STIPULATION AMENDING CONSENT AGREEMENT; [PROPOSED] ORDER THEREON
(Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1388)
VINCE CHHABRIA, District Judge.
Plaintiff California Sportfishing Protection Alliance ("CSPA") and Defendant Mendocino Forest Products Company, LLC ("MFP") (collectively the "Parties") in the above-captioned action stipulate and agree to the following Amendment of Consent Agreement.
WHEREAS, CSPA is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of California's waters;
WHEREAS, MFP owns and/or operates an approximately 176-acre facility at 850 Kunzler Ranch Road, in Ukiah, California where it conducts various sawmill and planning mill activities including log storage and handling, milling of lumber, lumber planing, fenceline operations, wood surface protection, lumber drying, lumber storage and shipping, maintenance of the manufacturing and rolling stock equipment and systems, and wood treating (collectively, the "Facility");
WHEREAS, CSPA and MFP entered into a Consent Agreement settling CSPA's allegations of MFP's non-compliance with the Clean Water Act on November 14, 2017 ("Consent Agreement"); See, ECF Dkt. No. 48.
WHEREAS, on January 5, 2018 the Court entered an order granting the Parties' December 29, 2017 stipulation to dismiss the action with prejudice under FRCP 41(a)(2), with the Court retaining jurisdiction over the parties for the purpose of resolving any disputes between the Parties with respect to enforcement of any provision of the Consent Agreement until November 30, 2020, ECF Dkt. No. 48;
WHEREAS, Paragraph I.2 of the Consent Agreement set forth commitments of MFP, including the implementation of numerous Best Management Practices ("BMPs") intended to eliminate or reduce pollutants in MFP's storm water discharges to the Russian River;
WHEREAS, during implementation of those BMPs, MFP notified CSPA that certain changes were necessary due to circumstances beyond MFP's control that it encountered when work began on the original BMPs. In addition, MFP notified MFP of certain other changes that would be operationally superior for Facility storm water management. CSPA has fully reviewed and concurred with these changes, and the Parties have agreed to incorporate them into this Stipulation Amending Consent Agreement1;
WHEREAS, on October 1, 2018, MFP provided CSPA with a memorandum memorializing its Level 1 Exceedance Response Action ("ERA") Evaluation for Total Suspended Solids as required by Section XII.C.1 of the Revised General Permit. BMPs added to the MFP Facility's Stormwater Pollution Prevention Plan ("SWPPP") pursuant to the Level 1 ERA Evaluation necessitate changes in the SWPPP Site Map. The Parties have agreed to incorporate conforming changes to Exhibit A, 2018 Facility Map and other applicable Consent Agreement Exhibits in this Stipulation Amending Consent Agreement ("Stipulated Amendment"); and
WHEREAS, Paragraph 28 of the Consent Agreement provides that it may be amended only by a writing signed by the Parties or their authorized representatives; and,
WHEREAS, within five (5) calendar days of mutual execution, this Agreement shall be submitted to the Attorney General, United States Department of Justice, Citizen Suit Coordinator and the Administrator, Environmental Protection Agency, for the 45-day statutory review period, pursuant to 33 U.S.C. § 1365(c).
NOW, THEREFORE, THE PARTIES STIPULATE AS FOLLOWS:
1. Paragraph I.2(o) of the Consent Agreement is replaced by the following:
(o) Drainage Areas 008, 019 and 022. The DPs for 008, 019 and 022 shall remain separate and sampled at their current location for the 2017-2018 Reporting Year. On or before October 1, 2018, MFP shall combine DAs 008 and 022, and all storm water from former DA 008 shall be routed to and sampled at DP 022. Drainage Area 019 shall remain separate and sampled at DP 019.
2. Paragraph I.2(q) of the Consent Agreement is replaced by the following:
Drainage Area 022
(q) Construction of New Northern Infiltration BMP in DA 022. On or before October 1, 2018, MFP shall construct a new infiltration BMP adjacent to the north end of DA 022 (formerly DA 008). See Exhibit A, 2018 Facility Map for location of the northern infiltration BMP and Exhibit C, Infiltration BMPs Dimensions Table for approximate dimensions. MFP shall prepare construction drawings for this infiltration BMP (formerly DA 008 Infiltration BMP), with a level of detail similar to those as-built drawings prepared under Paragraph I.2(l), above, and provide them to CSPA by June 1, 2018 pursuant to the notice provisions below. The northern infiltration BMP shall connect to an existing infiltration BMP in DA 022 (the southern infiltration BMP), and excess storm water, if any, shall discharge via DP 022. See Exhibit A, 2018 Facility Map.
3. Paragraphs I.2(t)-(x) of the Consent Agreement are replaced by the following:
(t) Combination of Drainage Areas 008 and 022. On or before October 1, 2018, MFP shall combine DAs 008 and 022 as described in Paragraph I.2(o) by connecting the two infiltration BMPs located within these drainage areas. See Exhibit A, 2018 Facility Map.
(u) [Removed]
(v) Installation of Berms Along Hensley Creek. On or before October 1, 2018, MFP shall add berms along Hensley Creek as needed to direct all sheet flow to the infiltration BMPs discussed in (q) above. See Exhibit A, 2018 Facility Map.
(w) Reestablishment of Discharge Point 022. On or before October 1, 2018, MFP shall relocate and reestablish DP 022 at the existing infiltration BMP in DA 022 (the southern infiltration BMP described in item (q) above) and reconfigure berms as necessary to direct sheet flow to the infiltration BMP. See Exhibit A, 2018 Facility Map.
(x) [Removed]
4. Paragraphs I.2(ee)-(gg) of the Consent Agreement are replaced by the following:
(ee) Combination of Drainage Areas 001 and 017. On or before October 1, 2018, MFP shall regrade as needed to combine DAs 001 and 017. MFP shall route storm water from existing DAs 001 and 017 under the railroad to the new DA 024 RR-East Infiltration BMP. See Exhibit A, 2018 Facility Map.
(ff) Construction of Drainage Area 024 RR-East Infiltration BMP. On or before October 1, 2018, MFP shall construct a new infiltration BMP located between the railroad tracks and DAs 015 and 016.
(gg) Rerouting of Storm water Flows from DAs 001 and 017. On or before October 1, 2018, MFP shall reroute drainage from the new DA 024 RR-East Infiltration BMP to the East Field Infiltration BMP for further infiltration and ultimate discharge at DP 024. When this reconfiguration is complete, DAs 001 and 017 will become part of DA 024. See Exhibit A, 2018 Facility Map for the locations and Exhibit C, Infiltration BMPs Dimensions Table for the approximate dimensions of these BMPs.
5. Exhibit A, 2018 Facility Site Map; Exhibit C, Infiltration BMPs Dimensions Table, and Exhibit H, Sampling Parameters of the Consent Agreement are replaced by the attached Exhibits A, C and H of the same titles; each replacement exhibit has been updated for consistency with the changes described herein.
6. Separate from the reimbursement of attorneys' fees as provided for in Paragraph 12 in the Consent Agreement and, without revising or amending the same, MFP agrees to reimburse CSPA in the amount of $6,000 to defray CSPA's reasonable investigative, expert, consultant, and attorneys' fees and costs, and all other costs incurred as a result of negotiating this Addendum. Such payment shall be made payable to the "Law Offices of Andrew L. Packard Attorney Client Trust Account" and remitted to the firm within ten (10) day of the Parties' filing of this Stipulated Amendment.
7. All other terms of the Consent Agreement and other Exhibits thereto remain in full force and effect.
IT IS SO STIPULATED.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
EXHIBIT A — 2018 Facility Map
EXHIBIT C — Infiltration BMPs Dimensions Table
EXHIBIT H — Sampling Parameters
EXHIBIT H — Sampling Parameters
Parameter NAL Value
pH (Field test) 6.0-9.0 s.u.
Total Suspended Solids 100 mg/L
Oil & Grease 15 mg/L
Zinc 0.26 mg/L
Copper (DA 006 only) 0.0332 mg/L
Propiconazole* (at DP 006, 011, 022 and 025 only) N/A
Chemical Oxygen Demand 120 mg/L
Dioxin** (at DP 022 and 023 only) N/A
