LCity ir1valley City Agenda Action Sheel,

Transcription

1 LCity ir1valley City Agenda Action Sheel, Council Meeting Date: January 28, 2014 Date Prepared: January 22, 2014 Prepared by: Timothy M. Kiser, PE, Public Works Director/City Engineer Title: Settlement Agreement with California River Watch Recommended Motion: That Council 1) approve the Settlement Agreement with California River Watch; 2) authorize the Mayor to execute the contract for in the amount of $30,000; and 3) authorize the City Manager to execute any budget transfers and/or budget adjustments of the sewer funds to complete this action. Agenda: Administrative Background Information: River Watch is a non-profit, public benefit corporation dedicated to protect and restore the rivers, creeks, streams, wetlands, and tributaries of California. On November 14, 2013, River Watch sent the City a Notice of Violation under the Clean Water Act "CWA Notice Letter". The City denies any and all of River Watch s claims in the CWA Notice Letter, but River Watch and the City have agreed that it is in their mutual interest to enter into this Agreement setting forth the terms and conditions appropriate to resolving River Watch s issues referenced in the CWA Notice Letter. See attached Settlement Agreement for additional details. Council Goals/Objectives: The Agreement executes portions of work tasks towards achieving/maintaining Strategic Plan - City Infrastructure Investment. Funds Available: Yes Reviewed by: I City Manager Account #: Various Finance Attachment: Settlement Agreement G:\PW \C0UNCIL_MISC\201 4\AAS River Watch Coritract.docx Agenda Item #

2 This Settlement Agreement and Mutual Release of Claims ("Agreement") is entered into between California River Watch ("River Watch") and the City of Grass Valley ("City") (collectively, the "Parties") with respect to the following facts and objectives: WHEREAS, River Watch is a 501(c)(3) non-profit, public benefit corporation organized under the laws of the State of California, dedicated to protect, enhance, and restore the rivers, creeks, streams, wetlands, and tributaries of California; WHEREAS, the City, a small city organized under the laws of the State of California with a population of approximately 13,000, owns and operates a collection system for the purpose of collecting and conveying for treatment wastewater from residential, commercial, and industrial sources to a wastewater treatment plant owned by the City; WHEREAS, on or about November 14, 2013, River Watch sent the City a Notice of Violations and Intent to File Suit under the Clean Water Act ("CWA"), 33 U. S.C. 1365, ("CWA Notice Letter"), which is attached hereto as Exhibit A; WHEREAS, the City denies any and all of River Watch s allegations and claims in the CWA Notice Letter and believes that River Watch s claims are either barred by previous and ongoing state agency enforcement or moot considering the extensive requirements of the State Water Resources Control Board s Statewide General Waste Discharge Requirements for Sanitary Sewer Systems, Order No DWQ and the revised Monitoring and Reporting Program WQ EXEC, which apply to the City s collection system; WHEREAS, River Watch and the City, through their authorized representatives and without either adjudication of River Watch s claims or admission by the City of any alleged violation or other wrongdoing, have chosen to resolve in full River Watch s allegations in the CWA Notice Letter through settlement and avoid the cost and uncertainties of litigation; and SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

3 WHEREAS, River Watch and the City have agreed that it is in their mutual interest to enter into this Agreement setting forth the terms and conditions appropriate to resolving River Watch s allegations set forth in the CWA Notice Letter. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, River Watch and the City hereby agree as follows: 1. The term "Effective Date," as used in this Agreement, shall mean the last date on which the signature of a party to this Agreement is executed. 2. Sewer System Inspection and Repair a. Televising and Grading Sewer Lines The City has already begun the process of inspecting and televising all gravity sewer lines within the last few years and has already cleaned and assessed over nine (9) miles of sewers. Within five (5) years of the Effective Date of this Agreement, for the approximately 61.5 miles of the City s gravity sewer main lines, the City agrees to inspect and closed circuit televise ("CCTV") the City s gravity sewer main lines exceeding 10 inches in diameter that have not already been inspected and graded in the last two (2) years, and to grade all of the gravity sewer main lines using a Pipeline Assessment and Certification Program ("PACP") or equivalent rating scale. The City also agrees to include a provision in its Capital Improvements Plan to implement a program of inspecting and televising the entire collection system approximately every seven (7) years after this initial assessment is completed. b. Prioritizing Repairs and Replacement The City currently has a recently revised 2012 Sewer System Management Plan ( SSMP"), including an Emergency Overflow Response Plan This SSMP document contains a comprehensive inventory of sewer spill response activities, including field sampling protocols and sanitary sewer overflow ("SSO") response activities, which are and will continue to be utilized for all SSOs, including those that reach water bodies. When repairing and replacing 2 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

4 sewer lines, the City agrees that significantly defective gravity sewer main lines (having received a rating of 4 or 5 on the PACP rating scale or equivalent in another rating system) will be given the highest priority for repair and replacement over other sewer main lines in the City. C. Repair and Replacement Scheduling The City agrees that in the course of completion of the televising and grading activities described in 2.a. above, the City will repair or replace, as needed, the gravity sewer main lines determined to be a grade of 5 (or equivalent) within three (3) years of that determination and within five (5) years of determination of a grade of 4 (or equivalent) With respect to sewer main lines that receive a grade of 3 based on the PACP rating system (or equivalent), the City will ascertain whether such lines need to be repaired based on SSO events and a similar priority ranking as that described in paragraph 2.b, with higher defect ratings receiving higher priority repairs/replacement. 3. SSO Reporting and Response Agreement: a. The City agrees that, within six (6) months from the Effective Date of this 1) The City s SSO reporting forms will include the method or calculations used for estimating total spill volume, spill volume that reached water bodies (if any), and the spill volume recovered; 2) The City s SSO reporting forms will include a listing of nearby or adjacent residences or businesses contacted to attempt to establish the SSO start time, duration, and flow rate if such information has not been otherwise reasonably ascertained; and 3) The City s SSO reports will include photographs of the manhole flow at the SSO site, if applicable to the method used to estimate spill volume, or other photographs that may aid in establishing the spill volume. 4) The City will create and maintain a link from the City s website to the State Water Resources Control Board ("SWRCB") CIWQS SSO Public Reports. 3 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

5 5) The City will provide notification to its sewer service customers of the existence of the City s website link to the SWRCB s CIWQS reports, and of the City s commitment to provide information to the public relating to private lateral maintenance and spill issues. b. Water Quality Sampling and Response 1) The City currently conducts water quality sampling and testing whenever 1,000 gallons or more of untreated sewage enters a surface waterbody. This sampling includes analyses for total coliform, fecal coliform, biochemical oxygen demand ("BOD"), dissolved oxygen, and ammonia nitrogen. However, during the term of this Agreement, the City agrees to conduct additional water quality sampling and testing for the constituents listed above and for K Coil whenever it is estimated that an SSO of fifty (50) gallons or more enters a water body, and if field crews can safely access the affected surface waters. If there are no SSO events of fifty (50) gallons or more that enter a water body or if the conditions are unsafe, then no analysis is required under this paragraph. 2) In addition to the above sampling requirements and subject to the same limitation related to unsafe conditions, during the first year of this Agreement only, the City shall conduct a metals analysis for samples taken on up to four (4) Category I SSO events of fifty (50) gallons or more that reach surface waters, and submit those sampling results to River Watch within two (2) weeks after receiving the results from the laboratory. If less than four Category I SSOs of fifty (50) gallons or more occur during the first two years of this Agreement, then those S SOs will be sampled If there are no Category I SSO events of fifty (50) gallons or more during the first year of this Agreement, then no metals analysis is required under this paragraph. For purposes of this agreement, unsafe conditions may include non-daylight hours, electrical storms, tornados, hurricanes or wind events exceeding 60 miles per hour, severe flood events, or other conditions that would not comply with CAL-OSHA requirements 2 The following 17 metals will be sampled using EPA Part 136 approved methods Antimony, Arsenic, Barium, Beryllium, Cadmium, Chromium, Cobalt, Copper, Lead, Mercury, Molybdenum, Nickel, Selenium, Silver, Thallium, Vanadium, and Zinc. 4 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

6 3) if sampling and testing is required under the previous paragraphs, then the City should collect and test samples from the following three (3) locations, if feasible and conditions are not unsafe: 1) the point of discharge to the water body; 2) in the water body upstream of the point of discharge; and 3) in the waterbody downstream of the point of discharge. 4) If any of the tested constituents are found at higher levels in the point of discharge sample and in the downstream sample than in the upstream sample, then the City agrees to determine and address the cause of the SSO that entered the water body, and will employ the following measures to prevent future overflows at that location by I) immediately spot repairing the defect or replacing a segment of the line if the SSO is caused by a structural defect; or 2) if the defect is non-structural, such as a grease blockage or vandalism, then perform additional maintenance, cleaning or other appropriate measures to remedy the non-structural defect. 5) The City will contract with a registered Environmental Health Specialist or biologist to develop a protocol to be implemented as part of the City s SSO remediation procedures for any SSO releases to surface waters that are one thousand (1,000) gallons or more. In addition, for such spills, the City, when appropriate, shall include a brief description of any clearly visible ecological impacts (e.g., fish kills) and any remedial measures undertaken in an appropriate category on the CIWQS reporting fonm 4. Private Sewer Lateral Inspection and Repair Within two (2) years from the effective date of this Agreement, the City staff will present to the City Council an ordinance establishing a program for the mandatory homeowner/businessowner inspection and/or repair of privately owned sewer laterals The proposed program will contain the following events (or additional events as identified by the City) that will serve as a basis or "trigger" for private sewer lateral inspection and/or repair: 5 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

7 a. At the point of property transfer, or the issuance of a building permit for a significant remodel (valuation of $25,000 or more) or a change in use that will result in an increase in flow, except if inspection, repair or replacement of the sewer lateral has occurred in the last twenty (20) years, or except if lateral was installed within last ten (10) years; b. The occurrence of two (2) or more sanitary sewer overflows caused by the same private sewer lateral within two (2) years that the City is aware of C. Upon replacement or significant repair of the main sewer line to which a private lateral is attached where evidence exists of issues related to the connected lateral (e.g., roots from the private lateral visible in the main sewer line, offsets or damage visible without CCTV inspection, etc.). 5. Additional Information a. Within 90 days of the Effective Date, the City shall provide River Watch with two years of raw influent data from the sewage collection system taken at the headworks and corresponding effluent data after tertiary treatment taken at the discharge monitoring point, EFF b. Within 90 days of the Effective Date, the City shall also provide River Watch with two years of data from its monthly receiving water monitoring program, and a detailed map and photographs of sampling points RSW-001, RSW-002 and EFF-001. If this additional information shows any demonstrable or measurable water quality impact or losses between the influent and effluent greater than 5%, River Watch may sample Wolf Creek at appropriate locations to determine if the treatment facility or the ponds on the facility are discharging to Wolf Creek. A change in use of the structure served could include (I) from residential to non-residential use; (2) to a non-residential use resulting in 25% higher flow than current non-residential use, and (3) non-residential use where the structure served has been vacant/unoccupied for more than three years. 6 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

8 6. Task Confirmation During the term of this Agreement, the City shall provide to River Watch a letter once each year on the anniversary of this Agreement, which details the City s yearly progress toward completion of each of the Remedial Measures set forth in this Agreement Completion of all the Remedial Measures set forth in this Agreement shall constitute completion of all obligations set forth in this Agreement, and the City shall cease providing annual copies of these Reports to River Watch. 7. River Watch Attorneys Costs and Fees The City agrees to pay to River Watch, within thirty (30) days of the effective date of this Agreement, the sum of $30, representing full satisfaction of all claims by River Watch for River Watch s investigative, expert, and attorneys fees and costs. Payment shall be made by the City to River Watch in the form of a single check payable to "California River Watch," and shall constitute full payment for all costs of anticipated litigation and attorneys fees incurred by River Watch that have or could have been claimed in connection with River Watch s allegations in its CWA Notice Letter up to and including the Termination Date of this Agreement, and for River Watch s expert and attorneys fees and costs spent monitoring and enforcing the City s compliance with ongoing obligations under this Agreement, with the exception of any action taken to enforce the Agreement in accordance with the dispute resolution procedures set forth in paragraphs 13 and 14 below. earlier: 8. This Agreement shall terminate when one of the following occurs, whichever is a. December 31, 2022; or b. Upon formal written request to terminate that Agreement from the City after it has completed the activities set forth in paragraphs 2-6 above, and payment pursuant to paragraph 7 has been made. 7 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

9 9. Neither this Agreement nor any payment pursuant to the Agreement shall constitute evidence or be construed as a finding, adjudication, or acknowledgment of any fact, law or liability, nor shall it be construed as an admission of violation of any law, rule or regulation. However, this Agreement and/or any payment pursuant to the Agreement may constitute evidence in actions seeking compliance with this Agreement. isnsjir1 pubij MAI 10. In consideration of the above, and except as otherwise provided by this Agreement, the Parties hereby forever and fully release each other and their respective successors, assigns, directors, officers, agents, board members, representatives, and employees, and all persons, firms and corporations having an interest in them, from any and all environmental claims and demands of any kind, nature, or description whatsoever, and from any and all liabilities, damages, injuries, actions or causes of action, either at law or in equity, whether known or unknown, which the Parties have or may have against each other based upon or connected to River Watch s allegations as set forth in the CWA Notice Letter up to and including the Effective Date of this Agreement. 11. The Parties acknowledge that they are familiar with section 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. The Parties hereby waive and relinquish any rights or benefits they may have under California Civil Code section 1542 with respect to any other claims against each other arising from, or related to, the allegations and claims as set forth in the CWA Notice Letter up to and including the Termination Date of this Agreement. 12. For the period beginning on the Effective Date and ending five (5) years from the Effective Date of this Agreement, River Watch agrees that neither River Watch, its officers, executive staff, members of its governing board nor any organization under the control of River SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

10 Watch, its officers, executive staff, or members of its governing board, will file a complaint pursuant to the CWA Notice Letter, or serve any new 60-day Notice Letter or file any lawsuit against the City seeking relief for violations as alleged or as could have been alleged in the CWA Notice Letter, nor will River Watch support such lawsuits against the City brought by other groups or individuals by providing financial assistance, personnel time, or any other affirmative actions. Through the Termination Date of this Agreement, and in accordance with its standard practice, River Watch agrees that it will not file a complaint or serve any new 60-day Notice Letter pertaining to any remedial measures completed by the City or to any pending remedial measure agreed to by the City as a provision of this Agreement that has not been completed. (IiI1JiIJ4DF 13. Any disputes with respect to any of the provisions of this Agreement shall be resolved through the following procedure. The Parties covenant and agree that, if either party believes the other is in violation of one or more terms of the Agreement, that party shall provide notice to the other party in writing of what actions or inactions they deem to be in violation of this Agreement. Within thirty (30) days of receipt of such notice, the party receiving the notice shall respond to the notice in writing. If the Parties still dispute compliance with this Agreement, then, within an additional thirty (30) days, the Parties will meet and confer in a good faith attempt to resolve their dispute. If the Parties cannot informally resolve the dispute, they will enter into binding arbitration, conducted by an arbitrator agreed upon by both Parties Either party may request that the presiding judge of the Nevada County Superior Court may select an arbitrator if the Parties cannot reach an agreement The arbitration shall be binding and not subject to ordinary judicial appeal, however, it shall be subject to the procedural provisions provided for under California Code of Civil Procedure sections 1280, et seq. The arbitration shall be conducted in accordance with the arbitration rules and procedures of JAMS (Judicial Arbitration and Mediation Service) to the extent that other conventional rules are not promptly agreed to by the Parties The relief the arbitrator is empowered to award is limited to injunctive relief to take action specified in this Agreement, and the arbitrator shall be empowered to determine a prevailing party and may award payment of reasonable costs to a prevailing party. To the extent there are multiple issues with a different prevailing party, the arbitrator may take 9 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

11 those facts into account in terms of an award for fees and costs, and can order each party to bear their own costs. 14. If River Watch asserts that the City is in violation of this Agreement, and the City corrects the action or inaction within sixty (60) days of written notice from River Watch describing the asserted violations, no further enforcement action under the terms of the Agreement shall be taken by either party. JI1DL!J4BJ Separate from, and in addition to any other limitations on the City s obligations under this Agreement, the City s obligations to comply with any provisions of this Agreement shall be excused or deferred if compliance, or a delay in compliance, is caused by an event or circumstance beyond the reasonable control of the City or any entity controlled by the City, including its contractors, and which event or circumstance could not have been reasonably foreseen and prevented by the exercise of due diligence by the City. Where implementation of the actions set forth in this Agreement, within the deadlines prescribed, becomes unachievable, despite the timely good faith efforts of the City, the City shall notify River Watch in writing within thirty (30) days of the date that the City knew of the event or circumstance precluding compliance, and shall describe the reason for the non-performance. The Parties agree to meet and confer in good faith concerning the non-performance and, where the Parties concur that the non-performance was or is impossible, despite the timely good faith efforts of one of the Parties, compliance shall be excused or new performance deadlines shall be established by agreement of the Parties. In the event that the Parties cannot timely agree, either party shall have the right to invoke the dispute resolution procedure described herein. 16. Construction. The language in all parts of this Agreement shall be construed according to its plain and ordinary meaning, except as to those terms defined by law, in the Clean Water Act, or specifically herein. 17. Choice of Law. This Agreement shall be governed by the laws of the United States, and where applicable, the laws of the State of California. 10 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

12 18. Severability. In the event that any provision, section, or sentence of this Agreement is held by a court to be unenforceable, the validity of the enforceable provisions shall not be adversely affected. 19. Correspondence. All notices required herein or any other correspondence pertaining to this Agreement shall be sent by regular, certified, overnight, or electronic mail as follows: If to River Watch: California River Watch 290 S. Main Street, #817 Sebastopol, CA Jack Silver Law Office of Jack Silver P0 Box 5469 Santa Rosa, CA Telephone: (707) Facsimile: (707) lhm28843@sbcgipbal.net If to the City: Tim Kiser City of Grass Valley Public Works Department 125 East Main St. Grass Valley, CA Telephone: (530) Facsimile: (530) And to: Melissa A. Thorme Downey Brand LLP 621 Capitol Mall, 18th Floor Sacramento, CA Telephone: (916) Facsimile: (916) SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

13 Notifications of communications shall be deemed submitted on the date that they are sent by electronic mail, postmarked and sent by first-class mail, or deposited with an overnight mail/delivery service. Any change of address or addresses shall be communicated in the manner described above for giving notices. 20. Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one original document. Telecopy, electronic, and/or facsimile copies of original signature shall be deemed to be originally executed counterparts of this Agreement. 21. Assignment. Subject only to the express restrictions contained in this Agreement, all of the rights, duties and obligations contained in this Agreement shall inure to the benefit of and be binding upon the Parties, and their successors and assigns. 22. Modification of the Agreement: This Agreement, and any provisions herein, may not be changed, waived, discharged or terminated unless by a written instrument, signed by the Parties. 23. Full Settlement. This Agreement constitutes a full and final settlement of this matter. It is expressly understood and agreed that the Agreement has been freely and voluntarily entered into by the Parties with and upon advice of counsel. 24. Integration Clause. This is an integrated Agreement. This Agreement is intended to be a full and complete statement of the terms of the agreement between the Parties and expressly supersedes any and all prior oral or written agreements covenants, representations, and warranties (express or implied) concerning the subject matter of this Agreement. 25. Negotiated Agreement. The Parties have negotiated this Agreement, and agree that it shall not be construed against the party preparing it, but shall be construed as if the Parties jointly prepared this Agreement and any uncertainty and ambiguity shall not be interpreted against any one party. 12 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

14 26, Authority. The undersigned representatives for River Watch and the City each certify that he or she is fully authorized by the party whom he represents to enter into the terms and conditions of this Agreement. The Parties hereby enter into this Agreement. Date: January 2014 CALIFORNIA RIVER WATCH Name: Title: For California River Watch: Date: January, 2014 LAW OFFICE OF JACK SILVER For the City of Grass Valley: Date: January 14, 2014 DOWNEY BRAND LLP By: Melissa A. Thorme, Esq. 13 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

15 26. Authority. The undersigned representatives for River Watch and the City each certify that he or she is fully authorized by the party whom he represents to enter into the terms and conditions of this Agreement. The Parties hereby enter into this Agreement. Date: January lb, 2014 CALIFORNIA RIVER WATCH p j By: 71 4*!(4J 16ZI.q7 1 Nan4 (44 Title: =?fvr *LAeWr Date: January, 2014 CITY OF GRASS VALLEY By: Name: Title: For California River Watch: Date: January_, 2014 LAW OFFICE OF JACK SILVER For the City of Grass Valley: Date: January 14, 2014 DOWNEY BRAND LLP By: Melissa A. Thorme, Esq. 13 SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

16 26. Authority. The undersigned representatives for River Watch and the City each certify that he or she is fully authorized by the party whom he represents to enter into the terms and conditions of this Agreement. The Parties hereby enter into this Agreement. Date: January 2014 CALIFORNIA RIVER WATCH By 4 Nard Date: January _, 2014 CITY OF GRASS VALLEY By; Name: Title: APPROVED AS TO FORM: For California River Watch: Date: January 2014 LAW OFFICE OF JACK SILVER For the City of Grass Valley: Date: January 14, 2014 ayl DOWNEY BRAND LLF By: Melissa A. Thorme. Esq SETTLEMENT AGREEMENT: California River Watch v. City of Grass Valley

17 P.O. Box 5469 Santa Rosa, California Phone Fax VIA CERTIFIED MAIL Norm Benton, Treatment Plant Operator Wastewater Treatment Plant City of Grass Valley 125 E. Main Street Grass Valley, CA November 14, 20 NOV 1 8 LJ Li Timothy M. Kiser, P.E. Public Works Director/City Engineer Department of Public Works City of Grass Valley 125 F. Main Street Grass Valley, CA Re: Notice of Violations and Intent to File Suit Under the Clean Water Act Dear Heads of Agency/Operations: The Clean Water Act ("CWA" or "Act") requires that 60 days prior to the initiation of a civil action under CWA 505(a), 33 U.S.C. 1365(a), a citizen must give notice of the intent to sue to the alleged violator, the Environmental Protection Agency ("EPA") and the State in which the violations occur. California River Watch ("River Watch") hereby places the City of Grass Valley, hereinafter referred to as "the Discharger" on notice, that following the expiration of 60 days from the date of this Notice, River Watch intends to bring suit in the U.S. District Court against the Discharger for continuing violations of an effluent standard or limitation, permit condition or requirement, or a Federal or State Order or Permit issued under CWA 402 pursuant to CWA 301(a), and consistent with the Code of Federal Regulations, and the Notice of Violations Under CWA - Page 1 of 14

18 Regional Water Quality Control Board, Central Valley Region, Water Quality Control Plan ("Basin Plan") as exemplified by the violations of permit conditions or limitations in the Discharger s National Pollutant Discharge Elimination System ("NPDES") Permit. The CWA regulates the discharge of pollutants into navigable waters. The statute is structured in such a way that all discharge of pollutants is prohibited with the exception of enumerated statutory provisions One such exception authorizes a polluter, who has been issued a permit pursuant to CWA 402, to discharge designated pollutants at certain levels subject to certain conditions The effluent discharge standards or limitations specified in a NPDES permit define the scope of the authorized exception to the CWA 301(a), 33 U.S.C (a) prohibition, such that violation of a permit limit places a polluter in violation of the CWA Private parties may bring citizens suits pursuant to 33 U S C 1365 to enforce effluent standards or limitations, as defined under 33 U.S.C. 1365(f) and elsewhere within the Act or enumerating state and federal statutes and limitations. The CWA provides that authority to administer the NPDES permitting system in any given state or region can be delegated by the EPA to a state or to a regional regulatory agency, provided that the applicable state or regional regulatory scheme under which the local agency operates satisfies certain criteria See 33 U S C 1342(b) In California, the EPA has granted authorization to a state regulatory apparatus comprised of the State Water Resources Control, Board and several subsidiary regional water quality control boards, to issue NPDES permits The entity responsible for issuing NPDES permits and otherwise regulating discharges in the region at issue in this Notice is the Regional Water Quality Control Board, Central Valley Region ("RWQCB"). The CWA requires that any Notice regarding an alleged violation of an effluent standard or limitation, or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the following: 1. The specific standard, limitation, or order alleged to have been violated. River Watch has identified the NPDES Permit of the City of Grass Valley for the Grass Valley Wastewater Treatment Plant and specifically identified the applicable permit standard, limitation or condition being violated further in this Notice. A violation of the NPDES permit is a violation of the CWA. Notice of Violations Under CWA - Page 2 of 14

19 2. The activity alleged to constitute a violation. Most often, the NPDES Permit limitations being violated are self-explanatory and an examination of the language of the Permit is sufficient to inform the Discharger, especially since the Discharger is responsible for complying with that Permit condition. In addition, River Watch has set forth narratives in this Notice describing with particularity the activities leading to violations, and has incorporated by reference the Discharger s own records and other public documents in the Discharger s possession or otherwise available to the Discharger regarding its NPDES Permit, compliance with that Permit and any other information designed to inform the Discharger or the public. 3. The person or persons responsible for the alleged violation. The entity responsible for the alleged violations identified in this Notice is the City of Grass Valley and its Public Works Department as owner and operator of the Grass Valley Wastewater Treatment Plant and its related collection system, identified in this Notice as the Discharger, as well as those of the Discharger s employees responsible for compliance with the Discharger s NPDES Permit. 4. The location of the alleged violation. The location or locations of the various violations are identified in the Discharger s NPDES Permit and also in records created and/or maintained by or for the Discharger which relate to the Grass Valley Wastewater Treatment Plant and related activities as further described in this Notice. 5. The date or dates ofviolation or a reasonable range ofdates during which the alleged activity occurred. River Watch has examined both RWQCB files and the Discharger s records with respect to the Grass Valley Wastewater Treatment Plant for the period from November 14, 2008 through November 14, The range of dates covered by this Notice is from November 14, 2008 through November 14, River Watch may from time to time update this Notice to include violations of the CWA by the Discharger which occur after the range of dates currently covered by this Notice. Some violations are continuous, and therefore each day constitutes a violation. Notice of Violations Under CWA - Page 3 of 14

20 6. The full name, address, and telephone number of the person giving notice. The entity giving this Notice is California River Watch, referred to herein as "River Watch," 290 S. Main Street, 9817, Sebastopol, CA 95472, a 501(c)(3) non-profit, public benefit corporation organized under the laws of the State of California, dedicated to protect, enhance and help restore the groundwater and surface water environs of California including, but not limited to, its rivers, creeks, streams, wetlands, vernal pools and tributaries. River Watch may be contacted via USncriverwatch.org or through its attorneys. River Watch has retained legal counsel with respect to the issues set forth in this Notice. All communications should be addressed as follows: Jack Silver, Esq. Law Office of Jack Silver P.O. Box 5469 Santa Rosa, CA Tel Ihm28843@sbeglobal.net rg:iaui1f!iil! 1JLS) J a The Discharger owns and operates the Grass Valley Wastewater Treatment Plant ("the Plant") and its associated wastewater collection system consisting of approximately 2 7 miles of pressure lines and miles of gravity sewer main The dischaige of treated wastewater from the Plant is regulated under Order No R , NPDES Permit CA The discharge was formerly regulated under Order No. R The Discharger provides sewerage service for a population of approximately 12,100 in the City of Grass Valley, and also treats water from an abandoned mine portal (Drew Tunnel) The Plant is a tertiary wastewater treatment plant with a dry weather design capacity of2.78 mgd. The Plant discharges into Wolf Creek, a tributary to Bear River. The Discharger s NPDES Permit contains several discharge prohibitions related to sewer system overflows ("SSOs"). Discharge Prohibition A of the Permit prohibits the discharge of wastewater at a location or in a manner different from that described in the Findings Discharge Prohibition B prohibits the by-pass or overflow of wastes to surface waters, with specified exceptions. Discharge Prohibition C prohibits discharges which create a nuisance as defined by California Water Code A SSO can violate several of these prohibitions at once. Violations of the NPDES Permit are violations of the CWA. Notice of Violations Under CWA - Page 4 of 14

21 The Discharger s ageing collection system has historically experienced high inflow and infiltration (I/I) during wet weather. Structural defects which allow I/I into the sewer lines result in a buildup of pressure which causes S SOs. Overflows caused by blockages and I/I result in the discharge of raw sewage into gutters, canals, and storm drains which are connected to adjacent surface waters - all waters of the United States. As recorded in California Integrated Water Quality System s ("CIWQS") Public SSO Reports, the Discharger s collection system has experienced twenty seven (27) SSOs between November 14, 2008 and November 14, 2013, with a combined volume of 93,264 gallons - 89,555 gallons of which reached surface waters. As an example, on November 4, 2012, a spill occurred at Slate Creek Road, Grass Valley. The total estimated volume of the spill was 13,440 gallons, of which 13,290 was estimated to have reached Irrigation Pond which feeds a channel to Deer Creek Also, on December 2, 2012, at 450 Mill Street, Grass Valley, a spill took place which was not addressed until the following day, when the Discharger was notified. Some 1,800 gallons were estimated to have spilled reaching Wolf Creek. The investigation was not completed until ten (10) days after the spill. River Watch contends the Discharger has a history of non-compliance with the SSO reporting requirements of the Statewide General Requirements for Sanitary Sewer Systems, Waste Discharge Requirements Order No DWQ ("Statewide WDR") governing operation of samtaiy sewer systems The Discharger is a penmttee under the Statewide WDR which requires that sewer system operators report SSOs to the CIWQS, and include in that reporting an estimate of the volume of any spill, the volume recovered and the volume which reached a surface water. The Discharger s NPDES Permit requires compliance with all provisions of the Statewide WDR The Discharger s field reports generally do not indicate what method was used to estimate the total volume of the spill, which calls into question the estimates of volume recovered and volume which reached a surface water. In the case of both SSOs previously mentioned, the operator arrival time is listed as the day after the spill The report for the December 2, 2012 event mentions that the Discharger did not become aware of the spill until the following day. In the case of the SSO event on Slate Creek Road, however, it is not clear whether the response was delayed a day or the information was entered incorrectly. The Statewide WDR requires the Discharger to take all feasible steps and perform necessary remedial actions following the occurrence of a SSO, including hrnitingthevolume of waste discharged, terminating the discharge, and recovering as much of the wastewater as possible Further remedial actions include intercepting and re-routing of wastewater flows, vacuum truck recovery of the SSO, cleanup of debris at the site, and modification of the system to prevent further SSOs at the site. One of the most important remedial measures is the performance of adequate sampling to determine the nature and the impact of the release. According to public records, the Discharger is not adequately sampling every SSO Notice of Violations Under CWA - Page 5 of 14

22 which reaches surface waters. In the instances for which the Discharger does conduct sampling, testing often exists for only a fraction of the relevant toxins. The Discharger s internal reports indicate discharges to surface waters which are not reported to CIWQS. The Discharger completely ignores SSOs due to exfiltration that reach surface waters. The entire system has not been inspected by means of closed circuit television For a significant portion of the collection system, the Discharger has no idea of its condition or the extent of exfiltration. These sections of the system are old and in need of repair. Untreated sewage is discharged from cracks, displaced joints, eroded segments, etc., into ground water which is hydrologically connected to surface waters. Evidence indicates extensive exfiltration from lines within two hundred (200) feet of a surface water. Evidence of exfiltration can be found in mass balance data, inflow and infiltration data, video inspection, and tests of waterways adjacent to sewer lines for nutrients, human pathogens and other human markers such as caffeine. River Watch alleges that such discharges are continuous wherever ageing, damaged, structurally defective sewer lines in the Discharger s collection system are located adjacent to surface waters including Deer Creek, Wolf Creek, Bear River and its tributaries Surface waters and groundwater become contaminated with fecal coliform, exposing people to human pathogens Chronic failures in the collection system pose a substantial threat to public health. Exfiltration from the Discharger s collection system is a violation of its NPDES permit and the CWA. The Discharger fails to adequately mitigate the impacts of S SOs. The Statewide WDR mandates that "the Enrollee shall take all feasible steps to contain and mitigate the impacts of an S SO" (Statewide WDR Provision D.3, pg. 7). The EPA Report To Congress on the Impacts of SSOs identifies SSOs as a major source of microbial pathogens and oxygen depleting substances There are numerous critical habitat areas within areas of SSOs by the Discharger. There is no record of the Discharger performing any analysis of the impacts of SSOs on critical habitat of protected species under the ESA, nor any evaluation of the measures needed to restore water bodies designated as critical habitat from the impacts of SSOs. As stated previously, Discharge Prohibition C as set forth in the Discharger s NPDES Permit prohibits the discharge of wastes that create a nuisance as defined by California Water Code The term "nuisance" is defined as anything which meets the following requirements: 1) "is injurious to health, or is indecent or offensive to the senses... so as to interfere with the comfortable enjoyment of life or property"; 2) "affects at the same time an entire community or neighborhood, or any considerable number of persons"; and, 3) "occurs during, or as a result of, the treatment or disposal of wastes." Notice of Violations Under CWA - Page 6 of 14

23 Wolf Creek is a tributary to Bear River. Bear River and its tributaries have many beneficial uses as defined in the RWQCB s Basin Plan. SSOs reaching Bear River and its tributaries cause prohibited pollution by unreasonably affecting the beneficial uses of these waters. The Discharger is also required by its NPDES Permit to comply with narrative standards as set forth in the Basin Plan, and used when testing by numeric standards would be inadequate or impractical. Narrative standards include the following: 1) Waters shall not contain taste or odor producing substances in concentrations that impart undesirable tastes or odors to fish flesh; 2) Waters shall not contain floating material in concentrations that cause nuisance or affect beneficial uses; 3) The ph shall not change within 0.5 units of the range needed for COLD or WARM beneficial uses, such as cold water habitat for fish; 4) The bacteriological quality of waters shall not be degraded beyond natural background levels; and, 5) Natural receiving water temperatures shall not be altered unless allowed by the RWQCB River Watch has found nothing in the public record to demonstrate the Discharger has monitored for and complied with these narrative standards. River Watch is understandably concerned regarding the effects of both surface and underground SSOs on criticaihabitat in and around Bear River and its tributaries. River Watch members residing in the area of the Plant and the surrounding watershed, have a vital interest in bringing the Discharger s operations at the Plant and associated collection system into compliance with the CWA. ItUkU3II]AWAI aiuj i 313 U Sill 311UI] ] M iii t{iikfi A. Condition Assessment: A report that comprises inspection, rating, and evaluation of the existing condition of a sewer collection system. Inspection is based upon closed circuit television ("CCTV") inspections for gravity mains; manhole inspections for structural defects; and, inspections of pipe connections at the manhole. After CCTV inspection occurs, pipe conditions are assigned a grade based on the Pipeline Assessment and Certification Program ("PACP") rating system, developed by the Notice of Violations Under CWA - Page 7 of 14

24 National Association of Sewer Service Companies. The PACP is a nationally recognized sewer pipeline condition rating system for CCTV inspections. B. Full Condition Assessment: A Condition Assessment of all sewer lines in the sewer collection system with the exception of sewer lines located within two hundred (200) feet of surface waters. C. Surface Water Condition Assessment: A Condition Assessment of sewer lines in the sewer collection system located within two hundred (200) feet of surface waters, including gutters, canals and ston -n drains which discharge to surface waters. D. Significantly Defective: A sewer pipe is considered to be Significantly Defective if its condition receives a grade of 4 or 5 based on the PACP rating system. The PACP assigns grades based on the significance of the defect, extent of damage, percentage of flow capacity restriction, and/or the amount of pipe wall loss due to deterioration. Grades are assigned as follows: 5 - Most significant defect 4 Significant defect 3 - Moderate defect 2 - Minor to moderate defect 1 - Minor defect tl* A I LU 1DI River Watch believes the following remedial measures are necessary to bring the Discharger into compliance with its NPDES permit and the Basin Plan, and reflect the biological impacts of the Discharger s ongoing non-compliance with the CWA: A. SEWAGE COLLECTION SYSTEM INVESTIGATION AND REPAIR The repair or replacement, within two (2) years, of all sewer lines in the Discharger s sewage collection system located within two hundred (200) feet from surface waters, including gutters, canals and storm drains which discharge to surface waters, which have been CCTV d within the past five (5) years and were rated as Significantly Defective. Within two (2) years, the completion of Surface Water Condition Assessment of sewer lines which have not been CCTV d during the past ten (10) years. Notice of Violations Under CWA - Page 8 of 14

25 Within two (2) years after completion of the Surface Water Condition Assessment above, the Discharger will: >> Repair or replace all sewer lines which have been found to be Significantly Defective; >> Repair or replace sewer pipe segments containing defects with a rating of 3 based on the PACP rating system, if such defect resulted in a SSO, or, if in the Discharger s discretion, such defects are in close proximity to Significantly Defective segments that are in the process of being repaired or replaced; >> Sewer pipe segments that contain defects with a rating of 3 that are not repaired or replaced within five (5) years after completion of the Surface Water Condition Assessment shall be re-cctv d every five (5) years to ascertain the condition of the sewer line segment. If the Discharger determines that the grade-3 sewer pipe segment has deteriorated and needs to be repaired or replaced, the Discharger shall complete such repair or replacement within two (2) years after the last CCTV cycle. Beginning no more than one (1) year after completion of the Surface Water Condition Assessment, the Discharger shall commence a Full Condition Assessment to be completed within seven (7) years. Any sewer pipe segment receiving a rating of 4 or 5 based on the PACP rating system shall be repaired or replaced within three (3) years of the rating determination. Provision in the Discharger s Capital Improvements Plan to implement a, program of the Condition Assessment of all sewer lines at least every five (5) years. Said program to begin one (1) year following the Full Condition Assessment described above. B. SSO REPORTING AND RESPONSE Modification of the Discharger s Backup and SSO Response Plan to include the method or calculations used for estimating total spill volume, spill volume that reached surface waters and spill volume recovered. For Category I Spills, creation of a listing of nearby residences or business owners who have been contacted to attempt to establish the SSO start time, duration, and flow rate, if such start time, duration, and flow rate have not Notice of Violations Under CWA - Page 9 of 14

26 been otherwise reasonably ascertained, such as from a caller who provides information that brackets a given time that the SSO began. Taking of photographs of the manhole flow at the SSO site using the San Diego Method array, if applicable to the SSO; or other photographic evidence that may aid in establishing the spill volume. Water quality sampling and testing to be required whenever it is estimated that fifty (50) gallons or more of untreated or partially treated waste water enters surface waters. Constituents tested for to include: Ammonia, Fecal Coliform, E coh and a CAM- 17 toxic metal analysis The Discharger shall collect and test samples from three (3) locations the point of discharge, upstream of the point of discharge, and downstream of the point of discharge If any of said constituents are found at higher levels in the point of discharge sample and the downstream sample than in the upstream sample, the Discharger will determine and address the cause of the SSO that enters surface waters, and employ the following measures to prevent future overflows (a) if the SSO is caused by a structural defect, then immediately spot repair the defect or replace the entire line, (b) if the defect is non-structural, such as a grease blockage or vandalism to a manhole cover, then perform additional maintenance or cleaning, and any other appropriate measures to fix the non-structural defect. Creation of website capacity to track information regarding S SOs; or, in the alternative, the creation of a link from the Discharger s website to the CIWQS SSO Public Reports Notification to be given by the Discharger to all customers and other members of the public of the existence of the web based program, including a commitment to respond to private parties submitting overflow reports. Performance of human marker sampling on creeks, rivers, wetlands and areas of Wolf Creek and Bear River adjacent to sewer lines to test for sewage contamination from exfiltration. C. LATERAL INSPECTION/REPAIR PROGRAM Creation of a mandatory, private sewer lateral inspection and repair program triggered by any of the following events: Notice of Violations Under CWA - Page 10 of 14