STOCKTON POINT DISTRICT

DOC 02 OF 02

CONSENT DECREE

09-86-C002

CWA

MUNI

19860321

19860321

CAD009235391

STOCKTON POINT

STOCKTON, CA

S-84-1249-LKK

09

(BLANK)

(BLANK)

(BLANK)

(BLANK)

CONSENT DECREE IN U.S. V. STOCKTON PORT DISTRICT Page i

May 6, 1986 John Cooper Environmental Protection Agency Region 9 215 Freemont Street San Francisco, California 94105 Re: United States v. Stockton Port District, Civil No. S-84-1249 LKK. Dear Mr. Cooper:

Enclosed please find a certified copy of the Consent Decree signed by the Judge on March 22, 1986, and a copy of a check for $6,000.00 just received from the Stockton Port District. I will deposit the check in the usual manner.

Very truly yours,

DONALD B. AYER

United States Attorney

By /s/ (ILLEGIBLE)

EDWARD L. KNAPP

Assistant U.S. Attorney

Enclosures

cc: Jeremy Akers ++EP++

Page ii STOCKTON PORT DISTRICT POST OFFICE BOX 2089 STOCKTON, CALIFORNIA 95201 GRAPH/CHART OMITTED ++EP++ Page iii

U.S.A. v. Stockton Port CASE Civ S-84-1249-LKK

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California. That on 3-24-86 I served a copy of the attached ORDER

by placing said copy in a postage paid envelope addressed to the persons hereinafter listed, by depositing said envelope in the U.S. Mail at Sacramento, California; or by placing said copy into an inter-office delivery receptacle located in the Clerk's Office. SERVED BY MAIL SERVED BY INTER-OFFICE Jeremy R. Akers Land & Natural Resources Division U.S. Department of Justice 9th & Pennsylvania Ave., N.W. Washington, D.C. 20530 Judge Karlton AUSA Knapp

Robert P. Dahlquist

Latham & Watkins 701 B St., #2100 San Diego, CA 92101

/s/ (ILLEGIBLE)

DEPUTY CLERK ++EP++

Page 1

DONALD B. AYER

United States Attorney

EDWARD L. KNAPP

Assistant United States Attorney

3305 Federal Building

650 Capitol Mall

Sacramento, California 95814

Telephone: (916) 551-2700

JEREMY R. AKERS

Land and Natural Resources

Division

U.S. Department of Justice

9th and Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Telephone: (202) 633-4242

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Civil Case No. S-84-1249-LKK UNITED STATES OF AMERICA, Plaintiff, vs. STOCKTON PORT DISTRICT, Defendant.

CONSENT DECREE

Plaintiff, United States of America, and Defendant, Stockton Port District ("Port"), having stipulated as set forth herein without admitting any other issues of fact of law, and the Court having been duly advised of the premises,

NOW THEREFORE, it is Ordered, Adjudged, and Decreed as follows:

I JURISDICTION

This Court has jurisdiction over the subject matter herein pursuant to 42 U.S.C. Section 7413 and 28 U.S.C. Section 1345 and jurisdiction over the parties hereto for the ++EP++ purposes of entering this Decree.

Page 2

The Complaint states claims upon which relief may be granted against the Port under the Clean Water Act, 33 U.S.C. Section 1251 et seq.

II SUCCESSORS AND ASSIGNS

The provisions of this Decree shall apply to and be binding upon the parties to this action and their officers, directors, agents, employees, successors and assigns. The Port agrees to notify in writing any successor in interest to, or lessee of, property governed by this Decree prior to transfer or leasing of said property.

III COMPLIANCE REQUIREMENTS

In order to ensure compliance, the Port shall perform the following measures:

A. The Port shall apply to the Central Valley Regional Water Quality Control Board ("RWQCB") for an National Pollutant Discharge Elimination System ("NPDES") permit within 90 days of entry of this Decree. The NPDES application shall include a best management practices plan which addresses the following:

1. Potential discharges of pollutants during ship unloading operations;

2. Potential discharges of pollutants which may occur in conjunction with material spillage cleanup efforts; ++EP++

Page 3

3. Potential discharges of pollutants from the open channel which runs parallel to the north side of Road N at the Port; and

4. Potential discharges of pollutants which may occur as a result of any dust suppression or dust control measures which are or may be employed by the Port as necessary to comply with air pollution control requirements.

B. Until a decision of the RWQCB on the Port's application for an NPDES permit, the Port shall implement the following:

1. The Port shall arrange to have device(s) placed in a manner designed to preclude the discharge of pollutants into the Stockton Ship Channel during ship unloading operations.

2. The Port shall arrange to ahve materials spilled onto the dock area during ship unloading operations handled and disposed of in a manner designed to preclude pollutants from entering waters of the United States during rainfall events.

C. The application required by paragraph III.A. above shall be submitted to:

Mr. William Crooks, Executive Officer Central Valley Regional Water Quality Control Board 3201 S Street Sacramento, California 95816

IV EXCUSABLE DELAY

A. Notification of Delay. If any event occurs which causes or may cause delays in the achievement of ++EP++ compliance by the Port as provided in this Decree, the Port shall notify the United States Environmental Protection Agency ("EPA") in writing within twenty (20) days of the delay or prior to anticipated delay, as appropriate, and describe in detail the anticipated length of the delay, the precise cause or causes of the delay, the measures taken and to be taken by the Port to prevent or minimize the delay, and the timetable by which those measures will be implemented.

Page 4

The Port shall adopt all reasonable measures to avoid or minimize any such delay.

B. Excusable Delay. If the parties agree that the delay or anticipated delay in compliance with this Decree has been or will be caused by circumstances entirely beyond the control of the Port, the time for performance hereunder may be extended for a period sufficient to compensate for the delay resulting from such circumstances. In such event, the parties shall stipulate to such extension of time and so inform the Court.

C. Burden of Proof. The Port shall have the burden of proving that any delay is caused by circumstances beyond its control. Increased costs or expenses associated with the implementation of actions called for by this Decree shall not, in any event, be a basis for changes in this Decree or extensions of time under paragraph IV.B. Delay in achievement of one interim step shall not necessarily justify or excuse delay in achievement of subsequent steps. ++EP++

V STIPULATED PENALTIES

A. Penalties. Unless excused by the provisions of paragraph IV, the Port shall be subject to a stipulated penalty of $5,000 for each day of discharge due to failure to implement the best management practices in paragraph III.B. Each day on which a violation occurs shall constitute a separate violation. The provision for stipulated penalties in no way limits any other remedies available to EPA for violations of this Decree. Stipulated penalties under this paragraph shall be paid by check payable to the Treasurer of the United States and addressed to the Assistant Attorney General, Land and Natural Resources Division, United States Department of Justice.

B. Written Demand. In any case in which stipulated penalties are sought, the EPA shall submit a written demand to the Port for such penalties and specify with particularity the factual and legal bases on which such penalties are demanded.

C. Payment or Waiver. Within thirty (30) days of receipt of a written demand for penalties under subparagraph V.B., the Port shall either pay such amounts in full or request from EPA a waiver of penalty liability. Any request for waiver shall specify with particularity the grounds on which such waiver is sought. The grounds for waiver of penalty liability include, without limitation, that the circumstances of the violation were (i) beyond the reasonable control of the Port, (ii) of a de minimis nature or effect, or (iii) within the scope of paragraph IV herein. ++EP++

Page 6

D. Appeal. Should the EPA not grant fully any request for waiver, EPA shall so notify the Port in writing. The Port shall, within twenty (20) days of receipt of such written denial, either pay the demanded penalties or move this Court for relief of the penalties assessed under this paragraph V. Should this Court deny the Port's motion for relief, the penalty shall be paid within thirty (30) days after receipt of the final judicial resolution of any appeal of the Court's decision.

VI CIVIL PENALTIES

The Port shall pay a civil penalty of $6,000 by a check payable to the Treasurer of the United States addressed to the Assistant Attorney General, Land and Natural Resources Division, no later than thirty (30) days following the date of entry of this Decree.

VII SETTLEMENT

The provisions of this Decree in no way alter, limit or revoke local, state, or federal law or regulations, or affect the authority of the United States to seek relief pursuant to Section 309 of the CWA, 33 U.S.C. Section 1319.

VIII TERMINATION

All provisions of this Decree shall terminate upon the effective date of an NPDES permit issued to the Port by the RWQCB. ++EP++

Page 7 IX JURISDICTION

This Court shall retain jurisdiction of this action solely for the purpose of enabling any party to apply to the Court at any time for such further relief as may be appropriate to interpret, enforce or modify this Decree.

X REPORTING

A. All submissions and notifications to EPA pursuant to this Decree, shall be made to:

Director, Water Management Division U.S. EPA, Region IX 215 Fremont Street San Francisco, CA 94105

B. All notices or written correspondence to the Port shall be served on:

Port Director Stockton Port District P.O. Box 2809 Stockton, CA 95201

With a copy to:

Steven P. McDonald, Esq. Latham & Watkins 701 "B" Street, Suite 2100 San Diego, CA 92101-8197

XI ENTRY AND INSPECTIONS

Nothing in this Decree shall be deemed to modify or affect any right of entry and inspection EPA or the State may have under statute or other law. ++EP++

Page 8 XII OTHER REMEDIES

This Decree is a full and complete release of any claims, demands, or causes of action arising out of or relating to the facts asserted by the EPA in the Complaint for any penalties, damages or other assessments, including without limitation, attorneys' fees. Nothing in this Decree shall be construed to limit any other remedies available to Plaintiff or the Port for breach of this Decree or of other provisions of law relating to future violations. IT IS SO STIPULATED. UNITED STATES OF AMERICA Date: By/s/ (ILLEGIBLE) F. Henry Habicht II Assistant Attorney General Land and Natural Resources Division United States Department of Justice

DONALD B. AYER

United States Attorney

Eastern District of California

Date: 1/3/82 By/s/ (ILLEGIBLE) EDWARD L. KNAPP Assistant United States Attorney ++EP++

Page 9

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX Date: 1 By/s/ Judith E. Ayres Judith E. Ayres Regional Administrator Region IX, United States Environmental Protection Agency UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, HEADQUARTERS Date: 12-17-85 By/S/ Courtney M. Price Courtney M. Price Assistant Administrator Office of Enforcement and Compliance Monitoring, United States Environmental Protection Agency STOCKTON PORT DISTRICT Date: 10/7/85 By/s/ Steven P. McDonald Steven P. McDonald of Latham & Watkins Attorneys for Defendant, Stockton Port District IT IS SO ORDERED. Date: 3/22/86/s/ (ILLEGIBLE) United States District Judge ++EP++

STOCKTON POINT DISTRICT

DOC 01 OF 02

COMPLAINT

09-86-C002

CWA

MUNI

19860321

19840927

CAD009235391

STOCKTON POINT

STOCKTON, CA

S-84-1249-LKK

09

(BLANK)

(BLANK)

(BLANK)

(BLANK)

ORIGINAL COMPLAINT IN U.S. V. STOCKTON PORT DISTRICT

Page 1

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

Department of Justice

Washington, D.C. 20530

DONALD B. AYER

United States Attorney

Assistant United States Attorney

Eastern District of California

650 Capitol Mall

Sacramento, California 95814

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CIVIL ACTION NO. CIVS-84-1249 UNITED STATES OF AMERICA, Plaintiff, v. STOCKTON PORT DISTRICT, Defendant.

COMPLAINT

The United States of America, at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), alleges:

1. This is a civil action under Section 309 of the Clean Water Act ("the Act"), 33 U.S.C. Section 1319, to enjoin defendant Stockton Port District ("Port"), from discharging pollutants into the waters of the United States except as in compliance with the Act and the terms and conditions of a National Pollutant Discharge Elimination System ("NPDES") permit and to assess civil penalties for defendant's failures to comply with the Act.

2. This Court has jurisdiction pursuant to Section 309 of the Clean Water Act, 33 U.S.C. Section 1319, and 28 U.S.C. Sub-Section 1331, 1345 and 1355. Notice of the commencement of this action has been given to the State of California. ++EP++

Page 2 DEFENDANT

3. The defendant Port is a California municipal corporation which owns and operates a deep water port facility in Stockton, California, on the Stockton Deep Water Channel, a tributary of the San Joaquin River, within the boundaries of the Eastern District of California. The Port engages in the loading and unloading of ships and trucks and in the transferral and storage of various types of materials. These activities of the defendant result in the discharge of pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), into the Stockton Deep Water Channel.

CLAIM FOR RELIEF

4. Paragraphs 1 through 3 of this Complaint are realleged and incorporated as though set forth in full.

5. Section 301 of the Act, 33 U.S.C. Section 1311, prohibits the discharge of any pollutant except as in compliance with, among other things, an NPDES permit issued pursuant to Section 402 of the Act, 33 U.S.C. Section 1342.

6. Defendant Port did not apply for and has not been issued an NPDES permit for its discharges into the Stockton Ship Deep Water Channel.

7. On or about July 29, 1983, EPA inspectors observed the discharge of fertilizer, a pollutant within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), by the defendant into the Stockton Deep Water Channel, a navigable water of the United States within the meaning of Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

8. On or about September 5, 1984, EPA inspectors observed the discharge of fertilizer, a pollutant within the ++EP++ meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), by the defendant into the Stockton Deep Water Channel, a navigable water of the United States within the meaning of Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

Page 3

9. Defendant's discharges as described in this Complaint constitute violations of Section 301 of the Act, 33 U.S.C. Section 1311.

10. Pursuant to Sections 309(b) and (d) of the Act, 33 U.S.C. Section 1319(b) and (d), defendant is subject, inter alia, to injunctive relief and to the assessment of civil penalties not greater than $10,000 for each day of violation of 33 U.S.C. Section 1311 as alleged above.

11. Unless injunctive relief is granted, defendant will continue its illegal discharges and the United States and the general public will suffer irreparable injury.

REQUEST FOR RELIEF

WHEREFORE, plaintiff, the United States of America, requests relief as follows:

1. An injunction prohibiting defendant and all persons acting in concert with it or under its authority from further discharges of pollutants into the waters of the Stockton Deep Water Channel or other navigable waters of the United States except as authorized by a valid NPDES permit;

2. Judgment imposing upon defendant civil penalties not to exceed TEN THOUSAND DOLLARS ($10,000.00) for each day that defendant violated 33 U.S.C. Section 1311 up to and including the date of judgment; 3. Such other and further relief as the Court may ++EP++ deem just and proper.

Page 4

DATED this 27th day of September, 1984

Respectfully submitted,

/s/ Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

/s/ Jeremy Ray Ahers

JEREMY RAY AHERS, Trial Attorney

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

DONALD B. AYER

United States Attorney

Eastern District of California

By: /s/ Andrew M. Wolfe

ANDREW M. WOLFE

Assistant United States Attorney

OF COUNSEL:

Harlan Agnew

Assistant Regional Counsel

U.S. Environmental Protection

Agency

San Francisco, California ++EP++

S&K PLATING INC.,

DOC 01 OF 01

CONSENT DECREE

09-89-C025

CWA

MISC

19890706

19890706

CAD045223872

S&K PLATING INC

COMPTON, CA

85-7867-JGD-MCX

09

CONSENT DECREE, US V S&K PLATING, INC

Page 1

ROBERT C. BONNER

United States Attorney

DIANE BRADSLEY

SUZETTE CLOVER

Assistant United States Attorney

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 894-2464/2442

ROGER J. MARZULLA

Acting Assistant Attorney General

CYNTHIA S. HUBER

Environmental Enforcement Section

Land & Natural Resources Division

U. S. Department of Justice

Washington, D. C. 20530

Telephone: (202) 633-1197

Attorney for Plaintiff

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

S & K PLATING, INC.,

Defendant.

On December 3, 1985, plaintiff, United States of America on behalf of the United States Environmental Protection Agency ("EPA") filed a Complaint alleging that defendant S & K Plating, Inc. ("S & K") had violated Section 307 of the Clean Water Act ("the Act"), 33 U.S.C. Section 1317. The complaint seeks a civil penalty of $10,000 per violation of the Act and injunctive relief.

On January 13, 1986, S & K filed an answer denying that it had violated Section 307 of the Act, 33 U.S.C. Section 1317. ++EP++

Page 2

On September 25, 1987, the Court entered summary judgment in favor of plaintiff and against defendant establishing fifty-one (51) days of violation of the Act. No amount of penalty was determined.

NOW THEREFORE, upon the consent and agreement of the parties to this Consent Decree, it is hereby ORDERED, ADJUDGED AND DECREED as follows:

I

This Court has jurisdiction of the subject matter of this action and of the parties consenting hereto pursuant to Section 309 of the Act, 33 U.S.C. Section 1319, 28 U.S.C. Sections 1345 and 1355. Venue properly lies under Section 309 of the Act, 33 U.S.C. Section 1319 and 28 U.S.C. Sections 1391 and 1395.

II

The Complaint states a claim upon which relief may be granted against S & K pursuant to Section 309 of the Act, 33 U.S.C. Section 1319.

III

The provisions of this Consent Decree shall apply to and be binding upon S & K, its officers, directors, agents, servants, employees, successors and assigns, and upon all those persons, firms and corporations who are or will be acting in concert or privity with S & K, and upon the United States on behalf of EPA.

IV

S & K shall pay a civil penalty in the amount of Sixty Thousand Dollars $60,000.00) in settlement of the civil violations alleged in the Complaint and adjudged on September 25, 1987. Five Thousand Dollars ($5,000.00) of the civil penalty shall be tendered by S & K within seven days of entry of this Consent Decree. ++EP++

Page 3

The remaining Fifty-Five Thousand Dollars ($55,000.00) shall be tendered in forty-four (44) monthly installments of One Thousand Two Hundred and Fifty Dollars ($1,250.00). All tenders shall be made to the United States Attorney for the Central District of California by certified check payable to the "Treasurer of the United States." Monthly payments shall commence on the first day of the first month following entry of this Consent Decree by the Court and shall be made on the first day of each consecutive month thereafter. Notice of these payments shall be given by S & K to:

Water Branch Chief

Office of the Regional Counsel

EPA, Region 9

215 Fremont Street

San Francisco, CA 94105

These payments in satisfaction of the civil penalty shall not be deductible by S & K for federal tax purposes.

V SECURITY AGREEMENT

A. S & K (the Debtor) grants the United States of America (the secured party) a security interest in the property described below to secure payment of the obligations set out in paragraphs IV and IX of this Consent Decree. That property, called the collateral, consists of a continuing security interest in the following:

ZINC LINE

4 Rinse Tanks 10 feet x 50 inches x 36 inches

1 Chromate Tank 10 feet x 43 inches x 50 inches ++EP++

Page 4

1 Chromate Tank with Dividers 10 feet x 36 inches x 50 inches

1 Lacquer Tank 10 feet x 23 inches x 50 inches

2 Zinc Tanks 10 feet x 60 inches x 50 inches

2 Udalite 3000 Amp Rectifiers with remote controls

1 10 Ton Water Evaporative Cooler

2 M 4 Weldon Pumps

1 Rollins 100 cubic foot Blower

1 8 foot Hydrolic Crane 600 Pounds Capacity

CLEANER LINE

3 Gas Fired Cleaner Tanks 10 feet x 36 inches x 50 inches

4 Water Tanks 10 feet x 36 inches and 50 inches

1 Tank 10 feet x 50 inches x 50 inches

1 Tank 10 feet x 23 inches x 50 inches

1 3000 Amp Udalite Rectifier with Remote

2 8 Foot Hydrolic Cranes 600 Pounds Capacity

AUTOMATIC ZINC LINE

1 Udalite Junior Automatic Plating Machine

1 Udalite 600 Amp Rectifier

1 Udalite 2000 Amp Rectifier

1 McKenna 15 HP Horizontal Boiler

1 5 HP Refrigeration Unit

CHROME LINE

1 Fiber Glass Rinse Tank 7 feet x 36 inches x 36 inches

1 Nickel Tank 8 feet x 48 inches x 46 inches

1 Nickel Tank 13 feet x 48 inches x 46 inches

1 Chrome Tank 8 feet x 40 inches x 46 inches

1 Rinse Tank Fiber Glass 10 feet x 40 inches x 48 inches ++EP++

Page 5

1 Lined Acid Tank 48 inches x 36 inches x 44 inches

1 Rinse Tank 7 feet x 30 inches x 36 inches

1 Spray Rinse Tank 36 inches x 36 inches x 50 inches

2 2000 Amp Udalite Rectifiers

1 Industrial Filter

1 Sithco Filter

WATER TREATMENT SYSTEM

1 5 cubic foot Filter Press

1 Rubber Lines Tank 14 feet x 48 inches x 48 inches

2 Tanks 120 inches x 48 inches x 50 inches

1 Stainless Steel Tank 40 inches x 36 inches x 36 inches

1 Weldon M 8 Pump

1 Clairfier Tank 14 feet x 50 inches x 50 inches

1 Clairfier Tank 16 feet x 72 inches x 72 inches

1 Power GI-30 30 HP Rotary Screw Compressor

B. Debtor promises:

1. To pay the obligations to secured party when they are due.

2. To indemnify secured party against loss of any kind, including reasonable attorneys' fees, caused to secured party by reason of its interest in the collateral.

3. To conduct debtor's business efficiently and without voluntary interruption.

4. To preserve all rights, privileges, and franchises held by debtor's business.

5. To keep debtor's business property in good repair. ++EP++

Page 6

6. To pay all taxes when due.

7. To give secured party notice of any litigation that may have a material adverse effect on the business or the collateral.

8. Not to change the name or place of business, or to use a fictitious business name, without first notifying secured party in writing.

9. Not to sell, lease, transfer, or otherwise dispose of the collateral.

10. Not to permit liens on the collateral, except existing liens and current tax liens.

11. To maintain fire and extended coverage insurance on the collateral in the amounts and under policies acceptable to secured party, naming secured party under a lender's loss payment clause, and to provide secured party with the original policies and certificates at secured party's request.

12. Not to use the collateral for any unlawful purpose or in any way that would void any effective insurance.

13. To permit secured party, its representatives, and its agents to inspect the collateral at any time, and to make copies of records pertaining to it, at reasonable times at secured party's request. ++EP++

Page 7

14. To perform all acts necessary to maintain, preserve, and protect the collateral.

15. Not to move the collateral from the S & K facility at 2727 North Compton Ave., Compton, California without first obtaining secured party's agreement in writing.

16. To notify secured party promptly in writing of any default, potential default, or any development that might have a material adverse effect on the collateral.

17. To execute and deliver to secured party all financing statements and other documents that secured party requests, in order to maintain a first perfected security interest in the collateral.

18. To furnish secured party the reports relating to the collateral at secured party's request.

C. Debtor convenants, warrants, and represents as follows:

1. Debtor is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and has all necessary authority to conduct its business wherever it is conducted.

2. Debtor has been authorized to execute and deliver this security agreement. The security agreement is a valid and binding obligation of debtor. ++EP++

Page 8

The agreement creates a perfected, first priority security interest enforceable against the collateral in which debtor later acquires rights, when debtor acquires those rights.

3. Neither the execution and delivery of this security agreement, nor the taking of any action in compliance with it, will (a) violate or breach any law, regulation, rule, order, or judicial action binding on debtor, any agreement to which debtor is a party, debtor's articles of incorporation or bylaws; or (b) result in the creation of a lien against the collateral except that created by this security agreement.

4. No default or potential default exists.

5. A schedule attached to and made a part of this security agreement states, without exceptions:

(a) The location of debtor's chief executive office.

(b) Debtor's mailing address.

(c) The location of inventory collateral.

(d) All the names under which debtor has conducted its business.

(e) All liens and adverse claims to which the collateral is subject. ++EP++

Page 9

(f) All financing statements except those naming secured party in which debtor is the debtor.

(g) Any of the collateral that consists of fixtures, including the location, legal description, and name of the owner of the real property to which it is affixed.

Debtor will notify secured party in writing before any change occurs in any of the above.

6. Debtor owns and has possession of the collateral, subject only to those liens and adverse claims identified in the schedule referred to in paragraph C 5.

D. If any of the collateral consists of fixtures, the collateral subject to this security agreement includes those fixtures. Debtor has provided secured party all information needed to make the fixture filings required to give secured party's security interest in that fixture collateral priority over all third parties with all interest in the real property to which the fixtures are attached.

E. This security agreement will continue in effect even though from time to time there may be no outstanding obligations or commitments under this agreement. The agreement will terminate when (1) debtor completes performance of all obligations to secured party, including without limitation the payment of all penalties by debtor to secured party; (2) secured party has no commitment that could give rise to an obligation including but not limited to an obligation to pay stipulated penalties pursuant to paragraph IX; and (3) debtor has notified secured party in writing of the termination. ++EP++

Page 10

F. Debtor will be in default under this agreement if:

1. Debtor fails to pay any installment when due, or its entire indebtedness to secured party when due, at stated maturity, on accelerated maturity, or otherwise.

2. Debtor fails to make any remittances required by this agreement.

3. Debtor commits any breach of this agreement, or any present or future rider or supplement to this agreement, or any other agreement between debtor and secured party evidencing the obligation or securing it.

4. Any warranty, representation, or statement, made by or on behalf of debtor in or with respect to the agreement, is false.

5. The collateral is lost, stolen, or damaged.

6. There is a seizure or attachment of, or a levy on, the collateral.

7. Debtor ceases operations, is dissolved, terminates its existence, does or fails to do anything that allows obligations to become due before their stated maturity, or becomes insolvent or unable to meet its debts as they mature. ++EP++

Page 11

G. When an event or default occurs:

1. Secured creditor may:

(a) Declare the obligations immediately due and payable, without demand, presentment, protest, or notice to debtor, all of which debtor expressly waives.

(b) Exercise all rights and remedies available to a secured creditor after default, including, but not limited to, the rights and remedies of secured creditors under the California Uniform Commercial Code.

2. Secured creditor's notice of the time and place of public sale of the collateral, or the time on or after which a private sale or other disposition of the collateral will be made, is reasonable if sent to debtor in the manner for giving notice at least five days before the public or private sale.

3. Debtor must assemble the collateral and make it and all records relating to it available to secured party as secured party directs.

H. Debtor will pay all costs and expenses of collection, including reasonable attorney's fees.

I. No waiver by secured party of any breach or default will be a waiver of any breach or default occurring later. A waiver will be valid only if it is in writing and signed by secured party. ++EP++

Page 12

J. This security agreement will bind and benefit the successors and assignees of the parties, but debtor may not assign its rights under the agreement without secured party's prior written consent.

K. This security agreement will be governed by the law of the State of California.

L. Notices under this security agreement are considered to be served three days after they are deposited in the United States mail, with prepaid first-class postage, addressed as follows:

DEBTOR SECURED PARTY Roquemore, Pringle & Moore, Inc. U.S. Attorney's Office Suite 430 1100 United States Courthouse 6055 East Washington Blvd. 312 North Spring Street Los Angeles, CA 90040-2466 Los Angeles, CA 90012 Attention: John P. Pringle, Esq. Attention: AUSA Diane Bardsley and Debt Collection Unit

M. Signature of this consent decree shall constitute signature of this security agreement for both debtor and secured creditor.

VI

No later than April 1, 1988, S & K will install additional metal baffling in compliance with the specifications of the manufacturer of the baffling in the clarifier of its electroplating pretreatment equipment. No later than April 15, 1988, S & K will submit a report to EPA and the Los Angeles County Sanitation Districts certifying that the baffling has been installed. ++EP++

Page 13 VII

Commencing June 1, 1988 and for each month thereafter until termination of this Consent Decree, S & K shall provide EPA and LACSD with copies of all analyses and results of all samplings S & K conducts of its wastewater, including all twenty-four hour composite samples, within 15 calendar days of S & K's receipt of all such analyses and sampling results.

VIII

LACSD and EPA may exercise their authority to take samples to determine compliance with the electroplating regulations. 40 C.F.R. Section 413.14(c). During the term of this Consent Decree, if a sample is taken by LACSD or EPA to determine compliance with the terms of the decree, the following procedure will be followed:

1. All samples will be twenty-four hour composite samples.

2. All samples will be split into thirds. One-third will be retained by S & K for analysis. One-third will be analyzed by LACSD or EPA. One-third will be delivered by LACSD or EPA to a third laboratory certified by LACSD or the State of California for analysis.

3. Samples will be deemed to be in compliance or violation with the Act and the provisions of this Consent Decree pursuant to the following procedure:

(a) If the analysis by EPA or LACSD shows that the sample is in conformance with the requirements of 40 C.F.R. Section 413, then the sample shall be deemed to be in compliance with the terms of this Consent Decree and no further analysis of the sample shall be conducted. ++EP++

Page 14

(b) If the analysis by EPA or LACSD shows that any of the constituents in the sample exceed the applicable requirements of 40 C.F.R. Section 413, then S&K shall be in violation unless, within 15 days of the notice that the sample is in violation, S&K has an analysis of its one-third split sample performed at a certified laboratory. If the analysis performed by S&K demonstrates that any of the constituents in the sample exceed the applicable requirements of 40 C.F.R. Section 413, then the sample shall be deemed to be in violation of the Act and the terms of this Consent Decree. If the analysis performed by S&K demonstrates compliance with the applicable requirements of 40 C.F.R. Section 413, then the remaining one-third split sample shall be analyzed by the laboratory selected in paragraph VIII (2). If the analysis by the selected laboratory shows that any of the constituents in the sample exceed the applicable requirements of 40 C.F.R. Section 413, then the sample shall be deemed to be in violation of the Act and the terms of this Consent Decree.

4. Those samples deemed to be in violation shall be subject to the provisions of paragraph IX.

Any designated representative or contractor of EPA may, upon presentation of credentials, enter upon the premises of S & K without prior notice to S & K for the purposes of monitoring compliance with the provisions of the Consent Decree. ++EP++

Page 15

This right of entry shall be in addition to EPA's right of entry under applicable law. For purposes of this paragraph, employees of LACSD authorized to conduct inspections and compliance monitoring shall be considered designated representatives of EPA.

IX

(a) S & K shall pay stipulated penalties for any violations of paragraphs VII or VIII pursuant to the following schedule:

Amount of Penalty Per Number of Violations Violation 1 - 4 $500 5 - 18 $1,000 9 or more $2,500

(b) Violations of EPA's four day average requirements of 40 C.F.R. Section 413.14(c) shall constitute four days of violation. The amount of penalty for any day of violation shall be determined by totalling the number of violations which have occurred since entry of the Consent Decree.

(c) All penalties due under this Paragraph shall be paid within twenty (20) days of receipt by S & K of a letter from the United States demanding payment. Payment shall be made by certified check payable to the United States Treasury and deli DELIVERED to the office of the United States Attorney for the Central District of California.

(d) Stipulated penalties paid pursuant to this Paragraph shall be in addition to, and shall not preclude the use of, any other remedies or sanctions that may be available to the United States, and the United States may seek a court order requiring installation of additional pollution control equipment in the event of future violations. ++EP++

Page 16

Payment of such stipulated penalties shall not be construed so as to relieve S & K from specific compliance with this Decree or federal or state law.

X

S & K is permanently enjoined from violations of Section 307 of the Act, 33 U.S.C. Section 1317, the general pretreatment regulations, 40 C.F.R. Part 403, and the electroplating categorical pretreatment regulations, 40 C.F.R. Part 413.

XI

This Consent Decree in no way affects or relieves S & K of its responsibility to comply with any state, federal or local laws or regulations, including, but not limited to, the Wastewater Ordinance administered by the County Sanitation Districts of Los Angeles County.

XII

S & K shall submit all reports and notices required pursuant to this Consent Decree other than notices submitted pursuant to paragraph IV to:

Compliance Branch Chief

Water Management Division

U.S. EPA, Region IX

215 Fremont Street

San Francisco, CA 94105

Mr. Robert Wienke

Los Angeles County Sanitation Districts

P.O. Box 4998

Whittier, CA 90607

XIII

This Consent Decree shall expire thirty days following the date full payment of the $60,000 civil penalty judgment, and all penalties due under paragraph IX have been tendered to the United States or two years after entry of this consent decree, whichever is later. ++EP++

Page 17

Until such time, this Court shall retain jurisdiction over this matter and all disputes arising hereunder as may be necessary for the construction or execution of this Consent Decree or for the enforcement of compliance herewith.

XIV

Each party to this Consent Decree shall bear its own costs, fees and disbursements in this action.

XV

Each party consents to the entry of this Consent Decree subject to the public notice requirements of 28 C.F.R. Section 50.7, which provides that the public shall have thirty (30) days to comment on the terms of the Decree prior to its entry.

FOR THE UNITED STATES:

Respectfully submitted,

/s/ Donald Carr

DONALD A. CARR

Acting Assistant Attorney General

Land and Natural Resources Division

/s/ Cynthia S Huber

CYNTHIA S. HUBER

Environmental Enforcement

Section

Land and Natural Resources Division

United States Department of Justice

10th & Pennsylvania Ave., N.W.

Washington, D.C. 20530

(202) 633-1197 ++EP++

Page 18

ROBERT C. BONNER

United States Attorney

Central District of California

/s/ Suzette Clover

SUZETTE CLOVER

Assistant United States Attorney

312 N. Spring Street

Los Angeles, CA 90012

(213) 894-2464

/s/ ILLEGIBLE SIGNATURE

Edward E. Reich

Acting, Assistant Administrator for Enforcement and

Compliance Monitoring

U.S. Environmental Protection Agency

Washington, D.C. 20460 ++EP++

Page 19

/s/ Daniel W. McGovern

DANIEL W. McGOVERN

Regional Administrator

U.S. Environmental Protection Agency

Region 9

San Francisco, CA 94105

FOR S & K PLATING, INC.:

/s/ John P Pringle

JOHN P. PRINGLE

ROQUEMORE, PRINGLE & MOORE INC.

6055 E. Washington Blvd., Suite 430

Los Angeles, CA 90040-2466

(213) 724-3117

/s/ ILLEGIBLE SIGNATURE

S & K PLATING, INC.

ORDER

IT IS SO ORDERED this 5 day of June, 1989.

UNITED STATES DISTRICT JUDGE ++EP++

LOUISIANA-PACIFIC CORPORATION

DOC 01 OF 01

CONSENT DECREE

09-83-C002

CWA

PAPER

19830906

19830906

CAD001686989

(NO FACILITY NAME)

SAMOA

C-78-0567 MHP

09

(BLANK)

(BLANK)

(BLANK)

(BLANK)

U.S. V. LOUISIANA-PACIFIC CORPORATION

Page 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Civil No. C-78-0567 MHP SUnited States of America, Plaintiff, vs. Louisiana-Pacific Corporation, Defendant.

CONSENT DECREE

WHEREAS, a complaint was filed on March 14, 1978 by plaintiff United States of America, at the request of the Environmental Protection Agency ("EPA"), against defendant Louisiana-Pacific Corporation; and

WHEREAS, the Court has held in granting plaintiff's motion for partial summary judgment that defendant has violated the Federal Clean Water Act, 33 U.S.C. Sub-Section 1251, et seq., during the periods of July 1, 1977 to June 8, 1978 and November 30, 1981 to December 10, 1982 and has granted injunctive relief against defendant in the form of a compliance schedule; and

WHEREAS, the court did not consider, for purposes of the motion for partial summary judgment, the period of June 9, 1978, to November 29, 1981, and reserved for trial the violations of the Clean Water Act alleged to have occurred during that period;

WHEREAS, on January 10, 1983, the President of the United States signed into law as passed by Congress Pub. L. No. 97-440, which amends Section 301 of the Clean Water Act, 33 U.S.C. Section 1311, to authorize EPA, under specified conditions, to grant defendant a ++EP++ permit which modifies the requirements of 33 U.S.C. Sub-Section 1311( b)(1)(A) and 1311(b)(2)(E), with respect to effluent limitations related to biochemical oxygen demand (BOD) and pH, violations of which are the basis of plaintiff's Complaint in this action; and

Page 2

WHEREAS, plaintiff and defendant, by their respective attorneys, consent without trial or adjudication of any issue of fact or law with respect to plaintiff's claim for civil penalties herein to the entry of this decree in a desire to avoid the perils of litigation and to resolve the controversy between them;

NOW, THEREFORE, before the taking of any testimony and with out the adjudication of any issue of fact or law with respect to plaintiff's claim for civil penalties herein, it is ORDERED, ADJUDGE and DECREED as follows:

I

This Court has jurisdiction of the subject matter and of the parties consenting hereto for the purpose of entering this Consent Decree. Plaintiff's Complaint states a claim upon which relief may be granted against defendant pursuant to Sections 309(b) and 309(d) of the Clean Water Act, 33 U.S.C. Sub-Section 1319(b), 1319(d).

II

The provisions of this Consent Decree shall apply to and be binding upon the parties hereto, their respective elected and appointed officials, officers, directors, agents, servants, employees, successors, assigns, and attorneys, and upon all those persons, firms and corporations acting under, through or for them, and upon those persons, firms and corporations in active concert or participation with them. ++EP++

Page 3 III

This Consent Decree is not and shall not be interpreted to be a permit, or a modification of an existing permit, under Section 402 of the Clean Water Act, 33 U.S.C. Section 1342, nor shall it in any way relieve defendant of any obligation imposed by the Clean Water Act or any permit issued thereunder, nor shall it in any way relieve defendant of its obligation to comply with any other local or federa law in any way related to the substance of this Consent Decree. Any new permit or modification of the existing permit must be accomplished in accordance with applicable federal laws and regulations.

IV

Defendant shall pay pursuant to 33 U.S.C. Section 1319(d) the sum of SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000.00). Defendant shall, within 30 days after the date on which the Court approves this Consent Decree, tender to the United States Attorney for the Northern District of California, a certified check in the amount of SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000.00), payable to the "Treasurer of the United States," for alleged civil violations of the Clean Water Act during the period from July 1, 1977 to February 1, 1983. Said payment by defendant shall not constitute a finding or admission of liability on behalf of defendant, its officers or employees.

V

Defendant shall complete and submit its application for a modified permit under Section 301(m) of the Act and develop and submit supporting data within the time limits set forth in paragraph VI and according to the procedures and requirements to ++EP++ be established by EPA.

Page 4

If defendant fails to comply with any such time limits, procedures or requirements, plaintiff may seek relief from the court, as provided in paragraph VIII 3. Defendant acknowledges that EPA may establish such procedures and requirements by letter to defendant ("letter of instruction") and need not promulgate regulations.

VI

a. Plaintiff agrees not to seek civil penalties for violation of the effluent limitations on BOD and pH in defendant's NPDES permit for the period from February 1, 1983 until EPA issues its letter of instruction.

b. Plaintiff agrees not to seek civil penalties for violation of the effluent limitations on BOD and pH in defendant's NPDES permit for the period from the date EPA issues its letter of instruction up to the date defendant submits its application for modified permit under Section 301(m) which is prima facie complete (in accordance with EPA's letter of instruction), provided that defendant submits said application within 150 days of receipt of EPA's letter of instruction.

c. Upon receipt of EPA's letter of instruction, defendant shall proceed as expeditiously as possible to comply with the procedures and requirements in that letter of instruction. If defendant determines, within 30 days of its receipt of the letter of instruction, that by proceeding as expeditiously as possible and in good faith it is unable to comply with any procedure or requirement within 150 days of receipt of the letter of instruction defendant shall request and plaintiff shall not unreasonably deny ++EP++ an extension of the 150-day time limit to meet said procedure or requirement.

Page 5

During such extended time period plaintiff shall not seek penalties for violations of the effluent limitations on BOD and pH in defendant's NPDES permit provided defendant meets said procedure or requirement within such extended period of time. If such an extension of time is granted, defendant shall nevertheless comply within 150 days of receipt of the letter of instruction with all procedures and requirements not covered by the extension of time.

d. If a prima facie complete application under Section 301(m) is received within the time limits set forth in paragraphs (ILLEGIBLE) b. and c., plaintiff agrees not to seek penalties for violations of the effluent limitations on BOD and pH in defendant's NPDES permit for the period from the date of receipt of said application until EPA issues an initial administrative decision in writing on the application. If that decision is to deny defendant's application, plaintiff may seek penalties for all violations, including BOD and pH, which occur after the date of such decision, provided, however, that plaintiff will not seek penalties for violation of the effluent limitations on BOD and pH in defendant's NPDES permit for a 22-month period subsequent to such administrative denial if defendant designs and constructs the treatment facility during said 22-month period in compliance with this Court's compliance schedule.

VII

a. The compliance schedule ordered by the Court orally on November 23, 1982, and in written form on December 10, 1982, ++EP++ shall be modified, effective upon entry of this decree and payment of the civil penalty, to commence for 22 months, if and when EPA takes final administrative action denying defendant's application under Section 301(m).

Page 6

However, if defendant does not timely respond to any EPA request for additional or supplementary information needed in the interim to process the application, the court may reinstate the compliance schedule and/or impose other appropriate sanctions upon motion by plaintiff.

b. If and when EPA takes final administrative action to issue defendant a modified permit pursuant to Section 301(m), said compliance schedule shall be stayed without further order of the court. Plaintiff may thereafter move the court to reinstate the compliance schedule at such time as may be appropriate to assure that defendant will comply with any BOD and pH requirements under the Clean Water Act as may be applicable after the end of the period covered by the modified permit. No failure by plaintiff to seek reinstatement of the compliance schedule shall in any way diminish defendant's obligations to comply with such requirements.

VIII

Jurisdiction is retained by this Court:

1. To assure payment by defendant of the amount specified in paragraph IV; and

2. To enable plaintiff to seek reinstatement of the Court's compliance schedulm(ifd/or civil penalties for the period subsequent to February 1, 1983, pursuant to the terms of this decree; ++EP++

Page 7

3. To enable either party to apply to the Court for such further Orders or directions as may be necessary or appropriate for the construction or carrying out of any of the provisions of this decree. Approved as to form and substance. Dated: March 1, 1983 /s/ Carol E Dinkins CAROL E. DINKINS Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. 20530 Dated: March 3, 1983 JOSEPH P. RUSSONIELLO United States Attorney RODNEY H. HAMBLIN Assistant United States Attorney Chief, Land and Natural Resources Division

/s/ Charles M. O'Connor

CHARLES M. O'CONNOR

Assistant United States Attorney

Attorneys for Plaintiff

United States of America

Dated: 2/25/53 JOSEPH A. DARRELL JOHN R. FOOTE THELEN, MARRIN, JOHNSON & BRIDGES

/s/ Joseph A. Darrell

JOSEPH A. DARRELL

Attorneys for Defendant

Louisiana-Pacific Corporation

IT IS SO ORDERED.

Dated: SEP 6-1983

/s/ (ILLEGIBLE)

United States District Judge

++EP++

Page 8

Approved as to form and substance. Dated: March 3, 1983 /s/ Sonia F. Crow SONIA F. CROW Regional Administrator Environmental Protection Agency Region 9 ++EP++

Page ADD-1 ADDENDUM

WHEREAS, on July 28, 1983, the Court conducted a hearing on the foregoing Consent Decree; and

WHEREAS, the Court directed that certain facts and circumstances be recited in the Consent Decree prior to entry;

NOW THEREFORE, plaintiff and defendant consent to the entry of this Decree with the following representations and agreements added to and incorporated in the terms of said Decree.

1) The "Letter of Instruction" identified in paragraphs V and VI of the Consent Decree was issued to Louisiana-Pacific on April 25, 1983.

2) Defendant Louisiana-Pacific has not requested an extension of time to comply with any procedure or requirement contained in the Letter of Instruction. Therefore, it is contemplated that the defendant's application will be made in accordance with the Letter of Instruction by September 26, 1983.

3) A notice of public availability of the Letter of Instruction has been published in the Federal Register. 48 Fed. Reg. 34334 (July 28, 1983). The said Letter is now available for public comment.

4) After application is made and when the Environmental Protection Agency has made a tentative decision to grant or deny the modified permit, the usual NPDES permit procedures shall be followed. These procedures will include preparation and notice of a tentative decision to grant or deny the modified permit, 40 C.F.R. 124.6 & 124.8 (1982); and public notice with opportunity for public comment, 40 C.F.R. 124.10 (1982). Comments may be submitted and a public hearing may be requested, 40 C.F.R. 124.11 (1982). ++EP++

Page ADD-2

5) Any application by Louisiana-Pacific for extension of time to comply with the Letter of Instruction, submitted pursuant to the said Letter, will also be submitted to the Court. Should the Court find that the basis for the requested extension is dilatory and not in good faith, the Court may veto the request as it pertains to this Decree. Any administrative extension of time granted by the Environmental Protection Agency shall not be binding on this Court for purposes of paragraphs VI and VII of this Decree.

6) Plaintiff anticipates that it will require approximately nine months after receipt of defendant's application to reach a tentative decision to grant or deny the modified permit. If any additional time is required for a tentative decision, the plaintiff will file a

status report with the Court.7) The Court shall retain sua sponte jurisdiction over this matter to determine whether the parties are complying with the terms and conditions of the Consent Decree and with the spirit of the Act and amendments thereto, as implemented in the Consent Decree. Nothing in the Consent Decree or this Addendum is intended to alter the existing statutory and regulatory framework whereby the Environmental Protection Agency has primary jurisdiction over the administrative processing of Louisiana-Pacific's application for a modified permit, and the United States Court of Appeals has exclusive jurisdiction to review Agency action on the permit, pursuant to 33 U.S.C. Section 1369. Approved as to form and substance. Dated: August 29, 1983 /s/ F. Henry Habicht F. HENRY HABICHT, II Acting Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. ++EP++ Dated: 8-24-83 /s/ Courtney M. Price COURTNEY M. PRICE Special Counsel for Enforcement Environmental Protection Agency Washington, D.C. Dated: 8.17.83 /s/ John C. Wise JOHN C. WISE Acting Regional Administrator Environmental Protection Agency Region IX San Francisco, California Dated: 8-31-83 JOSEPH P. RUSSONIELLO United States Attorney RODNEY H. HAMBLIN Assistant United States Attorney Chief, Land & Natural Resources Division

/s/ Charles M. O'Connor

CHARLES M. O'CONNOR

Assistant United States Attorney

Attorneys for Plaintiff United States of America Dated: August 17, 1983 JOSEPH A. DARRELL JOHN R. FOOTE THELEN, MARRIN, JOHNSON & BRIDGES

/s/ Joseph A. Darrell

JOSEPH A. DARRELL

Attorneys for Defendant

Louisiana-Pacific Corporation

IT IS SO ORDERED.

Dated: SEP 6-1983

/s/ (ILLEGIBLE)

United States District Judge,

Northern

District of California ++EP++

SIMPSON PAPER COMPANY

DOC 02 OF 02

CONSENT DECREE

09-83-C001

CWA

PAPER

19830708

19830708

CAD041655929

STIMPSON PAPER COMPANY

FAIRHAVEN, CA

C-78-0552 RHS

09

CONSENT DECREE FOR U.S. V. CROWN SIMPSON PULP CO., ET AL.

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Civil No. C-78-0552 RHS

CONSENT DECREE

UNITED STATES OF AMERICA, Plaintiff, v.

CROWN SIMPSON PULP COMPANY, a partnership, CROWN ZELLERBACH CORPORATION, SIMPSON TIMBER COMPANY, and CROWN SIMPSON CORPORATION, Defendants.

WHEREAS, a Complaint was filed on March 13, 1978, by plaintiff United States of America, at the request of the Environmental Protection Agency ("EPA"), against defendants Crown Simpson Pulp Company, Crown Zellerbach Corporation and Simpson Timber Company; and

WHEREAS, on September 14, 1982, plaintiff's First Amended Complaint was filed adding Crown Simpson Corporation as a defendant in this action; and

WHEREAS, the Court had held in granting plaintiff's motion for partial summary judgment that defendants have violated the Federal Clean Water Act, 33 U.S.C. Sub-Section 1251 et seq., during the periods not subject to the prior stays entered by the United States Court of Appeals for the Ninth Circuit, and has ordered defendants to construct a secondary treatment facility under a 32-month compliance schedule; and ++EP++

Page 2

WHEREAS, the court did not consider, for purposes of the motion for partial summary judgment, the periods subject to the prior stays entered by the United States Court of Appeals for the Ninth Circuit, and reserved for trial the violations of the Clean Water Act alleged to have occurred during those periods; and

WHEREAS, on December 1, 1982, defendant Crown Zellerbach Corporation sold all of its right, title and interest in defendants Crown Simpson Corporation and Crown Simpson Pulp Mill to defendant Simpson Timber Company; and

WHEREAS, for purposes of this Consent Decree, Simpson Timber Company, for itself and its wholly-owned subsidiary, Simpson Paper Company, is the owner and operator of the pulp mill which is the subject of this Decree, and has assumed the obligations and responsibilities of Crown Zellerbach Corporation under this Decree; and

WHEREAS, on January 10, 1983, the President of the United States signed into law as passed by Congress, Pub. L. No. 97-440, which amends Section 301 of the Clean Water Act, 33 U.S.C. Section 1311, to authorize EPA, under specified conditions, to grant defendants a permit which modifies the requirements of 33 U.S.C. Section 1311(b) (1) (A), Section 1311(b) (2) (E), and 33 U.S.C. Section 1343, with respect to effluent limitations related to biochemical oxygen demand (BOD) and pH, violations of which are the basis of plaintiff's Complaint in this action; and ++EP++

Page 3

WHEREAS, plaintiff and defendants, by their respective attorneys, consent without trial or adjudication of any issue of fact or law with respect to plaintiff's claim for civil penalties herein to the entry of this decree to resolve the controversy between them;

NOW, THEREFORE, before the taking of any testimony and without the adjudication of any issue of fact or law with respect to plaintiff's claim for civil penalties herein, it is ORDERED, ADJUDGED, and DECREED as follows:

I

This Court has jurisdiction of the subject matter and of the parties consenting hereto for the purpose of entering this Consent Decree. Plaintiff's Complaint states a claim upon which relief may be granted against defendants pursuant to Section 309(b) and 309(d) of the Clean Water Act, 33 U.S.C. Sub-Section 1319(b), 1319(d).

II

The provisions of this Consent Decree shall apply to and be binding upon the parties hereto, their respective elected and appointed officials, officers, directors, agents, servants, employees, successors, assigns, and attorneys, and upon all those persons, firms and corporations acting under, through or for them, and upon those persons, firms and corporations in active concert or participation with them, except that, upon entry of this Consent Decree and payment thereunder, the United States forever releases and discharges defendant ++EP++ Crown Zellerbach Corporation, its officers, directors, agents, servants, employees, successors, assigns and attorneys from any and all claims, demands or liabilities which may arise, refer or relate to the future implementation of this Consent Decree, and the obligations, duties or responsibilities to be undertaken by the remaining parties.

Page 4 III

This Consent Decree is not and shall not be interpreted to be a permit, or a modification of an existing permit, under Section 402 of the Clean Water Act, 33 U.S.C. Section 1342, nor shall it in any way relieve defendants of any obligation imposed by the Clean Water Act or any permit issued thereunder, nor shall it in any way relieve defendants of their obligation to comply with any other local or federal law in any way related to the substance of this Consent Decree. Any new permit or modification of the existing permit must be accomplished in accordance with applicable federal laws and regulations.

IV

Defendants shall pay pursuant to 33 U.S.C. Section 1319(d) the sum of SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000.00). Defendants shall, within 30 days after the date on which the Court approves this Consent Decree, tender to the United States Attorney for the Northern District of California, a certified check in the amount of SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000.00), payable to the "Treasurer of the United States," for the alleged civil ++EP++ violations of the Clean Water Act during the period from July 1, 1977 to February 1, 1983.

Page 5

Said payment by defendants shall not constitute a finding or admission of liability on behalf of defendants, their officers or employees, but shall constitute a full and complete satisfaction, release and discharge of defendants, their officers, directors, agents, servants, employees, successors, assigns and attorneys of any and all claims, demands or liabilities which plaintiff had, now has, or could have had, arising out of the subject matter of this lawsuit, or in any way related thereto, for the period July 1, 1977 to February 1, 1983.

V

Defendants shall complete and submit their application for a modified permit under Section 301(m) of the Act, 33 U.S.C. Section 1311(m), and develop and submit supporting data within the time limits set forth in paragraph VI and according to the procedures and requirements to be established by EPA. If defendants fail to comply with any such time limits, procedures or requirements, plaintiff may seek relief from the court, as provided in paragraph VIII 3. Defendants acknowledge that EPA may establish such procedures and requirements by letter to defendants ("letter of instruction") and need not promulgate regulations.

VI

a. Plaintiff agrees not to seek civil penalties for violation of the effluent limitations on BOD and pH in ++EP++ defendants' NPDES permit for the period from February 1, 1983 until EPA issues its letter of instruction.

Page 6

b. Plaintiff agrees not to seek civil penalties for violation of the effluent limitations on BOD and pH in defendants' NPDES permit for the period from the date EPA issues its letter of instruction up to the date defendants submit their application for modified permit under Section 301 (m) which is prima facie complete (in accordance with EPA's letter of instruction), provided that defendants submit said application within 150 days of receipt of EPA's letter of instruction.

c. Upon receipt of EPA's letter of instruction, defendants shall proceed as expeditiously as possible to comply with the procedures and requirements in that letter of instruction. If defendants' determine, within 30 days of receipt of the letter of instruction, that by proceeding as expeditiously as possible and in good faith they are unable to comply with any procedure or requirement within 150 days of receipt of the letter of instruction defendants shall request and plaintiff shall not unreasonably deny an extension of the 150-day time limit to meet said procedure or requirement. During such extended time period plaintiff shall not seek penalties for violations of the effluent limitations on BOD and pH in defendants NPDES permit provided defendants meet said procedure or requirement within such extended period of time. If such an extension of time is granted, defendants shall nevertheless comply within 150 days of receipt of the letter ++EP++ of instruction with all procedures and requirements not covered by the extension of time.

Page 7

d. If a prima facie complete application under Section 301(m) is received within the time limits set forth in paragraphs VI b. and c., plaintiff agrees not to seek penalties for violations of the effluent limitations on BOD and pH in defendants' NPDES permit for the period from the date of receipt of said application until EPA issues an initial administrative decision in writing on the application. If that decision is to deny defendants' application, plaintiff may seek penalties for all violations, including BOD and pH, which occur after the date of such decision, provided, however, that plaintiff will not seek penalties for violation of the effluent limitations on BOD and pH in defendants' NPDES permit for a 27-month period subsequent to such administrative denial if defendants design and construct the treatment facility during said 27-month period.

VII

a. The compliance schedule ordered by the Court orally on September 10, 1982, and in written form on September 27, 1982, shall be modified, effective upon entry of this decree and payment of the civil penalty, to commence for 27 months, if and when EPA takes final administrative action denying defendants' application under Section 301(m). However, if defendants do not timely respond to any EPA request for additional or supplementary information needed in the interim to process ++EP++ the application, the court may reinstate the compliance schedule and/or impose other appropriate sanctions upon motion by plaintiff.

Page 8

b. If and when EPA takes final administrative action to issue defendants a modified permit pursuant to Section 301(m), said compliance schedule shall be stayed without further order of the court. Plaintiff may thereafter move the court to reinstate the compliance schedule at such time as may be appropriate to assure that defendants will comply with any BOD and pH requirements under the Clean Water Act as may be applicable after the end of the period covered by the modified permit. No failure by plaintiff to seek reinstatement of the compliance schedule shall in any way diminish defendants' obligations to comply with such requirements.

VIII

Jurisdiction is retained by this Court:

1. To assure payment by defendants of the amount specified in paragraph IV; and

2. To enable plaintiff to seek reinstatement of the Court's compliance schedule and/or civil penalties for the period subsequent to February 1, 1983, pursuant to the terms of this decree;

3. To enable either party to apply to the Court for such further Orders or directions as may be necessary ++EP++ or appropriate for the construction or carrying out of any of the provisions of this decree.

Page 9

IT IS SO ORDERED.

Dated: 08 JUL 1983.

ROBERT H. SCHNACKE

Judge, U.S. District Court,

Northern District of California

Approved as to form:

Dated: May 3, 1983. /s/ Carol E. Dinkins CAROL E. DINKINS Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. 20530 Dated: May 6, 1983 /s/ Sonia F. Crow SONIA F. CROW Regional Administrator Environmental Protection Agency Region 9 Dated: May 6, 1983. JOSEPH P. RUSSONIELLO United States Attorney RODNEY H. HAMBLIN Assistant United States Attorney Chief, Land and Natural ResourcesDivision

/s/ Charles M. O'Connor

CHARLES M. O'CONNOR

Assistant United States Attorney

Attorneys for Plaintiff

Dated: April 18, 1983 ORRICK, HERRINGTON & SUTCLIFFE A Professional Corporation

/s/ W. Reece Bader

W. REECE BADER

Attorneys for Defendants ++EP++

Dated: 4-29-83 /s/ Courtney M. Price COURTNEY M. PRICE Acting Associate Administrator and General Counsel U.S. Environmental Protection Agency Washington, D.C. 20460 ++EP++

SIMPSON PAPER COMPANY

DOC 01 OF 02

1ST AMENDED COMPLAINT

09-83-C001

CWA

PAPER

19830708

19820914

CAD041655929

SIMPSON TIMBER COMPANY

FAIRHAVEN, CA

C-78-0552 RHS

09

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND MANDATORY RELIEF AND IMPOSITION OF CIVIL PENALTY, U.S. v. CROWN SIMPSON PULP COMPANY, CROWN ZELLERBACH CORPORATION, SIMPSON TIMBER COMPANY, and CROWN SIMPSON CORPORATION

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

v.

CROWN SIMPSON PULP COMPANY, a Partnership, CROWN ZELLERBACH CORPORATION, a Nevada Corporation, SIMPSON TIMBER COMPANY, a Washington Corporation, and CROWN SIMPSON CORPORATION, a Delaware Corporation. Defendants.

CIVIL NO. C-78-0552 RHS

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND MANDATORY RELIEF AND IMPOSITION OF CIVIL PENALTY

The United States of America, by its undersigned attorneys, by authority of the Attorney General, and upon request of the Administrator of the Environmental Protection Agency (hereinafter "EPA"), alleges as follows:

JURISDICTION AND PARTIES

1. This is a civil action instituted pursuant to subsections 309(b) and (d) of the Federal Water Pollution Control Act, as amended, (hereinafter "the Act"), 33 U.S.C. 1319(b) and (d), to enjoin defendants, Crown Simpson Pulp Company (hereinafter "Crown Simpson") Crown Zellerback Corporation, Simpson Timber Company, and Crown Simpson Corporation, from the unauthorized discharge of pollutants into the Pacific Ocean; to ++EP++ compel defendants to abide by the terms and conditions of their National Pollutant Discharge Elimination System Permit No. CA0005282, duly issued under Section 402 of the Act, 33 U.S. C. Section 1342; to compel defendants to abide by the terms of a schedule of compliance to be imposed by the Court to achieve compliance with the terms and conditions of NPDES Permit No. CA0005282; and to impose civil penalties against defendants for violations of Sections 301 and 402 of the Act, 33 U.S.C. Sub-Section 1311 and 1342.

2. Authority to bring this action is vested in the Department of Justice by 33 U.S.C. Section 1366.

3. This Court has jurisdiction pursuant to 28 U.S.C. Section 1345 and 33 U.S.C. Section 1319.

4. Defendant Crown Simpson, located in the Northern District of California, is a partnership, consisting of defendant Crown Zellerback Corporation, a Nevada corporation, and defendant Simpson Timber Company, a Washington corporation.

5. Defendant Crown Simpson Corporation is a Delaware corporation.

WATER ACT VIOLATIONS

6. Defendant Crown Simpson Corporation owns a pulp mill facility at Arcata, California, which it leases to Crown Simpson.

7. Defendant Crown Simpson operates said pulp mill facility with manufactures "market bleached kraft" pulp and in so doing discharges industrial wastewater, a pollutant under Section 502(6) of the Act 33 U.S.C. Section 1362(6), to the Pacific Ocean.

8. The Pacific Ocean is a navigable water of the United States.

Section 502(7) of the Act, 33 U.S.C. Section 1362(7)9. Section 301( a) of the Act, 33 U.S.C. Section 1311(a) prohibits the discharge of pollutants into navigable waters except as in compliance with certain other sections of the Act including Section 402, 33 U.S.C. Section 1342. ++EP++

Page 3

10. Section 402 of the Act, 33 U.S.C. Section 1342, establishes the National Pollutant Discharge Elimination System (NPDES) whereby EPA under Section 402(a), 33 U.S.C. Section 1342(a), or a State under Section 402(b), 33 U.S.C. Section 1342(b), issues permits containing effluent limitations which require the application of "best practicable control technology" (BPT).

11. NPDES Permit No. CA0005282 (State Order No. 74-211) was proposed to be issued by the State of California Regional Water Quality Control Board to Crown Simpson on December 4, 1974.

12. Pursuant to Section 402(d), 33 U.S.C. Section 1342(d), on December 13, 1974, EPA objected to the proposed permit by letter to the State Water Resources Control Board because the effluent limitations contained therein were not based upon BPT as required by Section 301(b) of the Act, 33 U.S.C. Section 1311(b).

13. On December 18, 1975, the State Water Resources Control Board remanded the proposed permit to the Regional Board to include effluent limits absed upon BPT.

14. By letter of April 21, 1976, EPA notified the State Water Resources Control Board that further delays in permit issuance would result in EPA enforcement action against defendants' pulp mill.

15. On August 26, 1976, The Regional Board once again issued a permit to Crown Simpson not requiring the achievement of BPT limitations.

16. On March 17, 1977, the State Water Resources Control Board set aside the Regional Board permit and issued to Crown Simpson NPDES Permit No. CA0005282 (State Order No. WQ77-6) which included the required BPT limitations.

17. Condition B.1 of said permit limits the total daily maximum discharge of biochemical oxygen demand measured over five days (BOD5) to 18,967.5 pounds per day (the sum of 18,540 pounds per day for pulp and 427.5 pounds per day for veneer). ++EP++ Condition B.1 also limits pH to within 5.0 and 9.0.

Page 4

18. These BPT limitations were required to be achieved no later than July 1, 1977, by Section 301(b) of the Act, 33 U.S.C. Section 1311(b).

19. Condition B.4 of the permit provides for alternate lesser effluent limitations for BOD5 and pH, provided that the Administrator of EPA concurs in a variance by approving a finding that defendants' facility is "fundamentally different" from the facility used as a basis for the industry-wide effluent limitations. On September 15, 1977, the Administrator found that defendants' facility was not fundamentally different and refused to grant a variance from the limitations established in Condition B.1 of the permit.

20. Commencing on or about July 1, 1977, and continuing from day to day thereafter, Crown Simpson has discharged on each day of operation an industrial wastewater effluent into the Pacific Ocean in violation of the effluent limitations for BOD5 and pH imposed by Condition B.1 of NPDES Permit No. CA0005282. Such discharge contravene Sections 301 and 402 of the Act, 33 U.S.C. Sub-Section 1311 and 1342.

21. Section 309(b) of the Act, 33 U.S.C. Section 1319(b), provides that the Administrator may commence a civil action for appropriate relief, including a permanent or temporary injunction for any violation for which he is authorized to issue a compliance order, which includes a violation of any condition or limitation which implements Section 30, 33 U.S.C. Section 1311.

22. Section 309(d) of the Act, 33 U.S.C. Section 1319(d), provides that any person who violates Section 301, 33 U.S.C. Section 1311, or any permit condition or limitation implementing such section in NPDES permit shall be subject to a civil penalty not to exceed $10,000.00 per day for each such violation. ++EP++

Page 5

23. The defendants' violations of NPDES Permit No. CA0005282 are of a continuing nature for which there is no adequate remedy at law, and are preventing the plaintiff from achieving the goals mandated by the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251, et seq.) WHEREFORE, Plaintiff, United States of America prays:

(a) That defendants be enjoined from further violating the terms of NPDES Permit No. CA0005282;

(b) That defendants be directed to take all appropriate actions necessary, including but not limited to adherence to a schedule of compliance, to prevent future violations of the terms and conditions of NPDES Permit No. CA0005282;

(c) That civil penalties be assessed in the sum of TEN THOUSAND DOLLARS ($10,000.00) for each day of each violation of NPDES Permit No. CA0005282;

(d) For such other relief as the Court deems just and proper. Dated: July 16, 1982

JOSEPH P. RUSSONIELLO

United States Attorney

By: /s/ Charles M. O'Connor

CHARLES M. O'CONNOR

Assistant United States Attorney

++EP++

Page 6 PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the Northern District of the State of California. I am over the age of eighteen years and not a party to the within above entitled action; that I am a secretary in the office of the United States Attorney for the Northern District of California; that my business address is Room 16201, Federal Building, 450 Golden Gate Avenue, San Francisco, California; and that on September 14, 1982 I served a copy of the hereunto annexed FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND MANDATORY RELIEF AND IMPOSITION OF CIVIL PENALTY on the following parties by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid, in the United States Postal Service mail box at San Francisco, California, addressed as follows: W. Reece Bader, Esq. ORRICK, HERRINGTON & SUTCLIFFE 600 Montgomery Street, 12th Floor San Francisco, California 94111

I certify under penalty of perjury that the foregoing is true and correct. Executed on September 14, 1982 at San Francisco, California

/s/ Maryann C. Olsen

Maryann C. Olsen ++EP++

1887

Page 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

v.

CROWN SIMPSON PULP COMPANY, a Partnership, CROWN ZELLERBACK CORPORATION, SIMPSON TIMBER COMPANY, and CROWN SIMPSON CORPORATION, Defendants.

CIVIL NO. C-78-0552 RHS

ORDER GRANTING PLAINTIFF LEAVE TO FILE ITS AMENDED COMPLAINT

This case came on for hearing on plaintiff's Motion to Amend the Complaint on the 13th day of August, 1982, and the Court having read and considered the pleadings and papers before it, and having heard the arguments of counsel, and being fully advised in the permises,

IT IS HEREBY ORDERED that plaintiff may file its First Amended Complaing for Injunctive and Mandatory Relief and Imposition of Civil Penalty. DATED: 10 SEP 1982 /s/

United States District Judge

++EP++

CITY OF LOS ANGELES

DOC 02 OF 02

AMENDED CONSENT DECREE

09-80-C002

CWA

MUNI

19800620

19870219

CAD000875096

HYPERION

LOS ANGELES, CA

CV 77-3047-HP

09

(BLANK)

(BLANK)

(BLANK)

(BLANK)

AMENDED CONSENT DECREE IN U.S. & STATE OF CALIFORNIA V. CITY OF LOS ANGELES

Page 1

ROBERT C. BONNER United States Attorney 1100 United States Courthouse 312 North Spring Street Los Angeles, California 90012 (213) 688-2445 JAMES DRAGNA DEAN K. DUNSMORE JAY KNOTT United States Department of Justice 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 633-2800 Attorneys for Plaintiff United States of America JOHN K. VAN de KAMP Attorney General EMIL STIPANOVICH, JR. Deputy Attorney General 3580 Wilshire Boulevard Los Angeles, California 90010 (213) 736-2167 Attorneys for Plaintiff State of California JAMES K. HAHN City Attorney NOEL SLIPSAGER Assistant City Attorney 1800 City Hall East 200 North Main Street Los Angeles, California 90012 (213) 485-5410 Attorneys for Defendant City of Los Angeles

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, and the STATE OF CALIFORNIA, Plaintiffs, v. CITY OF LOS ANGELES, Defendant. No. CV 77-3047-HP

AMENDED CONSENT DECREE Page 2

WHEREAS, a complaint for a civil action was brought by the plaintiff, the United States of America ("United States"), at the request of the Environmental Protection Agency ("EPA") against defendant City of Los Angeles ("City"), a municipal corporation of the State of California; and

WHEREAS, the State of California ("State") was subsequently made a party to this action by order of the Court; and

WHEREAS, the United States contends in the First Claim that the City was required to and did not eliminate the discharge of sewage sludge from its Hyperion Wastewater Treatment Plant discharge Serial No. 003 pursuant to a schedule and terms and conditions contained in NPDES Permit No. CA0109991, issued under the authority of Section 402 of the Clean Water Act, 33 U.S.C. Section 1342; and

WHEREAS, the United States contends in the Second Claim that the City was required to and did not achieve secondary treatment level of all wastewater discharged from its Hyperion Wastewater Treatment Plant discharge Serial No. 002 pursuant to a schedule and terms and conditions contained in NPDES No. CA0100991, issued under the authority of Section 402 of the Clean Water Act 33 U.S.C. Section 1342; and

WHEREAS, the United States contends that the City has also violated the interim effluent standards set forth in NPDES Permit No. CA0109991; and

WHEREAS, the United States contends that the City has failed to meet the requirements of NPDES Permit CA0109991 and to ++EP++ properly operate and maintain its Hyperion Wastewater Treatment Plant; and

Page 3

WHEREAS, the City neither admits nor denies that it is not in compliance with such schedules or in violation of such terms and conditions of said permit; and

WHEREAS, the State has issued Waste Discharge Requirements Order No. 74-329 simultaneously with the issuance of NPDES Permit No. CA0109991 by the EPA and has also subsequently issued modifications to that Order. This Order applies to the same discharges as NPDES Permit No. CA0109991. Hereinafter any references to NPDES Permit No. CA0109991 shall be deemed to include Order No. 74-329 and all subsequent modifications thereof; and

WHEREAS, the parties have previously entered into a Consent Decree which was approved and entered by the Court on June 20, 1980, which as subsequently modified and approved by the Court, required the City to cease the ocean discharge of sewage sludge by February 15, 1986; and

WHEREAS, the City has not ceased the discharge of sewage sludge to the ocean by February 15, 1986; and

WHEREAS, the Consent Decree of June 20, 1980 settled only the First (Sewage Sludge) Claim and stayed proceedings on the Second (Secondary Treatment) Claim pending administrative and judicial proceedings with respect to the City's application, pursuant to Section 301(h) of the Clean Water Act, 33 U.S.C. Section 1301(h), for a modified NPDES permit waiving secondary treatment requirements; ++EP++

Page 4

WHEREAS, the EPA issued a tentative decision document on November 30, 1981, approving the City's application for a modified NPDES permit, but the State, through the California Regional water Quality Control Board, stated that it did not concur; the tentative decision document was withdrawn and the City's application for a modified NPDES permit under Section 301(h) was denied by the EPA on March 10, 1986, and no review was sought by the City; and WHEREAS, proceedings on the Second Claim are no longer stayed; and

WHEREAS, the Consent Decree of June 20, 1980 required the City to comply with all the requirements of NPDES Permit No. CA0109991 except those which were inconsistent with the terms of said Decree and did not in any way relieve the City of its obligation imposed by any permit issued under the Clean Water Act; and

WHEREAS, the United States, the State and the City desire to avoid the perils of litigation and to resolve the controversy among them; and

WHEREAS, it is the intent of the City to use its best efforts in good faith to achieve and maintain full compliance with the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the Water Quality Control Plan for Ocean Waters of California ("California Ocean Plan") adopted by the California State Water Resources Control Board, including termination of all sewage sludge discharge to the Pacific Ocean and compliance with all requirements of NPDES Permit No. CA 0109991, at the earliest practicable time, but in no event later than the deadlines set forth in this Consent Decree; and ++EP++

Page 5

WHEREAS, except for provisions herein to the contrary, the parties agree that this Amended Consent Decree may be substituted for and replace the prior Consent Decree filed on June 20, 1980, as subsequently modified;

NOW, THEREFORE, upon the pleading and upon consent of the parties thereto, it is hereby ORDERED, ADJUDGED AND DECREED as follows;

I JURISDICTION

This Court has jurisdiction of the subject matter and of the parties consenting hereto for the purpose of entering this Amended Consent Decree. The Complaint states a claim upon which relief may be granted against the City and the State pursuant to Sections 309(b) and 309(d) of the Clean Water Act, 33 U.S.C. Sub-Section 1319(b) and 1319(d).

II APPLICABILITY

The provisions of this Amended Consent Decree shall apply to and be binding upon the parties hereto, their respective elected and appointed officials, officers, directors, agents, servants, employees, successors, assigns and attorneys, and upon all those persons, firms and corporations acting under, through or for them, and upon those persons, firms and corporations in active concert or participation with them. ++EP++

Page 6 III COMPLIANCE WITH OTHER LAWS

A. This Amended Consent Decree constitutes a full and complete settlement of all civil claims which were presented against the City under the Clean Water Act, 33 U.S.C. Section 1251, et seq., with respect to NPDES Permit No. CA0109991, in the Complaint filed in this case for violations of the Clean Water Act that have occurred up to and including the date of entry of this Decree.

B. This Amended Consent Decree is not and shall not be interpreted to be a permit, or a modification of an existing permit, under Section 402 of the Clean Water Act, 33 U.S.C. Section 1342. Any new permit, or modification of the existing permit, must be accomplished in accordance with applicable Federal and State laws and regulations.

C. The City shall comply with the terms and conditions of the Clean Water Act, NPDES Permit No. CA0109991, and any modifications or reissuance of this permit or any subsequently issued permit, and any other federal or state law. Provided however, that insofar as this Decree establishes any compliance schedule which is inconsistent with any such NPDES permit, the United States and the State will seek no penalties other than those provided in this Decree for any violations of effluent limitations in the permit for which this Decree establishes a compliance schedule or seek any court or administrative order requiring any compliance earlier than that agreed upon in this Decree. ++EP++

Page 7 IV SLUDGE DISCHARGE TERMINATION

A. The City shall terminate the discharge of sewage sludge in any form and thereafter discharge no sludge to the Pacific Ocean through discharge Serial No. 003 by no later than December 31, 1987.

B. Until December 31, 1987, or the termination of the discharge of sewage sludge into the Pacific Ocean, whichever is later, the City shall:

1. Upon lodging of this Consent Decree, haul at least 2,000 wet tons of sewage sludge per month from the Hyperion Wastewater Treatment Plant for disposal at other appropriate locations; and

2. Within six (6) months of the entry of this Consent Decree, haul at least 5,000 wet tons of sewage sludge per month from the Hyperion Wastewater Treatment Plant for disposal at other locations unless the City can demonstrate, after undertaking an extensive, good faith effort to dispose of such additional sludge, that there is no viable disposal option. In any event, the City shall haul as much additional sewage sludge as possible.

C. Within eighteen (18) months of the entry of this Consent Decree, the City shall complete a draft Environmental Impact Report concerning the hauling and the offsite disposal of all sewage sludge produced at the Hyperion Wastewater Treatment Plant. ++EP++

Page 8 V COMPLETION OF HERS PROJECT

A. The City shall complete construction and begin operation of the Hyperion Energy Recovery System by June 30, 1989.

B. For the purposes of this Decree, the Hyperion Energy Recovery System (HERS) project is that project which implements the selected sludge treatment and disposal process contained in the LA/OMA Project Policy Board Agenda Package, Item 5, dated October 2, 1979, which involves facilities with a capacity of 264 tons dry sludge per day, which includes as a part of the system, the Carver-Greenfield process.

C. On January 1 and July 1 of each year until termination of this Decree, the City shall submit a report detailing progress on the completion of the HERS project, the wastewater facilities plan (as defined by 40 C.F.R. Section 35.2030), and the installation of secondary treatment facilities pursuant to Paragraph IX herein to the Court, EPA, and the State. Commencing on October 1, 1987 until termination of this Decree, the City shall update these reports on October 1 and March 1 of each year. The parties shall, upon request of the Amici, meet with the Amici within thirty (30) days of the submission of such reports to review the information contained therein.

VI PAST CONSTRUCTION FUNDING

Compliance by the City with Paragraphs IV and V.A. of this Consent Decree shall be deemed to satisfy those particular ++EP++ conditions, relating to termination of the discharge of sewage sludge to the ocean, contained in various grants of Federal and State funds for the construction of treatment works that have from time to time in the past been offered by the EPA and the State and accepted by the City.

Page 9 VII PRIOR CONSENT DECREE

Paragraph XIV of the Consent Decree entered on June 20, 1980, as modified by paragraphs 7, 8 and 9 of Modification of Consent Decree entered on August 27, 1985, concerning establishment of the Environmental Trust Fund, are incorporated by reference as if fully set forth herein.

VIII INTERIM EFFLUENT LIMITS

A. Until the City achieves compliance with the requirement for full secondary treatment as provided in Paragraph IX herein, the City shall achieve compliance with and thereafter maintain full compliance with the effluent requirements set forth in Appendices A and B hereto according to the schedule set forth in said Appendices A and B, which are attached hereto and incorporated herein.

B. The interim effluent limits set forth in Appendices A and B may be revised to require reduced discharges of pollutants if existing and future facilities at the Hyperion Wastewater Treatment Plant can achieve the reduced discharge of pollutants when operated according to standard engineering practices. Any ++EP++ such revision shall occur through the following procedures:

Page 10

1. The United States or the State may submit a proposal in writing to the City and the Court indicating in detail the improved effluent limitations the United States or the State believes Hyperion is capable of meeting on a sustained basis, and a statement outlining the basis for the proposed effluent limitations. No such proposal shall be made less than twelve (12) months after entry of this Consent Decree or less than twelve (12) months after any reduction in such effluent limitations made under this Paragraph. The proposed effluent reduction shall not be more restrictive than the requirements of any applicable NPDES permit or its equivalent in effect at the time.

2. The City shall respond, and the United States or the State, as applicable, may respond to the proposal within thirty days of receipt. A response may accept the proposal, reject the proposal, or suggest alternative effluent limitations. The City shall submit a copy of the response to the Court. If the City does not respond in writing within sixty (60) days of its receipt of the proposal, then it shall be deemed to have accepted the proposal and the proposal shall be treated as incorporated into Appendices A and/or B.

3. The United States, the City and the State shall use their best efforts to resolve any disputes concerning the proposal. If the parties agree to a modification of the ++EP++ interim effluent limitations, the modifications will be submitted to the Court for incorporation into Appendices A and B through a modification of the Consent Decree.

Page 11

4. If the parties are unable to agree within thirty (30) days of the City's response to the proposal, the parties shall move the Court jointly for resolution of the dispute. The City shall bear the burden of proving it cannot achieve the reduced discharge of pollutants consistently when the Hyperion Facility is operated according to standard engineering practices.

IX SECONDARY TREATMENT

A. The City shall achieve full compliance with the requirement to achieve and thereafter maintain compliance with the requirement of full secondary treatment by December 31, 1998.

B. For the purposes of this Consent Decree, secondary treatment means compliance with the minimum effluent quality limitations set forth in 40 C.F.R. Section 133.102 as adopted by 49 Fed. Reg. 37006 (Sept. 20, 1984) and 49 Fed. Reg. 40405 (Oct. 16, 1984).

X OPERATION AND MAINTENANCE

A. By December 31, 1986, the City shall complete and implement a maintenance management system for all facilities at the Hyperion Wastewater Treatment Plant.

B. By July 1, 1987, the City shall hire and train personnel at the Hyperion Wastewater Treatment Plant to maintain ++EP++ a complement of staff which is not less than 90% of the numbers specified for each of the following categories:

Page 12 Section

Personnel

Operators

192

Maintenance

268

Engineering, Administrative

Services and Laboratory 89

TOTAL

549

C. Within eight (8) months of the entry of this Amended Consent Decree, the City shall prepare and submit to the EPA, the State, and the Court a draft operator training program for the Hyperion Wastewater Treatment Plant, the collection system and all upstream wastewater treatment plants owned and operated by the City. The EPA and the State shall provide responses to the City and the Court within ninety (90) days after receiving the City's draft operator training program. Within ninety (90) days after receiving responses from both the EPA and the State, the City shall prepare and submit to the EPA, the State, and the Court a final operator training plan for the Hyperion Wastewater Treatment Plant, the collection system and all upstream wastewater treatment plants owned and operated by the City, incorporating any comments received from the EPA and the State.

XI

MONETARY PAYMENT

The City shall pay to the United States the amount of six hundred and twenty five thousand dollars ($625,000.00). This ++EP++ payment shall be made by check payable to the United States Treasury and delivered to the office of the United States Attorney for the Central District of California no later than thirty (30) days after entry of this Decree.

Page 13 XII STIPULATED PENALTY

The following penalties shall apply to any failure by the City to meet the obligations set forth in this Amended Consent Decree:

A. The City shall incur a penalty of $10,000 per each day of each violation of Paragraph IV.

B. For any violation of the requirements of paragraph VIII set forth in Appendices A and B, the City shall pay the following penalties per each day of each violation:

Period of Non-Compliance

Penalty Per Day

1st day to 30th day

$1,500

30th day to 60th day

5,000

Beyond the 60th day

10,000

D. For purposes of this Amended Consent Decree, a violation of a monthly average limitation shall be deemed a separate violation for each limitation on each day of that month.

E. Should the City fail to achieve compliance with and thereafter maintain compliance with the full secondary treatment requirement by December 31, 1998, the City shall pay a penalty of $10,000 per day or the maximum amount authorized by the Clean Water Act on the day of violation, whichever is greater, for each ++EP++ day of violation.

Page 14

F. All penalties due under this Paragraph shall be paid within thirty (30) days of receipt by the City of a letter from the United States demanding payment. Payment shall be made according to the following procedure: Fifty (50) percent of the penalty shall be paid by check payable to the United States Treasury and delivered to the office of the United States Attorney for the Central District of California; the remaining fifty (50) percent shall be paid by check payable to the State Water Pollution Cleanup and Abatement Account and delivered to the office of the Regional Water Quality Control Board, Los Angeles Region. The decision to demand payment of any stipulated penalty under this Paragraph shall be solely within the discretion of the United States. A copy of the letter demanding payment shall be submitted to the Court. Should the City contend that it should not be liable for the penalties demanded, the City may, within thirty (30) days of receipt of the demand for payment, pay the penalties into the registry of this Court pending determination of the issues of liability for the penalties. If the City elects not to pay any disputed penalties into the registry of the Court, and if the City is ultimately determined to be liable for the penalty, the City shall pay interest from the date of receipt of the demand for payment to date of actual payment computed daily pursuant to 28 U.S.C. Section 1961.

G. Stipulated penalties paid pursuant to this Paragraph shall be in addition to, and shall not preclude the use of, any other remedies or sanctions that may be available to the United ++EP++ States or the State to enforce this Decree, and, subject to Paragraph III herein, the Clean Water Act, including seeking a service connection ban to the sewer system upstream of the Hyperion Waste Water Treatment Plant.

Page 15

Nor shall the payment of such stipulated penalties be construed so as to relieve the City from specific compliance with this Decree or federal or state law.

H. The maximum stipulated penalty incurred by the City under this Paragraph for multiple violations of this Consent Decree for any one day shall be no higher than the maximum daily penalty for multiple violations that is authorized under the Clean Water Act.

XIII FORCE MAJEURE

A. If any event occurs which causes a failure to timely carry out any requirement of this Amended Consent Decree, the City shall notify EPA, the State, and the Court in writing within fifteen (15) calendar days of the time that the City becomes aware of the failure. The notice shall describe in detail the precise cause of the failure and the measures taken to prevent or minimize the failure. The City shall implement all reasonable measures to avoid or minimize any such failure. Failure by the City to comply with the requirements of this paragraph shall render the provisions of this Paragraph void and of no effect as to the particular incident involved and constitute a waiver of the City's right to request any relief from its obligations under this Decree based upon such incident. ++EP++

Page 16

B. If the United States and the State agree that a failure of the City to timely carry out a requirement has been caused by circumstances beyond the City's control, there shall be no obligation to pay the stipulated penalty for that particular failure. In the event the parties cannot agree, the City may submit the matter to this Court for resolution.

C. The burden of proving that any failure is caused by circumstances beyond the control of the City shall be on the City. Moreover, the parties agree that the following, without limitation, are not circumstances beyond the control of the City:

1. Operational error, or careless or negligent operations of wastewater treatment facilities operated by the City;

2. Failure to apply standard engineering practices in the design, construction or operation of any city facility;

3. Inadequate capacity of the Hyperion Wastewater Treatment facility, facilities upstream of Hyperion, and wastewater transport facilities to treat wastewater as provided by this Consent Decree, unless the inadequate capacity is due to increases in flow which were both unforeseeable and beyond the reasonable ability of the City to control;

4. Failure of the City to adopt or adhere to a program of preventative maintenance consistent with standard operational practices;

5. Inability of the City to secure adequate financing to perform any act required by the Decree; and 6. Failure of the City to make timely application for ++EP++ required permits or to complete the City's obligations for environmental documentation in a timely manner.

Page 17

D. If the United States, the State and the City agree or the Court determines that delay in meeting any schedule or date in this Amended Consent Decree has been caused by circumstances beyond the control of the City, then subject to the provisions of this Paragraph, the time for performance hereunder will be extended for a period up to that equal to the delay resulting from such circumstances.

E. The fact that the parties may have previously stipulated or the Court has found that any delay in meeting any other schedule or date in the Consent Decree of June 20, 1980, as modified or this Amended Consent Decree was caused by circumstances beyond the control of the City shall not constitute proof that circumstances beyond the control of the City exist or existed for failure to comply with any subsequent compliance date. If the City establishes that any failure to meet a compliance date was due to circumstances beyond its control, such date shall be extended. The City may not, however, be relieved of the ultimate duty to comply with all requirements of the Clean Water Act, 33 U.S.C. Section 1251 et seq. or to comply with the California Ocean Plan.

XIV STORMWATER CONTROL PROJECT

The City shall complete a stormwater discharge control project pursuant to the specifications and schedules set forth in Appendix C, which is attached hereto and incorporated herein. ++EP++

Page 18 XV COORDINATOR

The EPA, the State, and the City agree that they will each designate a single coordinator and an alternate who will be responsible for directing all documents related to this Decree to the proper person for processing and who will track the progress of items in this Decree. Each coordinator will be responsible for assuring that each party exerts its best efforts to comply with all terms of the Amended Consent Decree including compliance with all reporting requirements. The plaintiffs shall report to the Court the failure of the City to exert its best efforts to comply with this Decree within a reasonable period of time. The coordinators shall inform all parties and the Court as to their names, addresses, and telephone numbers within sixty (60) days of the entry of this Decree.

XVI RIGHT OF ENTRY

Any designated representative or contractor of EPA or the State may, upon presentation of credentials, enter upon the premises of the Hyperion Wastewater Treatment Plant and all plants upstream of the Hyperion Wastewater Treatment Plant without prior notice to the City for the purposes of monitoring compliance with the provisions of the Amended Consent Decree. This right of entry shall be in addition to EPA's or the State's right of entry under applicable law. All inspection and monitoring by representatives or contractors of EPA or the State shall be reasonable and shall ++EP++ be conducted in a manner that will not interfere with the safety or operation of the facilities.

Page 19 XVII SUBMISSION OF DOCUMENTS

The City agrees to submit such further information as may be reasonably required by EPA, the State, or the Court in order to ensure compliance with the terms of this Amended Consent Decree. All documents that are submitted to the Court pursuant to this Paragraph, shall also be served on the Amici.

XVIII RETENTION OF JURISDICTION

This Court shall retain jurisdiction over this matter and all disputes arising thereunder as may be necessary or appropriate for the construction or execution of this Amended Consent Decree. In the event a dispute arises between the United States, the State and/or the City regarding compliance with or interpretation of any requirement or provision contained in this Decree, after the parties have met and in good faith attempted to resolve the dispute by negotiations, any party may file a petition with this Court for resolution of the same.

XIX COSTS

Each party shall bear its own costs and disbursements in this action. ++EP++

Page 19 XX TERMINATION

This Amended Consent Decree shall expire one year after all parties hereto have certified and the Court has determined that the City has complied with the terms of this Decree, the Environmental Trust Fund, and the work to be performed pursuant to Appendix C, whichever is later. Upon expiration of this Decree, this action shall be dismissed with prejudice. DATED AND ENTERED this 19th day of Feb, 1987.

/s/ (ILLEGIBLE)

UNITED STATES Circuit JUDGE

Sitting my designation

The parties hereby consent to the entry of the foregoing

Consent Decree.

For the United States:

/s/ F. Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

United States Department of

Justice

Land and Natural Resources

Division

/s/ James Dragna

JAMES DRAGNA

DEAN K. DUNSMORE

JAY KNOTT

Attorneys

United States Department of

Justice

Environmental Enforcement Section

Washington, D.C. 20530 ++EP++

Page 20

/s/ Judith E. Ayres

JUDITH E. AYRES

Regional Administrator

United States Environmental

Protection Agency, Region IX

215 Fremont St.

San Francisco, California 94105

/s/ Thomas L. Adams, Jr

THOMAS L. ADAMS, JR.

Assistant Adminstrator For

Enforcement and

Compliance Monitoring

United States Environmental

Protection CAgency

401 M Street, S.W.

Washington D.C. 20460

For the State of California:

/s/ Emil Stipanovich, Jr

EMIL STIPANOVICH, JR.

Deputy Attorney General

State of California

6th Floor, Tishman Building

3580 Wilshire Boulevard

Los Angeles, California 90010

For the City of Los Angeles:

/s/ Noel R. Slipsager

JAMES K. HAHN

City Attorney

NOEL R. SLIPSAGER

Assistant City Attorney

City of Los Angeles

1800 City Hall East

200 North Spring Street

Los Angeles, California 90012

++EP++

Page APP-A-1 APPENDIX A

Interim Effluent Limits

The City shall achieve immediate compliance with the following effluent limits for outfall 002 at the Hyperion Treatment Plant: ++EP++

Table Omitted ++EP++ Page APP-B-1 APPENDIX B

Effluent Limits (Ocean Plan)

The City shall achieve compliance with the following effluent limits for outfall 002 at the Hyperion Treatment Plant no later than May 31, 1991: ++EP++ ((/* / - Whenever the influent suspended solids concentration exceeds 240 mg/1, the effluent suspended solids concentration limits shall be calculated as follows:))

Parameter Calculation 30-day average 25% of the influent concentration 7-day average 30-day average limit multiplied by 1.33 Daily maximum 30-day average limit multiplied Page APP-C-1 APPENDIX C

Stormwater Pollutant Discharge Reduction Project

A. The City shall perform an engineering and design study to assess the nature and extent of discharges of pollutants from stormwater runoff from the Hyperion service area into Santa Monica Bay (Study). The Study shall recommend a discrete remedial project or projects to be designed to reduce effectively the discharge of such pollutants into Santa Monica Bay. The City shall implement this project according to the following procedures:

1. The City shall submit the name and qualifications of a proposed project manager (consultant) for the Study to EPA for approval within one hundred eighty (180) days of the entry of this Decree. EPA shall have thirty (30) days within which to approve or disapprove the consultant. If EPA does not act on the nomination within such period, it shall be deemed to have waived its right to object. If EPA disapproves of the nomination, the City shall propose additional consultants until it obtains EPA aproval.

2. Within one hundred eighty (180) days of EPA approval of the project manager, the City shall submit to EPA for approval a Work Plan and budget for the Study (Work Plan). Copies of the Work Plan and the budget shall be submitted to the Court and the State. The Work Plan shall describe in detail the proposed study and the procedures to be implemented to identify and to recommend the remedial alternatives. ++EP++

Page APP-C-2

3. EPA shall have ninety (90) days in which to review and approve the Work Plan. If EPA does not respond within such ninety day period, then it shall be deemed to have waived its right to object. If EPA disapproves or modifies the Work Plan, it shall specify in detail the reasons for such disapproval or modification, and shall specify what modifications are necessary if any. These modifications shall be discussed with the City and a mutually satisfactory resolution shall be reached. The approved budget for the Study shall not be required to exceed $300,000. Upon EPA approval of the Work Plan, the City shall commence the Study pursuant to the schedule therein.

4. The City shall submit the results of the Study and a prioritized list of remedial alternatives to EPA for approval. Copies of the Study and the list shall be submitted to the State and the Court. The recommendations shall be described in detail, including a proposed budget for each project. EPA shall consider the City's recommendations and shall select the project or projects to be implemented and the budgets. If EPA determines that additional information, recommendations or modifications are necessary, it shall so inform the City. The City shall provide such information, recommendations or modifications. The approved budget for the completion of the project or projects shall not be required to exceed $3,000,000.

B. The City shall complete the project or projects selected by EPA pursuant to the following procedures: ++EP++

Page APP-C-3

1. Within ninety (90) days of EPA approval stormwater pollutant discharge project or projects, the City shall submit to EPA a schedule for the completion of the (As a goal, the design and construction period of the project shall not exceed three years). A copy of the schedule submitted to the State and the Court. EPA shall have ninety (90) days in which to review, modify, and/or approve the If EPA does not respond within such ninety day period, shall be deemed to have waived its right to object. Upon approval, the city shall implement the project(s). The budget for the project(s) shall not be required to exceed $3,000,000.

2. During the implementation of the project City shall submit quarterly reports that summarize the work completed for the proceeding quarter, and the nature and for the completion of additional work to EPA, the State, and Court.

3. Upon completion of the project(s), the City shall submit a final report to EPA that describes in detail project, and that certifies that it has been completed pursuant to the terms of this Decree. Copies of the report shall be to the State and the Court. ++EP++

CITY OF LOS ANGELES

DOC 01 OF 02

ORDER

09-80-C002

CWA

MUNI

19800620

19870219

CAD000875096

HYPERION

LOS ANGELES, CA

CV 77-3047-HP

09

(BLANK)

(BLANK)

(BLANK)

(BLANK)

ORDER FOR U.S. & STATE OF CALIFORNIA V. CITY OF LOS ANGELES

Page i UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL

Case No. CV 77-3047-HP Date 2/19/87 Title United States of America, et al. v. City of Los Angeles DOCKET ENTRY PRESENT: HON. Harry Pregerson Circuit JUDGE, R. W. JohnsonDeputy Clerk Sitting by Designation Lenoir Eddy Court Reporter ATTORNEYS PRESENT FOR PLAINTIFFS: None present ATTORNEYS PRESENT FOR DEFENDANTS: None present PROCEEDINGS: ORDER (See attached for contents of Order) ++EP++

Page 1

United States of America, et al. v. City of Los Angeles

Case No. CV 77-3047-HPParagraph V.C. of the amended consent decree requires that, on January 1 and July 1 of each year until termination of the decree, the City of Los Angeles shall submit a report detailing progress on the completion of the HERS project, the wastewater facilities plan, and the installation of secondary treatment facilities to this court, EPA, and the State of California and that, on October 1 and March 1 of each year, the City shall update these reports. The decree also requires that parties, at the request of Amici, to meet with the Amici within thirty days of the submission of each semiannual report to review the information it contains. IT IS ORDERED that:

1. Within forty-five days of the submission of each semiannual report the parties will appear before the court, at a time and date to be set by the court, to further review the information contained in the report.

2. Within five days of the date set for the hearing, Amici shall submit, in writing, their comments concerning the report. These comments shall be served on the parties.

3. All documents which, under this consent decree, parties are required to file with the court shall also be served on Amici. ++EP++

Page 2

The court trusts that the consent decree's provisions for active participation of the Amici and its provisions requiring quarterly reporting will ensure faithful compliance with the decree so as to obviate any need to appoint a master to monitor its provisions.

IT IS FURTHER ORDERED that, at the first status conference after the Hyperion full secondary treatment construction plans and specifications are completed, the agenda before this court will include a discussion of construction schedules to determine whether it is feasible to accelerate the schedule for achieving full secondary treatment. Moreover, the parties shall report to the court on all feasable options for accelerating the construction schedule.

IT IS FURTHER ORDERED that, under paragraph XIII.D. of the consent decree, the time of performance will be extended if the United States, the State, and the City agree and the Court determines that delay has been caused by circumstances beyond the control of the City.

IT IS FURTHER ORDERED (1) that, under Appendix C, paragraph B.2., the City shall submit quarterly reports during the development as well as the implementation of the Stormwater Pollutant Discharge Reduction Project; and (2) that the City ++EP++ will talk with Amici concerning the selection of a project manager and the development of a work plan for the Stormwater Pollutant Discharge Reduction Project.

Page 3

IT IS FURTHER ORDERED that, in its first semiannual report, the City shall identify innovative technologies that it plans to employ in implementing the HERS project and in achieving full secondary treatment. If it appears that innovative technology will prevent compliance with the time deadlines provided in the decree, the City is obligated to notify EPA, the State, and this court within fifteen days, as provided in paragraph XIII.A. of this decree. ++EP++

U.S. OIL & REFINING CO

01 OF 01

CONSENT DECREE/FINAL JUDGMENT

CWA

1993

TACOMA, WA

93-5068

10

CONSENT DECREE AND FINAL JUDGMENT, USA V. U.S. OIL AND REFINING COMPANY

Page 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON At Tacoma

UNITED STATES OF AMERICA

Plaintiff,

v.

U.S. OIL & REFINING CO.

Defendant.

I. BACKGROUND

1. Plaintiff, the United States of America, through the Attorney General, at the request of the Commandant of the United States Coast Guard (Coast Guard) and the Administrator of the Environmental Protection Agency (EPA), filed, contemporaneously with the lodging of this Decree, a civil complaint alleging that defendant, U.S. Oil & Refining Co. (U.S. Oil), discharged oil into navigable waters and upon adjoining shoreline of the United States in violation of Sections 301 and 311 of the Federal Water Pollution Control Act, hereinafter referred to as the Clean Water Act or the CWA, 33 U.S.C. Sub-Section 1311 and 1321, as amended by the Oil Pollution Act of 1990, Pub. L. 101-380, 104 Stat. 484; and the Oil Pollution Act of 1990 (OPA), 33 U.S.C. Sub-Section 2701 et seq. ++EP++

Page 2

More specifically, the complaint alleges that on or about January 6, 1991, U.S. Oil discharged approximately 14,287 barrels of oil from its facility in Tacoma, Washington onto vacant land and a nearby parking lot (the Spill). The complaint also alleges that approximately 4,000 to 7,000 barrels of the oil entered storm drains and flowed into a drainage ditch which empties into Commencement Bay, with approximately 45 to 120 barrels of oil entering Commencement Bay.

2. Section 311(b) (3) of the CWA prohibits the:

discharge of oil . . . into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone . . . in such quantities as may be harmful as determined by the President . . .

33 U.S.C. Section 1321(b) (3). In connection with such discharges of oil, the CWA, as amended by OPA, provides, inter alia, for the commencement of a civil action seeking injunctive relief pursuant to 33 U.S.C. Sub-Section 1319(b) and 1321(e); the recovery of costs pursuant to 33 U.S.C. Section 2702(b)(1); and the imposition of civil penalties against responsible parties up to $1,000 per barrel of oil or unit of reportable quantity of hazardous substances discharged pursuant to 33 U.S.C. Section 1321(b) (7).

3. In its complaint, the United States seeks, inter alia:

(a) injunctive relief pursuant to Sections 309(b) and 311(e) of CWA, 33 U.S.C. Sub-Section 1319(b) and 1321(e), to clean up the Spill and prevent or mitigate recurrences; ++EP++

Page 3

(b) reimbursement of costs incurred by the United States for actions taken in connection with the Spill, together with accrued interest pursuant to 33 U.S.C. Sub-Section 2702 and 2705; and

(c) civil penalties for the Spill pursuant to

Section 311(b) (7) of CWA, 33 U.S.C. Section 1321(b) (7).

4. The State of Washington has also issued administrative orders against the defendant arising out of the Spill.

5. U.S. Oil, by entering into this Decree, does not admit any liability to the United States arising out of the transactions or occurrences alleged in the complaint.

6. The United States has reviewed financial information provided by U.S. Oil in the course of settlement negotiations and has agreed to the civil penalty amount set forth in this Decree based, in part, on U.S. Oil's financial condition as documented in that information.

7. The parties recognize, and this Court finds, that the parties have negotiated this Decree in good faith, and that implementation of the Decree will expedite the cleanup of the Spill and subsequent spill prevention actions; will avoid prolonged and complicated litigation between the parties; and is fair, reasonable, and in the public interest.

NOW THEREFORE, it is hereby Ordered and Decreed as follows: ++EP++

Page 4 II. JURISDICTION AND VENUE

8. This Court has jurisdiction over the defendant and the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345, 1355 and 1395(a) and 33 U.S.C. Sub-Section 1319(b), 1321 and 2717. Venue is proper in this Court under 28 U.S.C. Sub-Section 1391 and 1395(a) and 33 U.S.C. Sub-Section 1319(b), 1321(b) (7) (E) and 2717(b). For the purposes of this Decree and the underlying complaint, defendant waives all objections and defenses that it may have to the jurisdiction of this Court or to venue in this District.

Defendant shall not challenge the terms of this Decree or this Court's jurisdiction to enter and enforce it. In addition, for the purposes of enforcing the requirements of this Decree, defendant concedes that the complaint states claims for which relief may be granted.

III. PARTIES BOUND

9. This Decree applies to, and is binding upon, the United States and upon defendant and its successors and assigns. Any change in ownership or corporate status of defendant including, but not limited to, any transfer of assets or real or personal property, shall in no way alter defendant's responsibilities under this Decree. Before defendant sells or transfers its legal or equitable interest in the Tacoma refinery or any property subject to this Decree during the term of this Decree, it shall advise such purchaser or successor-in-interest of the existence of this Decree, and shall condition such sale or transfer on the purchaser's or successor-in-interest's agreement to comply with the terms hereof. ++EP++

Page 5

This provision is not applicable to loans extended to defendant by financial institutions except where the party extending the loan obtains thereafter incidents of ownership or exercises operational control over the property subject to this Decree. In addition, at least thirty calendar days prior to such sale or transfer, defendant shall notify the United States, in writing, of such proposed sale or transfer.

IV. DEFINITIONS

10. Unless otherwise expressly provided herein, terms used in this Decree which are defined in CWA and OPA or in regulations promulgated under CWA or OPA shall have the meaning assigned to them in those authorities. Whenever terms listed below are used in this Decree or in the Appendices attached hereto and incorporated hereunder, the following definitions shall apply:

a. "Act of God" shall have the definition set out in Section 1001(1) of OPA, 33 U.S.C. Section 2701(1).

b. "Consent Decree" or "Decree" shall mean this Decree and all Appendices attached hereto. In the event of conflict between this Decree and any Appendix, this Decree shall control.

c. "Day" shall mean a calendar day unless expressly stated to be a working day. "Working day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or Federal holiday, the period shall run until the close of business of the next working day. ++EP++

Page 6

d. "National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 311(d) of CWA, 33 U.S.C. Section 1321(d), and Section 105 of CERCLA, 42 U.S.C. Section 9605, and codified at 40 C.F.R. Part 300, including, but not limited to, any amendments thereto.

e. "Oil" shall have the definition set out in Section 311(a)(1) of the CWA, 33 U.S.C. Section 1321(a)(1).

f. "Paragraph" shall mean a portion of this Consent Decree identified by an arabic numeral.

g. "Removal Costs" shall mean all costs, including, but not limited to, direct and indirect costs, monitoring costs, and interest, that the United States incurred and paid with regard to the Spill.

h. "Section" shall mean a portion of this Consent Decree identified by a roman numeral.

V. GENERAL PROVISIONS

11. Objectives of the parties. The objectives of the parties in entering into this Consent Decree are to protect public health, welfare and the environment by responding to the Spill and implementing measures to prevent or mitigate future oil spills; to resolve certain issues under OPA and CWA; and to reimburse plaintiff's costs in connection with the spill. ++EP++

Page 7

12. Compliance with applicable law. Notwithstanding any review or approval of defendant's actions or submissions by the plaintiff or the State pursuant to this Decree, all activities undertaken by defendant pursuant to this Decree shall be performed in accordance with the requirements of all applicable federal and state laws and regulations.

VI. PERFORMANCE OF SPILL CLEANUP AND PREVENTION MEASURES

BY DEFENDANT

13. Spill Cleanup Plan. Defendant has completed and EPA has approved the cleanup of the Spill in accordance with the specifications and timetable contained in the Spill Cleanup Plan (Appendix A).

14. Spill Prevention Plan. Defendant shall complete the spill prevention measures in accordance with the specifications and timetable contained in the Spill Prevention Plan (Appendix B).

VII. ACCESS TO PROPERTY AND INFORMATION

15. Defendant agrees, to the extent it controls access, to provide the United States and its representatives, including EPA, the Coast Guard, and their contractors, immediate access at all reasonable times to any property to which access is required for any purpose relating to assessment of defendant's compliance with this Decree.

16. Defendant shall provide plaintiff, upon request, copies of all documents and information within its possession or control or that of its contractors or agents containing factual information relating to business and removal activities at the site of the Spill or to the implementation of this Decree, including, but not limited to, reports, correspondence, or other documents or information related to the work performed pursuant to Appendices A and B. ++EP++

Page 8

Defendant shall also make available to plaintiff for purposes of investigation, information gathering, or testimony, its employees, agents, or representatives with knowledge of relevant facts concerning the performance of the work required in Appendices A and B.

17. The United States retains, and nothing herein shall limit, all of its access and information-gathering authorities and rights, including related enforcement authorities under the CWA as amended by OPA and other applicable federal law or regulation.

VIII. REPORTING REQUIREMENTS

18. Upon the completion date for each milestone as specified in Appendix B, Defendant shall report on the status of the work required to satisfy that milestone and shall notify EPA of any change in the schedule described in Appendix B for the performance of any activity required by this Decree, no later than seven days prior to the scheduled performance of the activity.

19. All reports and other documents submitted by defendant to plaintiff which purport to document defendant's compliance with the terms of this Decree shall be signed by an authorized representative of the defendant. ++EP++

Page 9 IX. PROJECT COORDINATORS

20. Within twenty days of lodging this Decree, the parties will notify each other, in writing, of the names, addresses and telephone numbers of their respective designated Project Coordinators. If a Project Coordinator initially designated is changed, the identity of the successor will be given to the other parties at least five working days before the changes occur, unless impracticable, but in no event later than the actual day the change is made. In the event all work set out in Appendices A and B has been completed before the entry of this Decree, defendant shall provide the requisite information concerning its Project Coordinator in order to obtain written confirmation of the satisfactory completion of work in accordance with Section X. SATISFACTORY COMPLETION OF WORK, below.

21. Plaintiff's Project Coordinator shall serve as and have the authority lawfully vested in an On-Scene Coordinator (OSC) by the National Contingency Plan, 40 C.F.R. Part 300.

X. SATISFACTORY COMPLETION OF WORK

22. The Spill Cleanup Plan (Appendix A) has been satisfactorily performed by defendant.

23. Within thirty days after the Spill Prevention Plan has been fully performed, defendant shall submit a written report requesting confirmation to EPA for approval, with a copy to the State Department of Ecology. In the report, a registered professional engineer and the defendant's Project Coordinator shall state that the Spill Prevention Plan has been completed in full satisfaction of the requirements of this Decree. ++EP++

Page 10

Unless waived in writing by the United States, the written report shall include as-built drawings signed and stamped by a professional engineer. The report shall also contain the following statement, signed by a responsible corporate official of defendant:

To the best of my knowledge, after thorough investigation, I certify that the information contained in or accompanying this submission is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

24. If EPA concludes, in its sole discretion, based on the initial or any subsequent report, that the work set out in the Spill Prevention Plan has been satisfactorily completed, EPA shall so state in writing.

25. If, after review of the written report and the opportunity for any inspections of the work performed pursuant to Appendix B, EPA determines that the Spill Prevention Plan has not been completed in accordance with this Decree, EPA will notify defendant in writing of the deficiencies and may set forth specifications and a schedule for performance of such activities consistent with the Decree, or require the defendant to submit a schedule and specifications to EPA for approval. Defendant shall timely perform all activities described in the schedules established pursuant to this Paragraph, subject to its right to invoke the dispute resolution procedures set forth within this Decree. ++EP++

Page 11 XI. FORCE MAJEURE

26. "Force majeure," for purposes of this Consent Decree, is defined as any event arising from causes beyond the control of defendant or of any entity controlled by defendant, including, but not limited to, its contractors and subcontractors, that delays or prevents the performance of any obligation under this Consent Decree despite defendant's best efforts to fulfill the obligation. The requirement that the defendant exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the Work or a failure to satisfy the requirements of Section X. Satisfactory Completion of Work, above.

27. If any event occurs or has occurred that may delay the performance of any obligation under this Consent Decree, whether or not caused by a force majeure event, defendant shall notify orally EPA's Project Coordinator within 48 hours of when defendant first knew or should have known that the event might cause a delay. Within 5 days thereafter, defendant shall provide in writing to EPA an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; the defendant's rationale for attributing such delay to a force majeure event if it intends to assert such a claim; and a statement as to whether, in the opinion of the defendant, such event may cause or contribute to an endangerment to public health, welfare or the environment. ++EP++

Page 12

Defendant shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude defendant from asserting any claim of force majeure for that event. Defendant shall be deemed to have notice of any circumstance of which its contractors or subcontractors had or should have had notice.

28. If EPA agrees that the delay or anticipated delay is attributable to a force majeure event, the time for performance of the obligations under this Consent Decree that are affected by the force majeure event will be extended by EPA for such time as is necessary to complete those obligations. An extension of the time for performance of the obligations affected by the force majeure event shall not, of itself, extend the time for performance of any other obligation, unless the performance of the subsequent obligation is dependent on the completion of the obligation extended by force majeure. If EPA does not agree that the delay or anticipated delay has been or will be caused by a force majeure event, EPA will notify defendant in writing of its decision. If EPA agrees that the delay is attributable to a force majeure event, EPA will notify defendant in writing of the length of the extension, if any, for performance of the obligations affected by the force majeure event. ++EP++

Page 13

29. If defendant elects to invoke the dispute resolution procedures set forth in Section XVI. DISPUTE RESOLUTION, it shall do so no later than 15 days after receipt of EPA's notice. In any such proceeding, defendant shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a force majeure event, that the duration of the delay or the extension sought was or will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and that defendant complied with the requirements of Paragraphs 26 and 27, above. If defendant carries this burden, the delay at issue shall be deemed not to be a violation by defendant of the affected obligation of this Consent Decree identified to EPA and this Court.

XII. REIMBURSEMENT OF REMOVAL COSTS

30. Within thirty days of entry of this Decree, defendant shall pay to the United States $59,216.83, in reimbursement of its removal costs. ++EP++

Page 14 XIII. CIVIL PENALTIES

31. Within thirty days of entry of this Decree, in resolution of the civil claims arising out of the Spill, as described in the civil complaint herein, defendant U.S. Oil agrees to pay a civil penalty of $470,000. A payment of $425,000 will be made to the United States pursuant to Section 311(b)(7) of CWA, 33 U.S.C. Section 1321(b)(7). The remaining $45,000 penalty was assessed by the State of Washington and has already been paid by defendant.

XIV. STIPULATED PENALTIES

32. Defendant shall be liable for stipulated penalties in the amounts set forth below for failure to timely or satisfactorily complete the work in Appendix B or to timely make the payments required in this Decree.

a. For failure to timely or satisfactorily complete a

milestone in Appendix B:

days 1-15: $100 per day; days 16-30: $500 per day; thereafter: $1,000 per day.

b. For failure to timely make a payment required under

this Decree: $1,000 per day.

33. All stipulated penalties shall begin to accrue on the day after the complete performance is due or the day a violation occurs, and shall continue to accrue through the final day of the correction of the noncompliance or completion of the activity.

Separate penalties for separate violations of this Decree may accrue simultaneously. ++EP++

Page 15

34. If the United States determines that defendant has failed to comply with a requirement of this Decree, plaintiff may give defendant written notification describing the noncompliance and may send the defendant a written demand for the payment of the stipulated penalties. However, stipulated penalties shall accrue as provided in the preceding Paragraph regardless of whether plaintiff has notified defendant of a violation.

35. All penalties owed to the United States under this Section shall be due and payable within thirty days of defendant's receipt from plaintiff of a demand for payment of the penalties, unless defendant invokes the procedures under Section XVI. DISPUTE RESOLUTION, in which event stipulated penalties will continue to accrue, but shall be paid only if plaintiff ultimately prevails.

36. The payment of stipulated penalties shall not affect defendant's obligation to complete the performance of the work required in Appendix B or satisfy its other obligations under this Decree.

37. Nothing in this Decree shall be construed as limiting the ability of the United States to seek any other remedies or sanctions available by virtue of defendant's violation of this Decree. ++EP++

Page 16 XV. PAYMENT AND RELATED MATTERS

38. Manner of payment. All payments required under this Decree shall be by Electronic Funds Transfer (EFT or wire transfer) to the United States Department of Justice lockbox bank, maintained by the United States Attorney in the Western District of Washington, referencing the Civil Action number, OPA Number FPN 131009 and DOJ Case Number 90-5-1-1-3790. All payments shall be made in accordance with instructions provided by the Office of the United States Attorney, Western District of Washington, to the defendant upon execution of the Decree and shall specify whether made towards satisfaction of reimbursement of costs, civil penalties, or stipulated penalties. Any EFTs received at the lockbox bank after 11:00 A.M. (Eastern Time) will be credited on the next business day. With respect to all payments designated "civil penalties" or "reimbursement of costs," the United States Attorney shall advise its online accounting office to initiate an Online Payment and Collection (OPAC) transaction to ALC 69025102, which is the United States Coast Guard Finance Center (FINCEN). The OPAC transaction shall reference FPN 131009. With respect to all payments designated "stipulated penalties," the United States Attorney shall advise its online accounting office to direct payments to the United States Treasury.

39. Interest and other charges. If defendant fails to timely make any payment required under this Decree, then, commencing the day after payment is due, defendant shall be liable for interest on the unpaid balance at the federal judgment interest rate computed in accordance with 28 U.S.C. Section 1961 as of the date payment is due, and, if incurred, the costs of enforcement and collection pursuant to the Federal Debt Collection Procedure Act, 28 U.S.C. Section 3001 et seq., and stipulated penalties. ++EP++

Page 17 XVI. DISPUTE RESOLUTION

40. If defendant objects to any notification of deficiency, application of stipulated penalties, or any action taken by the United States pursuant to this Decree, defendant shall notify plaintiff in writing of its objection(s) within fifteen days of receipt of such notification or action and shall state the reasons therefor. If the parties cannot agree on any issue within twenty days, plaintiffs shall provide a written statement of its decision and the reasons therefore to defendant. If defendant does not agree with the plaintiff's decision, within fifteen calendar days of its receipt of plaintiff's written decision, defendant may petition this Court to resolve the dispute. In all disputes arising under this Decree which involve technical issues and expertise, defendant shall bear the burden of proving that plaintiff's decisions or actions were arbitrary and capricious. In all other disputes, the applicable law will apply. ++EP++

Page 18 XVII. COVENANT NOT TO SUE

41. Covenant Not to Sue. In consideration of and provided that Defendant is in timely compliance with the terms of this Decree including the requirements under Appendix B, plaintiff covenants not to sue or to take administrative action against defendant during and after the pendency of this Decree, for the claims contained in the complaint except as specifically provided in this Section. This Covenant Not to Sue applies only to claims which arose in connection with the Spill and extends only to defendant and its officers, directors, employees, successors, or assigns, and does not extend to any other person.

42. Reopener provisions. Notwithstanding any other provision of this Decree, plaintiff reserves, and this Decree is without prejudice to, the right to institute proceedings in this action or in a new action, or to issue administrative orders in connection with the Spill, if after entry of this Decree, plaintiff receives material information previously unknown to it indicating:

(i) the presence of additional oil attributable to the Spill in waters of the United States or the adjoining shoreline, and

(ii) that the actions taken in accordance with Appendices A or B do not adequately protect the public or the environment from the discharge of oil into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone in such quantities as may be harmful. ++EP++

Page 19

43. For purposes of the preceding Paragraph, the information previously received by, and the conditions known to the plaintiff, shall include that information contained in the document labeled Appendix C, and any information received by the plaintiff prior to the entry of this Decree.

44. General reservations of rights. This Decree is without prejudice to all rights against defendant with respect to any claims not expressly set forth in the complaint, including but not limited to, the following:

a. claims for damages for injury to, destruction of, loss of use of, or loss of natural resources, or for costs or damages that have been or may be incurred by any federal agencies acting as trustees for natural resources;

b. claims against the United States or the Oil Spill Liability Trust Fund (the Spill Fund) for costs and damages, including but not limited to claims under OPA brought by the United States on behalf of the Spill Fund pursuant to 33 U.S.C. Section 2715;

c. claims arising under laws and authorities other than the CWA as amended by OPA, such as potential claims arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq.; and ++EP++

Page 20

d. criminal liability.

45. Plaintiff retains all authority and reserves all rights to take any and all response actions otherwise authorized by law.

46. In the event that plaintiff institutes a new action pursuant to this Section, or any other authority of law, seeking additional penalties, remedial measures, reimbursement of costs incurred in implementing such additional measures, or any other reimbursement or damages related to or arising out of the Spill, defendant hereby expressly reserves any and all rights, claims and defenses that it has or may have in the future.

47. This Decree shall not affect parties' rights against any person or entity not a party to this Decree. No person or entity other than the parties shall have the authority to seek to enforce the terms of this Decree.

48. In any subsequent administrative or judicial proceeding initiated by the United States for injunctive relief, recovery of response costs, or other appropriate relief, defendant shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the Covenant Not to Sue set forth in this Section. ++EP++

Page 21 XVIII. COVENANTS BY DEFENDANT

49. Defendant hereby covenants not to sue, and agrees not to assert any claims or causes of action against, the United States under CWA or OPA with respect to the events that are the subject of the complaint and this Decree, including, but not limited to, any direct or indirect claim for reimbursement from the Spill Fund or under any other provision of law, or for events arising out of removal activities in connection with the Spill, including but not limited to, activities conducted pursuant to paragraphs 13-14 of this Decree.

XIX. RETENTION OF RECORDS

50. Until two years after defendant's receipt of written confirmation of satisfactory completion of work in accordance with Section X. SATISFACTORY COMPLETION OF WORK, defendant shall preserve and retain all records, documents or other information in its possession or control or which come into its possession or control that relate to the performance of the work in the Spill Cleanup and Prevention Plans, or to the liability of any person for removal actions conducted or to be conducted at the situs of the Spill, regardless of any corporate retention policy to the contrary. Defendant shall also instruct its contractors and agents to preserve all such documents, records and information for the same time period. Termination of this Decree pursuant to Section XXI. EFFECT OF DECREE, RETENTION OF JURISDICTION, TERMINATION shall have no effect on the retention requirements in this Section. ++EP++

Page 22

51. After conclusion of this retention period, defendant shall notify the United States at least ninety days prior to the destruction of any such records, documents or information, and, upon request by the United States, shall deliver any such records or documents to plaintiff. If defendant asserts that any such documents, records or information are privileged under the attorney-client privilege or any other privilege recognized by federal law, the documents shall not be destroyed without plaintiff's consent, and defendant shall provide plaintiff with: 1) the title of the document, record, or information; 2) the date of the document, record, or information; 3) the name and title of the author of the document, record, or information; 4) the name and title of each addressee and recipient; 5) a description of the subject of the document, record, or information; and 6) the privilege asserted by defendant. However, no documents, reports or other information created or generated pursuant to the requirements of the Decree shall be withheld on the grounds that they are privileged.

52. Defendant hereby certifies that it has not altered, mutilated, discarded, destroyed or otherwise disposed of any records, documents or other information relating to its potential liability regarding the Spill since notification of potential liability by the United States or the State or the filing of suit against it regarding the Spill and that it has fully complied with any and all requests by plaintiff for information. ++EP++

Page 23 XX. NOTICES AND SUBMISSIONS

53. Whenever, under the terms of this Decree, written notice is required to be given or a report or other document is required to be sent by one party to another, it shall be directed to the individuals at the addresses specified below, unless those individuals or their successors give written notice of a change. All notices and submissions shall be considered effective upon receipt, unless otherwise provided.

As to the United States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611

Ben Franklin Station

Washington, D.C. 20044

Re: DJ 90-5-1-1-3790

and

Director, Waste Management Division and EPA's Project

Coordinator

United States Environmental Protection Agency

Region 10

1200-6th Avenue

Seattle, Washington, 98101

As to the defendant:

U.S. Oil's Project Coordinator

George Hills

U.S. Oil & Refining Co.

3001 Marshall Avenue

Tacoma, Washington 98421

(206) 383-1651 ++EP++

Page 24 XXI. EFFECT OF DECREE, RETENTION OF JURISDICTION,

TERMINATION

54. This Decree shall be considered an enforceable judgment for purposes of post-judgment collection in accordance with Rule 69 of the Federal Rules of Civil Procedure and other applicable federal statutory authority.

55. This Court retains jurisdiction over both the subject matter of this Decree and the defendant for the duration of the performance of the terms and provisions of this Decree for the purpose of enabling any of the parties to apply to this Court at any time for such further order, direction, and relief as may be necessary or appropriate for the construction or modification of this Decree, or to effectuate or enforce compliance with its terms, or to resolve disputes in accordance with Section XVI.

DISPUTE RESOLUTION.

56. This Decree shall terminate upon application of either party, with notice to the other, provided that defendant has satisfactorily performed all work required in Appendices A and B in accordance with Section X. SATISFACTORY COMPLETION OF WORK and EPA, after inquiry with the National Pollution Funds Center, determines that all payments required under this Decree have been made.

XXII. MODIFICATION

57. Material modifications to the Decree may be made only upon written approval of the United States, defendant, and this Court. Modifications that do not materially alter defendant's obligations under the Decree, including non-material modification of the schedules in Appendix B to reflect "linked" or "dependent" Milestones as referenced in Administrative Orders issued by the State, may be made without consent of this Court by written agreement between the parties. ++EP++

Page 25 XXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

58. Upon lodging of this Decree, U.S. Oil will submit to this Court, under seal, the financial information previously made available to the United States in the course of settlement negotiations to the United States, along with a cover letter from U.S. Oil, also submitted under seal, summarizing U.S. Oil's financial condition. Unless defendant waives confidentiality, these materials shall be available only to the parties and this Court.

59. This Decree shall be lodged with this Court for at least thirty days for public notice and comment in accordance with 28 C.F.R. Section 50.7. The United States reserves the right to withdraw or withhold its consent to the Decree if the comments disclose facts or considerations which indicate that the Decree is inappropriate, improper, or inadequate. Defendant consents to the entry of this Decree without further notice.

60. If this Court declines to approve this Decree in the form presented, this agreement is voidable upon written notice at the sole discretion of either party and the terms of the agreement may not be used as evidence in any litigation between the parties. ++EP++

Page 26 XXIV. SIGNATORIES/SERVICE

61. The undersigned representative of defendant and the Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice each certifies that he or she is fully authorized to enter into the terms and conditions of this Decree and to execute and legally bind the party whom he or she represents to this document.

62. Defendant shall identify, on the attached signature page, the name, address and telephone number of an agent who is authorized to accept service of process by mail on behalf of that party with respect to all matters arising under or relating to this Decree. Defendant hereby agrees to accept service in that manner and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including, but not limited to, service of a summons.

SO ORDERED THIS DAY OF , 1993.

United States District Judge ++EP++

Page 27

THE UNDERSIGNED PARTIES enter into this Consent Decree in the matter of United States v. U.S. Oil & Refining Co., relating to the Spill.

FOR THE UNITED STATES OF AMERICA

SIGNATURE ILLEGIBLE

MYLES E. FLINT

Acting Assistant Attorney General

/s/ SIGNATURE ILLEGIBLE

STEVEN R. BAER

Senior Counsel

SHARON ZAMORE

MIRIAM CHESSLIN

MARC E. GORDON

Trial Attorneys

Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice

P.O. Box 7611

Benjamin Franklin Station

Washington, D.C. 20044

(202) 514-2794 ++EP++

Page 28

MIKE McKAY

United States Attorney

BRIAN C. KIPNIS

Assistant United States Attorney

Western District of Washington

3600 Seafirst 5th Avenue Plaza

800-5th Avenue

Seattle, Washington 98104

(206) 553-7970 ++EP++

Page 29

HERBERT H. TATE, Jr.

Assistant Administrator for Enforcement

DAVID DRELICH

Senior Attorney

Office of Enforcement-Water

United States Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

(202) 260-2949 ++EP++

Page 30

DANA A. RASMUSSEN

Regional Administrator

KEITH E. COHON

Assistant Regional Counsel

United States Environmental Protection Agency

Region 10

1200-6th Avenue

Seattle, Washington, 98101

(206) 553-2149 ++EP++

Page 31

J. P. WIESE, Captain

Chief, Claims and Litigation Division

Office of the Chief Counsel

United States Coast Guard

2100-2nd Street, S.W.

Washington, D.C. 20593 ++EP++

Page 32

RONALD S. MATTHEW, Captain

District Legal Officer

13th Coast Guard District

Jackson Federal Building

915-2nd Avenue, Room 3460

Seattle, Washington 98174-1067

(206) 553-7953 ++EP++

Page 33

THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v. U.S. Oil & Refining Co.

FOR U.S. OIL & REFINING CO.

DIANNE H. KELLY, Esq.

Akin, Gump, Strauss, Hauer & Feld

1333 New Hampshire Avenue, N.W.

Suite 400

Washington, D. C. 20036

(202) 887-4292

Agent authorized to accept service on behalf on defendant:

Name:

Title:

Address:

Tel. Number: ++EP++

APP A-1 APPENDIX A - SPILL CLEANUP PLAN

U.S. Oil has satisfactorily completed the following milestones:

1. Remove oil-contaminated beauty bark (herein defined as "dangerous waste fuel") and burn it in an industrial or utility boiler in compliance with WAC 173-303-530(2). U.S. Oil shall comply with the requirements in WAC 173-303-510 except as specified in the Administrative Order issued by the State of Washington on January 22, 1991.

2. Construct waste containment area as per specifications submitted to the Washington Department of Ecology pursuant to the Administrative Order issued by State of Washington on January 18, 1991.

3. Remove oil-contaminated materials from the area of the pipeline break to containers for disposal at TSD facility, in accordance with WAC 173-303-141, or to the containment area located on U.S. Oil property.

4. Submit a sampling and analysis plan ("cleanup plan") to the Washington Department of Ecology and the United States Environmental Protection Agency that describes measures taken to demonstrate that all contaminated materials have been removed from the spill site.

5. Begin implementation of said plan immediately after approval by Washington Department of Ecology of plan and removal of contaminated materials, and submit results to Washington Department of Ecology.

6. Submit a sampling and analysis plan ("designation plan") to the Washington Department of Ecology that describes procedures to properly designate the material removed to the contaminated area, in accordance with WAC 173-303-070 and the Administrative Order issued by the State of Washington on January 22, 1991.

7. Begin implementation of said plan immediately after Washington Department of Ecology's approval and submit results to Ecology for review and approval.

8. Within thirty (30) days of determination of designation, submit to the Washington Department of Ecology plans and schedule identifying time frames for removal of oil-contaminated materials from the containment area for ultimate disposal in accordance with WAC 173-303. ++EP++

APP A-2

9. Begin implementation of said plan immediately after Washington Department of Ecology's approval.

10. Submit a comprehensive report of oil spill incident as outlined in the Administrative Order issued by the State of Washington on January 29, 1991. ++EP++

APP B-1 APPENDIX B - SPILL PREVENTION PLAN

U.S. Oil shall complete the following milestones on or before the dates/1/ indicated below, unless modified by the State of Washington, in which case the modified date shall become the Milestone completion date for purposes of this decree, upon written notice to the United States by the State pursuant to Paragraph 53 of this decree.

((/1/ Milestones which have already been completed are noted.))

Date Milestone Completed 1. Install PPA leak detection system on transfer lines running from Dock to the Refinery. Pending 2. Conduct evaluation of leak detection system within 12 months of adoption of Ecology's Oil Spill Prevention Plan and submit results to Ecology. Completed 3. Investigate need for additional expansion loops on transfer lines and install as required. Completed 4. Replace line markers which do not have U.S. Oil's name and phone number with ones that do. Completed 5. Clear/grub right-of-way from NW side of Northwest Wire and Rope to spill site (where the pipes turn 90 degrees) and along the east side of Port of Tacoma Road from where our dock lines go underground to where they turn east and run under Port of Tacoma Road. Completed 6. Patrolling line every two (2) weeks to be included in new inspection program. Completed 7. Patrol pipelines inside refinery and Dock boundaries and easement (between the Refinery and Dock) during transfer of crude and/or products. This patrol shall occur on a daily basis (during Day shift) when transfers are taking place. 12/31/93 8. Install gear reducers on critical pipeline isolation valves to allow closing in a timely fashion. ++EP++ APP B-2 Date Milestone Completed 9. Establish Preventative Maintenance Work Orders (PMWO's) on all the dock line valves to ensure they are externally inspected maintained twice per year at intervals not to exceed seven and one-half months. Completed 10. Establish PMWO's to test the dock line Pressure relief Valves (PRV) each year at intervals not to exceed fifteen months. 6/30/93 11. Evaluate pressure relief of all transfer pipelines from the transfer pumps to Dock face and install additional PRV's if required. Completed 12. Install a sign at entrance to dock and Lincoln Ave. with U.S. Oil's name and emergency phone number. 6/30/93 13. Review U.S. Oil and Refining Co's SPCC and Facility Operating Manual to assure compliance with the requirements of ANSI B31.4, 49 CFR 195 and WAC 173-181. Completed 14. Generate detailed drawings of dock transfer lines for use in establishing uniform inspection points, documenting corrosion protection information, documenting cover, locating PRV points and locating underground lines and road crossings (inside as well as outside Refinery). 12/31/95 15. Evaluate need for cathodic protection on all buried portions of lines and install if required. 6/30/94 16. Upgrade support on lines where they run N-S along the railroad tracks inside the Refinery by TKS 80009-15. Supports shall be constructed to applicable API, ANSI and ASME standards. 9/30/95 17. Install supports for the 10" line running N-S on the west side of the road from TK 80009- 80015. Supports shall be constructed to applicable API, ANSI and ASME standards. 6/30/93 18. Upgrade pipe supports under dock lines running from Port of Tacoma Road to Dock 1

++EP++

APP B-3 Date Milestone Supports shall be constructed to applicable API, ANSI and ASME standards. 9/30/95 19. Upgrade pipe supports under the 10" line running from J1-J1A to the road crossing SW of TK 80009. Supports shall be constructed to applicable API, ANSI and ASME standards. 9/30/95 20. Upgrade pipe supports for the three (3) 8" lines running N-S from the B Area to SW of TK 80009. Supports shall be contructed to applicable API, ANSI and ASME standards. 9/30/93 21. Paint lines at Lincoln Ditch. 9/30/95 22. Paint underside of all lines where they were partially buried. 9/30/93 23. Paint expansion joint at the oil spill site. 9/30/93 24. Paint all lines where they pass through the Lincoln Vault. Completed 25. Dig exploratory bell holes at the following locations: 90 degree bend NW of TK 80015, across the road from the bend, 90 degree bend NW of Northwest Wire and Rope, east of expansion loop at oil spill site, in the parking lot north of the Portside Restaurant, east of Port of Tacoma Road across the street from the Portside Restaurant, and 90 degree bend at the entrance to the dock. 6/30/93 26. Install barriers, pipeline markers and chain to provide adequate protection for the buried portion of the pipelines at the Northwest corner of the Refinery. 6/30/93 27. Provide adequate protection for the pipeway in the easement crossing Northwest Wire and Rope. Completed 28. Evaluate cover requirements at Portside Restaurant/Ehrdahl Parking Lot. Install adequate cover/protection, if required, per applicable API, ANSI and ASME standards. 6/30/95 29. Provide protection along the easement from the end of the Ehrdahl parking lot to Northwest Wire and Rope. ++EP++ APP B-4 Date Milestone 9/30/93 30. Provide protection (i.e. additional cover or guardrail) to the east of Port of Tacoma Road. 9/30/95 31. Install line protection (impact) for 10" line from north of TK 80003 to Refinery border. Investigate rerouting the 10" line in this location. 6/30/94 32. Install line protection (impact) for 16" line running E-W north of TK 80001-3. 6/30/95 33. Install line protection (impact) for pipelines running N-S from TK 80009 to TK 80015. Completed 34. Install line protection (impact) from Dock 2 ramp to the new shoreside bollard. 9/30/95 35. Reroute a section of 10" line from west of the API Separator to west of 35001. Completed 36. Install link seals on each end of the pipes under Lincoln Ave. and the vault. 9/30/95 37. Evaluate need to install casing or cover on the 10" line where it goes beneath the Exchanger Shed access, Scrap Area access and other access roads West of Tks 80009-80015. Results of evaluation will be submitted to Ecology and casing and/or cover will be upgraded to applicable API, ANSI and ASME standards as required. 9/30/95 38. Evaluate need to install casing or cover on the three (3) 8" lines under the road NW of TK 24001 and NW of TK 80001. Results of evaluation will be submitted to Ecology and casing and/or cover will be upgraded to applicable API, ANSI and ASME standards as required. 6/30/94 39. Evaluate need to install casing or cover on the 16" line NW of TK 80001. Results of evaluation will be submitted to Ecology and casing and/or cover will be upgraded to applicable API, ANSI and ASME standards as required. ++EP++ APP B-5 Date Milestone 9/30/95 40. Evaluate need to install casing or cover on the 10" line NW of TK 35001. Results of evaluation will be submitted to Ecology and casing and/or cover will be upgraded to applicable API, ANSI and ASME standards as required. 6/30/93 41. Evaluate need to install casing or cover on all lines under the Clean Sound launch access south of Dock 1. Results of evaluation will be submitted to Ecology and casing and/or cover will be upgraded to applicable API, ANSI and ASME standards as required. Completed 42. Survey northern tip of refinery to evaluate need for berm placement to divert oil flow from Lincoln Ditch. 9/30/93 43. Install berm if appropriate to prohibit drainage into Lincoln Ditch/surrounding property at northern Refinery limit. 9/30/93 44. Evaluate need, and install as necessary, a berm along shoreline and along south side of pipeway at the Dock to divert oil from Blair Waterway. ++EP++ APP C-1 APPENDIX C - ADMINISTRATIVE RECORD

1. EPA: Logbook kept during spill response by Carl Kitz, EPA On-Scene Coordinator.

2. EPA: Final On-Scene Coordinator's Report from U.S. Oil and Refining Company, Tacoma, Washington; TDD T10-9105-009, prepared by Ecology & Environment, Inc., dated March, 1992.

3. EPA: Letter from Carl Kitz to Cmdr. Robert Douville, United States Coast Guard, describing costs incurred by United States in monitoring and oversight of spill response.

4. U.S. Oil: Comprehensive Report of 1/6/91 U.S. Oil & Refining Co. Oil Spill.

5. United States Coast Guard: Pacific Area Strike Team -- NSF, Incident Summary Report, U.S. Oil Pipeline Spill, Tacoma, Washington, 08 January - 22 January, 1991.

6. State: Field compliance letter dated 1/11/91.

7. State: Letter dated 2/8/91 to Riley from McCall confirming date of burning of beauty bark.

8. State: Letter dated 2/28/91 to Riley from Burkhalter authorizing discharge from site of 1/6/91 spill to Blair Waterway and specifying conditions of authorization.

9. U.S. Oil: Letter dated 4/19/91 from Riley to McCall with attached soil sample results.

10. State: Letter dated 6/5/91 to Temple from White regarding proposed findings of potential liability of U.S. Oil.

11. State: Letter dated 6/17/91 to Cabodi from Sorlie with attached response cost information.

12. State: Letter dated 7/8/91 to Temple from White regarding determination of potentially liable person status.

13. State: Letter dated 9/11/91 to Cabodi from Sorlie with attached Administrative Order.

14. State: Letter dated 11/25/91 to Cabodi from White with attached Agreed Order.

15. State: Letter dated 12/2/91 to Cabodi from Sorlie with attached Notice of Penalty Incurred and Due. ++EP++

APP C-2

16. State: Letter dated 1/22/91 to U.S. Oil from Burkhalter with attached Administrative Order.

17. State: Letter dated 1/29/91 to U.S. Oil from Burkhalter with attached Administrative Order.

18. State: Letter dated 9/8/92 to Cabodi from Vial with attached Agreed Order. ++EP++

ORVILLE BAILEY AND JANET BAILEY

01 OF 01

STIPULATION AND CONSENT DEC

10-91-C010

CWA

87-3117

10

STIPULATION AND CONSENT DECREE, US V ORVILLE BAILEY AND JANET BAILEY

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,

Plaintiff,

v. ORVILLE BAILEY AND JANET BAILEY,

Defendants.

Plaintiff, the United States of America, on behalf of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps), having filed a complaint herein on November 3, 1987, alleging that defendant has violated the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the parties by their attorneys having consented to entry of this Decree;

NOW, THEREFORE, before the taking of any testimony herein, and without trial or adjudication of any issue of fact or law herein, and upon consent of the parties, it is HEREBY STIPULATED AS FOLLOWS: ++EP++

Page 2 I. Jurisdiction

1. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. Section 1331, 28 U.S.C. Section 1345 and Section 309(b) of the Clean Water Act, 33 U.S.C. Section 1319(b), and jurisdiction over the parties hereto. The Complaint filed herein states a claim upon which relief may be granted against the defendants.

2. Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b), and CWA section 309(b), 33 U.S.C. Section 1319(b).

II. Applicability

3. The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, servants, employees and successors or assigns.

4. The transfer of ownership or other interest by the defendants in the real property which is the subject of this case shall not alter or relieve the defendants of their obligation to comply with all the terms of this Consent Decree. Any defendant making a transfer of ownership of any interest in the property prior to the termination of the terms of this Consent Decree shall notify EPA of such transfer and shall reserve such rights as are necessary to successfully comply with the terms of this Consent Decree.

5. This Consent Decree shall constitute a complete and final settlement of all civil claims and allegations set forth in the complaint against the defendants who are parties to this Consent Decree. ++EP++

Page 3

6. This Consent Decree shall not constitute and shall not be interpreted to be a permit to discharge pollutants pursuant to CWA section 404, 33 U.S.C. Section 1344.

7. This Consent Decree in no way affects or relieves the defendants of their obligations to comply with any federal, state, or local law, regulation or permit. In particular, but without limitation, defendants shall obtain all necessary permits under Section 404 of the Clean Water Act, 33 U.S.C. Section 1344, prior to carrying out restoration under this Decree that involves discharges of dredged or fill material to waters of the United States.

III. Findings of Fact

8. Defendants own property located on the north end of Priest Lake in Bonner County, Idaho. The property is located in the northwest 1/4 of Section 10 T. 62 N., R. 4 W., Boise Meridian, and is indicated on the map that is Attachment 1 to this Stipulation and Consent Decree. The property is immediately adjacent to Priest Lake, which is "waters of the United States" within the meaning of Section 502(7) of the Clean Water Act, 33 U.S.C. Section 1362(7). The real property which is the subject of this case are those portions of the defendants' property which are "wetlands" as defined by 40 C.F.R. Section 122.2 and 33 C.F.R. Section 328.3 (b) and which are designated "wetlands" on the aerial photograph that is labelled Map A and attached to this Stipulation and Consent Decree. ++EP++

Page 4

9. Defendants have discharged dredged and fill material, consisting of sand and rock, on portions of the above-referenced property that are "wetlands" as defined by 40 C.F.R. Section 122.2 and 33 C.F.R. Section 328.3(b). The affected areas, described in paragraphs 10-13 below, are wetlands as identified by their degree of soil saturation and inundation, by the prevalence of vegetation that is typically adapted for life in saturated soil conditions, and by fibrous peat, muck, and sandy soils that indicate long-term soil saturation or inundation in those areas. Defendants have filled approximately three acres of such wetlands, with a total of approximately 14,000 cubic yards of material.

10. During the period from August 1981 to September 1983, defendants discharged approximately 7,100 cubic yards of dredged or fill material onto approximately 1.5 acres of wetlands. These areas of discharge are near the southern and the western boundaries of the property. The wetlands include areas dominated by vegetation such as spirea, sedges and rushes which require saturated soil conditions for survival, and sandy and peat soils which are inundated or saturated for a significant period of the growing season.

11. During the period from September 1983 to July 1984, defendants discharged approximately 6,400 cubic yards of dredged or fill material onto approximately 1.3 acres of wetlands. These areas are near the southwestern and western boundaries of the property. These wetlands include the same areas of sedge meadow and spirea thicket referred to in paragraph 10. ++EP++

Page 5

12. During the period from July 1984 to June 1985, defendants discharged approximately 560 cubic yards of dredged or fill material onto approximately 0.1 acre of wetlands. These areas are along the road on the western boundary of the property. These wetlands include the spirea thicket area referred to in paragraph 10.

13. During the period from June 1985 to July 1986, defendants discharged approximately 40 cubic yards of dredged or fill material onto approximately 740 square feet of wetlands. This area is on the east side of the road near the eastern boundary of the property. This area is composed of peat soils which are inundated or saturated at the surface and are dominated by vegetative species which either require or are typically adapted to saturated soil conditions.

14. Defendants have not been issued a permit to discharge dredged or fill material pursuant to Section 404 of the Clean Water Act, 33 U.S.C. Section 1344, nor did defendants apply for such permit prior to the fill activities described in this decree. On or about May 15, 1987, July 14, 1987, and August 28, 1987, defendants applied for a permit to authorize proposed new fill and to authorize, after-the-fact, the fill placement described in this decree. The U.S. Army Corps of Engineers is prohibited from processing these applications pending resolution of these legal proceedings in accordance with 33 C.F.R. 326.3 (e)(ii).

15. Representatives of the Walla Walla District of the Corps and EPA conducted inspections of the property described in paragraph 8, on July 24, 1984, July 16-18, 1985, and on August 6-7, 1986. ++EP++

Page 6

These site inspections confirmed the existence of wetlands on the property and documented unpermitted discharges of dredged or fill material to these wetlands. The Corps issued Violation Notices or Cease and Desist Orders to Mr. Bailey on the following dates: July 30, 1984; July 23, 1986; and February 24, 1987. These orders informed Mr. Bailey that his unpermitted discharges to wetlands were violations of federal law and that he should cease any further unpermitted discharges.

16. On November 15, 1984, Mr. Orville Bailey and his attorney met with representatives from the Corps and EPA. Defendant was advised of the Corps permitting process under the Clean Water Act, 33 U.S.C. Section 1344. Defendant agreed to cease all discharges of dredged or fill material to area that had been determined to be wetlands as of November 22, 1984.

17. Based on information gathered by Corps and EPA representatives during site inspections the Corps issued a Wetland Determination Report on January 8, 1986, and an addendum to the wetland determination on February 24, 1987. These reports formally evaluated the extent and type of wetlands present on the Bailey property based on soil, hydrological, and vegetative sampling.

IV. Conclusions of Law

18. The material discharged by defendants is a "pollutant" as defined by Section 502(6) of the Clean Water Act, 33 U.S.C. Section 1362(6). The material specifically is dredged or fill material as defined in the Corps regulations at 33 C.F.R. Section 323.2(c) and (e). Defendants Orville and Janet Bailey are persons within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5). ++EP++

Page 7

19. The discharges of dredged or fill material by defendants are "discharges of a pollutant" as defined by Clean Water Act Section 502(12), 33 U.S.C. Section 1362(12).

20. The earth-moving equipment employed by defendants to discharge fill materials are "point sources" as defined by CWA Section 502(14), 33 U.S.C. Section 1362(14).

21. The wetlands to which defendants have discharged pollutants are "waters of the United States" within the meaning of Section 502(7) of the Clean Water Act, 33 U.S.C. Section 1362(7).

22. Defendants' discharges of dredged or fill material into wetlands on their property as described in paragraphs 10-13 above were not in compliance with any permit issued under Clean Water act Section 404, 33 U.S.C. Section 1344, and therefore violated Section 301(a) of the Clean Water Act, 33 U.S.C. Section 1311(a).

V. Remedial Action

NOW, THEREFORE, based on the foregoing, and with the consent of the parties it is hereby ORDERED:

Cessation of Unauthorized Discharges

23. Defendants are permanently enjoined from discharging dredged or fill material into wetlands or other waters of the United States except in compliance with a permit issued by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act, 33 U.S.C. Section 1344.

Stipulation Regarding Removal of Fill

24. On October 16, 1989, the Corps of Engineers inspected defendants' property and determined that the removal of fill and disposal as required by the "Restoration Plan" (Attachment II, Paragraphs 1 through 8), had been completed in accordance with the requirements of the plan. ++EP++

Page 8

Consequently, EPA and the Corps stipulate that the defendants have complied with these requirements of the restoration measures in the Consent Decree. The restoration requirements which have not been completed concern revegetation of the fill areas as detailed in paragraph 10 of the Restoration Plan (Attachment II of this Decree).

Site Restoration and Rehabilitation

25. Defendants shall carry out in a workmanlike manner the restoration measures specified in the attached document entitled "Restoration Plan For Bailey Property" that is Attachment II to this Decree and is herein incorporated by reference. This Attachment generally calls for removal of fill from specified areas, proper disposal of the removed fill and revegetation in the areas from which fill is removed.

Designated Project Coordinators

26. All reports, plans, and other documents to be submitted pursuant to the Restoration Plan of this Decree shall be sent to designated Project Coordinators. The designated Project Coordinator for EPA is John Olson, Environmental Protection Specialist. The designated Project Coordinator for the Corps is A. Bradley Daly, Environmental Resource Specialist. The designated Project Coordinator for the defendants is Orville Bailey. ++EP++

Page 9

John Olson

Idaho Operations Office

U.S. Environmental Protection Agency

422 West Washington Street

Boise, Idaho 83702

(208) 334-9488

and

A. Bradley Daly

Environmental Resource Specialist

Walla Walla District Army Corps of Engineers

Building 602, City-County Airport

Walla Walla, Washington 99362

(509) 522-6724

Access

27. Defendants shall allow any authorized representative of EPA or the Corps of Engineers, upon presentation of his or her credentials, to enter upon any site that is the subject of this action to monitor compliance with this Decree without any advance notice during the period of site restoration and revegetation as specified in the site restoration plan. Defendants shall be notified of any such inspection within 48 hours after the inspection. In the event of defendants' absence from the property, authorized representatives of EPA or the Corps may enter the site to monitor compliance with this Decree. Defendants may designate an on-site representative during their absence to whom authorized representatives of EPA or the Corps may present their credentials. Such designation must be communicated to the EPA and the Corps Project Coordinators. The authority of the United States to enter, conduct inspections, have access to records, or monitor compliance pursuant to any statute, regulation or court order is in no way limited by this Decree. ++EP++

Page 10 Stipulated Penalties for Future Violations of this Decree

28. Unless excused by the provisions of Part VII below, defendants shall incur, and pay within ten (10) days of receipt of written demand by the U.S., the following stipulated penalties for the failure to comply with the enumerated requirements of this Decree:

Amount per Day (for each day on which violation(s) Requirement occur) A. Complete site restoration by $1,500.00 the dates specified in the Restoration Plan, Attachment II.

29. Stipulated penalties made payable pursuant to paragraph 28 shall be paid by cashier's or certified check made payable to the "Treasurer, United States of America," and delivered to the Office of the United States Attorney, Federal Building, 550 West Fort Street, Boise, Idaho 83724. Upon making such payment, the defendants shall immediately notify the EPA of such payment by sending the EPA, at the address specified in Section X of this Consent Decree, copies of the check and the letter transmitting it to the United States.

30. Any dispute with respect to defendants' liability for a stipulated penalty shall be resolved by this Court.

31. The provisions of paragraphs 28-30 shall not be construed to limit any other remedies, including but not limited to institution of proceedings for civil or criminal contempt, available to plaintiff for violations of this Consent Decree or any other provision of law. ++EP++

Page 11 VI. Civil Penalties for Past Violations

32. In full settlement of the Complaint of the United States in this matter, defendants agree to pay a civil penalty in the amount of $5,000. Payment of $2000 shall be made within thirty (30) days of the date of entry of this Decree. The balance of the penalty ($3000) shall be paid, together with simple interest thereon accruing at the rate of 9% per annum, in accordance with the following schedule: a payment of $1500 plus interest within one year of the date of entry of this Decree, and a payment of $1500 plus interest within two years of the date of entry of this Decree. Payments of principal and interest may be made in advance of the above referenced due dates. Payments of such penalty shall be made by cashier's or certified check, made payable to "Treasurer, United States of America," and delivered to the Office of United States Attorney, Federal Building, 550 West Fort Street, Boise, Idaho 83724. A copy of all checks and submittals as required above shall be sent to EPA Region 10 and the Walla Walla District of the Army Corps at the addresses specified in Section X.

33. In the event that voluntary payment of the civil penalty assessed in this Decree is not made, without further order of this Court, this Decree shall be considered an enforceable judgement for purposes of post judgment collection in accordance with Fed. R. Civ. P. 69 and other federal statutory authority.

VII. FORCE MAJEURE

34. If the defendants fail to comply with the terms of this Decree and the defendants show by clear and convincing evidence that noncompliance was caused by circumstances beyond the defendants' control which could not be avoided by due diligence, the failure to comply will not be a violation of this Decree and will not result in liability for stipulated penalties or other sanctions. ++EP++

Page 12

To the extent noncompliance is caused by circumstances beyond the defendants' control which could not be avoided by due diligence, the revegetation program schedule in paragraph 10 of the "Restoration Plan" shall be adjusted to account for the delay.

35. The defendants shall promptly notify EPA Region 10 in writing of any occurrence which may result in noncompliance with the requirements of this Decree which is caused by circumstances beyond the defendants' control and which could not be overcome by due diligence. In their notice the defendants shall state the nature of the noncompliance, the reasons for it, the expected duration, and the actions they will take to mitigate further noncompliance.

36. The defendants' obligation to meet any requirement set out in this Decree may only be excused to the extent that the failure or delay arises out of a cause beyond control of, and without the fault of, the defendants. These causes shall be limited to acts of God, fires or floods, but in every case the failure or delay must be beyond the control and without the fault of the defendants. Changed business conditions, economic circumstances or increased costs of compliance shall not be considered circumstances beyond the control and without the fault of the defendants. ++EP++

Page 13 VIII. DISPUTE RESOLUTION

37. If a dispute arises among the parties regarding implementation or interpretation of this Decree, the parties shall attempt to resolve the dispute by informal negotiation. If the parties cannot resolve the dispute informally within 21 days, then EPA shall provide the defendants with a written statement of its position within 21 days thereafter. EPA's position will control unless the defendants petition the Court within 30 days after EPA's statement to decide the matter.

38. Any applicable stipulated penalties continue to accrue during dispute resolution.

IX. MODIFICATION AND INTERPRETATION OF DECREE

39. This Decree may be modified only with written consent of the parties and Court approval.

X. FORM OF NOTICE

40. Except as specified otherwise, when written notice to or communication with the United States Department of Justice, EPA Region 10, or the U.S. Army Corps of Engineers is required by the terms of this Decree, it shall be addressed as follows:

As to the United States:

Warren Derbridge

U.S. Attorneys Office

Federal Building

550 West Fort Street

Boise, Idaho 83724

As to EPA Region 10:

Adrianne Allen

Office of Regional Counsel (SO-125)

U.S. EPA - Region 10

1200 Sixth Avenue

Seattle, Washington 98101 ++EP++

Page 14

As to the U.S. Army Corps of Engineers:

John Stanford

District Counsel

U.S. Army Corps of Engineers

Building 602

City-County Airport

Walla Walla, Washington 99362

41. Notice to or communication with EPA or the United States will be considered submitted on the date it is postmarked and sent by certified mail, return receipt requested.

XI. PUBLIC COMMENT

42. Final approval by the United States and entry of this Decree is subject to the requirements of 28 C.F.R. Section 50.7, which provides for notice of the lodging of this Decree in the Federal Register, an opportunity for public comment, and consideration of any comments.

XII. COSTS AND FEES

43. Each party shall bear its own costs and attorney's fees in this action.

XIII. TERMINATION

44. This Court shall retain jurisdiction of this cause for the purpose of enabling any party to apply to the Court at any time for such further relief as may be appropriate to interpret, enforce, modify or terminate this decree. Otherwise, the obligations imposed by this Decree shall terminate on October 1, 1993, except that the United States may take action after that time to demand and collect accrued stipulated penalties for violations that have occurred during the pendency of the Decree. Should the requirements of the Decree be met prior to October 1, 1993, the United States will request termination of the Decree at that time. ++EP++

Page 15

Dated and entered this day of

UNITED STATES DISTRICT JUDGE ++EP++

Page 16

WE HEREBY CONSENT to the entry of this Decree, subject to the Public Notice requirements of 28 C.F.R. Section 50.7.

FOR THE UNITED STATES OF AMERICA:

ROBERT LEFEVRE

/s/ Robert Lefevre

Attorney

Environmental Defense Section

Environmental and Natural Resources

Division

United States Department of Justice

Washington, D.C. 20530

(202) 514-3170

MAURICE O. ELLSWORTH

United States Attorney

WARREN DERBIDGE

/s/ Warren Derbidge

Assistant United States Attorney

Federal Building

550 West Fort Street

Boise, Idaho 83724

(208) 334-1211

FOR DEFENDANTS:

Orville Bailey

/s/ Orville Bailey

Janet Bailey

/s/ Janet Bailey ++EP++

Page 17

LTC Robert D. Volz

/s/ Robert D. Volz

District Engineer

Walla Walla District

U.S. Army Corps of Engineers

(509) 522-6500

JAMES M. STROCK

/s/ James M. Strock

Assistant Administrator

Office of Enforcement

Environmental Protection Agency

Washington, D.C. 20460

(202) 382-4134

DANA A. RASMUSSEN

Regional Administrator

ADRIANNE ALLEN

/s/ Adrianne Allen

Assistant Regional Counsel

EPA Region 10

Seattle, Washington 98102

(206) 442-8694 ++EP++

ATT 1-1 PROPERTY OF ORVILLE AND JANET BAILEY PRIEST LAKE BONNER COUNTY, IDAHO LEGAL DESCRIPTION FOR ZONE CHANGE

That portion of the NW 1/4 and Government Lots 3 and 4 of Section 10, Township 62 North, Range 4 West, Boise Meridian, Bonner County, Idaho, described as follows:

Beginning at a point on the North line of said Section 10 at a distance of 466.40 feet East of the Northwest corner of said section; thence East along the North line of said section a distance of 2,183.40 feet to the North 1/4 corner of said section; thence South along the East line of Government Lot 3 a distance of 909.27 feet; thence leaving said East line 549 degrees 54'00" W, 126.82 feet; thence N62 degrees 36'00" W, 140.74 feet; thence 527 degrees 24'00" W, 10.00 feet; thence N62 degrees 36'00" W; 35.70 feet; thence 54 degrees 35'00" W, 339.20 feet to the shore line of Priest Lake; thence along the shore line 549 degrees 53'47" W, 553 feet, more or less to the northeast corner of Lot 29 of Sandpiper Shores Subdivision as recorded in the Records of Bonner County, Idaho; thence leaving said shoreline and along the North line of said subdivision 585 degrees 31'00" W, 200.00 feet to a left-hand curve having a radius of 60.00 feet; thence along said curve an arc distance of 92.99 feet to the end of said curve; thence S86 degrees 43'30" W, 675.82 feet; thence N78 degrees 51'07" W, 530.91 feet to a point lying 466.40 feet East of the West line of said Section; thence North on a line parallel with the West line of said section a distance of 1488.39 feet to the point of beginning. Approx. 65 acres. ++EP++

ATT 1-2 UNITED STATES DEPARTMENT OF THE INTERIOR GEOLOGICAL SURVEY MAP OMITTED ++EP++ ATT 2-1 RESTORATION PLAN FOR BAILEY PROPERTY

This plan outlines the steps to be taken to restore the wetland functions and values on the property of Mr. Orville Bailey.

1. Fill material shall be removed from the areas and to the levels specified below.

a. Fill Area No. 1 (as shown on Map A) is located adjacent to the eastern edge of Road 1 and approximately 250 feet south of the intersection of Roads 1 and 2. This L-shaped fill is described in the November 28, 1986, "Addendum to Wetland Determination Report" prepared by the Corps and is depicted in Map B. The fill covers approximately 740 square feet and consists of approximately 40 cubic yards of material. All of the fill within the limits of wetlands as shown on Map B must be removed down to the ground surface elevation of the adjacent wetlands. The northern portion of the fill shown on Map B is located in uplands and does not have to be removed. The fill must be removed to the toe of the shoulder of Road 1. This area will be marked with stakes by Corps or EPA personnel as indicted in paragraph 4.

b. Fill Area No. 2 (as shown on Map A) is located in the southeast portion of the property adjacent to the lake. It is a long, narrow fill running in a northeast/southwest direction along the shoreline of the lake. The fill begins approximately 140 feet to the east of the garage at the residence (labeled as R-1 on Map A) and extends in a northeasterly direction for a distance of approximately 300 feet. ++EP++

ATT 2-2

The fill is approximately 25 feet wide. The fill covers approximately 7500 square feet and consists of approximately 550 cubic yards of material. All fill in this area above elevation 2438.4 feet, mean sea level (i.e., 8 inches above the regulated lake level), as determined by Corps or EPA personnel, will be removed. This area will be marked with stakes by Corps personnel as indicated in paragraph 4.

c. Fill Area No. 3 (as indicated on Map A) is located north of Road 5. It is the easternmost of two fingers of fill material which extend to the north from Road 5 into wetlands. It is located approximately 700 feet west of the residence labeled as R-1 on Map A and approximately 750 feet to the east of Road 3. The southern portion of the fill is located in uplands but it extends to the north approximately 90 feet into wetlands. It is approximately 35 feet wide, covers approximately 3,500 square feet and consists of approximately 400 cubic yards of material. All fill in wetlands in this area must be removed down to the natural ground surface. This area will be marked with stakes by Corps or EPA personnel as indicated in paragraph 4.

d. Fill Area No. 4 (as indicated on Map A) is located along the north side of Road 5 and the east side of Road 4. This fill area extends to the east from Road 4 approximately 550 feet and includes the westernmost of the two fingers mentioned in paragraph 1.c. ++EP++

ATT 2-3

The fill extends approximately 150 feet to the north from Road 5, covers approximately 60,000 square feet and consists of approximately 6700 cubic yards of material. All fill in this area to the north of Road 5 must be removed except for a strip along Road 4 extending approximately 75 feet to the east directly south of the existing log pile. The fill must be removed down to the natural ground surface and back to the toe of the shoulder of Road 5. This area will be marked with stakes by Corps or EPA personnel as indicated in paragraph 4.

e. Fill Area No. 5 (as indicated on Map A) is located between Roads 3 and 4 and north of the existing sewage lagoon. Fill material extends approximately 540 feet north along Road 3. This fill covers approximately 56,000 square feet and consists of approximately 6,200 cubic yards of material. All fill material in this area must be removed down to the natural ground surface. The fill must be removed to the west and east to the toe of the shoulder of Roads 3 and 4. The fill must be removed to the south to a east-west line approximately 30 feet north of the sewage lagoon. This area will be marked with stakes by Corps or EPA personnel as indicated in paragraph 4.

f. Fill Area No. 6 (as indicated on Map A) is located on the east side of Road 4 approximately 65 feet directly east of the northeast corner of the sewage lagoon. The fill covers approximately 1000 square feet and consists of approximately 80 cubic yards of material. ++EP++

ATT 2-4

Removal of fill material from this area is not required.

2. All fills identified in paragraph 1 and shown on Map A will be removed to the levels specified using a backhoe, front-end loader, D-6 bulldozer, and trucks. The majority of the material will be removed using the backhoe, front loader, and D-6 operated from the existing fills or adjacent uplands. No additional fill may be placed in wetland areas to aid in the removal operation. No equipment, including but not limited to trucks, front-end loaders, backhoes, or other motorized vehicles may be operated in adjacent wetland areas. After the majority of the fill has been removed with the backhoe, front-end loader or D-6 bulldozer, the remainder of the fill material will be pushed to the edge of the adjacent upland areas with the D-6 bulldozer where it can be loaded into trucks with the backhoe or front-end loader. The trucks may not be operated in areas where fill material has been removed. Any fill material spilled into adjacent wetland areas must be removed.

3. All fill material removed shall be disposed of in upland (non-wetland) areas agreed to in advance by the Corps personnel. These disposal areas will be identified during the pre-removal inspection specified in paragraph 4. ++EP++

ATT 2-5

4. The Corps and EPA Project Coordinators shall be notified in writing at least 10 working days prior to the start of fill removal so that a pre-removal inspection can be arranged. At this inspection, the Corps or EPA representatives will stake the areas where fill material must be removed, review removal procedures and methods specified in paragraph 2, and inspect proposed disposal areas. The EPA representative is not required to be present at this inspection but will be if available. Following this inspection, Mr. Bailey will be informed by the Corps when fill removal areas have been staked, removal procedures and methods have been reviewed, and disposal areas have been inspected and approved. A map showing areas where the disposal of excavated fill material is approved will be included with the letter.

5. The Corps and EPA Project Coordinators must be notified by telephone at least 48 hours prior to the start of fill removal so that Corps or EPA representatives can be present to observe removal operations and insure compliance with fill removal procedures and methods specified in paragraph 2.

6. The Corps and EPA Project Coordinators must be notified by telephone on the first work day following the completion of the fill removal of each fill site so that an inspection may be conducted. ++EP++

ATT 2-6

7. Corps and EPA representatives will conduct an inspection within 10 working days of the completion of fill removal to determine whether the removal satisfactorily complies with the Restoration Plan. The EPA representative is not required to be present at this inspection but will be if available. The Corps and EPA representatives will determine whether additional work is needed to fully comply with the Restoration Plan, and the Corps will inform Mr. Bailey in writing within 10 working days after the inspection whether the work is satisfactory or if it is determined that additional work is required. If additional work is required, it will be specified in the letter along with a deadline for completion of the additional work.

8. The satisfactory removal of all fill material shall be completed by October 1, 1990.

9. The Corps Project Coordinator for this Restoration Plan will be Mr. A. Bradley Daly, U.S. Army Corps of Engineers, Walla Walla District, Walla Walla, Washington 99362; telephone (509) 522-6724. The EPA Project coordinator will be Mr. John M. Olson, U.S. Environmental Protection Agency, Idaho Operations Office, 442 West Washington Street, Boise, Idaho 83702; telephone (208) 334-9488. ++EP++

ATT 2-7

10. The areas from which fill is removed will be allowed to revegetate naturally. Once the fill is removed to the natural ground surface, the high water table and local seed source should facilitate natural revegetation provided the area remains undisturbed. These areas will be inspected in August or September of 1990, 1991 and again, if necessary, in 1992 to monitor the success of revegetation. An area will be determined to have successfully revegetated once it has reached or exceeded 80% coverage by hydrophytic species of the type found on adjacent wetland. These species include spirea, sedges and rushes. The progress of the revegetation will be evaluated by EPA and the Corps during the 1990 inspection, and EPA and the Corps will inform Mr. Bailey in writing, what, if any, additional measures are to be taken to assure revegetation. If after the 1991 inspection, successful revegetation has not been achieved, the Corps and EPA shall inform Mr. Bailey in writing of such additional measures that the Corps and EPA determine to be necessary to meet the above performance standard for successful revegetation. Such measures may consist of seeding and transplanting (and/or eliminating undesirable species). If EPA and the Corps determine that successful revegetation has not been achieved after the 1991 inspection, defendants' good faith performance of such additional measures as required by EPA and the Corps will be considered to constitute fulfillment of the requirements for revegetation in the Restoration Plan. Should EPA and the Corps determine that revegetation has been successful prior to the October 1, 1993 Decree termination date, ++EP++

ATT 2-8

they may request that the U.S. Attorney move for termination of the Consent Decree at that time. ++EP++

ATT 2-9 MAP A Orville Bailey Property Map Omitted ++EP++ ATT 2-10 MAP B Fill Area No. 1 Orville Bailey Property Map Omitted ++EP++

R & Y INC/RESSEL & YOUNG

01 OF 01

STIPULATION AND CONSENT DECREE

10-91-C009

CWA

MISC

19910723 19910723

AKD981769896

R & Y INC

ANCHORAGE, AK

A88-97 (CIV)

10

CONSENT DECREE, U.S.A V. R & Y, INC., MR. JOSEF RESSEL, MR. EDWARD YOUNG, AND EASTWIND, INC.

Page 1

RICHARD B. STEWART

ASSISTANT ATTORNEY GENERAL

ROBERT LEFEVRE, ATTORNEY

U.S. Department of Justice

Environment and Natural Resources Division

Washington, D.C. 20530

(202) 514-3170

WEVLEY WM. SHEA

UNITED STATES ATTORNEY

JOSEPH W. BOTTINI, ATTORNEY

District of Alaska

Federal Building and U.S. Courthouse

222 West Seventh Avenue

Anchorage, Alaska 99513

(907) 271-5071

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff,

v.

R & Y, INC., MR JOSEF RESSEL,

MR. EDWARD YOUNG, AND EASTWIND, INC.,

Defendants.

WHEREAS, plaintiff the United States of America, on behalf of the United States Environmental Protection Agency (EPA), filed a complaint herein on February 25, 1987 alleging that defendants have violated the Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; and

WHEREAS, on August 27, 1990, this Court approved a consent decree settling all claims between EPA and defendant Eastwind, Inc. ("Eastwind"); and ++EP++

Page 2

WHEREAS, the present parties agree that settlement of this case is in the public interest and that entry of this Consent Decree without further proceedings is the most appropriate means of resolving this matter; and

WHEREAS, the Court finds that this Consent Decree is a reasonable and fair settlement of this action and that it adequately protects the public interest in accordance with the CWA;

NOW, THEREFORE, before the taking of any testimony and without trial or adjudication of any issue of fact or law, and upon consent of the parties by their attorneys and authorized officials,

IT IS HEREBY STIPULATED:

I. JURISDICTION

1. This Court has jurisdiction of the subject matter of this action and jurisdiction over the parties pursuant to 28 U.S.C. Sub-Section 1331, 1345, and CWA section 309(b), 33 U.S.C.Section 1319(b).

2. The complaint states a claim upon which relief can be granted pursuant to CWA sectio ns 301, 309, 33 U.S.C. Sub-Section1311, 1319.

3. Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b), and CWA section 309(b), 33 U.S.C. Section 1319(b).

II. APPLICABILITY

4. The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, servants, employees, and successors or assigns. ++EP++

Page 3

5. The transfer of ownership or other interest by the defendants in the real property which is the subject of this case shall not alter or relieve the defendants of their obligation to comply with all the terms of this Consent Decree. Any defendant making a transfer of ownership or any interest in the property prior to the termination of the terms of this Consent Decree shall notify EPA of such transfer and shall reserve such rights as are necessary to successfully comply with the terms of this Consent Decree.

6. This Consent Decree shall constitute a complete and final settlement of all civil claims and allegations set forth in the complaint against the defendants who are parties to this Consent Decree.

7. This Consent Decree shall not constitute and shall not be interpreted to be a permit to discharge pollutants pursuant to CWA section 404, 33 U.S.C. Section 1344.

8. This Consent Decree in no way affects or relieves the defendants of their obligations to comply with any federal, state, or local law, regulation or permit.

III. STIPULATIONS OF FACT

9. Defendant R & Y, Inc. (R & Y) is an Alaska corporation and does business in the State of Alaska. Defendants Josef Ressel (Ressel) and Edward Young (Young) are residents of the state of Alaska, and are or were, at all times relevant to the subject matter of this action, principal shareholders, directors, and/or officers of defendant R & Y. ++EP++

Page 4

10. Eastwind is an Alaska corporation and a former defendant in this action. On July 31, 1990, the United States filed a consent decree settling the claims against Eastwind. This Court approved the settlement on August 27, 1990.

11. The property which is the subject of this case is located within Section 1, T. 12N, R.4W., S.M., Anchorage, Alaska, also known as 6800 Industrial Park Subdivision, plat 83-163, Anchorage Recording District, Third Judicial District, State of Alaska. 6800 Industrial Park Subdivision includes: Tract A, located on the southern side; Tract B, which contains Blueberry Lake, located on the northwestern side; and lots designated as Lots 1 through 7 located on the northeastern side (see Exhibit attached). The portions of 6800 Industrial Park Subdivision which are the subject of this litigation are Tract B, and Lot 7.

12. Blueberry Lake and portions of its surrounding wetlands were designated "preservation" wetlands by the Municipality of Anchorage's Anchorage Wetlands Management Plan (AWMP), adopted by the Anchorage Assembly on April 20, 1982. The AWMP established a one hundred-foot (100') easement and structure setback around Blueberry Lake, and prohibited construction or development in the wetlands within that boundary.

13. On April 1, 1983, the United States Army Corps of Engineers ("Corps") issued General Permit 83-1 pursuant to CWA section 404, 33 U.S.C. Section1344, to authorize the placement of fill into wetlands designated as "development" (or "mixed development") by the AWMP. ++EP++

Page 5

The Municipality of Anchorage was designated by the terms of General Permit 83-1 to determine whether proposed filling activities met all local and federal general permit requirements. Before any fill may be discharged into "development" wetlands, General Permit 83-1 requires a written application to the Municipality of Anchorage, containing a detailed description of the proposed work.

14. General Permit 83-1 also established "special conditions" covering activities performed under the terms of General Permit 83-1. One of those "special conditions" is that the activity performed pursuant to the General Permit "shall not jeopardize the continued existence of any wetlands designated preservation or conservation in the AWMP ." General Permit 83-1 further curtails development that would jeopardize the existence of wetlands designated as "preservation" wetlands by the AWMP, by establishing a fifteen-foot (15') wide buffer zone adjacent to preservation wetlands in which no construction may take place. If a developer does not meet the requirements of General Permit 83-1, then an individual permit pursuant to CWA section 404(a), 33 U.S.C.Section 1344(a) must be obtained from the Corps prior to commencing work.

15. General Permit 83-1 does not authorize the placement of fill into wetlands designated as "preservation" wetlands by the AWMP. Before fill may be placed in any "preservation" wetlands, an individual permit to discharge fill materials into waters of the United States must be obtained from the Secretary of the Army, acting through the Corps, pursuant to CWA section 404(a), 33 U.S.C. Section 1344(a). ++EP++

Page 6

16. Defendant Ressel and Young purchased Section 1, T. 12N, R.4W., S.M., Anchorage, Alaska, on or about January 1, 1969. The property was thereafter subdivided and platted as 6800 Industrial Park Subdivision.

17. On or about September 7, 1983, defendants Ressel and Young, doing business as Young/Ressel Rentals, a general partnership, conveyed Lot 7 to Eastwind.

18. Between September 1983 and September 1984, Eastwind employed earth-moving equipment to discharge fill material consisting of soil and rock into wetlands designated "preservation" wetlands by the AWMP, located on portions of Lot 7 of 6800 Industrial Park Subdivision. Eastwind did not obtain an individual permit from the Corps to discharge fill into wetlands in Lot 7.

19. On or about August 22, 1985, Eastwind conveyed title to Lot 7 to defendant Ressel.

20. On or about November 17, 1985, defendants Ressel and Young, doing business as Young/Ressel Rentals, conveyed title to all of 6800 Industrial Park Subdivision, except that portion known as Lot 7, to defendant R & Y. Defendant Ressel retained individual title to Lot 7.

21. At various times between November 17, 1985 to the present, defendant R & Y employed earth-moving equipment to discharge fill material dredged from a drainage ditch into wetlands designated as "preservation" wetlands, located in Tract B of 6800 Industrial Park Subdivision. ++EP++

Page 7

Defendant R & Y did not have an individual permit from the Corps to discharge fill into wetlands in Tract B.

22. Blueberry Lake constitutes "waters of the United States" within the meaning of CWA section 502(7), 33 U.S.C. Section 1362(7), and 33 C.F.R. Section 328.3(a)(1) and (3).

23. Defendants R & Y and Eastwind discharged soil and rock into portions of 6800 Industrial Park Subdivision that are "wetlands" as defined by 40 C.F.R. Section 122.2 and 33 C.F.R. Section 328.3(b). The affected areas are wetlands as identified by the degree of soil saturation and inundation, by the prevalence of vegetation that is typically adapted for life in saturated soil conditions, and by fibrous peat and silt soil types that indicate long-term soil saturation in those areas.

24. The wetlands into which the defendants discharged material are "waters of the United States" within the meaning of CWA section 502(7), 33 U.S.C. Section 1362(7), 33 C.F.R. Section 328.3(a)(7), and 40 C.F.R. Section 122.2

25. The material discharged is dredged or fill material as defined by 40 C.F.R. Section 233.3, and is a "pollutant" as defined by CWA section 502(6), 33 U.S.C. Section 1362(6).

26. The discharges of dredged or fill material are therefore "discharges of a pollutant" as defined by CWA section 502(12), 33 U.S.C. Section 1352(12). ++EP++

Page 8

27. The bulldozers and other earth-moving equipment employed to discharge fill materials are "point sources" as defined by CWA section 502(14), 33 U.S.C. Section 1362(14).

28. Defendant R & Y was never issued an individual permit from the Secretary of the Army pursuant to CWA section 404(a), 33 U.S.C. Section 1344(a) to discharge fill into waters of the United States. Therefore, all of the dredged fill material discharged into Tract B by defendant R & Y is an unpermitted discharge, not in compliance with General Permit 83-1, and in violation of CWA section 301(a), 33 U.S.C. Section 1311(a).

29. In addition, the presence of a dredged drainage ditch in Tract B could contribute to a reduction of water levels in Blueberry Lake, and could thereby jeopardize the existence of preservation wetlands, as prohibited by the AWMP and General Permit 83-1.

30. Former defendant Eastwind was never issued an individual permit from the Secretary of the Army pursuant to CWA section 404(a), 33 U.S.C. Section 1344(a) to discharge fill materials into waters of the United States. Therefore, all of the fill discharged into the "preservation" wetlands within Lot 7 by Eastwind is an unpermitted discharge, not in compliance with General Permit 83-1, and in violation of CWA section 301(a), 33 U.S.C. Section 1311(a).

31. On September 25, 1986, and May 7, 1987 the Regional Administrator of EPA Region 10, pursuant to authority delegated to him by the EPA Administrator, issued compliance orders to defendant R & Y under CWA section 309 (a) (3), 33 U.S.C. Section 1319-(a) (3). ++EP++

Page 9

These orders required R & Y to remove fill material discharged into preservation wetlands and to place a ditch block to stabilize the level of Blueberry Lake. This action was brought because R & Y has not complied with the September 25, 1986, and May 7, 1987 EPA compliance orders.

32. On or about May 12, 1983, defendants Ressel and Young entered into an agreement with the Municipality of Anchorage to roll back the one hundred-foot (100') easement and structure setback around the "preservation" wetlands which surround and include Blueberry Lake to a distance of sixty-five feet (65') from Blueberry Lake. On May 12, 1983, an official plat was filed evidencing that agreement.

33. EPA does not concede that the agreement referred to in paragraph "32" above was lawful or has a binding effect on the provisions of the AWMP, of General Permit 83-1, or on such provisions of the CWA or other federal law as apply to this case. In the interest of settlement of this litigation, and for that purpose only, EPA will deem the 100' easement established by the AWMP to have been rolled back to 65'.

34. Although the 100' easement and structure setback around Blueberry Lake was rolled back to 65' by the Municipality of Anchorage, the terms of General Permit 83-1 still required a fifteen-foot (15') wide buffer zone adjacent to "preservation" wetlands in which no construction could take place. Accordingly, the Remedial Actions required in Part IV of this Consent Decree are based upon the adjusted 65' easement of the AWMP, plus the 15' buffer zone of General Permit 83-1. ++EP++

Page 10 IV. REMEDIAL ACTIONS

NOW, THEREFORE, based on the foregoing, and with the consent of the parties, it is hereby ORDERED:

Cessation of Unauthorized Discharges

35. Defendants R & Y, Ressel, and Young are permanently enjoined from discharging dredged or fill material into wetlands or other waters of the United States at 6800 Industrial Park Subdivision except as in compliance with an individual permit from the Secretary of the Army issued pursuant to CWA section 404(a), 33 U.S.C. Section 1344(a), or in compliance with the conditions of General Permit 83-1 or any other applicable general permit issued by the Alaska District of the Corps.

36. Defendants R & Y, Ressel, and Young are permanently enjoined from knowingly taking any actions which are intended to, or which could reasonably be foreseen to drain or alter the natural water levels of Blueberry Lake.

Restoration of Tract B

37. Defendants R & Y, Ressel, and Young shall carry out, to the satisfaction of EPA, the following restoration measures:

a. Defendants shall re-deposit all the fill material dredged from the drainage ditch located within Tract B back into the drainage ditch. This procedure shall be performed along so much of the drainage ditch as lies within eighty feet (80') of the point at which the ditch intersects the shoreline of Blueberry Lake. ++EP++

Page 11

It is understood that the work can be accomplished with the use of a single small "caterpillar" tractor.

b. Defendants shall complete the re-placement of the dredged material no later than ninety (90) days after entry of this Consent Decree, subject to the provisions of paragraph "46" below.

Restoration of Lot 7

38. Defendant Ressel shall carry out, to the satisfaction of EPA, the following measures:

a. Defendant shall remove, and place in an EPA- approved upland location, in accordance with subparagraph "d" below, all of the fill material discharged within eighty feet (80') of the original shoreline of Blueberry Lake, as it existed before the drainage ditch was dredged. The original shoreline of the Lake lies at 82.6 feet above sea level, as indicated by a 1973 topographic map of the Municipality of Anchorage. EPA shall identify the location of the original shoreline and shall stake areas from which fill is to be removed within a reasonable time after approval of defendant's restoration plan, as provided in subparagraph "d" below. If the defendant disagrees with EPA's location of the original shoreline, defendant may, at his own expense, obtain a survey by a licensed surveyor to ascertain the location, and EPA shall adjust the staked areas accordingly. ++EP++

Page 12

The time period in which EPA stakes the area from which fill is to be removed, or adjusts the staked area, shall not be counted in determining whether defendant meets the deadlines imposed by this Consent Decree.

b. Wetlands to be so restored are located on Lot 7 of the subject property. Earth-moving equipment shall be operated only from within upland areas, or from within wetland areas in Lot 7 from which fill has not been removed, except as approved by EPA in accordance with subparagraph "d" below.

c. The area from which material shall be removed as required above shall be graded down to the natural ground surface beneath the fill, to the greatest extent possible without damaging wetland. The side slopes of the remaining fill at the property shall be graded to a slope of 1 foot vertical rise per 2-foot horizontal run, or to a shallower slope. The areas from which fill is removed and the side slopes of the remaining fill shall be mulched and re-planted with appropriate vegetation for the purpose of erosion control. The type of vegetation shall be determined in consultation with the State of Alaska Department of Agriculture's Plant Materials Center. ++EP++

Page 13

d. Defendant shall submit plans to EPA for all the excavation, fill removal, grading, and replanting work described in this paragraph within ninety (90) days of entry of this Decree, and shall complete the aforementioned work by July 1, 1991.

39. In no event shall the time to complete the work described in paragraph "38" above be extended past September 1, 1991.

40. Until termination of this Consent Decree, as provided in Part XII below, the United States by its contractors, consultants, attorneys, or other employees or representatives shall have the authority to enter upon the affected portions of the subject property, at all reasonable times and with proper identification, for the purpose of monitoring the progress of activities required by this Consent Decree, verifying any data or information submitted to the United States, and taking any necessary samples. The terms of this paragraph in no way limit plaintiff's rights pursuant to CWA section 308, 33 U.S.C. Section 1318.

Stipulated Penalties for Future Violations

41. Unless excused by the provisions of Part VII below, defendants R & Y, Ressel, and Young shall jointly and severally incur the following stipulated penalties, which shall be payable without further order of this Court, for the enumerated types of violations of this Decree: ++EP++

Page 14

Amount Per Day

(for each day on which Requirement violation occur) A. Replacement of dredged material back into the ditch 1000.00 B. Removal of fill material 1000.00 and completion of restoration measures in Lot 7. C. Refrain from further unautho- 25,000.00 rized discharges of pollutants. CWA section 309(b), (d), 33 U.S.C. 1319(b), (d).

Any disputes about the defendants' liability for stipulated penalties that cannot be resolved by the parties hereto shall be resolved by motion to this Court.

42. Any penalties incurred under this Consent Decree shall be paid by certified or cashier's check, payable to the "Treasurer of the United States of America," and delivered to the United States Department of Justice at the address specified in Section VIII of this Consent Decree. Upon making such payment, the defendants shall immediately notify the EPA of such payment by sending the EPA, at the address specified in Section VIII of this Consent Decree, copies of the check and the letter transmitting it to the United States.

43. Nothing in this Consent Decree shall be construed to limit any other remedies available to the United States for violations of this Consent Decree, such as the institution of contempt proceedings, or any provisions of law. ++EP++

Page 15 V. CIVIL PENALTIES

44. Defendants R & Y, Ressel, and Young shall jointly and severally incur a civil penalty of $7500.00, payable within 30 days of the entry of this Consent Decree, in accordance with the provisions of paragraph "42" above. In the event that voluntary payment of the civil penalty assessed in this Decree is not made, without further order of this Court, this Consent Decree shall be considered an enforceable judgment for purposes of post-judgment collection, in accordance with Fed. R. Civ. P. 69, and other applicable federal statutory authority.

VI. NOTICES

45. Within 15 days of the date required by this Consent Decree for completing any restoration work, defendants R & Y, Ressel, and Young shall provide the EPA and the United States Department of Justice with written notice, at the addresses specified in Section VIII of this Consent Decree, of whether or not that task has been completed.

a. If the required task has been completed, the notice shall specify the date on which it was completed, attach any appropriate evidence of such completion, and explain the reasons for any delay in completion beyond the scheduled date required by the Consent Decree.

b. If the required task has not been completed, defendants shall submit the notice required by Part VII of this Consent Decree. ++EP++

Page 16

c. Submission of any notice under this Paragraph shall not relieve the defendants of their obligation to comply with any requirement of this Consent Decree.

VII. FORCE MAJEURE

46. If defendants R & Y, Ressel, and or Young violate any requirement of this Consent Decree, defendants shall, within fifteen days (15) of the violation, notify EPA and the Department of Justice, at the addresses stated below, of any event or events which have caused the violation. The notice shall describe in detail the anticipated length of time the violation may persist, the precise cause of the violation, the measures taken by the defendants to prevent or minimize the violation, and the timetable by which those measures will be implemented. Failure by defendants to comply with the notice requirements of this section shall constitute a waiver of defendants' right to obtain an extension of time under paragraph "47" below. Defendants shall also give notice as soon as defendants have reason to believe that an event has occurred that will cause a violation of any provision of this Consent Decree.

47. If the parties agree that the violation of a provision of this Consent Decree has been or will be caused by circumstances beyond the control of the defendants and of any entity controlled by defendants, including defendants' consultants and contractors, and that defendants and such entities could not have reasonably foreseen and prevented such violation, the time for performance of such provision shall be extended in writing by EPA for a period equal to the actual delay resulting from such circumstances, and stipulated penalties shall not be due for the delay. ++EP++

Page 17

48. If the parties are unable to agree whether the violation was caused by circumstances beyond the control of defendants or any entity controlled by defendants, or whether the length of time for fulfilling the provision should be extended, the matter may be submitted by any party to the Court for resolution. If the violation is then determined to have been caused by circumstances beyond the control of defendants and of any entity controlled by defendants, including the defendants' consultants/contractors, and it is determined that defendants could not have reasonably foreseen and prevented such violation, the defendants shall be excused as to that violation for the period of time the violation continues due to such circumstances.

49. Neither reasonably foreseeable technical problems nor unanticipated or increased costs or expenses associated with the implementation of actions called for by this Consent Decree shall serve as the basis for changes in this Consent Decree or extensions of time for the performance of the requirements of this Consent Decree.

VIII. ADDRESSES FOR SUBMISSIONS

50. Any payment of moneys due under the terms of this Consent Decree shall be submitted to the United States Department of Justice, at the address set forth below. Any notice or other submission required to be submitted to the EPA or the United States Department of Justice by this Consent Decree shall be so submitted to the following addresses: ++EP++

Page 18

A. To The United States Department of Justice:

Robert Lefevre U.S. Department of Justice Environment and Natural Resources Division Room 7113 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530

B. TO EPA:

Adrianne Allen United States EPA - Region 10 Office of Regional Counsel (SO-125) 1200 Sixth Avenue Seattle, WA. 98101 Daniel Robison United States EPA Water Quality Control Section 222 W. 7th Ave. 19 Anchorage, Alaska 99513-7588

IX. COSTS OF SUIT

51. Each party shall bear its own costs and attorney's fees in this action. Should any of the defendants subsequently be determined to have violated the terms and conditions of this Consent Decree, defendants shall be jointly and severally liable to the United States for any costs and attorney's fees incurred by the United States in any action against the defendants for noncompliance with this Consent Decree.

X. PUBLIC COMMENT

52. Defendants consent to the entry of this Consent Decree without further notice. The parties agree and acknowledge that after the lodging of this Consent Decree, and prior to its entry, the United States shall, pursuant to 28 C.F.R. Section 50.7, publish a public notice of this Consent Decree and provide an opportunity for public comments. ++EP++

Page 19

The United States reserves the right to withhold or withdraw its consent to entry of this Consent Decree based upon such public comments.

XI. SEVERABILITY

53. The provisions of this Consent Decree shall be severable, and should any provision be declared by a court of competent jurisdiction to be inconsistent with Federal or State law and therefore unenforceable, the remaining provisions shall remain in full force and effect.

XII. CONTINUING JURISDICTION OF THE COURT

54. This Court may enforce or modify this Consent Decree in any manner consistent with applicable law, or to resolve all disputes arising hereunder. During the pendency of this action, any party may apply to the Court for any relief necessary to construe and effectuate this Consent Decree.

55. Upon its entry by this Court, this Consent Decree shall have the force and effect of a final judgment. Any modification of this Consent Decree shall be in writing and, except for extensions of time pursuant to this Consent Decree, shall not take effect unless signed by the parties and approved by the Court.

56. This Consent Decree shall terminate after the defendants R & Y, Ressel, and Young fully complete the Remedial Program in accordance with Part IV, and pay any penalties due under Part IV and V of this Consent Decree. EPA shall advise defendants, within six months after defendants provide notice that the work has been completed, as local weather permits, whether EPA approves the work as performed. ++EP++

Page 20

EPA shall not withhold approval of work performed pursuant to paragraph "38" of this Consent Decree so long as defendants fully comply with EPA-approved plans submitted in accordance with the terms of paragraph "38". When EPA certifies that all of the work required by this Consent Decree has been completed in a satisfactory manner, EPA shall vacate the lis pendens, shall promptly notify the Court of its decision, and the Court shall terminate this Consent Decree.

*

Dated and entered this 23 day of July, 1991.

/s/ ILLEGIBLE SIGNATURE

UNITED STATES DISTRICT JUDGE

United States District Court for the District of

Alaska

*The Scheduling and Status Conference set for July 31, 1991, is VACATED.

/s/ James T. Stanley

JAMES T. STANLEY, Esq.

James T. Stanley Corporation

3003 Minnesota Dr.

Suite 200

Anchorage, Alaska 99503

Attorney for defendants

R & Y, Inc., Josef Ressel, and Edward Young

1-17-9

cc: J. Bottini (AUSA)

J. Stanley ++EP+

HOQUIAM, CY OF ET AL

01 OF 01

CONSENT DECREE

10-91-C004

CWA

MISC

19910212

19910212

WAD151513215

CLATERBOS INC

HOQUIAM, WA

91-5014(C)

10

CONSENT DECREE, U.S.A. V. CITY OF HOQUIAM, CLATERBOS, INC. AND STATE OF WASHINGTON

Page 1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

CITY OF HOQUIAM, CLATERBOS, INC., AND STATE OF

WASHINGTON

Defendants

The parties enter into this Consent Decree to fix conditions upon which certain unpermitted fill material shall be removed from wetlands in the Little Hoquiam River, to state the civil penalties defendants City of Hoquiam ("City") and Claterbos, Inc. ("Claterbos") shall pay, and to provide for stipulated penalties the same defendants shall pay should they not remove such fill and comply with the provisions of this Decree.

To conclude this matter (without trial of any issue of fact or law) the signatory parties hereby consent to the entry of this Consent Decree as follows:

It is hereby ORDERED, ADJUDGED, AND DECREED:

I. INTRODUCTION

1. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. Section 1345 and Section 309(b) of the Clean Water Act, 33 U.S.C. Section 1319(b), and jurisdiction over the parties hereto. ++EP++

Page 2

The Complaint states a claim upon which relief can be granted against the defendants.

2. Defendant state of Washington ("State") is a statutorily mandated defendant pursuant to Section 309(e) of the Clean Water Act, 33 U.S.C. Section 1319(e), and is not a party to this decree.

3. Defendant Claterbos, Inc. ("Claterbos") is an Oregon corporation authorized to do business, and doing business in the state of Washington.

4. Defendant City of Hoquiam, Washington ("City") is a municipal corporation located in Grays Harbor County, authorized to do business and doing business in the state of Washington, and is the owner of record of the property which is the subject of this action.

5. The provisions of this Consent Decree shall apply to and be binding upon the signatory parties including, but not limited to, their officers, directors, servants, employees, successors, or assigns, and all persons, firms, entities, or corporations in legal association with them.

II. INJUNCTIVE RELIEF

6. Defendants Claterbos and the City are permanently enjoined from discharging fill material as that term is defined at 40 C.F.R. Section 233.3 into the waters of the United States, except in compliance with a permit issued by the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act, 33 U.S.C. Section 1344. ++EP++

Page 3

7. Defendants Claterbos and the City shall perform, by qualified personnel, the restoration and rehabilitation measures specified in Addendum 1 (entitled "Removal and Restoration Measures"), attached to this Decree and incorporated herein by reference.

8. Defendant City shall establish and maintain, or fund the establishment and maintenance of, no less than three spawning pads at appropriate locations in the Little Hoquiam drainage in accordance with Addendum II (entitled "Fish Habitat and Restoration Plan"), attached to this Decree and incorporated herein by reference.

9. Defendant City shall further fund or otherwise provide for the planting of not less than 38,000 Coho salmon fry and 38,000 Cutthroat trout fry at an appropriate location in the Little Hoquiam drainage each year for five years following entry of this decree, also in accordance with Addendum II.

10. Defendants Claterbos and the City shall perform the work required in Paragraphs seven, eight, and nine to EPA's satisfaction. EPA shall notify these Defendants' project coordinators in writing if the Agency finds any work conducted pursuant to those paragraphs unsatisfactory. ++EP++

Page 4

The same Defendants shall promptly correct any specified deficiency.

III. CIVIL PENALTIES

11. Defendants Claterbos and the City shall each pay civil penalties in the amount of Two Thousand Five Hundred Dollars ($2,500). Payment shall be made within thirty (30) days after entry of this Decree, by cashier's check or certified check, payable to "Treasurer, United States of America," and delivered to the Office of United States Attorney, 3600 Seafirst Fifth Avenue Plaza, Seattle, Washington 98104. Each signatory defendant shall simultaneously mail a copy of the letter of transmittal indicating payment, together with a copy of the check, draft, or other instrument by which payment is made, to the Regional Hearing Clerk, U.S. Environmental Protection Agency, Office of Regional Counsel, SO-125, 1200 Sixth Avenue, Seattle, Washington 98101.

12. In the event that voluntary payment of any penalty imposed in Paragraphs 11, 18 or 19 of this Decree is not forthcoming, without further order of the Court, this Decree shall be considered an enforceable judgment for purposes of post judgment collection in accordance with Feb. R. Civ. P. 69, 28 U.S.C., and any other pertinent authority. ++EP++

Page 5 IV. DESIGNATED PROJECT COORDINATORS

13. All reports, plans, approvals, disapprovals, and other documents submitted pursuant to this Decree shall be sent to each party's designated Project Coordinator. The Project Coordinators are:

For EPA:

Mr. Gray Voerman

U.S. Environmental Protection Agency (WD-138)

1200 6th Avenue

Seattle, Washington 98101

(206) 442-8513

For City of Hoquiam:

Jim Neher

City Hall

609 8th Street

Hoquiam, Washington 98550

(206) 532-5700

For Claterbos, Inc.:

Kirk Portman

Keller, Rohrback Law Offices

Suite 3200

1201 3rd Ave.

Seattle, Washington 98101-3029

(206) 623-1900

V. DISPUTE RESOLUTION

13. In the event that the parties disagree about any material aspect of the effect or interpretation of this Decree, any signatory party may send to any other signatory party a written notice which outlines the nature of the dispute and requests informal negotiations. If the signatory parties cannot reach an agreed resolution within fifteen (15) working days, any signatory party may petition the Court to resolve the dispute. ++EP++

Page 6 VI. FORCE MAJEURE

14. The obligation of Defendants Claterbos and the City to meet any requirement set out in this Decree may only be excused to the extent that such failure or delay arises out of a cause beyond the control of, and without the fault of, the Defendant or Defendants in question, and which could not be prevented by the same Defendant's due diligence. Changed business conditions, economic circumstances, or increased costs of compliance shall not constitute force majeure events.

15. Defendants Claterbos and the City shall adopt all reasonable measures to avoid or minimize any delay in meeting any requirements set out in this Decree, and failure to do so shall constitute a waiver of the same Defendant's rights to invoke the provisions of this Section (Force Majeure). An extension of one compliance date based upon a particular event does not necessarily qualify the Defendants for an extension of any subsequent compliance date.

16. Defendants Claterbos and the City shall notify the EPA within twenty-four (24) hours of the commencement of any force majeure event, and shall confirm such notification in writing within seven (7) days thereafter. The written notice shall describe in detail the anticipated length of the delay, the precise cause for the delay, the measures taken and to be taken by Defendants to prevent or minimize further delay, and the proposed timetable by which those measures will be implemented. ++EP++

Page 7

The signatory Defendant(s)' failure to comply with the notice requirements of this paragraph shall constitute a waiver of the Defendants' rights to invoke the provisions of this Section VI (Force Majeure).

17. If EPA agrees that performance of the obligation of this Decree may justifiably be delayed, in accordance with this section, it shall so notify Defendants Claterbos and the City in writing. If EPA does not agree, the matter shall be handled in accordance with Section V (dispute resolution), except that Defendants Claterbos and the City shall have the burden of establishing by clear and convincing evidence: 1) that a force majeure event has occurred; and 2) that the additional time requested is in accordance with the most expeditious schedule practicable.

VII. STIPULATED PENALTIES

18. Subject only to the provisions of Section VI (Force Majeure), Defendant City shall pay stipulated penalties in the amount of One Thousand Dollars ($1000.00) per day for each of the following violations of this Decree: ++EP++

Page 8

a. failure to install, or fund the installation of, spawning

pads in accordance with Paragraph 8 and Addendum II by April 15, 1990;

b. failure to provide for the planting of fry in accordance

with Paragraph 9 by April 15 of each of the five (5) years beginning in 1990;

c. failure to permit an authorized EPA representative access to

the site in accordance with Paragraph 22;

d. failure to make timely submission of annual monitoring

reports to EPA's Project Coordinator in accordance with Addendum I.

19. Defendant City shall pay a stipulated penalty of Two Thousand Dollars ($ 2,000.00) per season for a failure to achieve 80% ground coverage within five (5) years (by July 1, 1994), as provided in Addendum I.

20. The City shall pay any stipulated penalties incurred pursuant to Paragraphs 18 and 19 no later than the 15th day of the month after the violation occurs by cashier's or certified check made payable to the "Treasurer, United States of America," delivered to the Office of the United States Attorney, 3600 Seafirst Fifth Avenue Plaza, Seattle, Washington 98104.

21. The provisions of Paragraphs 18, 19, and 20 shall not be construed to limit any other remedies, including (but not limited to) proceedings for civil or criminal contempt, available to plaintiff for violations of this Consent Decree or any applicable federal, state or local statute or regulation. ++EP++

Page 9 VIII. MISCELLANEOUS

22. This Decree does not relieve Defendants of responsibility to comply with any state or local permits required to conduct the work necessary to comply with the terms of this Decree. Neither this Decree nor its Addenda constitute a permit to discharge pollutants into the waters of the United States.

23. Defendants Claterbos and the City shall allow any authorized representative of EPA, upon presentation of appropriate credentials, to enter any site that is the subject of this action to monitor compliance with this Decree. This Decree does not limit the authority of the United States to enter, conduct inspections, have access to records, or monitor compliance pursuant to any statute or court order.

24. Any modification of this decree shall be in writing and approved by this Court, except that the parties may extend deadlines in accordance with Sections V and VI (dispute resolution and force majeure) without further approval of the Court.

25. The provisions of this decree and assignment of work stated in the decree and its addenda shall be enforceable by each of the signatory parties. However, the failure of one signatory Defendant to perform any obligation pursuant to this decree shall not be considered a force majeure event, and shall not relieve any signatory Defendant of its obligations under this Decree. ++EP++

Page 10

26. This Court shall retain jurisdiction of this case for the purpose of enabling any party to apply to the Court at any time for such further relief as may be appropriate to interpret, enforce, modify or terminate this Decree.

27. This Decree shall terminate on June 1, 1996, except that the Court shall retain jurisdiction to collect any unpaid penalties that may have accrued.

28. Each party to this Consent Decree expressly reserves any rights the same party may have against Defendant the state of Washington, whether pursuant to Clean Water Act Section 309(e), 42 U.S.C. Section 1319(e), or otherwise.

29. Each signatory party shall bear its own costs, including attorneys' fees. ++EP++

Page 11

FOR DEFENDANTS:

/s/ Jon Parker

JON PARKER

City Attorney

ATTORNEY FOR THE CITY OF HOQUIAM WASHINGTON

/s/ SIGNATURE ILLEGIBLE

PINCKNEY M. ROHRBACK

Attorney at Law

ATTORNEY FOR DEFENDANT

CLATERBOS, INC.

/s/ SIGNATURE ILLEGIBLE

Mayor

City of Hoquiam

FOR THE UNITED STATES:

RICHARD B. STEWART

Assistant Attorney General

/s/ MICHAEL D. ROWE

MICHAEL D. ROWE

U.S. Department of Justice

Land and Natural Resources Division

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026-3986

(202/FTS) 633-3144

MIKE McKAY

United States Attorney

/s/ Susan L. Barnes

SUSAN L. BARNES

Assistant United

States Attorney

3600 Seafirst 5th Avenue Plaza

Seattle, Washington 98104

(206) 442-7970

/s/ James M. Strock

JAMES M. STROCK

Assistant Administrator for

Enforcement and Compliance

Monitoring

U.S. Environmental Protection Agency

Washington, D.C. ++EP++

Page 12

/s/ Thomas P. Dunne

THOMAS P. DUNNE

Acting Regional Administrator

U.S. Environmental Protection Agency

Seattle, Washington

/s/ Theodore R. Rogowski

THEODORE R. ROGOWSKI

Associate Regional Counsel

Office of Regional Counsel

U.S. Environmental Protection Agency

Seattle, Washington

ENTERED this 12th day of Feb, 1991.

SIGNATURE ILLEGIBLE

UNITED STATES DISTRICT JUDGE ++EP++

Addend 1-1 Addendum I REMOVAL AND RESTORATION MEASURES Little Hoquiam River City of Hoquiam Pipeline Fill

The City of Hoquiam and Claterbos, Inc., will be responsible for the implementation of the following removal and restoration measures:

Objectives. The objectives of this removal and restoration plan are to restore wetland conditions and wetland vegetation to approximately 3.5 acres in the floor plain of the Little Hoquiam River (see attached drawing). The measures described below will restore conditions necessary for wetland development that will provide the following functions:

(1) food chain support for fish and wildlife;

(2) wildlife habitat;

(3) floor storage and desynchronization; and

(4) nutrient uptake and retention.

Excavating to provide conditions for wetland plant growth and providing a seed source for initial wetland plant establishment are the keys to meeting these objectives. Natural plant succession and seeding from the adjacent wetland will determine the ultimate composition of the plant community on the site.

Methods. The objectives will be accomplished by removing approximately 4,000 cubic yards of fill material using light construction equipment including, but not limited to, light backhoes, single-axle trucks, small bulldozers, and similar earth moving equipment. The excavated material will be disposed of at upland sites. A temporary road made of wood-fiber chips may be used to haul the material from the site. Earth moving equipment will work from the fill as it is removed and will not enter the adjacent undisturbed wetland or the excavated wetland. All temporary roads will be completely removed from wetland areas immediately after fill removal.

The site will be excavated until it approximates the contours of the adjacent wetland and exposes the underlying organic soils. The excavation shall be completed on or before June 23, 1989. Claterbos, Inc. will contact the EPA's designated project coordinator no later than five (5) days prior to beginning removal and again within twenty- four (24) hours following removal to allow for site inspection. ++EP++

Addend1-2

Claterbos, Inc. will comply with all reasonable requests from EPA for additional fill removal in order to obtain the objectives of this plan. EPA will inspect the fill removal site and provide Claterbos, Inc. with verbal comments within three (3) working days and written comments within five (5) working days of site inspection. Any disputes which arise over EPA requests for additional fill removal shall be resolved in accordance with the consent decree.

Seeds of native wetland plants will be hand sown on approximately 3.5 acres at a density of 10 seeds or more per square foot (Highways and Wetlands: Compensating Wetland Losses, FHWA Report No. IP-86-22). The seeds from native wetland plant species will include a mix of slough sedge (Carex obnupta) small fruited bulrush (Scirpus microcarpis) and soft rush (Juncus spp.). The seeding area is shown on the attached drawing. The seed bed will be fertilized with a time release fertilizer of 10-10-10 (N-P-K) at 600 pounds per acre, and covered with one inch of straw mulch or cultivated to cover the seed bed. Natural plant succession will determine the ultimate composition of the plant community on the site. The seeding operation will be performed by or at the direction of the City of Hoquiam. The City shall complete initial reseeding of the site not later than November 1, 1989.

Standards of Success. Success of the mitigation plan will be measured by restoration of saturated soil conditions similar to the adjacent wetland area, and the degree of establishment of wetland adapted plants on the site.

At the end of the third growing season after sowing, it is anticipated that wetland plants will cover at least 50 percent of the site. At the end of the fourth growing season, wetland plants should cover at least 80 percent of the site. The restoration plan will be considered successful and complete when areal coverage of wetland plants reaches 80 percent or more.

Monitoring and Maintenance. The City of Hoquiam shall conduct the following monitoring and maintenance program during the life of the attached consent decree:

The monitoring program will consist of measuring areal plant coverage on an annual basis. Areal plant coverage will be determined using the method in the Corps of Engineers Wetlands Delineation Manual (Technical Report Y-87-1), or a similar recognized plant sampling method. The technique for measuring vegetative areal average will include the establishment of at least six transects (three north of the SR-109 bridge, and three south of the SR-109 bridge). Coverage will be measured on or before September 15 each year by a qualified biologist. Monitoring in this fashion shall continue for five years after sowing, or until the areal coverage by wetland plants reaches 80 percent. ++EP++

Addend1-3

The City shall arrange for an annual report prepared by a qualified biologist and sent to EPA's designated project coordinator on or before December 15 of each year of the monitoring period. The first such report shall be provided to EPA on or before December 15, 1990.

Maintenance will consist of repairing damage to the site caused by vandalism or natural causes during the monitoring period.

Schedule. The following schedule summarizes milestones

established in this plan for the parties' mutual convenience: Action Deadline (a) Complete Fill Removal June 23, 1989 (b) Initial Reseeding June 1, 1990 (c) First Annual Monitoring December 15, 1990 Report (d) Each subsequent Annual Monitoring Report December 15, 1991 December 15, 1992 December 15, 1992 December 15, 1993 December 15, 1994

Contingency Plan. In the event that areal coverage of wetland plants falls short of the targets in the Standards of Success, Clatebos, Inc. and the City shall employ the following additional measures to assure the establishment of a viable wetland plant community on the site:

(1) If the coverage of wetland plants is less than 50 percent after the second growing season, additional wetland plant seeds will be sown in areas not meeting that standard at a density of 10 or more seeds per square foot.

(2) If the coverage of wetland plants is greater than 50 percent, but less than 80 percent after the third growing season, additional seeds will be sown at a density of 10 or more seeds per square foot in areas with less than 80 percent coverage.

(3) If the coverage of wetland plants is less than 50 percent after the third growing season, sprigs, cuttings, or other live plant material will be planted at a density of four plants per square yard in those areas where the density of live plants is less than four per square yard. ++EP++

Addend1-4

(4) If areal coverage of wetland plants is less than 80 percent after the fourth year, EPA will be consulted for advice on further measures to remedy the problems on the site. The monitoring program will be extended for one year and such reasonable measures will be performed as are necessary to establish appropriate wetland vegetation. The City of Hoquiam will perform all reasonable contingency measures considered necessary by EPA to accomplish the purposes of this plan. Any disputes arising from EPA requests for additional restoration work will be resolved in accordance with the consent decree. ++EP++

Addend11-1 Addendum II FISH HABITAT RESTORATION PLAN

The City of Hoquiam, Washington, will implement and complete the following mitigation measures:

1. This plan consists of the installation of spawning pads and the planting of Coho salmon fry and Cutthroat trout fry in the Little Hoquiam River system.

(a) Spawning Pads. The City shall finance the placement of three spawning pads below the dam on the North Fork of the Little Hoquiam River. At least one pad shall be for Coho salmon and at least one pad shall be for Cutthroat trout. The City shall contribute the funds required for pad installation to the Washington Department of Fisheries ("WDF") or an alternative contractor of suitable qualifications no later than April 15, 1991.

(b) Stocking. The City shall finance the annual planting of

approximately 38,000 total Coho salmon fry and 38,000 Cutthroat trout fry during each of the five years beginning January 1, 1991. The City shall contribute the funds required for fish planting to WDF or an alternative contractor of suitable qualifications no later than April 15 of each year in which a contribution is required.

2. The City of Hoquiam shall notify the EPA's designated project coordinator within five (5) days of implementing the requirements relating to spawning pads, and shall further notify the same designated project coordinator each year within five (5) days of implementing the requirements relating to planting fry. ++EP++

R & Y INC/EASTWIND

01 OF 01

CONSENT DECREE

10-90-C006

CWA

OTHER

900827

08/27/90

AKD981769896 R & Y INC

ANCHORAGE, AK

88-97(A-CIV)

10

CONSENT DECREE, U.S.A V. R & Y, INC., MR. JOSEF RESSEL, MR. EDWARD YOUNG, AND EASTWIND, INC.

Page 1

RICHARD B. STEWART ASSISTANT ATTORNEY GENERAL ROBERT LEFEVRE, ATTORNEY U.S. Department of Justice Environment and Natural Resources Division Washington, D.C. 20530 (202) 514-3170 MICHAEL R. SPAAN UNITED STATES ATTORNEY JOSEPH W. BOTTINI, ATTORNEY District of Alaska Federal Building and U.S. Courthouse Room C-252, Mailbox 9 701 C Street Anchorage, Alaska 90513 (907) 271-5071

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff,

v.

R & Y, INC., MR. JOSEF RESSEL, MR. EDWARD YOUNG, AND EASTWIND, INC.,

Defendants.

WHEREAS plaintiff, the United States of America, on behalf of the United States Environmental Protection Agency (EPA), filed a complaint herein on February 25, 1988, alleging that defendant Eastwind, Inc. (Eastwind) has violated the Clean Water Act (CWA), 33 U.S.C. Section 1251 et seq.; and

WHEREAS EPA and Eastwind agree that settlement of this case is in the public interest and that entry of this Consent Decree without further proceedings is the most appropriate means of resolving this matter; and ++EP++

Page 2

WHEREAS the Court finds that this Consent Decree is a reasonable and fair settlement of the claims against defendant Eastwind, and that it adequately protects the public interest in accordance with the CWA;

NOW, THEREFORE, before the taking of any testimony and without trial or adjudication of any issue of fact or law, and upon consent of the signatory parties by their attorneys and authorized officials,

IT IS HEREBY STIPULATED:

I. JURISDICTION

1. This Court has jurisdiction of the subject matter of this action and jurisdiction over the parties pursuant to 28 U.S.C. Sub-Section 1331, 1345, and CWA section 309(b), 33 U.S.C. Section 1319(b).

2. The complaint states a claim upon which relief can be granted pursuant to CWA sections 301, 309, 33 U.S.C. Sub-Section 1311, 1319(b).

3. Venue is proper in this District pursuant to 28 U.S.C. Section 1319(b), and CWA section 309(b), 33 U.S.C. Section 1319(b).

II. APPLICABILITY

4. The provisions of this Consent Decree shall apply to and be binding upon the parties signing this Consent Decree, their officers, directors, servants, employees, and successors or assigns. ++EP++

Page 3

5. This Consent Decree shall constitute a complete and final settlement of all claims and allegations set forth in the complaint against the parties signing this Consent Decree.

6. This Consent Decree shall not constitute and shall not be interpreted to be a permit to discharge pollutants pursuant to CWA section 404, 33 U.S.C. Section 1344.

7. This Consent Decree in no way affects or relieves Eastwind of any obligations to comply with any other federal, state, or local law, regulation or permit.

8. Nothing in this Consent Decree shall be construed to limit any other remedies available to the United States for violations of this Consent Decree, such as the institution of contempt proceedings, or any provisions of law.

III. STIPULATIONS OF FACT

9. Defendants Eastwind and R & Y, Inc. (R & Y) are Alaska corporations and do business in the State of Alaska. Defendants Josef Ressel (Ressel) and Edward Young (Young) are residents of the State of Alaska.

10. The property which is the subject of this case (Site) is located in Section 1, T. 12N, R.4W., S.M., Anchorage, Alaska, also described as Industrial Park Subdivision, plat 83-163, Anchorage Recording District, Third Judicial District, State of Alaska. The Site includes Blueberry Lake and adjacent areas designated as Lots 4 through 7.

11. On or about September 7, 1983, defendants Ressell and ++EP++ Young conveyed that portion of the Site known as "Lot 7" to defendant Eastwind.

Page 4

12. Between September 1983 and September 1984, Eastwind employed earth-moving equipment to discharge fill material consisting of soil and rock into wetlands adjacent to Blueberry Lake which are located on Lot 7 of the subject property.

13. On or about August 22, 1985, Eastwind conveyed title to Lot 7 back to defendant Ressel.

14. Blueberry Lake constitutes "waters of the United States" within the meaning of CWA section 502(7), 33 U.S.C. Section 1362(7), and 33 C.F.R. Section 328.3(a)(3).

15. Eastwind discharged soil and rock into portions of the Site adjacent to Blueberry Lake that are "wetlands" as defined by 40 C.F.R.Section 122.2 and 33 C.F.R. Section 328.3(b). The affected areas are wetlands as identified by the degree of soil saturation and inundation, by the prevalence of vegetation that is typically adapted for life in saturated soil conditions, and by fibrous peat and silt soil types that indicate long-term soil saturation in those areas.

16. The wetlands adjacent to Blueberry Lake into which Eastwind discharged pollutants are "waters of the United States" within the meaning of CWA section 502(7), 33 U.S.C. Section 1362(7), 33 C.F.R. Section 328.3(a)(7), and 40 C.F.R. Section 122.2.

17. The material discharged by Eastwind is dredged or fill material as defined by 40 C.F.R. Section 233.3., and is a "pollutant" as defined by CWA section 502(6), 33 U.S.C. Section 1362(6). ++EP++

Page 5

18. The discharges of dredged or fill material by Eastwind are therefore "discharges of a pollutant" as defined by CWA section 502(12), 33 U.S.C. Section 1352(12).

19. The bulldozers and other earth-moving equipment employed by Eastwind to discharge fill materials are "point sources" as defined by CWA section 502(14), 33 U.S.C. Section 1362(14).

20. Eastwind was never issued an individual permit from the Secretary of the Army pursuant to CWA section 404(a), 33 U.S.C. Section 1344(a), to discharge fill materials into waters of the United States.

21. Therefore, defendant Eastwind violated CWA section 301(a), 33 U.S.C. Section 1311(a).

22. Blueberry Lake and its surrounding wetlands have been designated "preservation" wetlands by the Municipality of Anchorage Wetlands Management Plan (AWMP), adopted by the Anchorage Assembly on April 20, 1982. The AWMP established a one hundred foot (100') easement and structure setback around Blueberry Lake, and prohibited construction or development in the wetlands within that boundary.

23. On April 1, 1983, the United States Army Corps of Engineers issued General Permit 83-1 pursuant to CWA section 404, 33 U.S.C. Section 1344, to authorize the placement of fill into wetlands designated as "development" or "mixed development" by the AWMP. Before any fill may be discharged into "development" wetlands, General Permit 83-1 requires written application to, and authorization from the Municipality of Anchorage. In addition, General Permit 83-1 further curtails any development that would jeopardize the existence of wetlands designated as "preservation" by the AWMP, by establishing a fifteen-foot wide buffer zone adjacent to "preservation" wetlands in which no construction may take place. ++EP++

Page 6

If a developer does not meet the requirements of General Permit 83-1, then an individual permit must be obtained prior to commencing work in "development" wetlands.

24. The fill discharged into Lot 7 wetlands is an unpermitted discharge, not in compliance with General Permit 83-1 in that no authorization to discharge fill was obtained from the Municipality of Anchorage. That portion of the fill discharged by Eastwind into Lot 7 within the 100-foot buffer zone around Blueberry Lake established by the AWMP is an unpermitted discharge, not in compliance with General Permit 83-1. That portion of the fill discharged by defendants into Lot 7 within fifteen feet outside of the 100-foot buffer zone is is an unpermitted discharge, not in compliance with General Permit 83-1 because the fill lies within the fifteen-foot buffer zone established by General Permit 83-1.

NOW, THEREFORE, based on the foregoing, and with the consent of the parties signing this Consent Decree, it is hereby ORDERED:

25. Within 30 days of the entry of this Consent Decree, defendant Eastwind shall pay a civil penalty of $2500.00, payable in accordance with the provisions of paragraph "26" below. ++EP++

Page 7

Payment of this sum by Eastwind shall constitute full settlement of the United States' claims against defendant Eastwind in this action.

26. Payment of moneys due under the terms of this Consent Decree shall be submitted to the United States Department of Justice, at the following address:

Robert Lefevre

U.S. Department of Justice

Environment & Natural Resources Division

Room 7113

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

27. Each party shall bear its own costs and attorney's fees in this action. Should the defendant subsequently be determined to have violated the terms and conditions of this Consent Decree, defendant shall be liable to the United States for any costs and attorney's fees incurred by the United States in any action against the defendant for noncompliance with this Consent Decree.

28. The provisions of this Consent Decree shall be severable, and should any provision be declared by a court of competent jurisdiction to be inconsistent with Federal or State law and therefore unenforceable, the remaining provisions shall remain in full force and effect. ++EP++

/s/ Joseph P. Palmier

JOSEPH P. PALMIER, Esq.

3003 Minnesota Dr.

Suite 203

Anchorage, Alaska 99503

Attorney for defendant

Eastwind, Inc.

29 July 90

/s/ Robert Lefevre

ROBERT LEFEVRE

Trial Attorney

U.S. Dept. of Justice

Environment & Natural

Resources Div.

10th & Constitution

Wash., D.C. 20530

/s/ Adrianne Allen/G Robert Lefevre

ADRIANNE ALLEN

Assistant Regional Counsel

USEPA - Region 10

Office of Regional Counsel

1200 Sixth Avenue

Seattle, WA. 98101

Dated and entered this 27 day of August, 1990

cc: J. Bottini (AUSA)

J. Palmier (PALMIER)

J. Stanley

O&J 3907

/s/ ILLEGIBLE SIGNATURE

UNITED STATES DISTRICT JUDGE

United States District Court for the District of

Alaska ++EP

NORDLUM, ROGER

DOC 02 of 02

Consent Decree

10-90-C004

CWA

OTHER

19890925

19890925

AKD981767346

CANDLE CREEK, CAMP 21

CANDLE, AK

A87-489

10

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

ROGER NORDLUM, Defendant.

Civil No. A87-489

CONSENT DECREE

Plaintiff United States of America, on behalf of the Administrator of the United States Environmental Protection Agency (EPA), and Defendant Roger Nordlum (Defendant) agree to entry of this Consent Decree to settle claims made by the United States against Defendant in the complaint filed in this action on October 14, 1987. The complaint, as amended, alleges that Defendant violated the Clean Water Act, 33 U. S.C. Section 1251 et seq., by discharging pollutants from his placer mine into Candle Creek.

Each undersigned representative of the parties to this Decree certifies that he or she is fully authorized to execute this Decree on behalf of the party he or she represents and to legally bind such party. The consent of the United States, however, is subject to the requirements of 28 C.F.R. Section 50.7. ++EP++

Page 2

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED:

I. Jurisdiction and Venue

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1445 and Section 309(b) of the Clean Water Act, 33 U.S.C. Section 1319(b), and over the parties to this action. Defendant waives any objections he may have to personal jurisdiction or venue. The complaint filed in this action states a claim upon which relief may be granted.

II. Public Interest

2. The Court finds that this Decree has been entered into in good faith and is in the public interest.

III. Parties Bound

3. This Decree shall bind Defendant and any of his successors and assigns, including but not limited to, any officers, directors, agents, employees, contractors or consultants engaged in activities related to Defendant's placer mining operations and all persons, corporations or other entities who discharge pollutants under the authority of any NPDES permit issued to Defendant, including but not limited to any NPDES permit issued pursuant to Section 402 of the Clean Water Act, 33 U.S.C. Section 1342, regardless of whether such permit has been transferred by Defendant in accordance with 40 C.F.R. Section 122.61.

4. Defendant shall notify all persons or entities subject to this Decree of the terms of this Decree and shall give those persons or entities a copy of this Decree. Defendant shall notify EPA Region 10 in writing that this notice has been given. ++EP++

Page 3

5. Defendant shall notify all successors and assigns in interest of the terms of this Decree and shall provide those successors with a copy of this Decree prior to transfer of ownership or operation of any mine or mining claim owned or operated by Defendant. Defendant shall notify EPA Region 10 in writing that this notice has been given.

IV. Purpose

6. The purpose of this Decree is to ensure Defendant's full compliance with the Clean Water Act.

V. Stipulations and Findings of Fact

7. During the 1986 mining season, Defendant owned and operated a placer gold mine near Candle, Alaska. That facility discharged wastewater into Candle Creek.

8. On July 16, 1986, Defendant Roger Nordlum was discharging placer mining wastewater directly to the waters of Candle Creek without an NPDES permit.

9. On July 16, 1986, EPA Inspectors observed Defendant discharging placer mining wastewater directly to the waters of Candle Creek without treatment.

VI. Conclusions of Law

10. The placer mining wastes discharged by the defendant were "pollutants" as defined by Section 502(6) of the Clean Water Act, 33 U. S.C. Section 1362(6).

11. Defendant's discharge of placer mining wastes was the "discharge of a pollutant" as defined by Section 502(12) of the Clean Water Act, 33 U.S.C. Section 1362(12). ++EP++

Page 4

12. The waters of Candle Creek, to which the discharges described in paragraph 9 above were made, are "waters of the United States" within the meaning of Section 502(7) of the Clean Water Act, 33 U.S.C. Section 1362(7).

13. Defendant's sluice box discharge was a "point source" within the meaning of Section 502(14) of the Clean Water Act, 33 U.S.C. Section1362(14).

14. Defendant's discharge of placer mining wastes to the waters of Candle Creek as described in paragraph 9 above was not in compliance with an effective NPDES permit and thereby violated Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

VII. Civil Penalty

15. Defendant shall, upon entry of this Decree, pay a civil penalty of $5,000 for all past violations of the Clean Water Act occurring prior to July 16, 1986. Defendant shall pay by cashier's or certified check made payable to the "Treasurer of the United States of America." The check shall be delivered or mailed, certified return receipt, to the Office of the United States Attorney for the District of Alaska, 701 C Street, Room C-252, Box 9, Anchorage, Alaska 99513. The check shall include the case caption as well as the case number on the face of the check. A copy shall be simultaneously mailed by the defendant to:

Susan Lee

Office of Regional Counsel

1200 Sixth Avenue, SO-125

Seattle, Washington 98101. ++EP++

This civil penalty shall not be used as a deduction for purposes of federal income tax.

Page 5

16. In the event that voluntary payment of the civil penalty assessed in this Decree is not paid, without further order of this Court, this Decree shall be considered an enforceable judgement for purposes of postjudgement collection in accordance with F.R.C.P. 69 and other federal statutory authority.

VIII. Compliance Program

17. Defendant is enjoined from operating, in any capacity other than as an employee, or financing any placer mine that discharges pollutants into waters of the United States unless that mine is in compliance with a valid NPDES permit and the requirements of the Compliance Plan attached to this Decree as Appendix A. This Compliance Plan is incorporated in, and made an enforceable part of this Decree.

18. By its consent to entry of this Decree, the United States does not warrant that Defendant's compliance with the Decree or compliance plan will ensure compliance with the Clean Water Act. Any dispute concerning the Defendant's liability for noncompliance with the terms and conditions of this Decree shall be resolved by the Court. Defendant shall nevertheless remain solely responsible for compliance with the Act, and the United States does not waive any rights or remedies available to it for any violation of the Clean Water Act by Defendant occurring after July 16, 1986. ++EP++

Page 6

19. Performance of the terms of this Decree by Defendant is not conditioned on the receipt of any federal or state grant funds. Performance is not excused by the lack of any such funds, or any delay in the processing of any application for such funds.

20. This Decree is not an NPDES permit within the meaning of Section 402 of the Act, 33 U.S.C. Section 1342. Any NPDES permit must be obtained in accordance with applicable federal and state law.

21. This Decree in no way affects Defendant's responsibility to comply with any other federal, state or local law.

22. This Decree does not require Defendant either to cease or to continue operating any placer mine. If Defendant decides to cease operating a mine which is subject to this decree, he shall notify EPA of his intention not to mine by March 31 of the year in which operation is to cease.

23. Nothing in this Decree shall in any way limit or restrict Defendant's right to appeal or challenge the terms or conditions of any NPDES permit issued to Defendant otherwise authorized by the Clean Water Act or the regulations promulgated thereunder.

IX. Reclamation Program

24. During 1989, Defendant shall perform stream rehabilitation of Candle Creek and site rehabilitation of the areas on Candle Creek previously mined by the Defendant. Defendant's reclamation efforts shall comply and be in accordance with the Best Management Practices for Placer Mining Reference Manual (January 1986), Alaska Department of Fish and Game. ++EP++

Page 7 X. Force Majeure

25. If any event occurs that causes or may cause a delay or a violation of any provision of this Decree, including the Compliance Plan, Defendant shall notify EPA Region 10 in writing within ten days of the event. The notice shall describe the nature of the violation, cause of the violation, the length of time it will continue, the measures defendant has taken and will take to prevent or minimize the violation and the schedule for implementing remedial measures. Failure by the Defendant to timely submit such written notification shall constitute a waiver of the Defendant's ability to request any relief from the obligations of this Decree based on such event.

26. If Defendant demonstrates that the delay or anticipated delay has been or will be caused by circumstances beyond his control and despite his due diligence, then the time for performance hereunder shall be excused for a period equal to the delay resulting from such circumstances. However, neither increased costs for performance of the terms and conditions of this Decree nor changed economic circumstances may be considered circumstances beyond Defendant's control. The burden of proving that a failure to comply with this Decree was caused solely by an event beyond the control of Defendant shall be on Defendant.

27. An extension of time for compliance with any requirement of this Decree does not necessarily result in an extension for any other requirement. Defendant must make a separate showing for each requirement for which an extension is sought. ++EP++

Page 8 XI. Access and Inspections

28. Defendant shall allow authorized EPA representatives to inspect any placer mine that Defendant owns or operates, or in which Defendant has an ownership or leasehold interest. Inspection may take place at EPA's discretion without advance notice. Inspections may take place at all reasonable times, without a warrant, upon presentation of EPA credentials. EPA's inspection authority shall include all areas where placer mining facilities or equipment are located, as well as all areas where records relating to placer mining are kept. EPA shall have the right to copy all records relating to placer mining. EPA shall have the right to sample, monitor and photograph Defendant's mines. During the placer mining season, Defendant shall maintain at the mine site all operating and monitoring records required by the applicable NPDES permit or this Decree. The provisions of this paragraph are in addition to any other right of entry or inspection available to EPA or the United States.

XII. Stipulated Penalties

29. Failure by the Defendant to comply with any applicable requirement in this Consent Decree shall require the Defendant to pay stipulated civil penalties of $5,000 per day per violation of this Consent Decree. Defendant shall pay stipulated penalties by certified check payable to the "Treasurer of the United States," which will be mailed by certified mail, return receipt requested, to the Office of United States Attorney for the District of Alaska, Anchorage, Alaska. The Defendant shall immediately notify EPA of any payment by mailing a photocopy of the check to EPA Region 10. ++EP++

Page 9 XIII. Retention of Rights Against Third Parties

30. This Decree does not affect the rights of the United States or Defendant against any parties that do not sign this Decree.

XIV. Costs and Attorneys' Fees

31. Each party shall bear its own costs and attorney's fees in this action and in any subsequent proceedings related to this Decree.

XV. Addresses

32. For purposes of providing notice and making payments under this Decree, the following are the addresses of the parties to this Decree. These addresses may be changed upon written notice to all other parties.

For payment of civil penalties and stipulated penalties:

Office of the United States Attorney

Federal Building

701 C Street

Anchorage, Alaska 99513

For notice as required by paragraphs 4, 15, 21, 24 and 28 and Appendix A:

EPA Region 10

Chief, Water Compliance Section (WD-135)

1200 Sixth Avenue

Seattle, Washington 98101

For notice by Plaintiff to Defendant:

Roger Nordlum

Box 171

Kotzebue, Alaska 99752

XVI. Modification

33. Any modification of this Decree must be at the consent of the parties, shall be in writing and must be approved by the Court. ++EP++

Page 10 XVII. Retention of Jurisdiction and Termination

34. This Court shall retain jurisdiction over this action to issue such further orders and relief as may be necessary and appropriate to interpret this Decree and effectuate its purposes.

35. This Decree shall terminate on December 31, 1991, except that any civil penalty liability (including any liability for stipulated penalties) which has accrued prior to that time shall not terminate until paid in full, and the Court shall retain continuing jurisdiction for the purpose of ensuring that all outstanding civil penalties are paid in full.

FOR DEFENDANT

/s/ Roger Nordlum

ROGER NORDLUM

Dated: 19 Dec 1988

/s/

RAY GARDNER

Attorney at Law

Dated: January 17th 1989

FOR UNITED STATES OF AMERICA

/s/ Donald A. Carr, Acting

Donald A. Carr, Acting

Assistant Attorney General

Land and Natural Resources Division

United States Department of Justice

Dated: May 17, 1989

/s/

Acting United States Attorney

District of Alaska

Dated: July 10, 1989 ++EP++

Page 11

/s/ Karen S. Dworkin

KAREN S. DWORKIN

Environmental Enforcement Section

Land and Natural Resources Division

United States Department of Justice

Washington, D.C. 20530

Dated: Jan 30, 1989

/s/

EDWARD E. REICH

Acting Assistant Administrator for Enforcement & Compliance Monitoring

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Dated: 3/8/89

/s/

ROBIE G. RUSSELL

Regional Administrator

U.S. Environmental Protection Agency

Region 10, 1200 Sixth Avenue

Seattle, Washington 98101

Dated: 3/15/89

IT IS SO ORDERED, ADJUDGED, AND DECREED this 25 day of Sept 1987.

/s/

United States District Judge

cc: O & J 3621 D. Dunsmore

(AUSA)

R. Gardiner (HARTIG) ++EP++

NORDLUM, ROGER

DOC 01 of 02

Complaint

10-90-C004

CWA

OTHER

19890925

19871014

AKD981767346

CANDLE CREEK, CAMP 21

CANDLE, AK

A87-489

10

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

ROGER NORDLUM, Defendant.

Case No. COMPLAINT A87-489 CN

The United States of America, through its undersigned attorneys and by authority of the Attorney General, on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), alleges as follows:

1. This is a civil action brought under Section 309 of the Clean Water Act (the "Act"), 33 U.S.C. Section 1319, for assessment of a civil penalty and for injunctive relief against defendant Roger Nordlum for his discharges of pollutants into waters of the ++EP++

United States in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311.

Page 2

2. The Attorney General of the United States is authorized to bring this action pursuant to 28 U.S.C. Sub-Section 516 and 519.

3. This Court has jurisdiction over this action pursuant to 28 U.S. C. Sub-Section 1331, 1345 and 1355, and 33 U.S.C. Section 1319.

4. Venue is properly in this Court pursuant to 28 U.S.C. Sub-Section 1391 and 1395.

5. Notice of the commencement of this action has been given to the State of Alaska pursuant to 33 U.S.C. Section 1319(b).

6. Defendant owns and operates a gold placer mine near Candle, Alaska. The mine is located on, and discharges to Candle Creek, a tributary of the Kiwalik River.

7. Section 301 of the Act, 33 U.S.C. Section 1311, prohibits any person from discharging pollutants into waters of the United States unless the discharge is authorized by and in compliance with, inter alia, the terms and conditions of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to Section 402 of the Act, 33 U.S.C. Section 1342.

8. Defendant is a person within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5).

9. During the 1986 mining season, defendant discharged pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), from his placer mine into Candle Creek. ++EP++

Page 3

10. Candle Creek is a navigable water of the United States within the meaning of Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

11. Pollutants were discharged from defendant's placer mine through a point source within the meaning of Section 502(14) of the Act, 33 U. S.C. Section 1362(14).

12. On May 10, 1985, EPA issued NPDES permit No. AK0042676, effective June 10, 1985, through December 31, 1986, to defendant. This permit authorized defendant to discharge pollutants from his placer mine into Candle Creek subject to certain effluent limitations, monitoring and reporting requirements, and other conditions.

13. On July 16, 1986, EPA conducted an inspection of defendant's mine. Defendant was discharging untreated sluice box wastewater directly into Candle Creek. In addition, defendant had not been collecting effluent samples for analysis of settleable solids, turbidity and total arsenic. Analysis of water samples taken at that time showed that effluent concentrations for settleable solids and turbidity exceeded the limitations contained in defendant's permit. Defendant did not notify EPA of his noncompliance with the conditions of his NPDES permit.

14. During the 1986 mining season, defendant failed to comply with the terms and conditions of his NPDES permit, in violation of Sections 301(a) of the Act, 33 U.S.C. Sub-Section 1311(a) in that: ++EP++

Page 4

a. defendant discharged untreated sluice box wastewater directly into Candle Creek;

b. defendant discharged pollutants from his placer mine into Candle Creek in excess of the effluent limitations of his permit;

c. defendant failed to sample effluent;

d. defendant failed to comply with the best management practices and wastewater treatment construction requirements of his NPDES permit;

e. defendant failed to submit timely written notice of his noncompliance with the permit; and

f. defendant failed to submit proper discharge monitoring reports.

15. Pursuant to Section 309 of the Act, 33 U.S.C. Section 1319, defendant is liable for civil penalties of up to $10,000.00 per day for each violation of Section 301 of the Act, 33 U.S.C. Section 1311(a).

16. Unless restrained by order of this Court, defendant will continue to discharge pollutants into waters of the United States in violation of the Act.

WHEREFORE, Plaintiff United States of America prays that the Court:

a. Assess a civil penalty against defendant of $10,000 per day for each violation of the Act;

b. Enter a permanent injunction against defendant requiring him to cease violations of the Act; ++EP++

Page 5

c. Grant the United States such further relief as the Court may deem appropriate.

Respectfully submitted,

MICHAEL R. SPAAN

United States Attorney

District of Alaska

/s/

ROGER J. MARZULLA

Acting Assistant Attorney General

Land and Natural Resources Division

/s/ Karen S. Dworkin

KAREN S. DWORKIN

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

P.O. Box 7611

Ben Franklin Station

Washington, D.C. 20044

OF COUNSEL:

DAVID DRELICH

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460

MONICA KIRK

U.S. Environmental Protection

Agency - Region X

1200 Sixth Avenue, SO-125

Seattle, Washington 98101 ++EP++

KETCHIKAN PULP CO

DOC 02 of 02

Consent Decree

10-90-C003

CWA

PAPER

19891128

19891130

AKD009252230

LOUISIANA PACIFIC CORP

KETCHIKAN, AK

A88-430

10

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

KETCHIKAN PULP COMPANY, Defendant.

CONSENT DECREE Civil No. A 88-430

Plaintiff United States of America, on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and Defendant Ketchikan Pulp Company ("KPC") agree to entry of this Consent Decree to settle claims made by the United States against KPC in the complaint filed in this action on September 26, 1988. The complaint alleges that KPC violated the Clean Water Act ("Act"), 33 U.S.C. Section 1251 et seq., by discharging pollutants from its pulp mill into Ward Cove in violation of both the terms of its National Pollutant Discharge Elimination System ("NPDES") permit, which incorporates national ++EP++

effluent guidelines for the pulp, paper and paperboard industry, and the terms of an administrative order.

Page 2

The undersigned representative of KPC and the Assistant Attorney General of the United States Department of Justice certifies that he or she is authorized to execute this Decree on behalf of the party he or she represents and to legally bind that party subject to the requirements of 28 C.F.R. Section 50.7.

NOW, THEREFORE, it is hereby STIPULATED, ORDERED, ADJUDGED AND DECREED as follows:

JURISDICTION AND VENUE

1. The complaint filed in this action states a claim upon which relief may be granted against KPC. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1331 and section 309(b) of the Act, 33 U.S.C. Section 1319(b), and jurisdiction over the parties to this action.

PUBLIC INTEREST

2. The Court finds that this Decree has been entered into in good faith and is in the public interest.

PARTIES BOUND

3. This Decree binds KPC and any of its officers, directors, and employees who are engaged in activities related to its pulp mill operations and all others who discharge pollutants under the authority of any NPDES permit issued to KPC whether or not the permit has been transferred by KPC under 40 C.F.R. Section 122.61. ++EP++

Page 3

4. KPC shall notify promptly all persons to whom it has transferred any NPDES permit of the terms of this Decree and shall provide those persons with a copy of this Decree. KPC shall notify EPA Region 10 in writing within 20 days after notice has been given.

5. KPC shall notify promptly all its successors in interest of the terms of this Decree and shall provide them with a copy of the Decree before transferring ownership or operation of its mill to them. KPC shall notify EPA Region 10 in writing within 20 days after notice has been given.

PURPOSE

6. The purpose of this Decree is to ensure KPC's full compliance with the Act.

FINDINGS OF FACT

7. KPC owns and operates a dissolving sulfite pulp mill near Ketchikan, Alaska. The mill discharges to Ward Cove process wastewater which contains pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6). This discharge constitutes the discharge of pollutants from a point source within the meaning of Section 502(12) of the Act, 33 U.S.C. Section 1362(12).

8. Ward Cove is "waters of the United States" within the meaning of section 502(7) of the Act, 33 U.S.C. Section 1362(7).

9. On December 28, 1984, EPA issued NPDES permit No. AK-000092-2 to KPC for discharges from its mill. The permit took effect January 28, 1985, and will expire January 29, 1990. ++EP++

Page 4

10. KPC's permit establishes effluent limits restricting the discharge of process wastewater from KPC's mill to Ward Cove. Among other requirements, the permit limits the biochemical oxygen demand ("BOD") and pH of the process wastewater and requires the submissions of toxicity monitoring reports. These limits and requirements took effect January 28, 1985.

11. On the date the permit was issued, the mill's treatment system could not achieve compliance with the effluent limits the permit established for BOD. EPA and KPC therefore agreed to an administrative order setting forth a schedule for compliance with the permit limits for BOD. The administrative order also provided a three-year construction program and schedule of projects to reduce KPC's daily average BOD discharge levels from 52,500 pounds per day in 1985 to the permit's effluent limit of 32,400 pounds per day and daily maximum BOD discharge levels from 78,750 pounds per day in 1985 to the permit's effluent limit of 62,400 pounds per day by December 31, 1987. EPA issued the administrative order under the authority of section 309(a) of the Act, 33 U.S.C. Section 1319(a), on January 2, 1985.

12. KPC failed to achieve full compliance by December 31, 1987, with the permit's BOD discharge limit of 32,400 pounds per day (daily average) and 62,400 pounds per day (daily maximum). KPC earlier failed fully to meet other provisions of the administrative order as follows: ++EP++

Page 5

(a) KPC failed to meet four interim deadlines in the administrative order for construction projects and testing;

(b) KPC failed to achieve complete BOD compliance by the final deadline in the administrative order, December 31, 1987;

(c) KPC failed to meet interim monthly average discharge limits provided in the administrative order for BOD on five months: June 1986, August 1986, March 1987, June 1987, and September 1987.

13. KPC exceeded the pH limits of its NPDES permit at least 68 times between 1985 up until April 1, 1989. KPC also failed to submit several required toxicity reports, including those due November 1983, May 1985, May 1986, and November 1986. KPC also exceeded the daily average discharge limit for BOD during April, May, June, July and September 1988, and the daily maximum limit for BOD during June, July and September 1988, and the daily average maximum limits for TSS during September, 1988.

CIVIL PENALTY

14. KPC shall pay a civil penalty of $175,000 for all of KPC's violations of its NPDES permit occurring through April 1, 1989, exclusive of any unpermitted discharges or spills which may have occurred at the facility.

15. KPC shall pay an additional amount to be added to the civil penalty in paragraph 14 for any exceedances or other ++EP++ violations of its NPDES permit that occur after April 1, 1989 up to the date of lodging of this Decree, as follows:

Page 6

(a) $1,200 for each violation of the daily maximum limit and $10,200 for each monitoring month in which the daily average limit in the NPDES permit for BOD or TSS is violated as reflected in KPC's Discharge Monitoring Reports;

(b) $1,200 for each day of violation of the pH limit in the NPDES permit as reflected in KPC's Discharge Monitoring Reports;

(c) $250 per day for the first ten days of noncompliance, $500 per day for the following ten days of noncompliance, and $750 per day thereafter for failure to comply with the bio-monitoring requirements of its NPDES permit.

16. KPC shall make its payment of the civil penalty in paragraphs 14 and 15 above within 30 days after lodging of this Decree by cashier's or certified check payable to the Treasurer of the United States. The check shall be delivered or mailed, certified return receipt requested, to:

Michael Spaan

United States Attorney

U.S. Federal Building &

Courthouse, Room C-252

701 C Street, Mail Box 9

Anchorage, Alaska 99513

KPC shall promptly notify EPA of payment by mailing a photocopy of the check to EPA Region 10.

17. If KPC does not timely pay the civil penalty as specified in paragraph 14 through 16 above, this Decree shall be considered an enforceable judgment for purposes of post-judgment ++EP++

collection under Federal Rule of Civil Procedure 69 and other applicable statutory authority without further order of this court.

Page 7

KPC shall pay ten percent per year in interest from the date of entry of this Decree to the date of payment.

REPORTING

18. Unless otherwise provided, KPC shall send all submittals required by this Decree, including notice, to EPA Region 10 at the following address:

U.S. EPA, Region 10

Water Compliance Section

1200 Sixth Ave., WD-135

Seattle, WA 98101

STIPULATED PENALTIES

19. For failure to comply with the requirements of paragraph 18, KPC shall pay a stipulated penalty in the amount of $250 per day for the first ten days of noncompliance, $500 per day for the following ten days noncompliance, and $750 per day thereafter.

20. For failure to comply with the effluent limits for BOD and TSS required by its NPDES permit, KPC shall pay a stipulated penalty of $1,200 for each violation of the daily maximum limit and $10,200 for each monitoring month in which the daily average limit for BOD or TSS is violated.

21. For failure to comply with the effluent limits of its permit for pH, KPC shall pay a stipulated penalty of $1,200 for each day a violation occurs. ++EP++

Page 8

22. As set forth in KPC's permit, "daily maximum" means the maximum value attained on any day in a given monitoring month and "daily average" means the total units discharged during a monitoring month divided by the number of days in that period that the production or commercial facility was operating.

23. For failure to comply with the bio-monitoring requirements of its permit, KPC shall pay a stipulated penalty of $250 per day for the first ten days of noncompliance, $500 per day for the following ten days of noncompliance, and $750 per day thereafter.

24. Penalties for all other violations of this Decree not addressed by paragraph 19 through 23 may be set by the court upon petition by the United States.

25. On the fifteenth day of each month until this Decree terminates, KPC shall notify EPA Region 10 in writing of each day of the preceding calendar month for which any stipulated penalty is payable under this Decree and shall pay any amounts then accrued. KPC shall make payment by certified or cashier's check payable to the Treasurer of the United States and shall mail the check by certified mail, return receipt requested, to the following address:

Michael Spaan

United States Attorney

U.S. Federal Building &

Courthouse

Room 252

701 C Street, Mail Box 9

Anchorage, AK 99513

KPC shall mail a copy of the transmittal of its payment to EPA Region 10. ++EP++

Page 9

26. Payment of a stipulated penalty does not relieve KPC from complying with the obligations imposed by this Decree, its permit, or the Act, and does not limit the right of the United States to enforce their provisions.

FORCE MAJEURE

27. KPC's obligation to meet the requirements set forth in this Decree may only be excused to the extent that the failure, delay, or anticipated delay is caused solely by events beyond the control and without the fault of KPC. KPC bears the burden of proving by clear and convincing evidence that the delay was or will be due to events beyond its control and without its fault. Changed business conditions or economic circumstances and increased costs of compliance may not be considered as beyond the control and without the fault of KPC.

28. If any event occurs that causes or may cause KPC to violate a provision of this Decree, KPC shall orally notify EPA Region 10 within 24 hours of discovery or the first regular business day thereafter and shall confirm its oral notice in writing within seven days. The written notice must describe the nature and cause of the violation, the length of time it is expected to continue, the measures taken and to be taken to implement remedial measures. Failure to comply with this paragraph will render paragraph 29 below void as to the applicable event and will constitute a waiver of KPC's right to seek relief from its obligations based on that event. ++EP++

Page 10

29. KPC may petition the court for a finding that a force majeure event as defined by this Decree excuses a violation on the basis that the conditions of paragraphs 27 through 28 have been met.

ACCESS AND INSPECTIONS

30. KPC shall allow authorized EPA representatives to inspect its pulp mill facilities at EPA's discretion without advance notice for purposes of monitoring this Decree. Inspections shall take place at any reasonable time upon presentation of EPA credentials by the representatives. EPA may inspect all areas where equipment is located or where records are kept. EPA has the right to take samples, perform monitoring, and take photographs. KPC shall maintain at the site of its pulp mill operations all operating and monitoring records required by its NPDES permit or this Decree. EPA representatives have the right to copy all operating and monitoring records relating to KPC's pulp mill operations. EPA will keep operating and production records confidential for at least seven days following collection to enable KPC to assert a confidentiality claim pursuant to 40 C.F.R. Section2.112 if it desires. These provisions supplement, and do not limit, other rights of entry and inspection available to EPA or the United States under the Act or other applicable authority.

RETENTION OF RIGHTS AGAINST THIRD PARTIES

31. This Decree does not affect the right of the ++EP++

United States or KPC against any person not a signatory to this Decree.

Page 11 MODIFICATION

32. This Decree may be modified only with written consent of the parties and court approval.

TERMINATION

33. This Decree will terminate six months after entry, except that any civil penalty liability, including liability for stipulated penalties, which has accrued before that date will not terminate until paid in full. The court will retain continuing jurisdiction to ensure that all outstanding civil penalties are paid.

DISPUTE RESOLUTION

35. In the event that a dispute arises between the parties regarding implementation or interpretation of the Decree, the parties shall attempt to resolve the dispute by informal negotiations. If the parties cannot resolve the dispute informally within 21 days, EPA shall provide KPC with a written statement of its position within 21 days thereafter. EPA's position shall control, unless KPC petitions the Court within 30 days to decide the matter.

RESERVATION OF RIGHTS

36. KPC retains any rights it may otherwise have under the Act and regulations promulgated thereunder. In the event a change in law alters KPC's rights or obligations under the Act in ++EP++

a manner inconsistent with its rights and obligations under this Decree, KPC may petition the Court for relief from this Decree.

Page 12 GENERAL PROVISIONS

37. This court will retain jurisdiction over this action to issue additional orders and relief as may be appropriate to effectuate this Decree.

38. KPC shall comply with all requirements of the Act and its implementing regulations during the pendency of this Decree.

39. Performance of the terms of this Decree by KPC may not be excused by the lack of adequate funds to complete its requirements.

40. This Decree is not an effluent discharge permit within the meaning of section 402 of the Act, 33 U.S.C. Section 1342. Any NPDES permit must be obtained in accordance with applicable federal and state laws.

41. This Decree does not affect KPC's responsibilities to comply with federal, state, and local laws.

42. This Decree does not require KPC either to cease or to continue its operations. If KPC decides to terminate its pulp mill operations, it shall notify EPA Region 10 of its intent within 30 days after the date on which a corporate decision to cease operations was made.

43. Each party shall bear its own costs and attorney's ++EP++

fees in this action and in any later proceedings related to this Decree.

Page 13

44. The parties acknowledge that final approval and entry of this Decree are subject to the requirements of 28 C.F.R. Section50.7.

IT IS SO ORDERED and ENTERED this 28 day of Nov. 1989.

/s/

United States District Judge

FOR DEFENDANT KETCHIKAN PULP COMPANY:

/s/ M. R. Pihl

MARTIN R. PIHL

President and General Manager

FOR PLAINTIFF UNITED STATES OF AMERICA

cc: N. Evans (AUSA)

D. Shoup (HELLEN)

O&J 3660

/s/ Richard B. Stewart

RICHARD B. STEWART

ASSISTANT ATTORNEY GENERAL

Land and Natural Resources

Division

U.S. Department of Justice

/s/ Nancy Flickinger.

NANCY FLICKINGER, Attorney

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

MICHAEL R. SPAAN

United States Attorney

U.S. Department of Justice ++EP++

KETCHIKAN PULP CO

DOC 01 of 02

COMPLAINT

10-90-C003

CWA

PAPER

19891128

19890923

AKD009252230

LOUISIANA PACIFIC CORP

KETCHIKAN, AK

A88-430

10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

KETCHIKAN PULP COMPANY, Respondent.

Civil No. A888-430

COMPLAINT

COMPLAINT

Plaintiff, the United States of America ("United States"), by authority of the Attorney General and at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), alleges that:

1. This is a civil action seeking injunctive relief and civil penalties for violations of Section 301 of the Clean Water ("Act"), 33 U.S.C. Section 1311, and civil penalties for violations of Section 309( a) of the Act. ++EP++

Page 2 JURISDICTION

2. This Court has jurisdiction over this action under Section 309( b) and (d) of the Act, 33 U.S.C. Section 1319(b) and (d), and 28 U.S.C. Sub-Section 1345 and 1355.

3. Authority to bring this action is vested in the United States Department of Justice by 28 U.S.C. Sub-Section 516 and 519, and 33 U.S. C. Section 1366. Notice of the commencement of this action has been given to the State of Alaska.

DEFENDANT

4. Defendant, Ketchikan Pulp Company ("KPC"), is a State of Washington corporation and does business in the State of Alaska. KPC is a "person" within the meaning of Section 502(5) of the Act, 33 U.S. C. Section 1362(5).

STATEMENT OF CLAIM

5. KPC owns and operates a dissolving sulfite pulp mill near Ketchikan, Alaska. The mill discharges to Ward Cove process water which contains pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. 1362(6). This discharge constitutes the discharge of pollutants from a point source within the meaning of Section 502(12) of the act, 33 U.S.C. 1362(12).

6. Ward Cove is "waters of the United States" within the meaning of Section502(7) of the Act, 33 U.S.C. Section 1362(7).

7. Section 301(a) of the Act, 33 U.S.C. Section 1311(a), prohibits, among other things, the discharge of any pollutant ++EP++

into waters of the United States by any person except in compliance with a permit issued by the U.S. Environmental Protection Agency ("EPA") under Section 402 of the Act, 33 U.S.C. Section 1342.

Page 3

8. On December 28, 1984, EPA issued National Pollutant Discharge Elimination System ("NPDES") permit No. AK-000092-2 ("permit") to KPC for discharges from its mill. The permit took effect January 28, 1985, and will expire January 29, 1990.

9. KPC's permit establishes effluent limits restricting the discharge of process wastewater from KPC's mill to Ward Cove. Among other requirements, the permit limits the biochemical oxygen demand ("BOD") and pH of the process wastewater and requires the submission of toxicity reports. These limits took effect January 28, 1985.

10. On the date the permit was issued, the mill's treatment system could not achieve compliance with the effluent limits the permit established for BOD. EPA and KPC therefore agreed to an administrative order setting forth a schedule for compliance with the permit limits for BOD. The administrative order also provided a three-year construction schedule of projects to reduce KPC's average BOD discharge levels from 52,500 pounds per day in 1985 to the permit's effluent limit of 32,400 pounds per day by December 31, 1987. EPA issued the administrative order under the authority of Section 309(a) of the Act, 33 U.S.C. Section 1319(a), on January 2, 1985. ++EP++

Page 4

11. KPC has violated the terms of the administrative order by failing to achieve compliance by December 31, 1987 with the permit's BOD discharge limit of 32,400 pounds per day. KPC had earlier failed to meet seven of the scheduled activity deadlines and failed to meet other provisions of the administrative order at least 519 times.

12. KPC has violated the terms of its NPDES permit. It exceeded the pH limits on at least 65 days during 17 of the last 42 months: February through May 1985, September 1985, December 1985, January 1986, July 1986, August 1986, February 1987, May 1987, July through December 1987, and March 1988. KPC failed to submit five required toxicity reports, including those due November 1983, November 1984, May 1985, May 1986, and November 1986. KPC also exceeded the daily average discharge limit for BOD during April, May, June and July, 1988, and the daily maximum limit for BOD during June and July, 1988.

FIRST CLAIM FOR RELIEF

13. The allegations in Paragraph 1 through 12 are realleged and incorporated herein by reference.

14. KPC's discharge of BOD in excess of the NPDES permit limits for BOD, and its other discharges of pollutants in excess of the limits in its NPDES permit, violated Section 301(a) of the Act, 33 U.S.C. Section 1311(a). Defendant is liable for civil penalties for such violations pursuant to Section 309(d) of the ++EP++

Page 5

Act, 33 U.S.C. Section 1319(d), and for such injunctive relief as may be appropriate.

SECOND CLAIM FOR RELIEF

15. The allegations in Paragraph 1 through 14 are realleged and incorporated herein by reference.

16. KPC's continuing failure to comply with the administrative order's requirement to achieve the permit's limit for BOD of 32,400 pounds per day violates Section 309(a) of the Act, 33 U.S.C. Section1319(a). Defendant is liable for civil penalties for such violations pursuant to Section 309(d) of the Act.

THIRD CLAIM FOR RELIEF

17. The allegations in Paragraph 1 through 17 are realleged and incorporated herein by reference.

18. Defendants' failure to submit toxicity reports required by its NPDES permit violated Section 308 of the Act, 33 U.S.C. Section 1318. Defendant is liable for civil penalties for such violations pursuant to Section 309(d) of the Act, 33 U.S.C. Section1319(d), and for such injunctive relief as may be appropriate.

PRAYER FOR RELIEF

Based on the above allegations the United States requests this Court to issue the following relief:

1. An injunction directing KPC to comply with the ++EP++

requirements of its permit under the terms of a compliance schedule developed by EPA;

Page 6

2. A judgment imposing on defendant civil penalties for past violations of Section 301(a) of the Act not to exceed $10,000 per day of such violations occurring before February 4, 1987; and not to exceed $25,000 per day per violation occurring on or after February 4, 1987 up to the date of judgment herein;

3. A judgment imposing on defendant civil penalties for past violations of Section 309(a) of the Act not to exceed $25,000 per day per such violations up to the date of judgment herein; and

3. Such other relief as the Court considers appropriate. ++EP++

Dated: Septermber 23, 1988

Respectfully submitted,

MICHAEL R. SPAAN

United States Attorney

By:

Assistant United States Attorney

Federal Building & U.S. Courthouse ++EP++

Page 7

Room C-252, Mail Box 9

701 C. Street

Anchorage, Alaska 99513

/s/

ROGER J. MARZULLA

Assistant Attorney General

U.S. Department of Justice

Land & Natural Resources Division

/s/ Nancy A. Flickinger

NANCY A. FLICKINGER, Attorney

Environmental Enforcement Section

Land & Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania, N.W.

Washington, D.C. 20530

(202) 633-1113

OF COUNSEL:

Ann E. Prezyna

United States Environmental

Protection Agency

Region 10 ++EP++

ARMOUR FRESH MEATS/CON AGRA

Doc 02 of 02

Consent Decree

10-89-C006

CWA

FOOD

19880530

19890530

IDD000875252

ARMOUR FOOD CO

NAMPA, ID

CIV-86-1433

10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA, Plaintiff,

v.

ARMOUR FRESH MEATS CO., AND CON AGRA, INC., Defendants.

Civil No. 86-1433

CONSENT DECREE

Plaintiff, United States of America, on behalf of the United States Environmental Protection Agency ("EPA"), filed a Complaint against Defendants, Armour Fresh Meats Co. ("Armour") and Con Agra, Inc., pursuant to Section 309 of the Clean Water Act ("CWA"), 33 U.S.C. Section 1319, on December 5, 1986, alleging that Defendants discharged pollutants into navigable waters of the United States in violation of their permit under the Act. The Complaint seeks injunctive relief and civil penalties against Defendants for discharging pollutants into waters of the United States in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a), and in violation of their permit no. ID-000078-7.

The parties, upon signature by their attorneys and authorized officials, consent to entry of this Consent Decree. This Decree adjudicates ++EP++

and resolves the claims as alleged in the Complaint filed herein and civil liability for any NPDES permit violations at the Armour facility in Nampa, Idaho, which occurred prior to the date of lodging of the Decree.

Page 2

NOW THEREFORE, based upon the foregoing, without trial of any issue of fact or law, or testimony taken, and upon the consent of the parties by their attorneys and authorized officials, it is hereby ORDERED, ADJUDGED and DECREED as follows:

I. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to Section 309(b) of the Clean Water Act, 33 U.S.C. ("Act") Section 1313(b), and 28 U.S.C. Section 1345 and jurisdiction over the parties hereto. The Complaint filed herein states a claim upon which relief may be granted against Defendants under the Act, 33 U.S.C. Section 1251 et seq.

II. STIPULATIONS AND FINDINGS OF FACT

2. Defendant Armour Fresh Meats Co. is a subsidiary of Defendant, Con Agra, Inc., a corporation organized and existing under the laws of the State of Delaware, which is registered to do business in the State of Idaho. Defendant Armour Fresh Meats Co. has done business at all times relevant to this action through its facility located in Nampa, Idaho, within the District of Idaho. Defendant Armour Fresh Meats Co. operates a complex slaughterhouse as defined at 40 C.F.R. Section 432.21(c) and meat packing plant adjacent to the watercourse of Indian Creek in Canyon County in Nampa, Idaho. Defendant Armour Fresh Meats Co. pipes pretreated wastewater ++EP++

containing small amounts of blood, hair, animal flesh, viscera, paunch manure, processing water and cleaning materials from their slaughterhouse to two lagoons, the first of which is anaerobic.

Page 3

Wastewater is drawn from the anaerobic pond into the aeration basin, and then on to coagulation, sedimentation, and disinfection (chlorination), and then is discharged via outfall #010 to Indian Creek. The treatment ponds and the outfall from which the effluent is discharged are located upon land owned at all times relevant to this action by the Defendant Armour Fresh Meats Co. In addition, Defendants' plant discharges noncontact cooling water from outfall #004.

3. The wastes specified in paragraph 2 are pollutants within the meaning of 33 U.S.C. Section 1362(6).

4. Indian Creek is a navigable water of the United States within the meaning of 33 U.S.C. Section 1362(7).

5. The outfalls 010 and 004 are each a point source within the meaning of 33 U.S.C. Section 1362(14).

6. NPDES permit no. ID-000078-7 ("Permit") authorized, subject to specified terms and conditions, discharges of process wastewater from outfall #010 and noncontact cooling water from outfall #004 from Defendants' facilities into Indian Creek.

VIOLATIONS

7. Defendant Armour admits that the dike of its facultative lagoon breached, on January 31, 1986, discharging wastewater into the waters of Indian Creek, in violation of part I.A.2(a) of the Permit, which sets a maximum discharge limit of 475,000 gallons/day. ++EP++

Page 4

8. Defendant Armour admits that the discharge of January 31, 1986 resulted in violations of the monthly average limitations of BOD, total suspended solids, ammonia-nitrogen, and fats, oil and grease contained in the NPDES Permit issued to Defendant.

9. Defendant Armour admits that on February 4, 1986, its discharge from outfall #010 exceeded the fecal coliform (FC) discharge limit of FC per 100 ml. in violation of part I.A.2(a) of the Permit, which limits discharge of FC to 400 FC/100 ml.

10. Defendant Armour admits that on February 21, 1986, its discharge from outfall #010 exceeded the fecal coliform (FC) dischare limit of FC per 100 ml which was a violation of part I.A.2(a) of the Permit, which limits discharge of FC to 400 FC/100 ml.

11. Defendant Armour admits that on March 26, 1986, it reported that the discharge from outfall #010 exceeded the discharge limit of FC per 100 ml which was a violation of part I.A.2(a) of the Permit, which limits discharge of FC to 400 FC/100 ml.

12. Each of Defendant Armour's violations of the conditions of its NPDES Permit as specified in the preceding paragraphs is a violation of 33 U.S.C. Section 1311.

13. Except for those specific findings set forth in the preceding paragraphs, Defendants do not admit that any other violations of the Permit or the Act occurred as alleged by Plaintiff in the Complaint.

Based on the foregoing, it is hereby agreed by the parties, and the Court, having found that this Decree is in the public interest, ORDERS and DECREES as follows: ++EP++

Page 5 III. ORDER Applicability

14. The provisions of this Decree shall apply to the Defendants, their officers, directors, servants, agents, employees, successors in interest or assigns, and all persons, firms, partnerships, joint ventures, corporations or other business entities of any kind acting under, through or for Defendants, and all persons in active concert or participation with Defendants who have had actual or implied notice of this Decree by personal service or otherwise; and upon the United States on behalf of EPA. Moreover, Defendants shall give notice of this Decree to any prospective operators or managers or to any prospective successors in the interest to this facility, regardless of the type of interest those individuals may have, prior to any transfer of ownership, operation or management, and shall simultaneously notify EPA Region 10 in writing that such notice has been given.

15. Defendants are permanently enjoined, in regard to the facility, from violating any of the provisions of the Clean Water Act, 33 U.S.C. Section 1251 et seq., or any NPDES permit issued pursuant to the Act, provided, however, Defendants shall retain all defenses afforded them pursuant to the provisions of the Clean Water Act or any NPDES permit issued pursuant to the Act.

16. The Defendants shall, upon entry of this Decree, pay a total civil penalty of One Hundred Fifty thousand Dollars ($150,000). Said amount shall be payable as follows: the sum of Seventy-Five Thousand Dollars ++EP++ ($75,000) upon signing this Decree and the balance of Seventy-Five Thousand Dollars ($75,000) on the date of entry of this Decree.

Page 6

Payment for any portion of the penalty paid after the date of entry of the Decree shall include interest accrued from the date of entry of this Decree at the rate fixed for one year United States Treasury bills as of the date of entry of this Decree on the unpaid balance per year. Said amounts shall be paid by check made payable to "Treasurer, United States of America" and be delivered to the Office of the United States Attorney, District of Idaho, Room 342, Federal Building in United States Courthouse, 550 West Fort Street, Boise, Idaho 83724. In the event Defendants fail to pay the amounts set forth above, this Decree operates as a judgment on which the United States may institute collection action and/or contempt proceedings.

Stipulated Penalties

17. In the event Defendants fail to comply with any of the provisions of the effective permit as the same pertains to the facility during the effective period of this Consent Decree, Defendants or their successors shall pay to the United States a stipulated civil penalty pursuant to the following schedule. It is agreed that, except for intentional violations of this Decree, these stipulated penalties shall be the sole and exclusive remedy for violations of this Decree, these stipulated penalties shall be the sole and exclusive remedy for violations of this Decree. In the event of any intentional contempt of this Decree by the Defendants, including contempt of this Decree arising from the Defendants' failure to pay the stipulated penalties pursuant to this Decree, Plaintiff specifically reserves the right to seek all available remedies for intentional contempt. ++EP++

Page 7

18. For purposes of computing the penalty due under the following schedule, "per pound" shall be construed to mean "per pound or portion thereof" and "the percentage of exceedance" shall be calculated by dividing the flow limitation as set forth in the permit into the difference between that limitation and the actual discharge flow expressed at the same level of precision and rounding the quotient to the nearest full percent (0.01).

(a) Violations of Daily Maxima

(1) For each day of discharge of biochemical oxygen demand (BOD), total suspended solids (TSS), ammonia nitrogen (NH3-N), or oil and grease (FOG) in excess of the daily maximum limitations set forth in the permit, Five Dollars ($5) per pound in excess of said limitations, plus an additional Ten Dollars ($10) per pound for all discharges in excess of one hundred forty percent (140%) of said limitations.

(2) For each day of discharge of fecal coliform organisms (FC) in excess of the daily maximum limitation set forth in the permit, One Hundred Dollars ($100), plus an additional One Hundred Dollars ($100) for each such day of discharge of FC in excess of one and one-half (1.5) times the daily maximum limitation, plus an additional Three Hundred Dollars ($300) for each such day of discharge of FC in excess of two and one-half (2.5) times the daily maximum limitation, plus an additional Five Hundred Dollars ($500) for each such day of discharge of FC in excess of ten (10) times the daily maximum limitation.

(3) For each day of discharge of total residual chlorine (TRC) in excess of the daily maximum limitation set forth in the permit, Five Hundred Dollars ($500). ++EP++

Page 8

(4) For each day of discharge in excess of the daily maximum limitation set forth in the permit, One Thousand Dollars ($1,000) times the percentage of exceedance.

(5) For each day of discharge of pH lower than the daily minimum limitation set forth in the permit, Five Hundred Dollars ($500).

(b) Violations of Monthly Averages

For each month of discharge of BOD, TSS, NH3-N, FOG, FC or TRC in excess of the monthly average limitations set forth in the permit, Three Thousand Dollars ($3,000) for each parameter so exceeded.

(c) Other Violations

(1) Monitoring: For violation of any of the monitoring requirements set forth in the permit, an amount equal to One Hundred Dollars ($100) per day of such violation.

(2) Reporting: For late submittal of Discharge Monitoring Reports (DMRs) or other reports required by the permit, an amount equal to One Hundred Dollars ($100) per day commencing on the first business day after the required submittal date and concluding with the date of postmark.

19. Defendants shall pay any stipulated penalties due within 30 days of written demand by the United States. Payment of any stipulated penalties shall be by certified or cashier's check made to the order of ++EP++

"Treasurer of the United States" and delivered to the Office of the United States Attorney as set forth above.

Page 9

20. Defendants shall bear any costs incurred by Plaintiff in collecting stipulated penalties under this Decree.

General Provisions

21. This Decree shall not relieve Defendants of their responsibility to comply with any Federal, State, or local laws or regulations, including the Clean Water Act and the Permit.

22. The provisions of this Decree shall not limit Plaintiff's right to utilize other remedies, independent of the remedies provided by this Decree, against the Defendants for future violations of the Permit or Act occurring at the facility after the Court has entered this Decree. These remedies shall include but not be limited to the institution of administrative remedies, criminal prosecution or civil suit, including civil suit seeking a temporary restraining order or preliminary injunction.

23. The Plaintiff agrees not to place the Defendants, or either of them, on the "List of Violating Facilities" pursuant to 33 U.S.C. Section 1368 or 40 C.F.R. Part 15 et seq., for any violation of either the Permit or the Act, which has occurred up through the date this Decree is entered.

24. All information and comments submitted by Defendants to EPA pursuant to this Decree shall be subject to public inspection unless identified by Defendants as confidential in conformance with 40 C.F.R. Part 2. EPA shall disclose any information and document so identified as confidential only in accordance with EPA regulations at 40 C.F.R. Part 2 and 40 C.F.R. Section 122.7. ++EP++

Page 10

25. Any modification of this Decree must be approved in writing by both parties and approved by the Court.

26. This Court shall retain jurisdiction of this cause solely for the purpose of enabling any party to apply to the Court at any time for such further relief as may be appropriate to enforce this Decree. This Decree shall be in force and effect for a period of six months from the date the same is entered by the Court, except that the Court shall retain jurisdiction on this matter as long as necessary to assess and collect any penalties which may have accrued during the term of this Decree.

27. IT IS FURTHER ORDERED that each party shall bear its own costs in this litigation, including attorney fees.

28. The Plaintiff, United States of America, and Defendants Armour Fresh Meats Co. and Con Agra, Inc., after fulfilling the public notice requirements of 28 C.F.R. Section 5.07, consent by their duly authorized representatives to entry of this Decree.

Stipulated, Agreed and Approved by:

For the United States of America:

Dated

/s/ Donald A. Carr

Donald A. Carr

Acting Assistant Attorney General

Land and Natural Resources Divisions

U.S. Department of Justice

Dated 5/10/89

/s/

Edward E. Reich

Acting Assistant Administrator for Enforcement and Compliance Monitoring

U.S. Environmental Protection Agency ++EP++

Dated 9-15-88

/s/

Robie G. Russell

Regional Administrator

Region 10

U.S. Environmental Protection Agency

MAURICE O. ELLSWORTH

United States Attorney

Dated Sept. 15, 1988

/s/ David M. Heineck

By: David M. Heineck

Special Assistant United States Attorney and Associate Regional Counsel

U.S. Environmental Protection Agency

Dated

/s/

Robert H. Foster

Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

For Defendants Armour Fresh Meats Co., and Con Agra, Inc.:

Dated

/s/

Con Agra, Inc.

Dated

/s/

Armour Fresh Meats, Co.

Dated 9-19-88

/s/ Thomas C. McGowan

Thomas C. McGowan

Attorney for Defendants ++EP++

It is so ORDERED, DATED, and ENTERED this 30 day of May, 1989

United States District Judge

District of Idaho ++EP++

ARMOUR FRESH MEATS/CON AGRA

DOC 01 OF 02

Complaint

10-89-C006

CWA

FOOD

19880530

19861205

IDD000875252

ARMOUR FOOD CO

NAMPA, ID

CIV-86-1433

10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA, Plaintiff,

v.

ARMOUR FRESH MEATS CO., AND CON AGRA, INC., Defendants.

Civil No.

COMPLAINT

The United States of America, at the request of the Administrator of the United States Environmental Protection Agency ("EPA") alleges:

1. This is a civil action under the Clean Water Act ("the Act"), 33 U.S.C. Section 1251 et seq., to assess civil penalties and to impose injunctive relief against Defendants, Armour Fresh Meats Co., and Con Agra, Inc., for unauthorized discharges of pollutants to navigable waters of the United States in violation of 33 U.S.C. Section 1311(a).

2. This Court has jurisdiction over the subject matter pursuant to 33 U.S.C. Section 1319, and 28 U.S.C. Sub-Section 1331, 1345, and 1355. Notice of the commencement of this action has been given to the State of Idaho. ++EP++

Page 2

3. Defendant, Armour Fresh Meats Company is a subsidiary of Defendant Con Agra, Inc., a corporation organized and existing under the laws of the State of Delaware.

4. At all times material to this action, Defendants were doing business, and continue to do business, in the State of Idaho. The violations stated herein arose in this judicial district. Venue is proper in this judicial district pursuant to 33 U.S.C. Section 1319(b).

FIRST CLAIM FOR RELIEF Violations of Permit Effluent Limitations

5. Paragraphs 1-4 are hereby incorporated by reference and realleged.

6. Defendants operate a complex slaughterhouse and meat packing plant in Nampa, Idaho in the vicinity of Boise, Idaho. As part of this operation, Defendants discharge animal blood, flesh, viscera, hair, bone paunch manure, heat, solvents, disinfectants, soil particles and other wastes into the waters of Indian Creek.

7. The wastes specified in paragraph 6 are pollutants within the meaning of 33 U.S.C. Section 1362(6).

8. Indian Creek is waters of the United States within the meaning of 33 U.S.C. Section 1362(7).

9. 33 U.S.C. Section 1311(a) prohibits the discharge of all pollutants except as authorized by, and in compliance with, inter alia, a permit issued pursuant to 33 U.S.C. Section 1342. ++EP++

Page 3

10. Pursuant to 33 U.S.C. Section 1342, EPA issued National Pollutant Discharge Elimination System ("NPDES") permit No. ID-000078-7 to Defendants' predecessors in 1974, which was re-issued on June 27, 1985, effective from that date through June 26, 1990.

11. NPDES permit No. ID-000078-7 authorizes Defendants, subject to specified terms and conditions, to discharge process wastes from Outfall 010, and non-contact cooling water from Outfall 004 from Defendants' facilities into Indian Creek. The dike breach area described in paragraphs 17, 18, and 28, and Outfalls 010 and 004 are point sources as defined at 33 U.S.C. Section 1362(14).

12. For the month of January, 1986, Defendants reported the following concentrations of pollutants from Outfall 010 in violation of effluent limitations in Part I.A.2(a) and (b) of their permit:

Pollutant Violation Limitation BOD 97.9 lbs./day 90 lbs./day monthly average pH 5.65 units 6.0 units minimum

13. On or about January 7, 1986, Defendants discharged manure, which was not authorized by their permit, from a broken manure slurry line into the waters of Indian Creek. The break in the slurry line was a point source as defined at 33 U.S.C. Section 1362(14).

14. On January 8, 1986, the discharge from Defendants' Outfall 010 contained the following concentrations of pollutants in violation of effluent limitations in Part I.A.2(a) and (b) of the permit:

Pollutant Violation Limitation Fecal Coliform Bacteria (FC) 2200/100 ml. 400/100 ml. daily

maximum

pH 5.7 units 6.0 units minimum

++EP++

Page 4

15. On January 9, 1986, Defendants' pumped, siphoned or otherwise transported solids from a point source within the meaning of 33 U.S.C. Section 1362(14) from the chlorine contact chamber onto the ground immediately adjacent to Indian Creek. Defendants' wastewater and solids entered the waters of Indian Creek. Defendants' wastewater and solids entered the waters of Indian Creek in violation of 33 U.S.C. Section 1311(a).

16. On January 22, 1986, Defendants discharged from Outfall 010 pollutants containing 800 fecal coliform bacteria (FC) per 100 ml., in violation of Part I.A.2(a) of the permit, which limits discharges of FC to a maximum of 400/100 ml.

17. On January 31, 1986, the dike of Defendants' facultative lagoon breached, discharging approximately 6.7 million gallons of organic pollutants into the waters of Indian Creek in violation of Part 1.A.2( a) of the permit, which states a maximum discharge limit of 475,000 gallons/day. Defendants' discharge also contained pollutants in amounts that violated the effluent limitations specified in Part I.A.2( a) of the permit:

Pollutant Violation Limitation Biochemical Oxygen Demand (BOD) 176,000 lbs./day 90 lbs./day

daily max. approximately

Ammonia Nitrogen (NH3-N) 45,970 lbs./day 30 lbs./day

daily max. approximately

Defendants discharge was an unpermitted discharge in violations of 33 USC Section 1311(a) of the Act.

18. Partially treated effluent from Defendants' packing process continued to flow from the dike breach into the waters of Indian Creek at the rate of approximately 120 gallons per minute ("gpm") from January 31, 1986, until 6:30 a.m. on February 1, 1986, in violation of Part 1.A.2(a) of Defendants' permit, and in violation of 33 U.S.C. Section 1311(a) of the Act.

19. On February 2, 1986, the discharge from Defendants' Outfall 010 contained the following concentrations of pollutants in violation of effluent limitations in Part I.A.2(a) and (b) of the permit: ++EP++

Page 5 Pollutant Violation Limitation Total Chlorine Residual 1.8 mg/l 1.5 mg/l daily maximum pH 9.82 units 9.0 units maximum

20. On February 4, 1986, the discharge from Defendants' Outfall 010 contained 2400 FC per 100 ml, in violation of Part I.A.2(a) of the permit, which limits discharges of FC to 400/100 ml.

21. On February 18, 1986, the discharge from Defendants' Outfall 010 contained the following concentrations of pollutants in violation of effluent limitations specified in Part I.A.2(a) of the permit:

Pollutant Violation Limitation BOD 223 lbs./day 90 lbs./day daily maximum TSS 1373 lbs./day 120 lbs./day daily maximum FC 6300/100 ml. 400/100 m/l daily maximum NH3-N 85.4 lbs./day 30.0 lbs./daily maximum

22. On February 21, 1986, the discharge from Defendants' Outfall 010 contained the following concentrations of pollutants, in violation of the effluent limitations specified in Part I.A.2(a) of the permit:

Pollutant Violation Limitation BOD 974 lbs./day 90 lbs./day daily maximum FC 500/100 ml 400/100 m/l daily maximum

23. On March 26, 1986, the discharge from Defendants' Outfall 010 contained 460 FC per 100 ml which was a violation of Part I.A.2(a) of the permit which limits discharges of FC to 400/100 ml.

24. On April 3, 1986, the discharge from Defendants' Outfall 010 contained the following concentrations of pollutants, in violation of the effluent limitations specified in Part I.A.2(a) of the permit: ++EP++

Page 6 Pollutant Violation Limitation FC 36,000/100 ml 400/100 ml daily maximum NH3-N 32 lbs./day 30 lbs./daily maximum

25. Each of the Defendants' violations of the conditions of their NPDES permit as specified in paragraphs 12-24 above constitutes a violation of 33 U.S.C. Section1311.

26. Pursuant to 33 U.S.C. Section1319(b) and (d), Defendants are subject, inter alia, to injunctive relief and to the assessment of civil penalties not in excess of $10,000.00 per day of such violation.

SECOND CLAIM FOR RELIEF Violations of Permit Operation and Maintenance Requirements

27. Paragraphs 1-11 are hereby incorporated by reference and realleged.

28. On January 9, 1986, Defendants pumped, siphoned or otherwise transported solids from the chlorine contact chamber onto the ground immediately adjacent to Indian Creek in violation of Part III.F. of the permit.

29. After the dike breach at the Defendants' facultative lagoon on January 31, 1986, Defendants' continued to operate causing a continual discharge of pollutants from the dike breach into the waters of Indian Creek on January 31, 1986 and on February 1, 1986, in violation of Parts III.D and III.F of Defendants' permit.

30. Part III.E of Defendants' permit requires that Defendants' facilities be properly operated and maintained. Defendants violated Part III.E of their permit during January, February, March, and April, 1986 due to improper operation and maintenance of their treatment system. Such ++EP++

violations included, but were not limited to, the following deficiencies in operation and maintenance:

Page 7

a. floating and settled solids and scum in the chlorine contact chamber;

b. solids removed from the chlorine contact chamber and dumped on the ground adjacent to Indian Creek;

c. plugged grit screens;

d. inadequate spare parts inventories;

e. continually malfunctioning equipment.

31. Each of the Defendants' violations of the conditions of their NPDES permit as specified in paragraphs 28-29 above constitutes a violation of 33 U.S.C. Section1311.

32. Pursuant to 33 U.S.C. Section1319(b) and (d), Defendants are subject, inter alia, to injunctive relief and to the assessment of civil penalties not in excess of $10,000.00 per day of such violation.

THIRD CLAIM FOR RELIEF Violations of Permit Reporting Requirements

33. Paragraphs 1-11 are hereby incorporated by reference and realleged.

34. On January 7, 1986, Defendants discharged manure from a broken manure slurry line, as described in paragraph 13, which is a point source as defined at 33 U.S.C. Section1362(14), into the waters of Indian Creek. Defendants failed to report this violation to EPA within the twenty-four ++EP++

hour time frame established by Part II.I.1(a); in violation of Defendants' permit.

Page 8

In addition, Defendants did not submit a written report of the incident to EPA within the five-day time frame established by Part II.I.2, which also violated the permit requirements.

35. On January 9, 1986, Defendants pumped, siphoned or otherwise transported solids from their chlorine contact chamber, a point source within the meaning of 33 U.S.C. Section1362(14), onto the ground immediately adjacent to Indian Creek. Defendant's wastewater and solids then entered the waters of Indian Creek, in violation of 33 U.S. C. Section1311(a). Defendants failed to report this violation within the twenty-four hour time frame established by Part II.I.1 of the permit. In addition, Defendants did not submit a written report on the incident within the five-day time frame established by Part II.I.2 of their permit. These failures to notify EPA violated the conditions of Defendants' NPDES permit.

36. Each of the Defendants' violations of the conditions of their NPDES permit as specified in paragraphs 34-35 above constitutes a violation of 33 U.S.C. Section1311.

37. Pursuant to 33 U.S.C. Section1319(b) and (d), Defendants are subject, inter alia, to injunctive relief and to the assessment of civil penalties not in excess of $10,000.00 per day of such violation.

FOURTH CLAIM FOR RELIEF Violations of Permit Monitoring Requirements

38. Paragraphs 1-11 are hereby incorporated by reference and realleged. ++EP++

Page 9

39. Five times in January, 1986, four times in February, 1986, four times in March, 1986, and four times in April 1986, Defendants failed to conduct weekly grab sampling of the receiving waters of Indian Creek, upstream from Outfall 010, as required by Part I.A.(4) of their permit. These failures to sample constitute violations of their NPDES permit.

40. For the months of January, February, March and April 1986, Defendants failed to submit the results of the above sampling of the waters of Indian Creek upstream of Outfall 010. Parts I.A(4) and II.D of their permit requires such submission on a monthly basis. These failures to submit sample results constitute violations of their NPDES permit.

41. Each of the Defendants' violations of the conditions of their NPDES permit as specified in paragraphs 38-39 above constitutes a violation of 33 U.S.C. Section1311.

42. Pursuant to 33 U.S.C. Section1319(b) and (d), Defendants are subject, inter alia, to injunctive relief and to the assessment of civil penalties not in excess of $10,000.00 per day of such violation.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, the United States of America, prays for relief as follows:

43. An injunction prohibiting Defendants and their agents, servants, employees, and all persons acting in concert with Defendants or under their authority from discharging pollutants into Indian Creek or other waters of the United States except in accordance with the requirements of the Clean Water Act; and ++EP++

Page 10

44. Judgment against Defendants jointly and severally for civil penalties of Ten Thousand Dollars ($10,000) per day of such violation of the Act; and

45. Judgment against Defendants for such further relief as Plaintiff may be entitled to, including costs.

DATED this day of , 1986.

Respectfully submitted,

F. HENRY HABICHT, II

Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

Land and Natural Resources

Division

U.S. Department of Justice

MAURICE O. ELLSWORTH

United States Attorney

District of Idaho

By:

Assistant United States Attorney

Of Counsel:

JEANNE A. PASCAL

Assistant Regional Counsel

U.S. Environmental Protection

Agency

Seattle, Washington ++EP++

ROBERTSON/HORCHLER DBA DOUBLE EAGLE

DOC 02 of 02

JUDGMENT and ORDER

10-89-C004

CWA

OTHER

19890502

19890502

AKD980979926

ROBERTSON, JUAN DBA DOUBLE EAGLE

CIRCLE HOT SPRG, AK

A86-135

10

United States District Court

DISTRICT OF

UNITED STATE OF AMERICA, Plaintiff,

JUDGMENT IN A CIVIL CASE

JUAN ROBERTSON and ROBERT HORCHLER, d/b/a DOUBLE EAGLE MINING COMPANY, Defendants.

CASE NUMBER: A86-135

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

THAT judgment against defendant Robertson is hereby entered in the amount of Fifty Thousand Dollars ($50,000.00).

THAT defendant Robertson and all others acting in concert with him are enjoined and prohibited from conducting placer mining operations in the State of Alaska without first obtaining a permit under the Clean Water Act, 33 U.S.C. Section 1251, et seq.

Date May 2, 1989

Clerk/s/ JoAnn Myres

(By) Deputy Clerk/s/

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

vs.

JUAN ROBERTSON and ROBERT HORCHLER, d/b/a DOUBLE EAGLE MINING COMPANY, Defendants.

No. A86-135 Civil

ORDER

(Default Judgment Reinstated)

By order filed April 22, 1988, the court ordered that judgment be entered against defendant Robertson because of his steadfast refusal to make available certain financial data which had been properly sought to be discovered by plaintiff from him. In due course, judgment was entered in the amount of $50,000.00

New counsel then appeared for defendant Robertson, and a motion for relief from judgment was filed. That motion was opposed. The court, on October 11, 1988, granted defendant's motion despite a finding that defendant's former counsel had ++EP++

inexcusably neglected this case. In the interest of justice, the court allowed the case to be reinstated on the condition that defendant Robertson reimburse plaintiff for all costs incurred and for reasonable attorney's fees incurred subsequent to December 19, 1986.

Over the months that followed, the records which plaintiff sought and which gave rise to the default judgment against defendant Robertson were still never produced. As a consequence of several telephonic conferences between the parties and the court, an order was entered on February 22, 1988, which required that the attorney's fees which had previously been taxed but not paid by defendant Robertson must be paid in full on or before March 21, 1989, and that the documents which plaintiff sought must be made available on or before March 9, 1989.

The court recalls distinctly that it went to great pains to attempt to impress upon counsel for defendant Robertson that the documents in question simply had to be produced, and that the court would not accept any more excuses. The court does not appreciate counsel's attempts to otherwise characterize the status of discovery in various filings that have been made on this subject. It is very clear to the court -- and it should have been very clear to all counsel -- that the discussions between the court and counsel had to do with plaintiff's discovery requests which were made in March of 1986, which requests remained unsatisfied when the court's order of February 22, 1989, was filed. ++EP++

The court now has before it plaintiff's motion to reinstate the default judgment. The motion is opposed on the theory that it is moot in light of a "response to request for production" dated March 21, 1989, in which defendant Robertson states that certain records are "available for inspection and copying on reasonable notice at the office of Ashburn & Mason. . . ." Defendant, through counsel, offers the excuse that he has been involved in a "very lengthy civil trial". Defendant "apologizes for the delay". By reply memorandum, plaintiff insists that the judgment should be reinstated. The court concurs.

As a consequence of the telephonic status conference which was held in this case on or about December 21, 1988, defendant Robertson was under a direct oral order from this court to produce his financial records. When it appeared from correspondence exchanged between plaintiff and defendant Robertson (the court has reference to plaintiff's letter of February 13, 1989) and other filings made in connection with the taxing of attorney's fees that the documents still had not been produced, the court entered its written order of February 22, 1989, expressly requiring that the documents in question be made available to plaintiff on or before March 9, 1989, in effect giving defendant Robertson yet another extension of time since the court had contemplated, from the oral discussions of the parties, that the documents in question would have been produced promptly as a consequence of defense counsel being supplied with a copy of the request for production for which he asked. ++EP++

Defendant Robertson has wasted one too many extensions of time as regards production of his financial records. Moreover, defendant Robertson has, without excuse, failed to pay the attorney's fees which were a condition for setting aside the default judgment in the first place. This, too, has happended despite repeated extensions of time.

The Clerk of Court shall enter judgment in favor of plaintiff and against defendant Robertson in the same terms as that judgment which was filed on April 27, 1988.

DATED at Anchorage, Alaska, this 28th day of April, 1989.

/S/

United States District Judge

++EP++

ROBERTSON/HORCHLER DBA DOUBLE EAGLE

DOC 01 of 02

COMPLAINT

10-89-C004

CWA

OTHER

19890502

19860310

AKD980979926

ROBERTSON, JUAN DBA DOUBLE EAGLE

CIRCLE HOT SPRG, AK

A86-135

10

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

JUAN ROBERTSON AND ROBERT A. HORCHLER, d/b/a DOUBLE EAGLE MINING COMPANY, Defendants.

Case No. A86-135 Civil

COMPLAINT

The United States of America, through its undersigned attorneys and by authority of the Attorney General, on behalf of the Administrator of the United States Environmental Protection Agency, alleges that:

1. This is a civil action brought under Section 309 of the Clean Water Act (the "Act"), 33 U.S.C. Section 1319, for assessment of a civil penalty and for injunctive relief against defendants Juan Robertson, Robert A. Horchler and Double Eagle Mining Company, for their discharges of pollutants in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a). ++EP++

Page 2

2. The United States Department of Justice is authorized to bring this action pursuant to 28 U.S.C. Sub-Section 516 and 519.

3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355, and 33 U. S.C. Section 1319. Venue is properly in this Court pursuant to 28 U.S. C. Sub-Section 1391 and 1395.

4. Notice of the commencement of this action has been given to the State of Alaska pursuant to 33 U.S.C. Section 1319(b).

5. Under the name Double Eagle Mining Company ("Double Eagle"), defendant Juan Robertson owns and operates a placer mine on Portage Creek, near Circle Hot Springs, Alaska. At least during June and part of July 1985, defendant Robertson and defendant Robert A. Horchler owned and operated this placer mine as a partnership.

6. Defendants are persons within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5).

7. During the summer of 1985, defendants discharged pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), from their placer mine into Portage Creek.

8. Portage Creek is a navigable water within the meaning of Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

9. Defendants' placer mine discharges pollutants through a point source within the meaning of Section 502(14) of the Act, 33 U.S.C. Section 1362(14). ++EP++

Page 3

10. Section 301(a) of the Act, 33 U.S.C. Section 1311 (a), prohibits the discharge of any pollutant into waters of the United States unless the discharge is authorized by and in compliance with the terms and conditions of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to Section 402 of the Act, 33 U.S.C. Section 1342.

11. During the summer of 1985, defendants discharged pollutants from their placer mine into Portage Creek without a valid NPDES permit, in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

12. Pursuant to Section 309 of the Act, 33 U.S.C. Section 1319, defendants are liable for civil penalties of up to $ 10,000 per day of each violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

13. Unless restrained by order of this Court, defendants will continue to discharge pollutants into waters of the United States in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

WHEREFORE, plaintiff United States of America respectfully requests that the Court:

(1) Assess defendants, pursuant to Section 309 (d) of the Act, 33 U. S.C. Section 1319(d), a civil penalty of $ 10,000 per day of each violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a);

(2) Enter a permanent injunction against defendants requiring them to cease violations of Section 301(a) of the Act, 33 U.S.C. Section 1311(a); ++EP++

Page 4

(3) Enter a permanent injunction ordering defendants to expeditiously complete such affirmative actions as are necessary to insure compliance with the Act;

(4) Award the United States its costs and attorneys fees; and

(5) Grant such other relief as is appropriate.

/s/

F HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

MICHAEL R. SPAAN

United States Attorney

District of Alaska

/s/

JAMES L. NICOLL, JR.

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

10th Street and Pennsylvania

Ave., N.W.

Washington, D.C. 20530

(202) 633-4051

Of Counsel:

DAVID DRELICH

LISA STONE U.S. Environmental

Protection Agency ++EP++

RICHARD MCINTOSH/ESPERANZA

DOC 01 OF 01

COMPLAINT

10-88-C004

CWA

MISC

19880729

19880707

AKD980979934

MCINTOSH MINING

FAIRBANKS, AK

A86-353

01

COMPLAINT, U.S. V. RICHARD L. MCINTOSH, D/B/A MCINTOSH MINING COMPANY AND ESPERANZA RESOURCES COMPANY, AND ESPERANZA RESOURCES COMPANY, INC.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

RICHARD L. McINTOSH, d/b/a McIntosh Mining Company and Esperanza Resources Company, and ESPERANZA RESOURCES COMPANY, INC., Defendants.

Civil No.

COMPLAINT

The United States of America, through its undersigned attorneys and by authority of the Attorney General, on behalf of the Administrator of the United States Environmental Protection Agency, alleges that:

1. This is a civil action brought under Section 309 of the Clean Water Act (the "Act"), 33 U.S.C. Section 1319, for assessment of a civil penalty and for injunctive relief against defendant Richard L. McIntosh, d/b/a McIntosh Mining Company and Esperanza Resources Company, Inc., for their discharges of pollutants in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a). ++EP++

Page 2

2. The United States Department of Justice is authorized to bring this action pursuant to 28 U.S.C. Sub-Section 516 and 519.

3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355, and 33 U. S.C. Section 1319. Venue is properly in this Court pursuant to 28 U.S. C. Sub-Section 1391 and 1395.

4. Notice of the commencement of this action has been given to the State of Alaska pursuant to 33 U.S.C. Section 1319(b).

5. Defendant Richard L. McIntosh owns and operates, and under the name McIntosh Mining Company and Esperanza Resources Company has owned and operated, a gold placer mine on Faith Creek, near Fairbanks, Alaska.

6. Defendant Esperanza Resources Company, Inc. is an Alaska Corporation which owns and operates with defendant McIntosh a gold placer mine on Faith Creek.

7. Defendants are persons within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5).

8. During the summer of 1985, defendants discharged pollutants

OLSON, RICHARD (RED) & LILLIAN

DOC 01 OF 01

COMPLAINT

10-88-C003

CWA

MISC

19880417

19860707

AKD980981492

OLSON, RICHARD (RED) & LILLIAN

CIRCLE HOT SPRINGS, A K

A-86-352-CIV

10

COMPLAINT, U.S. v. RICHARD OLSON and LILLIAN OLSON

UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

RICHARD OLSON and LILLIAN OLSON, Defendants.

Civil No. A86-352 CIV

COMPLAINT

The United States of America, through its undersigned attorneys and by authority of the Attorney General, on behalf of the Administrtaor of the United States Environmental Protection Agency, alleges that:

1. This is a civil action brought under Section 309 of the Clean Water Act (the "Act"), 33 U.S.C. Section 1319, for assessment of a civil penalty and for injunctive relief against defendants Richard Olson and Lillian Olson for their discharges of pollutants in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a). ++EP++

Page 2

2. The United States Department of Justice is authorized to bring this action pursuant to 28 U.S.C. Sub-Section 516 and 519.

3. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sub-Section 1331, 1345 and 1355, and 33 U. S.C. Section 1319. Venue is properly in this Court pursuant to 28 U.S. C. Sub-Section 1391 and 1395.

4. Notice of the commencement of this action has been given to the State of Alaska pursuant to 33 U.S.C. Section 1319(b).

5. Defendants own and operate a gold placer mine on Deadwood Creek, near Circle Hot Springs, Alaska.

6. Defendants are persons within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5).

7. During the summers of 1984 and 1985, defendants discharged pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), from their placer mine into Deadwood Creek.

8. Deadwood Creek is a navigable water within the meaning of Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

9. Defendants' placer mine discharges pollutants through a point source within the meaning of Section 502(14) of the Act, 33 U.S.C. Section 1362(14).

10. Section 301(a) of the Act, 33 U.S.C. Section 1311(a), prohibits the discharge of any pollutant into waters of the United States unless the discharge is authorized by and in compliance with the terms and conditions of a National Pollutant ++EP++ Discharge Elimination System ("NPDES") permit issued pursuant to Section 402 of the Act, 33 U.S.C. Section 1342.

Page 3

11. On June 8, 1984, EPA issued NPDES Permit No. AK0035548 to defendant Richard Olson. EPA modified this permit on May 10, 1985. The permit authorized defendant to discharge pollutants from his placer mine subject to specified effluent limitations.

12. During the summer of 1984, defendants discharged pollutants from their placer mine into Deadwood Creek in excess of the limitations established in their NPDES permit, in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a). Defendants have failed to submit discharge monitoring reports for the 1984 mining season, in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

13. During the summer of 1985, defendants discharged pollutants from their placer mine into Deadwood Creek in excess of the limitations established in their NPDES permit, in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a). Defendants have failed to submit discharge monitoring reports for the 1985 mining season, in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

14. Pursuant to Section 309 of the Act, 33 U.S.C. Section 1319, defendants are liable for civil penalties of up to $10,000 per day of such violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

15. Unless restrained by order of this Court, defendants will continue to discharge pollutants into waters of the ++EP++ United States in violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a).

Page 4

WHEREFORE, plaintiff United States of America respectfully requests that the Court:

(1) Assess defendants, pursuant to Section 309(d) of the Act, 33 U. S.C. Section 1319(d), a civil penalty of $10,000 per day of each violation of Section 301(a) of the Act, 33 U.S.C. Section 1311(a);

(2) Enter a permanent injunction against defendants requiring them to cease violations of Section 301(a) of the Act, 33 U.S.C. Section 1311(a);

(3) Enter a permanent injunction ordering defendants to expeditiously complete such affirmative actions as are necessary to insure compliance with the Act;

(4) Award the United States its costs and attorneys fees; and

(5) Grant such other relief as is appropriate.

/s/ (ILLEGIBLE)

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

MICHAEL R. SPAAN

United States Attorney

District of Alaska

/s/ James L Nicoll Jr

JAMES L. NICOLL, JR.

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

10th Street and Pennsylvania

Ave., N.W.

Washington, D.C. 20530

(202) 633-4051 ++EP++

Page 5

Of Counsel: LISA STONE DAVID DRELICH U.S. Environmental ProtectionAgency ++EP++

HARLING, VICTOR

DOC 01 OF 01

CONCENT DECREE

10-88-C002

CWA

MISC

19880209

19880209

AKD980979918

HARLING, VICTOR

CENTRAL, AK

A86-146

10

ORIGINAL CONSENT DECREE IN U.S. V HARLING, VICTOR

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

VICTOR HARLING, Defendant.

Civil No. A86-146

CONSENT DECREE

Plaintiff United States of America, on behalf of the Administrator of the United States Environmental Protection Agency (EPA), and defendant Victor Harling agree to entry of this Consent Decree to settle claims made by the United States against defendant in the complaint filed in this action on March 12, 1986. The complaint alleges that defendant violated the Clean Water Act, 33 U.S.C. Section 1251 et seq., by discharging pollutants from his placer mine into Bonanza Creek in violation of his National Pollutant Discharge Elimination System (NPDES) permit.

Each undersigned representative of the parties to this Decree certifies that he or she is fully authorized to execute this Decree on behalf of the party he or she represents and to legally bind such party. ++EP++

Page 2

The consent of the United States, however, is subject to the requirements of 28 C.F.R. Section 50.7. Nothing in this Consent Decree shall constitute an admission of fact or law by either party with respect to any issues raised by the complaint, except to the extent that the answer filed by defendant may be construed as such.

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED:

1. Jurisdiction and Venue

This Court has jurisdiction over the subject matter of this action and the parties to this action. Defendant waives any objections he may have to personal jurisdiction or venue. The complaint filed in this action states a claim upon which relief may be granted.

2. Public Interest

The Court finds that this Decree has been entered into in good faith and is in the public interest.

3. Parties Bound

(a) This Decree shall bind defendant and any of his officers, directors, agents, employees, contractors or consultants engaged in activities related to defendant's placer mining operations and all persons, corporations or other entities who discharge pollutants under the authority of any NPDES permit issued to defendant, regardless of whether such permit has been transferred by defendant in accordance with 40 C.F.R. Section 122.61.

(b) Defendant shall notify all persons or entities subject to this Decree of the terms of this Decree and shall give those persons or entities a copy of this Decree. Defendant shall notify EPA Region 10 in writing that this notice has been given. ++EP++

Page 3

(c) Defendant shall notify all successors in interest of the terms of this Decree and shall provide those successors with a copy of this Decree prior to transfer of ownership or operation of any mine or mining claims owned or operated by defendant. Defendant shall notify EPA Region 10 in writing that this notice has been given.

4. Purpose

The purpose of this Decree is to ensure defendant's full compliance with the Clean Water Act.

5. Civil Penalty

Defendant shall pay a civil penalty of $4,000 for all alleged civil violations of the Clean Water Act occurring prior to December 31, 1986. This payment shall be made by cashier's or certified checks made payable to the Treasurer of the United States and shall be paid, together with interest thereon accruing at the rate of 8% per annum from entry of the Decree, according to the payment schedule attached as Appendix B and incorporated by reference herein. The checks shall be delivered or mailed, certified return receipt, to the office of the United States Attorney for the District of Alaska, Anchorage, Alaska. A letter shall be enclosed with each check identifying this case and stating that the payment is made in accordance with paragraph 5 of this Decree. A copy of all such letters shall be sent to EPA Region 10. This civil penalty shall not be used as a deduction for purposes of federal income tax.

6. Compliance Program

(a) Defendant is enjoined from operating, in any capacity other than as an employee, or financing any placer mine that discharges pollutants into waters of the United States unless that mine is in ++EP++ compliance with a valid NPDES permit and the requirements of the Compliance Plan attached to this Decree as Appendix A.

Page 4

(b) By its consent to entry of this Decree, the United States does not warrant that defendant's compliance with the Decree or compliance plan will insure compliance with the Clean Water Act, and defendant shall nevertheless remain solely responsible for compliance with the Act. Any dispute concerning the defendant's liability for noncompliance with the terms and conditions of this Decree shall be resolved by the Court. The United States does not, however, waive any rights or remedies otherwise available to it for any violation of the Clean Water Act by defendant occurring after December 31, 1986.

(c) Performance of the terms of this Decree by defendant is not conditioned on the receipt of any federal or state grant funds. Performance is not excused by the lack of any such funds, or any delay in the processing of any application for such funds.

(d) This Decree is not an effluent discharge permit within the meaning of Section 402 of the Act, 33 U.S.C. Section 1342. Any NPDES permit must be obtained in accordance with applicable federal and state law.

(e) This Decree in no way affects defendant's responsibility to comply with any other federal, state or local law.

(f) This Decree does not require defendant either to cease or to continue operating any placer mine. If defendant decides to cease operating a mine which is subject to this Decree, he shall notify EPA of his intention not to mine by March 31 of the year in which operation is to cease.

(g) Nothing in this Decree shall in any way limit or restrict defendant's right to appeal or challenge the terms or conditions of ++EP++ any NPDES permit issued to defendant as otherwise authorized by the Clean Water Act or the regulations promulgated thereunder.

Page 5

7. Force Majeure

(a) If any event occurs that causes or may cause a violation of any provision of this Decree, including the Compliance Plan, defendant shall notify EPA Region 10 in writing within ten days of the event. The notice shall describe the nature of the violation, cause of the violation, the length of time it will continue, the measures taken and to be taken to prevent or minimize the violation and the schedule for implementing remedial measures. Failure by the defendant to comply with this paragraph 7(a) shall render paragraph 7(b) below void as to the event involved, and shall constitute a waiver of the defendant's ability to request any relief from his obligations under this Decree based on such event.

(b) If a violation of this Decree has been or will be caused solely by an event beyond the control of defendant or any entity controlled by or under the common control of the defendant and the defendant could not have foreseen and prevented the violation, the defendant's obligation to comply with the relevant provision of this Decree shall be extended for an appropriate period not to exceed the actual delay resulting from the event. Before an obligation to comply with an effluent limitation set forth in the Compliance Plan can be extended under this paragraph 7, the bypass or upset provisions of 40 C.F.R. Sub-Section 122.41(m) and (n) must also be satisfied. A storm event will not be considered for relief under this paragraph unless it exceeds a 5 year, 6 hour storm event. Economic hardship or cost of compliance are not grounds for relief under this paragraph. ++EP++

Page 6

(c) The burden of proving that a failure to comply with this Decree was caused solely by an event beyond the control of a defendant shall be on defendant.

(d) An extension of time for compliance with any requirement of this Decree does not result in an extension for any other requirement. Defendant must make a separate showing for each requirement for which an extension is sought.

8. Access and Inspections

Defendant shall allow authorized EPA representatives to inspect any placer mine that defendant owns or operates, or in which defendant has an ownership or leasehold interest. Inspection may take place at EPA's discretion without advance notice. Inspections may take place at all reasonable times, without a warrant, upon presentation of EPA credentials. Under this paragraph, EPA's inspection authority shall include all areas where placer mining facilities or equipment are located. EPA shall have the right to sample, monitor or photograph defendant's mines. During the placer mining season, defendant shall maintain at the mine site all operating and monitoring records required by the applicable NPDES permit and this Decree. The provisions of this paragraph are in addition to any other right of entry or inspection available to EPA or the United States.

9. Retention of Rights Against Third Parties

This Decree does not affect the rights of the United States or defendant against any parties that do not sign this Decree.

10. Costs and Attorneys' Fees

Each party shall bear its own costs and attorney's fees in this action and in any subsequent proceedings related to this Decree. ++EP++

Page 7

11. Addresses

For purposes of providing notice and making payments under this Decree, the following are the address of the parties to this Decree. These addresses may be changed upon written notice to all other parties.

Office of the United States Attorney Federal Building 701 C Street Anchorage, Alaska 99513 EPA Region 10 Chief, Water Compliance Section 1200 Sixth Avenue Seattle, Washington 98101 Victor Harling 23858 Highway 36 Cheshire, OR 97419

12. Modification

Modifications to this Decree may become necessary as a result of changes in applicable Federal or State of Alaska regulatory requirements. All modifications to this Decree shall be in writing and shall be approved by the parties and by the Court.

13. Retention of Jurisdiction and Termination

This Court shall retain jurisdiction over this action to issue such further orders and relief as may be necessary and appropriate to interpret this Decree and effectuate its purposes.

This Decree shall terminate on December 31, 1989, except that any civil penalty liability which has accrued prior to that time shall not terminate until paid in full, and the court shall retain continuing jurisdiction for the purpose of insuring that all outstanding civil ++EP++ penalties are paid in full.

Page 8

Upon termination of the Decree, the United States shall move the court to dismiss this action.

FOR DEFENDANT VICTOR HARLING

/s/ Ann Rhian 9/22/87

ANN RHIAN

Attorney for Defendant

FOR UNITED STATES OF AMERICA

/s/ Roger J. Marzulla

ROGER J. MARZULLA

Acting Assistant Attorney General

Land and Natural Resourses

Division

United States Department of

Justice

/s/ Michael R Spaan

MICHAEL R. SPAAN

United States Attorney

District of Alaska

/s/ Karen S. Dworkin

KAREN S. DWORKIN

Environmental Enforcement Section

Land and Natural Resources

Division

United States Department of

Justice

Washington, D.C. 20530

/s/ Thomas L. Adams Jr

THOMAS L. ADAMS

Assistant Administrator for

Enforcement &

Compliance Monitoring

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460 ++EP++

/s/

for ROBIE G. RUSSELL

Regional Administrator

U.S. Environmental Protection

Agency, Region 10

1200 Sixth Avenue

Seattle, Washington 98101

IT IS SO ORDERED, and ENTERED this 8 day of Feb, 1987.

/s/

United States District Judge

++EP++

Page 1

COMPLIANCE PLAN

This compliance plan is intended to ensure the efficiency of defendant's treatment system and to evaluate the effect of natural stream conditions and fluctuations on defendant's placer mining operation. Defendant shall conduct monitoring and shall report monitoring results for settleable solids, turbidity and arsenic. In addition, defendant shall perform management practices and reclamation as required by this plan. Results from the monitoring program shall be used by defendant to determine operational adjustments that may be necessary to comply with the conditions of defendant's NPDES permit and the conditions of this consent decree.

A. Monitoring Requirements

1. General requirements

a. Samples shall be taken when the operation has a discharge to receiving water.

b. Sampling locations are designated as "effluent" and "background." "Effluent" samples shall be taken after the last treatment of the discharge prior to entry of the discharge into the receiving stream. "Background" samples shall be taken in the receiving stream at a location above defendant's mine that is representative of natural conditions. ++EP++

Page 2

c. Samples shall be taken when the effluent discharge volume is in a state of equilibrium. "Equilibrium" is defined as that period during production when sluice pay dirt loading and discharge are constant or that period during non-sluicing when discharge from the operation is constant.

2. Settleable solids

a. Effluent samples shall be taken twice each day during periods of discharge.

b. The concentration of settleable solids in the effluent shall not exceed the limits contained in defendant's NPDES permit.

3. Turbidity

a. Effluent and background samples shall be taken twice each calendar month during periods of discharge. Samples shall be taken with a minimum seven-day and maximum fifteen-day interval between samples.

b. The turbidity level of the effluent sample shall not exceed the limits contained in defendant's NPDES permit.

c. A receiving stream sample shall be taken 500 feet below the discharge entry point at a point where the effluent and receiving stream are well-mixed.

4. Arsenic

a. Effluent and background samples shall be taken twice each calendar month during periods of discharge. ++EP++

Samples shall be taken with a minimum seven day and maximum fifteen day interval between samples.

b. The concentration of total arsenic in the effluent shall

not exceed the limit contained in defendant's NPDES permit.

B. Reporting Requirements

Discharge Monitoring Reports (DMRs) shall be submitted to EPA for each calendar month of operation for all parameters for which data analysis has been completed. Any noncompliance with the terms of this decree must be reported within 10 days of such noncompliance. Monthly DMRs shall be submitted no later than 15 days after the end of the calendar month.

C. Operating Plan

Defendant shall submit to EPA an annual operating plan no later than March 31 of each year defendant plan to mine. However, if defendant will not mine during any mining season, defendant shall notify EPA of such not later than March 31 of that year and shall not be required to submit an operating plan. The operating plan shall contain, at a minimum, the following information for each mine to be operated:

1. The location and size of the mine site (cut area);

2. A facility diagram of the mine site, including bypasses, minecut, overburden removal and storage areas, routes of access to and from the mine, staging areas for equipment, and the location of work camps and housing, the location of the receiving stream, and the location of the wastewater treatment system; ++EP++

Page 4

3. The number of employees for the facility;

4. The names and mailing addresses of all persons, partnerships (and members thereof), corporations or other entities participating in operation of the facility, and a description of the nature and extent of each such person's participation at the facility;

5. The amount in linear dimensions of overburden to be removed during the mining season;

6. Method of removing overburden;

7. Disposal or storage sites for overburden;

8. Erosion prevention methods to be used during overburden removal;

9. The method for stabilization of overburden storage sites;

10. The amount of placer pay dirt in cubic yards per day to be processed (sluiced);

11. The method to be used for processing pay dirt (gold recovery);

12. The source water to be used for processing;

13. The amount of water (GPM) to be used for processing;

14. The type and location of the wastewater treatment system (if settling ponds are to be used, include the number to be used, dimensions, estimated retention time of each, and the maintenance schedule required to maintain the integrity of the (pond) treatment system);

15. The receiving stream for the effluent discharge; ++EP++

Page 5

16. The estimated volume (GPM) of effluent discharge;

17. The location of stream bypass channels;

18. The methods of domestic waste storage, treatment, and disposal;

19. The methods for disposing of solid waste;

20. The methods for storage, handling, and disposal of fuels and other toxic materials; and

21. The methods and locations for controlling site drainage and surface runoff. D. Reclamation

Defendant shall submit no later than March 31 of each year a copy of the reclamation plan for defendant's mine. If otherwise so required by applicable Federal or State of Alaska law, this plan must be approved by the United States Bureau of Land Management or the Alaska Department of Natural Resources, Division of Mines or other appropriate authority with trust responsibility for the land on which the claim is located.

E. Best Management Practices

Defendant shall comply with the following management practices:

1. All unused stream, runoff and subsurface water intercepted by the mining operation shall be diverted around mining and treatment facilities. The specific methods and means to control such excess flows shall be designed to prevent washouts of the effluent treatment system during high water events; ++EP++

Page 6

2. No mining activity, including but not limited to classifying, prewashing, sluicing or the installation of settling ponds or other wastewater treatment systems, shall take place within waters of the United States;

3. Solids, sludges, tailings, filter backwash, settled material or other pollutants removed in the course of treatment or control of wastewater shall be disposed of in a manner which prevents any such materials from entering waters of the United States;

4. There shall be no discharges to waters of the United States from hydraulic stripping;

5. Overburden shall be placed in stable stockpiles away from stream channels and protected from erosion. Mined or disturbed areas, including the effluent treatment system areas, shall be contoured and rehabilitated in compliance with all Federal or State of Alaska reclamation requirements. At the end of the mining season all mined or disturbed areas shall be left in a condition which will not cause degradation to waters of the United States other than that which would occur had the mined area remained in its natural condition;

6. Sluice material shall be processed in a manner which minimizes water use;

7. If settling ponds are utilized as part of the wastewater treatment system, the ponds shall be continuously maintained ++EP++ throughout the mining season to assure maximum settling capacity;

Page 7

8. A durable and efficient fishway around the mining operation shall be maintained in all fish-bearing waters;

9. In fish-bearing waters, pump intakes or stream diversions to supply make-up water shall be designed to prevent intake, impingement, or entrapment of fish;

10. The entrance to any water diversion ditch is to have a well-maintained headgate, or similar device, which shall block water flow during non-sluicing periods;

11. Staging areas shall be constructed out of the flood plain. If this is not possible, staging areas must be discussed in the operating plan and approved by EPA; and

F. Submittals to EPA

Submittals required by this compliance plan shall be sent to:

U.S. Environmental Protection Agency, Region 10 Chief, Water Compliance Section, 1200 Sixth Avenue, M/S 513 Seattle, Washington 98101 ++EP++

Page 1

PAYMENT SCHEDULE

Date Amount Total Fine $4,000.00 Quarterly after entry of Consent Decree $500.00

Interest shall accrue from the date payment is due at the rate of 8% per annum. EPA shall notify defendant of the amount of accrued interest either upon request of defendant or by September 1, 1988.

In the event defendants believe they will not be able to comply with the payment schedule set forth above defendants may, upon showing of good cause request plaintiff to stipulate to a reasonable modification of the schedule or may petition the Court for modification thereof. ++EP++

BELLINGHAM, CY OF

DOC 01 OF 01

CONSENT DECREE

10-88-C001

CWA

MUNI

19880205

19880205

WAD980739320

BELLINGHAM, CY OF, POTW

BELLINGHAM, WA

C87-1621

10

CONSENT DECREE in U.S. AND STATE OF WASHINGTON V. CITY OF BELLINGHAM, WASHINGTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, and THE STATE OF WASHINGTON, Plaintiffs,

v.

CITY OF BELLINGHAM, WASHINGTON Defendant.

NO C87-1621

CONSENT DECREE

WHEREAS, plaintiffs, United States of America and the State of Washington, having filed a Complaint in this case alleging violations of Sections 301 and 402 of the Clean Water Act ("the Act"), 33 U.S.C. Sub-Section 1311 and 1342, and Sections 90.48.162, 90.48.260, and 90.52.040 of the Revised Code of Washington ("RCW") by defendant City of Bellingham, Washington ("City"); and

WHEREAS, plaintiffs and defendant, having agreed that settlement of this matter is in the public interest and that entry of this Decree is the most appropriate means of resolving this matter; and ++EP++

Page 2

WHEREAS, the plaintiffs and defendant, by their respective attorneys, having consented, without trial or adjudication of any issue of fact or law herein, to the entry of this Decree, NOW, THEREFORE, it is ORDERED as follows:

I JURISDICTION

This Court has jurisdiction over the subject matter and over the parties pursuant to 28 U.S.C. Section 1345 and 33 U.S.C. Section 1319. The Complaint states a claim upon which relief may be granted against defendant pursuant to Section 309 of the Act, 33 U.S.C. Section 1319.

II BINDING EFFECT

The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, agents, servants, employees, successors, assigns, and all persons, firms and corporations in active concert or participation with them. The City shall give notice of this Consent Decree to any successors in interest prior to transfer of ownership or operation of the City's Wastewater Treatment plant, and shall simultaneously notify the United States Environmental Protection Agency ("EPA"), Region 10, Water Division Director, and the Director of the Washington Department of Ecology ("Ecology"), PV-11, Olympia, Washington, 98504, that such notice ++EP++ has been given by the defendant.

Page 3

The City shall provide a copy of this Consent Decree to each contractor or contractors which it retains to perform work prescribed herein prior to executing any contract relating to such work.

III CIVIL PENALTY

In settlement of plaintiffs' claims in the Complaint relating to reported violations of NPDES Permit No. WA-002374-4, and Section 301 of the Act, the City shall pay a civil penalty of Twenty-Three Thousand One Hundred Ninety Dollars ($23,190.00). This penalty is due and payable thirty (30) days after this Consent Decree is entered by the Court. The City shall tender the payment at the office of the United States Attorney for the Western District of Washington, by check made payable to the Treasurer of the United States.

IV REMEDIAL PROGRAM

The City shall undertake a program to attain compliance with its NPDES permit, the Act and the RCW. The program involves the construction of a wastewater treatment facility capable of achieving secondary treatment levels. The completion of all phases of design, construction and achievement of compliance shall be accomplished in accordance with the schedule below: ++EP++

Page 4

A. No later than October 1, 1988, the City shall submit for review a draft engineering report to provide secondary treatment.

B. No later than February 1, 1989, the City shall submit a complete and updated engineering report to provide secondary treatment.

C. No later than May 1, 1990, the City shall submit for review plans and specifications for construction of the secondary treatment facilities.

D. No later than January 1, 1991, the City shall begin construction of the secondary treatment facilities.

E. No later than July 1, 1993, the City shall complete construction of the secondary treatment facilities.

F. No later than December 31, 1993, the City shall achieve compliance with secondary treatment effluent limitations as contained in NPDES Permit No. WA-002374-4, which are hereby incorporated herein by reference.

G. When comment or approval by EPA or Ecology is necessary to proceed with the remedial program, the milestones in subparagraphs IV. B, C, and D above shall be adjusted appropriately if such agency review exceeds sixty (60) days from the date of receipt of the City's submittal. ++EP++

Page 5 V REPORTING

The City shall provide the Water Permits and Compliance Branch, EPA, 1200 Sixth Avenue, Seattle, Washington, 98101, and the Washington Department of Ecology, PV-11, Olympia, Washington, 98504, with progress reports beginning thirty (30) days after entry of this Decree by the Court and every three (3) months thereafter. Each progress report shall include a description of problems anticipated or encountered which might place the City out of compliance with the terms of this Decree.

VI INTERIM EFFLUENT LIMITATIONS

The City shall at a minimum comply with the following interim effluent limitations from the date of entry of this Decree until the date specified in subparagraph IV.F., above:

Discharge Limitations During Food Parameter Processing Season, July through January Monthly Average Biochemical Oxygen 230 mg/l, Demand (BOD 5-day) 22,000 lbs/day Suspended Solids (TSS) 85 mg/l, 7,000 lbs/day Fecal Coliform Bacteria 700/100 ml ++EP++ Discharge Limitations During Parameter February through June Monthly Average Biochemical Oxygen 110 mg/l Demand (BOD 5-day) 8,500 lbs/day Suspended Solids (TSS) 55 mg/l, 6,000 lbs/day Fecal Coliform Bacteria 700/100 ml pH Between 6.0 and 9.0 standard units VII NONCOMPLIANCE REPORTING

The City shall report to the Water Permits and Compliance Branch, Water Division, EPA, Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101, and to the Department of Ecology, PV-11, State of Washington, Olympia, Washington, 98504, in writing, any violation of an interim or final effluent limitation or failure to meet any milestone date specified in Paragraph IV above, within five (5) days of such event. The report shall state for each violation of an interim or final effluent limitation the amount of the pollutant discharged, the date of the discharge, the cause of the discharge, efforts taken to mitigate the discharge, and other information listed and discribed in Title 40, Code of Federal Regulations, Section 122.41(1)(6) or any successor regulation. For failure to meet any milestone date specified in Paragraph IV, above, the report shall state the number of days of such violation and the ++EP++ estimated date that completion will be achieved.

Page 7

In addition, a copy of the report summarizing all violations, accompanied by the City's penalty payment as stipulated in Paragraph VIII, below, shall be submitted to the United States Attorney for the Western District of Washington by the fifteenth (15th) day of the month following the month in which the violation(s) occurred. Each payment shall be accompanied by a short written statement explaining how the total penalty amount was computed.

VIII STIPULATED PENALTIES

A. The City agrees to pay a stipulated penalty for violation of any interim effluent limitation set forth in Paragraph VI, above, from the date of entry of the Consent Decree until the date specified in Subparagraph IV.F, and for violation of any final effluent limitation after the date specified in Subparagraph IV.F above, until December 31, 1994. The City shall pay a stipulated civil penalty for violation of each interim and final effluent limitation parameter as follows:

(1) For each calendar month in which the monthly average limitation set forth in Paragraph VI, above, is exceeded, the City shall pay the sum of One Thousand Dollars ($1,000.00) for each parameter (BOD, TSS, fecal coliform bacteria and pH) exceeded; and

(2) The City agrees to pay stipulated civil penalties for failure to meet each of the milestone dates listed in ++EP++ Paragraph IV, above.

Page 8

The penalties for failure to meet each milestone date are as follows:

Period of Failure to Comply Penalty Per Day 1st to 15th day $50.00 15th to 45th day $100.00 45th to 180th day $250.00 over 180 days $500.00

B. Accrual of stipulated civil penalty liability pursuant to subparagraph VIII.A above shall be cumulative in all instances.

C. In the event that the City suffers delay in meeting a milestone date in the remedial program schedule in Paragraph IV above and said delay would render adherence to the schedule of milestones which follow it unreasonably difficult, the schedule shall be adjusted to extend the milestone date to account for the delay.

IX SEWER BAN

If the City is found to be in violation of subparagraph IV.D, IV.E, or IV.F, above for a period greater than fifteen (15) days, there shall be no additional hookups or extensions allowed to its collection system until such time as the City can demonstrate it has returned to compliance. ++EP++

Page 9 X ENTRY AND INSPECTION

During the pendency of this Consent Decree, EPA and Ecology and their authorized agents, including contractors, may exercise the authority granted by Section 308(a) and (b) of the Act, 33 U.S.C. Section 1318(a) and (b), and by RCW 90.48.090, to enter at a reasonable time the project sites and to examine, inspect, and copy records, logs, contracts, and any other documents which EPA or Ecology, or their authorized contractors need to assess compliance by the City with the terms of this Consent Decree.

XI EFFECT OF CONSENT DECREE

This Consent Decree is not and shall not be interpreted to be a permit for the discharge of pollutants under Section 402 of the Act, 33 U.S.C. Section 1342, or under any provision of state law nor shall it in any way relieve the defendant of any obligation imposed by such Act or any permit issued thereunder, or of its obligation to comply with any other local, state, or federal law in any way related to the subject of this Consent Decree. Enforcement of any uncontested or adjudicated violation of the remedial program schedule included in Paragraph IV or the interim or final effluent limitations in the Consent Decree shall be according to the terms of this Decree only. With respect to any violation of this Consent Decree other than a violation of the remedial program schedule in Paragraph IV or of the interim or ++EP++ final effluent limitations, nothing contained herein shall be construed to prevent or limit plaintiffs' right to obtain penalties or injunctive relief under Section 309 of the Act, U.S.C. Section 1319, or other federal or state statutes and regulations.

Page 10

The parties have entered into this Consent Decree to settle disputed matters. This Consent Decree represents the compromise agreed to by the parties after extensive good faith negotiations. The parties consider the entry of this Consent Decree, as a means to avoid protracted and difficult litigations, to be in the public interest. For these reasons the entry of this decree shall serve to settle and compromise the allegations made by plaintiffs in the Complaint. In addition, the City agrees to dismiss with prejudice its pending actions related to secondary treatment against the plaintiffs in the cases of City of Bellingham v. United States Environmental Protection Agency, et al., No. 86-7703 (9th Cir. 1986); City of Bellingham v. State of Washington Department of Ecology, No. 86-60, Pollution Control Hearing Board (1986); and City of Bellingham v. State of Washington Department of Ecology, No. 85-2-00673-5, Whatcom County Superior Court (1985).

XII RETENTION OF JURISDICTION

The Court shall retain jurisdiction to enforce the terms and conditions of this Decree until its termination, except that the Court may, at any time, order the payment of any penalty which ++EP++ may have accured while the provisions of the Consent Decree were in effect.

Page 11

Any party shall have the right to petition this Court for modification or construction of any provision of this Decree upon good cause and after due notice to all parties.

XIII FORCE MAJEURE

A. In the event that the City fails to comply with the requirements of this Consent Decree and the City's noncompliance was caused by circumstances beyond the City's control which could not be overcome by due diligence, the City's failure to comply shall not be a violation of this Consent Decree and shall not result in liability for stipulated penalties or other sanctions. To the extent that noncompliance is caused by circumstances beyond the City's control which could not be overcome by due diligence, the remedial program schedule in paragraph IV shall be adjusted to account for delay.

B. The City shall promptly notify the Water Permits and Compliance Branch, Water Division, EPA Region X, 1200 Sixth Avenue, Seattle, Washington 98101, and the Department of Ecology, PV-11, Olympia, Washington 98504, in writing of any occurrence which may result in noncompliance with the requirements of this Consent Decree which is caused by circumstances beyond the City's control which could not be overcome by due diligence. The City's notification to EPA and Ecology shall be written, shall state the nature of the noncompliance, the reason(s) therefore, the ++EP++ expected duration of noncompliance, and actions to be taken to mitigate further noncompliance.

Page 12 XIV DISPUTE RESOLUTION

In the event that the City claims it has a defense or excuse for any noncompliance reported to EPA, the City shall provide a notice and a concise statement of the defense or excuse to EPA Region X and the Department of Ecology with the City's report of noncompliance. EPA and the Department of Ecology shall have fifteen (15) days following the receipt of said notice and statement from the City to deliver a response to the City. The response shall state whether EPA or the Department of Ecology accepts or disputes the City's claim to an excuse or defense to noncompliance. If EPA and the Department of Ecology accept the City's claim to an excuse or defense, there shall be no requirement under this decree for the City to incur monetary penalties or other sanctions. If EPA or the Department of Ecology dispute the City's claim to an excuse or defense, the parties shall have fifteen (15) days after the City receives notice of the dispute to meet, negotiate and attempt to arrange a mutually acceptable resolution. If no mutually acceptable resolution is achieved within fifteen (15) days, any party shall have the right to submit the dispute to the Court for resolution. ++EP++

Page 13 XV TERMINATION

This Consent Decree shall remain in effect until substantive compliance with NPDES limits have been demonstrated for twelve (12) consecutive months or December 31, 1994, whichever occurs earlier. THE UNITED STATES OF AMERICA Department of Justice Environmental Protection Agency /s Roger J. Marzulla Roger J. Marzulla, Acting Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. /s/ Thomas L. Adams, Jr. THOMAS L. ADAMS, JR. Assistant Administrator for Enforcement and Compliance Monitoring Washington, D.C. /s/ Gene S. Anderson GENE S. ANDERSON United States Attorney /s/ Robie G. Russell ROBIE G. RUSSELL Regional Administrator, Region X Seattle, Washington /s/ Jackson L. Fox JACKSON L. FOX Assistant United States Attorney /s/ John Hohn JOHN HOHN Asst. Regional Counsel, Region X Seattle, Washington FOR THE STATE OF WASHINGTON /s/ Kenneth O. Eikenberry KENNETH O. EIKENBERRY Attorney General Olympia, Washington 98504/s/ Andrea Beatty Riniker ANDREA BEATTY RINIKER Director, Department of Ecology Olympia, Washington 98504 /s/ Jeffrey Goltz JEFFREY GOLTZ Assistant Attorney General Olympia, Washington 98504 /s/ Charles Lean CHARLES LEAN Assistant Attorney General Olympia, Washington 98504 ++EP++

Page 14

FOR THE CITY OF BELLINGHAM /s/ Timothy B. Douglas TIMOTHY B. DOUGLAS Mayor /s/ Bruce L. Disend BRUCE L. DISEND City Attorney DATED this 5th day of February, 1987.

/s/ Barbara J. Rothstein

UNITED STATES DISTRICT JUDGE

CACY, ROBERT DBA POINTS NORTH

DOC 02 OF 02

CONSENT DECREE

10-87-C014

CWA

MISC

19871104

19871104

AKD980979611

CACY, ROBERT DBA POINTS NORTH

CENTRAL, AK

A86-007, F86-074

10

CONSENT DECREE in U.S. v. ROBERT J. CACY d/b/a POINTS NORTH

Page 1 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

ROBERT J. CACY d/b/a Points North, Defendant.

Civil No. F86-074

CONSENT DECREE

Plaintiff United States of America, on behalf of the Administrator of the United States Environmental Protection Agency (EPA), and defendant Robert J. Cacy agree to entry of this Consent Decree to settle claims made by the United States against defendant in the complaint filed in this action on January 8, 1986. The complaint alleges that defendant violated the Clean Water Act, 33 U.S.C. Section 1251 et seq., by discharging pollutants from his placer mine into Deadwood Creek in violation of his National Pollutant Discharge Elimination System (NPDES) permit.

Each undersigned representative of the parties to this Decree certifies that he or she is fully authorized to execute this Decree on ++EP++ behalf of the party he or she represents and to legally bind such party.

Page 2

The consent of the United States, however, is subject to the requirements of 28 C.F.R. Section 50.7. Nothing in this Consent Decree shall constitute an admission of fact or law by either party with respect to any issues raised by the complaint, except to the extent that the answer filed by defendant may be construed as such. NOW, THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED:

1. Jurisdiction and Venue

This Court has jurisdiction over the subject matter of this action and the parties to this action. Defendant waives any objections he may have to personal jurisdiction or venue. The complaint filed in this action states a claim upon which relief may be granted.

2. Public Interest

The Court finds that this Decree has been entered into in good faith and is in the public interest.

3. Parties Bound

(a) This Decree shall bind defendant and any of his officers, directors, agents, employees, contractors or consultants engaged in activities related to defendant's placer mining operations and all persons, corporations or other entities who discharge pollutants under the authority of any NPDES permit issued to defendant, including but not limited to NPDES permits AK-0038075, AK-0042111, AK-0042153, and AK-0042161, regardless of whether such permit has been transferred by defendant in accordance with 40 C.F.R. Section 122.61. This Decree shall not apply to Bedrock Mine on Gilmore Creek or discharges of pollutants authorized by NPDES permit AK-0025895 unless defendant holds an ownership interest greater than 50% in such mine or NPDES permit AK-0025895 is transferred to defendant. ++EP++

Page 3

(b) Defendant shall notify all persons or entities subject to this Decree of the terms of this Decree and shall give those persons or entities a copy of this Decree. Defendant shall notify EPA Region 10 in writing that this notice has been given.

(c) Defendant shall notify all successors in interest of the terms of this Decree and shall provide those successors with a copy of this Decree prior to transfer of ownership or operation of any mine or mining claims owned or operated by defendant. Defendant shall notify EPA Region 10 in writing that this notice has been given.

4. Purpose

The purpose of this Decree is to ensure defendant's full compliance with the Clean Water Act.

5. Civil Penalty

Defendant shall pay a civil penalty of $10,000 for all alleged civil violations of the Clean Water Act occurring prior to December 31, 1986. This payment shall be made by cashier's or certified checks made payable to the Treasurer of the United States and shall be paid, together with interest thereon accruing at the rate of 8% per annum from entry of the Decree, according to the payment schedule attached as Appendix B and incorporated by reference herein. The checks shall be delivered or mailed, certified return receipt, to the office of the United States Attorney for the District of Alaska, Anchorage, Alaska. A letter shall be enclosed with each check identifying this case and stating that the payment is made in accordance with paragraph 5 of this Decree. A copy of all such letters shall be sent to EPA Region 10. This civil penalty shall not be used as a deduction for purposes of federal income tax. ++EP++

Page 4 6. Compliance Program

(a) Defendant is enjoined from operating, in any capacity other than as an employee, or financing any placer mine that discharges pollutants into waters of the United States unless that mine is in compliance with a valid NPDES permit and the requirements of the Compliance Plan attached to this Decree as Appendix A.

(b) By its consent to entry of this Decree, the United States does not warrant that defendant's compliance with the Decree or compliance plan will insure compliance with the Clean Water Act, and defendant shall nevertheless remain solely responsible for compliance with the Act. Any dispute concerning the defendant's liability for noncompliance with the terms and conditions of this Decree shall be resolved by the Court. The United States does not, however, waive any rights or remedies otherwise available to it for any violation of the Clean Water Act by defendant occurring after December 31, 1986.

(c) Performance of the terms of this Decree by defendant is not conditioned on the receipt of any federal or state grant funds. Performance is not excused by the lack of any such funds, or any delay in the processing of any application for such funds.

(d) This Decree is not an effluent discharge permit within the meaning of Section 402 of the Act, 33 U.S.C. Section 1342. Any NPDES permit must be obtained in accordance with applicable federal and state law.

(e) This Decree in no way affects defendant's responsibility to comply with any other federal, state or local law.

(f) This Decree does not require defendant either to cease ++EP++ or to continue operating any placer mine.

Page 5

If defendant decides to cease operating a mine which is subject to this Decree, he shall notify EPA of his intention not to mine by March 31 of the year in which operation is to cease.

(g) Nothing in this Decree shall in any way limit or restrict defendant's right to appeal or challenge the terms or conditions of any NPDES permit issued to defendant as otherwise authorized by the Clean Water Act or the regulations promulgated thereunder.

7. Force Majeure

(a) If any event occurs that causes or may cause a violation of any provision of this Decree, including the Compliance Plan, defendant shall notify EPA Region 10 in writing within ten days of the event. The notice shall describe the nature of the violation, cause of the violation, the length of time it will continue, the measures taken and to be taken to prevent or minimize the violation and the schedule for implementing remedial measures. Failure by the defendant to comply with this paragraph 7(a) shall render paragraph 7(b) below void as to the event involved, and shall constitute a waiver of the defendant's ability to request any relief from his obligations under this Decree based on such event.

(b) If a violation of this Decree has been or will be caused solely by an event beyond the control of defendant or any entity controlled by or under the common control of the defendant and the defendant could not have foreseen and prevented the violation, the defendant's obligation to comply with the relevant provision of this Decree shall be extended for an appropriate period not to exceed the actual delay resulting from the event. Before an obligation to comply with an effluent limitation set forth in the ++EP++ Compliance Plan can be extended under this paragraph 7, the bypass or upset provisions of 40 C.F.R. Sub-Section 122.41(m) and (n) must also be satisfied.

Page 6

A storm event will not be considered a ground for relief under this paragraph unless it exceeds a 5-year, 6-hour storm event. Economic hardship or cost of compliance are not grounds for relief under this paragraph.

(c) The burden of proving that a failure to comply with this Decree was caused solely by an event beyond the control of defendant shall be on defendant.

(d) An extension of time for compliance with any requirement of this Decree does not result in an extension for any other requirement. Defendant must make a separate showing for each requirement for which an extension is sought.

8. Access and Inspections

Defendant shall allow authorized EPA representatives to inspect any placer mine that defendant owns or operates, or in which defendant has an ownership or leasehold interest. Inspection may take place at EPA's discretion without advance notice. Inspections may take place at all reasonable times, without a warrant, upon presentation of EPA credentials. Under this paragraph, EPA's inspection authority shall include all areas where placer mining facilities or equipment are located. EPA shall have the right to sample, monitor or photograph defendant's mines. During the placer mining season, defendant shall maintain at the mine site all operating and ++EP++ monitoring records required by the applicable NPDES permit and this Decree.

Page 7

The provisions of this paragraph are in addition to any other right of entry or inspection available to EPA or the United States.

9. Retention of Rights Against Third Parties

This Decree does not affect the rights of the United States or defendant against any parties that do not sign this Decree.

10. Costs and Attorneys' Fees

Each party shall bear its own costs and attorney's fees in this action and in any subsequent proceedings related to this Decree.

11. Addresses

For purposes of providing notice and making payments under this Decree, the following are the address of the parties to this Decree. These addresses may be changed upon written notice to all other parties.

Office of the United States Attorney Federal Building 701 C Street Anchorage, Alaska 99513 EPA Region 10 Chief, Water Compliance Section 1200 Sixth Avenue Seattle, Washington 98101 Robert J. Cacy Jr 38955 Vista Drive Cathedral City, California 92234

12. Modification

Modifications to this Decree may become necessary as a result of changes in applicable Federal or State of Alaska regulatory requirements. All modifications to this Decree shall be in writing and shall be approved by the Court.

13. Retention of Jurisdiction and Termination

This Court shall retain jurisdiction over this action to issue ++EP++ such further orders and relief as may be necessary and appropriate to interpret this Decree and effectuate its purposes.

Page 8

This Decree shall terminate on December 31, 1988, except that any civil penalty liability which has accrued prior to that time shall not terminate until paid in full, and the court shall retain continuing jurisdiction for the purpose of insuring that all outstanding civil penalties are paid in full. Upon termination of the Decree, the United States shall move the court to dismiss this action. FOR DEFENDANT ROBERT J. CACY

/s/ Robert J. Cacy

ROBERT J. CACY

FOR UNITED STATES OF AMERICA

/s/

for F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

United States Department of

Justice

/s/

for MICHAEL R. SPAAN

United States Attorney

District of Alaska ++EP++

Page 9

/s/ James L Nicoll, Jr

JAMES L. NICOLL, JR.

Environmental Enforcement Section

Land and Natural Resources

Division

United States Department of

Justice

Washington, D.C. 20530

/s/ Thomas L. Adams Jr

THOMAS L. ADAMS

Assistant Administrator for

Enforcement &

Compliance Monitoring

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460

/s/

ROBIE G. RUSSELL

Regional Administrator

U.S. Environmental Protection

Agency, Region 10

1200 Sixth Avenue

Seattle, Washington 98101

IT IS SO ORDERED, and ENTERED this 2 day of Nov, 1987

/s/

United States District Judge

++EP++

Page APP-A-1

APPENDIX A COMPLIANCE PLAN

This compliance plan is intended to ensure the efficiency of defendant's treatment system and to evaluate the effect of natural stream conditions and fluctuations on defendant's placer mining operation. Defendant shall conduct monitoring and shall report monitoring results for settleable solids, turbidity and arsenic. In addition, defendant shall perform management practices and reclamation as required by this plan. Results from the monitoring program shall be used by defendant to determine operational adjustments that may be necessary to comply with the conditions of defendant's NPDES permit and the conditions of this consent decree.

A. Monitoring Requirements

1. General requirements

a. Samples shall be taken when the operation has a discharge to receiving water.

b. Sampling locations are designated as "effluent" and "background." "Effluent" samples shall be taken after the last treatment of the discharge prior to entry of the discharge into the receiving stream. "Background" samples shall be taken in the receiving stream at a location above defendant' mine that is representative of natural conditions. ++EP++

Page APP-A-2

c. Samples shall be taken when the effluent discharge volume is in a state of equilibrium. "Equilibrium" is defined as that period during production when sluice pay dirt loading and discharge are constant or that period during non-sluicing when discharge from the operation is constant.

2. Settleable solids

a. Effluent samples shall be taken twice each day during periods of discharge.

b. The concentration of settleable solids in the effluent shall not exceed the limits contained in defendant's NPDES permit.

3. Turbidity

a. Effluent and background samples shall be taken twice each calendar month during periods of discharge. Samples shall be taken with a minimum seven-day and maximum fifteen-day interval between samples.

b. The turbidity level of the effluent sample shall not exceed the limits contained in defendant's NPDES permit.

c. A receiving stream sample shall be taken 500 feet below the discharge entry point at a point where the effluent and receiving stream are well-mixed. ++EP++

Page APP-A-3

4. Arsenic

a. Effluent and background samples shall be taken twice each calendar month during periods of discharge. Samples shall be taken with a minimum seven day and maximum fifteen day interval between samples.

b. The concentration of total arsenic in the effluent shall not exceed the limit contained in defendant' NPDES permit.

B. Reporting Requirements

Discharge Monitoring Reports (DMRs) shall be submitted to EPA for each calendar month of operation for all parameters for which data analysis has been completed. Any noncompliance with the terms of this decree must be reported within 10 days of such noncompliance. Monthly DMRs shall be submitted no later than 15 days after the end of the calendar month.

C. Operating Plan

Defendant shall submit to EPA an annual operating plan no later than March 31 of each year defendant plan to mine. However, if defendant will not mine during any mining season, defendant shall notify EPA of such not later than March 31 of that year and shall not be required to submit an operating plan. The operating plan shall contain, at a minimum, the following information for each mine to be operated:

1. The location and size of the mine site (cut area);

2. A facility diagram of the mine site, including bypasses, ++EP++ minecut, overburden removal and storage areas, routes of access to and from the mine, staging areas for equipment, and the location of work camps and housing, the location of the receiving stream, and the location of the wastewater treatment system;

Page APP-A-4

3. The number of employees for the facility;

4. The names and mailing addresses of all persons, partnerships (and members thereof), corporations or other entities participating in operation of the facility, and a description of the nature and extent of each such person's participation at the facility;

5. The amount in linear dimensions of overburden to be removed during the mining season;

6. Method of removing overburden;

7. Disposal or storage sites for overburden;

8. Erosion prevention methods to be used during overburden removal;

9. The method for stabilization of overburden storage sites;

10. The amount of placer pay dirt in cubic yards per day to be processed (sluiced);

11. The method to be used for processing pay dirt (gold recovery);

12. The source water to be used for processing;

13. The amount of water (GPM) to be used for processing; ++EP++

Page APP-A-5

14. The type and location of the wastewater treatment system (if settling ponds are to be used, include the number to be used, dimensions, estimated retention time of each, and the maintenance schedule required to maintain the integrity of the (pond) treatment system);

15. The receiving stream for the effluent discharge;

16. The estimated volume (GPM) of effluent discharge;

17. The location of stream bypass channels;

18. The methods of domestic waste storage, treatment, and disposal;

19. The methods for disposing of solid waste;

20. The methods for storage, handling, and disposal of fuels and other toxic materials; and

21. The methods and locations for controlling site drainage and surface runoff.

D. Reclamation

Defendant shall submit no later than March 31 of each year a copy of the reclamation plan for defendant's mine. If otherwise so required by applicable Federal or State of Alaska law, this plan must be approved by the United States Bureau of Land Management or the Alaska Department of Natural Resources, Division of Mines or other appropriate authority with trust responsibility for the land on which the claim is located.

E. Best Management Practices

Defendant shall comply with the following management practices: ++EP++

Page APP-A-6

1. All unused stream, runoff and subsurface water intercepted by the mining operation shall be diverted around mining and treatment facilities. The specific methods and means to control such excess flows shall be designed to prevent washouts of the effluent treatment system during high water events;

2. No mining activity, including but not limited to classifying, prewashing, sluicing or the installation of settling ponds or other wastewater treatment systems, shall take place within waters of the United States;

3. Solids, sludges, tailings, filter backwash, settled material or other pollutants removed in the course of treatment or control of wastewater shall be disposed of in a manner which prevents any such materials from entering waters of the United States;

4. There shall be no discharges to waters of the United States from hydraulic stripping;

5. Overburden shall be placed in stable stockpiles away from stream channels and protected from erosion. Mined or disturbed areas, including the effluent treatment system areas, shall be contoured and rehabilitated in compliance with all applicable requirements of the United States Bureau of Land Management, Alaska Department of Natural Resources, Division of Mines, or ++EP++ other appropriate authority with trust responsibility for the land on which the claim is located.

Page APP-A-7

At the end of the mining season all mined or disturbed areas shall be left in a condition which will not cause degradation to waters of the United States other than that which would occur had the mined area remained in its natural condition;

6. Sluice material shall be processed in a manner which minimizes water use;

7. If settling ponds are utilized as part of the wastewater treatment system, the ponds shall be continuously maintained throughout the mining season to assure maximum settling capacity;

8. A durable and efficient fishway around the mining operation shall be maintained in all fish-bearing waters;

9. In fish-bearing waters, pump intakes or stream diversions to supply make-up water shall be designed to prevent intake, impingement, or entrapment of fish;

10. The entrance to any water diversion ditch is to have a well-maintained headgate, or similar device, which shall block water flow during non-sluicing periods; and

11. Staging areas shall be constructed out of the flood plain. If this is not possible, staging areas must be discussed in the operating plan and approved by EPA. ++EP++

Page APP-A-8

F. Submittals to EPA

Submittals required by this compliance plan shall be sent to: U.S. Environmental Protection Agency, Region 10 Chief, Water Compliance Section, 1200 Sixth Avenue, M/S 513 Seattle, Washington 98101 ++EP++

APPENDIX B PAYMENT SCHEDULE Date Amount Within 30 days of entry of the Consent Decree $2,000.00 September 1, 1987 $2,000.00 January 10, 1988 $2,000.00 July 1, 1988 $2,000.00 September 15, 1988 $2,000.00 and all accrued interest

Interest shall accrue from the date of entry of the decree at the rate of 8% per annum. EPA shall notify defendant of the amount of accrued interest either upon request of defendant or by September 1, 1988. ++EP++

CACY, ROBERT DBA POINTS NORTH

01 OF 02

COMPLAINT

10-87-C014

CWA

MISC

19871104

19860106

AKD980979611

CACY, ROBERT DBA POINTS NORTH

CENTRAL, AK

A86-007, F86-074

10

COMPLAINT IN U.S. v. ROBERT J. CACY d/b/a POINTS NORTH

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, Plaintiff,

v.

ROBERT J. CACY d/b/a Points North, Defendant.

Civil No. A86-007

COMPLAINT

The United States of America, pursuant to the authority of the Attorney General, and at the request of the Administrator of the United States Environmental Protection Agency, by its undersigned attorneys, alleges:

1. This is a civil action brought under Section 309 of the Clean Water Act ("the Act"), 33 U.S.C. Section 1319, against defendant Robert J. Cacy d/b/a Points North, for defendant's discharge of pollutants into Deadwood Creek in violation of Section 301(a) of the Act, 33 U.S. C. Section 1311(a). The United States seeks the imposition of civil penalties and an injunction directing defendant to comply with the Act and all applicable terms and conditions of defendant's National Pollutant Discharge Elimination System permit.

2. The United States Department of Justice is authorized to bring this action pursuant to 28 U.S.C. Sub-Section 516 and 519. ++EP++

Page 2

3. The Court has jurisdiction of this action pursuant to 28 U.S.C. Sub-Section 1345 and 1355 and Section 309 of the Act, 33 U.S.C. Section 1319.

Page 2

4. Notice of the commencement of this action has been given to the State of Alaska pursuant to 33 U.S.C. Section 1319(b).

5. Defendant Cacy operates a placer mine on Deadwood Creek, approximately nine miles south of Central, Alaska.

6. Section 301(a) of the Act, 33 U.S.C. Section 1311(a), prohibits the discharge of any pollutants into the waters of the United States unless such discharges are authorized by and in compliance with the terms and conditions of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to 33 U.S.C. Section 1342.

7. Defendant has discharged pollutants within the meaning of Section 502(6) of the Act, 33 U.S.C. Section 1362(6), from a settling pond at its placer mining facility into Deadwood Creek at all times relevant to the complaint.

8. Deadwood Creek is a navigable water as defined in Section 502(7) of the Act, 33 U.S.C. Section 1362(7).

9. The settling pond at defendant's placer mine from which it discharges pollutants is a point source within the meaning of Section 502(14) of the Act, 33 U.S.C. Section 1362(14).

10. Defendant Cacy is a person within the meaning of Section 502(5) of the Act, 33 U.S.C. Section 1362(5). ++EP++

Page 3

11. On June 14, 1984, the United States Environmental Protection Agency issued NPDES Permit No. AK-0038075 to Robert Cacy and Points North. EPA modified this permit on May 10, 1985. Both the 1984 permit and the modified 1985 permit authorized the discharge of pollutants up to specified levels into Deadwood Creek.

12. On numerous occasions in June, 1984, July, 1984 and August, 1984, defendant discharged pollutants into Deadwood Creek in levels exceeding the limits established in Permit No. AK-0038075.

13. On numerous occasions in 1985, including but limited to July 25, 1985, July 27, 1985 and July 30, 1985, defendant discharged pollutants into Deadwood Creek in excess of the limits established in the modified 1985 Permit No. AK-0038075.

WHEREFORE, the United States of America respectfully prays that this Court:

A. Enter a permanent injunction against defendant requiring it to cease violating Section 301(a) of the Act, 33 U.S.C. Section 1311(a), and all applicable permit terms and conditions;

B. Enter a permanent injunction ordering defendant to expeditiously complete such affirmative actions as are necessary to ensure that defendant complies with the Act and all applicable permit terms and conditions;

C. Impose civil penalties of $10,000 per violation for each day defendant violated Section 301 of the Act, 33 U.S.C. Section 1311, and all applicable permit terms and conditions; ++EP++

Page 4

D. Award attorney fees and costs of this action against defendant and in favor of the United States of America; and

E. Grant such further relief as this Court may deem just and proper.

Respectfully submitted,

/s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

MICHEAL R. SPANN

United States Attorney

District of Alaska

By: /s/

MARK W. SCHNEIDER, Attorney

Land and Natural Resources

Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

(202) 633-2802

/s/ Malcom Logan

MALCOLM LOGAN

Assistant United States Attorney

Federal Building & U.S.

Courthouse

701 C Street

Anchorage, Alaska 99513

(907) 271-5071 ++EP++

Page 5

OF COUNSEL:

MERRILEE CALDWELL, ESQUIRE

Office of Regional Counsel

U.S. Environmental Protection

Agency

Region X

1200 Sixth Avnue

Seattle, Washington 98101

DAVID DRELICH, ESQUIRE

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460 ++EP++

CITY OF PORT ANGELES

DOC 02 OF 02

CONSENT DECREE

10-87-C010

CWA

MUNI

19871022

19871022

WAD980729387

CITY OF PORT ANGELES

PORT ANGELES, WA

C87-1087R

10

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CONSENT DECREE FOR U.S. v. CITY OF PORT ANGELES

Page 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

NO. C87-1087R CONSENT DECREE UNITED STATES OF AMERICA, and THE STATE OF WASHINGTON, Plaintiffs, v. CITY OF PORT ANGELES, WASHINGTON, Defendant.

WHEREAS, plaintiffs, United States of America and the State of Washington, having filed a Complaint in this case alleging violations of Sections 301 and 402 of the Clean Water Act ("the Act"), 33 U.S.C. Sub-Section 1311 and 1342, and Sections 90.48.162, 90.48.260 and 90.52.040 of the Revised Code of Washington ("RCW") by defendant City of Port Angeles, Washington ("City"); and

WHEREAS, plaintiffs and defendant, having agreed that settlement of this matter is in the public interest and that entry of this Decree is the most appropriate means of resolving this matter; and ++EP++

Page 2

WHEREAS, the plaintiffs and defendant, by their respective attorneys, having consented, without trial or adjudication of any issue of fact or law herein, to the entry of this Decree, NOW, THEREFORE, it is ORDERED as follows:

I JURISDICTION

This Court has jurisdiction over the subject matter and over the parties pursuant to 28 U.S.C. Section 1345 and 33 U.S.C. Section 1319. The Complaint states a claim upon which relief may be granted against defendant pursuant to Section 309 of the Act, 33 U.S.C. Section 1319.

II BINDING EFFECT

The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, agents, servants, employees, successors, assigns, and all persons, firms and corporations in active concert or participation with them. The City shall give notice of this Consent Decree to any successors in interest prior to transfer of ownership or operation of the City's Wastewater Treatment plant, and shall simultaneously notify the United States Environmental Protection Agency ("EPA"), Region 10, Water Division Director, and the Director of the Washington Department of Ecology ("Ecology"), PV-11, Olympia, Washington, 98504, that such notice has been given by the defendant. The City shall provide a copy of this Consent Decree to each contractor or contractors which it retains to ++EP++ perform work prescribed herein prior to executing any contract relating to such work.

Page 3 III CIVIL PENALTY

In settlement of plaintiffs' claims in the Complaint relating to reported violations of NPDES Permit No. WA-002397-3, and Section 301 of the Act, the City shall pay a civil penalty of Eight Thousand Five Hundred Dollars ($8,500.00). This penalty is due and payable thirty (30) days after this Consent Decree is entered by the Court. The City shall tender the payment at the office of the United States Attorney for the Western District of Washington, by check made payable to the Treasurer of the United States.

IV REMEDIAL PROGRAM

The City shall undertake a program to attain compliance with its NPDES permit, the Act and the RCW. The program involves the construction of a wastewater treatment facility capable of achieving secondary treatment levels. The completion of all phases of design, construction and achievement of compliance shall be accomplished in accordance with the schedule below:

A. The City shall select and retain a consulting firm by July 31, 1987.

B. The City shall submit a complete and updated engineering report for a secondary treatment facility by March 31, 1989. ++EP++

Page 4

C. The City shall complete final design of the secondary facility by September 30, 1990.

D. The City shall begin construction of the secondary treatment facility by July 1, 1991 and complete construction by December 31, 1992.

E. The City shall attain full compliance with the secondary treatment limits contained in NPDES Permit No. WA-002397-3 by April 1, 1993. The NPDES permit limits are hereby incorporated by reference and, for the purposes of this Consent Decree, shall be final effluent limitations.

F. When comment or approval by EPA or Ecology is necessary to proceed with the remedial program, the milestones in subparagraphs IV. A, B, and C above shall be the adjusted appropriately if such agency review exceeds sixty (60) days from the date of receipt of the City's submittal.

V REPORTING

The City shall provide the Water Permits and Compliance Branch, EPA, 1200 Sixth Avenue, Seattle, Washington, 98101, and the Washington Department of Ecology, PV-11, Olympia, Washington, 98504, with progress reports beginning thirty (30) days after entry of this Decree by the Court and every three (3) months thereafter. Each progress report shall include a description of problems anticipated or encountered which might place the City out of compliance with the terms of this Decree. ++EP++

Page 5 VI INTERIM EFFLUENT LIMITATIONS

The City shall at a minimum comply with the following interim effluent limitations from the date of entry of this Decree until the date specified in subparagraph IV.E, above:

Parameter

Discharge Limitations

Monthly Average Biochemical Oxygen Demand

90 mg/1,

(BOD 5-day)

2800 lbs/day

Suspended Solids (TSS)

100 mg/1, 2400 lbs/day

Fecal Coliform Bacteria

890/100 ml

pH

Between 6.0 and 9.0 standard units.

VII NONCOMPLIANCE REPORTING

The City shall report to the Water Permits and Compliance Branch, Water Division, EPA, Region 10, 1200 Sixth Avenue, Seattle, Washington, 98101, and to the Department of Ecology, PV-11, State of Washington, Olympia, Washington, 98504, in writing, any violation of an interim or final effluent limitation or failure to meet any milestone date specified in Paragraph IV above, within five (5) days of such event. The report shall state for each violation of an interim or final effluent limitation the amount of the pollutant discharged, the date of the discharge, the cause of the discharge, efforts taken to ++EP++ mitigate the discharge, and other information listed and described in Title 40, Code of Federal Regulations, Section 122.41(1)(6) or any successor regulation.

Page 6

For failure to meet any milestone date specified in Paragraph IV, above, the report shall state the number of days of such violation and the estimated date that completion will be achieved. In addition, a copy of the report summarizing all violations, accompanied by the City's penalty payment as stipulated in Paragraph VIII, below, shall be submitted to the United States Attorney for the Western District of Washington by the fifteenth (15th) day of the month following the month in which the violation(s) occurred. Each payment shall be accompanied by a short written statement explaining how the total penalty amount was computed.

VIII STIPULATED PENALTIES

A. The City agrees to pay a stipulated penalty for violation of any interim effluent limitation set forth in Paragraph VI, above, from the date of entry of the Consent Decree until the date specified in Paragraph IV.E, and for violation of any final effluent limitation after the date specified in Paragraph IV.E above, until April 1, 1994. The City shall pay a stipulated civil penalty for violation of each interim and final effluent limitation parameter as follows:

(1) For each month in which the monthly average limitation set forth in subparagraph IV.E and paragraph VI above, ++EP++ is exceeded, the City shall pay the sum of One Thousand Dollars ($1000.00) for each parameter exceeded; and

Page 7

(2) The City agrees to pay stipulated civil penalties for failure to meet each of the milestone dates listed in Paragraph IV, above. The penalties for failure to meet each milestone date are as follows:

Period of Failure to Comply

Penalty Per Day

1st to 15th day

$50.00

15th to 45th day

$100.00

45th to 180th day

$250.00

over 180 days

$500.00

B. Accrual of stipulated civil penalty liability pursuant to subparagraphs VIII.A and B above, shall be cumulative in all instances.

C. In the event that the City suffers delay in meeting a milestone date in the remedial program schedule in Paragraph IV above and said delay would render adherence to the schedule of milestones which follow it unreasonably difficult, the schedule shall be adjusted to extend the milestone date to account for the delay.

IX SEWER BAN

If the City is found to be in violation of subparagraph IV.D or E above for a period greater than fifteen (15) days, there shall be no hookups or extensions allowed to its collection system until such time as the City can demonstrate it has returned to compliance. ++EP++

Page 8 X ENTRY AND INSPECTION

During the pendency of this Consent Decree, EPA and Ecology and their authorized agents, including contractors, may exercise the authority granted by Section 308(a) and (b) of the Act, 33 U.S.C. Section 1318(a) and (b), and by RCW 90.48.090, to enter the project sites and to examine, inspect, and copy records, logs, contracts, and any other documents which EPA or Ecology, or their authorized contractors need to assess compliance by the City with the terms of this Consent Decree.

XI EFFECT OF CONSENT DECREE

This Consent Decree is not and shall not be interpreted to be a permit for the discharge of pollutants under Section 402 of the Act, 33 U.S.C. Section 1342, or under any provision of state law nor shall it in any way relieve defendant of any obligation imposed by such Act or any permit issued thereunder, or of its obligation to comply with any other local, state, or federal law in any way related to the subject of this Consent Decree. Enforcement of any uncontested or adjudicated violation of the remedial program schedule included in Paragraph IV or the interim or final effluent limits in the Consent Decree shall be according to the terms of this Decree only. With respect to any violation of this Consent Decree other than a violation of the remedial program schedule in Paragraph IV or the interim or final effluent limitations, nothing contained herein shall be construed to ++EP++ prevent or limit plaintiffs' rights to obtain penalties or injunctive relief under Section 309 of the Act, U.S.C. Section 1319, or other federal or state statutes and regulations.

Page 9

The parties have entered into this Consent Decree to settle disputed matters. This Consent Decree represents the compromise agreed to by the parties after extensive good faith negotiations. The parties consider the entry of this Consent Decree, as a means to avoid protracted and difficult litigation, to be in the public interest. For these reasons the entry of this Decree shall serve to settle and compromise the allegations made by plaintiffs' in the Complaint. In addition, the City agrees to dismiss with prejudice its actions related to secondary treatment against the plaintiffs in the cases of City of Port Angeles v. Pollution Control Hearings Board, No. 85-2-00404-6, Clallam County Superior Court, and City of Port Angeles v. United States Environmental Protection Agency, No. 86-7735 (9th Cir. 1986).

XII RETENTION OF JURISDICTION

The Court shall retain jurisdiction to enforce the terms and conditions of this Decree until its termination, except that the Court may, at any time, order the payment of any penalty which may have accrued while the provisions of the Consent Decree were in effect. Any party shall have the right to petition this Court for modification or construction of any provision of this Decree upon good cause and after due notice to all parties. ++EP++

Page 10 XIII FORCE MAJEURE

A. In the event that the City fails to comply with the requirements of this Consent Decree and the City's noncompliance was caused by circumstances beyond the City's control which could not be overcome by due diligence, the City's failure to comply shall not be a violation of this Consent Decree and shall not result in liability for stipulated penalties or other sanctions. To the extent that noncompliance is caused by circumstances beyond the City's control which could not be overcome by due diligence, the remedial program schedule in Paragraph IV shall be adjusted to account for delay.

B. The City shall promptly notify the Water Permits and Compliance Branch, Water Division, EPA Region X, 1200 Sixth Avenue, Seattle, Washington 98101 and the Department of Ecology, PV-11, Olympia, Washington 98504 in writing of any occurrence which may result in noncompliance with the requirements of this Consent Decree which is caused by circumstances beyond the City's control which could not be overcome by due diligence. The City's notification to EPA and Ecology shall be written, shall state the nature of the noncompliance, the reason(s) therefore, the expected duration of noncompliance, and actions to be taken to mitigate further noncompliance. ++EP++

Page 11 XIV DISPUTE RESOLUTION

In the event that the City claims it has a defense or excuse for any noncompliance reported to EPA according to this paragraph the City shall provide a notice and a concise statement of the defense or excuse to EPA Region X and the Department of Ecology with the Cities' report of noncompliance. EPA and the Department of Ecology shall have fifteen (15) days following the receipt of said notice and statement from the City to deliver a response to the City. The response shall state whether EPA or the Department of Ecology accepts or disputes the City's claim to an excuse or defense to noncompliance. If EPA and the Department of Ecology accept the City's claim to an excuse or defense, there shall be no requirement under this Decree for the City to incur monetary penalties or other sanctions. If EPA or the Department of Ecology dispute the City's claim to an excuse or defense, the parties shall have fifteen (15) days after the City receives notice of the dispute to meet, negotiate and attempt to arrange a mutually acceptable resolution. If no mutually acceptable resolution is achieved within fifteen (15) days, any party shall have the right to submit the dispute to the Court for resolution.

XV TERMINATION

This Consent Decree shall remain in effect until substantive compliance with NPDES limits have been demonstrated for ++EP++ twelve (12) consecutive months or April 1, 1994, whichever occurs earlier.

Page 12 THE UNITED STATES OF AMERICA

Department of Justice Environmental Protection Agency /s/ Roger A Marzulla ROGER MARZULLA Acting Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. /s/ Thomas L. Adams, Jr THOMAS L. ADAMS, JR. Assistant Administrator for Enforcement and Compliance Monitoring Washington, D.C. /s/ Gene S. Anderson, (ILLEGIBLE) GENE S. ANDERSON United States Attorney /s/ Robie G. Russell ROBIE G. RUSSELL Regional Administrator, Region X Seattle, Washington /s/ Jackson L. Fox JACKSON L. FOX Assistant United States Attorney /s/ John John JOHN JOHN Asst. Regional Counsel, Region X Seattle, Washington

FOR THE STATE OF WASHINGTON

/s/ Kenneth O. Eikenberry KENNETH O. EIKENBERRY Attorney General Olympia, Washington 98504 /s/ Andrea Riniker ANDREA BEATTY RINIKER Director, Department of Ecology Olympia, Washington 98504 /s/ Jeffrey Goltz JEFFREY GOLTZ Assistant Attorney General Olympia, Washington 98504 /s/ Charles Lean CHARLES LEAN Assistant Attorney General Olympia, Washington 98504 ++EP++

Page 13 FOR THE CITY OF PORT ANGELES

/s/ Charles D. Whidden CHARLES D. WHIDDEN Mayor /s/ Craig D. Knutson CRAIG D. KNUTSON City Attorney DATED this day of , 1987. UNITED STATES DISTRICT JUDGE ++EP++

CITY OF PORT ANGELES

DOC 01 OF 02

COMPLAINT

10-87-C010

CWA

MUNI

19871022

19870810

WAD980729387

CITY OF PORT ANGELES

PORT ANGELES, WA

C87-1087R

10

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ORIGINAL COMPLAINT IN U.S. V. CITY OF PORT ANGELES

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

Civil Action No. C87-1087R UNITED STATES OF AMERICA and STATE OF WASHINGTON, Plaintiffs, v. CITY OF PORT ANGELES, WASHINGTON, Defendant.

COMPLAINT

Plaintiffs, the United States of America, at the request of the Administrator of the United States Environmental Protection Agency (EPA) and by authority of the Attorney General of the United States, and the State of Washington by the Attorney General of the State of Washington at the request of the Director of the Washington Department of Ecology, allege as follows:

1. This is a civil action pursuant to Section 309(b)(d) and (e) of the Clean Water Act, 33 U.S.C. Section 1319(b)(d) ++EP++ and (e), (Act), and the Revised Code of Washington, RCW 90.48.037, for injunctive relief and civil penalties against the City of Port Angeles, Washington (City) for the discharge of pollutants into navigable waters of the United States and waters of the State in violation of the City's National Pollutant Discharge Elimination System (NPDES) permit, the Clean Water Act and the Revised Code of Washington.

Page 2

2. The State of Washington (State) has joined as a party plaintiff under Section 309(e) of the Act, 33 U.S.C. Section 1319(e). That section requires that in any civil action brought by the United States against a municipality the State "shall be joined as a party."

3. This Court has jurisdiction over the subject matter of this action and the parties pursuant to 33 U.S.C. Section 1319(b) and (e) and 28 U.S.C. Sub-Section 1345 and 1355 and pendent jurisdiction over the claims of the State.

4. Venue is proper in this judicial district pursuant to 33 U.S.C. Section 1319(b) and 28 U.S.C. Section 1391(b).

5. Defendant City of Port Angeles is a "municipality" and a "person" as defined in 33 U.S.C. Section 1362(4) and (5).

6. At all times relevant, the City owned and operated a publicly owned treatment works (POTW) as that term is defined in 40 C.F.R. Section 122, located in Clallam County, State of Washington. 7. The POTW collects and treats sewage and wastes ++EP++ from residential, commercial and industrial sources and has done so at all relevant times.

Page 3

8. At all relevant times the City has discharged pollutants, as defined in 33 U.S.C. Section 1362(6), into Port Angeles Harbor.

9. Port Angeles Harbor is a navigable water of the United States as defined in 33 U.S.C. Section 1362(7) and a water of the State.

10. At all relevant times, the discharges of pollutants have been and continue to be through a point source as defined by 33 U.S.C. Section 1362(14).

11. Section 1311 of Title 33, United States Code, prohibits the discharge of any pollutant from a point source to navigable waters of the United States except in compliance with the terms and conditions of an NPDES permit, including effluent limitations contained therein.

12. Defendant City is, and at relevant times has been, required by NPDES permit No. WA-002397-3 and by RCW 90.52.040 to meet secondary effluent limitations for municipal sewage and Best Available Technology for vegetable and seafood processing wastewater flows.

FIRST CLAIM FOR RELIEF

13. Paragraphs 1 through 12 are realleged.

14. Defendant City failed to achieve secondary treatment limitations and Best Available Technology limitations by July 1, 1977, as required by its NPDES permit. ++EP++

Page 4

15. Defendant City still has not achieved the limitations required by its permit.

16. Defendant City is liable to the United States for a civil penalty not to exceed $10,000 per day for each day it failed to achieve secondary treatment limitations.

17. Unless enjoined by this Court, the City will continue to fail to achieve its treatment limitations.

SECOND CLAIM FOR RELIEF

18. Paragraphs 1 through 12 are realleged.

19. Upon information and belief, from a time prior to September 1981 and continuing until the present time, the City violated effluent limitations in its NPDES permit, including but not limited to, Biological Oxygen Demand (BOD) Monthly Average, Biological Oxygen Demand Weekly Average, Total Suspended Solids (TSS) Monthly Average, Total Suspended Solids Weekly Average, Fecal Coliform Bacteria (FC) Monthly Average, Percent Removal BOD and Percent Removal TSS.

20. Defendant City is liable to the United States for civil penalties not to exceed $10,000 per day of such violation.

21. Unless enjoined by this Court, the City will continue to violate the effluent limitations in its permit and the Clean Water Act. ++EP++

Page 5 THIRD CLAIM FOR RELIEF

22. Paragraphs 1 through 12 and paragraphs 14, 15, 17, 19 and 21 are realleged.

23. In violating the terms and conditions of its permit, Defendant City violated the Revised Code of Washington, RCW 90.52.040.

24. Defendant is liable to the State for injunctive relief pursuant to RCW 90.48.037 and for other appropriate relief.

PRAYER FOR RELIEF

Wherefore, Plaintiffs pray this Court:

1. To enjoin the City of Port Angeles from discharging pollutants to waters of the United States and the State except as authorized by its NPDES permit;

2. To enjoin the City to immediately undertake and expeditiously complete all necessary construction to achieve secondary effluent limitations as set forth in 40 C.F.R. Section 133;

3. To enjoin the City from allowing any new connections to its sewer system until the POTW comes into compliance with the Clean Water Act and 40 C.F.R. Section 133;

4. To assess a civil penalty of $10,000 per day of such violation of its permit and of the Clean Water Act against the City and in favor of the United States.

5. To enjoin the City from further violating the Revised Code of Washington, RCW 90.52.040. ++EP++

Page 6

6. Grant Plaintiffs such additional and further relief as the Court deems just and proper, including judgment for costs and disbursements herein to be taxed.

Respectfully submitted,

/s/ F. Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

GENE ANDERSON

United States Attorney

Seattle, Washington