The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge
STIPULATED DISMISSAL WITH PREJUDICE AND TERMINATION OF CONSENT
Plaintiffs San Diego Baykeeper and Kenneth J. Moser, by their
counsel, Marco A. Gonzalez, defendant David Rowland, and
defendants tenant parties, by their counsel, S. Wayne Rosenbaum,
respectively and pursuant to 33 U.S.C. § 1365, and Civil Rules
for the U.S. District Court, Southern District, Rule 7.2 hereby
stipulate to dismissal of this case with prejudice and
termination of the consent decree dated November 29, 1999.
The Consent Decree was created in response to a complaint filed
on June 18, 1998 and amended on July 13, 1998, August 22, 1998,
and October 23, 1998 in the matter of San Diego BayKeeper, et.
al. v. Rowland, et. al. (USDC, Southern District of California
Case No. 98-CV-1133 TW (POR). The case concerned discharges of
polluted storm water from the auto dismantling facilities of
A-Apex Auto Wrecking, Best Way Auto Wrecking, Camino Auto
Wrecking, Freddy's Auto Wrecking, A-1 Auto Recycling, A-Alamo
Auto & Truck, Beetlemania Auto Wrecking, Garcia's Auto Wrecking,
Libra Auto Dismantling, Rapido Truck & Auto Wrecking, N&U Truck &
Auto Recycling (Formerly Known As "Turbo Auto Wrecking"), Fords &
Foreign Auto Dismantling, Luna's Auto Wrecking, Otay Auto
Wrecking, Shirinco Auto Wrecking, T & J Auto Wrecking, A&A Truck
& Auto Recycling (Formerly Known As "Tony's Auto Wrecking"), and
Compa Auto Wrecking) and from the property of David Rowland into
the Otay River and San Diego Bay in violation §§ 301(a) and
402(p) of the Clean Water Act, 33 United States Code §§ 1311(a)
Under the Consent Decree the settling parties agreed that the
action should be dismissed with prejudice as long as certain
stipulations and conditions were met. The requirements of the
Consent Decree were set for a term of three years commencing from
the date of entry. The parties agreed that each and every Tenant
Party and Industrial Tenant, as defined in the Landlord Tenant
Protocol ("LLTP") and Consent Decree, would develop and implement
a Storm Water Pollution Prevention Plan ("SWPPP") and a
Monitoring and Reporting Program ("M&RP") acceptable to
Baykeeper. The SWPPP had two major objectives: (1) to help identify the
sources of pollution that affect the quality of industrial storm
water discharges and authorized non-storm water discharges, and
(2) to describe and ensure the implementation of Best Management
Practices (BMPs) to reduce or prevent pollutants in industrial
storm water discharges and authorized non-storm water discharges.
The SWPPP created a pollution prevention team ("PPT"), which was
responsible for developing the SWPPP and for preparing an Annual
Report to submit to the Executive Officer of the San Diego
Regional Water Quality Control Board. The M&RP objectives were to
ensure that storm water discharges complied with the
specifications of the General Permit; to ensure that practices at
the facility to reduce or prevent pollutants in storm water
discharges and authorized non-storm water discharges are
evaluated and revised to meet changing conditions; aid in the
implementation and revision of the SWPPP; and to measure the
effectiveness of BMPs to prevent or reduce pollutants in storm
water discharges and authorized non-storm water discharges.
Rowland was designated as the group leader, and was responsible
for the implementation of the plans.
In addition, a Storm Water Fund was set up for the use of
Southwest Wetlands Interpretative Association ("SWIA") to use for
projects reducing, mitigating, or for remediation of the effects
of storm water pollution on the Otay River and/or San Diego Bay.
The tenant parties, industrial tenants, and Rowland deposited
money into the Storm Water Fund in forty-nine (49) monthly
disbursements according to a payment schedule seen in Exhibit B
of the Order Establishing (1) The Storm Water Fund; (2) The
Coordinating Committee for the Storm Water Fund; and (3) Schedule
of Payments Due to, and Disbursements From, the Storm Water Fund.
A Storm Water Fund Coordinating Committee was established for
coordinating and overseeing the management of the fund, and made
disbursements by order of the Court.
Although the November, 1999, Consent Decree was intended to
terminate after three years, difficulties in achieving full
compliance with its terms resulted in automatic extensions of
obligations through the present. In particular, construction of
structural BMPs in two locations proved more difficult than
anticipated. Final designs for construction of said BMPs have now been generated, and an implementation plan has been agreed to by
Additionally, beginning in October, 2003, Marco A. Gonzalez, S.
Wayne Rosenbaum, and representatives of the Otay Mesa auto
recyclers established and began implementation of an auto
recycler non-profit trade association, called the "Alliance for
Compliance" to address stormwater concerns such as those the
subject of the Consent Decree. All of the parties to the Consent
Decree are now members of the Alliance, through which they
continue their efforts to comply with the State of California
General Industrial Stormwater Permit. Pursuant to the Alliance's
guidelines, San Diego Baykeeper participates as the program's
quality assurance and quality control monitor. The parties are in
agreement that the Alliance has proven a successful mechanism for
managing stormwater discharges from auto recyclers.
All required payments pursuant to the Consent Decree have been
made, and the entire Storm Water Fund has been dispersed by the
Given the foregoing, the parties hereby stipulate as follows:
1. The case, San Diego BayKeeper, et. al. v.
Rowland, et. al. (USDC, Southern District of
California Case No. 98-CV-1133 TW (POR), shall be
dismissed with prejudice.
2. The November 29, 1999 Consent Decree is hereby
terminated by its own terms, by agreement of the