HomeMy WebLinkAbout2020-06-04; Air Pollution Control District Notices of Violation Final Report; Gomez, PazTo the members of the:
CITY COUNCIL
Date _hl4\2v CA V cc /
CM v ACM __LDCM (3) ✓
June 4, 2020
To:
From:
Via:
Re:
Council Memorandum
Honorable Mayor Hall and Members of the City Council
Paz Gomez, Deputy City Manager, Pu_9,1~-~y,rks
Geoff Patnoe, Assistant City Managet (_:;-(
Air Pollution Control District Notice~f~tion Final Report
{city of
Carlsbad
Memo ID# 2020112
This memorandum provides the final update related to six Notices of Violation (NOVs) the city
received from the San Diego Air Pollution Control District (APCD) following an inspection of
permitted wastewater facilities.
Background
On Nov. 19, 2019, APCD performed annual inspections of the city's permitted wastewater
facilities. The inspector issued six NOVs, one for each of the following facilities: four lift stations,
storage of a portable generator at the utilities yard and construction-related work at the Foxes
Landing Lift Station. The substance of these NOVs are summarized in Attachment A.
On Dec. 13, 2019, and Jan . 10, 2020, memoranda were sent to City Council with 'information on
the NOVs (Attachments Band C). The Jan. 10, 2020, memorandum included the final report on
closure of the Foxes Landing Lift Station construction-related NOV.
City staff continued to work with APCD staff and resolved the remainder of the NOVs. Settlement
has been reached, and the remaining five NOVs are being settled for a total cost of $1,250.
Discussion
Attachment A includes a summary of each NOV and its conclusion. The summaries of recently
resolved NOVs are as follows:
Foxes Landing Lift Station:
Violation Noted-Failure to record measurements of hydrogen sulfide concentration for
a minimum of five days per week.
Update -On Dec. 20, 2019, staff sent APCD a letter that included data showing that
during the 14-month period cited, only 2.7 % of the 294 required readings had not been
recorded. Staff has also implemented a plan for assuring that recordings of readings are
not missed in the future;
Resolution -On April 15, 2020, a proposed settlement agreement was received from
APCD. Once signed, the City will pay APCD $500.
Public Works Branch
Utilities Department
5950 El Camino Real I Carlsbad, CA 92008 I 760-438-2722
-Honorable Mayor Hall and Members of the City Council
June 4, 2020
Page 2
Cannon Lift Station:
Violation Noted-Failure to record measurements of hydrogen sulfide concentration for
a minimum of five days per week.
Update -On Dec. 20, 2019, staff sent APCD a letter with data showing that during the 19-
month period cited, only 3.9 % of the 380 required readings had not been recorded. Staff
has implemented a plan for assuring that recordings of readings are not missed in the
future.
Violation Noted-Owner failed to change the generator's oil and filter during 2018.
Update -On Dec. 20, 2019, staff sent APCD a letter with additional information showing
that the oil was changed during 2018; however, the contractor did not leave proof at the
station. Administrative safeguards have been instituted to prevent this kind of contractor
oversight from occurring in the future.
Resolution -On April 15, 2020, the City received a proposed settlement agreement for
both violations from APCD. Once signed, the City will pay APCD $500.
Poinsettia Lift Station:
Violation Noted-Owner failed to change the generator's oil and filter during 2018.
Update -Staff sent APCD a letter on Dec. 20, 2019, with additional information showing
that the oil was changed during 2018, however the contractor that staff uses to perform
this task did not leave proof at the station. Contractor oversight measures have been
implemented so this does not happen in the future.
Resolution -On April 15, 2020, the City received a proposed settlement agreement from
APCD. Once signed, the City will pay APCD $250.
Utilities Yard -Emergency Portable Generator:
Violation Noted-A portable generator was used at one site for more than one year.
Update -The city appealed this NOV and it was dismissed by APCD. The listed storage
location of the emergency portable generator on the city's APCD certificate of registration
is the utilities yard on El Camino Real. The generator is only used for emergencies and is
stored at the yard until it is deployed to a station-during a power outage. All APCD
required maintenance is also performed at the yard. APCD Rule 12.1 (c)(13) states that
the storage area should not count towards days of operation.
Resolution -On Jan. 22, 2020, APCD dismissed this NOV.
Next Steps
Staff is working with the City Attorney's Office to finalize the settlement agreements noted
above. The City will remit a total of $1,250 for settlement with APCD. The NOVs will be closed out
and practices will continue to be implemented to assure future APCD compliance.
Honorable Mayor Hall and Members of the City Council
June 4, 2020
Page 3
Attachments: A. NOV summary spreadsheet
B. Council Memorandum dated Dec. 13, 2019
C. Council Memorandum dated Jan. 10, 2020
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Laura Rocha, Deputy City Manager, Administrative Services
Robby Contreras, Assistant City Attorney
Vicki Quiram, Utilities Director
Babaq Taj, Engineering Manager
ATTACHMENT A COUNTY OF SAN DIEGO APCD NOTICE OF VIOLATIONS following the NOV. 11, 2019 INSPECTION
Address APCD Violation No. Date of NOV Date of Violation Alleged Violation Description City of Carlsbad Wastewater Response Conclusion
Start End
Failing to record hydrogen sulfide Out of 294 required readings, provided data to
Foxes Landing APCD2019-NOV-concentrations at least five (5) days per week APCD showing that 97 .3% of the entries were Entered into Settlement Agreement 1 11/26/2019 4/29/2018 6/22/2019 recorded, with 2.7% not. Utilities has Lift Station 001048 during some weeks from April 2018 to June implemented practices to assure 100% with APCD for $500
2019 (14 months) compliance in the future
APCD2019-NOV-For owning and operating a 2013 lsuza Flex Appealed: The portable emergency generator
2 Portable Generator 11/26/2019 1/1/2018 11/19/2019 Engine as a stationary engine without the was registered and permitted in accordance with Notice of Violation was dismissed 001049 correct permit from APCD APCD Rules
Failing to record hydrogen sulfide Out of 380 required readings, provided data to
2197 Cannon Road APCD2019-NOV-concentrations at least five ,{5) days per week APCD showing that 96.1% of the entries were
3 11/26/2019 1/1/2018 8/17/2019 recorded, with 3.9% not. Utilities has Cannon Lift Station 001050 during some weeks from Feb. 2018 to Aug. implemented practices to assure 100% 2019 (19 months) compliance in the future Entered into Settlement Agreement
with APCD for $500 to cover both
violations
Operator failed to perform annual Provided data showing that the contractor that ii
,.
2197 Cannon Road APCD2019-NOV-was providing this service for the city had 1•'
4 11/26/2019 1/1/2018 8/17/2019 maintenance -change oil and filter and test -Cannon Lift Station 001050 for.CY 2018 performed the work but did not leave proof of
the 2018 maintenance at the station
Operator failed to perform annual Provided data showing that the contractor that
5 Poinsettia APCD2019-NOV-11/26/2019 1/1/2018 11/19/2019 maintenance -change oil and filter and test -was providing this service for the city had Entered into Settlement Agreement
Lift Station 001051 for CY 2018 performed the work but did not leave proof of with APCD for $250
the 2018 maintenance at the station
:,
For installing and operating two stationary Entered into Settlement Agreement ,, engines without written ,approval from the With APCD to close out violations , district. Specifically, a 2001 Caterpillar Model: Construction Related: The contractor is issued to th·e city and NewWest
Foxes Landing APCD2019-NOV-3054, S/N 5YS11185 Tier 1, and 2011 John responsible for compliance with all regulations, construction contractors for $5000. 6 11/27/2019 1/30/2018 n/a Deere Model: 4045TF285, S/N: Lift Station 001054 including APCD permitting. The generators used Contractor changed out the diesel PE4045L211118 were installed and operated were permitted, but not correctly. generators to electric and Is at 4155 Harrison St., Carlsbad 92008 since
1/30/18 without written authority from the responsible for reimbursing the city for
District the violation cost.
,r
To the members of the:
CITY COUNCIL
Date \2)13McA J cc /
CM_v7coo'_coo ✓ocM(3).¥
Dec. 13,2019
Council Memorandum
To: Honorable Mayor Hall and Members of the City Council
From: Paz Gomez, Deputy City Manager, Public!Z' s
Via: Elaine Lu key, Chief Operations Officer ·
R~: Air Pollution Control District Notices of iolation
ATTACHMENT B
{cityof
Carlsbad
Memo ID# 2019146
This memorandum provides information related to receipt of six Notices of Violation (NOVs)
from the San Diego Air Pollution Control District (APCD) following an inspection of permitted
wastewater facilities.
Background
APCD performs annual inspections of permitted wastewater facilities. On Nov. 19, 2019, APCD
performed their 2019 annual inspections with Utilities Department wastewater staff. The
inspections were performed by an APCD inspector who had not previously inspected our facilities
until this Nov. 19, 2019 inspection. The inspector issued four NOVs at lift stations, one NOV for
storage of a portable generator and one construction related NOV.
Prior to these NOVs and _since 2011, the Wastewater Division of the Utilities Department had
received a total of eight NOVs, four of which were dismissed for inspector misinterpretation of
an APCD rule.
The attachment includes a summary of each of the six NOVs. While preliminary responses have
been submitted to APCD to meet the 10-day response requirement, the Utilities Department is in
the process of working closely with APCD on each of the NOVs, asking questions, gathering data
and responding to the alleged violations to either appeal or correct the situations.
A summary of each NOV is provided below:
Foxes Landing Lift Station:
Violation Noted-Failure to record measurements of hydrogen sulfide concentration for
a minimum of five days per week.
Response/Action -During the period cited (14 months), out of approximately 294
required entries, the inspector identified eight days of missing entries or 2. 7% of the total
entries (i.e., 97.3% recorded). The wastewater supervisor has established additional
checks and balances and discussed the importance of following the standard operating
procedures with staff members to ensure that no entries are missed in the future.
Utilities Department
5950 El Camino Real I Carlsbad, CA 92008 I 760-438-2722
Honorable Mayor Hall and Members of the City Council
Dec. 13, 2019
Page 2
Cannon Lift Station:
Violation Noted-Failure to record measurements of hydrogen sulfide concentration for
a minimum of five days per week.
Response/Action -During the period cited {19 months), out of approximately 380
required entries, the inspector found 15 days of missing entries or 3.9% of the total
entries (i.e., 96.1% recorded). The wastewater supervisor has established additional
checks and balances and discussed the importance of following the standard operating
procedures with staff members to ensure that no entries are missed in the future.
Violation Noted-Owner failed to change the generator's oil and filter during 2018.
Response/Action'-Utilities Department has an existing contract with Hawthorne
. Generators that required theni to perform quarterly inspections and service to this
station's generator. Staff has located the work orders for the materials, oil and filters that
were used by Hawthorne Generators to perform this work in 2018, but Hawthorne
Generators did not leave documentation with proof of the oil changes at the station. Staff
is working with Hawthorne Generators to locate the documentation and provide it to
APCD.
Poinsettia Lift Station:
Violation Noted-Owner failed to change the generator's oil and filter during 2018.
Response/Action -Utilities Department has an existing contract with Hawthorne
Generators that required them to perform quarterly inspections and service to this
station's generator. Staff has located the work orders for the materials, oil and filters that
were used by Hawthorne Generators to perform this work in 2018, but Hawthorne
Generators did not leave documentation with proof of the oil changes at the station. Staff
is working with Hawthorne Generators to locate the documentation and provide it to
APCD.
Utilities Yard -Emergency Portable Generator:
Violation Noted-The portable generator was used at one site for greater than one year.
Response/Action -The city's certificate of registration with APCD for this emergency
portable generator shows the utilities yard on El Camino Real as the storage location of
the portable generator. The generator is not used except for in emergencies and is stored
at the yard until it is deployed to a station during a power outage. All APCD required
maintenance is also performed at the yard. The APCD rules readthat the storage area
should not be counted toward days of operation. Staff is presenting this information to
APCD in appeal of the violation.
Foxes Landing Lift Station -Construction Related:
Violation Noted-Installation of two stationary engines without written authority from
APCD since Jan. 30, 2018.
Response/Action~ The generators are related to the ongoing construction project at
Foxes Landing Lift Station. Per contract with the construction contractor, compliance with
these regulations is the responsibility of the contractor.
Honorable Mayor Hall and Members of the City Council
Dec.13,2019
Page 3
Attachment: Table -APCD NOVs related to the Nov.11, 2019 Wastewater Inspections
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Laura Rocha, Deputy City Manager, Administrative Services
Vicki Quiram, Utilities Director
Cindie McMahon, Assistant City Attorney
Babaq Taj, Interim Transportation Director
Amanda Guy, Deputy City Attorney
. Ken Knatz, Engineering Manager
To the members of the:
. CITY COUNCIL
Date~CA V CC /
CM _VCOO_ coo Z□cM {3) ~
Dec. 13, 2019
To:
From:
Via:
Re:
Council Memorandum
Honorable Mayor.Hall and Members ofthe City Council
Paz Gomez, DeptJty City Manager, Publicf.1' s
Elaine Lu key, Chief Operations Officer ·
Air Pollution Contro.1 District Notices of iolation
ATTACHMENT A
{cityof
Carlsbad
Memo ID# 2019146
This memorandum provides information related to receipt of six Notices of Violation (NOVs)
from the San Diego Air Pollution Control District (APCD) following an inspection of permitted
wastewater facilities.
Background
APCD performs annual inspections of permitted wastewater facilities. On Nov. 19, 2019, APCD
. performed their 2019 annu.al inspections with Utilities Department wastewater staff. The
inspections were performed by an APCD inspector who had not previously inspected our facilities
until this Nov. 19, 2019 inspection. The inspector issued four NOVs at lift stations, one NOV for
storage of a portable generator and one construction related NOV~
Prior to these NOVs and since 2011, the Wastewater Division of the Utilities Department had
received a total of eight NOVsi four of which were dismissed for inspector misinterpretation of
an APCD rule.
The attachment includes a summary of each of the six NOVs. While preliminary responses have
been submitted to APCD to meet the 10-day response requirement, the Utilities Department is in
the process of working closely with APCD on each of the NOVs, asking questions, gathering data
and responding to the alleged violations to either appeal or correct the situations.
A summary of each NOV is provided below:
Foxes Landing Lift Station:
Violation Noted-Failure to record measurements of hydrogen sulfide concentration for
a minimum of five days per week.
Response/Action -Duringthe period cited (14 months), out of approximately 294
required entries, the inspector identified eight days of missing entries or 2.7% of the total
entries (i.e., 97.3% recorded). The wastewater supervisor has established additional
checks and balances and discussed the importance of following the standard operating
procedures with staff members to ensure that no entries are missed in the future.
•
Utilities Department
5950 El Camino Real I Carlsbad, CA 92008 I 760-438-2722
i
. r-
r ! . ~ -
Add~ess VIONo. Date of NOV
I•
1. Foxes.Landingtlft,
Station. · , APC:D2019-NOV-00.1048 11/2~/2019
..
2 Utilities Yard· Portable ( APCD2019-NQV-001049 11/26/2019
3 Ca.nnon Lift Station . APCD2019-NOV-001050 11/26/2019
4 Cannon Uft Station' APCD2019-NOV-001050 11/26/2019
5 Poinsettia Lift Station /IPCD2019-NOV-001051 11/26/2019
'
Fqxes LandlngUft .6· APCD2019-NdV-001054 11/27/2019 Station
__ k·r~,.,_-r-.. .:..:......:...;;:,.:......_:..,.·,_,._.•.s"--
SAN DIEGO APCD NOTICES OF VIOLATION
following the NOV. 11, 2019 INSPECTION
Date of Violation Law Type Category Section Start End
..
4/2')/2018 6/22/2019 District Rules eermjt to Operate 21
·.:
1/1/2018 11/19/.2019 District Rules Permit to Operate lO(a/b)
..
1/1/2018 8/17./2019 · Pls.trlct Rules Perml~.to Operate . !21.
District (\ules Permit to Operat.e 21
,,
1/1/2018 . 8/17/2019 Fed Title 40: Prot.9f 40 CFR· 'N. ESHAPS/NS · Enl! '63.6603(al PS
District Rules District 129(e)(4)(1) Registration
1/1/2018 11/19/2019 Fed · Title 40: Prot of 40 CFR NESHAPS/NS Env 63,6603(a) PS
1/30/2018 n/a District Ruies Perml.tto Operate lO(a/b)
I•
Description No. Description
. Failing to .record the hydfogen•sulfide concentr~tlons' at least
APCD2006-PT0-90:l.10· .. flve,d~ys per weelc Speclflcaily;,the operator.failed .to'record
.,. the hydrogen:~ulfide.con~entr~tlons (ih PPMV) atleastflv.e ·. Condition 3. , times perweel\ durjng l)lUltlple weeks from.April 2018 to June
2019
For owning and operating a 2013 lsuza Flex Engine, Model BU-
4JJ1T, S/N 7206376, Family CSZXL03.0UTB as a stationary
n/a engine without authority from the district. Specifically, the
engine listed above was used exclusively at one location since
at least 1/1/18 (>12 months) without authority from the
district
' Fa\llng to record the hy!lrogen sulfide concentrations at least·
. , . APCD2QOG0PT0,-980110 five days per l'!eek,Speciflcal,ly, the operatprfa)!ed, to record
· ·• Condition 3 · · · Y,e hydrqgen,sulflde' conceritratlons '(in PPMV):at least five .
ti.mes •P•~ we~.k during multiple wi:,eks from ~eb .. 20J~ to ,Aug. . . 2019
APCD2006·PT0·9.80111 · Operator failed to change'.oil and filt!'r or test wjth oil analysis .
prp;,:a~. Speclflcally, ~per-atorfailedto change·oil andflite(for condition 12· . CY i018 ,
APCD2008-PT0-983251 Operator failed to change oil and filter or test with oil analysis
program. Specifically, operator failed to change oil and filter for Condition 12 CY2018
,, '•: ..
.ry/a
ForJnstalUng and.ope,:atlng t,Wo.stati,ioary engines.without .
written •8P.toval from the .. dlstrict.•5.liec!fica'lly; a.20Q1 .
. Caterpillar Model: 3054,S/N.SYSillBSTler 1, and ~011 John
. D.eer~ rylodel: 404STF285, S/N: PE404SL211118 were installed •
.. and operated ;it 41.55 Harrlsqn St,'Carlsbad 92008 ·since·
1/30/18 without written authority from the district .
Dec. 20, 2019
Mr. Nicholas Eutsler
Air Pollution Control District
10124 Old Grove Road
San Diego, CA. 92131
ATTACHMENT B
(cityof
Carlsbad
RE: ADDITIONAL INFORMATION REGARDING NOTICE OF VIOLATION APCD2019-NOV-001048
Dear Mr. Eutsler:
On Nov. 26, 2019, Air Pollution Control District (APCD) inspector Nicholas Eutsler issued the
Notice of Violation (NOV) referenced above at the City of Carlsbad Foxes Landing Sewer Lift
Station site (Foxes). This letter is to amend the Dec. 6, 2019 response letter with additional
information for your consideration.
The NOV relates to the operator failing to record the hydrogen sulfide (H2S) concentrations at
least five times per week during multiple weeks from April 2018 to June 2019. The city takes the
referenced APCD action seriously and will continue to work with APCD to ensure any violation
of APCD's permitting requirements is promptly remedied.
The APCD permit for Foxes requires that H2S concentrations be tested and recorded on a log at
the site five times a week. The city's understanding is APCD issued the NOV because there were
multiple weeks during the period Apri.l 2018 to June 2019 where H2S concentrations were not
recorded five times.
The city's wastewater operators are trained to follow a standard inspection routine each time
they inspect a station, with a goal of 100%.compliance with APCD regulations, including the
recording of H2S concentrations five times per week.
To understand the magnitude and cause of the recording oversight and develop a plan to
assure 100% compliance, the city reviewed the records at Foxes and examined our procedures
with the operators. The city found the H2S readings were not recorded on nine days (2.8%) of
the 325 required reading days during the period in question (April 2018 to June 2019)
(Attachment 1). The operators indicated that reading the H2S monitors and immediately
· reporting any readings above the APCD limit is part oftheir standard procedures. On the nine
days not recorded, the city has work orders showing that the operators performed site
inspections and the operators feel strongly that the H2S monitors were likely read. However,
other station inspection priorities, such as alarms and pump issues, may have caused
inadvertent missed entries. This data seems to support the conclusion that the missing entries
were unintentional oversights rather than regular practice.
Public Works Branch
Utilities Depart.:iient 5950 El Camino Real I Carlsbad, CA 92008 I 760-438-2722 t
A.PC 02019~NOV-001048 AIR POLLUTION CONTROL. DISTRICT
--------'------------10124 Old Grove Road
San Diego, CA 92131
PHONE. (858) 586-2650
Sector: C/01
APCD2005-PTO-977904
Fee Code: 568
APCD USE.ONLY
NOTICE OF VIOLATION
Date(s) of Violation Start04/29/2018 End: 06122/2019
Name: Carlsbad City of Waste•Nater
Date of Report 11/26/2019
Phone: 7604382722
Violation Location: 4155 Harrison St City: Carlsbad Zip: 92008
Specifically; the following yiolation(s) of the San Diego Air Pollution Conlrol District rules and/or raws of the State of California has
occurred: (abbreviations: H&S = C.:11. Health & Safety Code; CCR=Cal Code of Regulations; R=Rule)
Sectfon(s)/Rule(s) Description of Violation
Law Type: District Rules APCD2006-PTO-980110 Condition #3 -Failing to record the
Category: Permit to Operate hydrogen sulfide concentrations at least 5 days per week.
Specifically, the operator failed to record the hydrog·en sulfide Section: 21 concentrations On PPMV) at least 5 times per week quring
multiple weeks from April 2018 to June 2019.
Pursuc!Jlt to California Health and S;.fety Code section 42400 et seq., any person. who violates any Order, Rule, or Regulation of the Air
Pollution Control District is guilty of a MISDEMEANOR. Each day a violation occurs constitutes a separate offense.
YOU MUST ADVISE THi=Di$TRICT IN WRITINf.3, WITHIN TEN BUSINESS DAY$, OF THE ACTiON TAKEN Tb
CQRR.EGT Al.LEGED VIOLAliOf'-j(S) OR THE REASON(S). YOU ffELIEVE THE VIOtA TlON (S) DID NOT OCGUR.
PLEASE SEND YO:UI~ RE.SPONSE f(j THE:AIR P{'.>LlUTION CONTRO!,. DfSTRIC1, gpcdcomp@sdcounty,ca..gov or
. ATTENTION: COMPLIANCE DIVISION, 10124 OLP GROVE RD, SAN,D1E;0O, CALIFORNIA 9;2131-164§.
Inspector Name: Nicholas Eutsler
Nicholas
Inspector Signature: Eutsler
Received by: Jesse Castaneda
Digitally signed by
Nicholas Eutsler
Oa\e: 2D19.11.260i;43:S3
-08100'
Email Address: jesse.castail~da@carlsbadca.gqv
Signature: .Issued Electronically
· APC804 v0.24 Site Record ID: APCD2002-SITE-04529
Date: 11/26/2019 Tirne: 7:08
Title: Utilities Supervisor
Date: 11./26/2019
SITE Sector: C/01
AM
WASTEWATER LIFT STATION CHECICS DONE FIVE (5) DAYS EACHWEEIC
CANNON UH STATION
Violation #APCD2019-I\.IOV-001050
Period: 2/1/2018 -8/30/2019 '. l\tlissecl Checfo, PERCENTAGE
5 days per week = 82 Weeks = 410 Days 14 Missed Checks + 410 = 3%
February 9,.2018
1<ebn,1:c1ry 10, 2018
F~bruary 11, 2018·
March 21, 2.018
April 11, 2018
April '.43, 2018 .
May 6, 2018
IVlay 7, 2018
October 10, 201&
J~miary 28, 2019
Fcbn.iary 18, 2019
Nla_rch .18, Z'OH>
July 29, 2.019
August 12, 2019.
-----·--------------
Calgon Odor Control Testing
Records must be kept on site for 3 Years
Station: _____ ~_
MonthNear: ------
DAY H2SINLET/WET H2S OUTLET INITIALS REVIEW.
WELL
1
2
3
4
5
6
7
3·
9
10
11
12
13
14 .
15
16
17
· 18
19
20 ..
21
22
23
24 )
25 .
26
27
28 ·
29
30
31
This formula is for IN~ET only. It calculates the frequency of changing canisters
Total H2Sthis_month =~---Total #ofteststhis month:
Average per test this month:
..
TotalH2S __ #oftests = Average for this month
CHAMBER #
..
APCD2019-NOV-001050 AIR POLLUTION CONTROL DISTRICT
---------------10124 Old Grove Road
Sari Diego, CA 92131
PHONE (858) 586-2650
NOTICE Or VIOLATION
Sector: C/01
APCD2003-SITE-04996
Fee Code:
APCD USE ONLY
Date(s) of Violation Start:01/01/2018 End: 08/17/2019 Date of Report: 11/26/2019 .
Phone: 7604382722 Name: City of Carlsbad Cannon Road Lift Station
Violation Location: 2197 Cannon Rd City: Carlsbad Zip: 92008
Specifically, the following violation(s) of the San Diego Air Pollution ControJ District rules and/or laws of the State of California has
occurred: (abbreviations: H&S = Cal. Health & Safety Code; CCR=Cal Code of RegiJlatlons; R=Rule)
Section(s)/Rule(s) Description of Violation
Law Type: District Rules APCD2006-PTO-980110 Condition #3 -Failing to.record the
Category: Permit to Operate hydrogen sulfide concentrations at least 5 days per Week
Section: 21 Specifically, the operator failed to record the hydrogen sulfide
concentrations (in PPMV) at least 5 times per week during
multiple weeks from Feqruary 2018 to August 2019.
LawType: District Rules APCD2006-PTO-980111 Condition #12 -Operator failed to change
Category: Permit to Operate oil and filter or test with the oil analysis program. Specifically,
Section:. 21 operator failed to change oil and filter for calend1;1r year 2018. •
Law Type: Federal NESHAPS/NSPS Same as above.
Category: Title 40: Protection of Environment
Section: 40 CFR 63.6603(a)
Pursuant to California Health and Safety Code section 42400 et seq., any person who violates any Order, Rule, ot Regulation of the Air
Pollution Control. District is guilty of a MISDEMEANOR. Each day a violation occurs constitutes a separate offense.
YQU MUST ADVISE THE DISTRICT IN WRlTING, WITHIN TEN BUSlNES'S DAYS, OF THE ACTION TAKEN TO
CORRECT ALLEGEb VIOLA TION(SJ OK THE REASON(S) YOU BELIEVE THE VIOLA TION(S) DID NOT .oecuR.
PLEASE SEND YOUR RESPONSE TO THE AIR POLLUTION CONTROL DIStRtGT, a[;Jc.dcomp@sdcoLinty.ca.g.ov.or
ATTENTfON: C-OMPUANCE;; DIVISION. 101.24 OLD GROVE RD, SAN DIEGO:, CALIFORNIA 92131-1649.
Inspector Name: Nicholas Eutsler
Nicholas
Inspector Signature: Eutsler
Received by: Jesse Castaneda
Digitally signed by
Nicholas Eutsler
Date:2019.11.2607:49:11 ·:
-08'00' '
Email Address: je$se.ca.staneda@carlsbadca.gov
Signature: Issued Electronically
,.
APC804 v0.24 Site Record ID: APCD2003-SITE-04996
Date:11/26/2019 Time: 6:51
Title: Utilities Supervisor
Date: 11/26/2019
SITE Sector. cio1
AM
WHAT A "NOTICE OF VIOLATION" MEANS
You have just received a NOTICE OF VIOLATION from the San Diego County Air Pollution Control District, a government agency
responsible for air pollution control in San Diego County. A Notice of Violation is the Districts claim that someone ha.s violated the
DistrictlS rules, state, and/or federal laws applying to air pollution .. The District is authorized by state I.aw to seek penalties for violations.
WHAT TO DO IF YOU RECEIVE A NOTICE OF VIOLATION
if you receive a Notice of Violation, take IMMEDIATE action to prevent the violation from recurring. Each additional day of non-
compliance may be considered an additional Violation.
ADVISE THE DISTRICT IN WRITING OF THE ACTION TAKEN TO CORRECT THE ALLEGED VIOLATION OR THE REASON(S) YOU
THINK THE VIOLATION DID NOT OCCUR. SUBMiT YOLiR RESPONSE WITHIN TEN DAYS OF THE DATE THE NOTICE OF .
VIOLATION IS ISSUED. ·MAIL YOUR RESPONSE TO: AIR POLLUTION CONTROL DISTRICT, ATTENTION: COMPLIANCE
DIVISION, 10124 OLD GROVE RD, SAN DIEGO, CALIFORNIA ~2131-1649, OR email to APCDCOMP@sdcounty.ca.gov, ATTENTION:
COMPLIANCE DIVISION. .
If you need to continue using .the equipment that is allegedly causing the violation; you may petition the Hearing Board fora VARrANCE.
A variance allows you to legally operate the equipment causing the violation while you are working to correct the problem. The District
does not grant variances, but it t:an tell you hpw to apply for a variance. Contact the District's Compliance Division at (858) 586-2650, if
you wish to option this information. If you believe the equipment is not causing a violation and you continue to operate without a
variance, penalties may be assessed for each day the District determines the equipment caused a violation.
HOW THE NOTICE OF VIOLATION WILL BE RESOLVED
The District will revfew the information submitted in your written response to determine how to handle the alleged violation. If the District
determines that a violation did not occur, the Notice of Violation will be dismissed. Where a violation is found to have occurred, the
Notice of Violation is usually handled through the District's ''Violation Settlement Program". A Notice of Violation could also r~ult in·.civil
or criminal prosecution. .
VIOLATION SETTLEMENT PROGRAM
If the District determiiles·that a Notice of Violation should be handled through this program, a letter will be sent offering to
settle the Notice of Violation. lfthere is not a response within 14 days; the violation may be referred for civil or criminal
prosecution. The letter sent will usually require the payment of a penalty.
CIVIL PROSECUTION
A Notice of Violation which is not resolved through the Violation Settlement Program may be referred for civil prosecution. If
· so, a lawsuit wi.11 be filed against you seeking maximum penalties for the Violation. The maximum penalties established by
the California Health and Safety Code range between $1,000 and $1,000,000 per day of violation, depending on the nature
ofthe violation
CRIMINAL PROSECUTION
In serious cases, a Notice of Violation may bE:l referred for criminal prosecution. The maximum penalty established by the
California Health and Safety Code is $1,000 -$1,000,000 per day of violation or up to one year in jail, or both.
PLEASE SUBMIT ALL CORRESPONDENCE TO THE DISTRICT AT THE ADDRESS SHOWN ON THE
FRONT OF THIS FORM. YOU MAY CALL (858) 586-2650 SHOULD YOU WISH TO CHECK THE STATUS
OF YOUR VIOLATION.
APC804 v0.24 Site Record ID: APCD2003-SITE-04996 SITE Sector: C/01
Mr. Eutsler
Dec. 20, 2019
Page 2
The city appreciates this opportunity to supply APCD with additional information about the
circumstances underlying the NOV. The City of Carlsbad does not have a history of violations
with APCD related to annual oil and filter changes for the referenced generator. The city is
committed to managing its APCD permitted sites in a manner that assures environmental
stewardship and public safety and looks forward to continuing to work cooperatively with APCD
to resolve APCD1s permitting concerns. If APCD needs additional information or has any
questions, please feel free to contact me at 760-438-2722 or by email at ·
vicki.quiram@carlsbadca.gov or Jesse Castaneda at 760-603-7317 or by email at
jesse.cast aneda@carlsbadca.gov.
Respectfully, /4 /' i() WA;-
Vicki V. Quiram
Utilities Director
Attachments: Hawthorne Power Systems Service Order
Notice of Violation APCD2019-NOV-001050
-VQ:jb
cc: Paz Gomez, Deputy City Manager Public Works Branch
Cindie McMahon, Assistant City Attorney
Jesse Castaneda, Utilities Supervisor
APCD2019 .. N_OV-001050 AIR POLLUTION CONTROL DISTRICT
---------,-~-----------10124 Old Grove Road
San Diego, CA 92131
PHONE (858) 586-2650.
Sector: C/01 .
APCD2.003-SITE-04996
Fe!> Code:
APCD USE ONLY
NOTICE OF VIOLATION
Date(s)ofViolation Start:01/01/2018 End: 08/17/2019
Name: City of Carls.bad Cannon Road Lift Station
Violation Location: 2197 Cannon Rd
Date of Report: 11/26/2019
Phone: 7604382722
City: _Carlsbad Zip: 92008 --------------------'--Specifically, the following violation(s) of the San Diego Air Pollution Contra.I District rules andlor laws of the State of California has
occurred: (abbreviations: H&S =Cal.Health & Safety Code; CCR=Cal Code.of Regulations; R=Rule)
Section(s)/Rule(s) Desi;ription of Violation
Law Type: Distric.t. Rules APCD2006-PTO-980110 Conditibn.#3 -Failing to record the
Category: Permit to Operate hydrogen sulfide concentrations at least 5 days per week.
Section: 21 Specifically, the operator fa(ied to record the hydrogen sulfide
concentrations (in PPMV) at least 5 times per week during.
multiple weeks from FeJ:,ruary 201 8 to August 2019.
Law Type: District R,µles APCD2006-PTO-98011.1 Condition #12 -Operator failed to change
Category: Permit to Operate oil and filter or test with the oil analysis program. Specifically,
Section: 21 operator failed to change oil and filter for calendar year 2018.
Law Type: Federal NESHAPS/NSPS Same as above.
Category: Tille 40: Protection of Environment
Section: 40 CFR 63.6603(a)
Pursuant to California Health and Safety Cooe section 42400 et seq., any person who violates any Order, Rule, or Regulation of the Air
Pollution Control District is guilty of a MISDEMEANOR. Each day a violation occurs constitutes a separate offense.
YOU MLJST ADVISE THE DISTRICT IN WRITING, WITHI N TEN -BUSlNESS DAYS, Of THE AC::TlON TAKEN TO
CORRECT ALI FGED VIOLATION(S) OR THf REASON($) YOU BELIEVE THE VIOLATION($) DID NOT OCCUR.
PLEASE SEND YOUR RESPONSE TO THEAfR POLLUTION CONTROL 0-IS'TR!CT, apccfoomp@sdc9unty.ca.g0v0r
ATTENTf:ON: GOMPLIANCE DIVISION, '10.124 OLD GROVE RD, SAN DIEGO, CALIFORNIA 92131-1649. .
Inspector Name: Nicholas Eutsler
Nicholas
Inspector Signature: Eutsler
Received by: Jesse Castaneda
Digitally signed by
Nicholas Eutsler
D•te:2Df9.11.26 07:49:11
·08'00'
Email Addre&s: j8$se.castaneda@carlsbadca.gov
Signature: Issued Electronically
,,
APC804 v0.24 Site Record ID: APCD2003-SITE-04996.
Date: 11/26/~019 lime: 6:51
Tille: Utilities Supervisor
Date: 11/26/2019
SITE Sector. C/01
AM
WHAT A "NOTICE OF VIOLATION" MEANS
You have just received a NOTICE OF VIOLATION from the San Diego County Air Pollution Co11trol District, a government agency
responsible for air pollution control in San Diego County. A Notice ofVio[ation is the Districts claim that someone has violated the
Districtl,s rules, state, and/or federal laws applying to air pollution. The District is authorized by state law to seek penalties for violations.
WHAT TO DO IF YOU RECEIVE A NOTICE OF VIOLATION
If you receive a Notice of Violation, take lfv'IMEDIATE action to prevent the violation from recurring. Each additional day of non:..
compliance may be considered an additional Violation. ·
. ADVISE THE DISTRICT IN WRITING OF THE ACTION TAKEN TO CORRECT THE ALLEGED VIOLATION ORTHE REASON/S) YOU
THINK THE VIOLATION DID NOT OCCUR. SUBMIT YOUR RESPONSE WITHIN TEN DAYS OF THE DATE THE NOTICE OF
VIOLATION IS ISSUED. MAIL YOUR RESPONSETO: AIR POLLUTION CONTROL DISTRICT, ATTENTION: COMPLIANCE
DIVISION, 10124 OLD GROVE RD; SAN DIEGO, CALIFORNIA 92131-1649, OR email to APCDCOMP@.sdcounty.ca.gov, ATTENTION:
COMPLIANCE DIVISION. . .
If you need to continue using .the equipmentthat is allegedly causing the violation, you may petition the Hearing Board for a VARIANCE.
A variance allows you to legally operate the equipment causing the violation while you are working to correct the problem. The District
does not grant variances, but it can tell you how to apply for a variance, Contact the District's Compliance Division at (858) 586-2650, if
you wish to option this infonnation. If you believe the equipment is not causing a violation and you continue to operate without a
variance, penalties may be assessed for each day the District determines the equipment caused a violation.
HOW THE NOTICE OF VIOLATION WILL BE RESOLVED
The District will.review the information submitted in your written response to determine how to handle the alleged violation. lfthe District
determines that a violation did not occur, the Notice of Violation will ~ dismissed. Where a violation is found to have occurred, the
Notice of Violation is usually handled through the District's "Violation Settlement Program". A Notice of Violation could also result in civil
. or criminal prosecution.
VIOLATION SETTLEMENT PROGRAM
If the District determines that a Notice of Violation should be handled through this program, a letter will be sent offering to
settle the Notice of Violation. If there is not a respqnse within 14 days, the violation may be referred for civil or criminal
prosecution. The letter sent will usually requlre the payment of a penalty.
CIVIL PROSECUTION
A Notice of Violation which is not resolved through the. Violatio.n Settlement Program may be referred for civil pro;;ec_ution. If
so, a lawsuit will be filed against you seeking maximum penalties for the violation. The maximum penalties established by
the California Health and Safety Code range between $1 ,000 and $1,000,000 per day of violation, depending on the nature
of the violation
CRIMINAL PROSECUTION
In serious cases, a Notice -of Violation may be referred for criminal prosecution. The maximum penalty established by the
California Health and Safety Code is $1,000 -$1,000,000 per day of violation or up to one year ih jail, or both.
PLEASE SUBMIT ALL CORRESPONDENCE TO THE DISTRICT AT THEADPRESS SHOWN ON THE
FRONT OF THIS FORM. YOU MAY CALL (858) 586-2650 SHOULD YOU WISH TO CHECK THE STATUS
OF YOUR VIOLATION.
APC804 v0.24 Site Record ID: APCD2003-SITE-04996 SITE Sector: C/01
Dec. 20, 2019
Mr. Nicholas Eutsler
· Air Pollution Control District
10124 Old Grove Road
San Diego, CA. 92131
ATTACHMENT E
{city of
Carlsbad ·
RE: ADDITIONAL INFORMATION REGARDING NOTICE OF VIOLATION APCD2019-NOV-001051
Dear Mr. Eutsler:
On Nov. 26, 2019, Air Pollution Control District (APCD) inspector Nicholas Eutsler issued the
Notice of Violation {NOV) referenced above at the City of Carlsbad Poinsettia Sewer Lift Station . .
site (Poinsettia). This letter is to amend the Dec. 6, 2019 response letter with additional
information for your consideration.
The NOV relates to permitting requirements for failing to change oil and filter or test with the
oil analysis program for calendar year {CY) 2018 for generator 9NR02716. The city takes the
. referenced APCD action seriously and wi.11 continue to work with APCD to ensure any violation
of APCD's permitting requirements is promptly remedied.
The APCD permit for Poinsettia requires that the referenced generator oil and filter is to be
changed once every CY. ,:hei city's understanding is APCD issued the NOV because the operator
failed to change the oil and filter or test with oil analysis program for CY 2018.
The city contracts with Hawthorne Power Systems {Hawthorne) to perform the annual oil and
filter change on the referenced generator. The agreement states that the Hawthorne technician
is to leave a copy of the service order at the site. This was not followed by Hawthorne for CY
2018. The attached invoice from Hawthorne shows that the annual oil and filter was changed
f<;>r the referenced generator for CY 2018.
To assure that the city receives a copy of the annual oil and filter change service order, the
division has made procedural changes as outlined below:
• An operator will be at the site during the scheduled generator service to receive a hard
copy of the service order; and
• Hawthorne will email a copy of the service order to the Utilities Department office,
Public Works Branch
Utilities Department 5950 Ef Camino Real I Carlsbad, CA 92008 I 760-438-2722 t
! I
WHAT A "NOTICE OF VIOLATION" MEANS
You have just received a NOTICE OF VIOLATION from the San Diego County Air Pollution Control District, a government agency
responsible for air pollution control in San Diego County. A Notice of Violation is the Districts claim that someone has violated the
District~s rules, state, and/or federal laws applying to air pollution. The District is authorized by state law to seek penalties for violations.
WHAT TO DO IF YOU RECEIVE A NOTICE OF VIOLATION
If you receive a Notice of Violation, take IMMEDIATE action to prevent the violation from recurring. Each additional day of non-
compliance may be considered an additional Vioiation.
ADVISETHE DISTRICT IN WRITING OF THE ACTION TAKEN TO CORRECT THE ALLEGED VIOLATION OR THE REASON(S}YOU
THINK THE VIOLATION DID NOT OCCUR. SUBMIT YOUR RESPONSE WITHIN TEN DAYS OF THE DATE THE NOTICE OF
VIOLATION IS ISSUED. MAIL YOUR RESPONSE TO: AIR POLLUTION CONTROL DISTRICT, ATTENTION: COMPLIANCE
DIVISION, 10124 OLD GROVE RD, SAN DIEGO, CALIFORNIA-92131-1649, OR email to APCDCOMP@sdcounty.ca.goV, ATTENTION:
COMPLIANCE DIVISION.
If you need to continue using the equipment that is allegedly causing the violation, you may petition the Hearing Board for·a VARIANCE.
A variance· allows you to legally operate the equipment causing the violation while you are working to correct the problem. The District
does .not grant variances, but it can tell you how to apply for a variance. Contact the District's Compliance Division at (858) 586s2650, if
you wish to option this information, If you believe the equipm~nt is not causing a violation and you continue to operate without a
variance, penalties may be assessed for each day the District determines the equipment caused a violation.
HOW THE NOTICE OF VIOLATION W!LL BE RESOLVED
The District will review the information submitted in your written response to determine how to handle the alleged violation. If the District
determines that a violation did not occur, the Notice of Violation will be dismissed. Where a violation is found to have occurred, the
Notice of Violation is usually handled through the District's ''Violation Settlement Program". A Notice of Violation could also result in civil
or criminal prosecution. ·
VIOLATION SETTLEl'.IIENT PROGRAM
If the District determines that a Notice of Violation should be handled through this program, a letter will be sent offering to
settle 1he Notice of Violation. lfthe_re is not a response within 14 days, the violation may be referred for civil or criminal
prosecution. The .letter sent will usually require the payment of a penalty.
CIVIL PROSECUTION
A Notice of Violation which is not resolved through the Violation Settlement Program may be referred for civil prosecution. If
so, a lawsuit will be filed against you seeking n'iaximum penalties for the violation. · The maximum penalties established by
the California Health and Safety Code range between $1 ,000 and $1,000,000 per day of violation, depending on the nature
of the violation
CRIMINAL PROSECUTION
In serious cases, a Notice of Violation may be referred .for criminal prosecution. The maximum penalty established by the
California Health and Safety Code is $1,000 -$1,000,000 per day of violation or up to one year in jail, or both.
PLEASE SUBMIT ALL CORRESPONDENCE TO THE DISTRICT AT THE ADDRESS SHOWN ON THE
FRONT OF THIS FORM. YOU MAY CALL (858) 586-2650 SHOULD YOU WISH TO CHECK THE STATUS
OF YOUR VIOLATION.
APC804 v0.24 Site Record ID: APCDZ00S-SITE-05661 SITE Sector. C/01
ATTACHMENT F
Reference No. 2019-CAG-0006 City ofCarlsbad
COMPLIANCE AGREEMENT AND.GENERAL RELEASE
This agreement ("AGREEMENT") is entered into as of the EFFECTNE DATE and is
made by and between of the County of San Diego Air Pollution Control District (''DISTRICT")
and City of Carlsbad ("CARLSBAD"). The DISTRICT and CARLSBAD are sometimes
referred to herein as the "PARTIES."
This Agreement Applies to The Following Engines ("ENGINES"}:
Equipment Engine Engine Engine Serial # EngineHP
Type Location Manufacturer/Model
Pump 4155 Harrison John Deere/ PE4045L211 l l 8 99
St Carlsbad 4045Tf285
Pump 4155 Harrison John Deere/ PE4045T531301 115
St. Carlsbad 4045TF275 . Keep a copy of this entire agreement with the engmes operated under this agreement.
I. FACTUAL RECITALS
1. CARLSBAD is municipality that among other things provides essential public services to
the residents and businesses of the City of Carlsbad.
2. District Rule 10, titled "Permits Required" requires that CARLSBAD have written
authorization, specifically an Authority to Construct followed by the issuance of a Pennit
to Operate, prior to the installation and use of equipment that may cause the issuance of
air contaminates at stationary sources.
3. CARLSBAD had two p011able diesel fueled engine-pump sets delivered to the City of
Carlsbad's Foxes Landing Sewer Lift Station Replacement Project (PROJECT) located at
4155 Harrison Street, Carlsbad CA ("LOCATION") in 2017. The ENGINES are
cun-ently operated by staff ofNEWest Construction Company and are owned by Xylem
Dewatering Solutions.
4. The ENGINES are registered with the State's Portable Equipment Registration Program
("PERP"), however, the engines are not authorized for installation and use in San Diego
County at a stationary source at the LOCATION.
5. The DISTRICT alleges that the PERP registration does not authorize use of the
ENGINES for the stationary operations occurring at the LOCATION since 2018; the
ENGINES require local DISTRICT permits to operate at the PROJECT site.
6. The DISTRICT issued Notices of Violation numbers APCD2019-NOV-001054 to
CARLSBAD, APCD2019-NOV-001055 to Newest Construction Company, and .
APCD2019-NOV-001056 to Xylem Dewatering Solutions on November 27, 2019, for
violations of District Rule 10 for allowing the installation. and use of equipment that ·
produces air pollution without written authority.
Page 1 of7
j. i
Reference No. 2019-CAG-0006 City of Carlsbad
7. As such, any use of the unpermitted ENGINES to support the stationary operations at the
LOCATION would be an ongoing violation of District Rule 10.
8. One of the two engines (Caterpillar Model 3054) is a Tier lengine which is prohibited
from use in the State of California after December 31, 2019.
9. CARLSBAD asserts that there is a need to have the two portable emergency back-up
pumps remain available for use at the LOCATION in case of an emergency, for
maintenance and testing, and for a three-day prime use. Any use beyond these is -a breach
of this agreement.
10. The DISTRICT aclmowledges that Xylem's statewide PERP registrations for both
ENGINES shall remain valid for use at other locations, per Ca.li:fomia Code of
Regulations Title 13 §2450-§2465 (Regulation to Establish a Statewide Portable
Equipment Registration Program) & Title 17 §93116-§93116.S(Airbome Toxic Control
Measure for Diesel Particulate Matter from Portable Engines Rated at 50 Horsepower and
Greater) for portable engines, during the_ TIME PERIOD of this agreement and until the
PERP registration expiration dates. ·
11. The PARTIES desire to settle, resolve and compromise any and all disputes among them
arising out of the installation and operation of the two portable diesel engines noted in
Notices of Violation APCD2019-NOV-001054, APCD2019-NOV-001055, APCD2019-
NOV-00 1056 for the operation described above at the LOCATION.
12. Therefore, the PARTIES agree as follows:
II. AGREEMENTS
13. The EFFECTIVE DA'IE of this AGREEMENT shall be the latest date set forth in the
signature lines below.
14. The "TIME PEIµOD" as used in this AGREEMENT shall begin on the EFFECTIVE
DATE and end February 29, 2020.
15. During the TIME. PERIOD; the ENGINES may be installed and may remain connected at
the LOCATION.
16. During the TIME PERIOD, the ENGINES at the LOCATION may be operated for
maintenance and testing, for three days of prime use, and during emergency events as
defined in District Rule 69.4.1 or Rule 12 or 17 CCR93115, as applicable, including
interruptions to power and for conducting emergency operations such as the pumping of
water or sewage to prevent or mitigate a flood or sewage overflow.
17. During the TIME PERIOD, CARLSBAD shall comply with the conditions listed on the
PERP registrations. ·
Page 2 of7
Reference No. 2019-CAG-0006 City of Carisbad
m. CIVILPENALTIES
18. CivilPenalties. In consideration of the DISTRICT entering into this AGREEMENT,
CARLSBAD agrees to pay the DISTRICT $5,000.00 within 30 days of the EFFECTIVE
DATE ofthis AGREEMENT. This civil penalty also resolves the penalty associated
with Notices of Violation numbers APCD2019-NOV-001054, APCD2019-NOV-
001055, and APCD2019-NOV-001056.
19. F01m and Manner of Payment. CARLSBAD shall pay all monetary penalties via check
made payable to the 'San Diego County APCD," Reference APCD2019-NOV-001054,
APCD2019-NOV-001055, APCD2019-NOV-001056, and APCD2019-CAG-00006, and
send to:
Accounting Division
Air Pollution Control District
County of San Diego
1012.4 Old Grove Rd
San Diego CA 92131
· Payments may also be made by major credit card by
calling (858) 586-2600, asking for the Accounting Division, and referencing
APCD2019-NOV-001054, APCD2019-NOV-001055, APCD2pl9-NOV-001056, and
APCD2019-CAG-00006.
IV. CONSIDERATION
20. In consideration for the DISTRICT agreeing to the terms of this AGREEMENT,
CARLSBAD agrees to the following:
V. INDEMNIFICATION
21. CARLSBAD shall indemnify the District (including its agents, officers and employees)
from any claim, action, liability, or proceeding to attack, set aside, void or annul the
AGREEMENT 9r any of the proceedings, acts or determinations taken. done oi: made as
.. a:I'esult of the execution of this AGREEMENT by the PARTIES. CARLSBAD'S
obligation to indemnify shall include, but not be limited to, payment of all court costs and
attorneys' fees, costs of any judgments or awards against the District, damages, and/or
settlement costs, which arise out of the execution of this AGREEMENT by the
PARTIES. By signing this AGREEMENT, CARLSBAD agrees to such indemnification.
22. The obligations of CARLSBAD to defend and indemnify under this AGREEMENT shall
apply whether or not there is concurrent, active, or passive negligence on the part of the
DISTRICT, except that CARLSBAD 's obligation to indemnify shall not apply where the
comt finds there is gross negligence or willful misconduct by the DISTRICT, its agents,
officers or employees. CARLSBAD's obligations under this AGREEMENT shall be
effective regardless of whether any or all approvals and/or actions by the DISTRICT
pursuant to this AGREEMENT remain valid or are invalidated by any comt.
Page3 of7
i
Reference No. 2019-CAG-0006 City of Carlsbad
VI. RELEASE AND SATISFACTION
23. Satisfaction of Claims Arising During the TIME PERIOD. Upon compliance by
CARLSBAD with all terms of this AGREEMENT, CARLSBAD shall be released from
any and all claims by the DISTRICT for civil or criminal pe~alties arising out of
violations of District Rule 10 during the TIME PERIOD 'ror installing and operating tlie
ENGINES without written authority from the DISTRICT.
· 24. No Admission of Liability. Settlement of this matter shall not constitute an admission of
liability in any administrative or judicial proceeding, nor shall evidence of the settlement
be admissible in any such proceeding. However, the DISTRICT reserves the right to
prove any alleged violations in connection with any future petition for a variance, permit
revocation. or abatement order before .the Disbict Hearing Board, or to rely on such
· alleged violations in connection with the determination of the appropriate penalty in the
event Notices of Violation for similar violations are issued in the future. Similarly, at any
such time CARLSBAD may raise any defenses or contrary proof CARLSBAD may have
concerning the facts of any such alleged violations. ·
VII.BREACHOFAGREEMENT
25. If CARLSBAD fails to comply with any of the terms oftbis AGREEMENT, it will be in
breach of this AGREEMENT, and thus, as a non-exclusive remedy and at its sole
discretion, the DISTRICT may terminate this AGREEMENT upon ten (10) calendar days
written notice to CARLSBAD stating the effective date of termination
("TERMINATION DA TEj, unless the breach is cured within that ten day notice period.
26. In addition, if this AGREEMENT is so terminated, the DISTRICT may seek up to the
maximtun civil or criminal penalties allowed under law and pursue other legal and
judicial remedies, including but not limited to, an order for abatement or an injunction,
for any violations of District Rule l O by CARLSBAD.
VIIL ADDRESSES FOR NOTICES UNDER TfilS AGREEMENT
27. Notices to the District pursuant to this AGREEMENT shall be made by email and USPS
Regular Mail to the attention of Gregory A. Gjerde, Civil Actions hlvestigator, at the
following addresses:
27 .1. Email: gteg;gjerde@sdcounty.ca.gov
27.2. USPS Regular Mail:
Air Pollutiop. Control District
San Diego County
10124 Old Giove Rd
San Diego CA 92131
Attn: Gregory A. Gjerde
Page 4 of7
. I I
Reference No. 2019-CAG-0006 City of Carlsbad
28. Notices to CARLSBAD pursuant t_o this AGREEMENT shall be made by email and
USPS Regular Mail to the attention of Vicki Quiram at the following addresses:
28.L
· 28.2.
Email: vickLguiram@carlsbadca.gov
USPS Regular Mail:
City of Carlsbad
5950 Camino Real
Carlsbad CA 92008
ATIN: Vicki Quii'filll
X. ADDITIONAL TERMS OR CONDITIONS
29. Not a Variance. This AGREEMENT does not, and is not intended to, act as a vru.iance.
30. Not a Permit to Install or Operate. This AGREEMENT does not, and is not intended to,
act as a pennit to install or operate the ENGINES.
31. Compliance with Other District Rules. This AGREEMENT does not relieve
CARLS_BAD of its obligation to comply with all District_ Rules except as expressly stated
herein or of its potential liability for violations not specified herein. Nothing in this
AGREEMENT shall be construed as limiting in any way the DISTRICT' s ability to
commence an action or seek relief against CARLSBAD as the result of violation(s) that
are not the subject of this AGREEMENT. _
32. Scope of Agreement. This AGREEMENT only addresses the violations of air quality
laws specifically alleged in this AGREEMENT and does not address or resolve violations
ofregulaticins which may be enforced by any other agency.
33. Time Is of the Essence. Time is of the essence for each term and condition of this
AGREEMENT.
34. Authorizationto Enter into Agreement. Each Party executing this AGREEMENT
represents and warrants that it has been duly authorized to enter into this AGREEMENT
and has full and con,iplete authority to do so. Each Party expressly waives any defense to
this AGREEMENT based on any lack of authority to enter into and be bound by the
terms of this AGREEMENT.
35. Governing Law. This AGREEMENT shall be interpreted, construed, governed and
enforced under and pursuant to the laws of the State ofCalifornia. Any action to enforce,
interpret or otherwise regarding this AGREEMENT, shall be filed and/or maintained
within the County of San Diego, California. ·
36. Knowing, Free, Voluntaiy Execution. The PARTIES represent that they have carefully
read this AGREEMENT, know its contents, and freely and voluntaiily signed it.
Page 5 of7