California Sportfishing Protection Alliance v. USA Waste of California, Inc. et al

Filing 27

Order by Hon. Lucy H. Koh granting 26 Stipulation for Approval of Consent Agreement and Dismissal of Plaintiff's Claims with Prejudice.(lhklc3, COURT STAFF) (Filed on 1/25/2013)

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ANDREW L. PACKARD (State Bar No. 168690)
ERIK ROPER (State Bar No. 259756)
EMILY J. BRAND (State Bar No. 267564)
Law Offices of Andrew L. Packard
100 Petaluma Blvd. N Ste 301
Petaluma, CA 94952
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff CALIFORNIA
SPORTFISHING PROTECTION ALLIANCE

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non profit
corporation,

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Plaintiff,
vs.
USA WASTE OF CALIFORNIA, INC., a
Delaware corporation; JAY RAMOS, an
individual; and FELIPE MELCHOR, an
individual,

Case No. 5:12-CV-03283-LHK

STIPULATION FOR APPROVAL OF
CONSENT AGREEMENT AND
DISMISSAL OF PLAINTIFF'S CLAIMS
WITH PREJUDICE; [PROPOSED]
ORDER GRANTING DISMISSAL WITH
PREJUDICE [FRCP 4l(a)(2)]

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Defendants.

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TO THE COURT:
Plaintiff California Sportfishing Protection Alliance ("PLAINTIFF" or "CSP A"), and
Defendants USA Waste of California, Inc., Jay Ramos, and Felipe Melchor (collectively,
"DEFENDANTS"), Parties in the above-referenced matter, stipulate as follows:

WHEREAS, on or about April25, 2012, CSPA provided DEFENDANTS with a Notice
ofViolations and Intent to File Suit ("60-Day Notice Letter") under Section 505 of the Federal
Water Pollution Control Act ("Act" or "Clean Water Act"), 33 U.S.C. § 1365;

WHEREAS, on June 25,2012, CSPA filed its Complaint against DEFENDANTS in this
Court, California Sportfishing Protection Alliance v. USA Waste of California, Inc., et al.

STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER
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CASE NO. 5:12-CV-03283-LHK

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(USDC, N.D. Cal., Case No. 5:12-CV-03283-LHK) and said Complaint incorporated by

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reference all ofthe allegations contained in CSPA's 60-Day Notice Letter;
WHEREAS, DEFENDANTS deny any and all ofCSPA's claims in its 60-Day Notice

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Letter and Complaint;

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WHEREAS, CSPA and DEFENDANTS, through their authorized representatives and

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

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

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of CSPA as set forth in CSPA's 60-Day Notice Letter and Complaint, thereby avoiding the costs

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and uncertainties of further litigation. A copy of the Parties' proposed consent agreement

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("Consent Agreement") entered into by and between CSPA and DEFENDANTS is attached

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hereto as Exhibit A and incorporated by reference.

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WHEREAS, CSPA submitted the Consent Agreement via certified mail, return receipt

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requested, to the U.S. EPA and the U.S. Department of Justice ("the agencies") and the 45-day

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review period set forth at 40 C.P.R.§ 135.5 has been completed without objection by the

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agencies.

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

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

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

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

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accordance with Paragraph III.4 of the Consent Agreement, the Parties also request that this Court

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

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Ill

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Ill

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STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER

CASE NO. 5:12-CV-03283-LHK

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

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Consent Agreement.

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Dated: January 24,2013

LAW OFFICES OF ANDREW L. PACKARD

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By: Is/ Emily J. Brand
Emily J. Brand
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE

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Dated: January 24, 2013

REED MITH, LLP

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By:_\--+--1-____,.....,....A-_f

~v"'" -'- (;.........._·::-}

rA...;......

---=--

John Ly,
Julia C.
tier
Attorneys for Defendants
USA WASTE OF CALIFORNIA, INC., et al.

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STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER

CASE NO. 5:12-CV-03283-LHK

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[PROPOSED] ORDER

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Good cause appearing, and the Parties having stipulated and agreed,
IT IS HEREBY ORDERED that Plaintiff California Sportfishing Protection Alliance's
claims against Defendants USA Waste of California, Inc., Jay Ramos, and Felipe Melchor as set
forth in CSPA's 60-Day Notice Letter and Complaint filed in Case No. 5: 12-CV-03283-LHK, are
hereby dismissed with prejudice, each side to bear their own attorney fees and costs, except as
provided for by the terms of the accompanying Consent Agreement.
IT IS FURTHER ORDERED that the Court shall retain and have jurisdiction over the
Parties with respect to disputes arising under the Consent Agreement attached to the Parties'
Stipulation to Dismiss as Exhibit A. The Clerk shall close the file.
IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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Dated: _ _ _ _ _ _ __
January 25, 2013
United States District Court Judge

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STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER
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CASE NO. 5:12-CV-03283-LHK

EXHIBIT A

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ANDREW L. PACKARD (State Bar No. 168690)
ERIK M. ROPER (State Bar No. 259756)
EMILY J. BRAND (State Bar No. 267564)
Law Offices of Andrew L. Packard
100 Petaluma Blvd. N., Suite 301
Petaluma, CA 94952
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non-profit
corporation,

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Plaintiff,
vs.
USA WASTE OF CALIFORNIA, INC., a
Delaware corporation; JAY RAMOS, an
individual; and FELIPE MELCHOR, an
individual,

Case No. 5:12-cv-03283-LHK
[PROPOSED] CONSENT AGREEMENT
(Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 to 1387)

Defendants.

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WHEREAS, Plaintiff California Sportfishing Protection Alliance (hereinafter “CSPA” or

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“Plaintiff”) is a non-profit public benefit corporation dedicated to the preservation, protection, and

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defense of the environment, wildlife, and natural resources of California’s waters;

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WHEREAS, Defendant USA Waste of California, Inc. (hereinafter “USA Waste”) owns and

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operates an approximately 7.7-acre solid waste hauling and recycling facility located at 11240 and

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11260 Commercial Parkway in Castroville, California (the “Facility”), Defendant Jay Ramos

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(“Ramos”) is the District Manager for the recycling operations at the Facility and Felipe Melchor

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(“Melchor”) is the District Manager for the solid waste hauling operations at the Facility;

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[PROPOSED] CONSENT AGREEMENT

WHEREAS, unless otherwise noted, Defendant USA Waste of California, Inc., Jay Ramos,

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and Felipe Melchor shall hereinafter be referred to as “Defendants;”

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

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WHEREAS, the Facility collects and discharges storm water into Tembladero Slough and

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into the County of Monterey’s storm water drainage system, which discharges storm water from the

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Facility into the Tembladero Slough. Tembladero Slough flows into the Salinas River, and ultimately

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into the Pacific Ocean (a map of the Facility is attached hereto as Exhibit A and incorporated herein

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by reference);

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WHEREAS, storm water discharges associated with industrial activity are regulated pursuant

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to the National Pollutant Discharge Elimination System (“NPDES”), General Permit No. CAS000001

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[State Water Resources Control Board], Water Quality Order No. 91-13-DWQ (as amended by Water

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Quality Order 92-12 DWQ and 97-03-DWQ), issued pursuant to Section 402 of the Clean Water Act,

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33 U.S.C. § 1342 (hereinafter “General Permit”);
WHEREAS, on or about April 25, 2012, Plaintiff provided notice of Defendants’ alleged

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

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

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EPA Region IX; the Executive Director of the State Water Resources Control Board (“State Board”);

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the Executive Officer of the Regional Water Quality Control Board, Central Coast Region (“Regional

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Board”); and to Defendants, as required by the Act, 33 U.S.C. § 1365(b)(1)(A) (a true and correct

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copy of CSPA’s Notice Letter is attached hereto as Exhibit B and incorporated herein by reference);

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

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maintain that Defendants and the Facility have complied at all times with the provisions of the General

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Permit;

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WHEREAS, CSPA filed a complaint (“Complaint”) against Defendants in the United States
District Court, Northern District of California, on June 25, 2012;

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WHEREAS, Defendants deny the allegations of the Complaint;

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

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-2[PROPOSED] CONSENT AGREEMENT

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

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enter this Consent Agreement, but otherwise preserve all affirmative defenses in the event this

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Consent Agreement is not entered by this Court;
WHEREAS, this Consent Agreement shall be submitted to the United States Department of

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

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

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“Court Approval Date;”
WHEREAS, at the time the Consent Agreement is submitted for approval to the United States

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District Court, CSPA shall request a dismissal of the Complaint with prejudice and the Parties shall

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stipulate and request that the Court retain jurisdiction for the enforcement of this Consent Agreement

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as provided herein;
AND WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter

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without further litigation.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND

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ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

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I.

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COMMITMENT OF USA WASTE
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Compliance With General Permit & Clean Water Act. Beginning immediately, and

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throughout the term of this Consent Agreement, USA Waste, as a corporate entity acting by and

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through its designated agent, representatives and/or employees, shall commence all measures needed

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to operate the Facility in full compliance with the requirements of the General Permit and the Clean

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Water Act, subject to any defenses available under the law.

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USA Waste’s Implementation of Specific Storm Water Best Management

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Practices. USA Waste shall complete the implementations of the following storm water control best

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management practices (“BMPs”):

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(a)

Within 30 days after the Court Approval Date, USA Waste shall engage a qualified

professional engineering firm to prepare a “Site Assessment and BMP Feasibility Study” to review

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-3[PROPOSED] CONSENT AGREEMENT

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stormwater runoff drainages and pathways at the Facility, potential sources of specific pollutants,

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and the design capacity of the current stormwater management system. This project must include:

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i.

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ii.
Preparation of a map and table identifying the square footage of the sub-basin
drainage from which each drop inlet captures runoff;

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iii.
Sampling of drain inlet Nos. SD06, SD14, SD16, and SD17, as shown on
Exhibit A, to evaluate the potential sources of TSS, Specific Conductivity, Iron, and
Oil & Grease in stormwater, including the relative magnitude of each sub-basin’s
impact on stormwater;

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iv.
Identification of any the drop inlets whose flow capacity exceeds the capacity of
the existing BMP, based on a 2-year, 1-hour storm event.

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Preparation of a facility map of sub-basin drainages;

In addition, the “Site Assessment and BMP Feasibility Study” shall provide alternatives and
recommendations for improving the Facility’s stormwater management facilities and management
practices, including alternatives and recommendations for immediate, short-term, and long-term
operational, structural, and treatment BMPs.

(b)

Based on the “Site Assessment and BMP Feasibility Study,” USA Waste shall

identify and select improvements to the Facility’s stormwater management facilities and
management practices. On or before January 30, 2013, USA Waste shall provide to CSPA a copy of
the “Site Assessment and BMP Feasibility Study” and a list of the selected improvements, including
a proposed schedule for implementation of the selected improvements.

(c)

USA Waste shall regularly monitor and maintain the storm water drainage system,

BMPs and drop inlets for the Facility; document such maintenance; and maintain records thereof
with the SWPPP for the Facility as required by the terms of the General Permit. Further, USA
Waste shall ensure that appropriate personnel are properly trained in storm water management and
that records of any such storm water management training of Facility personnel shall also be
maintained along with the SWPPP for the Facility;

(d)

USA Waste shall repair and maintain all BMP treatment systems used at the Facility,

including but not limited to (1) properly attaching all currently-installed drain inlet filter bags; (2)

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-4[PROPOSED] CONSENT AGREEMENT

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placing filter bags in drain inlets as identified and recommended through the “Site Assessment and

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BMP Feasibility Study”; and (3) maintaining the inlet and bags.

(e)

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Within 30 days after the Court Approval Date, USA Waste shall install a rainfall

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recording device at the Facility and maintain documentation along with the Facility SWPPP of the

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daily rainfall occurring at the Facility during the 2012-2013, 2013-2014, and 2014-2015 Wet

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Seasons. In addition to the rainfall data gathered from the rainfall recording device described herein,

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USA Waste may elect to also maintain documentation of precipitation data recorded off-site at other

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nearby, reliable and objectively verifiable rainfall gauges (e.g., as found on a website maintained by

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a government agency);

(f)

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Within 30 days after the Court Approval Date, USA Waste shall employ a

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regenerative sweeper on all paved surfaces of the Facility, including sweeping the entrance and 25

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feet in both directions of the public street off-site or to the extent of any visible track-out, whichever

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is greater. USA Waste will sweep the Facility three times per week during the 2012-2013, 2013-

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2014, and 2014-2015 Wet Seasons. USA Waste shall sweep once a week during the Dry Season,

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during the life of this Consent Agreement. USA Waste may decrease the frequency of sweeping

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after the 2013-2014 Wet Season if the Facility consistently meets all of the applicable benchmarks

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identified in Exhibit C attached hereto.
3.

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SWPPP Amendments/Additional BMPs. Within 30 days after the Court Approval

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Date, USA Waste shall formally amend the Storm Water Pollution Prevention Plan (“SWPPP”) for the

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Facility to incorporate all of the relevant requirements of this Consent Agreement, as well as the

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revised Facility map attached hereto as Exhibit A.
4.

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discharge point at the Facility, as required by the General Permit.
5.

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Sampling Discharge Points. USA Waste shall collect samples during QSEs from each

Sampling Frequency. USA Waste shall collect and analyze samples from four (4)

Qualifying Storm Events1 (to the extent that such QSEs occur) , in each Wet Season occurring during

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“Qualifying Storm Events” or “QSEs” under the General Permit are those events in which (i) the
samples taken are preceded by at least three (3) working days during which no storm water discharges
from the Facility have occurred; (ii) the samples are collected within the first hour that flow is

-5[PROPOSED] CONSENT AGREEMENT

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the term of this Consent Agreement (2012-2013; 2013-2014; 2014-2015), subject to a sufficient

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number of QSEs as defined herein occurring each Wet Season (including during the 2012-2013 Wet

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Season after the Court Approval Date). The storm water sample results shall be compared with the

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values set forth in Exhibit C, attached hereto, and incorporated herein by reference. If the results of

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any such samples exceed the parameter values set forth in Exhibit C, USA Waste shall comply with

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the “Action Memorandum” requirements set forth below.

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6.

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

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

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the Facility shall be delivered to the laboratory as soon as practicable to ensure that sample “hold

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time” is not exceeded. Analytical methods used by the laboratory shall be adequate to detect the

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individual constituents at or below the values specified on Exhibit C. Sampling results shall be

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provided to CSPA within THIRTY (30) days of USA Waste’s receipt of the laboratory report from

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each sampling event pursuant to the Notice provisions below.

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7.

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

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Meet-and-Confer. If any sample taken during the three (3) Wet Seasons exceeds the benchmark

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levels set forth in Exhibit C, or if USA Waste fails to collect and analyze samples from the required

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number of storm events described herein, as qualified in the General Permit, or if USA Waste fails to

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timely comply with any of obligation set forth in this Consent Agreement, USA Waste shall prepare a

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written statement discussing the exceedance(s), the failure to collect and analyze samples from the

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required number of QSEs, and/or the failure to timely comply with any obligation set forth in this

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Consent Agreement (“Action Memorandum”). In the event that USA Waste’ sampling evidences

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exceedances of any of the benchmark levels set forth in Exhibit C, the Action Memorandum shall

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discuss the possible cause(s) and/or source(s) of the exceedance(s), and what additional measures USA

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Waste will take to address and eliminate the problem and future exceedances. In the event that USA

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Waste fails to collect and analyze samples from the required number of QSEs, the Action

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observed at the Discharge Point being sampled; and (iii) the samples can be and are collected during
daylight operating hours. If the definition of QSE under the General Permit is amended or replaced
during the term of this Agreement, the new definition of QSE shall apply.

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Memorandum shall discuss the possible cause(s) of this failure and additional measures that will be

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taken by USA Waste to ensure that USA Waste collects and analyzes samples from the required

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number of storm events the following Wet Season. In the event that USA Waste fails to timely

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comply with any other obligation set forth in this Consent Agreement, the Action Memorandum shall

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discuss the possible reason(s) for this failure, and what actions USA Waste has taken and/or will take

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in the future to remedy the failure to timely comply with any obligation set forth herein. The Action

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Memorandum shall be provided to CSPA not later than July 15 following the conclusion of each Wet

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Season occurring during the term of this Consent Agreement. Recognizing that a SWPPP is an

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ongoing iterative process meant to encourage innovative BMPs, such additional measures may

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

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

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

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at the Facility. Such additional measures proposed by USA Waste, to the extent feasible, shall be

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implemented immediately and in no event later than SIXTY (60) days after the due date of the Action

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Memorandum. Within THIRTY (30) days of implementation of an additional BMP, the Facility

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SWPPP shall be amended to include all additional BMP measures designated in the Action

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Memorandum. CSPA may review and comment on an Action Memorandum and suggest any

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additional pollution prevention measures it believes are appropriate; however, CSPA’s failure to do so

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shall not be deemed to constitute agreement with the proposals set forth in the Action Memorandum.

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Upon request by CSPA, USA Waste agrees to meet and confer in good faith (at the Facility, if

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

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8.

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

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

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set forth above, USA Waste shall permit representatives of CSPA to perform up to three (3) physical

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inspections of the Facility during the term of this Consent Agreement. These inspections shall be

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performed by CSPA’s counsel and consultant(s) and may include sampling, photographing, and/or

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videotaping and if requested CSPA shall provide USA Waste with a copy of all sampling reports,

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photographs and/or video. CSPA shall provide at least forty-eight (48) hours advance notice of such

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physical inspection, except that USA Waste shall have the right to deny access if circumstances would

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make the inspection unduly burdensome and pose significant interference with business operations or

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any party/attorney, or the safety of individuals. In such case, USA Waste shall specify at least three

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

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USA Waste shall not make any alterations to Facility conditions during the period between receiving

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CSPA’s initial forty-eight (48) hour advance notice and the start of CSPA’s inspection that USA

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Waste would not otherwise have made but for receiving notice of CSPA’s request to conduct a

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physical inspection of the Facility, excepting any actions taken in compliance with any applicable laws

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or regulations. Nothing herein shall be construed to prevent USA Waste from continuing to

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implement any BMPs identified in the SWPPP during the period prior to an inspection by CSPA or at

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any time.

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9.

USA Waste’ Communications with Regional and State Boards. During the term of

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this Consent Agreement, USA Waste shall provide CSPA with copies of all documents submitted to or

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

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Facility and/or USA Waste’s compliance or lack of compliance with the General Permit, including,

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but not limited to, all documents and reports submitted to the Regional Board and/or State Board as

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required by the General Permit. All such material documents and reports shall be provided to CSPA

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pursuant to the Notice provisions set forth below at the time that USA Waste submits its Annual

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Report to the Regional Board.
10.

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

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

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the Consent Agreement, including the amendments required under Paragraph 3 herein, within fourteen

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(14) days of such amendment.

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II.

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MITIGATION, COMPLIANCE MONITORING AND FEES AND COSTS
1.

Mitigation Payment In Lieu Of Civil Penalties. As mitigation of the Clean Water

Act violations alleged in CSPA’s Complaint, USA Waste agrees to pay the sum of THIRTY-TWO

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-8[PROPOSED] CONSENT AGREEMENT

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THOUSAND DOLLARS ($32,000) within SEVEN (7) business days after the Court Approval Date to

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the Rose Foundation for Communities and the Environment (“Rose Foundation”) for projects to

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improve water quality in local watersheds of Monterey County. Payment shall be provided to the

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Rose Foundation by mailing it to: Rose Foundation, Attn: Tim Little, 6008 College Avenue, Suite #10,

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Oakland, CA 94618.
2.

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Compliance Monitoring Funding.

To defray CSPA’s reasonable investigative,

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expert, consultant and attorneys’ fees and costs associated with monitoring USA Waste’s compliance

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with this Consent Agreement, USA Waste agrees to reimburse CSPA for its reasonable fees and costs

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incurred up to but not exceeding the sum of FOUR THOUSAND DOLLARS ($4,000) during the term

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of this Consent Agreement. CSPA shall use these funds to conduct site inspections, review water

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quality sampling reports, review Annual Reports, discussions with representatives of USA Waste

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concerning the Action Memoranda referenced above, participate in meet and confer sessions and to

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review potential changes to the compliance requirements herein. USA Waste shall submit a check

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made payable to the “Law Offices of Andrew L. Packard Attorney-Client Trust Account” within

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TWENTY (20) days of the Court Approval Date.
3.

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Fees & Costs. USA Waste agrees to reimburse CSPA in the amount of THIRTY-

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FOUR THOUSAND DOLLARS ($34,000) to defray CSPA’s reasonable investigative, expert,

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consultant and attorneys’ fees and costs, and all other costs incurred as a result of investigating the

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activities at the Facility, bringing the Action and negotiating a resolution in the public interest. Such

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

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within TWENTY (20) days after the Court Approval Date. CSPA agrees to accept such payment in

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full satisfaction of any and all claims it may have against any and all Defendants for all such fees and

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costs incurred in this action up to the Effective Date of this Consent Decree.

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III.

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DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT AGREEMENT
1.

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

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values specified on Exhibit C and Action Memoranda, if a dispute under this Consent Agreement

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arises, or either Party believes that a breach of this Consent Agreement has occurred, CSPA and USA

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-9[PROPOSED] CONSENT AGREEMENT

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Waste shall meet and confer within SEVEN (7) days of receiving written notification from the other

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

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mutually agreed upon plan, including implementation dates, to resolve the dispute. If CSPA and USA

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Waste fail to meet and confer, or the meet-and-confer does not resolve the issue, after at least seven

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

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

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California, Northern District, which shall retain jurisdiction over the Action for the limited purposes of

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enforcement of the terms of this Consent Agreement. CSPA and USA Waste shall be entitled to seek

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fees and costs incurred in any such motion, and such fees and costs may be awarded, pursuant to the

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provisions set forth in Section 505(d) of the Clean Water Act, 33 U.S.C. §1365(d), and applicable case

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law interpreting such provision.

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2.

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

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Consent Agreement, CSPA, on its own behalf and on behalf of its members, subsidiaries, successors,

14

assigns, directors, officers, agents, attorneys, representatives, and employees, releases Defendants and

15

their officers, directors, employees, shareholders, parents, subsidiaries, and affiliates, and each of their

16

predecessors, successors and assigns, and each of their agents, attorneys, consultants, and other

17

representatives (each a “Released Defendant Party”) from, and waives all claims which arise or could

18

have arisen from or pertain to the Complaint or Notice Letter, including, without limitation, all claims

19

for injunctive relief, damages, penalties, fines, sanctions, mitigation, fees (including fees of attorneys,

20

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

21

claimed in the Complaint or Notice Letter, for the alleged failure of Defendants to comply with the

22

Clean Water Act at the Facility, up to the Effective Date of this Consent Agreement.

23

During the term of the Consent Agreement, CSPA agrees that neither CSPA, its officers,

24

executive staff, or members of its governing board nor any organization under the control of CSPA, its

25

officers, executive staff, or members of its governing board, will file any lawsuit against Defendants

26

pertaining to the Facility seeking relief for alleged violations of the Clean Water Act or the General

27

Permit. CSPA further agrees that, during the term of the Consent Agreement, CSPA will not support

28
29
30

- 10 [PROPOSED] CONSENT AGREEMENT

1

other lawsuits, by providing financial assistance, personnel time or other affirmative actions, against

2

Defendants pertaining to the Facility that may be proposed by other groups that or individuals who

3

would rely upon the citizen suit provision of the Clean Water Act to challenge Defendants’

4

compliance with the Clean Water Act or General Permit.
3.

5

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

6

those Released Defendant Parties under their control, release CSPA (and its officers, directors,

7

employees, members, parents, subsidiaries, and affiliates, and each of their successors and assigns, and

8

its agents, attorneys, and other representatives) from, and waive all claims which arise or could have

9

arisen from or pertain to the Complaint or the Notice Letter, including all claims for fees (including

10

fees of attorneys, experts, and others), costs, expenses or any other sum incurred or claimed or which

11

could have been claimed for matters associated with or related to the Complaint or the Notice Letter

12

up to the Effective Date of this Consent Agreement.
4.

13
14

Upon the Court Approval Date, the Parties shall file with the Court a Stipulation and

Order that shall provide that:
a.

15

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

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

16

b.

17

the Court shall retain and have jurisdiction over CSPA and USA Waste with

respect to disputes arising under this Agreement.

18
19

Nothing in this Consent Agreement shall be construed as a waiver of any Party’s right to appeal from

20

an order that arises from an action to enforce the terms of this Consent Agreement. The Parties agree

21

that Defendants Ramos and Melchor shall be dismissed from this matter with prejudice and that all

22

obligations under this Consent Decree shall be those of USA Waste and CSPA, and not of Defendants

23

Ramos or Melchor.

24

IV.

25

MISCELLANEOUS PROVISIONS
1.

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

26

and costly litigation. Nothing in this Consent Agreement shall be construed as, and Defendants

27

expressly do not intend to imply, an admission as to any fact, finding, issue of law, or violation of law,

28
29
30

- 11 [PROPOSED] CONSENT AGREEMENT

1

nor shall compliance with this Consent Agreement constitute or be construed as an admission by

2

Defendants of any fact, finding, conclusion, issue of law, or violation of law. However, this paragraph

3

shall not diminish or otherwise affect the obligation, responsibilities, and duties of the Parties under

4

this Consent Agreement.

5

2.

The Consent Agreement shall terminate on September 30, 2015.

6

3.

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

7

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

8

Agreement shall be valid as an original.

9

4.

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

10

5.

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

11
12

to be unenforceable, the validity of the enforceable provisions shall not be adversely affected.
6.

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

13

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

14

pursuant to California law, without regard to conflict of law principles.

15

7.

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

16

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

17

of this Consent Agreement.

18

8.

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

19

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

20

This Consent Agreement and its attachments are made for the sole benefit of the Parties, and no other

21

person or entity shall have any rights or remedies under or by reason of this Consent Agreement,

22

unless otherwise expressly provided for therein.

23

9.

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

24

Agreement or related thereto that are to be provided to CSPA pursuant to this Consent Agreement

25

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

26

alternative, shall be sent by electronic mail transmission to the email addresses listed below:

27
28
29
30

Bill Jennings, Executive Director
California Sportfishing Protection Alliance

- 12 [PROPOSED] CONSENT AGREEMENT

1
2
3
4
5
6
7
8
9
10
11
12

3536 Rainier Avenue
Stockton, CA 95204
E-mail: [e-mail]
With copies sent to:
Andrew L. Packard
Erik M. Roper
Emily J. Brand
Law Offices of Andrew L. Packard
100 Petaluma Boulevard North, Suite 301
Petaluma, CA 94952
Tel: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Any notices or documents required or provided for by this Consent Agreement or related thereto that
are to be provided to USA Waste pursuant to this Consent 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:

13
14
15
16
17

Xavier Ramos, District Manager
USA Waste of California, Inc., dba Carmel Marina Corp.
11260 Commercial Parkway
Castroville, CA 95012
Tel.: [phone]
[e-mail]

18

With copies sent to:

19

John Lynn Smith, Esq.
Reed Smith, LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

20
21
22
23
24
25
26
27

Andrew M. Kenefick, Esq.
Senior Legal Counsel
Western Group Legal Department
Waste Management
720 Fourth Avenue, Ste. 400
Kirkland, WA 98033
Tel: [phone]
Fax: [phone]
Email: [e-mail]

28
29
30

- 13 [PROPOSED] CONSENT AGREEMENT

1

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

2

10.

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

3

11.

Neither CSPA nor USA Waste shall be considered to be in default in the performance

4

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

5

event is any circumstances beyond the Party’s control, including, without limitation, any act of God,

6

war, fire, earthquake, flood, and restraint by court order or public authority. A Force Majeure event

7

does not include normal inclement weather, such as anything less than or equal to a 100 year/24-hour

8

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

9

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

10

diligence has been unable to overcome, the Force Majeure.
12.

11

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

12

form presented, the Parties shall use their best efforts to work together to modify the Consent

13

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

14

modify this Consent Agreement in a mutually acceptable manner, this Consent Agreement shall

15

become null and void.
13.

16
17

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

and shall not be interpreted for or against any Party on the ground that any such Party drafted it.
14.

18

This Consent Agreement and its attached exhibits contain all of the terms and

19

conditions agreed upon by the Parties relating to the matters covered by the Consent Agreement, and

20

supersede any and all prior and contemporaneous agreements, negotiations, correspondence,

21

understandings, and communications of the Parties, whether oral or written, respecting the matters

22

covered by this Consent Agreement. This Consent Agreement may be amended or modified only by a

23

writing signed by CSPA and USA Waste or their authorized representatives, and then by order of the

24

Court.

25

15.

Except in case of an emergency but subject to the regulatory authority of any applicable

26

governmental authority, any breach of or default under this Consent Agreement capable of being cured

27

shall be deemed cured if, within five (5) days of first receiving notice of the alleged breach or default,

28
29
30

- 14 [PROPOSED] CONSENT AGREEMENT

1

or within such other period approved in writing by the Party making such allegation, which approval

2

shall not be unreasonably withheld, the party allegedly in breach or default has completed such cure

3

or, if the breach or default can be cured but is not capable of being cured within such five (5) day

4

period, has commenced and is diligently pursuing to completion such cure.

5

The Parties hereto enter into this Consent Agreement and respectfully submit it to the Court for

6

its approval and entry as an Order and Final Judgment, provided, however that, pursuant to 33 U.S.C.

7

§ 1365(c)(3), the Court shall not enter this Consent Decree until 45 days after receipt of a copy of the

8

proposed Consent Decree by the Attorney General and the Administrator of the U.S. Environmental

9

Protection Agency. If the Attorney General and the Administrator of the U.S. Environmental

10

Protection Agency do not submit comments on the Consent Decree, the Parties shall notify the Court

11

when the 45-day statutory review period has ended.

12

Dated: ___________________

California Sportfishing Protection Alliance

13
By:

14
15
16

Dated: ___________________

___________________________________
Bill Jennings, Executive Director

USA Waste of California, Inc.

17
By:

18
19

___________________________________
Robert E. Longo
Vice President and Assistant Secretary

20
21

Dated: ___________________

Jay Ramos

22
By:

23

___________________________________
Jay Ramos, Defendant

24
25

Dated: ___________________

Felipe Melchor

26
27

By:

___________________________________
Felipe Melchor, Defendant

28
29
30

- 15 [PROPOSED] CONSENT AGREEMENT

1

or within such other period approved in writing by the Party making such allegation, which approval

2

shall not be unreasonably withheld, the party allegedly in breach or default has completed such cure

3

or, if the breach or default can be cured but is not capable of being cured within such five (5) day

4

period, has commenced and is diligently pursuing to completion such cure.

5

The Parties hereto enter into this Consent Agreement and respectfully submit it to the Court for

6

its approval and entry as an Order and Final Judgment, provided, however that, pursuant to 33 U.S.C.

7

§ 1365(c)(3), the Court shall not enter this Consent Decree until 45 days after receipt of a copy of the

8

proposed Consent Decree by the Attorney General and the Administrator of the U.S. Environmental

9

Protection Agency. If the Attorney General and the Administrator of the U.S. Environmental

10

Protection Agency do not submit comments on the Consent Decree, the Parties shall notify the Court

11

when the 45-day statutory review period has ended.

12
13

Dated:

California Sportfishing Protection Alliance

14
By:

15
16

17

Dated: _ _ _ _ _ _ __

USA Waste of California, Inc.

18

19
By:

20

Robert E. Longo
Vice President and Assistant Secretary

21
22
23

Dated: - - - - - - - - - -

Jay Ramos

24
By:

25

Jay Ramos, Defendant

26
27

28

Dated: - - - - - - - - - -

Felipe Melchor

- 15 [PROPOSED] CONSENT AGREEMENT

03/20/2005

CONTAINER YARD

5024371120

18:00

PAGE

15/18

1

or within such other period approved in writing by the Party making such a1Jegation, which approval

2

sha11 not be unreasonably withheld~ the party allegedly in breach or default has completed such cure

3

or, if the breach or default can be cured but is not capable of being cured within such ftve (5) day

4

period, has comn1enced and is diligently pursuing to completion such cure.
The Parties hereto enter into this Consent Agreetnent and respectfully submit it to the Court for

5
6

its apptoval and entry as an Order and Final Judgment, provided, however that, pursuant to 33 U.S.C.

7

§ 1365(c)(3 ), the Court shall not enter this Consent Decree until 45 days after receipt of a copy of the

8

proposed Consent Decree by the Attorney General and the Adtninistrator of the U.S. Environtnental

9

Protection Agency. If the Attorney General and the Administrator of the U.S. Environmental

10

Protection Agency do not sub1nit comments on the Consent Decree~ the Parties sha1 I notify the Court

11

when the 45-day statutory review period has ended.

12

Dated:

California Sportfishing Protection Alliance

13
By:

14

Bill Jennings, Executive Director

15
16

Dated:

17

It

/so /e.ot).

I

I

USA Waste of California~ Inc.

By:

18

~-::::f<z...u= ===Robert E. Longo

19

Vice President and Assistant Secretary

20

21

Dated:

------------·---

Jay Ran1os

22
By:

23

.T ay Ramos~

Defendant

24

25

Dated: ------~~

Felipe Melchor

26
27

By:

Felipe Mclchot, Defendant
28
- 15 [PROPOSED] CONSENT AGREEMENT

or within such other period approved in writing by the Party making such allegation. which approval
2

shall not be unreasonably withheld , the rarly allegedly in breach or dcHndt has completed such cure

3

or, if the breach or def~HIIt can be cured but is not capable of being cured within such five (5) day

4

period, has commenced and is diligently pursuing to completion such cure.

5

The Parties hereto enter into this Consent Agreement and respectfully submit it to the Court !'or

6

its arproval and entry as an Ordct· and Final Judgment, provided. however that, pursuant to 33 U.S.C.

7

§ l365(c)(3), the Court shall not enter this Consent Decree until 45 days after receipt of a copy ol'thc

8

proposed Consent Decree by the Attorney General and the J\dm in istrator ol the U.S. Environmental

9

Protection Agency. If the Attorney General and the Administrator of the U.S. Environmental

10

Protection Agency do not submit comments on the Consent Decree, the Parties shall notify the Court

11

when the 45-day statutory review period has ended.

12

Dated: - - - - -- - -

California Sportfishing Protection Alliance

13

14

By:
Bill Jennings, Executive Dirc:ctor

15
16

Dated:

US!\ Waste

or California, Inc.

17

18

13y:

- - ---··- - - - - - -

Robert E. Longo
Vice President and Assistant Secretary

19

20
21

Dated:

I:J-/3/J:L•

I

--- -

22

Jayd,~ •wl
Uy.

23

-

~~

Jay Ramos, Defendant

24
25

Dated: __j_Z_~-:5_ -/Z.....~

7
1 clipc

Melchor

26
27

- --------.

By:

28

- 15 fPROPOSEDJ CONSENT AGRt:-J::MENT

1

EXHIBIT A – Facility Site Map

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

[PROPOSED] CONSENT AGREEMENT

snm Storm Drain
" Inactive
MR® Manhole
--~- Underground

Drainage Line
sw.A. Storm Water

Discharge Point
Runoff
Paved Areas

COMMERCIAL P""'-··
"""'""AY

~ Surface

UnpavedNegetated Areas

- -------

50
WAST E MANAGEMENTe

0

50

SCALE 1" = 100'

Think Gl'een:
FIGURE2
CRAWFORD
CONSULTING

I N C.

100

SWPPP FACILITY SITE MAP
CARMEL MAIUNA CORPORATION

11140 AND 111~~ RECYCLING J'ACILITY
MMERCW. PARKWAY, CASTROVILLE, CA.

DATE:

06/25/12
FILENAME:

SITE0612.DWG
PROJ. No.

EXHIBIT B – Notice Letter

700415122v1

[PROPOSED] CONSENT AGREEMENT

April 25, 2012
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Jay Ramos, District Manager
Felipe Melchor, Facility Operator Contact
Eddie Pettit, Regional Board Communication Liaison
Elaina Smith, Facility Operator Contact
USA Waste of California, Inc., dba, Carmel Marina Corporation
11240 Commercial Parkway
Castroville, CA 95012
C T Corporation System, Agent for Service of Process
USA Waste of California, Inc.
818 W. Seventh Street
Los Angeles, CA 90017

Re:

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

Dear Messrs. Ramos, Melchor, Pettit and Ms. Smith:
I am writing on behalf of the California Sportfishing Protection Alliance
(“CSPA”) in regard to violations of the Clean Water Act (“the Act”) occurring at the
USA Waste of California, Inc. waste transfer and recycling facility located at 11240
Commercial Parkway in Castroville, California (“the Facility”). USA Waste of
California, Inc. is doing business at the Facility under the fictitious business name of
Carmel Marina Corporation (“Carmel Marina”). The WDID identification number for
the Facility is 327I017456.1 CSPA is a non-profit public benefit corporation dedicated to
the preservation, protection and defense of the environment, wildlife and natural
resources of California waters and the Pacific Ocean. This letter is being sent to you as
1

Part of Facility formerly operated under WDID 327I015253, which was terminated on January 28, 2010.

Notice of Violation and Intent To File Suit
April 25, 2012
Page 2 of 18

the responsible owner, officer, or operator of the Facility. Unless otherwise noted, USA
Waste of California, Inc., Jay Ramos, Felipe Melchor, Eddie Pettit, and Elaina Smith
shall hereinafter be collectively referred to as Carmel Marina.
This letter addresses Carmel Marina’s unlawful discharges of pollutants from the
Facility to the County of Monterey’s storm water drainage system and Tembladero
Slough, which then conveys storm water discharged from the Facility into the Salinas
River, and then to the Pacific Ocean. This letter addresses the ongoing violations of the
substantive and procedural requirements of the Clean Water Act and National Pollutant
Discharge Elimination System (“NPDES”) General Permit No. CAS000001, State Water
Resources Control Board Water Quality Order No. 91-13-DWQ, as amended by Order
No. 97-03-DWQ (“General Permit” or “General Industrial Storm Water Permit”).
Section 505(b) of the Clean Water Act provides that sixty (60) days prior to the
initiation of a civil action under Section 505(a) of the Act (33 U.S.C. § 1365(a)), a citizen
must give notice of intent to file suit. Notice must be given to the alleged violator, the
U.S. Environmental Protection Agency (“the EPA”), and the State in which the violations
occur.
As required by the Clean Water Act, this Notice of Violation and Intent to File
Suit provides notice of the violations that have occurred, and continue to occur, at the
Facility. Consequently, USA Waste of California, Inc., Allied Waste Systems, Inc.,
Waste Management of California, Inc., Jay Ramos, Felipe Melchor, Eddie Pettit and
Elaina Smith are hereby placed on formal notice by CSPA that, after the expiration of
sixty (60) days from the date of this Notice of Violation and Intent to File Suit, CSPA
intends to file suit in federal court against USA Waste of California, Inc., Jay Ramos,
Felipe Melchor, Eddie Pettit and Elaina Smith under Section 505(a) of the Clean Water
Act (33 U.S.C. § 1365(a)), for violations of the Clean Water Act and the General Permit.
These violations are described more fully below.
I.

Background.

Carmel Marina owns and operates a waste transfer and recycling facility located
in Castroville, California. The Facility falls under Standard Industrial Classification
(“SIC”) Code 5093 (“Scrap Recycling Facilities”), 4953 (“Refuse Systems”), and 4212
(“Motor Freight Transportation and Warehousing”). The Facility is primarily used to
receive, store, handle, recycle and transport waste and scrap materials. Other activities at
the Facility include the use and storage of heavy machinery and motorized vehicles,
including trucks used to haul materials to, from and within the Facility.
Carmel Marina collects and discharges storm water from its approximately 6.7acre Facility through at least four (4) discharge points into the County of Monterey’s
storm water drainage system and Tembladero Slough. The storm water discharged by
Carmel Marina then travels into the Salinas River, and finally into the Pacific Ocean.

Notice of Violation and Intent To File Suit
April 25, 2012
Page 3 of 18

The Tembladero Slough and Salinas River and its tributaries and the Pacific Ocean are
waters of the United States within the meaning of the Clean Water Act.
The Central Coast Regional Water Quality Control Board (“Regional Board”) has
established water quality standards for waters in its region, in the “Water Quality Control
Plan for the Central Coast Basin” (“Basin Plan”). The Basin Plan requires “[a]ll waters
shall be maintained free of toxic substances in concentrations which are toxic to, or
which produce detrimental physiological responses in, human, plant, animal, or aquatic
life.” The Basin Plan also requires “[t]he pH value shall neither be depressed below 6.5
nor raised above 8.3.” Id. at III-5. Further, it prohibits the discharges of oil and grease,
stating that “[w]aters shall not contain oils, greases, waxes, or other similar materials in
concentrations that result in a visible film or coating on the surface of the water or on
objects in the water, that cause nuisance, or that otherwise adversely affect beneficial
uses.” Id. at III-3.
The Basin Plan provides maximum contaminant levels (“MCLs”) for organic
concentrations and inorganic and fluoride concentrations, not to be exceeded in domestic
or municipal supply. Id. at III-6 - III-7. It requires that water designated for use as
domestic or municipal supply shall not exceed the following maximum contaminant
levels: aluminum – 1.0 mg/L; arsenic - 0.05 mg/L; lead - 0.05 mg/L; and mercury - 0.002
mg/L. Id. at III-7. The EPA has also issued recommended water quality criterion MCLs,
or Treatment Techniques, for mercury - 0.002 mg/L; lead – 0.015 mg/L; chromium – 0.1
mg/L; and, copper – 1.3 mg/L. The EPA has also issued a recommended water quality
criterion for aluminum for freshwater aquatic life protection of 0.087 mg/L. In addition,
the EPA has established a secondary MCL, consumer acceptance limit for aluminum 0.05 mg/L to 0.2 mg/L and zinc - 5.0 mg/L. See http://www.epa.gov/safewater/
mcl.html. Finally, the California Department of Health Services has established the
following MCL, consumer acceptance levels: aluminum – 1 mg/L (primary) and 0.2
mg/L (secondary); chromium – 0.5 mg/L (primary); copper – 1.0 mg/L (secondary); iron
– 0.3 mg/L; and zinc – 5.0 mg/L. See California Code of Regulations, title 22, §§ 64431,
64449.
The California Toxics Rule (“CTR”), issued by the EPA in 2000, establishes
numeric receiving water limits for certain toxic pollutants in California surface waters.
40 CFR § 131.38. The CTR establishes the following numeric limits for freshwater
surface waters: arsenic – 0.34 mg/L (maximum concentration) and 0.150 mg/L
(continuous concentration); chromium (III) – 0.550 mg/L (maximum concentration) and
0.180 mg/L (continuous concentration); copper – 0.013 mg/L (maximum concentration)
and 0.009 mg/L (continuous concentration); lead – 0.065 mg/L (maximum concentration)
and 0.0025 mg/L (continuous concentration).
The Regional Board has identified waters of the Central Coast as failing to meet
water quality standards for pollutant/stressors such as unknown toxicity, numerous
pesticides, and mercury. See www.swrcb.ca.gov/water_issues/programs/tmdl/docs/2002reg3303dlist.pdf. It identified that the Tembladero Slough fails to meet water

Notice of Violation and Intent To File Suit
April 25, 2012
Page 4 of 18

quality standards due to the pollutant/stressors chlorophyll-a, chlorpyrifos, diazinon,
enterococcus, Escherichia coli, fecal coliform, nitrate, nutrients, pesticides, sediment
toxicity, total coliform, turbidity and pH. It identified that the Salinas River fails to meet
water quality standards due to the pollutant/stressors chlorophyll-a, chlorpyrifos,
diazinon, Escherichia coli, fecal coliform, low dissolved oxygen, nitrate, sediment
toxicity, turbidity, unknown toxicity and pH. Discharges of listed pollutants into an
impaired surface water may be deemed a “contribution” to the exceedance of CTR, a
water quality standard, and may indicate a failure on the part of a discharger to
implement adequate storm water pollution control measures. See Waterkeepers Northern
Cal. v. Ag Indus. Mfg., Inc., 375 F.3d 913, 918 (9th Cir. 2004); see also Waterkeepers
Northern Cal. v. Ag Indus. Mfg., Inc., 2005 WL 2001037 at *3, 5 (E.D. Cal., Aug. 19,
2005) (finding that a discharger covered by the General Industrial Storm Water Permit
was “subject to effluent limitation as to certain pollutants, including zinc, lead, copper,
aluminum and lead” under the CTR).
The General Permit incorporates benchmark levels established by EPA as
guidelines for determining whether a facility discharging industrial storm water has
implemented the requisite best available technology economically achievable (“BAT”)
and best conventional pollutant control technology (“BCT”). The following benchmarks
have been established for pollutants discharged by Carmel Marina: iron – 1.0 mg/L; pH –
6.0 – 9.0 s.u.; oil & grease – 15 mg/L;; and, total suspended solids – 100.0 mg/L. The
State Water Quality Control Board has also proposed adding a benchmark level for
specific conductance - 200 µmhos/cm and total organic carbon – 110 mg/L. Additional
EPA benchmark levels have been established for other parameters that CSPA believes are
being discharged from the Facility, including but not limited to, aluminum – 0.75 mg/L;
arsenic – 0.16854 mg/L; cadmium – 0.0159 mg/L; copper – 0.0636 mg/L; cyanide –
0.0636 mg/L; chemical oxygen demand – 120 mg/L; lead – 0.0816 mg/L; magnesium –
0.0636 mg/L; manganese – 1.0 mg/L; mercury – 0.0024 mg/L; silver – 0.0318 mg/L; and
zinc – 0.117 mg/L.
II.

Carmel Marina Is Violating the Act by Discharging Pollutants From the
Facility to Waters of the United States.

Under the Act, it is unlawful to discharge pollutants from a “point source” to
navigable waters without obtaining and complying with a permit governing the quantity
and quality of discharges. Trustees for Alaska v. EPA, 749 F.2d 549, 553 (9th Cir. 1984).
Section 301(a) of the Clean Water Act prohibits “the discharge of any pollutants by any
person . . .” except as in compliance with, among other sections of the Act, Section 402,
the NPDES permitting requirements. 33 U.S.C. § 1311(a). The duty to apply for a
permit extends to “[a]ny person who discharges or proposes to discharge pollutants. . . .”
40 C.F.R. § 122.30(a).
The term “discharge of pollutants” means “any addition of any pollutant to
navigable waters from any point source.” 33 U.S.C. § 1362(12). Pollutants are defined
to include, among other examples, a variety of metals, chemical wastes, biological

Notice of Violation and Intent To File Suit
April 25, 2012
Page 5 of 18

materials, heat, rock, and sand discharged into water. 33 U.S.C. § 1362(6). A point
source is defined as “any discernible, confined and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants are or
may be discharged.” 33 U.S.C. § 1362(14). An industrial facility that discharges
pollutants into a navigable water is subject to regulation as a “point source” under the
Clean Water Act. Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d
305, 308 (9th Cir. 1993). “Navigable waters” means “the waters of the United States.”
33 U.S.C. § 1362(7). Navigable waters under the Act include man-made waterbodies and
any tributaries or waters adjacent to other waters of the United States. See Headwaters,
Inc. v Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001).
The Tembladero Slough, Salinas River and Pacific Ocean are waters of the United
States. Accordingly, Carmel Marina’s discharges of storm water containing pollutants
from the Facility are discharges to waters of the United States.
CSPA is informed and believes, and thereupon alleges, that Carmel Marina has
discharged and continues to discharge pollutants from the Facility to waters of the United
States every day that there has been or will be any measurable discharge of water from
the Facility since April 25, 2007. Each discharge on each separate day is a separate
violation of Section 301(a) of the Act, 33 U.S.C. § 1311(a). These unlawful discharges
are ongoing. Consistent with the five-year statute of limitations applicable to citizen
enforcement actions brought pursuant to the federal Clean Water Act, Carmel Marina is
subject to penalties for violations of the Act since April 25, 2007.
III.

Pollutant Discharges in Violation of the NPDES Permit.

Carmel Marina has violated and continues to violate the terms and conditions of
the General Permit. Section 402(p) of the Act prohibits the discharge of storm water
associated with industrial activities, except as permitted under an NPDES permit such as
the General Permit. 33 U.S.C. § 1342. The General Permit prohibits any discharges of
storm water associated with industrial activities that have not been subjected to BAT or
BCT. Effluent Limitation B(3) of the General Permit requires dischargers to reduce or
prevent pollutants in their storm water discharges through implementation of BAT for
toxic and nonconventional pollutants and BCT for conventional pollutants. BAT and
BCT include both nonstructural and structural measures. General Permit, Section A(8).
Conventional pollutants are TSS, Oil & Grease (“O&G”), pH, biochemical oxygen
demand (“BOD”), and fecal coliform. 40 C.F.R. § 401.16. All other pollutants are either
toxic or nonconventional. Id.; 40 C.F.R. § 401.15.
Further, Discharge Prohibition A(1) of the General Permit provides: “Except as
allowed in Special Conditions (D.1.) of this General Permit, materials other than storm
water (non-storm water discharges) that discharge either directly or indirectly to waters of
the United States are prohibited. Prohibited non-storm water discharges must be either
eliminated or permitted by a separate NPDES permit.” Special Conditions D(1) of the

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April 25, 2012
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General Permit sets forth the conditions that must be met for any discharge of non-storm
water to constitute an authorized non-storm water discharge.
Receiving Water Limitation C(1) of the General Permit prohibits storm water
discharges and authorized non-storm water discharges to surface or groundwater that
adversely impact human health or the environment. Receiving Water Limitation C(2) of
the General Permit also prohibits storm water discharges and authorized non-storm water
discharges that cause or contribute to an exceedance of any applicable water quality
standards contained in a Statewide Water Quality Control Plan or the applicable Regional
Board’s Basin Plan.
Based on its review of available public documents, CSPA is informed and
believes: (1) that Carmel Marina continues to discharge pollutants in excess of
benchmarks and (2) that Carmel Marina has failed to implement BMPs adequate to bring
its discharge of these and other pollutants in compliance with the General Permit.
Carmel Marina’s ongoing violations are discussed further below.
A.

Carmel Marina Has Discharged Storm Water Containing Pollutants
in Violation of the Permit.

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

Date

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

Parameter

Concentration Benchmark
in Discharge
Value

3/18/2011

SW-1

Fe

6.5 mg/L

1.0 mg/L

1/13/2011

SW-1

Fe

12.0 mg/L

1.0 mg/L

1/26/2010

SW-1

Fe

3.8 mg/L

1.0 mg/L

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10/13/2009

SW-1

Fe

1.67 mg/L

1.0 mg/L

10/13/2009

SW-2

Fe

3.14 mg/L

1.0 mg/L

2/6/2009

SW-1 Loading
Dock

Fe

2.7 mg/L

1.0 mg/L

2/6/2009

SW-2 Yard

Fe

1.2 mg/L

1.0 mg/L

11/26/2008

SW-2 Yard

Fe

1.35 mg/L

1.0 mg/L

1/4/2008

SW-1

Fe

4.24 mg/L

1.0 mg/L

1/4/2008

SW-2

Fe

3.46 mg/L

1.0 mg/L

2.

Date

Discharge of Storm Water Containing Oil & Grease at
Concentration in Excess of EPA Benchmark Value.
Discharge
Point

1/4/2008
3.

Date

Parameter

Concentration
in Discharge

SW-1

O&G

16 mg/L

Benchmark
Value
15 mg/L

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

Parameter

Concentration
in Discharge

Benchmark
Value

3/18/2011

SW-1

TSS

150 mg/L

100 mg/L

1/13/2011

SW-1

TSS

280 mg/L

100 mg/L

1/26/2010

SW-1

TSS

205 mg/L

100 mg/L

10/13/2009

SW-2

TSS

119 mg/L

100 mg/L

2/6/2009

SW-1

TSS

106 mg/L

100 mg/L

2/6/2009

SW-2

TSS

116 mg/L

100 mg/L

2/6/2009

SW-1 Yard

TSS

127 mg/L

100 mg/L

12/15/2009

SW-1

TSS

555 mg/L

100 mg/L

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12/15/2009

SW-2

TSS

409 mg/L

100 mg/L

11/26/2008

SW-2 Yard

TSS

107 mg/L

100 mg/L

1/4/2008

SW-1

TSS

705 mg/L

100 mg/L

1/4/2008

SW-2

TSS

575 mg/L

100 mg/L

10/12/2007

SW-1

TSS

259 mg/L

100 mg/L

10/12/2007

SW-2

TSS

421 mg/L

100 mg/L

4.

Date

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

Parameter

Concentration
in Discharge

1/13/2011

SW-1

SC

890 µmhos/cm

200 µmhos/cm

1/26/2010

SW-1

SC

416 µmhos/cm

200 µmhos/cm

2/6/2009

SW-2 Yard

SC

645 µmhos/cm

200 µmhos/cm

12/15/2009

SW-1

SC

213 µmhos/cm

200 µmhos/cm

12/15/2009

SW-2

SC

213 µmhos/cm

200 µmhos/cm

5.

Date
1/26/2010

Proposed
Benchmark
Value

Discharge of Storm Water Containing pH at Concentration in
Excess of EPA Benchmark Value.
Discharge
Point

Parameter

Concentration
in Discharge

SW-1

pH

10.2 mg/L

Benchmark
Value
6.0 – 9.0 s.u.

CSPA’s investigation, including its review of Carmel Marina’s analytical results
documenting pollutant levels in the Facility’s storm water discharges well in excess of

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April 25, 2012
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EPA’s benchmark values and the State Board’s proposed benchmark levels for specific
conductivity, indicates that Carmel Marina has not implemented BAT and BCT at the
Facility for its discharges of Iron (Fe), Oil & Grease (O&G), Total Suspended Solids
(TSS), pH and Specific Conductance (SC) and other pollutants, in violation of Effluent
Limitation B(3) of the General Permit. Carmel Marina was required to have
implemented BAT and BCT by no later than October 1, 1992 or the start of its
operations. Thus, Carmel Marina is discharging polluted storm water associated with its
industrial operations without having implemented BAT and BCT.
CSPA is informed and believes that Carmel Marina has known that its storm
water contains pollutants at levels exceeding EPA Benchmarks and other water quality
criteria since at least April 25, 2007. CSPA alleges that such violations also have
occurred and will occur on other rain dates, including during every single significant rain
event that has occurred since April 25, 2007, and that will occur at the Facility
subsequent to the date of this Notice of Violation and Intent to File Suit. Attachment A,
attached hereto, sets forth each of the specific rain dates on which CSPA alleges that
Carmel Marina has discharged storm water containing impermissible levels of Iron (Fe),
Oil & Grease (O&G), Total Suspended Solids (TSS), pH and Specific Conductance (SC)
and other unmonitored pollutants (e.g. aluminum (Al), copper (Cu), lead (Pb), zinc (Zn),
and chemical oxygen demand (COD)) in violation of Discharge Prohibitions A(1) and
A(2) and Receiving Water Limitations C(1) and C(2) of the General Permit.
These unlawful discharges from the Facility are ongoing. Each discharge of
storm water containing any pollutants from the Facility without the implementation of
BAT/BCT constitutes a separate violation of the General Permit and the Act. Consistent
with the five-year statute of limitations applicable to citizen enforcement actions brought
pursuant to the federal Clean Water Act, Carmel Marina is subject to penalties for
violations of the General Permit and the Act since April 25, 2007.
B.

Carmel Marina Has Failed to Implement an Adequate Monitoring &
Reporting Plan.

Section B of the General Industrial Storm Water Permit requires that dischargers
develop and implement an adequate Monitoring and Reporting Plan by no later than
October 1, 1992 or the start of operations. Sections B(3), B(4) and B(7) require that
dischargers conduct regularly scheduled visual observations of non-storm water and
storm water discharges from the Facility and to record and report such observations to the
Regional Board. Section B(5)(a) of the General Permit requires that dischargers “shall
collect storm water samples during the first hour of discharge from (1) the first storm
event of the wet season, and (2) at least one other storm event in the wet season. All
storm water discharge locations shall be sampled.” Section B(5)(c)(i) further requires
that the samples shall be analyzed for total suspended solids, pH, specific conductance,
and total organic carbon. Oil and grease may be substituted for total organic carbon.
Section B(5)(c)(ii) of the General Permit further requires dischargers to analyze samples
for all “[t]oxic chemicals and other pollutants that are likely to be present in storm water

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discharges in significant quantities.” Section B(10) of the General Permit provides that
“facility operators shall explain how the facility’s monitoring program will satisfy the
monitoring program objectives of [General Permit] Section B.2.”
Based on its investigation, CSPA is informed and believes that Carmel Marina
has failed to develop and implement an adequate Monitoring & Reporting Plan. First,
based on its review of publicly available documents, CSPA is informed and believes that
Carmel Marina has failed to collect storm water samples during at least two qualifying
storms events, as defined by the General Permit, during each of the past five Wet
Seasons. Second, based on its review of publicly available documents, CSPA is informed
and believes that Carmel Marina has failed to conduct the monthly visual monitoring of
storm water discharges and the quarterly visual observations of unauthorized non-storm
water discharges required under the General Permit during each of the past five Wet
Seasons. Third, based on its review of publicly available documents, CSPA is informed
and believes that for the past five Wet Seasons Carmel Marina has failed to analyze
samples for the pollutants that the General Permit requires Carmel Marina to analyze,
based on its SIC Code 4953, which includes iron (Fe), and SIC Code 5093, which
includes aluminum (Al), copper (Cu), iron (Fe), lead (Pb), zinc (Zn), and chemical
oxygen demand (COD). Fourth, based on its review of publicly available documents,
CSPA is informed and believes that for the past five Wet Seasons Carmel Marina has
failed to analyze samples for other pollutants that are likely to be present in significant
quantities in the storm water discharged from the Facility. Each of these failures
constitutes a separate and ongoing violation of the General Permit and the Act.
Consistent with the five-year statute of limitations applicable to citizen enforcement
actions brought pursuant to the federal Clean Water Act, Carmel Marina is subject to
penalties for violations of the General Permit and the Act since April 25, 2007. These
violations are set forth in greater detail below:
1.

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

Based on its review of publicly available documents, CSPA is informed and
believes that Carmel Marina has failed to collect storm water samples from all discharge
points during at least two qualifying rain events at the Facility during each of the past five
Wet Seasons, as required by the General Permit. For example, CSPA notes that the
Annual Report filed by Carmel Marina for the Facility for the 2010-2011 Wet Season
reported that Carmel Marina analyzed samples of storm water discharged during two
qualifying storm events that season. However, upon closer scrutiny it turns out that one
storm sampled was not a qualifying storm event within the meaning of the General
Permit. Similarly, in the 2009-2010 Annual Report, Carmel Marina sampled from a
storm event that was not a qualifying storm event, either (discussed further below).
Carmel Marina reported in all five Wet Seasons (i.e., 2006-2007; 2007-2008;
2008-2009; 2009-2010; and 2010-2011 Wet Seasons), that the Facility sampled the first

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qualifying storm event of the season, when in fact it only sampled the first storm of the
season during one Wet Season. For example, Carmel Marina reported in its 2010-2011
Annual Report that it sampled the first qualifying storm event of the Wet Season, but
Carmel Marina’s first sample was collected on January 13, 2011. Based upon its review
of publicly available rainfall data, CSPA is informed and believes that the first qualifying
storm event of the 2010-2011 Wet Season occurred as early as Monday, October 17,
2010, when 0.19” of rain fell on the Facility. This failure to adequately monitor storm
water discharges constitutes separate and ongoing violations of the General Permit and
the Act.
2.

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

Based on its review of publicly available documents, CSPA is informed and
believes that Carmel Marina has failed to collect storm water samples from all discharge
points during at least two qualifying rain events at the Facility during each of the past five
Wet Seasons. For example, in the 2010-2011 Wet Season, Carmel Marina only sampled
from one discharge point, while in the 2009-2010 Wet Season, it sampled two discharge
points. There is evidence in the Annual Reports that Carmel Marina has sampled up to
five different locations over the last five years. Further, based on its investigation, CSPA
is informed and believes that storm water discharges from the Facility at points other than
the one sampling/discharge point currently designated by Carmel Marina. This failure to
adequately monitor storm water discharges constitutes separate and ongoing violations of
the General Permit and the Act.
3.

Carmel Marina Has Failed to Conduct the Monthly Wet
Season Observations of Storm Water Discharges Required by
the General Permit.

The General Permit requires dischargers to “visually observe storm water
discharges from one storm event per month during the Wet Season (October 1 – May
30).” General Permit, Section B(4)(a). As evidenced by the entries on Form 4 Monthly
Visual Observations contained in Carmel Marina’s annual reports for the last five Wet
Seasons, CSPA is informed and believes that Carmel Marina has failed to comply with
this requirement of the General Permit.

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Specifically, Carmel Marina failed to conduct monthly visual observations of
discharges from qualifying storm events for most months during any of the past five Wet
Seasons. Instead, Carmel Marina documented its visual observations of storm water that
discharged during non-qualifying storm events or on dates during which no rain fell on
the Facility, for most months during the entire Wet Season of each of the past five years
(discussed further below). However, based on publicly available rainfall data, CSPA is
informed and believes that there were many qualifying storm events during each of these
Wet Seasons that Carmel Marina could have observed.
For example, Carmel Marina reported in its 2010-2011 Annual Report that it
observed a qualifying storm event on Wednesday December 22, 2010. However, CSPA
is informed and believes that this could not possibly be true because 0.27” of rain fell on
the Facility two days prior, on December 20, 2010, likely making that December 20th
storm a qualifying storm event and disqualifying all storm events for the next three days.
Carmel Marina’s failure to conduct this required monthly Wet Season visual monitoring
extends back to at least April 25, 2007. Carmel Marina’s failure to conduct this required
monthly Wet Season visual monitoring has caused and continues to cause multiple,
separate and ongoing violations of the General Permit and the Act.
4.

Carmel Marina Is Subject to Penalties for Its Failure to
Implement an Adequate Monitoring & Reporting Plan Since
April 25, 2007.

CSPA is informed and believes that publicly available documents demonstrate
Carmel Marina’s consistent and ongoing failure to implement an adequate Monitoring
Reporting Plan in violation of Section B of the General Permit. For example, while in its
2010-2011 Annual Report Carmel Marina reported having collected samples of storm
water discharged during two qualifying storm events, only one storm event was a
qualifying storm event within the meaning of the General Permit. Based on its review of
publicly available rainfall data, CSPA is informed and believes that the storm that
occurred at the Facility on March 18, 2011 was not a qualifying storm event because
enough rain fell on the Facility two days prior to likely result in a discharge of storm
water from the Facility, thereby invalidating the March 18th storm as a qualifying storm
event. Specifically, Carmel Marina sampled a rain event on March 18, 2011 that
produced 0.73” of rainfall on the Facility. However, two days prior, on Wednesday,
March 16, 2011, 0.08” of rain fell on the Facility. As Carmel Marina sampled a storm
event on January 13, 2011 during which 0.04” of rain fell on the Facility, it is likely that
the March 16th storm event also produced enough rain for a discharge. Therefore, the
March 16th storm event likely renders any storm occurring for three days afterwards a
non-qualifying storm event.
Additionally, Carmel Marina is in violation of the General Permit’s requirement
that the testing method employed in laboratory analyses of pollutant concentrations
present in storm water discharged from the Facility be “adequate to satisfy the objectives
of the monitoring program.” General Permit Section B.10.a.iii. The Regional Board has

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determined that the appropriate laboratory test method to employ when analyzing storm
water samples for the presence and concentration of iron is EPA method 200.8.
Additionally, the Regional Board has determined that the appropriate detection limit that
should be applied when using EPA method 200.8 is 0.005 mg/L.
However, as demonstrated by Carmel Marina’s annual report filed for each of the
last five Wet Seasons (e.g., 2006-2007; 2007-2008; 2008-2009; 2009-2010; 2010-2011),
the test method employed by the laboratory utilized by Carmel Marina to analyze the
concentration of iron in the storm water discharged from its Facility was not EPA method
200.8, but rather, EPA method 200.7 or 3111B. In addition, the laboratory employed by
Carmel Marina to analyze the storm water sample collected for both samples applied an
inappropriately high detection limit of 0.05 mg/L.
Carmel Marina is in violation of the General Permit for failing to employ
laboratory test methods and detection limits that are adequate to, among other things,
“ensure that storm water discharges are in compliance with the Discharge Prohibitions,
Effluent Limitations, and Receiving Water Limitations specified in this General Permit.”
General Permit Section B.2.a. (“Monitoring Program Objectives”). Accordingly,
consistent with the five-year statute of limitations applicable to citizen enforcement
actions brought pursuant to the federal Clean Water Act, Carmel Marina is subject to
penalties for these violations of the General Permit and the Act since April 25, 2007.
C.

Carmel Marina Has Failed to Implement BAT and BCT.

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

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and BCT requirements every day since October 1, 1992, and will continue to be in
violation every day that it fails to implement BAT and BCT. Carmel Marina is subject to
penalties for violations of the General Permit and the Act occurring since April 25, 2007.
D.

Carmel Marina Has Failed to Develop and Implement an Adequate
Storm Water Pollution Prevention Plan.

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

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CSPA’s investigation and review of publicly available documents regarding
conditions at the Facility indicate that Carmel Marina has been operating with an
inadequately developed or implemented SWPPP in violation of the requirements set forth
above. Carmel Marina has failed to evaluate the effectiveness of its BMPs and to revise
its SWPPP as necessary. Accordingly, Carmel Marina has been in continuous violation
of Section A(1) and Provision E(2) of the General Permit every day since October 1,
1992, and will continue to be in violation every day that it fails to develop and implement
an effective SWPPP. Carmel Marina is subject to penalties for violations of the General
Permit and the Act occurring since April 25, 2007.
E.

Carmel Marina Has Failed to Address Discharges Contributing to
Exceedances of Water Quality Standards.

Receiving Water Limitation C(3) requires a discharger to prepare and submit a
report to the Regional Board describing changes it will make to its current BMPs in order
to prevent or reduce the discharge of any pollutant in its storm water discharges that is
causing or contributing to an exceedance of water quality standards. Once approved by
the Regional Board, the additional BMPs must be incorporated into the Facility’s
SWPPP. The report must be submitted to the Regional Board no later than 60-days from
the date the discharger first learns that its discharge is causing or contributing to an
exceedance of an applicable water quality standard. Receiving Water Limitation C(4)(a).
Section C(11)(d) of the Permit’s Standard Provisions also requires dischargers to report
any noncompliance. See also Provision E(6). Lastly, Section A(9) of the Permit requires
an annual evaluation of storm water controls including the preparation of an evaluation
report and implementation of any additional measures in the SWPPP to respond to the
monitoring results and other inspection activities.
As indicated above, Carmel Marina is discharging elevated levels of Iron (Fe), Oil
& Grease (O&G), Total Suspended Solids (TSS), pH and Specific Conductance (SC) and
other unmonitored pollutants that are causing or contributing to exceedances of
applicable water quality standards. For each of these pollutant exceedances, Carmel
Marina was required to submit a report pursuant to Receiving Water Limitation C(4)(a)
within 60-days of becoming aware of levels in its storm water exceeding the EPA
Benchmarks and applicable water quality standards.
Based on CSPA’s review of available documents, Carmel Marina was aware of
high levels of these pollutants prior to April 25, 2007. Likewise, Carmel Marina has
generally failed to file reports describing its noncompliance with the General Permit in
violation of Section C(11)(d). Lastly, the SWPPP and accompanying BMPs do not
appear to have been altered as a result of the annual evaluation required by Section A(9).
Carmel Marina has been in continuous violation of Receiving Water Limitation C(4)(a)
and Sections C(11)(d) and A(9) of the General Permit every day since April 25, 2007,
and will continue to be in violation every day it fails to prepare and submit the requisite
reports, receives approval from the Regional Board and amends its SWPPP to include

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approved BMPs. Carmel Marina is subject to penalties for violations of the General
Permit and the Act occurring since April 25, 2007.
F.

Carmel Marina Has Failed to File Timely, True and Correct Reports.

Section B(14) of the General Permit requires dischargers to submit an Annual
Report by July 1st of each year to the executive officer of the relevant Regional Board.
The Annual Report must be signed and certified by an appropriate corporate officer.
General Permit, Sections B(14), C(9), (10). Section A(9)(d) of the General Permit
requires the discharger to include in their annual report an evaluation of their storm water
controls, including certifying compliance with the General Industrial Storm Water
Permit. See also General Permit, Sections C(9) and (10) and B(14).
CSPA’s investigation indicates that Carmel Marina has submitted incomplete
Annual Reports and purported to comply with the General Permit despite significant
noncompliance at the Facility. For example, Carmel Marina reported in every Annual
Report filed for the past five Wet Seasons (i.e., 2006-2007; 2007-2008; 2008-2009; 20092010; and 2010-2011) that it observed storm water discharge occurring during the first
storm of every Wet Season. However, as discussed above, based on CSPA’s review of
publicly available rainfall data, CSPA believes this cannot possibly be true.
Further, Carmel Marina failed to sample from qualifying storm events in six out
of eight storm water samples collected during the last five Wet Seasons. For example, as
discussed above, in 2010-2011, Carmel Marina sampled from a storm event on March 18,
2011 that was not a qualifying storm event. Further, in the 2009-2010 Annual Report,
Carmel Marina reported that it sampled a qualifying storm event on January 26, 2010.
Based on its review of publicly available rainfall data, CSPA is informed and believes
that the storm that occurred at the Facility on January 26, 2010 was not a qualifying
storm event because enough rain fell on the Facility three days prior to likely result in a
discharge of storm water from the Facility, thereby invalidating the January 26, 2010
storm as a qualifying storm event. Specifically, 0.53” of rain fell on the Facility on
Saturday, January 23, 2010. Additionally, on Friday, January 22, 2010, i.e., two working
days prior, 0.83” of rain fell on the Facility. Either way, the storm event that occurred at
the Facility on January 26, 2010 was not a qualifying storm event.
Further, Carmel Marina failed to comply with the monthly visual observations of
storm water discharges requirement for every single Annul Report filed for the Facility
for each of the last five years. In the 2009-2010 Annual Report, Carmel Marina only
observed a single qualifying storm event within the meaning of the General Permit. For
example, Carmel Marina reported that it observed a qualifying storm event on January
18, 2010. However, based on publicly available rainfall data, CSPA is informed and
believes that this cannot possibly be true. On Sunday, January 17, 2010, 0.26” of rain fell
on the Facility, likely invalidating the storm observed on January 18th. In the 2010-2011
Annual Report, Carmel Marina reported that it observed discharge from a qualifying
storm event on Wednesday December 22, 2010. However, based on publicly available

Notice of Violation and Intent To File Suit
April 25, 2012
Page 17 of 18

rainfall data, CSPA is informed and believes that this cannot possibly be true. Two days
prior to December 22, on Monday, December 20, 0.27”of rain fell on the Facility, thereby
invalidating the December 22, 2010 storm as a qualifying storm event.
These are only a few examples of how Carmel Marina has failed to file
completely true and accurate reports. As indicated above, Carmel Marina has failed to
comply with the Permit and the Act consistently for at least the past five years; therefore,
Carmel Marina has violated Sections A(9)(d), B(14) and C(9) & (10) of the Permit every
time Carmel Marina submitted an incomplete or incorrect annual report that falsely
certified compliance with the Act in the past years. Carmel Marina’s failure to submit
true and complete reports constitutes continuous and ongoing violations of the Permit and
the Act. Carmel Marina is subject to penalties for violations of Section (C) of the
General Permit and the Act occurring since April 25, 2007.
IV.

Persons Responsible for the Violations.

CSPA puts USA Waste of California, Inc., Jay Ramos, Felipe Melchor, Eddie
Pettit, and Elaina Smith on notice that they are the persons responsible for the violations
described above. If additional persons are subsequently identified as also being
responsible for the violations set forth above, CSPA puts USA Waste of California, Inc.,
Jay Ramos, Felipe Melchor, Eddie Pettit, and Elaina Smith on notice that it intends to
include those persons in this action.
V.

Name and Address of Noticing Party.

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

VI.

Counsel.

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

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

Notice of Violation and Intent To File Suit
April 25, 2012
Page 18 of 18

VII.

Penalties.

Pursuant to Section 309(d) of the Act (33 U.S.C. § 1319(d)) and the Adjustment
of Civil Monetary Penalties for Inflation (40 C.F.R. § 19.4) each separate violation of the
Act USA Waste of California, Inc., Jay Ramos, Felipe Melchor, Eddie Pettit, and Elaina
Smith to a penalty of up to $32,500 per day per violation for all violations occurring after
March 15, 2004, and $37,500 per day per violation for all violations occurring after
January 12, 2009, during the period commencing five years prior to the date of this
Notice of Violations and Intent to File Suit. In addition to civil penalties, CSPA will seek
injunctive relief preventing further violations of the Act pursuant to Sections 505(a) and
(d) (33 U.S.C. §1365(a) and (d)) and such other relief as permitted by law. Lastly,
Section 505(d) of the Act (33 U.S.C. § 1365(d)), permits prevailing parties to recover
costs and fees, including attorneys’ fees.
CSPA believes this Notice of Violations and Intent to File Suit sufficiently states
grounds for filing suit. We intend to file a citizen suit under Section 505(a) of the Act
against USA Waste of California, Inc., Jay Ramos, Felipe Melchor, Eddie Pettit, and
Elaina Smith and their agents for the above-referenced violations upon the expiration of
the 60-day notice period. If you wish to pursue remedies in the absence of litigation, we
suggest that you initiate those discussions within the next 20 days so that they may be
completed before the end of the 60-day notice period. We do not intend to delay the
filing of a complaint in federal court if discussions are continuing when that period ends.
Sincerely,

Bill Jennings, Executive Director
California Sportfishing Protection Alliance

SERVICE LIST
Lisa Jackson, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
Jared Blumenfeld
Administrator, U.S. EPA – Region 9
75 Hawthorne Street
San Francisco, CA, 94105
Eric Holder
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Dorothy R. Rice, Executive Director
State Water Resources Control Board
1001 I Street Sacramento, CA 95814
P.O. Box 100
Sacramento, CA 95812-0100
Roger Briggs, Executive Officer
Regional Water Quality Control Board
Central Coast Region
895 Aerovista Place, Suite 101
San Luis Obispo, CA 93401

ATTACHMENT A
Notice of Intent to File Suit, Carmel Marina (Castroville, CA)
Significant Rain Events,* April 25, 2007 – April 25, 2012
May
May
Oct
Oct
Oct
Nov
Nov
Dec.
Dec.
Dec.
Dec.
Dec.
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan
Jan.
Jan.
Jan.
Jan.
Feb
Feb
Feb
Feb
Feb
Feb
Feb
Feb
Mar
Mar
Mar.
Apr.
Apr.
Apr.
Jan.
Jan.
Jan.
Jan.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.

02
04
12
16
19
10
11
06
07
17
18
20
03
04
05
06
07
09
21
22
23
24
25
26
27
28
29
31
02
03
19
20
21
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24
13
15
28
02
22
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02
21
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23
05
06
08
11
12
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14
15

2007
2007
2007
2007
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2009
2009
2009

Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Mar.
Mar.
Mar.
Mar.
Mar.
Mar.
April
April
April
April
May
May
Oct.
Oct.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Feb
Feb
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Mar.
Mar.
Mar.

16
17
21
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23
26
01
02
03
04
21
22
07
08
09
23
01
05
13
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07
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04
05
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02
03
08

2009
2009
2009
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2010

Mar.
Mar.
Mar.
Mar.
April
April
April
April
April
April
April
April
May
May
May
Aug
Oct.
Oct.
Oct.
Oct.
Oct.
Nov.
Nov.
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Nov.
Nov.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Dec.
Jan.
Jan.
Jan.
Jan.
Jan.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Feb.
Mar.

10
12
30
31
04
05
11
12
20
21
27
28
09
17
25
08
17
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23
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29
07
19
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23
27
04
05
10
14
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19
20
22
25
28
29
01
02
13
29
30
15
16
17
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19
24
25
26
02

2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2010
2011
2011
2011
2011
2011
2011
2011
2011
2011
2011
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2011
2011
2011

Mar.
Mar.
Mar.
Mar.
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Mar.
Mar.
Mar.
Mar.
Mar.
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Mar.
Apr
Apr
Apr
May
May
May
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Jun
Jun
Jun
Jul
Oct
Oct
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Nov
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Jan
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Feb
Feb
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Mar
Mar
Mar
Mar
Mar
Mar
Mar
Mar

06
13
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14
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31

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

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

ATTACHMENT A
Notice of Intent to File Suit, Carmel Marina (Castroville, CA)
Significant Rain Events,* April 25, 2007 – April 25, 2012
Apr
Apr
Apr
Apr

10
11
12
13

2012
2012
2012
2012

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

EXHIBIT C - Sampling Parameters & Values

Parameter

Value

pH (Field test)

6.0 – 9.0 s.u.

Specific Conductivity

200 µmhos/cm

Total Suspended Solids

100 mg/L

Oil & Grease

15 mg/L

Aluminum, Total

0.75 mg/L

Iron, Total

1.0 mg/L

Copper, Total

0.0636 mg/L

Lead, Total

0.0816 mg/L

Zinc, Total

0.117 mg/L

Chemical Oxygen Demand, Total

120 mg/L

[PROPOSED] CONSENT AGREEMENT