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California River Watch A2015-167 MO VS' I CO1 SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS This Settlement Agreement and Mutual Release of Claims ("Agreement''), effective as of the last date of execution below ("Effective Dale"), is made by and between California River Watch, a nonprofit public benefit corporation, on behalf of itself and its members ("CRW"), and the City of Chino Hills ("CITY"). CRW and the CITY arc sometimes hereinafter each referred to as a "Party"or collectively as the "Parties." RECITALS WHEREAS, CRW is an Internal Revenue Code § 501(c)(3) nonprofit public benefit corporation organized under the laws of the State of California, dedicated to the protection, enhancement, and restoration of the rivers, creeks, and tributaries of California; and WHEREAS, the CITY is a municipality organized under the laws ofthe state of California operating a wastewater collection system; and WHEREAS, on or about March 5, 2015 CRW sent the CITY a Notice of Violations and Intent to File Suit under the Clean Water Act, CWA § 505, 33 U.S.C. § 1365, ("CWA Notice") alleging various violations of the CWA by the CITY relating to activities and operations of the collection system, which is attached hereto as Exhibit A; and; WI IEREAS, the CITY denies all of CRW's allegations that were, or could have been asserted against the CITY in the CWA Notice; WHEREAS, CRW and the CITY, through their authorized representatives, and without adjudication of CRW's claims or admission by the CITY of any alleged violation or other wrongdoing, wish to resolve in firll CRW's allegations as set forth in the CWA Notice, through settlement to avoid the cost and uncertainties of litigation; and WI IEREAS, CRW 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 CRW's allegations set forth in the CWA Notice including, without limitation, any disputes, obligations, claims and/or causes of action that were or could have been asserted in or pursuant to the CWA Notice. NOW THEREFORE, for good and valuable consideration through the execution of this Agreement and the releases, satisfactions and promises made herein, it is hereby agreed upon by the Parties as follows: AGREEMENT 1. DEFINITIONS 1. Collection System: The system of pipes, pump stations, sewer lines, or other conveyances located within the boundary of the CITY's sewage collection service area, for which the CITY has ownership and/or maintenance responsibility, used to collect and convey wastewater. For the purposes of this Agreement, the Collection System consists of gravity mains, force mains, pump stations and manholes, and does not include private laterals or other private conveyances. 2. Condition Assessment Process: The inspection, rating, and evaluation of the existing condition of the Collection System. Inspection is based on closed circuit television ("CCI'V") inspections and visual inspection at the manhole for structural defects. During inspection, gravity main pipe segments arc assigned a grade based on the Pipeline Assessment and Certification Program ("PACP") rating system, developed by the National Association of Sewer Service Companies, as follows: 5 - Failed or will fail within 5 years 4 - Failure likely in 5-10 years 3 - May fail in 10-20 years 2 - Unlikely to fail for at least 20 years 1 - Unlikely to fail in foreseeable future 3. Surface Water Condition Assessment Process,: A Condition Assessment Process focused on the sewer gravity mains, manholes and pipe connections in the Collection System located within two hundred (200) feet of designated Waters of the U.S. or specific drainage conveyance systems that may be considered to be Waters of the U.S. Waters of the U.S. is defined in 40 CFR 230.3 (5). 4. Significantly Defective: A sewer pipe segment is considered to he Significantly Defective if the condition of the pipe received as grade of 5 based on the PACP rating system described above. 5. Rehabilitation. The replacement, repair or slip lining of a defective pipeline segment. Il. REMEDIAL MEASURES 1. Sewer System Investigation and Repair • a. Surface Water Condition Assessment Process Within two (2) years from the Effective Date of this Agreement, the CITY shall commence and complete a Surface Water Condition Assessment Process for all sewer gravity main segments in the Collection System located within two hundred (200) feet of designated Waters of the U.S. or other specific drainage conveyance systems that may be considered to be Waters of the U.S., and that have not been investigated, rated, repaired or newly installed or rehabilitated within ten (10) years prior to the Effective Date of this Agreement. ii. Within five (5) years of any determination through the Surface Water Condition Assessment Process that a sewer gravity main segment is Significantly Defective, the CITY shall repair the defect, or rehabilitate or replace the sewer gravity main. iii. Upon completion of the items 11.1.a.i. and ii. above, the CITY shall provide CRW with written notice of completion of the Surface Water Condition Assessment Process, including documentation that required repairs, rehabilitation or replacement was made. b. Onaoina Collection System Cleaning The CITY shall budget funds sufficient to provide for continuing its existing sewer pipeline cleaning program so that it cleans the Collection System no less than every five (5)years. 2. Sewer System Overflow Response a. Within one (1) year from the Effective Date of this Agreement, the CITY shall modify its Sanitary Sewer Overflow("SSO")Response Plan to require the following additional information in its SSO Report form: i. The method or calculations used for estimating total spill volume, spill volume reaching surface waters, and spill volume recovered; ii. For Category I spills(as defined in State Water Resources Control Board Order No. 2006-0008-WQ, as amended by Order No. WQ-2013-0058-EXEC) for which the start time, duration or flow rate cannot otherwise be documented, a listing of nearby residents or business operators contacted to attempt to establish the SSO's start time, duration, and flow rate; and iii. Provision for attachment of photographs taken of the manhole flow at the SSO site and of the spill volume if applicable, if photos can be taken without substantially impeding response measures. b. The CITY' existing protocol for remediating spills that calls for the use of disinfection products shall continue to provide that no disinfection products shall enter Waters of the U.S. c. The CITY shall, within three (3) months of the Effective Date of this Agreement, develop and implement a public safety protocol mandating that warning signage be prominently displayed around any area in which an SSO has not been remediated and there may be a potential exposure to humans or domestic animals. d. The CITY shall,within one(1) year of the Effective Date of this Agreement, create a hot link on its website to the State Water Resources Control Board's California Integrated Water Quality System ("CIWQS") SSO public reports. The CITY shall provide notification to members of the public of the existence of the web-based program through an announcement at a regular City Council meeting and on the City's website. City will notify CRW upon completing compliance with the requirement of this section II.2.d. e. The CITY shall, within thirty(30) days of the Effective Date of this Agreement, initiate a protocol providing that if an SSO is discharged directly into a critical habitat, as that term is defined in the federal Endangered Species Act and designated by the National Marine Fisheries Service or the U.S. Fish and Wildlife Service, for listed or threatened species, the CI'T'Y shall note in its CIWQS Report the fact that the SSO occurred in the designated critical habitat and identify the species for which the habitat was designated. The CITY shall rely on the United States Fish and Wildlife Service(USFWS) critical habitat website to make the determination of critical habitat currently found at: httn://ccos.hvs.aovicrithab/ . Notwithstanding the above, for SSOs that enter the CITY's storm drain system, it is understood that the CITY's storm water system drains to the Prado Basin and that fur purposes of this section, if an SSO enters the CITY's storm drain system, if the USFWS critical habitat website shows critical habitat in the Prado Basin that is located within four(4) miles of the initial discharge location, then the CITY shall be deemed to comply with this section by listing such critical habitats, if any, within four (4) miles of the initial discharge location, in the CIWQS. 11[. ATTORNEYS' COSTS AND FEES. CITY shall pay to CRW the total sum of$25,000 (twenty-five thousand dollars) within thirty days after the effective date of the Agreement. Such payments will be made in the form of a check made payable to"California River Watch" and will be mailed to Law Office of Jack Silver, P.O. Box 5469, Santa Rosa, CA 95402-5469. 1V. GENERAL PROVISIONS I. Mutual Release. a. It is the intent of the Parties that the execution and delivery of this Agreement constitute a full and complete satisfaction of all rights, claims and demands by CRW against the CITY, and the CITY against CRW, with respect to any and all allegations and claims made in the CWA Notice and any claims whether asserted or not that could have been made by CRW as of the date of this Agreement. CRW and the CITY, on behalf of themselves and any and all of their agents, representatives, successors, members, and assigns, do hereby absolutely, fully, and threver release, relieve, remise, and discharge the CITY and CRW, respectively, and their past and present elected or appointed officials, employees, officers, directors, attorneys, and the predecessors, successors, and assigns of any of them, from any and all causes of action, claims, damages (including punitive damages), demands, debts, actions, attorneys' fees, costs of suit, and liabilities of every kind or nature whatsoever, arising out of claims that were or could have been asserted under CWA in the CWA Notice, The release provided for herein shall be valid and effective whether the claims, causes of action, or liability hereby released (i) are known or unknown, suspected or unsuspected, (ii) are based in contract, tort, statute, or otherwise, or(iir) arise at law or in equity. This release shall survive the termination of this Agreement, whether by satisfaction of the terms and conditions hereof or operation of law. b. Further, the Parties acknowledge that they are familiar with Section 1542 of the California Civil Code. For any other claims against each other, known or unknown, suspected or unsuspected, and each party expressly waives and relinquishes any rights and benefits which they have or may have under Section 1542 of the Civil Code of the State of California, which provides: el general release does no!extend to claims which the creditor(toes not know or suspect to exist in his or her favor at the time of executing the release which if Imown by him or her must have materially affected his or her settlement with the debtor. c. The Parties acknowledge that each has specifically reviewed with its attorney the meaning and effect of the release set forth herein, the language of California Civil Code Section 1542, and the waiver contained herein.The Parties acknowledge that their attorneys have filly explained the impact of these provisions, and the Parties knowingly accept the risks associated with these provisions. 2. Covenant Not to Sue. As of the Effective Date of this Agreement, and for a period of 5 (five) years after the Effective Date of this Agreement, CRW agrees that neither CRW, its officers, executive staff, members of its governing board, nor any organization under the control of CRW, its officers, executive staff, or members of its governing board, will serve any 60-day Notice of Violations and Intent to Sue or file any lawsuit against the CITY seeking relief for alleged violations of the CWA, or any similar state statutes and/or regulations, including the Potter Cologne Water Quality Control Act(Cal. Water Code ys 13000 et seq.), related to the CITY's operation of its collection system, nor will CRW initiate or support such lawsuits against the CITY brought by other groups or individuals by providing financial assistance, personnel time, or any other affirmative actions. The Parties acknowledge and agree that this provision shall survive the termination of this Agreement, whether by satisfaction of the terms and conditions hereof or operation of law. 3. No Admission.This Agreement is the direct result of a compromise of disputed allegations and claims. As such, this Agreement shall not, for any purpose, be considered as an admission of liability by the CITY, nor shall the payment of any sum of money in consideration for the execution of this Agreement constitute or be construed as an admission of any liability by the CITY, which expressly denies any such liability or wrongdoing. 4. Delays in Schedule Implementation. In the event implementation by the CITY of the remedial measures set forth in Section 2 of this Agreement does not occur by the agreed to dates, despite the timely good faith efforts of the CITY to acquire any necessary approvals and/or permits, or due to factors unforeseen at the time this Agreement was entered into, the CITY agrees to notify CRW in writing as soon as practicable after the anticipated delay becomes apparent, and in any ease except in a case of force majeure described below, not less than twenty (20) days prior to any deadline set forth in Section 2, and shall describe the reasons for the anticipated delay. 5. Force Majeure. The CITY shall not he deemed in default or breach of this Agreement by reason of any event which constitutes a force majeure. For purposes of this Agreement, a force majeure is defined as any event arising from causes beyond the reasonable control of the CITY or its contractors that delay or prevents performance.This includes, without limitation, acts of God, acts of war, acts of terrorism, fire, explosion, extraordinary weather events, restraint by court order or public authority, or other causes beyond the CITY's reasonable control. Neither increased costs nor economic hardship shall constitute a force majeure. 6. Breach ofAereement and Dispute Resolution. Any disputes between CRW and the CITY concerning any alleged breach of this Agreement, except for the CITY's obligation to make timely payment under Section III of this Agreement, shall be subject to the following dispute resolution procedures. Failure to satisfy the payment condition in Section III is a substantial breach of this Agreement and relieves CRW of its obligations under this Agreement. a. Good Faith Neeotiations. CRW and the CITY shall make good Faith efforts to resolve informally any alleged breach of the Agreement. If informal efforts to resolve the alleged breach are unsuccesstid, that Party shall provide written notice of the alleged breach and that Party's intent to initiate the dispute resolution procedure of this Section 6. The notice shall include a recitation of all facts and circumstances giving rise to the dispute, including the particular provisions of the Agreement alleged to have been breached. b. Mediation. if the dispute is not resolved by the Parties within thirty (30) days after such notice is given, such dispute shall be submitted to mediation before a mutually agreeable neutral mediator. The Parties shall each bear their own costs and attorney's fees incurred in connection with such mediation. c. Arbitration. If, and only if, the dispute cannot be resolved by the Parties pursuant to the above mechanisms, such dispute shall be submitted for binding arbitration before a mutually agreeable neutral arbitrator. In the event that binding arbitration occurs, the Parties agree that no discovery shall be permitted. Briefing will be limited to one brief of no longer than ten (10) pages for each Party, submitted no later than fourteen (14) days before the scheduled arbitration hearing.The arbitration hearing is limited to a maximum olone (I) day.The determination of the arbitrator shall be binding upon the Parties. Within thirty (30) days after the conclusion of the arbitration hearing, the arbitrator shall issue a written award and a written statement of decision describing the reasons for the award, including the calculation of any damages awarded.The non-prevailing Party shall bear the cost of the arbitrator's fees. Otherwise, the Parties shall each bear their own costs and attorney's fees incurred in connection with such binding arbitration. Judgment upon any determination rendered by the arbitrator may be entered by any court having competent jurisdiction. d. Waiver. By agreeing to these dispute resolution provisions, including the binding arbitration provision, the Parties understand that they are waiving certain important rights and protections that otherwise may have been available to each of them if a dispute between them were determined by a judicial action including, without limitation, the right to ajury trial, and certain rights of appeal. Other than the remedies contained within this Agreement including dispute resolution and specific performance of the terms of this Agreement, there are no other remedies. The Parties specifically agree that there is no basis within this Agreement or within the contemplation of the Parties to support a claim for consequential damages due to any form of breach. 7, Notices. All notices, consents, approvals, requests, demands and other communications (collectively, "Notice") which the Parties arc required or desire to serve upon or deliver to the other Party shall be in writing and shall be given by nationally-recognized overnight courier, by certified United States mail, return receipt requested, postage prepaid, addressed as set forth below, or by facsimile or electronic mail addressed as set forth below: If to CRW: Jack Silver, Esq. Law Office of Jack Silver Post Office Box 5469 Santa Rosa, CA 95402-5469 Tel: (707) 528-8175 E-Mail: lhm28843@sbcglobal.net If to CITY: Cityol'Chino Hills 14000 City Center Drive Chino Hills, CA 91709 Attn: City Clerk With a Copy to: Hensley Law Group 2600 W. Olive Avenue, Suite 500 Burbank, CA 91505 Attn: Mark D. I tensley, City Attorney Facsimile No.: (818) 333-5121 The foregoing addresses may be changed by Notice given in accordance with this Section 7. Any Notice sent by mail shall be deemed received two (2) days after the date of mailing. Any Notice sent by facsimile shall he deemed received upon electronic confirmation of the successful transmission thereof, and any Notice sent by electronic mail shall be deemed received upon electronic transmission thereof provided sender does not receive electronic notice of non- delivery.Any Notice sent by overnight courier service shall be deemed received on the day of actual delivery as shown by the confirmation of delivery by the messenger or courier service. II' the date of receipt of any Notice to be given hereunder falls on a weekend or legal holiday, then such date of receipt shall automatically be deemed extended to the next business day immediately following such weekend or holiday for purposes of calculating time periods commencing upon the date of service. 8.. Attorneys' Fees. Other than the payment to CRW under Section III and subject to the prevailing party provisions under Section 6(c) of this Agreement, each Party shall bear its own past and future attorneys' fees and costs relating to the subject matter of this Agreement. 9. Parties' Acknowledgment of Terms. This Agreement has been carefully and fully read and reviewed by CRW and the CITY and their respective counsel, if any, who hereby represent that the contents of this Agreement are understood, and agree that this Agreement is binding on each Party or its respective predecessors, successors, and assigns and as described above. 10. Interpretation. Applicable Law and Venue. This Agreement shall be construed and interpreted in accordance with the laws of the United States and the State of California without regard to principles of conflicts of law.This Agreement shall be interpreted and construed as a whole, according to its fair meaning and not strictly for or against any Party, and without regard to which Party drafted the Agreement. All of the promises, representations, and warranties contained in this Agreement survive the execution of this Agreement. Any litigation concerning this Agreement shall take place in the San Bernardino County Superior Court or in the Central District of California, in Los Angeles or Riverside. 11. No Assignments. Each Party to this Agreement represents and warrants that it has not assigned,transferred, hypothecated, or sold to any third person or entity, any of the rights or obligations released by or entered into under this Agreement. 12. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall evidence one and the same agreement. 13. Headings. The headings used in this Agreement are for convenience of reference and shall not be used to define any provision. 14. Entire Agreement In Writing. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter set forth herein and supersedes all previous or contemporaneous negotiations, commitments (oral or written), and writings with respect to the subject matter set forth herein. 15. Modification or Amendment. This Agreement or any of its provisions may be modified or amended only by written agreement executed by all Parties to this Agreement. 16. Severability. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision. If, in any action before any court or other tribunal of competent jurisdiction, any term, restriction, covenant, or promise is held to be unenforceable for any reason, then such term, restriction, covenant, or promise shall be deemed modified to the extent necessary to make it enforceable by such court or other tribunal and, if it cannot be so modified,that this Agreement shall be deemed amended to delete herefrom such provision or portion adjudicated to be invalid or unenforceable,and the remainder of this Agreement shall be deemed to be in fill force and effect as so modified. Any such modification or amendment in any event shall apply only with respect to the operation of this Agreement in the particular jurisdiction in which such adjudication is made. 17. Representations and Warranties. This Agreement is given voluntarily, free of undue influence, coercion, duress, menace, or fraud of any kind. No Party, nor any officer, agent, employee, representative, or attorney of or for any Party, has made any statement or representation to any other Party regarding any fact relied upon in entering this Agreement, and no Party is relying upon any statement, representation, or promise of any other Party, nor of any officer, agent, employee, representative, or attorney of or for any Party, in executing this Agreement or in making the settlement provided herein, except as expressly stated in this Agreement. 18. No Third Party Beneficiaries. This Agreement is not intended to confer any rights or obligations on any third party or parties, and no third party or parties shall have any right of action under this Agreement for any cause whatsoever. 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. 19. Authority. Each of the persons signing this Agreement on behalf of an entity represents and warrants that he or she has actual authority and capacity to execute this Agreement on behalf of the entity and to bind it to all of the terms of this Agreement. 20. Termination. This Agreement shall terminate upon the completion of the actions required of the CITY set forth in Section II.1.a. and I1.2. of this Agreement, or five years after the Effective Date, whichever occurs first. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized representatives. CITY OF CHIINO HILLS, a municipalal�corporation By: (� . J l� Lw— Dated: -7J LI 16 MAYOR pYNTHIA MORAN ATTEST: 4 P Os: _a Dated: -71�J11 CHERYL BAEZ, CITY CLERK APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY Dated: "�// IY I I f By: c/57/2 'i r'( aG,tiwa ELIZABETH M. CALCIANO,ASSISTANT CITY ATTORNEY CALIFORNIA RIVER WATCH By: Dated: LARRY HANSON, BOARD PRESIDENT By: 1 C 1lt i Dated: 7 AID V/s ROBERT RAWSON TREASURER ( • CALIFO IA R. _. '.. ' '?rCH I Dr _ I` Dated: ® f LARRY Si BOAR! PRESIDENT By: Dated: ROBERT RAWSON TREASURER E-S1111131.1 A Law Office of Jack Silver P.O. Box 5469 Santa Rosa, California 95402sun,l .a Phone 707-528-8175 Fax 707-528-8675 `'�a01 Ihm 28843(m shcglobal.net Via Certified Mail -Return Receipt Requested March 5, 2015 Nadeem Majaj, Director City Council Mark Wiley, Water and Sewer Manager City of Chino Hills City of Chino Hills 14000 City Center Drive Department of Public Works Chino Hills, CA 91709 14000 City Center Drive Chino Hills, CA 91709 Re: Notice of Violations and Intent to File Suit Under the Clean Water Act Dear Mr. Majaj, Mr. Wiley, City Council Members or Head of Agency: STATUTORY NOTICE This Notice is provided on behalf of California River Watch ("River Watch") in regard to violations of the Clean Water Act ("CWA" or "Act"; 33 U.S.C. § 1251 et seq.) that River Watch believes are occurring through the operation of the City of Chino Hills wastewater collection system. River Watch hereby places the City of Chino Hills, (hereinafter referred to as "the City"), on notice that following the expiration of 60 days from the date of this Notice, River Watch will be entitled under CWA § 505(a), 33 U.S.C. § 1365(a), to bring suit in the United States District Court against the City 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 the Santa Ana Regional Water Quality Control Board, Water Quality Control Plan ("Basin Plan"), as exemplified by the illegal discharges of untreated sewage from the City's wastewater collection system to United States waters without a National Pollutant Discharge Elimination System ("NPDES") Permit. River Watch takes this action to ensure compliance with the CWA which regulates the discharge of pollutants into navigable waters. The statute is structured in such a way that all discharges of pollutants are 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 Notice of Violations Under CWA-Page 1 1 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. § 1311(a) prohibition, such that violation of a permit limit places a polluter in violation of the CWA. Currently, the City is not in possession of a NPDES permit allowing it to discharge pollutants to waters of the United States. Therefore, by virtue of its discharge of untreated sewage to United States waters without a NPDES permit, the City has been and continues to be in violation of CWA § 301(a), 33 U.S.C.§ 1311(a). The CWA provides that authority to administer the NPDES permitting system in any given state or region can be delegated by the Environmental Protection Agency ("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 ("SWRCB") and several subsidiary regional water quality control boards to issue NPDES permits. The entity responsible for issuing NPDES permits and otherwise regulating the City's operations of its wastewater collection system in the region at issue in this Notice is the Santa Ana Regional Water Quality Control Board ("RWQCB"). While delegating authority to administer the NPDES permitting system, the CWA provides that enforcement of the Act can be ensured by private parties acting under the citizen suit provision of the statute (see 33 U.S.C. § 1365). River Watch is exercising such citizen enforcement to enforce compliance by Chino Hills with the CWA. NOTICE REQUIREMENTS 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 discharges of raw sewage from the City's wastewater collection system to surface waters in violation of the prohibition of the CWA with regard to discharging a pollutant from a point source to waters of the United States without a NPDES permit, CWA § 301(a), 33 U.S.C. § 1311(a) and 33 U.S.C. § 1365(f). 2. The activity alleged to constitute a violation. River Watch sets forth narratives in this Notice describing the discharges of raw sewage to surface waters as the activities leading to violations, and describes with particularity specific incidents referenced in the California Integrated Water Quality Notice of Violations Under CNA-Page 2 System ("CIWQS") SSO Public Reports and other public documents in the City's possession or otherwise available to the City, and incorporates by reference records cited from which descriptions of specific incidents were obtained. Additional records and other public documents in the City's possession or otherwise available to the City may, upon discovery, reveal additional violations. River Watch contends that from January 7, 2010 to January 7, 2015, Chino Hills violated the CWA, the Basin Plan and the Code of Federal Regulations by discharging pollutants to waters of the United States from its collection system without a NPDES permit. Said violations are evidenced by the CIWQS SSO Reporting Program Database Records. Furthermore, River Watch contends these violations are continuing. A. Collection System Subsurface Discharges Caused By Underground Exfiltration Underground discharges in which untreated sewage is discharged from the City's collection system prior to reaching wastewater treatment facilities are alleged to have been continuous throughout the period of January 7, 2010 through January 7, 2015 (1825 separate violations), in violation of the CWA provisions that prohibit discharge of wastes to United States waters without an NPDES permit, CWA § 301(a), 33 U.S.C. § 1311(a) and 33 U.S.C. § 1365(f). Exfiltration caused by root intrusion, cracks, misalignments and other structural defects in the collection system result in discharges to adjacent surface waters via underground hydrological connections. The City's internal reports indicate discharges to surface water not reported to the CIWQS. Because the entire system has not been adequately inspected by means of closed circuit television ("CCTV"), the City has insufficient information concerning the condition or the extent of exfiltration for a significant portion of the collection system. These sections of the system are old and in need of repair. Untreated sewage is discharged from cracks, displaced joints, eroded segments, etc., into groundwater that is hydrologically connected to surface waters. Evidence indicates exfiltration from lines within 200 feet of a surface water. River Watch alleges that such discharges are continuous wherever damaged, and/or structurally defective sewer lines in the City's collection system are located adjacent to surface waters, including Hickory Creek, Chino Creek and Carbon Canyon Creek — tributaries to the Santa Ana River. Surface waters and groundwater become contaminated with fecal coliform, exposing people to pathogens. Chronic failures in the collection system pose a substantial threat to public health. Studies tracing human markers specific to the human digestive system in surface waters adjacent to defective sewer lines in other systems have verified the contamination of the adjacent waters with untreated sewage. Notice of Violations Under CWA-Page 3 Evidence to support the allegation of underground discharge of raw sewage exists in the City's own mass balance data regarding the number of connections in the service area, estimates of average daily volume of wastewater per connection, and video inspection of the collection system. River Watch contends Exfiltration from the City's collection system is a daily occurrence and a violation of the CWA. B. Collection System Surface Discharges Caused By Sanitary Sewer Overflows Sanitary Sewer Overflows ("SSOs") in which untreated sewage is discharged above ground from the collection system prior to reaching wastewater treatment facilities are alleged to have occurred both on the dates identified in the CIWQS Interactive Public SSO Reports (9 separate violations) and on dates when no reports were filed by the City. It is estimated by the EPA and private studies that for every SSO reported, there are at least 3 that go unreported. In some cases the overflows occur during storm events or due to stoppages, and there is no incident report made due to lack of any observation of the event. In other cases SSO events are reported, but by the time personnel arrive at the site the overflows have ceased and no follow-up is undertaken. In some cases the incident is reported and observed by staff, but a formal report is not made to the State, in violation of the Statewide General Requirements for Sanitary Sewer Systems, Waste Discharge Requirements Order No. 2006-0003-DWQ ("Statewide WDR"), governing the operation of sanitary sewer systems, under which the City is a permittee. Releases Reported. Overflows caused by blockages and inflow/infiltration ("I/I") result in the discharge of raw sewage into gutters, canals, and storm drains which are connected to adjacent surface waters, such as Chino Creek, Carbon Creek, and Hickory Creek—all waters of the United States. As recorded in CIWQS Public SSO Reports, the City has self-reported at least 18 SSO events since it began reporting, with a combined volume of at least 265,455 gallons. Of this amount, only 9,065 gallons were reported as being recovered and only 5,765 gallons were reported as "reaching surface waters" despite internal records showing much larger amounts that potentially reached surface waters. For example, on February 28, 2012 there was a spill from the City's collection system with the reported volume of 250,000 gallons. The spill was caused by a pump station failure at the Pomona Rincon lift station at 16500 Pomona Rincon Road. The SSO report states that zero gallons reached a surface water, yet the total volume recovered is also zero. The final spill destination is stated as simply "unpaved surface", and the spill response activities are described as "cleaned-up (mitigated effects of spill)", with no explanation of how the spill was addressed, where the 250,000 gallons of sewage went to, or how the spill volume was estimated. A review of the area of the spill indicates that it reached a surface water. The City has numerous reporting errors such as this one and has failed to correct them. Notice of Violations Under C\VA -Page 4 Estimating Volume. River Watch's expert has determined that the City's method for estimating flow rate also underestimates the volume of a SSO. Furthermore, a review of the service records calls into serious question the City's methodologies for determining the volume of SSOs captured. The Statewide W DR requires that sewer system operators report SSOs to the C1WQS, 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 City's field reports generally do not indicate what method was used to estimate the total volume of the spill, which further calls into question the estimates of total volume, volume recovered, and volume which reached surface waters. In the February 28, 2012 spill mentioned above, wherein 250,000 gallons was left unaccounted for, the answer to question 35 on the SSO report, "Explanation of volume estimation method used", is "null". The spill is said to have ended 6 hours and 40 minutes before the operator arrival time (which was the day after the spill began), yet there is no accounting for how that lime and the total volume was calculated. Moreover, River Watch believes the City's SSO reporting to be an incomplete and inaccurate representation of the frequency and volume of SSOs. The City has only disclosed one SSO over 1,000 gallons in over 5 years. The same dates and same amounts are listed repeatedly. The first 3 SSOs are all reported as 100 gallons, and the first and second, both reported as occurring on January 9, 2010 at Zenobia Lane (no further address given), and affecting Hickory Creek, appear to he the same SSO with different Event IDs. The City also reported 2 small SSOs on the same date of the following year, (January 9, 2011) at the Big League Dreams Sports Park, caused by a pump station failure, and impacting Chino Creek. These appear to be different spills with start times 5 minutes apart and different latitude/longitude coordinates. However, River Watch alleges that the small reported volume of both spills, 30 gallons - which is also the volume stated for the City's next reported SSO on February 14, 2011 — are significant underestimations of the actual volume that spilled and reached surface waters. Discharges to Surface Waters. River Watch's expert believes that the February 28, 2012 spill did in fact discharge to surface waters, and that the remaining SSOs reported as having discharged to surface waters did so in greater volumes than stated. The 250,000 gallon spill took place near Chino Creek, yet none of it was reported as reaching surface waters, and the entire volume is unaccounted for. Although the City admits that the full amount of the 8 other reported spills did reach surface waters, a closer look at the City's SSO reports filed since 2010 casts significant doubt on the accuracy of the number of SSOs and total spill volumes reported. River Watch contends that the City regularly underestimates the incidences and volumes of SSOs, as well as the volume which reached surface waters. River Watch believes that much more wastewater was discharged to surface waters than the City has reported. Notice of Violations Under CNA - Page 5 MitiQatinu Impacts. The City also fails to adequately mitigate the impacts of SSOs. The Statewide WDR mandates that the permittee shall take all feasible steps to contain and mitigate the impacts of a SSO. The EPA's `Report to Congress on the Impacts of SSOs' identifies SSOs as a major source of microbial pathogens and oxygen depleting substances. Numerous critical habitat areas exist within the areas of the City's SSOs. The neighboring waterways include Chino Hills State Park, an ecological reserve. There is no record of the City 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 SS Os. The Statewide WDR requires the City to take all feasible steps and perform necessary remedial actions following the occurrence of a SSO, including limiting the volume 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 collection 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. As the City is severely under-estimating the volume of SSOs, it is also failing to conduct sampling on SSOs. None of the City's SSOs were followed up by taking water samples, including the 8 spills the City acknowledged as reaching surface waters. C. Nuisance; Impacts to Beneficial Uses Discharges by the City as described herein also constitute a nuisance. The term "nuisance" is defined in California Water Code § 13050(m) as anything which meets all of 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, although the extent of the annoyance or damage inflicted upon individuals may be unequal"; and, 3) "occurs during, or as a result of, the treatment or disposal of wastes." Chino Creek, Carbon Canyon Creek, and the Santa Ana River have many beneficial uses as defined in the RWQCB's Basin Plan. These beneficial uses include municipal supply, groundwater recharge, water contact and non-contact recreation, warm freshwater habitat, wildlife habitat, and habitat for rare, threatened, or endangered species. SSOs reaching these waters cause prohibited pollution by unreasonably affecting their beneficial uses. The Basin Plan adopted by the RWQCB also contains discharge prohibitions which apply to the discharge of untreated or partially treated wastewater. Chapter 5, Section B.1 prohibits the discharge of untreated sewage to any surface water stream, natural or manmade, or to any drainage system intended to convey storm water Notice of violations Under CWA-Page 6 runoff to surface water streams. River Watch is understandably concerned regarding the effects of both surface and underground SSOs on critical habitat in and around the Santa Ana River and tributary waters. Any point source discharge of sewage effluent to waters of the United States must comply with technology based, secondary treatment standards at a minimum, and any more stringent requirements necessary to meet applicable water quality standards and other requirements. Hence, the unpermitted discharge of wastewater from a sanitary sewer system to waters of the United States is illegal under the CWA. The City's ongoing violations — discharging pollutants to waters of the United States without a NPDES Permit — pose an immediate threat to public health and the environment, both from surface water impacts of overflow SSOs and underground leakage of untreated sewage which impacts both surface and groundwater. Furthermore, the illegal discharge of untreated wastes from the City's collection system is a significant contribution to the degradation of the Santa Ana River, and tributary and nearby waters including Chino Creek, Carbon Canyon Creek, and Hickory Creek, with serious adverse effects on the many beneficial uses of these waters. River Watch members residing and recreating in the area have a vital interest in bringing the City's operation of its wastewater collection system into compliance with the CWA. 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 Chino Hills, Public Works Department, as the owner and operator of the City of Chino Hills wastewater collection system, identified throughout this Notice as "the City", as well as any of the City's employees responsible for compliance with the CWA and with any applicable state and federal regulations and permits. 4. The location of the alleged violation. The location or locations of the various violations are identified in records created and/or maintained by or for the City which relate to its wastewater collection system as further described in this Notice. The City of Chino Hills is located within the South Coast hydrologic region, southwest of San Bernardino County, California. The City borders Los Angeles County on the northwest side, Orange County to the south, and Riverside County to the southeast. Other cities that surround Chino Hills are Pomona to the north, Chino to the east, Brea and Yorba Linda to the southwest, and Diamond Bar to the northwest. Since its incorporation in 1991, the City has grown to a population of 74,799 as of the 2010 census, a 12 percent increase since 2000. The City covers approximately 29,500 acres, or Notice of Violations Under CNA -Page 7 l � I 46 square miles, consisting of rolling hills and valleys. Chino Hills State Park, an ecological reserve, is located in the hills of the Santa Ana Canyon near Riverside, and is an essential bio-corridor linking wildlife habitats of the Puente-Chino Hills and Santa Ana Mountains. The Park is refuge for more than 200 species of birds and mammals, and a great diversity of reptiles, amphibians, insects, invertebrates, and plants. The Park contains 90 miles of trails and fire roads where residents and visitors may view wildlife, ride horses, hike, and participate in various other outdoor activities. The Park is home to some rare, threatened, or endangered species, including the Least Bells' vireo, California gnatcatcher, and the coastal cactus wren. The City is one of 8 members of the Inland Empire Utilities Agency ("IEUA"), a wholesale water agency which provides the City with imported water purchased from the Metropolitan Water District of Southern California. The remainder of the City's water supply comes from local surface water, local wells, and recycled water, as well as via the Chino Basin Desalter Authority, the Monte Vista Water District, and the Water Facilities Authority. The IEUA's regional wastewater program includes the collection, treatment, and disposal of municipal wastewater serving approximately 850,000 residents in a 242 square-mile radius of western San Bernardino County. The City's collection system serves a population of approximately 76,131 in the higher density areas of the City, which accounts for the vast majority of the wastewater generated within the City. The City's collection system includes 200 miles of gravity sewer and 3.3 miles of pressure sewer, and conveys all City-collected wastewater to the IEUA for treatment and either reuse or disposal through the IEUA's 4 regional wastewater treatment and reclamation plants. 5. The date or dates of violation or a reasonable range of dates during which the alleged activity occurred. River Watch has examined records of the SWRCB and RWQCB as to the City's wastewater collection system for the period from January 7, 2010 to January 7, 2015. Therefore the range of dates covered by this Notice is January 7, 2010 to January 7, 2015. River Watch may from time to time update this Notice to include all violations of the CWA by the City which occur during and after the range of dates currently covered. Some violations are continuous, and therefore each day constitutes a violation. 6. The full name, address, and telephone number of the person giving notice. The entity giving notice is California River Watch, referred to herein as "River Watch". River Watch is a 501(c)(3) non-profit, public benefit corporation organized under the laws of the State of California, with headquarters located in Sebastopol, California and offices in Los Angeles, California. The mailing address of River Watch's northern California office is 290 S. Main Street, #817, Sebastopol, CA 95472. The Notice of Violations Under CWA-Page 8 mailing address of River Watch's southern California office is 7401 Crenshaw Blvd #422, Los Angeles, CA 90043. River Watch is dedicated to protect, enhance, and help restore surface and ground waters of California including rivers, creeks, streams, wetlands, vernal pools, aquifers and associated environs, biota, flora and fauna. And to educate the public concerning environmental issues associated with these environs. River Watch may be contacted via email: US(a?ncriverwatch.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 to: Jack Silver, Esq. David J. Weinsoff, Esq. Law Office of Jack Silver Law Office of David J. Weinsoff P.O. Box 5469 138 Ridgeway Avenue Santa Rosa, CA 95402-5469 Fairfax, CA 94930 Tel. 707-528-8175 Tel. 415-460-9760 Email: Ihm28843 n,sbcglobal.net Email: david(alweinsofflaw.com RECOMMENDED REMEDIAL MEASURES 1. DEFINITIONS 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 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 collection system with the exception of sewer lines located within 200 feet of surface waters. C. Surface Water Condition Assessment: A Condition Assessment of sewer lines in the collection system located within 200 feet of surface waters, including gutters, canals and storm drains which discharge to surface waters. Notice of Violations Under CNA-Page 9 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 2. REMEDIAL MEASURES River Watch believes the following remedial measures are necessary to bring the City into compliance with the CWA and the Basin Plan, and reflect the biological impacts of the City's ongoing noncompliance with the CWA: A. SEWAGE COLLECTION SYSTEM INVESTIGATION AND REPAIR • The repair or replacement, within 2 years, of all sewer lines in the City's wastewater collection system located within 200 feet of surface waters, including gutters, canals and storm drains which discharge to surface waters, which have been CCTV'd within the past 10 years and were rated as Significantly Defective. • Within 2 years, the completion of Surface Water Condition Assessment of sewer lines located within two hundred 200 feet of surface waters which have not been CCTV'd during the past 10 years. • Within 2 years after completion of the Surface Water Condition Assessment above, the City 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 the City determines such defects are in close proximity to Significantly Defective segments that are in the process of being repaired or replaced; and, Notice of violations Under CNA-Page t0 Ensure that sewer pipe segments that contain defects with a rating of 3 based on the PACP rating system that are not repaired or replaced within 5 years after completion of the Surface Water Condition Assessment are re- CCTV'd not more than every 5 years to ascertain the condition of the sewer line segment. If the City determines that the grade-3 sewer pipe segment has deteriorated and needs to be repaired or replaced, such repair or replacement shall be completed within 2 years after the last CCTV cycle. • Beginning no more than 1 year after completion of the Surface Water Condition Assessment, the City shall commence a Full Condition Assessment to be completed within 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 3 years of the rating determination. • Provision in the City's Capital Improvements Plan to implement a program of Condition Assessment of all sewer lines at least every 5 years. Said program to begin 1 year following the Full Condition Assessment described above. B. SSO REPORTING AND RESPONSE Modification of the City's Backup and SSO Response Plan to include in its reports submitted to the CIWQS State Reporting System the following items: • The method or calculations used for estimating total spill volume, spill volume that reached surface waters and spill volume recovered. • For Category I Spills, 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 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. • Conduction of water quality sampling and testing whenever it is estimated that 50 gallons or more of untreated or partially treated wastewater enters surface waters. Constituents to test for to include: Ammonia, Fecal Coliform, E. coli and a CAM- 17 toxic metal analysis. The City shall collect and test samples from 3 locations: the point of discharge, upstream of the point of discharge, and downstream of the point of discharge. If any of these constituents are found at higher levels in the Notice of Violations Under CNA -Page I I point of discharge sample or at the downstream sample than in the upstream sample, the City 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; or, (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 nonstructural defect. • Creation of website capacity to track information regarding SSOs; or in the alternative, the creation of a link from the City's website to the CIWQS SSO Public Reports. Notification to be given by the City 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 Chino Creek, Carbon Canyon Creek, and Hickory Creek 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: • Transfer of ownership of the property if no inspection/replacement of the sewer lateral occurred within 10 years prior to the transfer; • The occurrence of 2 or more SSOs caused by the private sewer lateral within 2 years; • A change of the use of the structure served: (a) from residential to non-residential use, (b) to a non-residential use that will result in a higher flow than the current non-residential use, and (c) to non-residential uses where the structure served has been vacant or unoccupied for more than 3 years; • Upon replacement or repair of any part of the sewer lateral; • Upon issuance of a building permit with a valuation of$25,000.00 or more; or, • Upon significant repair or replacement of the main sewer line to which the lateral is attached. Notice of Violations Under CVA-Page 12 CONCLUSION The violations set forth in this Notice effect the health and enjoyment of members of River Watch who reside and recreate in the community of the City and along the Santa Ana River. Members of River Watch use the affected watershed for domestic water supply, agricultural water supply, recreation, sports, fishing, swimming, hiking, photography, nature walks and the like. Their health, use, and enjoyment of these natural resources are specifically impaired by the City's alleged violations of the CWA as set forth in this Notice. CWA §§ 505(a)(1) and 505(0 provide for citizen enforcement actions against any "person," including a governmental instrumentality or agency, for violations relating to un-permitted discharges of pollutants. 33 U.S.C. §§ 1365(a)(1) and (f), § 1362(5). An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a). Violators of the Act are also subject to an assessment of civil penalties of up to $37,500 per day/per violation for all violations pursuant to Sections 309(d) and 505 of the Act, 33 U.S.C. §§ 1319(d), 1365. See also 40 C.F.R. §§ 19.1-19.4. River Watch believes this Notice sufficiently states grounds for filing suit in federal court under the "citizen suit" provisions of CWA to obtain the relief provided for under the law. The CWA specifically provides a 60-day "notice period" to promote resolution of disputes. River Watch strongly encourages the City to contact River Watch within 20 days after receipt of this Notice Letter to: (1) initiate a discussion regarding the allegations detailed in this Notice, and (2) set a date for a site visit. In the absence of productive discussions to resolve this dispute, or receipt of additional information demonstrating that the City is in compliance with the strict terms and conditions of the CWA, River Watch intends to file a citizen's suit under CWA § 505(a) when the 60-day notice period ends. Very truly yours, l - Jack Silver JS:lhm cc: Administrator U.S. Environmental Protection Agency Mail Code 1101A 1200 Pennsylvania Avenue, NW Washington, DC 20460 Notice of Violations Under CNA-Page 13 Regional Administrator U.S. Environmental Protection Agency Region 9 75 Hawthorne St. San Francisco, CA 94105 Executive Director State Water Resources Control Board 3737 Main Street, Suite 500 Riverside, CA 92501-3348 Mark D. Hensley, Esq. Hensley Law Group 2600 W. Olive Avenue, Suite 500 Burbank, CA 91505 Notice of Violations Under CNA-Page 14