five (5) business days advance request by Plaintiff.

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provided in the modified SWPPP pursuant to Paragraph 64 to propose any changes or

Site Housekeeping Log: Schmidbauer shall keep a log or checklist, as appropriate, of

Plaintiff shall have twenty-one (24) days from receipt of the Site Housekeeping Plan,

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modification to be added to meet the intended goal of preventing contaminants from being

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moved around and offsite from the Facility, reducing pollutants in storm water flows, keeping

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all paved areas of the Facility clean and visible, and preventing pollutants from being tracked

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off the Facility onto surface streets. Within 14 days of receiving Plaintiff’s comments on the

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Site Housekeeping Plan, Schmidbauer shall make all requested changes or provide Plaintiffs

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with a written explanation if Schmidbauer declines to implement or develop any of Plaintiff’s

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recommendations.

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D.

Structural BMPs

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Updated ERA Level 1 Report: By August 15, 2017, Schmidbauer shall prepare and

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provide to Plaintiff its Updated Exceedance Response Action (“ERA”) Level 1 Report

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(“Updated Plan”) for developing BMPs at the Facility capable of providing treatment to all

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storm water discharges to a level commensurate with Best Available Technology Economically

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Achievable (“BAT”) and the Best Conventional Pollutant Control Technology (“BCT”).

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30.

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conversion of the existing drainage swales located in Area 5 and Area 6 into bio-swale as

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described in Schmidbauer’s Exceedance Response Action (“ERA”) Level 1 Report2 as

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determined through an engineering evaluation of site hydrology, lithology, and other relevant

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factors.

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31.

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standards for the volume of water generated in Area 5 and Area 6 that are based on historical

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rain data from the NOAA weather station in Eureka.

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32.

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aimed at reducing woody source materials and other contaminants from contacting storm water

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to address the following areas:

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The Updated Plan shall include the engineering and design plans necessary for

The Updated Plan shall also include engineer approved calculations of the design storm

In addition to the bio-swale improvements, the Updated Plan shall also include BMPs

a. Schmidbauer shall develop BMPs for exposure minimization of all wash water that is

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Schmidbauer filed this report with the State Water Resources Control Board on December 30, 2016.

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generated but not covered or fully contained.

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b. Schmidbauer shall identify all the sources of pollutants, including any *metals,

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throughout the Facility and develop BMPs to minimize stormwater contact with these

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sources.

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c. Schmidbauer shall develop BMPs to address solids from the conveyor belts used in

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Area 6.

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d. Schmidbauer shall develop BMPs to address solids from the debarker and immediate

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area surrounding it and address potential storm water pollutants from this area.

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33.

Updated Plan Implementation: Schmidbauer shall implement the Updated Plan, as

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revised as, no later than November 1, 2017 unless Schmidbauer provides good cause to

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Plaintiff for the delay in construction. Should Schmidbauer adequately demonstrate good cause

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for a delay, Schmidbauer shall implement the updated Plan as soon as practicable given any

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permitting requirements or constraints. Schmidbauer shall thereafter properly operate and

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maintain the BMPs described in the Plan for the life of the Consent Decree. Any disputes as to

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the adequacy of good cause for delay shall be resolved pursuant to the Dispute Resolution

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provisions of Part XI (DISPUTE RESOLUTION).

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34.

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2018 Wet Season shall be considered during the evaluation of additional BMP improvements.

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If discharges contain constituents in discharges from the Facility at levels exceeding the

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Numeric Action Levels (NALs) or the triggers discussed below in Paragraph 39 during the

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2017-2018 Wet Season, Schmidbauer shall prepare and provide to Plaintiff an Exceedance

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Response Action (“ERA”) Level 2 Action Plan for the purpose of providing treatment for

23

storm water discharges to a level commensurate with Best Available Technology Economically

24

Achievable (“BAT”) and the Best Conventional Pollutant Control Technology (“BCT”). The

25

objective of the ERA Level 2 Action Plan shall be to obtain sufficient storm water storage

26

and/or treatment capacity so that all storm water potentially containing chemicals/constituents

27

of concern is effectively treated to reduce pollutants prior to discharge in any storm that does

ERA Level 2 Action Plan: The storm water sampling results collected during the 2017-

28
11

1

not exceed the Design Storm (i.e., storm water discharges should only bypass the treatment

2

system during storm events that exceed the Design Storm).

3

35.

4

year during which the NAL/or trigger exceedance(s) occurred.

5

36.

6

combination thereof, as determined through an engineering evaluation of site hydrology,

7

lithology and other relevant factors:

The ERA Level 2 Action Plan will be submitted by September 1 following the reported

The ERA Level 2 Action Plan shall include some or all of the following components, or a

8

a. Installing holding tanks or other forms of storm water storage generated in at least Area

9

5 and Area 6 to allow for additional water retention and treatment prior to storm water

10

reaching the treatment system.

11

b. Diverting all storm water from Area 5 design storm that is currently directed to the inlet

12

at SW-2 to instead flow to outfall SW-4.

13

c. Diverting stormwater from other areas, as applicable, of the Facility to outfall SW-4

14

d. Designing and installing an active treatment system that is capable of treating

15

stormwater discharges from at least Area 5 and Area 6, and consider treatment of Area 7, to

16

a level commensurate with BAT and BCT.

17

37.

ERA Level 2 Action Plan Review: Plaintiff shall have twenty-nine (29) days upon receipt

18

of Schmidbauer’s ERA Level 2 Action Plan, described in Paragraphs Paragraphs 34 through

19

36, to provide Schmidbauer with comments. Within fifteen (15) days of Schmidbauer’s receipt

20

of Plaintiff’s comments on the ERA Level 2 Action Plan Plan, Schmidbauer shall accept and

21

incorporate Plaintiff’s comments into the Plan, or shall provide Plaintiff with a written

22

explanation if Schmidbauer declines to develop and/or implement any of Plaintiff’s

23

recommendations. Any disputes as to the adequacy of the ERA Level 2 Action Plan shall be

24

resolved pursuant to the Dispute Resolution provisions of Part XI (DISPUTE RESOLUTION).

25

38.

26

Action Plan, as revised, by the end of the 2018-2019 Wet Season (i.e., July 31, 2019) unless

27

Schmidbauer provides good cause to Plaintiff for the delay in construction. Schmidbauer shall

ERA Level 2 ERA Plan Implementation: Schmidbauer shall implement the Level 2 ERA

28
12

1

implement the Level 2 ERA Action Plan as soon as practicable given any permitting

2

requirements or constraints Schmidbauer shall thereafter properly operate and maintain the

3

treatment and/or storm water retention system for the life of the Consent Decree. Any disputes

4

as to the adequacy of good cause for delay shall be resolved pursuant to the Dispute Resolution

5

provisions of Part XI (DISPUTE RESOLUTION).

6

E. Additional Reduction of Pollutants in Discharges

7

39.

8

ERA Level 1 Evaluation for reducing the level of pollutants in storm water discharges from the

9

Facility in any of the following circumstances:

ERA Level 1 Evaluation Plan for Table 1 Exceedances: Schmidbauer shall submit an

10

a.

If the average of all storm water analytical results in a given wet season for individual

11

pollutant(s) exceeds any of the applicable Annual NALs as set forth in Table 2 of the

12

Permit;

13

b. If any storm water sample contains a single pollutant at a concentration that exceeds an

14

Instantaneous NAL as set forth in Table 2 of the Permit and is not currently being

15

addressed by another ERA Plan; or

16

c. If any single storm water sample from an individual outfall exceeds the Annual NAL

17

for COD or the CTR value for Zinc set forth in Table 1 below.

18

In calculating the average of storm water sampling results for a particular pollutant,

19

Schmidbauer shall average only those results collected from a single outfall (i.e., all storm

20

water outfalls will be evaluated separately). An exceedance of a Tier One or Tier Two level,

21

by itself, shall not be considered a violation of this Consent Decree, the Storm Water Permit or

22

the CWA.

23

40.

24

submitted shall include at a minimum: (1) the identification of the contaminant(s) discharged in

25

excess of the NALs, (2) an assessment of the source of each contaminant exceedance, (3) the

26

identification of additional BMPs that will be implemented to reduce pollutant concentrations

27

in the discharge, and (4) time schedules for implementation of the proposed BMPs. The time

ERA Level 1 Evaluation Plan Requirements: Each ERA Level 1 Evaluation Plan

28
13

1

schedule(s) for implementation shall ensure that all BMPs are implemented as soon as

2

possible, but in no case later than November 15 (following the wet-weather season with the

3

exceedance). The following BMPs should generally be evaluated as a means of reducing

4

pollutant concentrations:

5

a. Hydraulic Controls: installation of additional berms or equivalent structural controls (if

6

necessary to reduce or prevent storm water from flowing into or, other than through the

7

engineered storm water conveyance system or storm water retention or treatment facilities).

8

b. Detention: additional on-site retention or infiltration of storm water to minimize storm

9

water discharges (overall or from specific areas) or to detain storm water runoff for

10

sufficient detention time so as to reduce pollutants in the discharge.

11

c. Visual “Track Off” To Public Streets: additional BMPs necessary to reduce or prevent

12

visual “track off” of material from the Facility onto public streets.

13

d. Paving Additional Unpaved Areas: to the extent not already implemented by other

14

sections of this Consent Decree, stabilizing appropriate portions of unpaved portions of the

15

Facility where significant vehicle traffic occurs.

16

e. Treatment Systems: installing or improving treatment systems that would provide more

17

effective treatment of storm water prior to discharge than currently installed systems, such

18

as a fixed bed filter system or other improved filter system.

19

f. Evaluation of BMPs: replacing, rehabilitating, or eliminating existing BMPs, taking

20

into account the age of the BMPs involved or employed, the engineering aspect of the

21

application of various BMPs, and any adverse environmental impact of the BMPs.

22

g. Such other additional BMPs as Schmidbauer deems appropriate for evaluation.

23

41.

For the ERA Level 1 Evaluation Plan that may be required after the 2017-2018 Wet

24

Season, Schmidbauer may consider measures discussed in Paragraph 40(a) through 40(f) in the

25

ERA Level 2 Action Plan.

26

42.

27

required, Schmidbauer shall provide the ERA Evaluation to Plaintiff by October 1 following

ERA Level 1 Evaluation Plan Submittal: In any year that an ERA Evaluation Plan is

28
14

1

the Wet Season for which exceedance was reported;

2

43.

3

Schmidbauer’s Level 1 ERA Evaluation Plan to provide Schmidbauer with comments. Within

4

thirty (30) days of Schmidbauer’s receipt of Plaintiff’s comments on the ERA Level 1

5

Evaluation Plan, Schmidbauer shall incorporate Plaintiff’s comments of recommended

6

additional BMPs into the Plan

7

44.

8

before the following Wet Season that the exceedance(s) occurred, or shall provide Plaintiff

9

with a written explanation if Schmidbauer refuses to develop and/or implement any of

ERA Level 1 Evaluation Plan Review: Plaintiff shall have thirty (30) days upon receipt of

ERA Level 1 Evaluation Plan Implementation: Level 1 ERA Report to be implemented

10

Plaintiff’s recommended additional BMPs. Disputes regarding the adequacy of a particular

11

BMP shall not impact the schedule for implementing any other BMP set forth in the ERA

12

Level 1Evaluation Plan. Any disputes as to the adequacy of the ERA Level 1 Evaluation Plan

13

shall be resolved pursuant to the Dispute Resolution provisions of Part XI.

14

VI. SAMPLING, MONITORING, INSPECTION & REPORTING

15

A.

Sampling Program

16

45.

Schmidbauer shall collect storm water discharge samples from each Discharge Point at

17

the Facility according to the following sampling schedule:

18

a. During the first, second, and third year of this Consent Decree, and except as set forth

19

below in this paragraph, Schmidbauer shall collect four storm water samples per year from

20

each Discharge Point at the Facility. If four consecutive samples from each of the

21

Discharge Points result in pollutant levels below the NALs set forth in Table 2 of the

22

Permit for any parameter sampled, Schmidbauer need not conduct additional sampling for

23

such parameter unless otherwise required by the Storm Water Permit.

24

b. Schmidbauer shall analyze each storm water sample collected for each of the

25

parameters listed on the Table 1. Should operations change at the Facility, Schmidbauer

26

shall conduct sampling for any additional toxic priority pollutants listed in 40 C.F.R. §

27

131.38 likely to be present in Schmidbauer's storm water discharges as a result of the

28
15

1

changed operations.

2

c. Where Schmidbauer discharges storm water into a storm drain inlet or catch basin,

3

Schmidbauer may choose to collect a sample below any insert or treatment system. If

4

Schmidbauer chooses not to collect a post-filtration or post-treatment sample, the quality of

5

storm water samples entering a storm drain inlet or catch basin containing a fabric insert

6

shall be considered the same as a sample collected below the insert.

7

46.

Qualifying sampling events shall be preceded by at least 48 hours without storm water

8

discharges.

9

47.

If Schmidbauer does not collect the required number of samples from the designated

10

sampling locations due to lack of discharge, Schmidbauer shall explain in its Annual Report or

11

any ERA Action Plan required by this Consent Decree that rainfall was insufficient for

12

collection of samples.

13

48.

14

California state certified environmental laboratory for analysis within the time needed for

15

analysis within laboratory method allowable hold times. Schmidbauer shall direct the

16

laboratory to conduct analysis sufficient to detect individual constituents at or below the Tier

17

One and Tier Two Levels set forth in the attached Table 1.

18

49.

19

analysis of storm water discharges to Plaintiff within fourteen (14) days of receipt of the

20

laboratory report from each sampling event. Each time Schmidbauer receives sampling results,

21

Schmidbauer shall provide Plaintiff with a chart in digital or hardcopy form that summarizes

22

the results of all the samples and includes the Tier One and Tier Two values for comparison.

23

The summary chart shall consistently present the sample summaries in milligrams per liter for

24

all of the parameters for which concentration values are provided.

25

B.

Visual Observations

26

50.

Wet Weather Visual Observations: During the term of this Consent Decree, Schmidbauer

27

shall conduct visual observations, during normal operating hours, at the point at which each

Schmidbauer shall deliver all storm water samples collected pursuant to this Decree to a

Schmidbauer shall provide to Plaintiff complete results from Schmidbauer's sampling and

28
16

1

discharge crosses the property line, during one rain event per month that produce a discharge.

2

During these rain events, Schmidbauer shall also observe all potential discharge locations on

3

the perimeter of the Facility to determine if discharge of storm water is occurring from an area

4

of industrial activity.

5

51.

6

employees shall monitor for the presence of visually observable oil sheens in storm water

7

discharges and/or discolored or turbid storm water discharges.

8

52.

9

trained Schmidbauer employees shall conduct weekly visual BMP inspections of the Facility,

10

including during dry weather. Such inspections shall include driveways, outdoor storage areas,

11

and all Industrial Activity Areas. All Designated Discharge Locations shall also be inspected

12

for accumulation of dust, sediment, sand, grit, oily substances, oily sheens upon any standing

13

water, and other materials associated with operations at the Facility. Such inspections shall

14

further include observations of all storm water BMPs at the Facility to ensure that operational

15

BMPs are being implemented, structural BMPs are in good condition or working order, and

16

that BMPs have been effective in producing clean conditions at the Facility to the extent

17

practicable (e.g., an absence of significant oil stains on paved or unpaved surfaces, absence of

18

metal debris or other debris on paved or unpaved surfaces, absence of oil, or metal or other

19

debris or grit in storm water conveyance structures).

20

C.

Compliance Monitoring

21

53.

Site Inspections: Plaintiff and its representatives may conduct one site inspection per year

22

at the Schmidbauer Facility during the life of this Consent Decree. The site inspections shall

23

occur during normal business hours and Plaintiff shall provide Schmidbauer with 5-days

24

notice. Where Plaintiff is unable to provide 5-days notice due to the unexpected nature of a

25

storm event, Plaintiff shall provide Schmidbauer with as much advance notice as is possible

26

but in no event less than forty-eight (48) hours notice.

27

54.

During such wet weather visual observations, appropriately trained Schmidbauer

Dry Weather Visual Observations: In accordance with the current SWPPPs, appropriately

During the site inspections, Plaintiff and/or its representatives shall be allowed access to

28
17

1

the Facility’s SWPPP, MIP, and other monitoring records, reports, and sampling data for the

2

Schmidbauer Facility. During the site inspections, Plaintiff and/or its representatives may

3

collect samples of discharges from the Facility. A certified California laboratory shall analyze

4

storm water samples collected by Plaintiff and copies of the lab reports shall be provided to

5

Schmidbauer within five (5) business days of receipt. At the request of Schmidbauer, the

6

samples shall be split and one half provided to Schmidbauer so as to allow Schmidbauer to

7

have their own certified California laboratory analyze the samples, in which case Schmidbauer

8

shall provide the laboratory results to Plaintiff within fourteen (14) business days of receipt.

9

D.

10

Cleaning, Maintenance, and Inspection Logs
55.

During the life of this Consent Decree, Schmidbauer shall keep contemporaneous

11

logs documenting the performance of cleaning, maintenance, and inspection activities

12

performed pursuant to the Facility’s SWPPP. The logs shall indicate the personnel who

13

completed the cleaning, maintenance, or inspection activity and the date the activity was

14

performed.). The logs shall be made available to Plaintiff at the time of any site inspection.

15

E.

Reporting

16

56.

During the life of this Consent Decree, Schmidbauer shall provide Plaintiff with a copy

17

of all documents pertaining to the General Permit submitted to or received from the Regional

18

Board or the State Board concerning the Facility, including all documents and reports

19

submitted to the Regional Board as required by the General Permit. Schmidbauer shall also

20

provide Plaintiff with a copy all documents relating to building permits or other approvals

21

needed by the City of Eureka or other government entities that are required for Schmidbauer to

22

implement any structural BMPs described Updated Plan, ERA Level 2 Action Plan, and any

23

future ERA Level 1 Evaluation Plans required by this Consent Decree. Documents and reports

24

sent by Schmidbauer to the Regional Board, State Board, or other local or state agencies

25

related to structural BMPs shall be electronically mailed to Plaintiff contemporaneously with

26

submission to the respective agency. Documents received by Schmidbauer from the Regional

27

Board, State Board, and/or local or other state agencies shall be electronically mailed to

28
18

1

Plaintiff within three (3) business days of receipt.

2

57.

3

year documenting measures taken by Schmidbauer to comply with the Decree and providing

4

Plaintiff with summary tables of all storm water sample test results for the Facility, field notes

5

documenting visual inspections at the Facility, and cleaning, maintenance, and inspection logs

6

prepared pursuant to paragraph 55. Schmidbauer shall also provide Plaintiffwith the monthly

7

climate summaries from the NOAA site.

8

58.

9

to implement any structural BMPs requiring agency approval. Plaintiff’s consent to

Schmidbauer shall provide Plaintiff with a copy of its Annual Report on July 15 each

Schmidbauer shall contact Plaintiff to request an extension of the deadline, if necessary,

10

Schmidbauer’s requested extension shall not be unreasonably withheld.

11

59.

12

(“collectively Action Plans”) is completed and approved by Plaintiff or finalized pursuant to

13

Dispute Resolution, Schmidbauer shall revise its SWPPP and Monitoring Implementation Plan

14

(“MIP”) as applicable within thirty (30) days to reflect the changes required by the Action

15

Plans. Schmidbauer shall notify Plaintiff in writing when the Action Plans have been

16

completely implemented, which shall be no later than (2) months after the approval by Plaintiff

17

or dispute resolution finalizing the Action Plans. Defendant shall implement any Action Plan

18

approved pursuant to this paragraph as a requirement of the Consent Decree.

19

VII. EMPLOYEE TRAINING

20

60.

21

program, including any training materials needed for effective implementation of the training

22

program, to ensure (1) that there are a sufficient number of employees delegated to achieve

23

compliance with the Storm Water Permit and this Consent Decree, and (2) that these

24

employees are properly trained to perform the required compliance activities (“Training

25

Program”). At a minimum the Training Program shall familiarize all employees at the Facility

26

with the requirements of the Storm Water Permit and this Consent Decree.

27

61.

When any Updated Plan, ERA Level 2 Action Plan, or Level 1 ERA Evaluation

By August 15, 2017, Schmidbauer shall modify as necessary and implement a training

To the extent necessary, the Training Program shall be revised to require specific training

28
19

1

on the following topics for all personnel whose jobs include some aspect of responsibility for

2

stormwater compliance:

3

a. Non-Storm Water Discharge Training: Schmidbauer shall train all employees on the

4

Storm Water Permit’s prohibition of non-storm water discharges, so that employees know

5

what non-storm water discharges are, which can result from improper draining of

6

automobile fluids, and how to detect them and prevent them;

7

b. BMP Training: Schmidbauer shall train designated employees on BMP implementation

8

and maintenance to ensure that BMPs are implemented effectively to prevent the exposure

9

of pollutants to storm water, to prevent the discharge of contaminated storm water, and to

10

ensure the proper treatment of storm water at the Facility;

11

c. Sampling Training: Schmidbauer shall designate adequate number of employees

12

necessary to collect storm water samples from each discharge location as required by this

13

Consent Decree and/or the Storm Water Permit. The training shall include the proper

14

sampling protocols, including chain of custody requirements, to ensure storm water

15

samples are properly collected, stored, and submitted to a certified laboratory;

16

d. Visual Observation Training: Schmidbauer shall provide training to all individuals

17

performing visual observations at the Facility pursuant to this Consent Decree and/or the

18

Storm Water Permit.

19

62.

Training shall be provided on an annual basis, or as otherwise required to ensure

20

compliance with the terms of this Consent Decree, by a private consultant or a representative

21

of Schmidbauer who is familiar with the requirements of this Consent Decree and the Storm

22

Water Permit. The training shall be repeated as necessary to ensure that covered employees are

23

familiar with the requirements of this Consent Decree, the Storm Water Permit, and the

24

Facility’s SWPPP and MIP. All new personnel shall receive this training before assuming

25

responsibilities for implementing the SWPPP and/or MIP.

26

63.

27

and shall provide Plaintiff with a copy of these records within fourteen (14) days of receipt of a

Schmidbauer shall maintain training records to document compliance with this section,

28
20

1

written request. The Training Program shall be specified in the SWPPP.

2

VIII.

3

IMPLEMENTATION PLAN

4

64.

STORM WATER POLLUTION PREVENTION AND MONITORING

By August 15, 2017, Schmidbauer shall revise its SWPPP and its MIP to:

5

a. Incorporate the requirements of the Storm Water Permit, and this Consent Decree,

6

including but not limited to revisions to the SWPPP to specify performance of the measures

7

referred to in PART V (STORM WATER QUALITY IMPROVEMENT MEASURES)

8

subparts A through E.;

9

b. Identify the positions responsible for compliance with each aspect of the Storm Water

10

Permit and this Consent Decree;

11

c. Describe all BMPs and how they will be operated and/or maintained;

12

d. Denote all actions taken to control the deposition of wood waste saw dust, particulate

13

matter and other pollutants at the Facility;

14

e. Describe where and when storm samples are to be collected and include a checklist that

15

must be used by trained Facility personnel when conducting the storm water sampling

16

required under the Storm Water Permit and/or under this Consent Decree;

17

f. Describe where and when visual inspections of the Facility are to be performed and

18

include a visual inspection checklist that must be used by trained Facility personnel when

19

conducting the visual observations required under the Storm Water Permit and/or under

20

this Consent Decree; and

21

g. Describe the type vehicle traffic at the Facility.

22

65.

Commenting on the SWPPP and MIP Revisions: Schmidbauer shall submit the revised

23

SWPPP and MIP to Plaintiff for review and comment as soon as it is completed but in any

24

event no later than the date specified herein. Plaintiff shall provide comments, if any, to

25

Schmidbauer within twenty-four (24) days of receipt of the SWPPP and MIP. Schmidbauer

26

shall incorporate Plaintiff’s comments into the SWPPP and MIP or shall justify in writing why

27

any comment is not incorporated within fourteen (14) days of receiving Plaintiff’s comments.

28
21

1

66.

Additional Revisions to SWPPP and MIP: Schmidbauer shall revise the SWPPP and MIP

2

if there are any changes in the Facility’s operations, including but not limited to changes to

3

storm water discharge point(s) or changes or additions to the BMPs at the Facility resulting

4

from any ERA ‘Action Plan’ that may be required under this Consent Decree. Schmidbauer

5

shall submit any revised SWPPP and MIP to Plaintiff for review and comment within five (5)

6

days of completion. Plaintiff shall provide comments, if any, to Schmidbauer within thirty (30)

7

days of receipt of any revised SWPPP and MIP. Schmidbauer shall incorporate Plaintiff’s

8

comments into any revised SWPPP and MIP, or shall justify in writing why any comment is

9

not incorporated within thirty (30) days of receiving comments.

10

IX. MITIGATION, FEES, AND COSTS

11

67.

12

alleged in Plaintiff's Notice and Complaint, Schmidbauer shall pay the sum of $25,000 to the

13

Rose Foundation for Communities and the Environment (“Rose Foundation”). The SEP funds

14

shall be spent exclusively on projects designed to advance environmental restoration (including

15

environmental restoration work) whose purpose is the improvement water quality in Humboldt

16

Bay). Within 30 days of the Effective Date, Schmidbauer shall tender this payment to the Rose

17

Foundation for Communities and the Environment. The Rose Foundation shall provide the

18

parties identified in Paragraph 77 below a report that sets forth the organizations receiving

19

funds, a description of the project and its goals, and further itemizing the amounts provided to

20

each organization.

21

68.

22

of $73,000 to help defray Plaintiff's investigation fees and costs, expert fees and costs,

23

reasonable attorneys' fees, and all other costs incurred as a result of investigating the activities

24

at the Facility, bringing these matters to Schmidbauer's attention, and negotiating a resolution

25

of this action in the public interest. Such payment shall be made within fifteen (15) days of the

26

Effective Date.

27

69.

Supplemental Environmental Project (SEP) Funding: As mitigation of the violations

Reimbursement of Fees and Costs: Schmidbauer shall reimburse Plaintiff in the amount

Compliance Monitoring Funds: Schmidbauer shall reimburse ERF six thousand dollars

28
22

1

($6,000) per year for each of the years the Consent Decree is in effect for costs and fees

2

associated with monitoring Schmidbauer’s compliance with this Consent Decree. Monitoring

3

activities include the authorized site inspection, review of water quality sampling reports,

4

review of Action Plans and other documents submitted pursuant to this Decree, discussion or

5

written communication with representatives of Schmidbauer concerning potential changes to

6

compliance requirements, water quality sampling, informal dispute resolution, and other

7

actions necessary to monitor and ensure Schmidbauer’s compliance with this Decree. The

8

compliance monitoring fund payment shall be made payable to Environmental Advocates

9

Attorney Client Trust Account. The first installment shall be paid within fifteen (15) days of

10

the Effective Date, and the remaining installments shall be paid on October 1st for each of the

11

following years that the Consent Decree is in effect.

12

X. STIPULATED PAYMENTS

13

70.

14

communication required under Paragraphs 29 (Updated Plan), 35 (Level 2 ERA Action Plan),

15

42 (ERA Level 1 Evaluation), 49 (stormwater sample results), 56 (communications with

16

agencies), 57 (Annual Report), 59 (Plan implementation), 64 (initial SWPPP update), 66 (any

17

future SWPPP updates) of this Agreement, for any report more than five (5) days late,

18

Schmidbauer shall pay a late payment of Five Hundred Dollars ($500) per day commencing on

19

the sixth (6th) day after the report due date and to accrue per day until the document, report, or

20

communication is provided.

21

71.

22

by (a) the dates specified in Paragraphs 69 above, (b) the dates for implementation specified in

23

the Updated Plan or ERA Level 2 Action Plan, or (c) the dates for implementation of BMPs

24

specified in any future Level 1 ERA Evaluation Plans, Schmidbauer shall incur a late payment

25

of Five Hundred Dollar ($500) per day commencing on the sixth (6th) day after the date by

26

which the measure was to be completed or implemented to accrue per day until the measure is

27

performed.

In the event Schmidbauer fails to submit to Plaintiff any document, report or other

In the event Schmidbauer fails to complete a measure of specific performance required

28
23

1

72.

If Schmidbauer fails to submit to any payments required under Paragraphs 67 through 71

2

of this Consent Decree within five days of the date due, Schmidbauer shall incur a Five

3

Hundred Dollar ($500) per day late payment commencing on the sixth (6th) day after the

4

payment due date to accrue until the stipulated payment is made.

5

73.

6

$500 for each pollutant parameter that exceeds Tier Two levels in any sample taken from any

7

discrete discharge point (except for zinc as noted in Table 1). Any storm water samples that

8

Schmidbauer takes internally within the Facility (i.e., of storm water that has not left the

9

Facility's premise) for the purpose of identifying site specific areas of pollutant generation as

Beginning in the 2019-2020 Wet Season, Schmidbauer shall pay stipulated payments of

10

part of designing remedial measures for the Facility shall not be subject to the payment

11

requirement of this paragraph.

12

74.

13

Communities and the Environment within forty-five (45) days of the event that precipitated the

14

Stipulated Payment liability. Stipulated payments shall be used for projects designed to

15

improve water quality in Humboldt Bay. Schmidbauer shall send Plaintiff notice of any such

16

stipulated payments within seven (7) days of tendering such payments. The Rose Foundation

17

shall provide the parties identified in Paragraph 77 below a report that sets forth the

18

organizations receiving funds, a description of the project and its goals, and further itemizing

19

the amounts provided to each organization.

20

XI. DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT DECREE

21

75.

22

believes that a breach of this Consent Decree has occurred, the Parties shall schedule a meet

23

and confer within ten (10) calendar days of receiving written notification from the other Party

24

of a request for a meeting to determine whether a violation has occurred and to develop a

25

mutually agreed upon plan, including implementation dates, to resolve the violation. If the

26

Parties meet and confer does not resolve the issue, the Parties will seek the services of a

27

mutually acceptable mediator with experience in environmental disputes for non-binding

Any stipulated payments are pursuant to this Part shall be paid to the Rose Foundation for

Dispute Resolution Process: If a dispute under this Consent Decree arises, or either Party

28
24

1

resolution of the dispute with Defendant to pay the costs of the mediation. If resolution with a

2

mediator is not acceptable, either Party shall be entitled to all rights and remedies under the

3

law, including bringing a motion before the District Court of California, Northern District,

4

which shall retain jurisdiction over the Action for the limited purposes of enforcement of the

5

terms of this Consent Decree. The Parties agree not to object to an expedited hearing schedule

6

on any Dispute Resolution motion if one of the Parties requests one.

7

76.

8

confer or otherwise addressing and/or resolving any dispute, including an alleged breach of this

9

Consent Decree, shall be awarded in accord with the standard established by Section 505 of the

Litigation Costs and Fees: Litigation costs and fees incurred in conducting meet and

10

Clean Water Act, 33 U.S.C. §1365 and case law interpreting that standard.

11

XII. NOTICES AND SUBMISSIONS

12

77.

13

terms of this Consent Decree notice is required to be given or a report or other document is

14

required to be forwarded by one Party to another, it shall, to the extent feasible be sent to the

15

following individuals as electronic computer files at the e-mail addresses specified below. If a

16

given document cannot be e-mailed, it shall be mailed by U.S. Mail to the following addresses.

17

Any change in the individuals designated by either Party must be made in writing to the other

18

Parties.

19

As to Plaintiff:

20

Fredric Evenson
ECOLOGY LAW CENTER
P.O. Box 1000
Santa Cruz, CA 95061
Telephone: [phone]
Email: [e-mail]

21
22
23
24
25
26
27

Except as otherwise expressly provided in this Consent Decree, whenever under the

Jodene Isaacs
Environmental Advocates
5135 Anza Street
San Francisco, California 94121
Email: [e-mail]
As to the Defendant:

28
25

1
2
3

Jan Greben
125 East De La Guerra, Suite 203
Santa Barbara, California, 93105
Email: [e-mail]

4
5
6
7

Del Clark, Safety Manager
Schmidbauer Lumber, Inc.
1099 West Waterfront Drive
Eureka, California 95501
Email: [e-mail]

8
XIII. PAYMENTS
9
78.

All payments to Plaintiff (other than payments of Supplemental Environmental Project

10
funding pursuant to Paragraph 67 and Stipulated Payments pursuant to Part X shall be made by
11
check made payable to Environmental Advocates Attorney Client Trust Account. Payments
12
shall be sent via certified mail, return receipt requested, to the following address:
13
Environmental Advocates
5135 Anza Street
San Francisco, California 94121

14
15
16

79.

17

Payments pursuant to Part X shall be made by check payable to the Rose Foundation for

18

Communities and the Environment. Such payments shall be sent via certified mail, return

19

receipt requested, to the following address (with notice to the Plaintiff that such payments have

20

been sent):

21

All Supplement Environmental Project funding pursuant to Paragraph 67 and Stipulated

Tim Little
Rose Foundation for Communities and the Environment
1970 Broadway, Suite 600
Oakland, California 94612-2218

22
23
24

XIV. MISCELLANEOUS PROVISIONS

25

80.

26

counterparts which, taken together, shall be deemed to constitute one and the same document.

27

81.

Execution in Counterparts: The Consent Decree may be executed in one or more

Severability: In the event that any of the provisions of this Consent Decree is held by a

28
26

1

court to be unenforceable, the validity of the enforceable provisions shall not be adversely

2

affected.

3

82.

4

shall be construed according to its plain and ordinary meaning.

5

83.

6

express or implied, oral or written, of the Parties concerning the subject matter of this Consent

7

Decree are contained herein.

8

84.

9

binding.

Construction: The language in all parts of this Consent Decree, unless otherwise stated,

Integrated Consent Decree: All agreements, covenants, representations and warranties,

Facsimile Signatures: Signatures of the Parties transmitted by facsimile shall be deemed

10

85.

Force Majeure: No Party shall be considered to be in default in the performance of any of

11

its obligations when a failure to perform is due to a "Force Majeure." A Force Majeure event

12

is any act of God, war, fire, earthquake, flood, natural catastrophe, and restraint by court order

13

or public authority. A Force Majeure event does not include normal inclement weather or

14

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

15

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

16

due diligence has been unable to overcome, the Force Majeure. The Parties shall exercise due

17

diligence to resolve and remove any Force Majeure event.

18

86.

19

it to the Court for its approval and entry as a final judgment.

20

XV. EFFECTIVE AND TERMINATION DATES

21

87.

22

executed Consent Decree to EPA and DOJ for a 45-day review and comment period pursuant

23

to CWA section 505(c)(3) and 40 C.F.R. § 135.5. The Court shall not enter its judgment on

24

consent until the expiration of this review and comment period. If EPA or DOJ requests or

25

suggests revisions to this Consent Decree or objects to entry of this Consent Decree in the form

26

presented, the Parties shall within ten (10) days meet and confer on whether to revise this

27

Consent Decree in accord with the requested or suggested revisions provided by EPA or DOJ

The parties hereto enter into this Consent Decree, Order and Final Judgment and submit

Within three (3) days of the final signature of the Parties, Plaintiff shall submit this

28
27

1

and/or otherwise to accommodate EPA or DOJ’s objections. If the Parties do not mutually

2

agree to any such revisions or modifications, the Parties shall so notify the Court and request

3

entry of the Consent Decree in the form drafted. If the Court objects to entry of this Consent

4

Decree in the form presented, the Parties will attempt in good faith to agree to revisions of this

5

Consent Decree necessary so that it is acceptable to the Court.

6

88.

7

comment on the Consent Decree, i.e., the 45th day following these agencies’ receipt of the

8

Consent Decree, or the date on which these agencies provide notice that they require no further

9

review, whichever occurs earlier.

The Effective Date of this Consent Decree shall be the last day for EPA and DOJ to

10

89.

11

Schmidbauer has made all monetary payments owed under the Consent Decree and there is no

12

pending Dispute Resolution proceeding pursuant to the provisions of Part XI (DISPUTE

13

RESOLUTION). If Schmidbauer has not made all monetary payments owed under the Consent

14

Decree or if there is a pending Dispute Resolution proceeding, the Consent Decree shall be

15

extended until Schmidbauer has made all monetary payments owed under the Consent Decree

16

and all pending Dispute Resolution proceedings have been resolved.

17

90.

18

satisfied the conditions of termination set forth in this Part. The Consent Decree shall

19

automatically terminate thirty (30) days from the Plaintiff's receipt of this notice, unless

20

Plaintiff provides written notice to Schmidbauer within these thirty (30) days that Plaintiff

21

objects to the certification. If Plaintiff disagrees with Schmidbauer’s certification, then the

22

matter shall be subject to the Dispute Resolution provisions of Part XI (DISPUTE

23

RESOLUTION).

This Consent Decree shall terminate five (5) years from the Effective Date provided that

Schmidbauer shall initiate termination by submitting certification to Plaintiff that it has

24
25

IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as of the date

26

first set forth above.

27
28
28

1

IT IS SO ORDERED:

2

Date:

Hon. Judge Haywood S. Gilliam,.lr
U.S. District Court Judge,

.,

Northcrn District of Califomia
4

APPROVED AS TO FORM:
5

ENVIRONMENTAL ADVOCATES
6
7

Dated: T.,.o,

i.2017

By,

8

9

Attorney for Plaintiff
GREBEN AND ASSOCIATES

10

Dated

2017

By,

11

Jan Greben

Attorney for Defendant
12
11

I-1

APPROVED AS'I'O CONTENT:

14

Dated
15

b t

2Ol7

By:
ames

e"/

Ecological

Foundation

16
17

Dated:

By

17

18

Frank Schmidbauer
Schmidbauer Lumber, Inc.

19

20
21

22
23

24
25

26
21
28
29

IT IS SO ORDERED:
2

Date:

Hon. Judge Haywood S. Gilliam, Jr.
U.S. District Court Judge,

3

Northern District of California
4

APPROVED AS TO FORM:
5

ENVIRONMENTAL ADVOCATES
6
7

Dated:

By:

2017

Jodene Isaacs

Attorney for Plaintiff

8
9
10
11

GREBEN AND ASSOCIATES

Dated: ^//

2017

Jafe Gpeben

Attefmey fjpfDefendant
12
13

APPROVED AS TO CONTENT:

14

Dated:

By:

2017

James Lamport

15

Ecological Rights Foundation
16
17

: C,/0l /

Dated
18

2017

faijk Schmidbauer
chmidbauer Lumber, Inc.

19
20
21
22
23
24

25
26
27

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29

1

Table 1. Tier One and Two Levels for Facility Discharges

2
Contaminant

3
4

Tier One
Limit/Annual
NAL

5

Tier Two
Limit/Instantaneous
Maximum NAL or
CTR value

Oil and grease
Total Suspended Solids
Chemical Oxygen Demand

7

15 mg/l
100 mg/l
120 mg/l

25 mg/L
400 mg/L
120 mg/L

Total Recoverable Zinc
pH

6

0.26 mg/l
--

0.09 mg/La
6-9 units

8
9
10
11
12

a.

Schmidbauer will undertake best efforts to address source(s) of zinc that contribute to its
presence above the identified CTR value of 0.09 mg//L. However, the occurrence of zinc
above the Tier 2 value will not trigger payments as identified in Paragraph 73.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30

EXHIBIT A TO CONSENT DECREE
Ecological Rights Foundation v. Schmidbauer Lumber, Inc.

Reference
Paragraph in
Consent Decree
15
16
20
21
22
25
26
28
26
28
28
29
33
35
37
37
38
40
42
43
56
56
57
59
60
64
65
65
66
66
67
68
69

Description

Due Date

Site Mapping
Discharge points
Deploy media filters
Perimeter Inspection
NOAA data
Cover storm drains
Site Housekeeping Plan
ERF Review to SLI
Updated SWPPP - SLI to ERF
ERF (SWPPP) Review to SLI
Revised Updated SWPPP
Updated ERA Level 1 Report
Updated Plan Implementation
ERA Level 2 Action Plan
ERF Review to SLI
Update ERA Level 2 Report
Implement Level 2
ERA Level 1 (EVALUATION Plan )- Implement
Submit ERA Level 1 Plan
ERF Review to SLI
All submittals to ERF
Received by SLI from agencies
Annual report, w/logs, notes, etc.
Notification of implementation
Employee training
Revised SWPPP/MIP
ERF comments to SLI - SWPPP/MIP
SLI to incorporate or advise why not
Revisions to SWPPP/MIP
ERF to SLI - comments on changes
SEP Funding
Fees and costs
Annual oversight fee

8/15/17
8/15/17
8/15/17
8/15/17
8/15/17
7/15/17
8/15/17
9/8/17
8/15/17
9/8/17
9/22/17
8/15/17
11/1/17
9/1/18
9/30/18
10/15/18
7/31/19
11/15/18
10/1/18
10/31/18
Contemporaneous with submittal to agency(s)
Within 3 business days of reciept by SLI
July 15th
2 Months after Approval by ERF
8/15/17
8/15/17
9/8/17
9/22/17
5 Days of Changes
30 Days of Reciept
Within 30 days of Effective Date
Within 15 days of Effective Date
Within 15 days of Effective Date and Oct. 1, following years

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