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BAYKEEPER v. ROWLAND

United States District Court, S.D. California


September 7, 2005.

SAN DIEGO BAYKEEPER, a non-profit corporation; and KENNETH J. MOSER, an individual, Plaintiffs,
v.
DAVID ROWLAND; an individual; A-APEX AUTO WRECKING; BEST WAY AUTO WRECKING; CAMINO AUTO WRECKING; FREDDY'S AUTO WRECKING; A-1 AUTO RECYCLING; A-ALAMO AUTO & TRUCK; BEETLE MANIA 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 Defendants.

The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

STIPULATED DISMISSAL WITH PREJUDICE AND TERMINATION OF CONSENT DECREE
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.

  I. Background

  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) and 1342(p).

  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 the parties.

  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 Court.

  II. Stipulation

  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 parties, and subject to approval by the Court. IT IS HEREBY ORDERED.
20050907

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