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NOTICE OF LODGING [PROPOSED] CONSENT DECREE 

REQUEST FOR ENTRY -1- 3:17-CV-00321-EMC

Anthony Barnes (Bar No. 199048)

Jason Flanders ((Bar No. 238007)

AQUA TERRA AERIS LAW GROUP LLP

828 San Pablo Ave., Ste. 115B

Albany, CA 94706

Telephone: (415) 326-3173

Email: amb@atalawgroup.com

Attorneys for Plaintiff

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA SPORTFISHING PROTECTION 

ALLIANCE, 

Plaintiff,

v.

RICHARD DAPELO, individually, and doing 

business as QUALITY STAINLESS TANKS, 

and QUALITY STAINLESS TANKS, an entity 

of unknown type,

Defendants.

Case No. 3:17-cv-00321-EMC

NOTICE OF LODGING OF 

[PROPOSED] CONSENT DECREE; 

REQUEST FOR ENTRY OF 

[PROPOSED] CONSENT DECREE

(Federal Water Pollution Control Act, 

33 U.S.C. §§ 1251 et seq.)

 Judge: Hon. Edward M. Chen

PLEASE TAKE NOTICE THAT:

WHEREAS, on September 11, 2017, Plaintiff California Sportfishing protection 

Alliance (“Plaintiff”) and Defendant Richard Dapelo (collectively, “the Parties”) agreed on a 

tentative settlement resolving the issues raised in Plaintiff’s complaint; and 

WHEREAS, on September 15, 2017, Plaintiff filed a Notice of Tentative 

Settlement and requested the Court not sign the Consent Decree until a mandatory period for 

comment by the United States had passed pursuant to United States Code, title 33, section 

1365(c)(3) and Code of Federal Regulations, title 40, section 135.5 (ECF #24); and 

WHEREAS, on September 25, 2017 Plaintiff filed a Notice of Commencement of 

45-Day Review Period, which advised the Court that the United States had acknowledged receipt 

Case 3:17-cv-00321-EMC Document 39 Filed 11/09/17 Page 1 of 42 Case 3:17-cv-00321-EMC Document 38 Filed 11/08/17 Page 1 of 3
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NOTICE OF LODGING [PROPOSED] CONSENT DECREE 

REQUEST FOR ENTRY -2- 3:17-CV-00321-EMC

of the Consent Decree and would notify the Court of any objections to the Consent Decree by 

November 6, 2017 (ECF #35); and 

WHEREAS, on November 6, 2017, the United States Department of Justice filed its 

Statement of Interest of the United States and Comments on Proposed Consent Decree, in which 

it stated that the United States does not object to the Court’s entry of the Consent Decree into 

judgment (ECF #37); As the Agencies have indicated that they have no objection to entry, the 

Court may now enter the [Proposed] Consent Decree, which includes a request that the Court 

retain jurisdiction to enforce the terms of the [Proposed] Consent Decree if necessary. 

THEREFORE, the Parties request the Court sign the [Proposed] Consent Decree, a true 

and correct copy of which is attached to this Notice of Lodging as “Exhibit A,” and enter the 

Consent Decree as judgment. Contingent upon the Court Entering the Consent Decree prior to 

dismissal, and pursuant to Paragraph 3 of the Consent Decree, the Parties shall file by November 

16, 2017, a Stipulation and Proposed Order for dismissal with prejudice pursuant to Federal Rule 

of Civil Procedure 41(a)(2). 

Dated: November 7, 2017 THE ARNOLD LAW PRACTICE

By: /s/ James R. Arnold

JAMES R. ARNOLD

JOHN A. BEARD

Attorneys for Defendant

RICHARD DAPELO

Dated: November 7, 2017 AQUA TERRA AERIS LAW GROUP LLP

By: /s/ Anthony M. Barnes

ANTHONY M. BARNES

Attorneys for Plaintiff 

CALIFORNIA SPORTFISHING 

PROTECTION ALLIANCE 

Case 3:17-cv-00321-EMC Document 39 Filed 11/09/17 Page 2 of 42 Case 3:17-cv-00321-EMC Document 38 Filed 11/08/17 Page 2 of 3
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NOTICE OF LODGING [PROPOSED] CONSENT DECREE 

REQUEST FOR ENTRY -3- 3:17-CV-00321-EMC

All other signatories listed, and on whose behalf this filing is submitted, concur in the filing’s 

content and have authorized the filing.

 /s/ Anthony M. Barnes___________ 

Anthony M. Barnes (SBN 199048)

Case 3:17-cv-00321-EMC Document 39 Filed 11/09/17 Page 3 of 42 Case 3:17-cv-00321-EMC Document 38 Filed 11/08/17 Page 3 of 3
EXHIBIT A

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[Proposed] CONSENT DECREE 1 Case No. 3:17-cv-00321-EMC

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Anthony Barnes (Bar No. 199048)

Jason Flanders (Bar No. 238007)

AQUA TERRA AERIS LAW GROUP LLP

828 San Pablo Ave., Ste. 115B

Albany, CA 94706

Phone: (415) 326-3173

Email: amb@atalawgroup.com

Attorneys for Plaintiff

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA SPORTFISHING PROTECTION

ALLIANCE, a non-profit corporation,

Plaintiff,

v.

RICHARD DAPELO, individually, and doing

business as QUALITY STAINLESS TANKS, and

QUALITY STAINLESS TANKS, an entity of

unknown type,

Defendants.

Civil Case 3:17-cv-00321-EMC

[Proposed] CONSENT DECREE

(Federal Water Pollution Control Act, 33

U.S.C. §1251 et seq.)

CONSENT DECREE

The following Consent Decree is entered into by and between Plaintiff California

Sportfishing Protection Alliance, a non-profit corporation, and Defendant Richard Dapelo,

individually and doing business as Quality Stainless Tanks. The entities entering into this Consent

Decree are collectively referred to as “the Parties.”1

WHEREAS, California Sportfishing Protection Alliance (“Plaintiff”) is a non-profit

corporation organized under the laws of the State of California, dedicated to the protection,

enhancement, and restoration of the Russian River, its tributaries, and other California waters. WHEREAS, Defendant Richard Dapelo, doing business as Quality Stainless Tanks

1 The putative defendant, Quality Stainless Tanks, an entity of unknown type, has been dismissed herein. Docket No. 29.

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[Proposed] CONSENT DECREE 2 Case No. 3:17-cv-00321-EMC

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(“Defendant”), is an individual citizen of the State of California. WHEREAS, Defendant owns and operates a stainless-steel tank manufacturing operation

facility in Windsor, California, located at 510 Caletti Ave, Windsor, CA (“the Facility”) with the

Waste Discharge Identification (“WDID”) number of 1 49I025185 and Standard Industrial

Classification (“SIC”) Code 3443, Fabricated Plate Work.

WHEREAS, stormwater discharges associated with industrial activity at the Facility are

regulated pursuant to the National Pollutant Discharge Elimination System (“NPDES”) General Permit

No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 2014-57-DWQ

(“Storm Water Permit”), and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean

Water Act” or “CWA”), Sections 301(a) and 402, 33 U.S.C. §§ 1311(a), 1342.

WHEREAS, Plaintiff contends that Defendant’s operations at the Facility result in discharges

into an underground shared storm drain system that flows through stormwater conveyance channels and

enters Pruitt Creek, a tributary to the Russian River, and contends that those discharges are regulated by

the Clean Water Act, Sections 301(a) and 402, 33 U.S.C. §§ 1311(a), 1342 (a map of the Facility is

attached hereto as Exhibit A and incorporated herein by reference);

WHEREAS, on November 21, 2016, Plaintiff served Defendant, the Administrator of the U.S.

Environmental Protection Agency (“EPA”), the Executive Director of the State Water Resources

Control Board (“State Board”), the Executive Officer of the North Coast Regional Water Quality

Control Board, (“Regional Board”), and the Regional Administrator of EPA Region IX, with a notice of

intent to file suit (“60-Day Notice”) under Section 505(b)(1)(a) of the of the Clean Water Act, 33 U.S.C.

§ 1365(b)(1)(A), alleging violations of the Clean Water Act and the Storm Water Permit and its previous

version, Water Quality Order No. 92-12-DWQ (as amended by Water Quality Order 97-03-DWQ), at

the Facility (a true and correct copy of Plaintiff’s 60-Day Notice is attached as Exhibit B and

incorporated herein by reference);

WHEREAS, on January 23, 2017, Plaintiff filed a complaint against Defendant alleging

Defendant is in violation of the substantive and procedural requirements of the Storm Water Permit and

the Clean Water Act;

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[Proposed] CONSENT DECREE 3 Case No. 3:17-cv-00321-EMC

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WHEREAS, Defendant denies all allegations and claims contained in the 60-Day Notice and the

Complaint and reserves all rights and defenses with respect to such allegations and claims;

WHEREAS, the Parties have agreed that it is in their mutual interest and therefore choose to

resolve in full Plaintiff’s allegations in the 60-Day Notice and Complaint through settlement and avoid

the cost and uncertainties of further litigation;

NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND

ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

1. For the purposes of this Consent Decree, the Parties agree: A) the Court has jurisdiction over the

subject matter of this action pursuant to Section 505(a)(1)(A) of the Clean Water Act, 33 U.S.C. §

1365(a)(1)(A); B) venue is appropriate in the United States District Court for the Northern District of

California pursuant to Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the

Facility at which the alleged violations took place is located within this District; C) the Complaint states

claims upon which relief may be granted against Defendant pursuant to Section 505 of the Clean Water

Act, 33 U.S.C. § 1365; D) Plaintiff has standing to bring this action; and E) the Court shall retain

jurisdiction over this matter for purposes of interpreting, modifying, or enforcing the terms of this

Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Court to

resolve any motion to enforce this Consent Decree.

OBJECTIVES

2. Compliance with General Permit and Clean Water Act: It is the express purpose of the

Parties entering into this Consent Decree that throughout the Term of this Consent Decree, which is

defined below in Paragraph 4, Defendant shall commence all measures needed to operate the Facility in

full compliance with applicable requirements of the Storm Water Permit, and the Clean Water Act,

subject to any defenses available under the law. All actions taken by Defendant pursuant to this Consent

Decree shall be made in compliance with all applicable Federal and State laws and local rules and

regulations.

EFFECTIVE DATE, AND TERM OF CONSENT DECREE

3. Effective Date and Dismissal: Within ten (10) days of expiration of the Federal Agencies’

statutory review period, or the earlier receipt of non-objection from the United States Department of

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[Proposed] CONSENT DECREE 4 Case No. 3:17-cv-00321-EMC

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Justice, the Parties shall file with the Court a Stipulation and Proposed Order that shall provide that the

Complaint and all claims therein shall be dismissed with prejudice pursuant to Federal Rule of Civil

Procedure 41(a)(2). The Proposed Order shall provide for the District Court to retain jurisdiction for the

enforcement of this Consent Decree as provided herein. The date of entry of the Order shall be the

“Effective Date” of this Consent Decree. 4. Term: The Term of this Consent Decree shall run from the Effective Date until September 1,

2019, unless an Action Plan is required per Paragraphs 5 and 12, below, based on the 2018-2019

reporting year2, in which case the Consent Decree will terminate upon complete implementation of the

measures described in the Action Plan.

COMMITMENTS OF DEFENDANT

5. BAT/BCT and Benchmark-Based Limits. After October 1, 2017, and for the remainder of the

Term of this Consent Decree, the Action Plan requirements of Paragraph 14 shall be triggered if there is

an “Exceedance.” An Exceedance as defined under this Consent Decree only occurs if two (2) storm

water sampling results for any given sampling Parameter identified in Table 1 exceed the Limit for that

parameter in a single reporting year. Table 1: Limits for Storm Water Discharges

Parameter

(All metals are total recoverable)

Limit

(all but pH in mg/L) Test Method3

Total Suspended Solids 100 mg/L SM 2540-D(NAL)

Zinc 0.26 mg/L EPA 200.8

Aluminum 0.75 mg/L EPA 200.8

Iron 1 mg/L EPA 200.7

Nitrate + Nitrite Nitrogen 0.68 mg/L SM 4500-NO3- E

Oil & Grease 15 mg/L EPA 1664A

pH 6.0-9.0 s.u.

See Section XI.C.2 of the

General Permit

6. Best Management Practices ( “BMPs”): In addition to maintaining the current BMPs at the

Facility, within forty-five (45) days of the Effective Date, unless otherwise noted, Defendant shall

2 A reporting year is July 1 to June 30. 3 Test Methods from Table 2 of the 2014 General Permit.

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[Proposed] CONSENT DECREE 5 Case No. 3:17-cv-00321-EMC

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implement or continue to implement the BMPs identified herein, as well as any other BMPs necessary to

comply with the provisions of the Consent Decree, the Storm Water Permit and the Clean Water Act, with the objective of preventing and/or reducing contamination in stormwater discharges from the

Facility consistent with the use of the BAT and the BCT and in compliance with applicable water

quality standards.

6.1 Defendant has installed and shall install curbed berms designed and implemented to

prevent any untreated run-on of fugitive stormwater onto the Facility from the adjacent industrial

facilities. 6.2 Defendant shall install stormwater filter media inserts into all drop inlets (“DIs”) at the

Facility that receive runoff from industrial activities at the Facility W-2, W-3, and W-4 (see

Exhibit A), in order to treat stormwater for observed pollutants at the Facility, and that allow for

stormwater sampling after filtration but before entering the shared storm drain system at the

Facility. Replacement of filter media in DIs shall be implemented on a regular schedule in

accordance with the useful lifespan of the filter media product(s), requiring replacement, at a

minimum, at the midpoint of the Wet Season (on or about January 31), and again prior to the start

of the subsequent Wet Season. 6.3 During the Wet Season, Defendant shall fit and install Filtrexx Envirosoxx®, or

equivalent media-filled fiber roll wattles designed to remove metals from stormwater, around the

following DIs (i.e., sampling points) at the Facility: W-1, W-2, W-3, and W-4 (see Exhibit A). All

Filtrexx fiber roll wattles shall be weighed down with sandbags during rain events to increase the

surface and filter area of the fiber roll wattles. Replacement of all Filtrexx Envirosoxx, or

equivalent media-filled fiber roll wattles designed to remove metals from stormwater, shall be

implemented on a regular schedule in accordance with the useful lifespan of the product(s), requiring replacement per manufactures recommendations, but at a minimum prior to the start of

each Wet Season. Defendant shall place and maintain sandbags around other DIs at the Facility. 6.4 Defendant shall implement more robust housekeeping measures, including, but not

limited to, a program of sweeping all paved areas of the Facility. The sweeping program shall

apply to all areas that discharge to sampling points, and will include (a) weekly sweeping of all

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[Proposed] CONSENT DECREE 6 Case No. 3:17-cv-00321-EMC

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paved surfaces during the Wet Season (October 1 – May 31), (b) monthly sweeping during the rest

of the year, and (c) vacuuming monthly and as needed. To document compliance with this

Paragraph, Defendant shall institute an established sweeping route with a map, a schedule and a

log for the sweeping program. Plaintiff shall have the right to inspect documentation related to

sweeping during site inspections, and Defendant shall provide the documentation related to

sweeping to Plaintiff with the Facility’s Annual Reports4 at the time Annual Reports are submitted

to the Regional Board.

6.5 Defendant shall not conduct metal grinding, cutting and sanding at the Facility except

under structural cover.

6.6 Defendant shall provide cover to all raw material and metal part storage areas at the

Facility, with the exception of clean stainless steel. 6.7 Defendant shall move all unused equipment stored outside under structural cover, or

implement and maintain a system for continuous tarping and/or cover of all surplus equipment

stored outside at the Facility, using durable cover impervious to water, to cover the equipment. The

cover shall be implemented to prevent storm water from coming in contact with the equipment.

Unused equipment means equipment not in regular use at the Facility for more than thirty (30)

consecutive days at a time. 6.8 Defendant shall cover all open bins and containers to prevent open bins or containers

containing industrial materials or wastes from industrial activities from coming into contact with

rainfall or stormwater runoff, at the Facility. Any bins or containers stored outside shall either be

covered or shall be empty and clean. A supervisor shall inspect the entirety of the Facility each

business day during the Wet Season, and shall take all reasonable steps to ensure that all bins or

containers have lids or covers and, prior to any rain event, are closed or covered.

6.9 All maintenance, repair, and replacement activities relating to stormwater BMPs

contained in this Consent Decree shall be recorded and described in appropriate written records.

Such records shall include, but not be limited to, any maintenance activities and any replacement

4 The Storm Water Permit requires dischargers to submit Annual Reports no later than July 15th following each reporting

year.

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[Proposed] CONSENT DECREE 7 Case No. 3:17-cv-00321-EMC

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of any stormwater impoundment or collection equipment and media-filled fiber roll wattles, DI

filter media inserts, and drains. The written records for each Wet Season shall be kept with the

written records required by the Facility’s Stormwater Pollution Prevention Plan (“SWPPP”) and

shall be provided to Plaintiff with the Facility’s Annual Report at the time the Annual Report is

submitted to the Regional Board.

7. Defendant shall not unilaterally abandon or significantly modify any of the BMPs described

above without prior consultation with Plaintiff. Defendant’s failure to consult with Plaintiff prior to

abandoning or significantly modifying a BMP, implementation, as described herein, shall constitute a

breach of this Consent Decree. Following notice of Defendant’s planned abandonment or significant

modification as described in this Paragraph, Plaintiff shall provide comments, if any, to Defendant

within seven (7) days of the notice. Any failure to comment on the proposed modifications by Plaintiff

shall not be deemed to constitute agreement with the proposals or be deemed to construe a waiver of any

of Plaintiff’s rights or remedies under this Consent Decree. Consultation pursuant to this Paragraph shall

not constitute an Action Plan as described in Paragraph 14 of this Consent Decree, or be deemed to

waive any of Defendant’s obligations with respect to an Action Plan.

8. Visual Observations. During the life of this Consent Decree, Defendant shall conduct visual

observations at each discharge location during each Qualifying Storm Event (“QSE”)5that occurs during

a reporting period (July 1 to December 31, January 1 to June 30), until the Defendant meets the

sampling frequency requirements in Paragraph 12. Defendant shall continue to conduct monthly visual

observations and maintain logs as required by the Storm Water Permit.

9. Employee Training Program. Defendant shall continue to develop and implement Defendant’s

employee training and reporting program and include: (1) Semi-annual meetings of the Storm Water

Pollution Prevention Team (“SWPPP Team”), held between September 10 and the start of a Wet Season

(October 1), and again within the month of February, to ensure effective stormwater training prior to the

start, and at the midpoint, of a Wet Season, and to ensure that visual monitoring is properly conducted

and reported (in the Annual Report); (2) Training all SWPPP Team employees as to the BMPs (as

5 “Qualifying Storm Events” under the Storm Water Permit is any precipitation event that: (a) Produces a discharge for at

least one drainage area; and, (b) Is preceded by 48 hours with no discharge from any drainage area.

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[Proposed] CONSENT DECREE 8 Case No. 3:17-cv-00321-EMC

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described in Paragraph 6) and the Facility’s SWPPP to ensure that BMPs are implemented effectively

and on schedule and that structural BMPs are maintained properly; (3) Training individual employees as

to their specific responsibilities as to BMPs; (4) Training including proper handling (collection, storage

and disposal) of all potential pollutant sources at the Facility; and (5) Training all employees as to the

Storm Water Permit’s prohibition of non-stormwater discharges, identifying non-stormwater discharges, and that non-stormwater discharges can result from improper surface washing or incomplete dust control

methods, and how to detect and prevent non-stormwater discharges.

10. Storm Water Pollution Prevention Plan (“SWPPP”). Within thirty (30) days of the Effective

Date, Defendant shall amend the Facility’s SWPPP to incorporate the requirements and BMPs set forth

in Section X of the Storm Water Permit and Paragraphs 6.1 through 6.9 of this Consent Decree, and

submit the amended SWPPP to Plaintiff within ten (10) business days thereafter. Plaintiff shall have

fourteen (14) days from receipt of an amended SWPPP to propose any changes. Within thirty (30) days

of notification by Plaintiff of any proposed changes to the amended SWPPP, Defendant shall either

make such changes to the amended SWPPP, or shall justify to Plaintiff in writing why any proposed

change is not made. Compliance with the SWPPP, as amended in accordance with this Paragraph, shall,

at all times, be a requirement of this Consent Decree. Following the submittal of the amended SWPPP,

Defendant shall revise the Facility’s SWPPP if there is any abandonment or significant changes in the

Facility’s operations, including, but not limited to, changes to stormwater discharge points or BMPs.

Such further SWPPP revisions shall occur within thirty (30) days of abandonment or significant changes

in operations.

11. Future Storm Water Pollution Prevention Plan Amendments. Defendant shall provide

Plaintiff with a copy of any amendments to the Facility’s SWPPP, or a link to the revisions on the State

Board’s SMARTS system made during the Term of the Consent Decree, within ten (10) days of

submitting such amendments to the Regional Board. 12. Sampling Frequency. For the 2017-2018 and 2018-2019 reporting years (October 1, 2017 to

June 30, 2018, and October 1, 2018 to June 30, 2019), Defendant shall collect and analyze samples from

two (2) QSEs within the first half of each reporting year (July 1 to December 31) and two (2) QSEs

within the second half of each reporting year (January 1 to June 30), at the Facility, from all sampling

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[Proposed] CONSENT DECREE 9 Case No. 3:17-cv-00321-EMC

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points identified in the Facility’s SWPPP. If Defendant receives stormwater sampling data

demonstrating an Exceedance (as defined in Paragraph 5) during the term of this Consent Decree,

Defendant shall provide Plaintiff with an Action Plan in compliance with the “Action Plan”

requirements set forth below in Paragraph 14. 13. Sampling Parameters. Each of the stormwater samples collected pursuant to Paragraph 12

herein shall be analyzed for each of the Parameters listed in Table 1 using the associated Test Method

listed in Table 1. The stormwater analysis shall be done by a laboratory accredited by the State of

California. Samples collected from the Facility shall be delivered to the laboratory as soon as possible

after collection to ensure that sample “hold time” is not exceeded. Pursuant to the Notice provisions of

Paragraph 39 herein, Defendant shall provide sampling results to Plaintiff within seven (7) days of

receiving a validated laboratory report, from each sampling event under this Consent Decree. 14. Action Plan. Defendant agrees to submit an Action Plan: (1) if required pursuant to Paragraphs 5

and 12, or (2) if Defendant fails to collect and analyze samples from the number of QSEs required in

Paragraph 12 above, or (3) if Defendant fails to comply with any other requirements of the Storm Water

Permit. The Action Plan shall comply with the following requirements: Defendant shall prepare a

detailed, written statement discussing and describing the Exceedance(s) or failure to collect and analyze

samples from the required number of QSEs, the possible cause(s) and/or source of the Exceedance(s) or

failure(s), additional measures or BMPs designed to address and eliminate future Exceedance(s) or

failure(s), and an expeditious time line for implementing the additional measures or BMPs (collectively,

the “Action Plan”). Defendant shall provide the Action Plan to Plaintiff no later than thirty (30) days

after Defendant receives the sampling results that complete Defendant’s obligation under Paragraph 12

for the reporting year, or fails to sample the required number of QSEs at the close of any reporting year.

In no event shall the Action Plan be submitted later than July 31st of each reporting year under this

Consent Decree, and in no event shall more than one Action Plan per reporting year be required. 15. Additional Measures. Such additional measures or BMPs under an Action Plan, to the extent

reasonably feasible, shall be implemented within sixty (60) days after the due date of the Action Plan.

Within thirty (30) days of implementation, Defendant shall amend the Facility’s SWPPP to describe all

additional measures or BMPs in the Action Plan.

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[Proposed] CONSENT DECREE 10 Case No. 3:17-cv-00321-EMC

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16. Plaintiff Review of Action Plan(s). Plaintiff may review and comment on an Action Plan and

suggest any additional pollution prevention measures or BMPs it believes are appropriate within thirty

(30) days of receipt of any Action Plan under this Consent Decree; however, Plaintiff’s failure to do so

shall not be deemed to constitute agreement with the additional measures or BMPs proposed by

Defendant. Defendant shall not be obligated to perform any of the pollution prevention measures or

BMPs Plaintiff may recommend (subject to dispute resolution in Paragraphs 22 and 23), but Defendant

shall give good faith consideration to Plaintiff’s suggested additional measures or BMPs, and provide a

written explanation as to why Defendant declines to implement the suggested additional measures or

BMPs. Upon request by Plaintiff, Defendant agrees to meet and confer in good faith (at the Facility, if

requested by Plaintiff) regarding the contents and sufficiency of the Action Plan.

17. Site Inspections. In addition to any site inspections conducted as part of the settlement process

and the meet-and-confer process concerning an Action Plan as set forth above, Defendant shall permit

representatives of Plaintiff to perform up to two (2) physical inspections at the Facility during the term

of this Agreement, upon notice as provided in paragraph 39. These inspections shall not last longer than

three (3) hours, and may be performed by Plaintiff’s counsel and consultants and may include sampling,

photographing, and/or videotaping. All sampling shall be (a) conducted by a qualified sampler at the

sampling points indicated in the SWPPP, (b) in accordance with monitoring required by the SWPPP, and (c) include providing both Plaintiff and Defendant split samples at the time of sampling. Samples

collected by Plaintiff shall not be considered samples collected for the purposes of compliance with the

General Permit sampling requirements, and shall not be uploaded to SMARTS.

17.1 Confidentiality of Sampling Results. The results of Plaintiff’s sampling shall be kept

confidential to the extent allowable by law, except for the purposes of dispute resolution. Plaintiff

and Defendant acknowledge that in certain circumstances disclosure may be compelled by law

because of the actions of third parties. (For example, a third-party litigant could seek to compel

disclosure through discovery.) In the event such a requirement to disclose arises, Plaintiff shall

provide Defendant with notice pursuant to Paragraph 39 of such a requirement within five (5) days.

The Parties acknowledge that Defendant may seek to intervene in order to block or limit Plaintiff’s

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disclosure to a third party. If Defendant decides in its discretion to intervene, such intervention shall

not be construed as Plaintiff’s support of Defendant’s action.

17.2 Sampling Results. Plaintiff shall provide Defendant with a copy of all sampling reports,

photographs and/or video within a reasonable time after the site inspection, not to exceed fourteen

(14) days after Plaintiff’s receipt of any sampling reports from split samples, and seven (7) days after

the site inspection, for photographs and/or video.

17.3 Notice and Timing of Inspection. Plaintiff shall provide at least four (4) calendar days’ advance notice of such physical inspection and the names and contact information of Plaintiff’s

representatives. Defendant shall have the right to deny access if circumstances would make the

inspection unduly burdensome or pose significant interference with business operations or involve

the safety of individuals. In such case, Defendant shall specify at least three (3) dates within the two

(2) weeks thereafter upon which a physical inspection by Plaintiff may proceed. Plaintiff may reject

dates selected by Defendant in order to select a date with a 50 percent or higher probability of rain

totaling 0.1 inch or greater at the Facility.6 Defendant shall document any alterations to the Facility

conditions related to stormwater management during the period between receiving Plaintiff’s initial

advance notice and the start of Plaintiff’s inspection that Defendant would not otherwise have made

but for receiving notice of Plaintiff’s request to conduct a physical inspection. The documentation

shall include the date the alterations related to stormwater management were planned and/or

scheduled, the date of the issuance of any purchase order and/or maintenance order, if any, for the

alterations, and the date the alterations were implemented. Nothing herein shall be construed to

prevent Defendant from continuing to implement any BMPs identified in the SWPPP at any time. 18. Defendant’s Communications with Regional and State Boards. During the Term of this

Consent Decree, Defendant shall provide Plaintiff with copies of all documents and communications

submitted to the Regional Board or the State Board concerning BMPs, stormwater or stormwater

discharges from the Facility, or compliance with the Storm Water Permit or the Clean Water Act. These

documents and communications shall include, but are not limited to, all documents and reports

6 The parties agree to use Weatherunderground.com for this purpose.

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submitted to the Regional Board and/or the State Board as required by the Storm Water Permit, and all

correspondence between the Regional Board or the State Board and the Defendant or their agents. Such

documents and reports shall be provided to Plaintiff pursuant to the Notice provisions of Paragraph 39

herein within five (5) days of Defendant’s transmission of said documents to the Regional Board or the

State Board. This provision does not extend to information submitted to the Regional Board or the State

Board pursuant to Section II.B.3.d of the Storm Water Permit (or a similar provision in the event the

Storm Water Permit is changed.) Should information be under Section II.B.3.d of the Storm Water

Permit, Defendant shall notify Plaintiff of the submission within thirty (30) days.

MITIGATION, COMPLIANCE MONITORING AND FEES AND COSTS

19. Mitigation. As mitigation of the Clean Water Act violations alleged in Plaintiff’s Complaint,

Defendant agrees to pay the sum of Fifteen Thousand Dollars ($15,000.00) to the Rose Foundation for

Communities and the Environment (the “Rose Foundation”) for projects to improve water quality in

local watersheds of Sonoma County, including but not limited to the Russian River and any of the

Russian River tributaries. The mitigation payment shall be made directly to the Rose Foundation and

sent to: The Rose Foundation, 1970 Broadway, Suite 600, Oakland, CA 94612, Attn: Tim Little. The

Rose Foundation shall provide notice to the Parties within thirty (30) days of when the funds are

dispersed by the Rose Foundation, setting forth the recipient and purpose of the funds. The payment

shall be sent within thirty (30) calendar days of the Effective Date.

20. Plaintiff’s Litigation Costs. To partially reimburse Plaintiff for its investigation fees and costs,

expert/consultant fees and costs, reasonable attorneys’ fees, and other costs incurred as a result of

investigating and filing the lawsuit, and negotiating this Consent Decree, Defendant shall pay a total of

Forty-Two Thousand Dollars ($42,000.00). The payment shall be made within thirty (30) calendar days

of the Effective Date. The payment shall be made via wire transfer or check, made payable to: “ATA

LAW GROUP” and delivered by overnight delivery, unless payment via wire transfer, to: ATA Law

Group, 828 San Pablo Ave., Ste. 115B, Albany, CA 94706. 21. Compliance Monitoring and Oversight. Defendant agrees to partially defray Plaintiff’s

reasonable investigative, expert, consultant and attorneys’ fees and costs associated with monitoring

Defendant’s compliance with this Consent Decree in the amount of Eight Thousand Dollars ($8,000.00).

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Payment shall be made within thirty (30) calendar days after the Effective Date. Compliance monitoring

activities may include, but shall not be limited to, sampling and lab analysis, reasonable investigative,

expert, consultant and attorneys’ fees and costs, site inspections, review of water quality sampling

reports, review of annual reports, discussions with representatives of Defendant concerning any Action

Plan(s) referenced above, potential changes to compliance sampling and analysis, and compliancerelated activities. The payment shall be made via wire transfer or check, made payable to: “ATA LAW

GROUP” and delivered by overnight delivery, unless payment via wire transfer, to: ATA Law Group,

828 San Pablo Ave., Ste. 115B, Albany, CA 94706.

DISPUTE RESOLUTION

22. Jurisdiction of the Court. The Court shall retain jurisdiction over this matter for the Term of

the Consent Decree for the purposes of enforcing its terms and conditions, and adjudicating all disputes

among the Parties that may arise under the provisions of this Consent Decree. The Court shall have the

authority to enforce this Consent Decree with all available legal and equitable remedies, including

contempt.

23. Meet and Confer. If a dispute under this Consent Decree arises or either Party believes that a

breach of this Consent Decree has occurred, the Parties agree to meet and confer. Either Party to this

Consent Decree shall invoke the dispute resolution procedures of this Paragraph by notifying the other

Party of the matter(s) in dispute, pursuant to Paragraph 39. The Parties shall schedule a meet and confer

(either telephonically or in person) within ten (10) business days from the date of the notice. The Parties

may elect to extend this time in an effort to resolve the dispute without mediation or court intervention.

If the Parties fail to meet and confer, or cannot resolve a dispute through the informal meet and confer

process or through voluntary mediation, either Party shall be entitled to all rights and remedies under the

law, including filing a motion with the United States District Court for the Northern District of

California. The Parties shall be entitled to seek fees and costs incurred in any such motion, and such fees

and costs shall be awarded pursuant to the provisions set forth in Section 505(d) of the Clean Water Act, and case law interpreting such provision.

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MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE

24. Plaintiff’s Waiver and Release. Plaintiff, on its own behalf and on behalf of its officers,

directors, employees, parents, subsidiaries, affiliates and each of their successors and assigns, hereby

releases Defendant and his employees, successors or assigns, agents, attorneys and other representatives,

from, and waives all claims raised in the 60-Day Notice and/or the Complaint, including all claims for

fees (including fees of attorneys, experts, and others), costs, expenses, or any other sum incurred or

claimed or which could have been claimed for matters included in the 60-Day Notice and/or the

Complaint up to the Effective Date.

25. Defendant’s Waiver and Release of Plaintiff. Defendant, on his own behalf and on behalf of

his employees, successors or assigns hereby releases Plaintiff and its officers, directors, employees,

members, parents, subsidiaries, and affiliates, and each of their successors and assigns from, and waives

all claims which arise from or pertain to the 60-Day Notice and/or the Complaint, including all claims

for fees (including fees of attorneys, experts, and others), costs, expenses, or any other sum incurred or

claimed or which could have been claimed for matters included in the 60-Day Notice and/or the

Complaint up to the Effective Date. MISCELLANEOUS PROVISIONS

26. No Admission of Liability. Neither this Consent Decree, the implementation of additional

BMPs or any payment pursuant to the Consent Decree shall constitute or be construed as a finding,

admission, or acknowledgement of any fact, law, rule, or regulation. Defendant maintains and reserves

all defenses he may have to any alleged violations that may be raised in the future.

27. Submission of Consent Decree to DOJ. After agreement of the Parties to this proposed Consent

Decree, Plaintiff will submit this Consent Decree, and file Proof of Service thereof, with a courtesy copy

to Defendant, to the United States Department of Justice and the United States Environmental Protection

Agency (collectively, “Federal Agencies”) for the statutory review period pursuant to 33 U.S.C. §

1365(c) of at least 45 days prior to the submittal of this Consent Decree to the Court for entry. In the

event that the Federal Agencies object to entry of this Consent Decree, the Parties agree to meet and

confer to attempt to resolve issue(s) raised by the Federal Agencies within thirty (30) days of receiving

notice of such objection.

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28. Early Termination. If Defendant ceases industrial operations at the Facility and files a Notice of

Termination (“NOT”) pursuant to the Storm Water Permit prior to the termination date of this Consent

Decree, Defendant shall provide notice pursuant to Paragraph 39, of the proposed NOT concurrent with

Defendant’s submittal to the Regional Board. Within ten (10) days of the Regional Board’s approval of

the NOT, Defendant shall notify Plaintiff, pursuant to Paragraph 39, of the approval and remit all

outstanding payments to Plaintiff and the Rose Foundation. In the event a successor or assign continues

industrial operations at the Facility and assumes responsibility for implementation of this Consent

Decree pursuant to Paragraph 38, Defendant shall notify Plaintiff pursuant to Paragraph 39 within ten

(10) calendar days of said continuation. 29. Execution in Counterparts and Signatures. The Consent Decree may be executed in one of

more counterparts, which, taken together, shall constitute one original document. The Parties’ signatures

to this Consent Decree may be electronic or original, and whether transmitted by courier, mail, email or

facsimile, shall be deemed binding.

30. Construction. The language in all parts of this Consent Decree shall be construed according to

its plain and ordinary meaning, except as to those terms defined in the Storm Water Permit, the Clean

Water Act, or specifically herein. The captions and Paragraph headings used in this Consent Decree are

for reference only and shall not affect the interpretation of this Consent Decree.

31. Authority to Sign. The undersigned representatives for Plaintiff and Defendant certify that they

are fully authorized by the Party whom they represent to enter into the terms and conditions of this

Consent Decree, which have been read, understood and agreed to. 32. Integrated Consent Decree. All agreements, covenants, representations and warranties, express

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

contained herein.

33. Severability. In the event that any of the provisions of this Consent Decree are held by a Court

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

34. Choice of Law. This Consent Decree shall be governed by the laws of the United States or,

where applicable, the laws of the State of California.

35. Full Settlement. This Consent Decree constitutes a full and final settlement of this matter.

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36. Negotiated Agreement. The Parties have negotiated this Consent Decree, and agree that it shall

not be construed against the Party preparing it, but shall be construed as if the Parties jointly prepared

this Consent Decree, and any uncertainty and ambiguity shall not be interpreted against either Party.

37. Modification of the Agreement. This Consent Decree, and any provisions herein, may not be

changed, waived, or discharged unless by a written instrument signed by each of the Parties.

38. Assignment. Subject only to the express restrictions contained in this Consent Decree, all of the

rights, duties and obligations contained in this Consent Decree shall inure to the benefit of and be

binding upon the Parties and their successors, assigns, and agents. 39. Notice. Unless otherwise stipulated to by the receiving Party, any notices or documents required

or provided for by this Consent Decree or related thereto that are to be provided to Plaintiff pursuant to

this Consent Decree shall be sent via certified mail, return receipt requested, with courtesy copy by

electronic mail to the addresses listed below:

Bill Jennings, Executive Director

California Sportfishing Protection Alliance

3536 Rainier Avenue

Stockton, CA 95204

Email: deltakeep@me.com

Anthony M. Barnes

Aqua Terra Aeris Law Group LLP

828 San Pablo Ave., Ste. 115B

Albany, CA 94706

Phone: (415) 326-3173

Email: amb@atalawgroup.com

Any notices or documents required or provided for by this Consent Agreement or related thereto

that are to be provided to Defendant pursuant to this Consent Agreement shall be sent via certified mail,

return receipt requested, with courtesy copy by electronic mail to the addresses listed below:

Rick Dapelo, Owner

Quality Stainless Tanks

510 Caletti Ave,

Windsor, CA 95492

Email: winetanksoffice@gmail.com

James R. Arnold

The Arnold Law Practice

(East Bay Office)

3685 Mt Diablo Blvd #331,

Lafayette, CA 94549

Phone: (925) 284-8887

Email: jarnold@arnoldlp.com

jbeard@arnoldlp.com

Each Party shall promptly notify all other Parties of any change in the above-listed contact

information.

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40. Force Majeure. No Party shall be considered to be in default in the performance of any of its

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

circumstances beyond the Party’s reasonable control, including, without limitation, any act of God, war,

fire, earthquake, flood, and restraint by court order or public authority. A Force Majeure event does not

include normal inclement weather, such as anything less than or equal to a 100 year/24-hour storm

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

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

diligence has been unable to overcome, the Force Majeure.

The Parties hereto enter into this Consent Decree, Order and Final Judgment and submit it to the

Court for its approval and entry as a final judgment.

Dated: ______________, 2017 By: _____________________________ Bill Jennings, Executive Director

California Sportfishing Protection Alliance

Dated: ______________, 2017 By: _____________________________ Richard Dapelo

Defendant

Good cause appearing, IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Dated: ______________, 2017 ____________________________ Honorable Edward M. Chen

United States District Judge

 Sept. 8, 2017

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11/9

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NITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IT IS SO ORDERED

Judge Edward M. Chen

Case 3:17-cv-00321-EMC Document 39 Filed 11/09/17 Page 22 of 42
EXHIBIT A

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Environmental Consulting

ROUX ASSOCIATES, INC.

& Management

1

x SITE MAP

x

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EXHIBIT B

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November 21, 2016 

VIA U.S. CERTIFIED MAIL, RETURN RECEIPT REQUESTED 

Rick Dapelo, Owner 

Quality Stainless Tanks 

510 Caletti Ave, 

Windsor, CA 95492 

Sean Headden, Operations Manager 

Quality Stainless Tanks 

510 Caletti Ave, 

Windsor, CA 95492 

RE: NOTICE OF VIOLATIONS AND INTENT TO FILE SUIT UNDER THE FEDERAL 

WATER POLLUTION CONTROL ACT (“CLEAN WATER ACT”) (33 U.S.C. §§ 

1251 et seq.) 

Dear Mr. Dapelo & Mr. Headden, 

This firm represents California Sportfishing Protection Association (“CSPA”), a 

California non-profit association, in regard to violations of the Clean Water Act (“CWA” 

or “the Act”) occurring at Quality Stainless Tanks’ manufacturing facility at 510 Caletti 

Ave, Windsor, CA (the “Facility”). This letter is being sent to you as the responsible 

owners, officers, and/or operators of the Facility. Unless otherwise noted, Quality 

Stainless Tanks shall hereinafter be referred to as “QST,” and Rick Dapelo and Sean 

Headden shall hereinafter be collectively referred to as the “Owners/Operators.” CSPA 

is a non-profit association dedicated to the preservation, protection, and defense of the 

environment, wildlife, and natural resources throughout the state of California, including 

the Russian River Basin, and Pruitt Creek, into which QST discharges polluted storm 

water. 

QST is in ongoing violation of the substantive and procedural requirements of the 

CWA, 33 U.S.C. § 1251 et seq.; and California’s General Industrial Storm Water Permit, 

National Pollution Discharge Elimination System (“NPDES”) General Permit No. 

CAS000001 (“General Permit”), Water Quality Order No. 97-03-DWQ (“1997 General 

Permit”), as superseded by Order No. 2015-0057-DWQ (“2015 General Permit”).1

The 1997 General Permit was in effect between 1997 and June 30, 2015, and 

the 2015 General Permit went into effect on July 1, 2015. As will be explained below, 

the 2015 General Permit includes many of the same fundamental requirements, and 

implements many of the same statutory requirements, as the 1997 General Permit. 

 

1 QST submitted a NOI to comply with the General Permit for the Facility on or about June 23, 2015. 

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CWA Notice of Intent to Sue 

Quality Stainless Tanks 

November 21, 2016 

Page 2 of 13 

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Violations of the General Permit constitute ongoing violations for purposes of CWA 

enforcement. 2015 General Permit, Finding A.6. 

Pursuant to Section 309(d) of the Act (33 U.S.C. § 1319(d)) and the Adjustment 

of Civil Monetary Penalties for Inflation (40 C.F.R. § 19.4) each separate violation of the 

Act subjects QST to a penalty of up to $37,500 per day, per violation for all violations 

occurring during the period commencing five years prior to the date of this Notice of 

Violation and Intent to File Suit. In addition to civil penalties, CSPA will seek injunctive 

relief preventing further violations of the Act pursuant to Sections 505(a) and (d) of the 

Act (33 U.S.C. §§ 1365(a), (d)) and such other relief as permitted by law. Lastly, Section 

505(d) of the Act (33 U.S.C. § 1365(d)) permits prevailing parties to recover costs and 

fees including attorneys’ fees. 

The CWA requires that sixty (60) days prior to the initiation of a citizenenforcement action under Section 505(a) of the Act (33 U.S.C. § 1365(a)), a citizen 

enforcer must give notice of its intent to file suit. Notice must be given to the alleged 

violator, the U.S. Environmental Protection Agency, and the Chief Administrative Officer 

of the water pollution control agency for the State in which the violations occur. See 40 

C.F.R. 135.2. 

As required by the Act, this letter provides statutory notice of the violations that 

have occurred, and continue to occur, at the Facility. 40 C.F.R. § 135.3(a). At the 

expiration of sixty (60) days from the date of this letter, CSPA intends to file suit under 

Section 505(a) of the Act (33 U.S.C. § 1365(a)) in federal court against Quality Stainless 

Tanks for violations of the Act and the General Permit. 

I. Background 

A. The Clean Water Act 

Congress enacted the CWA in 1972 in order to “restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. 

The Act prohibits the discharge of pollutants into United States waters except as 

authorized by the statute. 33 U.S.C. § 1311; San Francisco Baykeeper, Inc. v. Tosco 

Corp., 309 F.3d 1153, 1156 (9th Cir. 2002). The Act is administered largely through the 

NPDES permit program. 33 U.S.C. § 1342. In 1987, the Act was amended to establish a 

framework for regulating storm water discharges through the NPDES system. Water 

Quality Act of 1987, Pub. L. 100-4, § 405, 101 Stat. 7, 69 (1987) (codified at 33 U.S.C. § 

1342(p)); see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 840-41 (9th Cir. 2003) 

(describing the problem of storm water runoff and summarizing the Clean Water Act’s 

permitting scheme). The discharge of pollutants without an NPDES permit, or in 

violation of a NPDES permit, is illegal. Ecological Rights Found. v. Pac. Lumber Co., 

230 F.3d 1141, 1145 (9th Cir. 2000). 

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CWA Notice of Intent to Sue 

Quality Stainless Tanks 

November 21, 2016 

Page 3 of 13 

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Much of the responsibility for administering the NPDES permitting system has 

been delegated to the states. See 33 U.S.C. § 1342(b); see also Cal. Water Code § 

13370 (expressing California’s intent to implement its own NPDES permit program). 

The CWA authorizes states with approved NPDES permit programs to regulate 

industrial storm water discharges through individual permits issued to dischargers, as 

well as through the issuance of a single, statewide general permit applicable to all 

industrial storm water dischargers. 33 U.S.C. § 1342(b). Pursuant to Section 402 of the 

Act, the Administrator of EPA has authorized California’s State Board to issue individual 

and general NPDES permits in California. 33 U.S.C. § 1342. 

B. California’s General Permit for Storm Water Discharges Associated 

with Industrial Activities 

Between 1997 and June 30, 2015, the General Permit in effect was Order No. 

97-03-DWQ, which CSPA refers to as the “1997 General Permit.” On July 1, 2015, 

pursuant to Order No. 2015-0057-DWQ the General Permit was reissued, including 

many of the same fundamental terms as the prior permit. For the purposes of this notice 

letter, CSPA refers to the reissued permit as the “2015 General Permit.” The 2015 

General Permit rescinded in whole the 1997 General Permit, except for the expired 

permit’s requirement that annual reports be submitted by July 1, 2015, and for purposes 

of CWA enforcement. 2015 General Permit, Finding A.6. 

Facilities discharging, or having the potential to discharge, storm water 

associated with industrial activities that have not obtained an individual NPDES permit 

must apply for coverage under the General Permit by filing a Notice of Intent to Comply 

(“NOI”). 1997 General Permit, Provision E.1; 2015 General Permit, Standard Condition 

XXI.A. Facilities must file their NOIs before the initiation of industrial operations. Id.

Facilities must strictly comply with all of the terms and conditions of the General 

Permit. A violation of the General Permit is a violation of the CWA. 

The General Permit contains three primary and interrelated categories of 

requirements: (1) discharge prohibitions, receiving water limitations and effluent 

limitations; (2) Storm Water Pollution Prevention Plan (“SWPPP”) requirements; and (3) 

self-monitoring and reporting requirements. 

C. QST’s Windsor Facility 

QST’s industrial facility at Windsor consists of an outdoor welding area, metal 

parts storage areas, sanding and painting area, a metal saw area, raw materials 

receiving and storage areas, finished tank storage areas, process pond, and a 55-gallon 

diesel drum in a concrete dike. The industrial activities of the Facility fall under Standard 

Industrial Classification (“SIC”) Code 3443, Fabricated Plate Work. 

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CWA Notice of Intent to Sue 

Quality Stainless Tanks 

November 21, 2016 

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QST collects and discharges storm water associated with industrial activities 

pursuant to the General Permit through three underground storm drain pipes. The 

sampling sites for these discharge locations are identified in the SWPPP as W-1, W-2 

and W-3. These discharges enter Pruitt Creek, which is a tributary to the Russian River. 

Pruitt Creek and the Russian River are waters of the United States within the meaning 

of the CWA. SW-5 is a further sampling site identified in the SWPPP, but it does not 

appear sampling has taken place at this site after 2012. 

The General Permit requires QST to analyze storm water samples for Total 

Suspended Solids (“TSS”), pH, and Oil and Grease. 1997 General Permit, Section 

B.5.c.i; 2015 General Permit, Section XI.B.6. Facilities under SIC Code 3443 must also 

analyze storm water samples for Zinc, Nitrate and Nitrate Nitrogen, Iron, and Aluminum. 

1997 General Permit, Tables 1-2; 2015 General Permit Tables 1-2. 

II. QST’s Violations of the Act and the General Permit 

Based on its review of available public documents, CSPA is informed and 

believes that QST is in ongoing violation of both the substantive and procedural 

requirements of the CWA, and the General Permit. These violations are ongoing and 

continuous. Consistent with the five-year statute of limitations applicable to citizen 

enforcement actions brought pursuant to the CWA, QST is subject to penalties for 

violations of the Act since November 21, 2011. 

A. QST Discharges Storm Water Containing Pollutants in Violation of 

the General Permit’s Discharge Prohibitions, Receiving Water 

Limitations, and Effluent Limitations. 

QST’s storm water sampling results provide conclusive evidence of its failure to 

comply with the General Permit’s discharge prohibitions, receiving water limitations and 

effluent limitations. Self-monitoring reports under the General Permit are deemed 

“conclusive evidence of an exceedance of a permit limitation.” Sierra Club v. Union Oil, 

813 F.2d 1480, 1493 (9th Cir. 1988). 

1. Applicable Water Quality Standards 

The General Permit requires that storm water discharges and authorized nonstorm water discharges shall not cause or threaten to cause pollution, contamination, or 

nuisance. 1997 General Permit, Discharge Prohibition A.2; 2015 General Permit, 

Discharge Prohibition III.C. The General Permit also prohibits discharges that violate 

any discharge prohibition contained in the applicable Regional Water Board’s Basin 

Plan or statewide water quality control plans and policies. 1997 General Permit, 

Receiving Water Limitation C.2; 2015 General Permit, Discharge Prohibition III.D. 

Furthermore, storm water discharges and authorized non-storm water discharges shall 

not adversely impact human health or the environment, and shall not cause or 

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5 

contribute to a violation of any water quality standards in any affected receiving water. 

1997 General Permit, Receiving Water Limitations C.1, C.2; 2015 General Permit, 

Receiving Water Limitations VI.A, VI.B. 

Dischargers are also required to prepare and submit documentation to the 

Regional Board upon determination that storm water discharges are in violation of the 

General Permit’s Receiving Water Limitations. 1997 General Permit, p. VII; 2015 

General Permit, Special Condition XX.B. The documentation must describe changes the 

discharger will make to its current storm water best management practices (“BMPs”) in 

order to prevent or reduce any pollutant in its storm water discharges that is causing or 

contributing to an exceedance of water quality standards. Id. 

The California Toxics Rule (“CTR”) is an applicable water quality standard under 

the Permit, violation of which is a violation of Permit conditions. Cal. Sportfishing Prot. 

Alliance v. Chico Scrap Metal, Inc., 2015 U.S. Dist. LEXIS 108314, *21 (E.D. Cal. 2015) 

CTR establishes numeric receiving water limits for toxic pollutants in California surface 

waters. 40 C.F.R. § 131.38. The CTR establishes a numeric limit for at least one of the 

pollutants discharged by QST: Zinc – 0.12 mg/L (maximum concentration). 

The Water Quality Control Plan for the North Coast Region (“Basin Plan”) also 

sets forth water quality standards and prohibitions applicable to QST’s storm water 

discharges. While the Basin Plan does not specify beneficial uses for Pruitt Creek, it 

does identify existing and potential uses for the Russian River, to which Pruitt Creek is 

tributary. Thus, the existing beneficial uses for Pruitt Creek include municipal and 

domestic water supply, agricultural supply, industrial service supply, industrial process 

supply, groundwater recharge, navigation, hydropower generation, commercial and 

sport fishing, wildlife habitat, warm freshwater habitat, cold freshwater habitat, warm 

and cold spawning, migration, aquaculture, and contact and non-contact water 

recreation. 

2. Applicable Effluent Limitations 

Dischargers are required to reduce or prevent pollutants in their storm water 

discharges through implementation of best available technology economically 

achievable (“BAT”) for toxic and nonconventional pollutants and best conventional 

pollutant control technology (“BCT”) for conventional pollutants. 1997 General Permit, 

Effluent Limitation B.3; 2015 General Permit, Effluent Limitation V.A. Conventional 

pollutants include Total Suspended Solids, Oil & Grease, pH, Biochemical Oxygen 

Demand and Fecal Coliform. 40 C.F.R. § 401.16. All other pollutants are either toxic or 

nonconventional. 40 C.F.R. §§ 401.15-16. 

Under the General Permit, benchmark levels established by the EPA (“EPA 

benchmarks”) serve as guidelines for determining whether a facility discharging 

industrial storm water has implemented the requisite BAT and BCT. Santa Monica 

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Baykeeper v. Kramer Metals, 619 F.Supp.2d 914, 920, 923 (C.D. Cal 2009); 1997 

General Permit, Effluent Limitations B.5-6; 2015 General Permit, Exceedance 

Response Action XII.A. 

The following EPA benchmarks have been established for pollutants discharged 

by QST: Total Suspended Solids – 100 mg/L; Zinc – 0.117 mg/L; Aluminum – 

0.75 mg/L; Nitrate plus Nitrate Nitrogen – 0.68 mg/L; and Iron – 1 mg/L.

3. Quality Stainless Tanks’ Storm Water Sample Results 

The SWPPP prepared for QST (dated June 23, 2016) reported exceedances of 

water quality standards in 2010, 2011 and 2012 for Aluminum, Copper, Iron, Lead, Zinc, 

Nitrate, Conductivity, and Total Suspended Solids. Further testing undertaken on 

February 6, 2015, found exceedances for Aluminum, Iron, Zinc, Nitrate, Conductivity, 

and Total Suspended Solids. 

The following discharges of pollutants from the Facility have violated the 

discharge prohibitions, receiving water limitations, and effluent limitations of the permit. 

a. Discharge of Storm Water Containing Total Suspended 

Solids (TSS) at Concentrations in Excess of Applicable 

EPA Benchmark Value 

Date Discharge 

Point 

Parameter Concentration 

in Discharge 

(mg/L) 

EPA 

Benchmark 

Value 

(mg/L) 

1/19/2012 SW-5 TSS 570 100 

2/16/2015 W-1 TSS 1300 100 

2/16/2015 W-2 & W-3 

composite 

TSS 110 100 

2/16/2015 W-2 & W-3 

composite 

TSS 110 100 

1/29/2016 W-2 & W-3 

composite 

TSS 220 100 

1/29/2016 W-2 & W-3 

composite 

TSS 220 100 

3/4/2016 W-1 TSS 290 100 

3/4/2016 W-2 & W-3 

composite 

TSS 190 100 

3/4/2016 W-2 & W-3 

composite 

TSS 190 100 

 

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b. Discharges of Storm Water Containing Zinc (Zn) at 

Concentrations in Excess of Applicable EPA Benchmark 

and CTR Values 

Date Discharge 

Point 

Parameter Concentration 

in Discharge 

(mg/L) 

EPA 

Benchmark 

Value 

(mg/L) 

CTR 

Criteria 

(mg/L) 

1/19/2012 SW-5 Zn 0.45 0.117 0.12 

2/6/2015 W-1 Zn 1.8 0.117 0.12 

2/6/2015 W-2 & W-3 

composite 

Zn 0.22 0.117 0.12 

2/6/2015 W-2 & W-3 

composite 

Zn 0.22 0.117 0.12 

1/29/2016 W-1 Zn 0.16 0.117 0.12 

1/29/2016 W-2 & W-3 

composite 

Zn 0.23 0.117 0.12 

1/29/2016 W-2 & W-3 

composite 

Zn 0.23 0.117 0.12 

3/4/2016 W-1 Zn 0.41 0.117 0.12 

3/4/2016 W-2 & W-3 

composite 

Zn 0.22 0.117 0.12 

3/4/2016 W-2 & W-3 

composite 

Zn 0.22 0.117 0.12 

c. Discharges of Storm Water Containing Iron (Fe) at 

Concentrations in Excess of Applicable EPA Benchmark 

Value 

Date Discharge 

Point 

Parameter Concentration 

in Discharge 

(mg/L) 

EPA 

Benchmark 

Value 

(mg/L) 

1/19/2012 SW-5 Fe 27 1.0 

2/6/2015 W-1 Fe 53 1.0 

2/6/2015 W-2 & W-3 

composite 

Fe 9.3 1.0 

2/6/2015 W-2 & W-3 

composite 

Fe 9.3 1.0 

12/9/2015 W-1 Fe 2.3 1.0 

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12/9/2015 W-2 & W-3 

composite 

Fe 6.2 1.0 

12/9/2015 W-2 & W-3 

composite 

Fe 6.2 1.0 

1/29/2016 W-1 Fe 7.3 1.0 

1/29/2016 W-2 & W-3 

composite 

Fe 14 1.0 

1/29/2016 W-2 & W-3 

composite 

Fe 14 1.0 

3/4/2016 W-1 Fe 24 1.0 

3/4/2016 W-2 & W-3 

composite 

Fe 12 1.0 

3/4/2016 W-2 & W-3 

composite 

Fe 12 1.0 

d. Discharges of Storm Water Containing Nitrate plus 

Nitrate Nitrogen (N + N) at Concentrations in Excess of 

Applicable EPA Benchmark Value 

Date Discharge 

Point 

Parameter Concentration 

in Discharge 

(mg/L) 

EPA 

Benchmark 

Value 

(mg/L) 

1/19/2012 SW-5 N + N 6.2 0.68 

2/6/2015 W-1 N + N 7.65 0.68 

2/6/2015 W-2 & W-3 

composite 

N + N 0.88 0.68 

2/6/2015 W-2 & W-3 

composite 

N + N 0.88 0.68 

12/9/2015 W-1 N + N 35.19 0.68 

1/29/2016 W-1 N + N 0.87 0.68 

12/9/2016 W-2 & W-3 

composite 

N + N 1.3 0.68 

12/9/2016 W-2 & W-3 

composite 

N + N 1.3 0.68 

3/4/2016 W-1 N + N 4.67 0.68 

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e. Discharges of Storm Water Containing Aluminum (Al) at 

Concentrations in Excess of Applicable EPA Benchmark 

Value 

Date Discharge 

Point 

Parameter Concentration 

in Discharge 

(mg/L) 

EPA 

Benchmark 

Value 

(mg/L) 

1/19/2012 SW-5 Al 18 0.75 

2/6/2015 W-1 Al 29 0.75 

2/6/2015 W-2 & W-3 

composite 

Al 6.7 0.75 

2/6/2015 W-2 & W-3 

composite 

Al 6.7 0.75 

3/4/2016 W-1 Al 14 0.75 

1/29/2016 W-2 & W-3 

composite 

Al 6.3 0.75 

1/29/2016 W-2 & W-3 

composite 

Al 6.3 0.75 

3/4/2016 W-2 & W-3 

composite 

Al 5.9 0.75 

3/4/2016 W-2 & W-3 

composite 

Al 5.9 0.75 

12/9/2015 W-2 & W-3 

composite 

Al 5 0.75 

12/9/2015 W-2 & W-3 

composite 

Al 5 0.75 

1/29/2016 W-1 Al 4.4 0.75 

12/9/2015 W-1 Al 1.5 0.75 

f. QST’s Sample Results Are Evidence of Violations of the 

General Permit 

QST’s sample results demonstrate violations of the General Permit’s discharge 

prohibitions, receiving water limitations, and effluent limitations set forth above. CSPA is 

informed and believes that the QST has known that its storm water contains pollutants 

at levels exceeding General Permit standards since at least November 21, 2011. 

 CSPA alleges that such violations occur each time storm water discharges from 

the Facility. Attachment A hereto, sets forth the specific rain dates on which CSPA 

alleges that QST has discharged storm water containing impermissible levels of TSS, 

Zn, Fe, Al and N + N in violation of the General Permit. 1997 General Permit, Discharge 

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Prohibition A.2, Receiving Water Limitations C.1 and C.2; 2015 General Permit, 

Discharge Prohibitions III.C and III.D, Receiving Water Limitations VI.A, VI.B. 

4. QST Has Failed to Implement BAT and BCT 

Dischargers must implement BMPs that fulfill the BAT/BCT requirements of the 

CWA and the General Permit to reduce or prevent discharges of pollutants in their 

storm water discharges. 1997 General Permit, Effluent Limitation B.3; 2015 General 

Permit, Effluent Limitation V.A. To meet the BAT/BCT standard, dischargers must 

implement minimum BMPs and any advanced BMPs set forth in the General Permit’s 

SWPPP Requirements provisions where necessary to reduce or prevent pollutants in 

discharges. See 1997 General Permit, Sections A.8.a-b; 2015 General Permit, Sections 

X.H.1-2. 

QST has failed to implement the minimum BMPs required by the General Permit, 

including: good housekeeping requirements; preventive maintenance requirements; spill 

and leak prevention and response requirements; material handling and waste 

management requirements; erosion and sediment controls; employee training and 

quality assurance; and record keeping. 1997 General Permit, Sections A.8.a(i–x); 2015 

General Permit, Sections X.H.1(a–g). 

QST has further failed to implement advanced BMPs necessary to reduce or 

prevent discharges of pollutants in its storm water sufficient to meet the BAT/BCT 

standards, including: exposure minimization BMPs; containment and discharge 

reduction BMPs; treatment control BMPs; or other advanced BMPs necessary to 

comply with the General Permit’s effluent limitations. 1997 General Permit, Section 

A.8.b; 2015 General Permit, Sections X.H.2. 

Each day the Owners/Operators have failed to develop and implement BAT and 

BCT at the Facility in violation of the General Permit is a separate and distinct violation 

of Section 301(a) of the CWA (33 U.S.C. § 1311(a)). The violations described above 

were at all times in violation of Section A of the 1997 General Permit, and Section X of 

the 2015 General Permit. Accordingly, the Owners/Operators have been in violation of 

the BAT and BCT requirements at the Facility every day since at least November 21, 

2011. 

5. QST Has Failed to Develop and Implement an Adequate Storm 

Water Pollution Plan 

The General Permit requires dischargers to develop and implement a sitespecific SWPPP. 1997 General Permit, Section A.1; 2015 General Permit, Section X.A. 

The SWPPP must include, among other elements: (1) the facility name and contact 

information; (2) a site map; (3) a list of industrial materials; (4) a description of potential 

pollution sources; (5) an assessment of potential pollutant sources; (6) minimum BMPs; 

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(7) advanced BMPs, if applicable; (8) a monitoring implementation plan; (9) annual 

comprehensive facility compliance evaluation; and (10) the date that the SWPPP was 

initially prepared and the date of each SWPPP amendment, if applicable. See id.

Dischargers must revise their SWPPP whenever necessary and certify and 

submit via the Regional Board’s Storm Water Multiple Application and Report Tracking 

System (“SMARTS”) their SWPPP within 30 days whenever the SWPPP contains 

significant revisions(s); and, certify and submit via SMARTS for any non-significant 

revisions not more than once every three (3) months in the reporting year. 2015 General 

Permit, Section X.B; see also 1997 General permit, Section A. 

CSPA’s investigation indicates that QST has been operating with an 

inadequately developed or implemented SWPPP in violation of General Permit 

requirements. QST has failed to evaluate the effectiveness of its BMPs and to revise its 

SWPPP as necessary, resulting in the Facility’s numerous effluent limitation violations. 

Each day the Owners/Operators failed to develop and implement an adequate 

SWPPP is a violation of the General Permit. The SWPPP violations described above 

were at all times in violation of Section A of the 1997 General Permit, and Section X of 

the 2015 General Permit. The Owners/Operators have been in violation of these 

requirements at the Facility every day since at least November 21, 2011. 

6. QST’s Aerial Deposition Containing Pollutants Enters Storm 

Drains and Surface Waters Without NPDES Coverage. 

Pollution entering surface waters via air deposition is also recognized as a 

significant cause of degradation of water quality. Such discharges of pollutants from 

industrial facilities contribute to the impairment of downstream waters and aquatic 

dependent wildlife. Information available to CSPA indicates that outdoor industrial 

operations at the Facility create dust and particulate matter from, as two examples only, 

high-volume traffic and sanding and sawing steel. These activities lack containment or 

secondary containment. And have been ongoing since at least 2009. This dust and 

particulate matter migrates to surface waters and/or the storm drain system of Sonoma 

County. 

III. Persons Responsible for the Violations 

CSPA puts QST on notice that it is the entity responsible for the violations 

described above. If additional persons are subsequently identified as also being 

responsible for the violations set forth above, CSPA puts QST on formal notice that it 

intends to include those persons in this action. 

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IV. Name and Address of Noticing Party 

 The name, address, and telephone number of the noticing party is as follows: 

Bill Jennings, Executive Director 

California Sportfishing Protection Alliance 

3536 Rainier Ave, 

Stockton, CA 95204 

(209) 464-5067 

www.calsport.org 

V. Counsel 

CSPA has retained legal counsel to represent it in this matter. Please direct all 

communications to: 

Jason R. Flanders 

AQUA TERRA AERIS (ATA) LAW GROUP 

828 San Pablo Ave, Ste. 115B 

Albany, CA 94706 

(916) 202-3018 

jrf@atalawgroup.com 

VI. Conclusion 

CSPA believes this Notice of Violations and Intent to File Suit sufficiently states 

grounds for filing suit. We intend to file a citizen suit under Section 505(a) of the CWA 

against Quality Stainless Tanks and its agents for the above-referenced violations upon 

the expiration of the 60-day notice period. If you wish to pursue remedies in the 

absence of litigation, we suggest that you initiate those discussions within the next 

twenty (20) days so that they may be completed before the end of the 60-day notice 

period. We do not intend to delay the filing of a complaint in federal court if discussions 

are continuing when that period ends. 

Sincerely, 

______________________ 

Jason R. Flanders 

ATA Law Group 

Counsel for CSPA 

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SERVICE LIST 

VIA CERTIFIED MAIL 

Lisa Jackson, Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

Alexis Strauss, Acting Administrator 

U.S. Environmental Protection Agency 

Region IX 

75 Hawthorne Street 

San Francisco, CA 94105 

Thomas Howard, Executive Director 

State Water Resources Control Board 

P.O. Box 100 

Sacramento, CA 95812 

Matthias St John, Executive Officer North 

Coast Regional Water Quality Control 

Board 5550 Skylane Blvd, Ste A 

Santa Rosa, CA 95403-1072 

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EXHIBIT A

Rain Data from Sonoma Airport

11-20-2011 - 11-18-2016

Days with Precipitation over .1

Date Precipitation

(Inches)

11/23/2011 0.26

11/24/2011 0.58

12/15/2011 0.18

1/19/2012 0.86

1/20/2012 2.77

1/21/2012 0.24

1/22/2012 1.84

1/23/2012 1.26

2/7/2012 0.66

2/12/2012 0.24

2/28/2012 0.3

2/29/2012 0.46

3/1/2012 0.17

3/13/2012 2.35

3/14/2012 0.42

3/15/2012 0.12

3/16/2012 1.17

3/24/2012 0.87

3/25/2012 0.11

3/27/2012 1.67

3/31/2012 0.44

4/10/2012 0.61

4/12/2012 0.94

4/13/2012 0.39

5/3/2012 0.13

10/22/2012 1.13

10/23/2012 0.23

10/31/2012 0.86

11/16/2012 0.9

11/17/2012 1.12

11/20/2012 1.08

11/28/2012 1.27

11/29/2012 1.62

11/30/2012 2.17

12/1/2012 1.12

12/2/2012 1.67

12/4/2012 0.71

12/5/2012 0.31

12/15/2012 0.12

12/16/2012 0.37

12/17/2012 0.21

12/20/2012 0.39

12/21/2012 2.55

12/22/2012 0.59

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Date Precipitation

(Inches)

12/23/2012 2.37

12/25/2012 0.65

12/26/2012 0.51

1/5/2013 0.44

1/23/2013 0.4

2/19/2013 0.17

3/5/2013 0.37

3/6/2013 0.52

3/19/2013 0.13

3/20/2013 0.41

3/31/2013 0.96

4/4/2013 0.94

5/27/2013 0.16

6/24/2013 0.24

6/25/2013 1.14

9/20/2013 0.16

9/21/2013 0.24

11/19/2013 0.74

11/20/2013 0.32

12/6/2013 0.41

2/2/2014 0.63

2/5/2014 0.3

2/6/2014 0.54

2/7/2014 1.42

2/8/2014 3.46

2/9/2014 0.74

2/26/2014 1.56

2/28/2014 0.67

3/3/2014 0.38

3/5/2014 0.37

3/26/2014 0.32

3/29/2014 0.49

3/31/2014 0.67

4/1/2014 0.48

4/4/2014 0.14

9/18/2014 0.1

9/25/2014 0.12

9/26/2014 0.55

10/15/2014 0.11

10/25/2014 0.15

10/31/2014 0.24

11/13/2014 0.1

11/19/2014 0.36

11/20/2014 0.3

11/22/2014 0.1

11/28/2014 0.14

11/29/2014 0.28

11/30/2014 0.42

12/2/2014 0.69

12/3/2014 1.25

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Date Precipitation

(Inches)

12/5/2014 0.63

12/8/2014 0.12

12/9/2014 0.13

12/10/2014 1.32

12/11/2014 4.66

12/12/2014 0.41

12/14/2014 0.1

12/15/2014 2.31

12/16/2014 1.12

12/17/2014 0.29

12/18/2014 0.18

12/19/2014 0.78

12/20/2014 0.33

2/6/2015 2.62

2/8/2015 1.31

2/9/2015 0.23

4/5/2015 0.18

4/6/2015 0.1

4/7/2015 0.65

4/24/2015 0.46

9/16/2015 0.41

11/1/2015 0.18

11/2/2015 0.26

11/9/2015 0.49

11/15/2015 0.43

11/24/2015 0.11

12/3/2015 0.82

12/4/2015 0.12

12/6/2015 0.85

12/9/2015 0.43

12/10/2015 0.56

12/12/2015 0.2

12/13/2015 0.88

12/18/2015 0.73

12/19/2015 0.1

12/20/2015 0.69

12/21/2015 1.16

12/22/2015 0.14

12/24/2015 0.21

1/3/2016 0.32

1/4/2016 0.4

1/5/2016 1.04

1/6/2016 2.55

1/7/2016 0.12

1/9/2016 0.31

1/12/2016 0.1

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Date Precipitation

(Inches)

1/13/2016 0.82

1/14/2016 0.61

1/15/2016 0.27

1/16/2016 0.5

1/17/2016 1.17

1/19/2016 1.51

1/22/2016 0.52

1/23/2016 0.11

1/29/2016 0.26

2/17/2016 0.45

2/18/2016 0.15

2/19/2016 0.11

3/3/2016 0.15

3/4/2016 0.28

3/5/2016 2.33

3/6/2016 0.73

3/7/2016 0.24

3/9/2016 0.27

3/10/2016 1.58

3/11/2016 1.28

3/12/2016 0.32

3/13/2016 0.82

3/20/2016 0.67

3/21/2016 0.32

4/9/2016 0.29

4/13/2016 0.2

4/22/2016 0.7

5/7/2016 0.11

6/17/2016 0.14

10/2/2016 0.15

10/3/2016 0.12

 10/14/2016 0.54

10/15/2016 0.66

10/16/2016 0.14

 10/24/2016 1.76

 10/25/2016 0.85

10/28/2016 0.99

10/29/2016 0.28

10/30/2016 1.21

10/31/2016 0.34

Case 3:17-cv-00321-EMC Document 38-1 Filed 11/08/17 Page 39 of 39 Case 3:17-cv-00321-EMC Document 39 Filed 11/09/17 Page 42 of 42