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)
1
2
3
4
5
6
7
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: (707) 763-7227
Fax: (415) 763-9227
E-mail: andrew@packardlawoffices.com
Attorneys for Plaintiff CALIFORNIA
SPORTFISHING PROTECTION ALLIANCE
8
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
9
10
11
12
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non profit
corporation,
13
14
15
16
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)]
17
18
Defendants.
19
20
21
22
23
24
25
26
27
28
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
1
CASE NO. 5:12-CV-03283-LHK
1
(USDC, N.D. Cal., Case No. 5:12-CV-03283-LHK) and said Complaint incorporated by
2
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
3
4
Letter and Complaint;
5
WHEREAS, CSPA and DEFENDANTS, through their authorized representatives and
6
without either adjudication of CSPA's claims or admission by DEFENDANTS of any alleged
7
violation or other wrongdoing, have chosen to resolve in full by way of settlement the allegations
8
of CSPA as set forth in CSPA's 60-Day Notice Letter and Complaint, thereby avoiding the costs
9
and uncertainties of further litigation. A copy of the Parties' proposed consent agreement
10
("Consent Agreement") entered into by and between CSPA and DEFENDANTS is attached
11
hereto as Exhibit A and incorporated by reference.
12
WHEREAS, CSPA submitted the Consent Agreement via certified mail, return receipt
13
requested, to the U.S. EPA and the U.S. Department of Justice ("the agencies") and the 45-day
14
review period set forth at 40 C.P.R.§ 135.5 has been completed without objection by the
15
agencies.
16
NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between
17
the Parties that CSPA's claims, as set forth in its 60-Day Notice Letter and Complaint, be
18
dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Parties
19
respectfully request an order from this Court dismissing such claims with prejudice. In
20
accordance with Paragraph III.4 of the Consent Agreement, the Parties also request that this Court
21
retain and have jurisdiction over the Parties through September 30, 2015, for the sole purpose of
22
23
Ill
24
Ill
25
Ill
26
Ill
27
Ill
28
STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER
CASE NO. 5:12-CV-03283-LHK
2
1
resolving any disputes between the parties with respect to enforcement of any provision of the
2
Consent Agreement.
3
4
Dated: January 24,2013
LAW OFFICES OF ANDREW L. PACKARD
5
By: Is/ Emily J. Brand
Emily J. Brand
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE
6
7
8
9
Dated: January 24, 2013
REED MITH, LLP
10
11
12
13
11
By:_\--+--1-____,.....,....A-_f
~v"'" -'- (;.........._·::-}
rA...;......
---=--
John Ly,
Julia C.
tier
Attorneys for Defendants
USA WASTE OF CALIFORNIA, INC., et al.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER
CASE NO. 5:12-CV-03283-LHK
3
[PROPOSED] ORDER
1
2
3
4
5
6
7
8
9
10
11
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.
12
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
13
14
15
16
Dated: _ _ _ _ _ _ __
January 25, 2013
United States District Court Judge
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION FOR APPROVAL OF CONSENT AGREEMENT
AND DISMISSAL; [PROPOSED] ORDER
4
CASE NO. 5:12-CV-03283-LHK
EXHIBIT A
1
2
3
4
5
6
7
8
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: (707) 763-7227
Fax: (707) 763-9227
E-mail: Andrew@packardlawoffices.com
Erik@packardlawoffices.com
Emily@packardlawoffices.com
Attorneys for Plaintiff
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
12
13
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a non-profit
corporation,
14
15
16
17
18
19
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.
20
WHEREAS, Plaintiff California Sportfishing Protection Alliance (hereinafter “CSPA” or
21
“Plaintiff”) is a non-profit public benefit corporation dedicated to the preservation, protection, and
22
defense of the environment, wildlife, and natural resources of California’s waters;
23
WHEREAS, Defendant USA Waste of California, Inc. (hereinafter “USA Waste”) owns and
24
operates an approximately 7.7-acre solid waste hauling and recycling facility located at 11240 and
25
11260 Commercial Parkway in Castroville, California (the “Facility”), Defendant Jay Ramos
26
(“Ramos”) is the District Manager for the recycling operations at the Facility and Felipe Melchor
27
(“Melchor”) is the District Manager for the solid waste hauling operations at the Facility;
28
29
30
[PROPOSED] CONSENT AGREEMENT
WHEREAS, unless otherwise noted, Defendant USA Waste of California, Inc., Jay Ramos,
1
2
and Felipe Melchor shall hereinafter be referred to as “Defendants;”
3
WHEREAS, CSPA and Defendants collectively shall be referred to as the “Parties;”
4
WHEREAS, the Facility collects and discharges storm water into Tembladero Slough and
5
into the County of Monterey’s storm water drainage system, which discharges storm water from the
6
Facility into the Tembladero Slough. Tembladero Slough flows into the Salinas River, and ultimately
7
into the Pacific Ocean (a map of the Facility is attached hereto as Exhibit A and incorporated herein
8
by reference);
9
WHEREAS, storm water discharges associated with industrial activity are regulated pursuant
10
to the National Pollutant Discharge Elimination System (“NPDES”), General Permit No. CAS000001
11
[State Water Resources Control Board], Water Quality Order No. 91-13-DWQ (as amended by Water
12
Quality Order 92-12 DWQ and 97-03-DWQ), issued pursuant to Section 402 of the Clean Water Act,
13
33 U.S.C. § 1342 (hereinafter “General Permit”);
WHEREAS, on or about April 25, 2012, Plaintiff provided notice of Defendants’ alleged
14
15
violations of the Act, and of its intention to file suit against Defendants (“Notice Letter”), to the
16
Administrator of the United States Environmental Protection Agency (“EPA”); the Administrator of
17
EPA Region IX; the Executive Director of the State Water Resources Control Board (“State Board”);
18
the Executive Officer of the Regional Water Quality Control Board, Central Coast Region (“Regional
19
Board”); and to Defendants, as required by the Act, 33 U.S.C. § 1365(b)(1)(A) (a true and correct
20
copy of CSPA’s Notice Letter is attached hereto as Exhibit B and incorporated herein by reference);
21
WHEREAS, Defendants deny the occurrence of the violations alleged in the Notice Letter and
22
maintain that Defendants and the Facility have complied at all times with the provisions of the General
23
Permit;
24
25
WHEREAS, CSPA filed a complaint (“Complaint”) against Defendants in the United States
District Court, Northern District of California, on June 25, 2012;
26
WHEREAS, Defendants deny the allegations of the Complaint;
27
WHEREAS, for purposes of this Consent Agreement only, the Parties stipulate that venue is
28
29
30
-2[PROPOSED] CONSENT AGREEMENT
1
proper in this Court, and that Defendants do not contest the exercise of jurisdiction by this Court to
2
enter this Consent Agreement, but otherwise preserve all affirmative defenses in the event this
3
Consent Agreement is not entered by this Court;
WHEREAS, this Consent Agreement shall be submitted to the United States Department of
4
5
Justice for the 45-day statutory review period, pursuant to 33 U.S.C. § 1365(c); and shall thereafter be
6
submitted for approval by the Court, the date of which approval shall be referred to herein as the
7
“Court Approval Date;”
WHEREAS, at the time the Consent Agreement is submitted for approval to the United States
8
9
District Court, CSPA shall request a dismissal of the Complaint with prejudice and the Parties shall
10
stipulate and request that the Court retain jurisdiction for the enforcement of this Consent Agreement
11
as provided herein;
AND WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter
12
13
without further litigation.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND
14
15
ORDERED AND DECREED BY THE COURT, AS FOLLOWS:
16
I.
17
COMMITMENT OF USA WASTE
1.
Compliance With General Permit & Clean Water Act. Beginning immediately, and
18
throughout the term of this Consent Agreement, USA Waste, as a corporate entity acting by and
19
through its designated agent, representatives and/or employees, shall commence all measures needed
20
to operate the Facility in full compliance with the requirements of the General Permit and the Clean
21
Water Act, subject to any defenses available under the law.
22
USA Waste’s Implementation of Specific Storm Water Best Management
2.
23
Practices. USA Waste shall complete the implementations of the following storm water control best
24
management practices (“BMPs”):
25
26
(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
27
28
29
30
-3[PROPOSED] CONSENT AGREEMENT
1
stormwater runoff drainages and pathways at the Facility, potential sources of specific pollutants,
2
and the design capacity of the current stormwater management system. This project must include:
3
i.
4
ii.
Preparation of a map and table identifying the square footage of the sub-basin
drainage from which each drop inlet captures runoff;
5
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;
6
7
8
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.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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)
27
28
29
30
-4[PROPOSED] CONSENT AGREEMENT
1
placing filter bags in drain inlets as identified and recommended through the “Site Assessment and
2
BMP Feasibility Study”; and (3) maintaining the inlet and bags.
(e)
3
Within 30 days after the Court Approval Date, USA Waste shall install a rainfall
4
recording device at the Facility and maintain documentation along with the Facility SWPPP of the
5
daily rainfall occurring at the Facility during the 2012-2013, 2013-2014, and 2014-2015 Wet
6
Seasons. In addition to the rainfall data gathered from the rainfall recording device described herein,
7
USA Waste may elect to also maintain documentation of precipitation data recorded off-site at other
8
nearby, reliable and objectively verifiable rainfall gauges (e.g., as found on a website maintained by
9
a government agency);
(f)
10
Within 30 days after the Court Approval Date, USA Waste shall employ a
11
regenerative sweeper on all paved surfaces of the Facility, including sweeping the entrance and 25
12
feet in both directions of the public street off-site or to the extent of any visible track-out, whichever
13
is greater. USA Waste will sweep the Facility three times per week during the 2012-2013, 2013-
14
2014, and 2014-2015 Wet Seasons. USA Waste shall sweep once a week during the Dry Season,
15
during the life of this Consent Agreement. USA Waste may decrease the frequency of sweeping
16
after the 2013-2014 Wet Season if the Facility consistently meets all of the applicable benchmarks
17
identified in Exhibit C attached hereto.
3.
18
SWPPP Amendments/Additional BMPs. Within 30 days after the Court Approval
19
Date, USA Waste shall formally amend the Storm Water Pollution Prevention Plan (“SWPPP”) for the
20
Facility to incorporate all of the relevant requirements of this Consent Agreement, as well as the
21
revised Facility map attached hereto as Exhibit A.
4.
22
23
discharge point at the Facility, as required by the General Permit.
5.
24
25
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
26
27
28
29
30
1
“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
1
the term of this Consent Agreement (2012-2013; 2013-2014; 2014-2015), subject to a sufficient
2
number of QSEs as defined herein occurring each Wet Season (including during the 2012-2013 Wet
3
Season after the Court Approval Date). The storm water sample results shall be compared with the
4
values set forth in Exhibit C, attached hereto, and incorporated herein by reference. If the results of
5
any such samples exceed the parameter values set forth in Exhibit C, USA Waste shall comply with
6
the “Action Memorandum” requirements set forth below.
7
6.
Sampling Parameters. All samples shall be analyzed for each of the constituents
8
listed in Exhibit C by a laboratory accredited by the State of California. All samples collected from
9
the Facility shall be delivered to the laboratory as soon as practicable to ensure that sample “hold
10
time” is not exceeded. Analytical methods used by the laboratory shall be adequate to detect the
11
individual constituents at or below the values specified on Exhibit C. Sampling results shall be
12
provided to CSPA within THIRTY (30) days of USA Waste’s receipt of the laboratory report from
13
each sampling event pursuant to the Notice provisions below.
14
7.
“Action Memorandum” Trigger; CSPA’s Review Of “Action Memorandum”;
15
Meet-and-Confer. If any sample taken during the three (3) Wet Seasons exceeds the benchmark
16
levels set forth in Exhibit C, or if USA Waste fails to collect and analyze samples from the required
17
number of storm events described herein, as qualified in the General Permit, or if USA Waste fails to
18
timely comply with any of obligation set forth in this Consent Agreement, USA Waste shall prepare a
19
written statement discussing the exceedance(s), the failure to collect and analyze samples from the
20
required number of QSEs, and/or the failure to timely comply with any obligation set forth in this
21
Consent Agreement (“Action Memorandum”). In the event that USA Waste’ sampling evidences
22
exceedances of any of the benchmark levels set forth in Exhibit C, the Action Memorandum shall
23
discuss the possible cause(s) and/or source(s) of the exceedance(s), and what additional measures USA
24
Waste will take to address and eliminate the problem and future exceedances. In the event that USA
25
Waste fails to collect and analyze samples from the required number of QSEs, the Action
26
27
28
29
30
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.
-6[PROPOSED] CONSENT AGREEMENT
1
Memorandum shall discuss the possible cause(s) of this failure and additional measures that will be
2
taken by USA Waste to ensure that USA Waste collects and analyzes samples from the required
3
number of storm events the following Wet Season. In the event that USA Waste fails to timely
4
comply with any other obligation set forth in this Consent Agreement, the Action Memorandum shall
5
discuss the possible reason(s) for this failure, and what actions USA Waste has taken and/or will take
6
in the future to remedy the failure to timely comply with any obligation set forth herein. The Action
7
Memorandum shall be provided to CSPA not later than July 15 following the conclusion of each Wet
8
Season occurring during the term of this Consent Agreement. Recognizing that a SWPPP is an
9
ongoing iterative process meant to encourage innovative BMPs, such additional measures may
10
include, but are not limited to, making material improvements to the storm water collection and
11
discharge system, changing the frequency or quality of Facility sweeping, changing the type and
12
extent of storm water filtration media or modifying other industrial activities or management practices
13
at the Facility. Such additional measures proposed by USA Waste, to the extent feasible, shall be
14
implemented immediately and in no event later than SIXTY (60) days after the due date of the Action
15
Memorandum. Within THIRTY (30) days of implementation of an additional BMP, the Facility
16
SWPPP shall be amended to include all additional BMP measures designated in the Action
17
Memorandum. CSPA may review and comment on an Action Memorandum and suggest any
18
additional pollution prevention measures it believes are appropriate; however, CSPA’s failure to do so
19
shall not be deemed to constitute agreement with the proposals set forth in the Action Memorandum.
20
Upon request by CSPA, USA Waste agrees to meet and confer in good faith (at the Facility, if
21
requested by CSPA) regarding the contents and sufficiency of the Action Memorandum.
22
8.
Inspections During The Term Of This Agreement. In addition to any site
23
inspections conducted as part of the meet-and-confer process concerning an Action Memorandum as
24
set forth above, USA Waste shall permit representatives of CSPA to perform up to three (3) physical
25
inspections of the Facility during the term of this Consent Agreement. These inspections shall be
26
performed by CSPA’s counsel and consultant(s) and may include sampling, photographing, and/or
27
videotaping and if requested CSPA shall provide USA Waste with a copy of all sampling reports,
28
29
30
-7[PROPOSED] CONSENT AGREEMENT
1
photographs and/or video. CSPA shall provide at least forty-eight (48) hours advance notice of such
2
physical inspection, except that USA Waste shall have the right to deny access if circumstances would
3
make the inspection unduly burdensome and pose significant interference with business operations or
4
any party/attorney, or the safety of individuals. In such case, USA Waste shall specify at least three
5
(3) dates within the two (2) weeks thereafter upon which a physical inspection by CSPA may proceed.
6
USA Waste shall not make any alterations to Facility conditions during the period between receiving
7
CSPA’s initial forty-eight (48) hour advance notice and the start of CSPA’s inspection that USA
8
Waste would not otherwise have made but for receiving notice of CSPA’s request to conduct a
9
physical inspection of the Facility, excepting any actions taken in compliance with any applicable laws
10
or regulations. Nothing herein shall be construed to prevent USA Waste from continuing to
11
implement any BMPs identified in the SWPPP during the period prior to an inspection by CSPA or at
12
any time.
13
9.
USA Waste’ Communications with Regional and State Boards. During the term of
14
this Consent Agreement, USA Waste shall provide CSPA with copies of all documents submitted to or
15
received from the Regional Board or the State Board concerning storm water discharges from the
16
Facility and/or USA Waste’s compliance or lack of compliance with the General Permit, including,
17
but not limited to, all documents and reports submitted to the Regional Board and/or State Board as
18
required by the General Permit. All such material documents and reports shall be provided to CSPA
19
pursuant to the Notice provisions set forth below at the time that USA Waste submits its Annual
20
Report to the Regional Board.
10.
21
SWPPP Amendments. Pursuant to the Notice provisions set forth below, USA Waste
22
shall provide CSPA with a copy of any amendments to the Facility SWPPP made during the term of
23
the Consent Agreement, including the amendments required under Paragraph 3 herein, within fourteen
24
(14) days of such amendment.
25
II.
26
27
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
28
29
30
-8[PROPOSED] CONSENT AGREEMENT
1
THOUSAND DOLLARS ($32,000) within SEVEN (7) business days after the Court Approval Date to
2
the Rose Foundation for Communities and the Environment (“Rose Foundation”) for projects to
3
improve water quality in local watersheds of Monterey County. Payment shall be provided to the
4
Rose Foundation by mailing it to: Rose Foundation, Attn: Tim Little, 6008 College Avenue, Suite #10,
5
Oakland, CA 94618.
2.
6
Compliance Monitoring Funding.
To defray CSPA’s reasonable investigative,
7
expert, consultant and attorneys’ fees and costs associated with monitoring USA Waste’s compliance
8
with this Consent Agreement, USA Waste agrees to reimburse CSPA for its reasonable fees and costs
9
incurred up to but not exceeding the sum of FOUR THOUSAND DOLLARS ($4,000) during the term
10
of this Consent Agreement. CSPA shall use these funds to conduct site inspections, review water
11
quality sampling reports, review Annual Reports, discussions with representatives of USA Waste
12
concerning the Action Memoranda referenced above, participate in meet and confer sessions and to
13
review potential changes to the compliance requirements herein. USA Waste shall submit a check
14
made payable to the “Law Offices of Andrew L. Packard Attorney-Client Trust Account” within
15
TWENTY (20) days of the Court Approval Date.
3.
16
Fees & Costs. USA Waste agrees to reimburse CSPA in the amount of THIRTY-
17
FOUR THOUSAND DOLLARS ($34,000) to defray CSPA’s reasonable investigative, expert,
18
consultant and attorneys’ fees and costs, and all other costs incurred as a result of investigating the
19
activities at the Facility, bringing the Action and negotiating a resolution in the public interest. Such
20
payment shall be made to the “Law Offices of Andrew L. Packard Attorney-Client Trust Account”
21
within TWENTY (20) days after the Court Approval Date. CSPA agrees to accept such payment in
22
full satisfaction of any and all claims it may have against any and all Defendants for all such fees and
23
costs incurred in this action up to the Effective Date of this Consent Decree.
24
III.
25
DISPUTE RESOLUTION AND ENFORCEMENT OF CONSENT AGREEMENT
1.
With the exception of the timelines set forth above for addressing exceedances of
26
values specified on Exhibit C and Action Memoranda, if a dispute under this Consent Agreement
27
arises, or either Party believes that a breach of this Consent Agreement has occurred, CSPA and USA
28
29
30
-9[PROPOSED] CONSENT AGREEMENT
1
Waste shall meet and confer within SEVEN (7) days of receiving written notification from the other
2
Party of a request for a meeting to determine whether a violation has occurred and to develop a
3
mutually agreed upon plan, including implementation dates, to resolve the dispute. If CSPA and USA
4
Waste fail to meet and confer, or the meet-and-confer does not resolve the issue, after at least seven
5
days have passed after the meet-and-confer occurred or should have occurred, either Party shall be
6
entitled to all rights and remedies under the law, including filing a motion with the District Court of
7
California, Northern District, which shall retain jurisdiction over the Action for the limited purposes of
8
enforcement of the terms of this Consent Agreement. CSPA and USA Waste shall be entitled to seek
9
fees and costs incurred in any such motion, and such fees and costs may be awarded, pursuant to the
10
provisions set forth in Section 505(d) of the Clean Water Act, 33 U.S.C. §1365(d), and applicable case
11
law interpreting such provision.
12
2.
CSPA’s Waiver and Release. Upon the Court Approval Date and entry of this
13
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: DeltaKeep@me.com
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: (707) 763-7227
E-mail: Andrew@packardlawoffices.com
Erik@packardlawoffices.com
Emily@packardlawoffices.com
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.: (831) 633-7878
XRamos@wm.com
18
With copies sent to:
19
John Lynn Smith, Esq.
Reed Smith, LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Tel: 415.659.4863
Fax: 415.391.8269
E-mail: jlsmith@reedsmith.com
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: (425) 825-2003
Fax: (866) 863-7961
Email: akenefick@wm.com
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?