Agenda packet — Sutter Creek City Council, January 17, 2023 (part 3 of 3)

W-C-988-50-22-02-WP-REGIONAL BOARD

IMPACTS OF ACCEPTING ARSA FLOW
The City has identified several impacts of accepting ARSA flows that extend beyond the odor/nuisance issues addressed in the Regional Board’s letter. These include potential for exceedances of the limitations outlined in Water Reclamation Requirement Order No. 93-240 (WRRs 93-240), cost implications for the City, impacts to staff and exposure to regulatory actions. These issues are discussed in detail in the following sections.

Elevated Turbidity Could Lead to Exceedances of Effluent Limitations The City receives flows from both ARSA and the California Department of Corrections and Rehabilitation’s (CDCR’s) Mule Creek State Prison wastewater treatment plant. The two pictures on the following page show the quality of water received from these two sources in August 2022.

Picture 1. Flow Received at the Tertiary Plant
From CDCR
Picture 2. Flow Received at the Tertiary Plant
From ARSA
As shown in the pictures above, the turbidity of the water received from ARSA is noticeably higher than the water received from CDCR, where the flow from CDCR is typical of what would be sent to the tertiary facilities at any water recycling treatment plant. WRRs 93-240 requires that the final effluent turbidity remain between 2 NTU (monthly median) and 5 NTU (daily maximum). Based on information provided by the Tertiary Plant operations staff, the City was unable to meet these turbidity limitations when the ARSA flow treated exceed between 300,000 to 600,000 gallons per day (gpd) in June and August 2022. The exact maximum flow that can be reliably treated is unknown and is being evaluated through testing. At this time, the Tertiary Plant operations staff believe that the maximum flow that can be reliably treated without exceeding the turbidity limits is approximately 500,000 gpd. However, the flow that can be treated in any given day will depend on the water quality received.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
Even with limiting the flow to less than 500,000 gpd, the City is concerned that there will be violations of the recycled water turbidity limits. Moreover, because water recycling permits include turbidity limits as a measure to help to ensure reliable disinfection, exceeding the turbidity limits could also result in violation of the coliform limits – and potentially worse, result in inadequately disinfected flow being spray irrigated on a public golf course that is adjacent to homes.

Potentially Unable to Meet Golf Course Irrigation Demands when Preston Reservoir is the Source of Flow
The golf course irrigation demands typically exceed the 300,000 and 500,000 gpd of flow that can be reliably treated from Preston Reservoir without risking violation of the turbidity limitations of WRRs 93-240. Moreover, the water delivery system from CDCR and Preston Reservoir to the Tertiary Plant only allows for flow either from ARSA or from CDCR to be delivered but not both sources of flow at the same time. Because there are no water quality issues with the CDCR flow, the City can readily meet the golf course irrigation demands when irrigating with CDCR flow. However, the City may be unable to meet the golf course irrigation demands when Preston Reservoir is the source of irrigation flow.

Table 1 shows the historical average daily demands for the golf course and the historical number of days where the demands were 500,000 gpd or less and 400,000 gpd or less. As shown, the demands for the golf course typically exceed the amount of ARSA water that can be treated daily in September and can at times exceed this amount in October. Moreover, depending on the flow that can ultimately be reliably treated each day, there may be very few days remaining when the golf course demands are within the range that can match the ARSA treatment rate.

Table 1. Castle Oaks Golf Course Irrigation Demands
Month 20117 2018 2019 2020 2021(a)
2017 – 2020
Average
Average Monthly Castle Oaks Golf Course Irrigation Demands September 770,000 800,000 800,000 540,000 330,000 728,000 October 570,000 270,000 600,000 470,000 370,000 478,000 November - 180,000 550,000 360,000 - 273,000
December - - - - - -
Number of Days Castle Oaks Golf Course Irrigation Demands Were 500,000 gpd or Less September - - - 21 27 5
October 6 28 4 31 22 17
November - 18 2 17 - 9
December - - - - - -
Total 6 46 6 69 49 32
Number of Days Castle Oaks Golf Course Irrigation Demands Were 400,000 gpd or Less September - - - 4 21 1
October 4 28 2 - 13 9
November - 18 1 12 - 8
December - - - 4 21 -
Total 4 46 3 16 34 17
(a) In 2021, ARSA elected not to discharge to the Tertiary Plant after May citing there was no water available. This action resulted in lower-than-normal flows being directed to the golf course. Therefore, 2021 is not included in the long-term average. The City was also required to credit the golf course financially for not providing adequate supplies in 2021.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
Given the information presented in Table 1, the City has two options for treating ARSA flows over the next few months:
a) Treat ARSA flows more than 500,000 gpd and thus risk violation of the effluent turbidity and coliform limitations (discussed in the previous section), or b) Supply only 500,000 gpd day (or less) to the golf course.

With the decreased temperatures and rainfall over the weekend of September 17, the City started accepting ARSA flow on September 19 at a rate of approximately 200,000 gpd and this rate has since been increased to approximately 400,000 gpd. The City plans to make every effort to maintain treatment of the ARSA flows through the end of the irrigation season. However, the City cannot guarantee that the golf course demands will not increase again in late September and/or October.

It should also be noted that the City cannot quickly switch back and forth between treating ARSA flow and CDCR flow as a means of addressing the supply issue. Because these two sources of water have such different water qualities, staff must test and change polymer dosing regimens when the water supplies are changed to ensure reliable treatment. This process typically takes 12 to 24 hours.

It is unclear why the quality of water received at the Tertiary Plant from the ARSA system is so poor. It is understood that the water being directed to the Tertiary Plant is pulled from near the bottom of Preston Reservoir. Therefore, ARSA may be able to implement a temporary pumping strategy that would eliminate the odor and turbidity issues with the current supply. For example, a temporary pumping system could potentially be used to draws water from the top of Preston Reservoir instead of the existing system that pulls water from the bottom of the reservoir. If ARSA is successful in implementing a temporary pumping strategy that improves water quality in the near term, the City could likely accept flows from Preston Reservoir at a higher rate. Finally, even if the water quality issues cannot be resolved within this irrigation season, ARSA must develop a strategy that improves the water quality directed to the City of Ione’s WWTP prior to the City acceptance of flow in 2023.

Added Cost of Treatment
The elevated levels of turbidity and organic compounds in the ARSA flow requires a significant amount of chemical addition (i.e., polymer and hypochlorite) to meet the WRRs 93-240 effluent limitations. The demands for polymer and hypochlorite for the ARSA flow as compared to the CDCR flow based on the two attempts the City has made to treat ARSA flow between June 13 and August 31 is shown in Table 2. As shown, the polymer dose is approximately twice what would typically be needed, and the hypochlorite dose is approximately fifty percent higher.

Table 2. Average Monthly Castle Oaks Golf Course Irrigation Demands June 12 through August 31 Source of Flow Polymer Dose, mg/L Hypochlorite Dose, mg/L ARSA 68 7.2
CDCR 32 5.0
Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
To develop an estimate of how much these dosages will add to the total cost of treatment, an estimate of the total flow that could potentially be treated by the end of the irrigation season has been developed.

Table 3 shows the total historical number of days that remain in the irrigation season and the estimated volume of water that can be applied to the golf course assuming a 400,000 gpd application rate. As shown, it is estimated that the City could be able to treat up to 22.3 million gallons of ARSA flow by the end of the irrigation season if a rate of 400,000 gpd can be maintained without causing damage to the golf course or a violation of WRR 93-240.

Table 3. Average Monthly Castle Oaks Golf Course Irrigation Demands Month 20117 2018 2019 2020 2021(a)
2017 – 2020
Average
Total Remaining Days in Irrigation Season
September 11 11 11 11 11 11
October 29 31 28 31 22 30
November - 18 25 17 - 15
December - - - - - -
Total Flow Treated at 400,000 gpd
September 4.4 4.4 4.4 4.4 4.4 4.4
October 11.6 12.4 11.2 12.4 8.8 11.9
November - 7.2 10.0 6.8 - 6.0
December - - - - - -
Total 16.0 24.0 25.6 23.6 12.8 22.3(b)
(a) In 2021, ARSA elected not to discharge to the Tertiary Plant after May citing there was no water available. This action resulted in lowerthan-normal flows being directed to the golf course. Therefore, 2021 is not included in the long-term average. The City was also required to credit the golf course financially for not providing adequate supplies in 2021. (b) The average 2017 to 2020 treatment volume between September 19 and December 31 was 26.8 million gallons.

Table 4 establishes the chemical costs associated with treatment of the remaining flow based on the average chemical dosages observed between June 13 and August 31. As shown, if the chemical doses remain the same as they have been, the City may incur costs as much as $72,000 beyond what the costs would be for a typical secondary treated wastewater received from CDCR.

Table 4. Average Monthly Castle Oaks Golf Course Irrigation Demands Source
of
Flow
Total
Estimated
Flow Treated,
million
gallons
Polymer Requirements Hypochlorite Requirements
Total
Cost,
dollars
Cost per
Million
Gallon
Treated,
dollars
Average
Dose,
mg/L
Cost of
Chemical,
dollars(a)
Average
Dose,
mg/L
Cost of
Chemical,
dollars(a)
ARSA

22.3 68 135,000 7.2 2,700 137,700 6,200
CDCR 32 64,000 5.0 1,900 65,900 3,000
Cost Difference $71,800 $3,200
(a) Based on a cost of $10.68 per pound delivered.
(b) Based on a 12.5 percent solution at a cost of $2.09 per gallon delivered.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
Under the Agreement to Regulate Use of Henderson / Preston Wastewater Disposal System (2007 Agreement) and the subsequent First Implementation and Mediation Settlement Agreement (2016 Settlement) ARSA was only required to pay the City a portion of what the estimated operating costs of the Tertiary Plant were in 2016 to cover their portion of plant operation costs. In 2021, ARSA paid total of $68,000. As shown in Table 4, assuming payments are made by ARSA consistent with those received in 2021, ARSA would likely be approximately $70,000 less than the City’s chemical costs. The shortfall is even greater once operations staff time or other treatment facility related expenses are considered.

It should also be noted that in 2021 ARSA elected not to direct flow to the CORWP facility after May of 2021 – citing there was not any water available. This action by ARSA resulted in lower-than-normal flows being directed to the golf course. Unfortunately, this lower flow to the golf course resulted in damage to the course, which resulted in the City having to credit the golf course approximately $21,000. Therefore, if impacts to the golf course were to occur again in 2022 due to the lower flows that can be treated by ARSA, the costs to the City associated with handling the ARSA flows could be even higher than just the operating costs.

The analysis presented above is further substantiated by the City’s operating data from 2021. In this year, the City treated a total flow of approximately 132 million gallons. The expenses associated with CORWP operation were approximately $233,000, which equates to a cost of approximately $1,770 per gallon treated2. However, the City only received an income of approximately $165,000. Although this differential is due, in part, to the $21,000 credit provided to the golf course, the data demonstrates that the City regularly does not receive adequate income from the parties that benefit from the operation of the Tertiary Plant to cover the cost of operations. Given that there is not a current agreement with ARSA and the history of underpayments as compared to operating costs, the City requests that some guarantee from ARSA be made regarding covering the cost of treatment in 2022.

Potential for Impacts to Staff
While the WRR 93-240 nuisance conditions requirements are understood to be principally designed to protect the public from the Tertiary Plant and golf course irrigation operations, prohibition of nuisance conditions also protects the staff operating the Tertiary Plant and golf course. Foregoing enforcement does not ensure that the Tertiary Plant and golf course operations staff will be adequately protected from noxious odors while completing their work. If injury were to occur, the City would potentially be liable.

Potential for Regulatory Action
While the City appreciates that the Board would forego enforcement of the nuisance prohibition, the City may still be subject to regulatory action for permit violations. This could include liabilities from regulatory bodies such as the Amador County Air Pollution Control District. In addition, the Tertiary Plant operations staff could be subject to liability related to their individual operator licenses. 2 Note that there was a 32 percent increase in polymer costs between 2021 and 2022.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD

ACTIONS TO BE TAKEN BY ARSA
As discussed above, the City is taking on considerable risk by agreeing to accept the poor-quality flow from ARSA’s Preston Reservoir into the Tertiary Plant. The City is concerned that the Regional Board’s stated commitment to working with ARSA to resolve issues related to the operation of their facilities will not be adequate to address the many issues at hand. ARSA must also take some actions to help ensure the issues faced in the near term do not persist in the future. These suggested actions are outlined in the sections below.

ARSA Must Seek Other Options for Short-Term Disposal
The City’s facilities do not have the disposal capacity available to receive and/or reuse the total volume of concern from ARSA’s Preston Reservoir. The City understands that ARSA would like to discharge at least about 38 million gallons from Preston Reservoir to the Tertiary Plant to lower Preston Reservoir to acceptable levels. As noted in Table 3 above, it is estimated that the total flow that can be received is, at best, about 22 million gallons (unless modifications that improve water quality are made by ARSA). This leaves a shortfall of approximately 16 million gallons that must be discharged in some other way.

The City currently treats the flow generated within the City at its Wastewater Treatment Plant (WWTP), which is a pond-based treatment system that provides for disposal via land application on agricultural properties and percolation disposal. The City can direct ARSA flows from the Tertiary Plant to the WWTP’s Storage Pond 5. However, the City cannot accept this flow if it risks the City’s ability to maintain adequate disposal capacity for the City’s wastewater. Storage Pond 5, which is the primary storage pond at the WWTP, is currently nearly full. The farmer that manages the one of the City’s land application areas (i.e., the City Field) plans to plant the field in alfalfa in the next few weeks. This will result in some water use from Pond 5. At the end of the golf course irrigation season, the City will assess the potential for Pond 5 to accept some flow from ARSA. However, it is anticipated that this flow would, at best, could be another 3 to 5 million gallons3.

Given the limitations discussed above, it is unlikely that the City can accept all the flow needed to return Preston Reservoir to safe water levels. Therefore, ARSA should begin evaluating other options for shortterm disposal. Specifically, ARSA should be required to begin hauling flow from Preston Reservoir to a facility that can accept the flow as soon as possible. It is critical that the City initiate this hauling process now, as it will take time for ASRSA to get a permit and contracts in place to facilitate this effort. Moreover, the City will not know until later in the year how much flow could be accepted and waiting until this is known will be too late.
3 If the City were to allow ARSA flow to be sent to Pond 5, there would be a concern with causing nuisance conditions at the WWTP. Waste Discharge Requirements Order R5-2013-0022-001, which governs WWTP operations and discharge, includes a parallel prohibition against causing nuisance (i.e., noxious odors). The City would therefore need assurance that the nuisance prohibition on the WWTP (Discharge Specification E.2) would also not be enforced during the period specified in the letter. The City would nevertheless still have the concerns with respect to third parties – both private parties and other governmental agencies – and operator safety noted above for the Tertiary Plant and golf course.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
ARSA Must Commit to Improving Water Quality Directed to the Tertiary Plant To allow for continued discharge beyond 2022, ARSA must take actions to improve the water quality directed to the Tertiary Plant. Such actions may include but are not limited to dredging/removing the accumulated solids from the reservoir and relocating the outfall structure.

ARSA Discharge to the Tertiary Plant Must Cease in the Long-Term The City owns, and is responsible for operation of, the Tertiary Plant. The City has historically discharged the secondary effluent generated at the City’s WWTP two percolation basins. However, these basins do not provide adequate capacity to meet the City’s long-term disposal need.

Moreover, the City is currently operating under a Cease-and-Desist Order (CDO) from the Regional Board that includes a requirement to eliminate the percolation basins if groundwater quality does not improve.

The City has recently spent over $5 million dollars to line the treatment ponds and improve treatment at the WWTP to address the groundwater quality issues identified in the CDO. The City has demonstrated that they are good stewards of the environment, and that they want to meet their permit obligations and the requirements of the CDO. One of the final steps needed to help the City meet the compliance requirements of the CDO (as well as provide adequate disposal capacity for the City’s wastewater) is connecting the WWTP to the Tertiary Plant so the City can reduce usage of the percolation basins.

The City is concerned that the position of the Regional Board in this process is leading to a situation where the City is required to accept ARSA flow indefinitely – which then will put the City’s treatment facilities in danger of overflowing and/or violation. Regardless of what short-term allowances are made for the City to receive ARSA flow at the Tertiary Plant (and WWTP), the Board must acknowledge and address the long-term capacity limitations for the City to continue receiving ARSA flows.

REGIONAL BOARD REPORTING EXPECTATIONS
Finally, in addition to the issues discussed above, the City has the following concerns regarding the Regional Board reporting expectations described in the subject letter:
 The letter indicates that information should be provided on a weekly basis. However, it is not clear where or two whom this information should be submitted (absent the water quality data described below).
 The letter indicates that this data submission should address “how the complaint(s) [nuisance complaints received by the City and the golf course] were resolved”. The City is unclear what resolution can be made regarding odor complaints given the Regional Board’s direction regarding the City’s acceptance of the ARSA flow. Additional direction from the Regional Board is needed to understand how the City is to handle any complaints received.  The data request indicates that “all previous and future water quality and air samples, including a chain of custody and monitoring locations, for all samples collected to verify high hydrogen sulfide and turbidity” shall be provided to Kari Holmes of the Regional Board. For the most part, these samples have been collected using online monitoring equipment (filter effluent turbidity), in-house benchtop equipment (other turbidity grab samples), or handheld devices (hydrogen sulfide). The City’s filter effluent turbidity meter measures data continuously, but only records daily average values in accordance with the WRR requirements. Other data collected by the City using handheld and/or benchtop devices has only been recorded to date in the daily operations logs.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
It is not clear whether the Regional Board is seeking submission of the City’s operations data or only data that has been analyzed by a laboratory. It is also not clear whether the Regional Board is requesting that the City implement a data collection strategy that includes water quality samples that are sent to a laboratory for analysis.

To date the City has only collected the following samples that were sent to a laboratory:
— One sample of the Tertiary Plant influent was collected when ARSA was discharging on June 17, 2022. This sample was analyzed for sulfide and tannins by Alpha laboratories. — Two samples were collected from the Preston Reservoir effluent when ARSA was discharging on August 30, 2022. These samples were analyzed for sulfide by Alpha laboratories.
— Two samples from the Tertiary Plant influent when ARSA was discharging on August 30, 2022. These samples were analyzed for sulfide by Alpha laboratories The City plans to submit this sampling data per the request.  The City is concerned that the monitoring data request combines information that can only be provided by ARSA (i.e., Preston Reservoir data) and information that can only be provided by the City (i.e., Tertiary Plan operations data). By combining the reporting expectations as they are stated in the letter, it is not clear who is responsible for the submissions.

Given these concerns, the City would like an opportunity to discuss further the reporting expectations presented in the letter and work together with the Regional Board to develop a reporting plan that is practical and implementable.

PROPOSED NEXT STEPS
The City respectfully requests that the Board consider the concerns documented above and prepare a revised letter that addresses the following specific issues:
 ARSA must make immediate improvements to the Preston Reservoir withdraw system to improve water quality discharged to the Tertiary Plant, otherwise the City will be limited in the amount of flow that can be received.
 ARSA must make permanent changes to the Preston Reservoir withdraw and pumping system to improve water quality delivered to the City of Ione.  The Board should establish a timeline for ARSA to complete the activities described above, with a final compliance date that is prior to discharging any flow to the Tertiary Plant in 2023.  ARSA must implement a strategy to discharge some of the water stored in Preston Reservoir at an alternative location. At a minimum, this strategy should include pumping and hauling stored water to a facility that can accommodate the flow.  ARSA must agree to pay for cost of treatment of all Preston Reservoir flow that is received.  ARSA must agree to pay for any regulatory penalties incurred by the City related to accepting the Preston Reservoir flow.
 ARSA should agree to assume on behalf of the City any and all legal liability resulting from the poor water quality of the Preston Reservoir flow delivered to the City, including odor conditions and elevated levels of turbidity and organic compounds that cannot be fully mitigated despite the City’s best efforts.

Mr. John Baum
September 22, 2022

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W-C-988-50-22-02-WP-REGIONAL BOARD
 The Regional Board should acknowledge the potential liabilities for the Tertiary Plant operators resulting from ARSA’s delivery of Preston Reservoir flow that may result in a violation of WRRs 93-240. The Regional Board should also coordinate with the State Water Resources Control Board (State Water Board) to issue a letter providing assurance that the State Water Board will not pursue administrative civil liability or disciplinary action against Tertiary Plant operators who do not act willfully, negligently, or unreasonably in carrying out the Regional Board’s request that the City accept water from Preston Reservoir.  The Board should acknowledge that the City does not have the capacity to accept ARSA flow in the long-term.
 The Board should acknowledge the improvements made by the City related to groundwater quality and agree to work with the City to identify the steps necessary to rescind the CDO issued for the City’s WWTP.
 The Board should rescind the reporting expectations described in the September 9 letter and provide new reporting expectations, as appropriate, following discussions with the City.

Thank you for your attention to these concerns. The City appreciates the complexity of the regional wastewater disposal capacity issues and has demonstrated they are willing to work with the Regional Board and ARSA to find mutually agreeable solutions. However, the regional partners also need to share the cost for developing these solutions based on equitable cost of service allocations, so the customers of each entity are paying their fair share of the capital and operation and maintenance costs. The City looks forward to working together with the Regional Board to address these important issues during the discussion scheduled for October 3.

Sincerely,
Kathryn Gies, P.E.

Engineering Manager
c.c. Dan Epperson, City of Ione Mayor
Michael Rock, City Manager
Carolyn Walker, City of Ione City Attorney
Robin Peters, ARSA Board Chairman
Amy Gedney, ARSA General Manager, City of Sutter Creek City Manager Dominic Atlan, Castle Oaks Golf Course Manager
EXHIBIT 3

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Proof of Service -1- SOMACH SIMMONS & DUNN A Professional Corporation RE: Amador Regional Sanitation Authority v. City of Ione Amador County Superior Court Case No.: 22CV12824

PROOF OF SERVICE
I am employed in the County of Sacramento; my business address is 500 Capitol Mall, Suite 1000, Sacramento, California; my electronic service address is: [email protected]; and I am over the age of 18 years and not a party to the foregoing action.

I hereby certify that on October 17, 2022, I submitted a true and correct copy of the following document(s):

DECLARATION OF MICHAEL ROCK IN SUPPORT OF EX PARTE APPLICATION TO MODIFY OCTOBER 10, 2022 ORDER AND PRELIMINARY INJUNCTION _X__ Via electronic/email service, the document(s) listed above were served via email to the email addresses as set forth in the service list.
_X__ Via Fed Ex service, the document(s) listed above were served via fed ex to the addresses as set forth in the service list.
____ on the parties in said action, by placing a true copy thereof in a sealed envelope with postage fully prepaid thereon and placing said envelope in the area designated for outgoing daily mail address per the service list.

SERVICE LIST
Via Fed Ex and Via Email
Shawn D. Hagerty, Esq.

Matthew Green, Esq.

Best Best & Krieger, LLP
655 West Broadway, 15th Floor
San Diego, CA 92101
Tel: (619) 525-1370
Fax: (619) 233-6118
[email protected]
[email protected]
Attorneys for Plaintiff
Via Fed Ex and Via Email
Frank A. Splendorio, Esq.

Best Best & Krieger, LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Tel: (916) 325-4000
Fax: (916) 325-4010
[email protected]
Attorneys for Plaintiff
Via Email

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Proof of Service -2- SOMACH SIMMONS & DUNN A Professional Corporation I declare under penalty of perjury that the foregoing is true and correct. Executed on October 17, 2022, at Sacramento, California.

Corene E. Rodder

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[PROPOSED] ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO MODIFY THE TEMPORARY RESTRAINING ORDER 1 SOMACH SIMMONS & DUNN A Professional Corporation

SOMACH SIMMONS & DUNN
A Professional Corporation
THERESA C. BARFIELD (SBN 185568)
MICHELLE E. CHESTER (SBN 300632)
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone: (916) 446-7979
Facsimile: (916) 446-8199
[email protected]
[email protected]

EXEMPT FROM FILING FEES
PER GOV. CODE § 6103

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION, a
California state agency; and DOES 1 through 20,
inclusive,
Defendants,
Case No. 22-CV-12824
[PROPOSED] ORDER GRANTING
DEFENDANTS’ EX PARTE

APPLICATION TO MODIFY THE

TEMPORARY RESTRAINING ORDER
Judge: Hon. J.S. Hermanson
Date:

Time:

Dept: 1
Complaint Filed: September 20, 2022
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[PROPOSED] ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO MODIFY THE TEMPORARY RESTRAINING ORDER 2 SOMACH SIMMONS & DUNN A Professional Corporation Based upon Ione’s ex parte application for a modification of the temporary restraining order, and on the documents filed therewith, the October 10, 2022 Order and Preliminary Injunction is modified as follows:

Dated:____________________ ______________________________

JUDGE OF THE SUPERIOR COURT
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Proof of Service -1- SOMACH SIMMONS & DUNN A Professional Corporation RE: Amador Regional Sanitation Authority v. City of Ione Amador County Superior Court Case No.: 22CV12824

I hereby certify that on October 17, 2022, I submitted a true and correct copy of the following document(s):

PROPOSED ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO

MODIFY THE TEMPORARY RESTRAINING ORDER
_X__ Via electronic/email service, the document(s) listed above were served via email to the email addresses as set forth in the service list.
_X__ Via Fed Ex service, the document(s) listed above were served via fed ex to the addresses as set forth in the service list.
____ on the parties in said action, by placing a true copy thereof in a sealed envelope with postage fully prepaid thereon and placing said envelope in the area designated for outgoing daily mail address per the service list.

SERVICE LIST
Via Fed Ex and Via Email
Shawn D. Hagerty, Esq.

Matthew Green, Esq.

Best Best & Krieger, LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Tel: (916) 325-4000
Fax: (916) 325-4010
[email protected]
Attorneys for Plaintiff
Via Email

PRENTICE LONG, PC
DAVID A. PRENTICE (SBN 144690)
MARGARET LONG (SBN 227176)
CAROLYN WALKER (SBN 262247)
2240 Court Street
Redding, CA 96001
Telephone: (530) 691-0800
Facsimile: (530) 691-0700
[email protected]
[email protected]
[email protected]
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Proof of Service -2- SOMACH SIMMONS & DUNN A Professional Corporation I declare under penalty of perjury that the foregoing is true and correct. Executed on October 17, 2022, at Sacramento, California.

Corene E. Rodder
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NOTICE OF ASSOCIATION OF COUNSEL 1 SOMACH SIMMONS & DUNN A Professional Corporation

EXEMPT FROM FILING FEES
PER GOV. CODE § 6103

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers agency,
Plaintiff,
v.

NOTICE OF ASSOCIATION OF

COUNSEL
Judge: Hon. J.S. Hermanson
Date:

Time:

Dept: 1
Complaint Filed: September 20, 2022
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28 TO THE CLERK OF THE SUPERIOR COURT, AND TO PLAINTIFF AND COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT Carolyn Walker, attorney of record for Defendant City of lone, hereby associates Somach Simmons & Dunn and attorneys Theresa C. Barfield and Michelle E. Chester as co-counsel for the city of lone in this matter. We respectfully request that all pleadings and other documents be served to Theresa C. Barfield and Michelle E. Chester as follows:

Theresa C. Barfield, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone No. (916) 446-7979
Facsimile No. (916) 446-8199
Email [email protected]
Michelle E. Chester, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone No. (916) 446-7979
Facsimile No. (916) 446-8199
Email: [email protected]
Attorney Carolyn Walker hereby approves in the filing of the Notice of Association of Counsel.

Dated: October 17, 2022
Ill
Ill
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By:-=-----------------ff"_-'
Carolyn Walker
Attorney for Defendant City of lone
NOTICE OF ASSOCIATION OF COUNSEL 2
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NOTICE OF ASSOCIATION OF COUNSEL 3 SOMACH SIMMONS & DUNN A Professional Corporation Somach Simmons & Dunn and attorneys Theresa C. Barfield and Michelle E. Chester hereby accept the above association.

Respectfully submitted,

SOMACH SIMMONS & DUNN
A Professional Corporation
Dated: October 17, 2022 By:

Theresa C. Barfield
Attorney for Petitioner City of Ione
Dated: October 17, 2022 By:

Michelle E. Chester
Attorney for Petitioner City of Ione

I hereby certify that on October 17, 2022, I submitted a true and correct copy of the following document(s):

NOTICE OF ASSOCIATION OF COUNSEL
_X__ Via electronic/email service, the document(s) listed above were served via email to the email addresses as set forth in the service list.
_X__ Via Fed Ex service, the document(s) listed above were served via fed ex to the addresses as set forth in the service list.
____ on the parties in said action, by placing a true copy thereof in a sealed envelope with postage fully prepaid thereon and placing said envelope in the area designated for outgoing daily mail address per the service list.

SERVICE LIST
Via Fed Ex and Via Email
Shawn D. Hagerty, Esq.

Matthew Green, Esq.

Best Best & Krieger, LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Tel: (916) 325-4000
Fax: (916) 325-4010
[email protected]
Attorneys for Plaintiff
Via Email

Corene E. Rodder
ATTACHMENT 9
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BEST BEST &

KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

MEMORANDUM IN OPPOSITION TO EX

PARTE APPLICATION FOR ORDER TO
MODIFY OCTOBER 10, 2022 ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
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KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
Plaintiff Amador Regional Sanitation Authority (“ARSA”) respectfully submits the following memorandum in opposition to Defendant City of Ione’s (“Ione”) ex parte application to modify the Court’s October 10, 2022, order and preliminary injunction.

INTRODUCTION
In order to alleviate the serious risk of wastewater overflowing from Preston Reservoir and the public health and water quality contamination crises that would ensue, the Court appropriately issued a preliminary injunction on October 10, 2022, requiring Ione to immediately accept 500,000 gallons of wastewater per day from Preston Reservoir for 30 days, a copy of which was personally served on Ione on October 11, 2022, at 12:44 p.m. (Green Decl., Exs. A, B.) Since that time, however, Ione has chosen a perilous path of willfully disobeying the Court’s order. (See Stone Decl., ¶ 4.) Ione has instead unsuccessfully sought relief from the Court of Appeal, delayed compliance in order to obtain assurances from the Central Valley Regional Water Quality Control Board (“Regional Board”) that were already provided, and created excuse after excuse for why it cannot accept wastewater from Preston Reservoir, the latest of which is high levels of hydrogen sulfide that is the result of Ione’s own doing.

Now before the Court is Ione’s ex parte application to modify the preliminary injunction to reduce the total gallons per day to 200,000, or to condition Ione’s acceptance of 500,000 gallons per day on ARSA’s installation of a surface pump at Preston Reservoir. (Ex Parte App., at p. 2:11-16.) The sole basis of Ione’s application is that compliance with the preliminary injunction will result in Ione violating its permit from the Regional Board. (Id., at pp. 2:17-3:14.) While Ione claims modification is necessary to serve the “ends of justice,” the risk of permit violations is the precise argument Ione made in its opposition to the preliminary injunction. (See Opp’n to ARSA’s Ex Parte App. for TRO, at pp. 12:1-16:2.) Ione’s purported fear of violating its Regional Board permit is also baseless. In early September 2022, the Regional Board specifically informed Ione that, given the “capacity issues at Preston are presenting an even greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston at Ione’s tertiary facility,” the Regional Board will “not pursue enforcement of odor 82456.00002\40790690.1 - 3 -
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
nuisance conditions that may occur as a result of the City’s acceptance of treated wastewater from Preston at the Tertiary Plant or golf course” for the rest of the year. (Green Decl., Ex. G, Ex. D thereto.) The Court should therefore deny Ione’s request to modify the preliminary injunction and remind Ione that it remains subject to a binding court order.

II.

LEGAL STANDARD
Code of Civil Procedure section 533 permits courts to modify an injunction “upon a showing that there has been a material change in the facts upon which the injunction … was granted, that the law upon which the injunction … was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction ….” The party seeking to modify an injunction bears “the burden … to show by a preponderance of the evidence that one of the circumstances set forth in Code of Civil Procedure section 533 is present and justifies a [modification] of the [injunction].” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1504.) III.

ARGUMENT
A. IONE HAS NOT MET ITS BURDEN OF JUSTIFYING MODIFICATION OF

THE PRELIMINARY INJUNCTION
Cognizant of the absence of a material change in the facts or the law, Ione purports to rely on the “ends of justice” prong to support modification of the preliminary injunction. Rehashing prior, unsuccessful arguments made in opposition to the preliminary injunction is woefully insufficient to support modification of the injunction. (See Opp’n to ARSA’s Ex Parte App. for TRO, at pp. 12:1-16:2.)
Ione’s principal argument in opposition to the preliminary injunction was that the treatment of wastewater from Preston Reservoir will violate its Regional Board permit because the turbidity and coliform bacteria in the water exceed the permit limits. (Moroz Decl. in Opp’n to ARSA’s Ex Parte App. for TRO, ¶¶ 3-4.) Ione also claimed that Preston Reservoir’s wastewater poses public health issues because it contains odor-causing hydrogen sulfide, and that the water is difficult to treat because of sedimentation caused by the water being delivered from the bottom of Preston 82456.00002\40790690.1 - 4 -
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655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
Reservoir. (Id., ¶¶ 5-7.) These arguments were thus already considered and rejected by the Court when the preliminary injunction was issued.

Ione’s ongoing concerns with violating its Regional Board permit are also entirely specious.

To justify Ione’s refusal to accept water from Preston Reservoir, Ione complained to the Regional Board about hydrogen sulfide and turbidity in the wastewater from Preston Reservoir before ARSA was forced to file this action. The Regional Board responded as follows:

With the understanding that capacity issues at Preston are presenting an even greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston at Ione’s tertiary facility, the [Regional] Board’s Compliance and Enforcement Unit will exercise its prosecutorial discretion to not pursue enforcement of odor nuisance conditions that may occur as a result of the City’s acceptance of treated wastewater from Preston at the Tertiary Plant or golf course between 9 September 2022 and 1 January 2023. (Green Decl., Ex. G, Ex. D thereto.)
Ione’s continuing concerns regarding compliance with its Regional Board permit are thus insufficient to support modification of the preliminary injunction.

B. IONE CONTINUES TO WILLFULLY DISOBEY THE COURT’S ORDER As previously noted, Ione was personally served with the preliminary injunction midday on October 11, 2022. (Green Decl., Ex. B.) At that time, Ione was immediately required to accept 500,000 gallons of wastewater per day for 30 days, for a total of 15 million gallons. (Green Decl., Ex. A.) Rather than comply with a binding court order, (see Stone Decl., ¶ 4), Ione has requested assurances from the Regional Board, sought relief in the Court of Appeal, and raised excuse after excuse to justify its refusal to comply with the preliminary injunction. Each of these matters is addressed in turn.

1. Ione’s Request For Assurances That The Regional Board Already Provided.

On October 11, 2022, the same day it was served with the injunction, Ione wrote to the Regional Board to request assurances that the Board would exercise its prosecutorial discretion not to pursue enforcement of any wastewater permit violations as a result of accepting water from Preston Reservoir. (Rock Decl., Ex. 3.) Ione’s request is bewildering because such assurances were already provided by the Regional Board. As noted above, in its September 9, 2022, correspondence, the Regional Board advised Ione that, given the “capacity issues at Preston are presenting an even 82456.00002\40790690.1 - 5 -
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston at Ione’s tertiary facility,” the Regional Board will “not pursue enforcement of odor nuisance conditions that may occur as a result of the City’s acceptance of treated wastewater from Preston at the Tertiary Plant or golf course” for the rest of the year. (Green Decl., Ex. G, Ex. D thereto.)

2. Ione’s Unsuccessful Attempt To Obtain Relief From The Court of Appeal.

On October 11, 2022, Ione also wrote to the Court of Appeal to ask for leave to amend its writ petition challenging the prior temporary restraining order so that it could redirect its attack to the preliminary injunction. (Green Decl., Ex. C.) On October 13, 2022, the Court of Appeal denied the writ petition as moot. (Green Decl., Ex. D.) Undeterred, Ione filed another writ petition challenging the preliminary injunction on October 14, 2022, which included a request for an immediate stay. (Green Decl., Ex. E.) On October 18, 2022, the Court of Appeal denied Ione’s second writ petition. (Green Decl., Ex. F.)

3. The High Hydrogen Sulfide Levels Are Ione’s Own Doing And Do Not Excuse Ione’s Noncompliance With The Preliminary Injunction.

After filing its ex parte application, Ione’s counsel submitted a supplemental declaration to inform the Court of high levels of hydrogen sulfide at its Castle Oaks Water Reclamation Plant on October 18, 2022. According to an incident report, Ione’s fire department took gas readings at two top vent pipes to test the amount of hydrogen sulfide (H2S). (Supp. Chester Decl., Ex. A.) These readings showed H2S at only 1 part per million (PPM), but detected a combustible/explosive range above the lower explosion limit (LEL) of 10% at 13-14%. (Ibid.) While Ione’s fire department readings showed similar results on October 19, 2022, the combustible/explosive range dropped below the LEL to only 3% on October 20, 2022. (Brown Decl., Exs. A, B.) The amount of H2S, however, increased to at least 200 PPM at that time. (Brown Decl., Ex. B.) The oxygen levels from October 18 to 20, 2022, nevertheless remained constant, at 20.8%, 20.2%, and 20.8%. (Brown Decl., Exs. A, B.)
Hydrogen sulfide is a common condition that exists in sewer and wastewater systems. (Brown Decl., ¶ 5.) It is a combustible and toxic gas that forms within sewer collection systems 82456.00002\40790690.1 - 6 -
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
when the organic matter in the raw sewage decomposes and is caused by the lack of oxygen in the water over longer periods of time. (Ibid.) The likely cause of hydrogen sulfide at the Castle Oaks Water Reclamation Plant arises from Ione’s decision to stop deliveries of wastewater from Preston Reservoir. (Ibid.) By doing so, stagnant water remained in the closed pipeline between the reservoir discharge valve and the tertiary treatment plant, which likely allowed the remaining oxygen to be consumed, anaerobic bacteria to be formed, and hydrogen sulfide to generate. (Ibid.) Setting aside the cause of the hydrogen sulfide, hydrogen sulfide does not generally pose a health hazard when it is properly monitored and mitigated. (Id., ¶ 6.) To address the presence of hydrogen sulfide, including at the levels detected by Ione’s fire department between October 18 and 20, 2022, ventilation blowers are typically used to force air into the confined space at high enough volumes to exchange the air to dilute the concentration to a nonhazardous level. (Ibid.) Indeed, in most cases, simply ventilating the utility access hole can reduce the levels of the gas present to a safe level for entry. (Ibid.) Hydrogen sulfide may also be treated through the use of chemicals, including chlorine, sodium hypochlorite, or other products such as hydrogen peroxidebased oxidants. (Ibid.) To date, Ione has provided no evidence whatsoever reflecting any attempts to treat the hydrogen sulfide. (See id., ¶ 9.) Ione has instead simply shut down the system after detecting conditions that are common in wastewater systems and has elected to take no steps to treat the hydrogen sulfide. (See ibid.) ARSA has tested the area around the Preston Reservoir for H2S, and no H2S has been detected. (Ibid.) The hydrogen sulfide issues identified by Ione thus relate solely to tertiary effluent requirements. They are part of the costs of providing tertiary treatment and therefore must be resolved by Ione as the operator of the tertiary treatment plant. (Ibid.) The H2S and LEL readings provided by Ione are also questionable at best. (Id., ¶ 7.) The H2S level was apparently measured at a level below grade in a vent line; the gas level above the confined space was not measured. (Ibid.) H2S is heavier than air, which means it will collect and concentrate in confined spaces below grade. (Ibid.) When mixed with the air outside of the confined space, however, it will typically produce a decreased level of concentration. (Ibid.) While the odor may be detectable near the vent, it could be easily mitigated through aeration. (Ibid.) 82456.00002\40790690.1 - 7 -
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
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Finally, while Ione has provided no data since October 20, 2022, regarding the latest data provided by Ione on that day, it does not make sense for the LEL to go down and the H2S level to increase. (Id., ¶ 8.) H2S is considered combustible, which means the H2S level and LEL should rise and fall together. (Ibid.) The diverging H2S and LEL readings are also suspect given the amount of oxygen remained constant from October 18 to October 20, 2020. (Ibid.) Indeed ,without calibration logs, the accuracy of the testing instruments cannot be assumed. (Ibid.) IV.

CONCLUSION
For the reasons set forth above, the Court should deny Ione’s ex parte application to modify the preliminary injunction.

Dated: October 25, 2022 BEST BEST & KRIEGER LLP
By:

SHAWN D. HAGERTY
MATTHEW L. GREEN
FRANK A. SPLENDORIO
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION

AUTHORITY
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
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PROOF OF SERVICE
I, Lisa Atwood, declare:

MEMORANDUM IN OPPOSITION TO EX PARTE APPLICATION FOR
ORDER TO MODIFY OCTOBER 10, 2022 ORDER AND PRELIMINARY
INJUNCTION;

DECLARATION OF DONALD BROWN IN OPPOSITION TO EX PARTE
APPLICATION FOR ORDER TO MODIFY OCTOBER 10, 2022 ORDER AND PRELIMINARY INJUNCTION;
DECLARATION OF MATTHEW L. GREEN IN OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO MODIFY OCTOBER 10, 2022 ORDER AND PRELIMINARY INJUNCTION;

DECLARATION OF STEVEN COREY STONE IN OPPOSITION TO EX
PARTE APPLICATION FOR ORDER TO MODIFY OCTOBER 10, 2022

ORDER AND PRELIMINARY INJUNCTION

By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below. I placed, or caused to be placed, the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.

By personal service. At ______ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening.
i 'drt., d.oetcoe
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ATTORNEYS AT LAW
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By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.

By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.

Carolyn Walker, Esq.

Margaret Long, Esq.

David Prentice, Esq.

Prentice Long, PC
2240 Court Street
Redding, CA 96001

ATTORNEYS FOR DEFENDANT CITY

OF IONE
Tel.: (530) 691-0800
Email: [email protected]
[email protected]
[email protected]
[email protected]
Theresa C. Barfield, Esq.

Michele E. Chester, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

ATTORNEYS FOR THE CITY

ATTORNEY OF IONE
Tel: (916) 446-7979
Email: [email protected]
[email protected]
California Department of Corrections and
Rehabilitation
1515 S Street, Suite 314 South
Sacramento, CA 95811
Attn: Patrick Covello
Tel: (916) 324-7308
Email: [email protected]

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on October 25, 2022, at San Diego, California.

Lisa Atwood

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DECLARATION OF DONALD BROWN
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

DECLARATION OF DONALD BROWN IN

OPPOSITION TO EX PARTE

APPLICATION FOR ORDER TO MODIFY
OCTOBER 10, 2022 ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
82456.00002\40797008.1 - 2 -

DECLARATION OF DONALD BROWN
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655 WEST BROADWAY, 15TH FLOOR
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I, Donald Brown, declare as follows:

1. I have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.

2. I am the President of Aquality Water Management (“Aquality”) and have more than 35 years of experience in the operations of wastewater treatment plants in California. Throughout my career, my positions have ranged from wastewater treatment plant operator to wastewater treatment facilities manager to operations consultant. I have been responsible for planning, organizing, and directing the operation and maintenance of wastewater treatment plants up to 30 million gallons per day. Through Aquality, I have provided operational assistance and consulting services to the Amador Regional Sanitation Authority (“ARSA”) for several years.

3. I have been provided and have reviewed the supplemental declaration of Michelle E. Chester dated October 18, 2022, along with the City of Ione (“Ione”) Fire Department’s incident report attached thereto. I have also been provided and have reviewed subsequent correspondence between Ione and the Central Valley Regional Water Quality Control Board (“Regional Board”) dated October 19, 2022, and October 20-21, 2022, copies of which are attached hereto as Exhibits “A” and “B,” respectively.

4. According to the October 18, 2022, incident report, gas readings were taken at two top vent pipes to test the amount of hydrogen sulfide (H2S) . These readings showed H2S at only 1 part per million (PPM), but detected a combustible/explosive range above the lower explosion limit (LEL) of 10% at 13-14%. While Ione’s fire department readings showed similar results on October 19, 2022, the combustible/explosive range dropped below the LEL to only 3% on October 20, 2022. The amount of H2S, however, increased to at least 200 PPM at that time. The oxygen levels from October 18 to 20, 2022, nevertheless remained constant, at 20.8%, 20.2%, and 20.8%.

5. Hydrogen sulfide is a common condition that exists in sewer and wastewater systems. It is a combustible and toxic gas that forms within sewer collection systems when the organic matter in the raw sewage decomposes and is caused by the lack of oxygen in the water over longer periods of time. As detailed in my October 6, 2022, declaration, the likely cause of hydrogen sulfide at the Castle Oaks Water Reclamation Plant arises from Ione’s decision to stop deliveries 82456.00002\40797008.1 - 3 -

DECLARATION OF DONALD BROWN
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655 WEST BROADWAY, 15TH FLOOR
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of wastewater from Preston Reservoir. By doing so, stagnant water remained in the closed pipeline between the reservoir discharge valve and the tertiary treatment plant, which likely allowed the remaining oxygen to be consumed, anaerobic bacteria to be formed, and hydrogen sulfide to generate.

6. When properly monitored and mitigated, hydrogen sulfide does not generally pose a health hazard. To address the presence of hydrogen sulfide, including at the levels detected by Ione’s fire department, ventilation blowers are typically used to force air into the confined space at high enough volumes to exchange the air to dilute the concentration to a nonhazardous level.

Indeed, in most cases, simply ventilating the utility access hole can reduce the levels of the gas present to a safe level for entry. Hydrogen sulfide may also be treated through the use of chemicals, including chlorine, sodium hypochlorite, or other products such as hydrogen peroxide-based oxidants.

7. The H2S and LEL readings provided by Ione are also questionable at best. First, the H2S level was apparently measured at a level below grade in a vent line; the gas level above the confined space was not measured. H2S is heavier than air, which means it will collect and concentrate in confined spaces below grade. When mixed with the air outside of the confined space, however, it will typically produce a decreased level of concentration. While the odor may be detectable near the vent, it could be easily mitigated through aeration.

8. Moreover, regarding the latest data provided by Ione on October 20, 2022, it does not make sense for the LEL to go down and the H2S level to increase. H2S is considered combustible, which means the H2S level and LEL should rise and fall together. The diverging H2S and LEL readings are also suspect given the amount of oxygen remained constant from October 18 to October 20, 2020. Indeed ,without calibration logs, the accuracy of the testing instruments cannot be assumed.

9. To date, I have seen no evidence from Ione reflecting any attempts to treat the hydrogen sulfide. Ione has instead simply shut down the system after detecting conditions that are common in wastewater systems and has apparently elected to take no steps to treat the hydrogen sulfide. ARSA has tested the area around the Preston Reservoir for H2S, and no H2S has been /r~~.~~r
82456.00002\40797008.1 - 4 -

DECLARATION OF DONALD BROWN
1 2
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15 16
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BEST BEST &

KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
detected. The hydrogen sulfide issues identified by Ione thus relate solely to tertiary effluent requirements. They are part of the costs of providing tertiary treatment and therefore must be resolved by Ione as the operator of the tertiary treatment plant.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 24th day of October 2022, at Montgomery, Texas. ___________________________________

DONALD BROWN

EXHIBIT A
1 From: Michael Rock <[email protected]>
Sent: Wednesday, October 19, 2022 3:46 PM
To: Holmes, Kari@Waterboards <[email protected]>; Croyle, Kenny@Waterboards <[email protected]>; Hold, Howard@Waterboards <[email protected]>; Amy Gedney <[email protected]>; Baum, John@Waterboards <[email protected]> Cc: Dan Epperson <[email protected]>; Rodney Plamondon <[email protected]>; Dominic Atlan <[email protected]>; Diane Wratten <[email protected]>; Stacy Rhoades <[email protected]> Subject: Ione Tertiary Plant: Lower Explosion Limits (LEL) still in violation Importance: High

Dear Kari:

The Ione Fire Department and Mule Creek State Prison Fire Department conducted another reading this morning regarding the Lower Explosion Limits (LEL) at the Tertiary Plant and the conditions are not better. The LEL is still over the limit of 10% at an average reading of 13.5% today. See attached report from this morning. The Fire Department has declared the site a hazardous condition for combustion/explosion.

Under these conditions it is not possible to operate the Tertiary Plant accepting influent from ARSA. The City has contacted the Amador Superior Court regarding this issue. I have also spoken with Mr. Baum and data (calcium nitrate, polymers and chlorine that is being used right now) will be sent to the Regional Board for analysis on how to lower the LEL and still be able to treat for the high turbidity and odorous conditions.

Sincerely,

Michael Rock
City Manager
City of Ione, CA
(209) 273-7712

CITY OF IONE

FIRE DEPARTMENT
Incident # 22-29880
Incident Name
"Treatment"
10-18-2022
1243 hrs
A mm DD yyyy
103010 I ICA I I 101 I 181 1 2022 I 1162 122 - 0029880 1 I 0001 1=1
F::: * Sate * :nc.ident Laze * Change Station Incident Number Exposure 1 ❑No ActIvity NFIRS -1
Basic
B Location*
El Street address
O Intersection
['In front of
O Rear of
0Adjacent to
o Directions
r--lehoek this box is :ndrest. that th. address !or this incident is provided on th. Wildiand Fr:e L—JModol. :n rosetos . h.lr.rnative Cocvition dpeciflosilen-. es. snly ro: Wildisnd fires. 101001 1 I lFive Mile
Number/Milepost Rrefix Rree7., or Hlahway
Apt./Suite/Room
'IONE
City
Cc's''s Trait 10015 1- 100 I
Street Type 3.:fflx
I ICA 1 195640 1 - 1
State Zip. Code
Cross street or directions, as applicable
C Incident Type *
1400 I 'Hazardous condition, Other
ln:.Vident Type
D Aid Given or Received*
1 ['Mutual aid received
2 EjAutomatic aid recv.
3 Omutual aid given
4 0Automatic aid given
5 ['Other aid given
N ['None
1 11____J
Their ITT: Their
State
I I
Their
Incident Number
El Date & Times
Check boxes if
dates are the
same as Alarm
Date. Alarm *
Midnight is 0000
Month Day Year Hr Min Sec
ALARM always required
I 101 181
1 20221112:43:001
ARRIVAL required, unless canceled or did not arrive
Arrival * 1 101 1 181 1 20221112: 51:00 1
CONTROLLED Optional, Except for wildland fires
EControlled
LAST UNIT CLEARED, required except for wildland fires
Last Unit
O Cleared
L__J L__J
1 101 1 191 1 20221107:30:00 1
E2 Shift & Alarms
Local Option
Shift or Alarms 11,is,.rict
Platoon
E3
Special Studies
Local Option
Special
Study 1:0 Special
Study Value
F Actions Taken*
186 I Investigate
Primary Action Taken
1 142 I
IHazMat detection, 1 Additional Action Taken (2:
1___J I
Additional Action. Taken :'s;
Suppression I I

EMS I I I
Other 1 00031 1
G1 Resources *
Check this box and skip this
section if an Apparatus or
Personnel form is used.

Apparatus Personnel
00031
1 -1 Check box tesource counts. _J riclude a.e eceived resources.

G2 Estimated Dollar Losses & Values
LOSSES: Required for all fires if known. Optional
for non fires. None
Property $1 LI 0001 ,1 0001 [:]
Contents $1 I I I
00014 0001 1=1
PRE-INCIDENT VALUE: .4tional
Property $1 1,1 0001,1 0001 ❑
Contents $1 I ,I
0001 ,1 0001 ❑
Completed Modules
0Fire-2
EIStructure-3
OCivil Fire Cas.-4
o Fire Serv. Cas. -5
OEMS-6
OHazMat-7
0Wildland Fire-8
0Apparatus-9
EPersonne1-10
pArson-11
Hl*CasualtiesONone
Deaths Injuries
Fire
Service
Civilian' I I I
112 Detector
Required for Confined Fires.
1 [:]Detector alerted occupants
2[:]Detector did not alert them
ULIUnknown

1.13 Hazardous Materials Release
N ONone
1 ['Natural Gas: aloe leak, no evavatoon or HazMat actoons 2 ['Propane gas: <21 lb. tank (as on hose BBQ grill)
3 El(;21.3()).2.r19: vehicle fuel tank or portable container 4 El Kerosene: fuel burning equipment or portable storage 5 0Diesel fuel/fuel oil :valuole fuel tank or portable
6 ['Household solvents: home/office spill, cleanup only 7 Dmotor oil: from engone or portable container
8 [:]]?Blialt.: from paint cans totaling < 55 gallons
O ['Other: Special Haralat actions required or spill a 55ga1., please complete the HarMat form
I Mixed Use Property
A711 Not Mixed
10 Assembly use
20 Education use
33 Medical use
40 Residential use
51 Row of stores
53 Enclosed mall
58 Bus. & Residential
59 Office use
60 ".'Industrial use
63 Military use
65 Farm use
00 "- Other mixed use
J Property Use* Structures
131 O Church, place of worship
161 0Restaurant or cafeteria
162 OBar/Tavern or nightclub
213 0Elementary school or kindergarten
215 0High school or junior high
241 ['College, adult education
311 ['Care facility for the aged
331 ['Hospital
341 O Clinic,clinic type infirmary
3421:Doctor/dentist office
361O Prison or jail, not juvenile
4190 1-or 2-family dwelling
429 O Multi-family dwelling
439 O Rooming/boarding house
449 D Commercial hotel or motel
459 OResidential, board and care
464 ODormitory/barracks
519 ['rood and beverage sales
539 O Household goods,sales,repairs
579 O Motor vehicle/boat sales/repair
571 O Gas or service station
599 O Business office
615 O Electric generating plant
629 O Laboratory/science lab
700 O Manufacturing plant
819 OLivestock/poultry storage (barn)
882 ONon-residential parking garage
891 O Warehouse
981 O Construction site
984 ❑ Industrial plant yard
Outside
124 0Playground or park
655 ['Crops or orchard
669 ['Forest (timberland)
807 O
Outdoor storage area
919 ODump or sanitary landfill
931 DOpen land or field
936 ['Vacant lot
938 OGraded/care for plot of land
946 ['Lake, river, stream
951 ['Railroad right of way
960 DOther street
961 OHighway/divided highway
962 O Residential street/driveway
Lookup and enter a Property Use code only if
you have NOT checked a Property Use box:

Property Use 1900 1
1Outside or special property, I
NFIRS-1 Revision 03/11/99
03010 10/18/2022 22-0029880
K1 Person/Entity Involved IPERC WATER
Local Option Business name (if applicable) Area Code Phone Number Check This Box if
same address as
incident location.

Then skip the three
duplicate address
lines.

I I (Public works
Mr.,Ms., Mrs. First Name
110100 I Mile
Number Prefix Street or Highway
Post Office Box
ICA 1 195640
I vi
Head
Apt./Suite/Room
'City of Ione
Last Name
IIONE
City
1 DR
Street Type
I I__J
Suffix
L____J Suffix
State Zip Code
0 More people involved? Check this box and attach Supplemental Forms (NFIRS-1S) as necessary K2 Owner Same as person involved?
Then check this box and skip I I The rest of this section. L______ J - L JLocal Option Business cane (if Applicable) Check this box if
same address as
incident location.

Then skip the three
duplicate address
lines.

Mr.,Ms., Mrs. First Name
Area Code Phone Number
MI Las' game
I
Suffix
Number
Li Prefix
I Street or Highway
I u L__J Street Type Suffix
Post Office Box Apt./Suite/Room City
I I State Zip Code
L Remarks
Local Option
A walk in request from Pub Works superintendent Waklee for the fire department to use our Multi Gas monitors to check gas readings from the water at the treatment facility, due to their units reading high numbers in the Head works area and needed to confirm.

Chief 6200 contacted on duty crews and also Mule Creek Fire to respond with their monitors and double check the readings at the location.

Both Engine companies arrived and took readings from the two top vent pipes and the following readings were observed at 1300 hours
Gas Meters at the top of the head works
H2S = 1 PPM
Combustible/Explosive range 13-14 % our monitor alarms activated for explosive range at 10%
02 - 20.8 %
The crews advised Superintendent Waklee of their findings and confirmed that the PERC employees that were inside the building did not require any medical assistance or medic unit due to their head ache symptoms, none of the employees denied assistance.

The units will return on 10-19-2022 for a re check at 0645 hrs L Authorization
10703
Officer in charge ID
check Box if El 8101
same
as Officer Member making report ID
in charge.

I 'Bennett, James
Signature
'Mackey, Ken
Signature
1 1FAE
Position or rank
1 1FC
Position or rank.

I I 1 1 101 1 181 1 20221
Assignment Month Day Year
I I 1 101 18I 2022.
/Assignment Month Day Year
FD 03010 10/18/2022 22-0029880
vYYY
03010 I ICA I I 10I I 181 I 2022 I I 162 I I 22-0029880 I I 000 • * Date * Incident N=foe: * Exposure *
Complete
Narrative
Narrative:

A walk in request from Pub Works superintendent Waklee for the fire department to use our Multi Gas monitors to check gas readings from the water at the treatment facility, due to their units reading high numbers in the Head works area and needed to confirm.

Chief 6200 contacted on duty crews and also Mule Creek Fire to respond with their monitors and double check the readings at the location.

Both Engine companies arrived and took readings from the two top vent pipes and the following readings were observed at 1300 hours
Gas Meters at the top of the head works
H2S = 1 PPM
Combustible/Explosive range 13-14 % our monitor alarms activated for explosive range at 10% O2 - 20.8 %
The crews advised Superintendent Waklee of their findings and confirmed that the PERC employees that were inside the building did not require any medical assistance or medic unit due to their head ache symptoms, none of the employees denied assistance.

The units will return on 10-19-2022 for a re check at 0645 hrs Weather Conditions on scene: 80 degrees 33 % Humidity winds 3-6 MPH SUPPLEMENTAL REPORT - 10-19-2022
10-19-2022 follow up readings with Engine 6235 & Engine 5610 Time: 0652 hrs
Readings using the MSA ALTAIR 4X multi gas monitor
H2 S 20 PPM
Combustible / Explosive Level : 11 %
O2 levels 20.2 %
* Alarms activated immediately
Weather Conditions:

Temp: 61 degrees
Humidity : 43 %
Winds: SSE at 1 MPH
FD 03010 10/18/202'2: 22-0029880

DD YYYY
1 03010 I 'CAI 1 101 1 181 1 2022 1 1 162 1
* Station :ncident Date *
1 22-0029880 1 I 000 1
Incident Number * Exposure lk
Complete
Narrative
Narrative:

Dew Point: 39
Elevation: 270 ft
*** Per Public works Superintendent Waklee , the entire system was shut down and the supply side of the water pipe valve was completely closed , and all ignition sources removed or secured in the area, also the access was flagged off to prevent access, and employees advised to not enter.

Amador Health Department officer contacted and report made with Dr. Kerr at 1232 hrs, she will be making contact with Amador County Environmental health due to no reporting officer currently working at the county,with information.
per Dr Kerr's question it was confirmed that all PERC employees affected on site did not want medical attention and were advised of the workers comp and medical process if they do require at a later date.

Also it was confirmed with Dr Kerr that the city had contract staff from PERC operating the facility and were qualified state certified Operators Level 2- 3 -4 's and they were on site.

Received phone call from State of California Water Resource Board at 1350 hrs from Kenny Croyle (916) 464-4676 doing a follow up on today's findings, he was advised of our findings and explained that the area was secured from any employees and the water system shut down, no environmental or human risk at this time.

The facility will remain shut down until further notice until the incoming water has been stabilized by the staff or the supply source.

Attached is the copy of the Mule Creek Fire Department - Mutual Aid Incident report - 2- pages
Photo # 1 - Head works
Photo # 2 Head works
Photo # 3 Head works
03010 10/18/2022 22-0029880
A ,

MM DD YYYY
I 03010 1 ICA I 10 I
181 I 20221 162 I 22-0029880 I 000 Delete
❑Change
NFIRS - 9
Apparatus or
Resources
r _ * :7.57.0.1k :ncident Dare 4, Staz:on :ncident Number 4, Exposure * B Apparatus or *
Resource
Date and Times
Check if same as alarm date
Month Day Year Hour Min
Sent Number
of *
People
Use
ca,tinevca_,.. k 0tNusE irtoxirf.cgceaatceh
its main use at -.h e
Actions Taken
X
1 ID IE5610 [ Dispatch
r 1011 181 2022 12:43
I 1
suppression
EMS Arrival L____1 L____1
VA 1 1011 181 2022 112:51 I X
Type 11
Clear rt11 1 011 1811 20221 113:15 I .oA Other L____1 L____1 2 ID 1E6234
I Dispatch 0:41 101! 181 2022 112:43 1
1 Suppression
EMS
Li I___1
Type 11
Arrival rill 1 011 181 1 20221 112:51 I X
Clear rl1 1 011 1811 20221 113:15 I tIl Other L____1 L____1 3 ID 1E6235
1 I
1 L____1 L____1
Dispatch I:11 1011 181 2022 112:43 I MISuppression
• EMS
Type 11
Arrival MI 1 011 1 81 1 20221 112:51 I X
Clear El i 1011 18H 20221 113:15 I t;lOther L___1
4 I
ID 1
Suppression
EMS
Other
L____1 L___1
Dispatch Mil H [ I
Arrival I__I Li I 1 I
Type
Clear ❑Li l___1 1 1 1
❑
~1
Suppression
IIEMS
L____1
5 ID 1 i Dispatch III 11 II I I
Arrival I__11_1 I I I
Type
Clear III U 1 I Other L____1 L___1
6 ID 1 I S uppression
EMS
Other
L____1 L____1
Disatch III El 1 I
Arrival ❑LI I__I I I
Type
Clear ❑I_1 Li I 1 I L____1 L_____1
7 ID 1 i Dispatch EL_11__1 1 I I I ❑ Suppression
Arrival L 1
❑ LI LII I I I
Type I
• EMS
Clear 1_11_1II I I Other L____1 L____1
8 ID 1 I Suppression
❑ EMS
Other
L____1 L____1 Dispatch II I LI II I I I
Arrival
❑ I__[I_1 I
Type
Clear ❑Li I____1 I I I L____1
9 ID 1 i Sup L____1 L Disatch III H [ I
Arrival ❑I____II____Il I
Type I
. EMS
Clear ❑I___I Li Other L____1 L____1
Type of Apparatus or Resources
Ground Fire Suppression Marine Equipment
11 Engine
12 Truck or aerial 51 Fire boat with pump
13 52 Boat, no pump Quint
14 Tanker & pumper combination 50 Marine apparatus, other 16 Brush truck Support Equipment
17 ARF Other (Aircraft Rescue and Firefighting) 61 Breathing apparatus support 10 Ground fire suppression, other 62 Light and air unit 91 Mobile Heavy Ground Equipment 60 Support apparatus, other
92 Chief
93 HazMat 21 Dozer or plow Medical & Rescue 94 Type 22 Tractor 71 Rescue unit 95 Type 24 Tanker or tender 72 Urban Search & rescue unit 99 Privately 20 Heavy equipment, other 73 High angle rescue unit 00 Other Aircraft 75 BLS unit
41 Aircraft: fixed wing tanker 76 ALS unit NN None
42 Helitanker 70 Medical and rescue unit,other UU Undetermined 43 Helicopter
40 Aircraft, other NFIRS-9
More Apparatus?
Use Additional
Sheets
command post
officer car
unit
1 hand crew
2 hand crew
owned vehicle
apparatus/resource
Revision 11/17/98
03010 10/18/2022 22-0029880

A MM DD
1 03010 1 ICA 1 10 1 181 I 2022 1 I 162 1 I 22-0029880 I I 0001 ❑:,elete NFIRS - 10
* . . .- * Incident Date * ;ta- : Incident Number * Exposure * ❑ 'nange Personnel
B Apparatus or *
Resource
-.e . -.des I s'ed below
Date and Times
Check if same as alarm date
Month Day Year Hours/mins
Sent
X
Number
of *
People
Use
Check ONE box for each
apparatus to indicate
its main use at the
incident.

Actions Taken
List up to 4 actions
for each apparatus
and each personnel.
1 ID 1E5610 i Dispatch MI 1011 181 1 20221 112:43 I Sent Suppression Arrival Kll 1011 181 Li I 1 1 20221 112:51 1
X I 11 ❑EMS
Type 111 I Clear 1121 1011 1811 20221 113:15 I 51Other LI L___1 Personnel
ID
Name Rank or
Grade
Attend Action
X Taken
Action
Taken
Action
Taken
Action
Taken
6600A yule Creek Engine Crew
4, Personnel
2 ID IE6234 [ Dispatch 11:41 1011 181 1 20221 112 :43 Sent X 1 11 ❑Ems
51 Suppression
other
Arrival 1121 I I I I 101 1 181 1 20221 112:51
Type 11.1 Li Li Clear
►
1 11;11 1011 181 1 20221 113:15
Personnel
ID
Name Rank or
Grade
Attend Action
X Taken
Action
Taken
Action
Taken
Action
Taken
8101 `Mackey, Ken _
3 ID IE6235 [ Dispatch 11:11 I l011 181 1 20221 112:43 Sent X I 11
Suppression
GEMS
Other
Arrival 1;11 1 LI I 1011 181 1 20221 112:51
Type 111 1 I I I 1 Clear MI 1011 181 1 20221 113:15
Personnel
ID
Name Rank or
Grade
Attend Action
X Taken
Action
Taken
Action
Taken
Action
Taken
Bennett, James FAE
NFIRS-10 Revision 11/17/98
0301 13/P.3/20:2
k •-• I \, GC!, I I IOU.
(CDCR) Mule Creek
State Prison
Station: ST1
Shifts Or Platoon: A Shift
Location:
10100 Five Mile DR
Ione CA 9564O
Lat/Long:

N 38° 21' 27.44"
W 120° 57' 51.87"
Location Type: 1 - Street address
Report Completed by: Deaton , Justin
Incident Type:
400 - Hazardous condition, other
FDID: 03410
Incident #: 2O22-362
Exposure ID: 69295537
Exposure #: 0
Incident Date: 10/18/2022
Dispatch Run #: caaeuO2988O
ID: Date: 10/19/2022
Report Reviewed by: Sackett , Kevin ID: Date: 10/19/2022 Report Printed by: Sackett, Kevin ID: Date: 10/19/2022 Time: 12:54 Structure Type: Property Use: 647 - Water utility
Automatic Extinguishment System Present: Ill Detectors Present: E:l Cause of Ignition:

Aid Given or Received: Mutual aid given Primary action taken: 86 - Investigate Mutual AID Their FDID: 3010 Their State: CA Their Incident #: 029880 Losses
Property:

Contents:

Total:

Pre-Incident Values
Property:

Contents:

Total:

Civilian Injuries: 0
Civilian Fatalities: 0
Total Casualties: 0
Fire Service Injuries: O
Fire Service Fatalities: 0
Total Fire Service Casualties: O
Total # of apparatus on call: 1 Total # of personnel on call: 3 Special Studies
COVID 19 was a factor in this incident. No, COVID 19 was not a factor.

Neighboring Agencies
Agency Name: City Of Ione Fire Department
Agency ID: ION
Agency Type: Fire
NARRATIVE (1)
Narrative Title: Haz/Gas Incident
Narrative Author: Deaton, Justin
Narrative Date: 10/19/2022 09:59:05
Narrative Apparatus ID: 5610
Narrative:
dispatched
On October
by
18,
ECC
2022
Camino
@ approximately 1243 hrs. while performing my duties as, Institutional Fire Captain, I J. Deaton, was 5610 with staffing of Three.
for
Upon
a Hazardous Condition / Gas Odor @ 10100 Five Mile Dr. in Ione city limits. I responded in EReporting Party. I was assigned arrival I reported to the I.C. for assignment and simultaneously had a face to face with

20.4%, CO 0, H2S 1)
to utilize a MSA Altair 4x multi gas detector in the affected area, (Findings: Comb/Ex 14, O2 with
triggering the detectors alarm. Upon completion of the investigation, findings, and communication without
the
incident.

RP, the I.C.

Upon
released
arrival
all units and terminated the incident @ approximately 1318 Hrs. I returned to quarters three, in quarters, and available.
at institution I notifying ECC Camino and Main Control that E-5610 was back on grounds with note
Per RP,
any
I was
situation
requested
changes.
to return to the incident location the following morning @ 0645 hrs. for further investigation and to https://secure.emergencyreporting.corninfirs/print.asp1printtype=2&printtype=3&printtype=4&printtype=5&printOption=1&printOption=2&eid=69295537 ... 1/2 lUILL, I L.04 rivi s—,S.1.1t, 1 11s...,/13 • go •-•
NARRATIVE (2)
Narrative Title: Follow Up
Narrative Author: Deaton, Justin
Narrative Date: 10/19/2022 10:04:48
Narrative Apparatus ID: 5610
Narrative:

On October 19, 2022 @ approximately 0645 hrs. while performing my duties as, Institutional Fire Captain, I J. Deaton, as requested by RP from yesterdays incident returned to Hazardous Condition/ Gas Odor @ 10100 Five Mile Dr. in Ione city limits. I responded in E-5610 with staffing of Three. Upon arrival, I had a face to face with the Reporting Party, who stated, that they had turned the affected areas equipment off yesterday after findings and recently turned the equipment back on this morning for further investigation. At this time, (weather conditions: Temp 61, Humidity 43%, Winds SSE 1, DP 39), I utilize a MSA Altair 4x multi gas detector in the affected area, (Findings: Comb/Ex 16, O2 20.8%, CO 0, H2S 18) triggering detectors alarm and showing increases from yesterdays findings. Upon completion of the investigation, findings, and communication with the RP, I exited the premises and returned to quarters without incident. Upon arrival at institution, I notified Main Control that E-5610 was back on grounds with three, returning to quarters and available.

NARRATIVE (3)
Narrative Title: Haz/GAS Incident
Narrative Author: Sackett, Kevin
Narrative Date: 10/19/2022 12:52:34
Narrative Apparatus ID: C5600
Narrative:

On October 18, 2022 @ approximately 1243 hrs. while performing my duties as, Institutional Fire Chief, I K Sackett, was dispatched by ECC Camino for a Hazardous Condition / Gas Odor @ 10100 Five Mile Dr. in Ione city limits. I responded in C- 5600 with staffing of one. Upon arrival I reported to the I.C. and simultaneously had a face to face with Reporting Party Todd Waklee) that stated that he used his gas monitor and found high readings of H2S gas. Fire Captain Deaton was assigned to utilize a MSA Altair 4x multi gas detector in the affected area, When he returned he reported reading of Comb/Ex 14, O2 20.4%, CO 0, H2S 1 the reading triggered the detectors alarm for high Combustibles/ Explosives. Upon completion of the investigation, findings, and communication with the RP, the scene was turned over to Todd Waklee Public Works Manager. The I.C. released all units and terminated the incident.

APPARATUS
Unit
Type:
5610
Engine
Suppression
No
Use:

Lights or Sirens Response Mode:
# of People 3
Alarm 10 /18/2022 12:42:00
Dispatched 10 /18/2022 12:43:00
Enroute
Arrived 10 /18/2022 12:47:00 Cancelled / / : : -- Cleared Scene 10 /18/2022 13:18:00 In Quarters / — / : In Service
Number Of People not on apparatus: 0
Member Making Report (Captain Justin Deaton):

Incident Reviewer (Chief Kevin Sackett):
https://secure.emergencyreporting.cominfirs/printasp?printtype=2&printtype=3&printtype=4&printtype=5&printOption=1&printOption=2&eid=69295537... 2/2 pr.
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EXHIBIT B
1 From: Hold, Howard@Waterboards <[email protected]> Sent: Friday, October 21, 2022 11:09 AM
To: Dan Epperson <[email protected]>
Cc: Rodney Plamondon <[email protected]>; Diane Wratten <[email protected]>; Stacy Rhoades <[email protected]>; Todd Waklee <[email protected]>; Brett Moroz <[email protected]>; Orta, Anthony@CDCR <[email protected]>; Baum, John@Waterboards <[email protected]>; Holmes, Kari@Waterboards <[email protected]>; Croyle, Kenny@Waterboards <[email protected]>; Amy Gedney <[email protected]>; [email protected]; Dominic Atlan <[email protected]>; Michael Rock <[email protected]> Subject: RE: Ione Tertiary Plant - H2S over 200 ppm

Mr. Epperson, thank you for your email.

As you are aware the Regional Water Board oversees the permitting of wastewater plants throughout the region. As part of our responsibility, we inspect various facilities for compliance. One area we look at if there are compliance concerns, like the City of Ione is facing today, are the Standard Operating Procedures that a plant follows when there is an upset. Those SOPs provide a step-by-step procedures the facility can follow during times of upset. Yesterday I sent Mr. Rock two requests for those documents. The operator should have those available at moment’s notice. If the Regional Board had those SOPs, we could easily review and understand the city’s process to resolve the issue.

The design of Preston Reservoir and the CDCR reservoirs piping are identical. The inlet to the draft pipe is at the bottom of the reservoirs. Both reservoirs store secondary treated effluent. Where in the process is hydrogen sulfide produced? Is the high hydrogen sulfide event the result of delayed extraction from Preston? Would this same condition occurred if Preston was drained first prior to CDCR sending water? The Regional Board is just trying to better understand the problems with the wastewater using laboratory samples from a certified laboratory. The city requested a comfort letter because of the expectation of hydrogen sulfide in the wastewater. The comfort letter was issued on 9 September 2022. The city knew the expectation of the Board with respect to monitoring the plant during “high hydrogen sulfide” events. Does the city have a contract in place with Perc or an environmental consulting firm to collect these samples? Please provide a date when data can be collected and results available.
2 It is responsible that you have concerns about an explosion and your workers having health effects. Has the city reached out to OSHA to report this incident? To help you, here is the list of CalOSHA sites with their phone numbers: https://www.dir.ca.gov/dosh/ca_map_counties2.pdf. They can be a resource. With your concerns about explosion, is the fire department onsite monitoring it until the threat has abated? Has the city notified the nearby residents of Castle Oaks Golf Course, or those along Five Mile Road. Isn’t there a home that sits just across the creek from the wastewater plant. Have these people been notified of the situation? If so, when? Are they receiving updates on the situation? That information should be in your emergency plan/SOP.

We all heard during the 3 October 2022 meeting with all the parties that ARSA was willing to provide pretreatment (i.e., dosing) to eliminate the problem. What is the status of that effort. ARSA seemed more than willing to do their part. Why isn’t the city receptive to their offer? With that said CDCR understood the statements made by the Executive Officer and together with ARSA they have begun to deploy water cannons to aid in the evaporation. Your point about the sludge is one that will be addressed when the water levels reach the appropriate levels. You should be aware that the City of Ione, ARSA, and the Castle Oaks Golf Course are named in the Regional Board’s permit, as well as the revised MRP. Therefore, there is a shared responsibility for compliance. All parties need to work together to find a solution. Cooperation during the plant upset is something the Regional Board will take into consideration with any future compliance action.

Looking forward to receiving the requested information. Until the situation is resolved, please have Mr. Rock provide daily updates by email. Perfect Regards,
Howard Hold, PG #7466
Senior Engineering Geologist
Title 27 and WDR Compliance and Enforcement Unit
Central Valley, Regional Water Quality Control Board
11020 Sun Center Drive, Suite 200
Rancho Cordova, CA 95670
Our office is currently teleworking. Please submit all contact by email. Thank you [email protected]
From: Dan Epperson <[email protected]>
Sent: Friday, October 21, 2022 8:56 AM
To: Hold, Howard@Waterboards <[email protected]>; Michael Rock <[email protected]>; Dominic Atlan <[email protected]>
Cc: Rodney Plamondon <[email protected]>; Diane Wratten <[email protected]>; Stacy Rhoades <[email protected]>; Todd Waklee <[email protected]>; Brett Moroz <[email protected]>; Orta, Anthony@CDCR <[email protected]>; Baum, John@Waterboards <[email protected]>; Holmes, Kari@Waterboards <[email protected]>; Croyle, Kenny@Waterboards <[email protected]>; Amy Gedney <[email protected]>; [email protected] Subject: Re: Ione Tertiary Plant - H2S over 200 ppm

3 EXTERNAL:

Mr. Hold,
Pardon my ignorance in the matters of meters and science. If our warning meters are maxing out, is the City of Ione supposed to ignore the dangers indicated? I am deeply concerned for the health and safety of our staff and operators.

We have every intention to fully comply with The Boards demands but risking the health and safety of our staff due to the negligence of our partner agencies if terrifying. The board demanded ARSA clean out the ponds in 2017. ARSA,s inaction is a major factor as to how situation has arisen to the level it has. By their own admission ARSA's contracted ponds are 30% full of sludge currently.

Sorry for my bluntness but I am worried about an explosion or other injuries from toxic gases that our systems alarms have indicated at our head works. I will check with staff ASAP regarding the lab tests and chain of custody issues. Thank you hearing my concerns.

Sincerely,
Dan Epperson
Mayor of the City of Ione

Dan Epperson
Mayor of Ione
From: Hold, Howard@Waterboards <[email protected]> Sent: Thursday, October 20, 2022 4:50:50 PM
To: Michael Rock <[email protected]>; Dan Epperson <[email protected]>; Dominic Atlan <datlan@ioneca.com> Cc: Rodney Plamondon <[email protected]>; Diane Wratten <[email protected]>; Stacy Rhoades <[email protected]>; Todd Waklee <[email protected]>; Brett Moroz <[email protected]>; Orta, Anthony@CDCR <[email protected]>; Baum, John@Waterboards <[email protected]>; Holmes, Kari@Waterboards <[email protected]>; Croyle, Kenny@Waterboards <[email protected]>; Amy Gedney <[email protected]>; [email protected] <[email protected]>
Subject: RE: Ione Tertiary Plant - H2S over 200 ppm

Mr. Rock, et. al thank you for your update that you sent to comply with the comfort letter (see attached) that was issued by our assistant executive officer on 9 September 2022. As I read your email, it appears the samples are only results from a field meter. A field meter is appropriate as a screening tool, to evaluate the situation. However, the Assistant Executive Officer required in the comfort letter a certified laboratory analyze the gas samples, using proper chain of custody procedures, when high gas levels exist.

Item 5 states: “All previous and future water quality and air samples, including a chain of custody and monitoring locations, for all samples collected to verify high hydrogen sulfide and turbidity. This shall be reported to [email protected];”
Again, the Regional Board appreciates the notifications and the updates, but when will we receive the required data from a certified laboratory using the proper chain of custody? This morning I reached out to you and request a copy of the facilities SOPs, which still have not been received. When should I expect to see those document?
Finally, anytime there is a hazardous substance released to the air, ground or water the Office of Emergency Services must be notified. Has your operator filed a report with OES. I have not seen a copy of the report come across my desk yet.

Compliance is a challenge at times, thank you for your attention to these issues.

Howard Hold, PG #7466
4 Senior Engineering Geologist
Title 27 and WDR Compliance and Enforcement Unit
Central Valley, Regional Water Quality Control Board
11020 Sun Center Drive, Suite 200
Rancho Cordova, CA 95670
Our office is currently teleworking. Please submit all contact by email. Thank you [email protected]
From: Michael Rock <[email protected]>
Sent: Thursday, October 20, 2022 3:59 PM
To: Baum, John@Waterboards <[email protected]>; Holmes, Kari@Waterboards <[email protected]>; Croyle, Kenny@Waterboards <[email protected]>; Hold, Howard@Waterboards <[email protected]>; Amy Gedney <[email protected]>; [email protected]
Cc: Dan Epperson <[email protected]>; Rodney Plamondon <[email protected]>; Dominic Atlan <[email protected]>; Diane Wratten <[email protected]>; Stacy Rhoades <[email protected]>; Todd Waklee <[email protected]>; Brett Moroz <[email protected]>; Orta, Anthony@CDCR <[email protected]>
Subject: Ione Tertiary Plant - H2S over 200 ppm

EXTERNAL:

Kari:

Today’s readings from Ione Fire Department indicate the LEL is 3% which is in compliance. However, the H2S (Hydrogen Sulfide) reading at the top of the stairs at the Headworks was 200+ ppm. The MSA ALTAIR 4X Multigas (Canary) device for reading the LEL levels only goes up to 200 ppm and the needle was maxed out. Mule Creek Fire Department data is identical to Ione Fire Department Report that is attached. I will have the Mule Creek data sent tomorrow.

Even at the bottom of the stairs of the Headworks the H2S was 134 ppm. Maximum general industry peak levels for H2S is 50 ppm. Maximum general industry ceiling limits is 20 ppm. PERC and West Yost both believe there is methane gas present.

The odor for staff at the Tertiary Plant is overwhelming and thus we cannot operate today either.

We have now received 7 formal written or phone call complaints from residents in Castle Oaks regarding the odor. Most of the residents submitting a complaint live on Shakeley Lane near the Tertiary Plant. A direct phone call I received at 8:45 am today was from Michael Politi who lives on Shakeley Lane. He said the odor was quite strong and he was not able to be in his backyard.

Michael
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DECLARATION OF MATTHEW L. GREEN
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BEST BEST &

KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson
DECLARATION OF MATTHEW L. GREEN

IN OPPOSITION TO EX PARTE

APPLICATION FOR ORDER TO MODIFY
OCTOBER 10, 2022 ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
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DECLARATION OF MATTHEW L. GREEN
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BEST BEST &

KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
I, Matthew L. Green, declare as follows:

1. I have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.

2. I am an attorney at law duly licensed to practice before all of the courts of the State of California. I am Of Counsel at Best Best & Krieger LLP, attorneys of record for Plaintiff Amador Regional Sanitation Authority (“ARSA”). As one of the attorneys for ARSA, I am familiar with the proceedings in the above-entitled action.

3. Attached as Exhibit “A” hereto is a true and correct copy of the Order and Preliminary Injunction issued by the Court on October 10, 2022.

4. Attached as Exhibit “B” hereto is a true and correct copy of the Proof of Service filed in this Court on October 13, 2022, reflecting personal service of the Order and Preliminary Injunction on Defendant City of Ione (“Ione”) on October 11, 2022, at 12:44 p.m.

5. Attached as Exhibit “C” hereto is a true and correct copy of Ione’s supplemental letter brief to the Court of Appeal, Third Appellate District filed October 11, 2022, with the attachments omitted therefrom.

6. Attached as Exhibit “D” hereto is a true and correct copy of the Court of Appeal, Third Appellate District’s order filed October 13, 2022, dismissing Ione’s first petition for writ of mandate as moot.

7. Attached as Exhibit “E” hereto is a true and correct copy of Ione’s second petition for writ of mandate filed in the Court of Appeal, Third Appellate District on October 14, 2022, with the exhibits omitted therefrom.

8. Attached as Exhibit “F” hereto is a true and correct copy of the Court of Appeal, Third Appellate District’s order filed October 18, 2022, dismissing Ione’s second petition for writ of mandate.
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DECLARATION OF MATTHEW L. GREEN
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BEST BEST &

KRIEGER LLP

ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101

9. Attached as Exhibit “G” hereto is a true and correct copy of the Declaration of Gary Ghio in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order filed in this Court on September 29, 2022, with Exhibits A through C omitted therefrom.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 25th day of October 2022, at San Diego, California. ___________________________________
MATTHEW L. GREEN

EXHIBIT A

BEST BEST & KRIEGER LLP
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28 SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway
15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-61 18
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall
Suite 1700
Sacramento. California 95814
Telephone: (916) 551-2086
Facsimile: (916) 325-4010
FILED
Superior Court of California,
County of Amaclor
10/10.2022 at 03:40:55 PM
By: B. MORRIS. Deputy Clerk
Attorneys for Plaintiff EXEMPT FROM FILING FEES PURSUANT AMADOR REGIONAL SANITATION AUTHORITY TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state agency;
and DOES I through 20, inclusive,
Defendants.
82456.00002\40760758. I - 1 -
Case No. 22-CV-12824
Judge: Hon. Renee C. Day

ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.:

Action Filed:

Trial Date:

October 10, 2022
8:30 a.m.
2 September 20, 2022
Not Set
[PROPOSED] ORDER AND PRELIMINARY INJUNCTION

RECEIVED
AMAD0R SUPERIOR COUR1
OCT 1 0 2022

BEST BEST & KRIEGER LLP
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CLERK OF THE SUPERIOR COURT
aintiff
Amador Regional Sanitation Authority ("ARSA- ) came on for hearing in Department 2 of this Court on October 10, 2022. Matthew L. Green and Frank A. Splendorio of Best Best & Krieger LLP appeared on behalf of ARSA. Margaret Long and Carolyn Walker of Prentice Long, PC and Theresa C. Barfield of Somach Simmons & Dunn appeared on behalf of Defendant City of Ione ("lone"). Having read ARSA's ex parte application for a temporary restraining order and for an order to show cause why a preliminary injunction should not issue, the memoranda and declarations filed by the parties, and having heard argument of counsel, and satisfactory evidence having been presented,
IT IS ORDERED THAT a preliminary injunction shall issue in favor of ARSA. lone and its employees and agents, and any other persons acting with or on behalf of Ione, are required to accept from ARSA 500,000 gallons of secondarily treated wastewater per day from Preston Reservoir for the next 30 days, for a total of 15 million gallons of secondarily treated wastewater over the 30-day period, pending the trial of this action or further order of this Court.

Dated: October , 2022 By:
82456.00002\40760758. 1 - 2 -

JUDGE OF THE SUPERIOR COURT
[PROPOSED] ORDER AND PRELIMINARY INJUNCTION
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I, Lisa Atwood, declare:

I am a citizen of the United States and employed in San Diego County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 655 West Broadway, 15th Floor, San Diego, California 92101. On October 10, 2022, I served a copy of the within document(s):
[PROPOSED] ORDER AND PRELIMINARY INJUNCTION
By personal service. At a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening.

By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached.

By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.

By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 1 82456.00002\40717416.1
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28 Margaret Long, Esq.

David Prentice, Esq.

Prentice Long, PC
2240 Court Street
Redding, CA 96001
Theresa C. Barfield, Esq.

Michele E. Chester, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
California Department of Corrections and
Rehabilitation
1515 S Street, Suite 314 South
Sacramento, CA 9581 1

ATTORNEYS FOR DEFENDANT CITY

OF IONE
Tel.: (530) 691-0800
Email: [email protected]
[email protected]
[email protected]
[email protected]

SPECIAL COUNSEL TO THE CITY

ATTORNEY OF IONE
Tel: (916) 446-7979
Email: [email protected]
[email protected]
Attn: Patrick Covello
Email: [email protected]
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on October 10, 2022, at San Diego, California.

Lisa Atwood
2 R2456.00002\40717416. 1

EXHIBIT B
At tor ney or Party without Attorney:

Shawn D. Hagerty, Esq. (SBN 182435)

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego. CA 92101
Telephone No: 619-525-1300
Attorney For. plaintiff
For Court Use Only
FILED

AMADOR SUPERIOR COUF
OCT 1 3 2022
Clerk of the Superior Couri
By: B. fonttRts
Ref. No. or File No.:
82456.000002/MLG
Insert name of Court. and judicial District and Branch Court:

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF AMADOR Plaintiff AMADOR REGIONAL SANITATION AUTHORITY, a California joint powers agency
Defendant: CITY OF IONE, a California municipal corporation, et al.

PROOF OF SERVICE Hearing Date: Time: Dept/Div: Cose Number:
22-cv-12824

1. At the time of service I was at least 18 years of age and not a party to this action.

2. I served copies of the ORDER AND PRELIMINARY INJUNCTION

3. a. Party served: City of lone, a California municial corporation b. Person served: Kenna Brosz, Administrative Assistant

4. Address where the party was served: 1 E Main Street. lone, CA 95640

5. /served the party:
a. by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive process for the party (1) on: Tue. Oct 11 2022 (2) at: 12:44 PM

6. Person Who Served Papers:
a. Peter Campbell (Amador County #19-006) 0
b. do FIRST LEGAL
530 B Street. Suite 1050
SAN DIEGO, CA 92101
c. (619) 231-9111
Recoverable cost Per CCP 1033.5(aX4XB)
d. The Fee for Service was: $176.26
e. I am: A Registered California Process Server

7. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Judicial Council Form
Rule 2.150.(a)&(b) Rev January 1, 2007

PROOF OF

SERVICE
(Date) (Signature)
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(15059646)
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EXHIBIT C
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SOMACH SIMMONS & DUNN

A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
500 CAPITOL MALL, SUITE 1000, SACRAMENTO, CA 95814
OFFICE: 916-446-7979 FAX: 916-446-8199
SOMACHLAW.COM
October 11, 2022
The Honorable Justice Ronald B. Robie
Acting Administrative Presiding Justice
California Court of Appeal, Third Appellate District
914 Capitol Mall, 4th Floor
Sacramento, CA 95814
Re: City of Ione v. The Superior Court of Amador County, Respondent; Amador Regional Sanitation Authority, Real Party in Interest
C097044 (Amador County Super. Ct. No. 22CV12824)
PETITIONERS’ STATUS UPDATE AND SUPPLEMENTAL LETTER
BRIEF
To the Honorable Justice Robie and the California Court of Appeal, Third Appellate District:

Pursuant to this Court’s October 4, 2022 Order, the City of Ione (Ione) respectfully submits this status update following the October 10, 2022 hearing before the Amador County Superior Court (Superior Court), accompanied by a supplemental letter brief to address whether the above-referenced matter is moot.

Please note the law firm of Somach Simmons and Dunn, LLC was recently retained to represent Ione in the above-referenced matter. To that end, a notice of appearance by attorneys Theresa C. Barfield and Michelle E. Chester with Somach Simmons and Dunn, LLC, on behalf of Petitioner Ione, is filed concurrently herewith.

I. Status Update
Ione’s September 30, 2022 Petition for Extraordinary Writ of Mandate (Petition) arises from the Superior Court’s September 29, 2022 order issuing a temporary restraining order (TRO) requiring Ione to accept secondarily treated wastewater from real party in interest Amador Regional Sanitation Authority (ARSA). Ione’s Petition sought, in pertinent part, an immediate stay of the TRO and the issuance of a peremptory or alternative writ of mandate, directing the Superior Court to deny the TRO. This Court stayed the TRO on October 4, 2022, pending the order to show cause hearing set before the Superior Court on October 10, 2022.

At the October 10, 2022 hearing, the Superior Court granted a preliminary injunction in favor of ARSA, requiring Ione to “accept from ARSA 500,000 gallons of secondarily treated wastewater per day from Preston Reservoir for the next 30 days, for a total of 15 Document received by the CA 3rd District Court of Appeal.

The Honorable Justice Robie and the California Court of Appeal, Third Appellate District Re: City of Ione v. The Superior Court of Amador County C097044 (Amador County Super. Ct. No. 22CV12824)
PETITIONERS’ STATUS UPDATE AND SUPPLEMENTAL LETTER BRIEF October 11, 2022

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million gallons of secondarily treated wastewater over the 30-day period, pending the trial of this action or further order of this Court.” (See October 10, 2022 Order of the Superior Court, attached hereto as Attachment 1 (PI Order).) A copy of the Superior Court’s October 10, 2022 Minute Order (Minute Order) is also attached hereto for the Court’s reference (Attachment 2).

II. Supplemental Brief
A. Summary of Argument
It is Ione’s position that the Petition is not moot.

Writ relief remains necessary because the Superior Court, in issuing the PI Order, abused its discretion by failing to reasonably consider the irreparable harm to the citizens of Ione and the surrounding areas, related to the immediate health and safety concerns at issue.

The Superior Court further abused its discretion in finding that ARSA satisfied the legal standard to support issuance of a preliminary injunction, including that ARSA is likely to prevail on the underlying merits of its complaint. ARSA’s complaint, as it relates to injunctive relief, remains deficient on its face and, as pled, must fail as a matter of law.

The Superior Court failed to address its reasoning to support the issuance of the PI Order at the hearing, or by way of expressing its findings in its Minute Order, or in the final PI Order. Ione understands that a transcript of the proceeding will not be available for several weeks.

B. Irreparable Harm to Ione Citizens Is Imminent Without Judicial Relief The primary issue in the Petition before this Court is Ione’s interest in protecting the health and safety of the citizens of Ione and the surrounding area. (See Petition at Section II.A., pp. 9-11.) Immediate relief is necessary from the Superior Court’s PI Order because it presents an imminent risk of irreparable harm to those individuals. Ione has no legal recourse at the Superior Court to address these immediate concerns. (Corona Unified Hospital Dist. v.

Superior Court of Riverside County (1964) 61 Cal.2d 846, 850 [issuing a writ where there appeared to be “no other plain, speedy, and adequate remedy in the ordinary course of law”] emphasis omitted.) This Court’s review is necessary because “the issues presented are of great public importance and must be resolved promptly.” (County of Sacramento v. Hickman, (1967) 66 Cal.2d 841, 845.)
Unfortunately, the quality of water delivered by ARSA for treatment by Ione poses serious and ongoing threats to the health and safety of local residents. Requiring Ione to accept ARSA water from Preston Reservoir has and will continue to result in violations of Ione’s permit limitations established by the Central Valley Regional Water Quality Control Board (Regional Board). The Regional Board has a statutory obligation in prescribing Document received by the CA 3rd District Court of Appeal.

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requirements applicable to Ione’s treatment of wastewater. (Wat. Code, § 13523.) Ione’s permitted treatment of domestic wastewater in accordance with the Regional Board’s adopted water reclamation requirements ensures its compliance with established limitations intended “to protect the public health, safety, or welfare . . . .” (Ibid.) The Superior Court’s PI Order does not reflect any consideration of the public safety concerns Ione presented. Ione has no assurances from ARSA that the water delivered from Preston Reservoir will not result in exceedances of coliform bacteria and hydrogen sulfide in addition to resulting nuisance smells that threaten the health and safety of Ione’s residents.

Accordingly, since the primary and overarching issue in Ione’s Petition has not been resolved, and is now even more critical given the Superior Court’s issuance of the PI Order, it is Ione’s position that the Petition is not moot.

C. The Superior Court Abused Its Discretion In Finding that ARSA Satisfied the Standard for a Preliminary Injunction
A trial court must evaluate two factors when deciding whether or not to issue a restraining order: (1) “the likelihood that the plaintiff will prevail on the merits at trial”; and (2) “the interim harm that the plaintiff is likely to sustain if the [restraining order] were denied as compared to the harm that defendant is likely to suffer if the [order] were issued.” (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251, quoting IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.)
Regarding the first factor, the Superior Court was required to address the “likelihood that the plaintiff will prevail on the merits at trial.” (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70.) ARSA’s complaint, however, is legally deficient on its face in that ARSA fails to plead a cause of action for breach of contract to support a request for injunctive relief. 1 Instead, ARSA relies solely on a cause of action for injunctive relief, which is not legally sustainable. (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356, quoting Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.”)] Moreover, even if breach of contract is adequately pled, Ione contests that a valid contract exists in the first instance. In either scenario, the Superior Court abused its discretion by issuing the PI Order in a conclusory fashion, without any reference to its reasoning or specific findings of fact to support the assumption that ARSA met its burden to support the issuance of a preliminary injunction.

Moreover, regarding the second factor, the balancing of immediate harms weighs so heavily in favor of Ione, that the Superior Court’s granting of the PI Order exceeds the bounds of reason. (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251, citing IT Corp. v. County of Imperial, supra 35 Cal.3d at pp. 69-70.) [a trial court 1 For reference, a copy of the Summons and Complaint filed by ARSA with the superior court is attached hereto as Attachment 3.

Document received by the CA 3rd District Court of Appeal.

Page 4 ends

abuses its discretion when it exceeds the bounds of reason or contravenes uncontradicted evidence].) ARSA claims that the mere possibility of a 100-year storm supersedes the actual and current public health crisis that it is creating for the residents of Ione. This is untenable.

III. Conclusion & Short Term Requested Relief
As set forth hereinabove, the primary issue in the Petition before this Court is Ione’s interest in protecting the health and safety of the citizens of Ione and the surrounding area.

That issue remains unresolved and, on that basis, it is Ione’s position that the matter is not moot. However, Ione is now faced with the PI Order, instead of the temporary restraining order addressed in the pending Petition, and the PI Order raises additional concerns and new arguments specific to the Superior Court’s actions, as generally outlined herein.

Accordingly, Petitioner respectfully requests leave to file an Amended Petition in the currently pending matter (C097044) in lieu of initiating a new petition for writ of mandate matter tethered solely to the PI Order. An Amended Petition would serve to align the facts and legal arguments with the current state of events after the October 10, 2022 hearing and issuance of the PI Order. Upon the Court’s leave, Ione proposes to file an Amended Petition on or before October 14, 2022.

To that extent the Court determines that dismissing the current Petition (C097044) as moot is the preferred course of action, Petitioner will promptly proceed with filing a new petition for writ of mandate arising from the PI Order.

In the interim, Petitioner respectfully requests that this Court issue an immediate stay of the PI Order pending disposition of this matter by this Court.

Respectfully submitted,
SOMACH, SIMMONS AND DUNN, P.C.

Theresa C. Barfield
Michelle E. Chester
Attorneys for Petitioner City of Ione
[Enclosures]
Document received by the CA 3rd District Court of Appeal.

EXHIBIT D
\
IN THE
Court of Appeal of the State of California

IN AND FOR THE

THIRD APPELLATE DISTRICT

CITY OF IONE,
Petitioner,
v.

THE SUPERIOR COURT

OF AMADOR COUNTY,
Respondent;

AMADOR REGIONAL

SANITATION AUTHORITY,
Real Party in Interest.

C097044
Amador County
No. 22CV12824
BY THE COURT:

The petition for writ of mandate is denied as moot. The stay previously issued by this court on October 4, 2022, is vacated.

ROBIE, Acting P.J.
---------------------------------
cc: See Mailing List
ROBIE A ti
Court of Appeal, Third Appellate District
Andrea K. Wallin-Rohmann, Clerk
Electronically FILED on 10/13/2022 by B. Haskett, Deputy Clerk V
IN THE
Court of Appeal of the State of California

IN AND FOR THE

THIRD APPELLATE DISTRICT

MAILING LIST

Re: City of Ione v. The Superior Court of Amador County C097044
Amador County Super. Ct. No. 22CV12824
Copies of this document have been sent by mail to the parties checked below unless they were noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is not checked below, service was not required.

Margaret Long
Prentice Long, PC
2240 Court Street
Redding, CA 96001

Theresa C. Barfield
Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

Michelle Emma Chester
Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

Shawn David Hagerty
Best Best & Krieger, LLP
655 West Broadway, 15th Floor
San Diego, CA 92101

Matthew Lawrence Green
Best Best & Krieger, LLP
655 West Broadway, 15th Floor
San Diego, CA 92101

Frank Allen Splendorio
Best Best & Krieger, LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814

Amador Superior Court
500 Argonaut Lane
Jackson, CA 95642

EXHIBIT E

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT
CITY OF IONE, a California municipal
corporation,
Petitioner,
v.

THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA FOR THE

COUNTY OF AMADOR,
Respondent,

AMADOR REGIONAL SANITATION
AUTHORITY, A California joint powers
agency,
Real Party in Interest.

Case No.

Amador County Superior Court No. 22CV12824
Honorable Renee C. Day, Judge (209) 257-2603
PETITION FOR EXTRAORDINARY WRIT OF MANDATE; APPLICATION FOR TEMPORARY STAY; MEMORANDUM OF POINTS AND
AUTHORITIES, EXHIBITS AND DECLARATION OF THERESA C.

BARFIELD IN SUPPORT THEREOF
IMMEDIATE STAY REQUESTED:

OCTOBER 11, 2022 ORDER AND PRELIMINARY INJUNCTION
THERESA C. BARFIELD (SBN 185568)
MICHELLE E. CHESTER (SBN 300632)

SOMACH SIMMONS & DUNN
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone: (916) 446-7979 / Facsimile: (916) 446-8199
Email: [email protected]
Email: [email protected]
Attorneys for Petitioner City of Ione
(Additional Counsel on following Page)
1 Document received by the CA 3rd District Court of Appeal. 2 MARGARET LONG (SBN 227176)

PRENTICE LONG, PC
2240 Court Street
Redding, CA 96001
Telephone: (530) 691-0800 / Facsimile: (530) 691-0700
[email protected]
Attorneys for Petitioner City of Ione
Document received by the CA 3rd District Court of Appeal. 3 CERTIFICATE OF INTERESTED PARTIES
Pursuant to rules 8.208 and 8.488 of the California Rules of Court, Petitioner City of Ione hereby certifies, through its undersigned counsel, that there are no interested entities or persons that must be listed in this certificate.

Respectfully submitted,

SOMACH SIMMONS & DUNN
A Professional Corporation
Dated: October 14, 2022 By:

Theresa C. Barfield
Michelle E. Chester
Attorneys for Petitioner City of Ione
Document received by the CA 3rd District Court of Appeal. 4 TABLE OF CONTENTS
Page(s)
CERTIFICATE OF INTERESTED PARTIES .........................................................4 PETITION .................................................................................................................8 INTRODUCTION .....................................................................................................8 PETITION FOR WRIT OF MANDATE JURISDICTION .......................................8 AUTHENTICITY OF EXHIBITS...........................................................................10 PARTIES..................................................................................................................12 PROCEDURAL HISTORY.....................................................................................12 A. The Underlying Complaint ................................................................12 B. The Temporary Restraining Order.....................................................13 C. The Preliminary Injunction ................................................................13 APPEAL IS AN INADEQUATE REMEDY............................................................ 14 APPLICATION FOR AN IMMEDIATE STAY.....................................................14 PRAYER FOR RELIEF...........................................................................................15 MEMORANDUM OF POINTS AND AUTHORITIES.........................................16 I. STANDARD OF REVIEW ..........................................................................16 II. ARGUMENT ................................................................................................16 A. Irreparable Harm to Ione Citizens is Imminent
Without Judicial Relief ......................................................................16 B. It is an Abuse of Discretion to Mandate Conduct
by Ione that Will Necessarily Cause Ione to
Immediately Violate Permits Issued by the
State’s Regional Board.......................................................................18 Document received by the CA 3rd District Court of Appeal. 5 C. The Superior Curt Abused Its Discretion in
Ruling that ARSA Satisfied the Standard for
a Preliminary Injunction.....................................................................19 III. CONCLUSION .............................................................................................20 DECLARATION OF THERESA C. BARFIELD ...................................................21 CERTIFICATE OF WORD COUNT ......................................................................25 PROOF OF SERVICE .............................................................................................26 EXHIBITS A – R .....................................................................................................27 Document received by the CA 3rd District Court of Appeal. 6 TABLE OF AUTHORITIES
Page(s)
Cases
Camp v. Board of Supervisors
(1981) 123 Cal.App.3d 334 .....................................................................................19 Church of Christ in Hollywood v. Superior Court
(2002) 99 Cal.App.4th 1244 ..............................................................................19, 20 Corona Unified Hospital Dist. v. Superior Court of Riverside County (1964) 61 Cal.2d 846 ...............................................................................................16 County of Sacramento v. Hickman
(1967) 66 Cal.2d 841 ...............................................................................................17 IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63 ...........................................................................................19, 20 Paramount Pictures Corp. v. Davis
(1964) 228 Cal.App.2d 827
Byington v. Superior Court
(1939) 14 Cal.2d 68............................................................................................ .......14 Upland Police Officers Assn. v. City of Upland
(2003) 111 Cal.App.4th 1294 ..................................................................................16 Constitutions
California Constitution
Art. VI section 10.....................................................................................................10 Statutes
Code of Civil Procedure sections
533 ...........................................................................................................................16 1085 .........................................................................................................................10 Water Code, section
13523 .......................................................................................................................18 Document received by the CA 3rd District Court of Appeal. 7 Court Rules
California Rule of Court

8.208 ..........................................................................................................................3

8.488 ..........................................................................................................................3

8.486(b)(3)(A)....................................................................................................21, 22 Document received by the CA 3rd District Court of Appeal. 8 PETITION

INTRODUCTION
On October 10, 2022 the Amador County Superior Court (Superior Court) granted a preliminary injunction against the City of Ione (Ione) and in favor of Amador Regional Sanitation Authority (ARSA). (PI Order). In doing so, the Superior Court mandates that Ione “accept from ARSA 500,000 gallons of secondarily treated wastewater per day from Preston Reservoir for the next 30 days, for a total of 15 million gallons of secondarily treated wastewater over the 30-day period, pending the trial of this action or further order of this Court.” Exhibits P (Minute Order)-Q (Formal Order).

Petitioner files this Petition for Extraordinary Writ of Mandate (Petition) because a post-judgment appeal of the Superior Court’s PI Order would not provide effective relief. The PI Order presents an imminent risk of irreparable harm to Ione and its citizens. The requested relief is based upon the following, discussed in more detail hereinbelow:

1. The Superior Court, in issuing the PI Order, abused its discretion by failing to reasonably consider the irreparable harm to the citizens of Ione and the surrounding areas, related to the immediate health and safety concerns at issue, including its failure to adequately consider reasonable alternatives that would serve to protect the health and safety of the citizens while also addressing the concerns raised by ARSA. The Superior Court’s PI Order, Document received by the CA 3rd District Court of Appeal. 9 however, unreasonably favors the alleged harms to ARSA over those of Ione, in the face of a proposed solution that would protect both parties.

2. The Superior Court, in issuing the PI Order, abused its discretion by issuing an order that will operate to violate existing permits issued by the Regional Water Quality Control Board (Regional Board) to both Ione and its wastewater system operator. As such, and absent immediate relief, Ione is in a position of immediately complying with the PI Order, which will violate the Regional Board permits, and leave Ione at risk of facing a potential enforcement action with associated fines and penalties by another state entity. If Ione complies with the Regional Board permits, it must necessarily violate the PI Order which would likely subject Ione to potential sanctions by the Superior Court. It was an abuse of discretion to construct an injunction that requires Ione to violate the Regional Board permits in order to be in compliance with the PI Order.

3. The Superior Court further abused its discretion in finding that ARSA satisfied the legal standard to support issuance of a preliminary injunction, including that ARSA is likely to prevail on the underlying merits of its complaint. ARSA’s complaint, as it relates to injunctive relief, remains deficient on its face and, as pled, must fail as a matter of law.

Document received by the CA 3rd District Court of Appeal. 10 The Superior Court failed to address its reasoning to support the issuance of the PI Order at the hearing, or by way of expressing its findings in its Minute Order, or in the final PI Order, further exacerbating the concerns at issue herein. Exhibits P-Q.1

PETITION FOR WRIT OF MANDATE JURISDICTION
This Court has jurisdiction. (Cal. Const. Art. VI section 10; Code of Civil Procedure Section 1085)

AUTHENTICITY OF EXHIBITS
All exhibits accompanying this Petition are true and correct copies of original documents. All documents are on file with the respondent Superior Court.

Exhibit A: Amador Regional Sanitation Authority Memorandum in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order
Exhibit B: Declaration of Matthew L. Green in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order
Exhibit C: Declaration of Donald Brown in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order
Exhibit D: Declaration of Steven Corey Stone in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order Exhibit E: Declaration of Gary Ghio in Support of Ex Parte Application for Order to Show Cause Temporary Restraining Order
1 Ione understands that a transcript of the proceeding will not be available for several weeks. Declaration of Theresa C. Barfield, filed concurrently herewith.

Document received by the CA 3rd District Court of Appeal. 11 Exhibit F: Declaration of Amy Gedney in Support of Ex Parte Application for Order to Show Cause and Temporary Restraining Order
Exhibit G: Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction
Exhibit H: City of Ione’s Opposition to Ex Parte Application for Order to Show Cause and Temporary Restraining Order; Memorandum of Points and Authorities
Exhibit I: Declaration of Michael Rock in Support of Opposition to Ex Parte Application for Order to Show Cause and Temporary Restraining Order Exhibit J: Declaration of Brett Moroz in Support of Opposition to Ex Parte Application for Order to Show Cause and Temporary Restraining Order Exhibit K: Declaration of Margaret Long in Support of Opposition to Ex Parte Application for Order to Show Cause and Temporary Restraining Order Exhibit L: Amador Regional Sanitation Authority Reply Memorandum in Support of Issuance of Preliminary Injunction
Exhibit M: Supplemental Declaration of Matthew L. Green in Support of Issuance of Preliminary Injunction
Exhibit N: Supplemental Declaration of Ghio, P.E. in Support of Issuance of Preliminary Injunction
Exhibit O: Supplemental Declaration of Donald Brown in Support of Issuance of Preliminary Injunction
Document received by the CA 3rd District Court of Appeal. 12 Exhibit P: Superior Court’s October 10, 2022 Minute Order Re Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction Exhibit Q: Superior Court’s October 10, 2022 Order and Preliminary Injunction Exhibit R: Amador Regional Sanitation Authority Complaint for Injunctive and Declaratory Relief

PARTIES

1. The Petitioner is the City of Ione (Ione) and the defendant in the underlying action, Amador Regional Sanitation Authority v. City of Ione, California Department of Corrections and Rehabilitation, Amador County Superior Court Case Number 22CV12824.

2. The Respondent is the Amador County Superior Court (Superior Court), the Honorable Renee C. Day.

3. The real party in interest is Amador Regional Sanitation Authority (ARSA), and the plaintiff in the underlying action.

PROCEDURAL HISTORY
A. The Underlying Complaint
On September 21, 2022, ARSA filed a Complaint against Ione and the California Department of Corrections and Rehabilitation (CDCR) in the Superior Court. ARSA alleges a cause of action for injunctive relief, and one for declaratory relief against Ione. Exhibit R, 9:21-10:8; 11:1-18. Although ARSA alleges the existence of a contract in its general allegations, it does not allege an independent and distinct cause of action for “breach of contract”, setting forth the elements of the cause Document received by the CA 3rd District Court of Appeal. 13 of action with supporting facts, including damages. Exhibit R. ARSA’s complaint seeks preliminary and permanent injunctive relief restraining Ione from refusing to accept ARSA’s secondarily treated wastewater from Preston Reservoir and for a judicial determination and declaration that Ione is obligated to accept such water.

Exhibit R 11:21-24; 12:1-3.

B. The Temporary Restraining Order
ARSA filed an ex parte application for a temporary restraining order (TRO) on September 28, 2022 to compel Ione to accept secondarily treated wastewater for a period of 30 days. Exhibits A-F. ARSA claimed that Ione must accept wastewater pursuant to a 2007 contract. Exhibit A.

The Superior Court granted ARSA’s ex parte TRO application on September 29, 2022, ordering Ione to accept secondarily treated wastewater from ARSA in the amount of 500,000 gallons per day for thirty days. Exhibit G. The Order was issued solely on the basis of ARSA’s papers. Ione filed a Petition for Extraordinary Writ of Mandate on September 30, 2022 (Case No. C097044). 2 This
Court stayed the TRO on October 4, 2022, pending the order to show cause hearing set before the Superior Court on October 10, 2022.

C. The Preliminary Injunction
Ione filed its opposition brief and supporting papers, responsive to ARSA’s ex parte application, on October 5, 2022. Exhibits H-K. There, Ione states that its 2007 2 Case No. C097044 addressed the 9/29/22 TRO. This court dismissed the petition as moot on October 13, 2022.

Document received by the CA 3rd District Court of Appeal. 14 contract ARSA terminated on July 31, 2022, and that Ione cannot continue to process wastewater from ARSA due to the compromised quality of the water, which would immediately endanger the health and safety of its citizens, as well as violate state-issued permits. Exhibits H-K. ARSA submitted a reply brief, including three supplemental declarations, on October 7, 2022. Exhibits L-O.

At the October 10, 2022 hearing, the Superior Court granted a preliminary injunction in favor of ARSA (PI Order), requiring Ione to “accept from ARSA 500,000 gallons of secondarily treated wastewater per day from Preston Reservoir for the next 30 days, for a total of 15 million gallons of secondarily treated wastewater over the 30-day period, pending the trial of this action or further order of this Court.” Exhibits P (Minute Order)-Q (Formal Order).

APPEAL IS AN INADEQUATE REMEDY
Writ relief is necessary because the Superior Court’s order immediately interferes with the health and safety of the citizens of Ione and the surrounding areas.

APPLICATION FOR AN IMMEDIATE STAY
Petitioner requests that the Court issue an immediate stay of the Superior Court’s PI Order. (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835 [“It is well settled that an injunction mandatory in character is automatically stayed on appeal…” citing Byington v. Superior Court (1939) 14 Cal.2d 68, 70].) A stay of the Superior Court’s mandatory PI Order is necessary to preserve the status quo while this court considers the issues presented and the risk to the public.

Document received by the CA 3rd District Court of Appeal. 15 PRAYER FOR RELIEF
WHEREFORE, Petitioner City of Ione respectfully prays that this Court:

1. Immediately stay the Superior Court’s October 10, 2022 Order and Preliminary Injunction in Amador Regional Sanitation Authority vs. City of Ione, et al., Amador County Superior Court Case No. 22CV12824, pending disposition of this Petition.

2. Issue a peremptory or alternative writ of mandate or other appropriate writ directing respondent Superior Court to vacate its October 10, 2022 Order and Preliminary Injunction, and directing the Superior Court to enter an order denying ARSA’s application for order to show cause and temporary restraining order.

3. Alternatively, if a peremptory writ does not issue in the first instance, and in addition to or in lieu of any alternative writ, issue an order directing respondent Superior Court to show cause why its October 10, 2022 Order and Preliminary Injunction should not be vacated and an order denying the application for order to show cause and temporary restraining order be entered.

4. Award Petitioner its costs in this action.

5. Award such other relief as may be just and proper.

Respectfully submitted,

SOMACH SIMMONS & DUNN
A Professional Corporation
Dated: October 14, 2022 By:

Theresa C. Barfield
Michelle E. Chester
Attorneys for Petitioner City of Ione
Document received by the CA 3rd District Court of Appeal.

EXHIBIT F
\
IN THE
Court of Appeal of the State of California

IN AND FOR THE

THIRD APPELLATE DISTRICT

CITY OF IONE,
Petitioner,
v.

THE SUPERIOR COURT

OF AMADOR COUNTY,
Respondent;

AMADOR REGIONAL

SANITATION AUTHORITY,
Real Party in Interest.

C097112
Amador County
No. 22CV12824
BY THE COURT:

The petition for writ of mandate with request for stay is denied.

ROBIE, Acting P.J.
---------------------------------
cc: See Mailing List
ROBIE Actin
Court of Appeal, Third Appellate District
Andrea K. Wallin-Rohmann, Clerk
Electronically FILED on 10/18/2022 by B. Haskett, Deputy Clerk V
IN THE
Court of Appeal of the State of California

IN AND FOR THE

THIRD APPELLATE DISTRICT

MAILING LIST

Re: City of Ione v. The Superior Court of Amador County C097112
Amador County Super. Ct. No. 22CV12824
Copies of this document have been sent by mail to the parties checked below unless they were noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is not checked below, service was not required.

Theresa C. Barfield
Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

Michelle Emma Chester
Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

Margaret Long
Prentice Long, PC
2240 Court Street
Redding, CA 96001

Shawn David Hagerty
Best Best & Krieger, LLP
655 West Broadway, 15th Floor
San Diego, CA 92101

Matthew Lawrence Green
Best Best & Krieger, LLP
655 West Broadway, 15th Floor
San Diego, CA 92101

Frank Allen Splendorio
Best Best & Krieger, LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814

Amador Superior Court
500 Argonaut Lane
Jackson, CA 95642

EXHIBIT G

BEST BEST & KRIEGER LLP
y': I I. %,
1 2
4 6
7 8
9 10
1 1
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP

6.55 West Broadway, 15th Floor
San Diego. California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-61 18
FRANK A. SPLENDORIO, Bar No. 272601
frank.splendorio(albbklaw.com

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento. California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010

F LED AMADOR SUPERIOR COURT
SEP 2 9 2022

CLERK OF
By

OR COURT'
Attorneys for Plaintiff EXEMPT FROM FILING FE Es Pt IRSUANT AMADOR REGIONAL SANITATION AUTHORITY To GOVERNMENT CODE SEcrioN 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency.
v.

CITY OF IONE. a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. .I.S. Hermanson
DECLARATION OF GARY G141O IN

SUPPORT OF EX PARTE APPLICATION

FOR ORDER TO SHOW CAUSE AND

TEMPORARY RESTRAINING ORDER
Date:

Time:

Dept.:

October 3. 2022
8:30 a.m.
1 Complaint Filed: September 20, 2022
g2456.00002140728565 I - I -
DECLARATION OF GARY GHiO
1 6
7 9
10 11
1/
13 15
16 17
18 19
2()
21 22
23 24
5 26
27 28
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
AMADOR
F!LED

SUPERIOR COURT
SEP 2 9 2022

CLERK OF
By 'OR COURT'
Attorneys for Plaintiff EXEMPT FROM FILING FEES PURSUANT AMADOR REGIONAL SANITATION AUTHORITY TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
V.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

DECLARATION OF GARY GHIO IN

SUPPORT OF EX PARTE APPLICATION

FOR ORDER TO SHOW CAUSE AND

TEMPORARY RESTRAINING ORDER
Date:

Time:

Dept.:

Complaint Filed:

October 3, 2022
8:30 a.m.
1 September 20, 2022
82456.00002\40728565.1 - 1 -

DECLARATION OF GARY OHIO
1 2
3 4
5 6
7 8
9 10
1 1
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 1, Gary Ghio, declare as follows:

1. 1 have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.
i have been a licensed engineer in the State of California for 41 years with extensive experience in managing wastewater disposal systems. Since 201 1, I have been the Engineer for the Amador Regional Sanitation Authority ("ARSA"), a joint powers agency responsible for providing wastewater conveyance and disposal services to the Cities of Amador City and Sutter Creek and the County of Amador.

3. Wastewater from the City of Sutter Creek. Amador City, and the Martell community is treated by the Sutter Creek Wastewater Treatment Plant ("Sutter Creek WTP"), which is owned and operated by the City of Sutter Creek. Disinfected secondary effluent from the Sutter Creek WTP is conveyed through a series of pipelines and reservoirs, known as the - Henderson/Preston System." and ultimately to Preston Reservoir for discharge to the City of lone ("Ione'") for tertiary treatment at its Castle Oaks Water Reclamation Plant ("Castle Oaks WRP") for irrigation use at the Castle Oaks Golf Course ("Golf Course").

4. The Henderson/Preston System is owned by the California Department of Corrections and Rehabilitation ("CDCR"). Since approximately 1977, CDCR has leased the pipelines and reservoirs that make up the Henderson/Preston System to ARSA. A true and correct copy of the current lease between ARSA and CDCR. Ground lease No. L-2070 (- Lease"). executed on February 23, 2009. is attached as Exhibit "A- hereto.

5. Under the Lease. ARSA uses the Henderson/Preston System to transport water and wastewater pursuant to a separate agreement between ARSA, CDCR, and lone, identified as the Agreement to Regulate Use of Henderson/Preston Wastewater Disposal System dated September 18, 2007 ("Wastewater Agreement"), a true and correct copy of which is attached as Exhibit B to the Lease.

6. The Wastewater Agreement governs the wastewater rights and obligations among ARSA, CDCR, and lone, as well as the relationship and respective rights between ARSA, CDCR, and Ione with regard to the Henderson/Preston System. The Wastewater Agreement obligates Ione 82456.00002\40728565 I
DECLARATION OF GARY G1110
iCAIIFOR
1 4
6 7
8 9
10 11
12 13
14 15
16 17
18 19
20 21
22 23
24 25
26 27
28 1, Gary Ohio, declare as follows:

1. I have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.

2. I have been a licensed engineer in the State of California for 41 years with extensive experience in managing wastewater disposal systems. Since 2011, I have been the Engineer for the Amador Regional Sanitation Authority ("ARSA"), a joint powers agency responsible for providing wastewater conveyance and disposal services to the Cities of Amador City and Sutter Creek and the County of Amador.

3. Wastewater from the City of Sutter Creek, Amador City, and the Martell community is treated by the Sutter Creek Wastewater Treatment Plant ("Sutter Creek WTP"), which is owned and operated by the City of Sutter Creek. Disinfected secondary effluent from the Sutter Creek WTP is conveyed through a series of pipelines and reservoirs, known as the "Henderson/Preston System,- and ultimately to Preston Reservoir for discharge to the City of lone ("lone") for tertiary treatment at its Castle Oaks Water Reclamation Plant ("Castle Oaks WRP-) for irrigation use at the Castle Oaks Golf Course ("Golf Course-).

4. The Henderson/Preston System is owned by the California Department of Corrections and Rehabilitation ("CDCR"). Since approximately 1977. CDCR has leased the pipelines and reservoirs that make up the Henderson/Preston System to ARSA. A true and correct copy ofthe current lease between ARSA and CDCR. Ground lease No. L-2070 ("Lease"), executed on February 23, 2009, is attached as Exhibit "A- hereto.

5. Under the Lease, ARSA uses the Henderson/Preston System to transport water and wastewater pursuant to a separate agreement between ARSA, CDCR, and Lone, identified as the Agreement to Regulate Use of Henderson/Preston Wastewater Disposal System dated September 18, 2007 ("Wastewater Agreement"), a true and correct copy of which is attached as Exhibit B to the Lease.

6. The Wastewater Agreement governs the wastewater rights and obligations among ARSA, CDCR, and lone, as well as the relationship and respective rights between ARSA, CDCR. and lone with regard to the Henderson/Preston System. The Wastewater Agreement obligates lone 82456.00002140728565.1 - 2 -

DECLARATION OF GARY GHIO
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to accept 650 acre feet (or 21 1,803,427 gallons) of secondarily treated wastewater from Preston Reservoir annually, specifically up to 95 acre feet (or 30,955,886 gallons) of wastewater per month from April through September and up to 10 acre feet (or 3,258,514 gallons) of wastewater per month from October through March.

7. The Wastewater Agreement provides for up to 95 acre feet (or 30.955,886 gallons) of wastewater per month from April through September because those months typically fall within the irrigation season, i.e., when the wastewater is needed due to a lack of rain. The Wastewater Agreement only provides for a maximum of 10 acre feet (or 3,258,514 gallons) of wastewater per month from October through March because those months generally fall within the rainy season. i.e.. when limited water is needed for irrigation. Based on my experience since the Wastewater Agreement was entered into roughly 15 years ago, however, the respective irrigation and rainy seasons generally begin roughly one month later than what is reflected in the Wastewater Agreement, meaning the irrigation season will likely last through at least October, depending on the commencement of the rainy season.

8. The Central Valley Regional Water Quality Control Board's ("Regional Board') Water Reclamation Requirements ("WRRs-) Order No. 93-240 regulates the Castle Oaks WRP and flows thereto from the Flenderson/Preston System. WRRs Order No. 93-240 only permits wastewater treatment and reuse based on the flows to Preston Reservoir through the 1 -lenderson/Preston System. WRRs Order No. 93-240 also names only ARSA, lone, and Portlock International, Ltd. (the Golf Course) as the dischargers. lone has received no other water quality permits or perm it modifications from the Regional Board that allow lone to provide reclaimed water to the Golf Course in any manner other than through the Henderson/Preston System from Preston Reservoir. A true and correct copy of WRRs Order No. 93-240 is attached as Exhibit "B" hereto.

9. Pursuant to WRRs Order No. 93-240, ARSA can store a maximum of 229 acre feet of water (or 74,619,977 gallons) in Preston Reservoir, which lies within two feet of the freeboard (i.e.. the vertical distance between the reservoir water surface and the crest of the reservoir's embankment). Although such capacity would exceed WRRs Order No. 93-240, at 270 acre feet (or 86,350,628 gallons), the darn at Preston Reservoir will overtop and wastewater will overflow from 82456.0000214(1728565 1 - 3 -

DECLARATION OF GARY OHIO
Dwoo CSAN
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28 to accept 650 acre feet (or 211,803,427 gallons) of secondarily treated wastewater from Preston Reservoir annually, specifically up to 95 acre feet (or 30,955,886 gallons) of wastewater per month from April through September and up to 10 acre feet (or 3,258,514 gallons) of wastewater per month from October through March.

7. The Wastewater Agreement provides for up to 95 acre feet (or 30,955,886 gallons) of wastewater per month from April through September because those months typically fall within the irrigation season, i.e., when the wastewater is needed due to a lack of rain. The Wastewater Agreement only provides for a maximum of 10 acre feet (or 3,258,514 gallons) of wastewater per month from October through March because those months generally fall within the rainy season. i.e.. when limited water is needed for irrigation. Based on my experience since the Wastewater Agreement was entered into roughly 15 years ago, however, the respective irrigation and rainy seasons generally begin roughly one month later than what is reflected in the Wastewater Agreement, meaning the irrigation season will likely last through at least October, depending on the commencement of the rainy season.

8. The Central Valley Regional Water Quality Control Board's ("Regional Board') Water Reclamation Requirements ("WRRs") Order No. 93-240 regulates the Castle Oaks WRP and flows thereto from the Henderson/Preston System. WRRs Order No. 93-240 only permits wastewater treatment and reuse based on the flows to Preston Reservoir through the Henderson/Preston System. WRRs Order No. 93-240 also names only ARSA, tone, and Portlock International. Ltd. (the Golf Course) as the dischargers. lone has received no other water quality permits or permit modifications from the Regional Board that allow lone to provide reclaimed water to the Golf Course in any manner other than through the Henderson/Preston System from Preston Reservoir. A true and correct copy of WRRs Order No. 93-240 is attached as Exhibit "B" hereto.

9. Pursuant to WRRs Order No. 93-240, ARSA can store a maximum of 229 acre feet of water (or 74,619,977 gallons) in Preston Reservoir, which lies within two feet of the freeboard (i.e.. the vertical distance between the reservoir water surface and the crest of the reservoir's embankment). Although such capacity would exceed WRRs Order No. 93-240, at 270 acre feet (or 86,350,628 gallons). the dam at Preston Reservoir will overtop and wastewater will overflow from 82456.00002\40728565.1 - 3 -
DECLARATION OF GARY 0-110
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28 the Reservoir.

10. In the event Preston Reservoir spills over, or the dam does not hold, the wastewater will flood a nearby Cal Fire Academy property and then run through a nearby creek, Mule Creek, and into the residential subdivision surrounding the Golf Course. The flooding and discharge of disinfected secondary effluent into Mule Creek and onto residential property poses significant public health and water quality contamination issues, as disinfected secondary effluent contains harmful pathogens (protozoa, bacteria, and viruses), inorganic compounds, and parasites. Although the wastewater that is conveyed into Preston Reservoir through the Henderson/Preston System has undergone secondary treatment at the Sutter Creek WTP, local runoff and waterfowl contribute to the bacteria in Preston Reservoir. Attached as Exhibit "C" hereto is a true and correct copy of the Preston Dam Break Inundation Map, which depicts the areas that would be impacted with flooding of disinfected secondary effluent in the event Preston Reservoir spills over. 1 1. Based on Preston Reservoir's current amount of 115 acre feet (or 37,472.914 gallons) of wastewater, in the event of a substantial, upcoming rainy season in the region, such as one that includes a 100-year storm event like that experienced in 2017, Preston Reservoir will reach its permitted capacity in early March 2023, and will spill over in April 2023, before the end of the anticipated rainy season. Water balance is required by the Regional Board in order to verify that the system at issue has sufficient capacity for all flows under a 1 in 100 year storm season scenario.

Per Regional Board requirements, systems must be able to treat, store, and dispose of all flows under the 1 in 100 year scenario each year.

12. in the past, lone's Castle Oaks WRP has treated 1.2 million gallons (or 3.68 acre feet) per day. In order to avoid the grave consequences that will ensue in the event Preston Reservoir overflows, it is imperative that lone immediately begin accepting at least 500,000 gallons (or 0.15 acre feet) of wastewater from ARSA from Preston Reservoir. Based on my modeling, the acceptance of at least 500,000 gallons for at least 30 days should be sufficient to avoid Preston Reservoir spilling over before the end of the upcoming rainy season, depending on the extent and duration of the rainy season. The only viable option for ARSA to discharge wastewater from the Preston Reservoir is to discharge the water to the Castle Oaks WRP; no other viable options exist. 82456.00002\40728565.1 - 4 -
DECLARATION OF GARY GI11O
&BEST KRIEGER LLP
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28 the Reservoir.

11. Based on Preston Reservoir's current amount of 115 acre feet (or 37,472,914 gallons) of wastewater, in the event of a substantial, upcoming rainy season in the region, such as one that includes a 100-year storm event like that experienced in 2017, Preston Reservoir will reach its permitted capacity in early March 2023, and will spill over in April 2023, before the end of the anticipated rainy season. Water balance is required by the Regional Board in order to verify that the system at issue has sufficient capacity for all flows under a 1 in 100 year storm season scenario.

Per Regional Board requirements, systems must be able to treat, store, and dispose of all flows under the 1 in 100 year scenario each year.

12. In the past, lone's Castle Oaks WRP has treated 1.2 million gallons (or 3.68 acre feet) per day. In order to avoid the grave consequences that will ensue in the event Preston Reservoir overflows, it is imperative that lone immediately begin accepting at least 500,000 gallons (or 0.15 acre feet) of wastewater from ARSA from Preston Reservoir. Based on my modeling, the acceptance of at least 500,000 gallons for at least 30 days should be sufficient to avoid Preston Reservoir spilling over before the end ofthe upcoming rainy season, depending on the extent and duration of the rainy season. The only viable option for ARSA to discharge wastewater from the Preston Reservoir is to discharge the water to the Castle Oaks WRP, no other viable options exist. 82456.00002\40728565.1 - 4 -

DECLARATION OF GARY GHIO
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13. Ione has expressed an unwillingness to accept wastewater from Preston Reservoir on the grounds that the water is allegedly high in hydrogen sulfide, which could cause odor issues at the Castle Oaks WRP and the Golf Course, and that the water purportedly has high turbidity (i.e., cloudiness), which may cause treatment difficulties.

14. On September 9, 2022, the Regional Board issued correspondence to ARSA, Ione, and the Golf Course addressing the issue, a true and correct copy of which is attached as Exhibit "D" hereto. Among other items, the Regional Board's September 9, 2022, letter stated in no uncertain terms that "the capacity issues at Preston [Reservoir] are presenting an even greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston [Reservoir] at Ione's [Castle Oaks WRP]." I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 28th day of September 2022, at Su ree fornia. 82456.00002\40728565.1

GARY GHIO
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DECLARATION OF GARY OHIO
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28 13. lone has expressed an unwillingness to accept wastewater from Preston Reservoir on the grounds that the water is allegedly high in hydrogen sulfide, which could cause odor issues at the Castle Oaks WRP and the GolfCourse, and that the water purportedly has high turbidity (i.e., cloudiness), which may cause treatment difficulties.

14. On September 9, 2022, the Regional Board issued correspondence to ARSA, lone, and the Golf Course addressing the issue, a true and correct copy of which is attached as Exhibit "D" hereto. Among other items, the Regional Board's September 9, 2022, letter stated in no uncertain terms that "the capacity issues at Preston [Reservoir] are presenting an even greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston [Reservoir] at Ione's [Castle Oaks WRP]." I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is true and correct.

Executed this 28th day of September 2022, at Suer ree, 9fornia. 82456.00002\40728565.1

GARY GHIO
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DECLARATJON OF GARY GHIO
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GAVIN NEWSOM
cOIN RHOS
Water Boards

YANA GARCIA
rr:Nr LIMY(0,4
NVIRONMF NtAl
Central Valley Regional Water Quality Control Board
9 September 2022
Robin Peters
ARSA, Board Chairman
18 Main Street
Sutter Creek, CA 95685
RPeters cityofsuttercreek.orq
Sent via email
Dan Epperson
City of lone, Mayor
1 East Main Street
lone, CA 95640
deppersonAione-ca.com
Sent via email
-Dorninic Atlan
Castle Oaks Golf Course, Manager
1000 Castle Oaks Drive
'Ione, CA 95640
datlan ione-ca.com
Sent via email

PRESTON RESERVOIR CAPACITY AND TERTIARY PLANT NUISANCE

CONDITIONS, CITY OF IONE, AMADOR COUNTY REGIONAL OUTFALL AND

CASTLE OAKS GOLF COURSE AND DEVELOPMENT, AMADOR COUNTY
On 3 December 1993, the Central Valley Regional Water Quality Control Board (Central Valley Water Board) adopted Water Reclamation Requirement (WRRs) 93-240, which regulate the conveyance, storage, tertiary treatment, and land application of secondary treated domestic wastewater from the City of Sutter Creek Wastewater Treatment Plant.

The Amador Regional Sanitation Authority (ARSA) operates the conveyance, storage, and disposal system between the Sutter Creek wastewater treatment plant and Preston Reservoir (Preston). The system moves effluent from the Sutter Creek wastewater treatment plant to several land application areas and storage reservoirs (which includes Henderson Reservoir), eventually discharging to Preston, which is in lone. ARSA and the City of lone are both named in the WRRs 93-240 and have entered into a formal agreement' to send effluent from Preston to the City of lone Tertiary Treatment Plant (Tertiary Plant) for further treatment and reuse on Castle Oaks Golf Course (golf course).

It is Central Valley Water Board staffs understanding that the City is concerned the water coming out of Preston may be high in hydrogen sulfide, which could cause odor issues at the Tertiary Plant and on the golf course. In addition, the intake of Preston 1 The Board understands that the status of this agreement is in dispute.

MARK BRADFORD, CHAIR I PATRICK PULUPA, ESP., EXECUTIVE OFFICER 11020 Sun Center Drive #200, Rancho Cordova, CA 95870 I www.waterboards.ca.govicentralvalley 14:1110
Water Boards

GAVIN NEWSOM
30VF.NNOEt
YANA GARCIA tiEGRETASY FOR
F.NVIR0NMEN1A1 PROSEGIION
Central Valley Regional Water Quality Control Board
9 September 2022
Robin Peters
ARSA, Board Chairman
18 Main Street
Sutter Creek, CA 95685
RPeterscitvofsuttercreek.orq
Sent via email
Dan Epperson
City of lone, Mayor
1 East Main Street
lone, CA 95640
deopersonione-ca.com
Sent via email
-Dominic Atlan
Castle Oaks Golf Course, Manager
1000 Castle Oaks Drive
lone, CA 95640
datlanione-ca.com
Sent via email

PRESTON RESERVOIR CAPACITY AND TERTIARY PLANT NUISANCE

CONDITIONS, CITY OF IONE, AMADOR COUNTY REGIONAL OUTFALL AND

The Amador Regional Sanitation Authority (ARSA) operates the conveyance, storage, and disposal system between the Sutter Creek wastewater treatment plant and Preston Reservoir (Preston). The system moves effluent from the Sutter Creek wastewater treatment plant to several land application areas and storage reservoirs (which includes Henderson Reservoir), eventually discharging to Preston, which is in lone. ARSA and the City of lone are both named in the WRRs 93-240 and have entered into a formal agreementl to send effluent from Preston to the City of lone Tertiary Treatment Plant (Tertiary Plant) for further treatment and reuse on Castle Oaks Golf Course (golf course).

It is Central Valley Water Board staffs understanding that the City is concerned the water coming out of Preston may be high in hydrogen sulfide, which could cause odor issues at the Tertiary Plant and on the golf course. In addition, the intake of Preston I The Board understands that the status of this agreement is in dispute.

MARK BRADFORD, CHAIR J PATRICK PULUPA, Eso., EXECUTIVE OFFICER 11020 Sun Center Drive #200, Rancho Cordova, CA 95670 I www.waterboards.ca.gov/centralvalley ARSA, Castle Oaks Golf Course, City of lone
Amador County - 2 - 9 September 2022
water for delivery to the Tertiary Plant occurs at the bottom of the reservoir and has high turbidity which may be causing treatment difficulties. However, the Board has also been made aware that Preston and Henderson Reservoirs are at or near capacity, limiting the ability of the system to withstand higher flows that may occur during the upcoming rainy season. It is of utmost importance for these capacity issues to be resolved promptly to avert potential public health and water quality contamination issues that may occur if the system becomes unable to handle additional inflows.

One way to help alleviate the current situation is for the Board to allow the City to accept water from Preston, even though that may result in the creation of nuisance conditions, which would ordinarily be considered a violation of WRRs 93-240. With the understanding that the capacity issues at Preston are presenting an even greater risk to water quality and public health than potential nuisance concerns related to the treatment of wastewater from Preston at lone's tertiary facility, the Central Valley Water Board's Compliance and Enforcement Unit will exercise its prosecutorial discretion to not pursue enforcement of odor nuisance conditions that may occur as a result of the City's acceptance of treated wastewater from Preston at the Tertiary Plant or golf course between 9 September 2022 and 1 January 2023.

The Board expects that all dischargers named in WRRs 93-240 will continue to work cooperatively to address both the capacity concerns at Preston and to take all reasonable and appropriate steps to address any odor concerns that may arise . It is also the expectation of the Central Valley Water Board that the City of lone and ARSA provide the following information on a weekly basis while the Board is exercising its enforcement discretion:

1. Freeboard levels of Preston and Henderson Reservoirs;

2. Flow into Preston and Henderson Reservoirs;

3. Flow in gallons per day from Preston to the Tertiary Plant;

4. A description of any polymer added by added as pre-treatment to address the nuisance conditions.

5. All previous and future water quality and air samples, including a chain of custody and monitoring locations, for all samples collected to verify high hydrogen sulfide and turbidity. This shall be reported to Kari.Holmeswaterboards.ca.00v; and

6. A weekly summary of any nuisance complaints received by the City and the golf course, along with an explanation of how the complaint(s) were resolved.

This summary will include details of coordination efforts made between all dischargers to address areas of concern.

The Board is also committed to working with ARSA to resolve issues related to the operation of their facilities, which may include enhanced maintenance requirements such as the dredging of both Henderson and Preston on a regular basis to ensure that these concerns are adequately addressed in the future.

ARSA, Castle Oaks Golf Course, City of lone
Amador County - 2 - 9 September 2022
water for delivery to the Tertiary Plant occurs at the bottom of the reservoir and has high turbidity which may be causing treatment difficulties. However, the Board has also been made aware that Preston and Henderson Reservoirs are at or near capacity, limiting the ability of the system to withstand higher flows that may occur during the upcoming rainy season. It is of utmost importance for these capacity issues to be resolved promptly to avert potential public health and water quality contamination issues that may occur if the system becomes unable to handle additional inflows.

The Board expects that all dischargers named in WRRs 93-240 will continue to work cooperatively to address both the capacity concerns at Preston and to take all reasonable and appropriate steps to address any odor concerns that may arise. It is also the expectation of the Central Valley Water Board that the City of lone and ARSA provide the following information on a weekly basis while the Board is exercising its enforcement discretion:

1. Freeboard levels of Preston and Henderson Reservoirs;

2. Flow into Preston and Henderson Reservoirs;

3. Flow in gallons per day from Preston to the Tertiary Plant;

4. A description of any polymer added by added as pre-treatment to address the nuisance conditions.

6. A weekly summary of any nuisance complaints received by the City and the golf course, along with an explanation of how the complaint(s) were resolved.

This summary will include details of coordination efforts made between all dischargers to address areas of concern.

ARSA, Castle Oaks Golf Course, City of lone
Amador County - 3 - 9 September 2022
If you have questions, please contact me directly at john.B- aum(awaterboards.ca.gov or (916) 464-4839.

J,041 J. B M,
Assistant Executive Officer
cc: list on next page.

ARSA, Castle Oaks Golf Course, City of lone
Amador County - 3 - 9 September 2022
If you have questions, please contact me directly at John.Baum(amaterboards.ca.dov or (916) 464-4839.

JPI41 J. BAUM,
Assistant Executive Officer
cc: list on next page.

ARSA, Castle Oaks Golf Course, City of lone
Amador County - 4 - 9 September 2022
cc: Stacey Rhodes, City of lone, lone
Diane Wratten, City of lone, lone
Thomas Reed, City of lone, lone
Dan Epperson, City of lone, lone
Dominic Atlan, Castle Oaks Golf Course, lone
Robin Peters, ARSA, Sutter Creek
Amy Gedney, ARSA, Sutter Creek
Howard Hold, Central Valley Water Board, Rancho Cordova Kenny Croyle, Central Valley Water Board, Rancho Cordova Scott Armstrong, Central Valley Water Board, Rancho Cordova Lixin Fu, Central Valley Water Board, Rancho Cordova
Amador County Dept. of Environmental Health, Jackson
Grant Scavello, USEPA, San Francisco
Jim Scully, Interested Person, lone
Jim Nevin, Interested Person, lone
Andrew Packard, Packard Law Offices, Petaluma
Will Carlon, Packard Law Offices, Petaluma
Erica Maharg, ATA Law Group, Oakland
Jack Mitchell, Ledger Dispatch, Jackson
Jennifer Buckman, Bartkiewicz, Kronick & Shanahan, APC, Sacramento Sally Baron, Interested Person, Rancho Cordova
Virginia Silva, Interested Person, lone
David Anderson, Interested Person, Mokelumne Hill
ARSA, Castle Oaks Golf Course, City of lone
Amador County - 4 - 9 September 2022
cc: Stacey Rhodes, City of lone, lone
Diane Wratten, City of lone, lone
Thomas Reed, City of lone, lone
Dan Epperson, City of lone, lone
Dominic AtIan, Castle Oaks Golf Course, lone
Robin Peters, ARSA, Sutter Creek
Amy Gedney, ARSA, Sutter Creek
Howard Hold, Central Valley Water Board, Rancho Cordova Kenny Croyle, Central Valley Water Board, Rancho Cordova Scott Armstrong, Central Valley Water Board, Rancho Cordova Lixin Fu, Central Valley Water Board, Rancho Cordova
Amador County Dept. of Environmental Health, Jackson
Grant Scavello, USEPA, San Francisco
Jim Scully, Interested Person, lone
Jim Nevin, Interested Person, lone
Andrew Packard, Packard Law Offices, Petaluma
Will Canon, Packard Law Offices, Petaluma
Erica Maharg, ATA Law Group, Oakland
Jack Mitchell, Ledger Dispatch, Jackson
Jennifer Buckman, Bartkiewicz, Kronick & Shanahan, APC, Sacramento Sally Baron, Interested Person, Rancho Cordova
Virginia Silva, Interested Person, lone
David Anderson, Interested Person, Mokelumne Hill

BEST BEST &

KRIEGER LLP
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28 SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT TO
GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

DECLARATION OF STEVEN COREY

STONE IN OPPOSITION TO EX PARTE

APPLICATION FOR ORDER TO MODIFY
OCTOBER 10, 2022 ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
82456.00002140797478.1 - 1 -
DECLARATION OF S !EVEN COREY STONE

BEST BEST &

KEGER LLP
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shawn. hagerty@bbklaw. com
MATTHEW L. GREEN, Bar No.
matthew. green@bbklaw. com

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-61 18

EXEMPT FROM FILING FEES PURSUANT TO
GOVERNMENT CODE SECTION 6103
Case No. 22CY12824
Judge: Hon. J.S. Hermanson

DECLARATION OF STEYEN COREY

STONE IN OPPOSITION TO EX PARTE

APPLICATION FOR ORDER TO MODIFY
OCTOBER IO,2O22 ORDER AND

PRELIMINARY INJUNCTTON
Date:

Time: Dept.: I
Complaint Filed: September 2A, 2022
182435
227904
FRA.M A. SPLENDORIO, Bar No. 2726A1
&ank. splendorio@bbklaw. com

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 958 14
Telephone: (916)325-4000
Facsimile: (916) 325-4UA
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AU-THORITY

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
ageacy,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR
824s6.00002\407 97 47 8.1

DECLARATION OF STEVEN COREY STONE
1 BEST BEST &

KRIEGER LLP
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28 I, Steven Corey Stone, declare as follows:

1. I have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.

2. Since 2011, I have been the primary Operator of the Amador Regional Sanitation Authority ("ARSA"), a joint powers agency responsible for providing wastewater conveyance and disposal services to the Cities of Amador City and Sutter Creek and the County of Amador.

3. As ARSA's primary Operator, I am responsible for overseeing the operation and maintenance of the Henderson/Preston System, which includes, but is not limited to, oversight over three reservoirs (Henderson Reservoir, Preston Forebay, and Preston Reservoir) and the water balances therein in order to ensure compliance with all requirements imposed by the Central Valley Regional Water Quality Control Board, the California state agency who regulates wastewater discharges in the area.

4. On October 10, 2022, the Court issued a preliminary injunction ordering Ione to immediately accept 500,000 gallons of wastewater per day from Preston Reservoir for 30 days, a copy of which I understand was personally served on Ione midday on October 11, 2022. Since then, Ione has only accepted water from Preston Reservoir from October 14, 2022, through October 18, 2022. During that period of time, the water level at Preston Reservoir dropped from approximately 113.5 acre feet to roughly 108.4 acre feet, a decrease of approximately 5.1 acre feet, or 1.66 million gallons.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 24th day of October 2022, at Sutter Creek, California. "8t11-)-f-AeN C

STEVEN COREY STONE
82456.00002\40797478.1 - 2 -

DECLARATION OF STEVEN COREY STONE

BESTBEST &
ruBGIlR LLP
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1. I have personal knowledge of the following facts, and if called to testify, I would and could testifiz competently thereto.

2. Since 2077,I have been the primary Operator of the Amador Regional Sanitation Authority ("ARSA"), a joint powers agency responsible for providing wastewater conveyance and disposal services to the Cities of Amador City and Sutter Creek and the County of Amador.

4. On October 10,2022, the Court issued a preliminary injunction ordering Ione to immediately accept 500,000 gallons of wastewater per day from Preston Reservoir for 30 days, a copy of which I understand was personally served on Ione midday on October 11,2022. Since then, Ione has only accepted water from Preston Reservoir from October 14, 2022, through October 18, 2022. During that period of time, the water level at Preston Reservoir dropped from approximately 113.5 acre feet to roughly 108.4 acre feet, a decrease of approximately 5.1 acre feet, or 1.66 million gallons.

I declare under penalty of per1ury under the laws of the State of California that the foregoing is true and correct.

Executed this 24'h day of October 2022, at Sutter Creek, California.

STEVEN COREY STONE
1 82456.00002\407 97 4'7 8.r

DECLARATION OF STEVEN COREY STONE
ATTACHMENT 10
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

EX PARTE APPLICATION FOR ORDER

TO SHOW CAUSE RE CONTEMPT AND

SANCTIONS
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
Plaintiff Amador Regional Sanitation Authority applies for an order requiring Defendant City of Ione (“Ione”) to show cause why it should not be held in contempt of this Court’s October 10, 2022, order and preliminary injunction (“Order”) pursuant to Code of Civil Procedure section 1211, and why money sanctions in the amount of fifteen hundred dollars ($1,500) per day should not be imposed against it pursuant to Code of Civil Procedure section 177.5.

The application for an order to show cause (“OSC”) regarding contempt is made on the grounds that the Order is a valid order, Ione has actual knowledge of the Order, Ione is able to comply with the Order, and Ione has willfully disobeyed the Order. The application for an OSC regarding sanctions is made on the grounds that Ione has violated the Order, and it has done so without good cause or substantial justification.

This application is based upon the memorandum, the declarations of Amy Gedney and Matthew L. Green, and the records and files in this action.

Pursuant to the California Rules of Court, rule 3.1202, subdivision (a), Ione is represented by Theresa C. Barfield ([email protected]) and Michelle E. Chester ([email protected]) of Somach Simmons & Dunn, 500 Capital Mall, Suite 1000, Sacramento, CA 95814, (916) 446-7979, and by David A. Prentice ([email protected]), Margaret Long ([email protected]), and Carolyn Walker ([email protected]) of Prentice Long, PC, 2240 Court Street, Redding, CA 96001, (530) 691-0800. Defendant California Department of Corrections and Rehabilitation is represented by Adam K. Guernsey ([email protected]) of Harrison Temblador Hungerford & Guernsey, 2801 T Street, Sacramento, CA 95816, (916) 228-4221. Pursuant to the California Rules of Court, rule 3.1202, subdivision (b), there have been no previous applications for similar relief.

Dated: October 25, 2022 BEST BEST & KRIEGER LLP
By:

SHAWN D. HAGERTY
MATTHEW L. GREEN
FRANK A. SPLENDORIO
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION

AUTHORITY
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ATTORNEYS AT LAW
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PROOF OF SERVICE
I, Lisa Atwood, declare:

EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT AND SANCTIONS;

MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT AND SANCTIONS;

DECLARATION OF AMY GEDNEY IN SUPPORT OF EX PARTE

APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT AND
SANCTIONS;
DECLARATION OF MATTHEW L. GREEN IN SUPPORT OF EX PARTE

APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT AND
SANCTIONS;
[PROPOSED] ORDER TO SHOW CAUSE RE CONTEMPT AND SANCTIONS 
By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below. I placed, or caused to be placed, the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.

By personal service. At ______ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening.
'iC,,,(:2To,(
82456.00002\40717416.1
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Carolyn Walker, Esq.

Margaret Long, Esq.

David Prentice, Esq.

Prentice Long, PC
2240 Court Street
Redding, CA 96001

ATTORNEYS FOR DEFENDANT CITY

OF IONE
Tel.: (530) 691-0800
Email: [email protected]
[email protected]
[email protected]
[email protected]
Theresa C. Barfield, Esq.

Michele E. Chester, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814

ATTORNEYS FOR THE CITY

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on October 26, 2022, at San Diego, California.

Lisa Atwood

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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-6118
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
500 Capitol Mall, Suite 1700
Sacramento, California 95814
Telephone: (916) 325-4000
Facsimile: (916) 325-4010
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

MEMORANDUM IN SUPPORT OF EX

PARTE APPLICATION FOR ORDER TO

SHOW CAUSE RE CONTEMPT AND

SANCTIONS
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
Plaintiff Amador Regional Sanitation Authority (“ARSA”) respectfully submits the following memorandum in support of its ex parte application for an order requiring Defendant City of Ione (“Ione”) to show cause why it should not be held in contempt of the Court’s order and preliminary injunction, and why money sanctions in the amount of fifteen hundred dollars ($1,500) per day should not be imposed against Ione.

INTRODUCTION
On October 10, 2022, the Court issued an order and preliminary injunction (“Order”) requiring Ione to immediately accept 500,000 gallons of wastewater per day from Preston Reservoir for 30 days, for a total of 15 million gallons. (Gedney Decl., Ex. A.) The Order was personally served on Ione on October 11, 2022, at 12:44 p.m. (Id., Ex. B.) Aside from a period of roughly five days from October 14 through October 18, 2022, Ione has willfully disobeyed and violated the Order. Because Ione is able to comply with the Order, and there is no good cause or substantial justification for its failure to do so, the Court should issue an order to show cause regarding both contempt and sanctions.

II.

LEGAL STANDARD
A. CONTEMPT
The elements of an indirect contempt proceeding based on disobedience of a prior court order are (1) the issuance of a valid order, (2) respondent’s actual knowledge of the order, (3) respondent’s ability to comply with the order, and (4) respondent’s willful disobedience of the order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784; see also Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159.) “When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt ….” (Code Civ. Proc., § 1211, subd. (a).) B. SANCTIONS
“The imposition of sanctions, monetary or otherwise, is within the discretion of the trial court.” (In re Woodham (2001) 95 Cal.App.4th 438, 443 [citing Moyal v. Lanphear (1989) 82456.00002\40800548.1 - 3 -
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208 Cal.App.3d 491, 501].) Code of Civil Procedure section 177.5 authorizes judicial officers to impose monetary sanctions, payable to the court, of up to fifteen hundred dollars “for any violation of a lawful court order by a person.” (Code Civ. Proc., § 177.5.) Due process, as well as the statute itself, requires that a person against whom Code of Civil Procedure section 177.5 sanctions may be imposed be given adequate notice that such sanctions are being considered, notice as to what act or omission of the individual is the basis for the proposed sanctions, and an objective hearing at which the person is permitted to address the lawfulness of the order, the existence of the violation, and the absence of good cause or substantial justification for the violation. (People v. Hundal (2008) 168 Cal.App.4th 965, 970.)
Section 177.5 defines “person” to include “a witness, a party, a party’s attorney, or both.” (Ibid.) Section 177.5 also does not require a willful violation, but merely one committed without “good cause or substantial justification,” which is to say, without a valid excuse. (Seykora v.

Superior Court (1991) 232 Cal.App.3d 1075, 1081 [quoting People v. Tabb (1991) 228 Cal.App.3d 1300, 1311].) Indeed, unlike contempt proceedings, sanction orders do not require a finding that the violator had the ability to comply with the court’s order. (Seykora, supra, 232 Cal.App.3d at p. 1084.)
III.

ARGUMENT
A. THE ORDER IS A VALID AND LAWFUL ORDER
A court must have issued a valid order to support a contempt charge against a party who has violated the terms thereof, whereas violation of a void order is not punishable as contempt. (People v. Gonzalez (1996) 12 Cal.4th 804, 808.) An order is void if “in excess of the court’s jurisdiction,” including subject matter jurisdiction, personal jurisdiction, and “the defined power of a court in any instance.” (Id. at p. 823.) The imposition of sanctions similarly requires violation of a “lawful court order.” (Code Civ. Proc., § 177.5; Tabb, supra, 228 Cal.App.3d at p. 1306.) Here, the Court issued the Order against Ione on October 10, 2022. (Gedney Decl., Ex. A.) The Order was thereafter personally served on Ione on October 11, 2022. (Id., Ex. B.) As a California superior court of unlimited jurisdiction with equity powers, it cannot be controverted 82456.00002\40800548.1 - 4 -
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that the Court has personal and subject matter jurisdiction in this matter.

B. IONE HAS KNOWLEDGE OF THE ORDER
In order to be guilty of contempt, a party subject to an order of the court must have had actual knowledge of the order’s existence. (People v. Sup. Ct. (1965) 239 Cal.App.2d 99, 104.) While personal service is not required, (ibid.), Ione was personally served with the Order on October 11, 2022. (Gedney Decl., Ex. B.) Moreover, Ione expressly informed both the Central Valley Regional Water Quality Control Board, as well as the Court of Appeal in its since-dismissed writ petition, of the Order. (Rock Decl. in Supp. of Ex Parte App. to Modify Order, Ex. 3, at p. 1; Green Decl. in Opp’n to Ex Parte App. to Modify Order, Ex. C, at pp. 1-2.) C. IONE IS AND WAS CAPABLE OF COMPLYING WITH THE ORDER AND

HAS NO VALID EXCUSE FOR FAILING TO DO SO
A party charged with contempt of a prior court order must have had the ability to comply with that order. (Koehler, supra, 181 Cal.App.4th at p. 1160.) The only excuse offered by Ione for why it could not accept wastewater from ARSA from Preston Reservoir was that gas readings taken on October 18 through 20, 2022, showed high levels of hydrogen sulfide at Ione’s water treatment plant. (Gedney Decl., ¶ 6.)
Before addressing the deficiencies in Ione’s excuse, and assuming arguendo the hydrogen sulfide condition was a valid excuse, it would only cover Ione’s noncompliance for three days – October 18 through 20, 2022. Indeed, Ione has offered no justification for its failure to comply with the Order between October 11 and 14, 2022, or since October 20, 2022. (Id., ¶¶ 5, 7.) Contempt and sanctions are thus appropriate for Ione’s noncompliance during these time periods alone.

The hydrogen sulfide condition at Ione’s treatment plant is also not a valid excuse for Ione’s violation of the Order from October 18 through 20, 2022, or any other period of time. According to an incident report, Ione’s fire department took gas readings at two top vent pipes to test the amount of hydrogen sulfide (H2S). (Supp. Chester Decl. in Supp. of Ex Parte App. to Modify Order, Ex. A.) These readings showed H2S at only 1 part per million (PPM), but detected a combustible/explosive range above the lower explosion limit (LEL) of 10% at 13-14%. (Ibid.) While Ione’s fire department’s readings showed similar results on October 19, 2022, the 82456.00002\40800548.1 - 5 -
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combustible/explosive range dropped below the LEL to only 3% on October 20, 2022. (Gedney Decl., Ex. C [“Brown Decl.”], Exs. A and B thereto.) The amount of H2S, however, increased to at least 200 PPM at that time. (Brown Decl., Ex. B.) The oxygen levels from October 18 to 20, 2022, nevertheless remained constant, at 20.8%, 20.2%, and 20.8%. (Brown Decl., Exs. A, B.) Hydrogen sulfide is a common condition that exists in sewer and wastewater systems. (Brown Decl., ¶ 5.) It is a combustible and toxic gas that forms within sewer collection systems when the organic matter in the raw sewage decomposes and is caused by the lack of oxygen in the water over longer periods of time. (Ibid.)
Setting aside the cause of the hydrogen sulfide,1 hydrogen sulfide does not generally pose a health hazard when it is properly monitored and mitigated. (Id., ¶ 6.) To address the presence of hydrogen sulfide, including at the levels detected by Ione’s fire department between October 18 and 20, 2022, ventilation blowers are typically used to force air into the confined space at high enough volumes to exchange the air to dilute the concentration to a nonhazardous level. (Ibid.) Indeed, in most cases, simply ventilating the utility access hole can reduce the levels of the gas present to a safe level for entry. (Ibid.) Hydrogen sulfide may also be treated through the use of chemicals, including chlorine, sodium hypochlorite, or other products such as hydrogen peroxidebased oxidants. (Ibid.) To date, Ione has provided no evidence whatsoever reflecting any attempts to treat the hydrogen sulfide. (See id., ¶ 9.) Ione has instead simply shut down the system after detecting conditions that are common in wastewater systems and has elected to take no steps to treat the hydrogen sulfide. (See ibid.) ARSA has tested the area around the Preston Reservoir for H2S, and no H2S has been detected. (Ibid.) The hydrogen sulfide issues identified by Ione thus relate solely to tertiary effluent requirements. They are part of the costs of providing tertiary treatment and therefore must be resolved by Ione as the operator of the tertiary treatment plant.2 (Ibid.)

1 The likely cause of hydrogen sulfide at Ione’s treatment plant arises from Ione’s decision to stop deliveries of wastewater from Preston Reservoir. (Brown Decl., ¶ 5.) By doing so, stagnant water remained in the closed pipeline between the reservoir discharge valve and the tertiary treatment plant, which likely allowed the remaining oxygen to be consumed, anaerobic bacteria to be formed, and hydrogen sulfide to generate. (Ibid.)
2 The H2S and LEL readings provided by Ione are also questionable at best. (Brown Decl., ¶

7.) The H2S level was apparently measured at a level below grade in a vent line; the gas level above 82456.00002\40800548.1 - 6 -
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D. IONE HAS WILLFULLY DISOBEYED AND VIOLATED THE ORDER
Finally, a valid judgment of contempt must show facts establishing that the party charged with contempt willfully violated a prior court order. (Koehler, 181 Cal. App. 4th at p. 1169.) A party’s willfulness can be inferred from the circumstances, and the order to show cause and judgment of contempt need not state facts in support of the finding of willfulness. (Id.) Here, it is beyond controversy that Ione has willfully disobeyed and violated the Order.

Although required to accept 500,000 gallons of wastewater per day from Preston Reservoir since October 11, 2022, Ione only accepted water from Preston Reservoir from October 14, 2022, through October 18, 2022. (Gedney Decl., ¶ 5.)
IV.

CONCLUSION
For the reasons set forth above, the Court should issue an order for Ione to show cause why it should not be held in contempt of the Order, and why money sanctions in the amount of fifteen hundred dollars ($1,500) per day should not be imposed against Ione.

Dated: October 25, 2022 BEST BEST & KRIEGER LLP
By:

SHAWN D. HAGERTY
MATTHEW L. GREEN
FRANK A. SPLENDORIO
Attorneys for Plaintiff

AMADOR REGIONAL SANITATION

AUTHORITY

the confined space was not measured. (Ibid.) H2S is heavier than air, which means it will collect and concentrate in confined spaces below grade. (Ibid.) When mixed with the air outside of the confined space, however, it will typically produce a decreased level of concentration. (Ibid.) While the odor may be detectable near the vent, it could be easily mitigated through aeration. (Ibid.) Moreover, regarding the data provided by Ione on October 20, 2022, it does not make sense for the LEL to go down and the H2S level to increase. (Id., ¶ 8.) H2S is considered combustible, which means the H2S level and LEL should rise and fall together. (Ibid.) The diverging H2S and LEL readings are also suspect given the amount of oxygen remained constant from October 18 to October 20, 2020. (Ibid.) Indeed ,without calibration logs, the accuracy of the testing instruments cannot be assumed. (Ibid.)
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ATTORNEYS AT LAW
655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
SHAWN D. HAGERTY, Bar No. 182435
[email protected]
MATTHEW L. GREEN, Bar No. 227904
[email protected]

BEST BEST & KRIEGER LLP
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Telephone: (619) 525-1300
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FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

BEST BEST & KRIEGER LLP
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Telephone: (916) 325-4000
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Attorneys for Plaintiff

AMADOR REGIONAL SANITATION AUTHORITY

EXEMPT FROM FILING FEES PURSUANT
TO GOVERNMENT CODE SECTION 6103

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state
agency; and DOES 1 through 20, inclusive,
Defendants.

Case No. 22CV12824
Judge: Hon. J.S. Hermanson

DECLARATION OF AMY GEDNEY IN

SUPPORT OF EX PARTE APPLICATION

FOR ORDER TO SHOW CAUSE RE

CONTEMPT AND SANCTIONS
Date:

Time:

Dept.: 1
Complaint Filed: September 20, 2022
82456.00002\40800833.1 - 2 -

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655 WEST BROADWAY, 15TH FLOOR
SAN DIEGO, CALIFORNIA 92101
I, Amy Gedney, declare as follows:

1. I have personal knowledge of the following facts, and if called to testify, I would and could testify competently thereto.

2. Since June 2017, I have been the General Manager of Plaintiff Amador Regional Sanitation Authority (“ARSA”), a joint powers agency responsible for providing wastewater conveyance and disposal services to the Cities of Amador City and Sutter Creek and the County of Amador.

3. On October 10, 2022, the Court issued an Order and Preliminary Injunction requiring Defendant City of Ione (“Ione”) and its employees and agents, and any other persons acting with or on behalf of Ione, to accept from ARSA 500,000 gallons of secondarily treated wastewater per day from Preston Reservoir for 30 days, for a total of 15 million gallons of secondarily treated wastewater. A true and correct copy of the Order and Preliminary Injunction (“Order”) is attached as Exhibit “A” hereto.

4. A copy of the Order was personally served on Ione on October 11, 2022, at 12:44 p.m. A true and correct copy of the Proof of Service reflecting the same is attached as Exhibit “B” hereto.

5. Although it was served with the Order midday on October 11, 2022, Ione did not start accepting water from ARSA from Preston Reservoir until October 14, 2022, three days later.

Ione also only accepted water from Preston Reservoir from October 14, 2022, through October 18, 2022. During that period of time, the water level at Preston Reservoir dropped from approximately 113.5 acre feet to roughly 108.4 acre feet, a decrease of approximately 5.1 acre feet, or 1.66 million gallons.

6. Ione informed ARSA and others on October 18, 2022, that it ceased accepting wastewater from Preston Reservoir due to readings taken on that date reflecting high levels of hydrogen sulfide at Ione’s wastewater treatment plant. Ione informed ARSA and others that similar readings showing high levels of hydrogen sulfide were taken on October 19 and 20, 2022, and that wastewater thus could still not be accepted from Preston Reservoir on those days. / / /

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7. Since October 20, 2022, Ione has provided no further hydrogen sulfide readings to ARSA, let alone any explanation for its ongoing failure to comply with the Order. Ione has also never provided any details regarding how it is treating the hydrogen sulfide condition at its wastewater treatment plant, aside from simply shutting down the plant.

8. Attached as Exhibit "C" hereto is a true and correct copy of a declaration from Donald Brown executed on October 24, 2022. In his declaration, Mr. Brown explains that hydrogen sulfide is a common condition in wastewater systems, that Ione's readings are questionable at best, that Ione may nevertheless treat the condition through aeration and chemicals, and that such treatment is part of the tertiary treatment process and must therefore be resolved by Ione as the operator of the wastewater treatment plant.

9. Based on the foregoing, Ione was and is capable of complying with the Order, and there is no good cause or substantial justification for Ione's willful disobedience and violation of the Order.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Executed this 25th day of October 2022, at Sutt Cree California. 82456.00002\40800833.1 - 3 -
GEDNEY

DECLARATION OF AMY GEDNEY

EXHIBIT A

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15th Floor
San Diego, California 92101
Telephone: (619) 525-1300
Facsimile: (619) 233-61 18
FRANK A. SPLENDORIO, Bar No. 272601
[email protected]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF AMADOR

AMADOR REGIONAL SANITATION
AUTHORITY, a California joint powers
agency,
Plaintiff,
v.

CITY OF IONE, a California municipal
corporation; CALIFORNIA DEPARTMENT

OF CORRECTIONS AND
REHABILITATION, a California state agency;
and DOES I through 20, inclusive,
Defendants.
82456.00002\40760758. I - 1 -
Case No. 22-CV-12824
Judge: Hon. Renee C. Day

ORDER AND

PRELIMINARY INJUNCTION
Date:

Time:

Dept.:

Action Filed:

Trial Date:

October 10, 2022
8:30 a.m.
2 September 20, 2022
Not Set
[PROPOSED] ORDER AND PRELIMINARY INJUNCTION

RECEIVED
AMAD0R SUPERIOR COUR1
OCT 1 0 2022

BEST BEST & KRIEGER LLP
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28 The order to show cause why a preliminary injunction should not

Dated: October , 2022 By:
82456.00002\40760758. 1 - 2 -

JUDGE OF THE SUPERIOR COURT
[PROPOSED] ORDER AND PRELIMINARY INJUNCTION
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28 PROOF OF SERVICE
I, Lisa Atwood, declare:

David Prentice, Esq.

Prentice Long, PC
2240 Court Street
Redding, CA 96001
Theresa C. Barfield, Esq.

Michele E. Chester, Esq.

Somach Simmons & Dunn
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
California Department of Corrections and
Rehabilitation
1515 S Street, Suite 314 South
Sacramento, CA 9581 1

ATTORNEYS FOR DEFENDANT CITY

OF IONE
Tel.: (530) 691-0800
Email: [email protected]
[email protected]
[email protected]
[email protected]

SPECIAL COUNSEL TO THE CITY

Executed on October 10, 2022, at San Diego, California.

Lisa Atwood
2 R2456.00002\40717416. 1

EXHIBIT B
At tor ney or Party without Attorney:

Shawn D. Hagerty, Esq. (SBN 182435)

BEST BEST & KRIEGER LLP
655 West Broadway, 15th Floor
San Diego. CA 92101
Telephone No: 619-525-1300
Attorney For. plaintiff
For Court Use Only
FILED

AMADOR SUPERIOR COUF
OCT 1 3 2022
Clerk of the Superior Couri
By: B. fonttRts
Ref. No. or File No.:
82456.000002/MLG
Insert name of Court. and judicial District and Branch Court:

PROOF OF SERVICE Hearing Date: Time: Dept/Div: Cose Number:
22-cv-12824

1. At the time of service I was at least 18 years of age and not a party to this action.

2. I served copies of the ORDER AND PRELIMINARY INJUNCTION

3. a. Party served: City of lone, a California municial corporation b. Person served: Kenna Brosz, Administrative Assistant

4. Address where the party was served: 1 E Main Street. lone, CA 95640

7. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct Judicial Council Form
Rule 2.150.(a)&(b) Rev January 1, 2007

PROOF OF

SERVICE
(Date) (Signature)
7787342
(15059646)
T
K6f

EXHIBIT C
82456.00002\40797008.1 - 1 -