The opinion of the court was delivered by: Judge: Hon. Garland E. Burrell, Jr.
I. BACKGROUND AND INTRODUCTION
WHEREAS, on December 6, 2007, Plaintiffs Arc Ecology, San Francisco BayKeeper and Natural Resources Defense Council (collectively, the "Environmental Plaintiffs") filed a first amended complaint for declaratory and injunctive relief in this Court, alleging that Defendants U.S. Maritime Administration ("MARAD"), the Maritime Administrator, United States Department of Transportation, and the Secretary of Transportation (hereafter collectively referred to as "Defendants"), are in violation of the Clean Water Act ("CWA"), the Resource Conservation and Recovery Act ("RCRA"), California's Hazardous Waste Control Law ("HWCL"), the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA") with respect to the operation and management of non-retention vessels at the National Defense Reserve Fleet at Suisun Bay (hereafter "Suisun Bay Reserve Fleet" or "SBRF"), located in the City of Benicia in Solano County, California. Environmental Plaintiffs' complaint seeks declaratory and injunctive relief under the CWA, RCRA, NEPA, and the APA, civil penalties under RCRA, and attorneys' fees and costs;
WHEREAS, on November 14, 2008, Plaintiff-Intervenor California Regional Water Quality Control Board, San Francisco Bay Region (hereafter "Plaintiff-Intervenor" or "Regional Board") filed a complaint in intervention, also alleging that Defendants are in violation of the CWA in operating and managing non-retention vessels at the SBRF. Plaintiff-Intervenor seeks declaratory and injunctive relief under the CWA, civil penalties to the extent authorized under the CWA, and attorneys' fees and costs. Environmental Plaintiffs and Plaintiff-Intervenor are hereafter collectively referred to as "Plaintiffs." Plaintiffs and Defendants are hereafter collectively referred to as the "Parties;"
WHEREAS, Plaintiffs allege that, during the six years preceding the filing of the complaints and on a continuing basis, Defendants have discharged, and are continuing to discharge, pollutants from point source non-retention SBRF vessels into waters of the United States without first obtaining a valid National Pollutant Discharge Elimination System ("NPDES") permit from the Regional Board, in violation of section 301(a) of the CWA (33 U.S.C. § 1311(a)). Plaintiff-Intervenor further alleges that, for the same reasons, Defendants have violated, and are continuing to violate, section 402(a) of the CWA (33 U.S.C. § 1342(a)). Environmental Plaintiffs further allege that Defendants have violated, and are continuing to violate, section 3006(b) of RCRA (42 U.S.C. § 6961(b)) and California's Hazardous Waste Control Law (Cal. Health & Safety Code § 25100 et seq.) by accepting, storing and/or disposing of hazardous waste without a hazardous waste facilities permit, and have violated, and are continuing to violate, section 4005(a) of RCRA (42 U.S.C. § 6945(a)) by engaging in open dumping of solid and hazardous waste;
WHEREAS, Claims 1-4 of Environmental Plaintiffs' First Amended Complaint (Dkt. No. 14) raised claims under NEPA and the APA. On March 28, 2008, the parties filed a stipulation (Dkt. No. 26) to, inter alia, stay litigation of Claims 1-4 while Defendants prepared either a final environmental assessment ("EA") and finding of no significant impact ("FONSI") or a record of decision and a final environmental impact statement. The Court approved and entered the parties' stipulation regarding Plaintiffs' NEPA claims (Dkt. No. 27). Defendants provided notice of its final EA and FONSI on September 8, 2009. Pursuant to paragraph 5 of the Joint Stipulation and Order Regarding Plaintiffs' NEPA Claims (Dkt. No. 27), and Fed. R. Civ. P. 15(a)(2), Plaintiffs amended their First Amended Complaint to withdraw Claims 1-4 (Dkt. No. 103). The Court approved Environmental Plaintiffs' amendment on October 19, 2009 (Dkt. No. 104);
WHEREAS, on January 21, 2010, the Court issued an order that held that: Defendants have, since at least October 5, 2007, discharged pollutants from each SBRF non-retention vessel without a valid NPDES permit in continuous violation of the CWA, 33 U.S.C. § 1311(a); Defendants have, since at least October 29, 2002, continuously stored exfoliated paint that is hazardous waste on SBRF non-retention vessels without a permit, in violation of California's Hazardous Waste Control Law, Cal. Health & Safety Code §§ 25201(a), 25189.5, 25189.2, and Section 6001(a) of RCRA, 42 U.S.C. § 6961(a); and the Court lacked jurisdiction over the Environmental Plaintiffs' claim under RCRA § 4005(a), 42 U.S.C. § 6945(a);
WHEREAS, the Parties have engaged in settlement negotiations in an attempt to resolve the Plaintiffs' claims;
WHEREAS, the Parties desire to completely and finally resolve all the claims alleged in the Plaintiffs' complaints without further litigation;
WHEREAS, this Consent Decree is entered into between the Parties for the purposes of settlement and does not constitute an admission by Defendants of any fact or legal theory or of any violation of federal law or regulation;
WHEREAS, the Parties agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest;
THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED:
II. JURISDICTION AND VENUE
1. This Court has jurisdiction to enter this Consent Decree pursuant to 33 U.S.C. § 1365(a), 42 U.S.C. § 6972(a), and 28 U.S.C. § 1331.
2. Pursuant to 33 U.S.C. § 1365(c)(1), 42 U.S.C. § 6972(a) and 28 U.S.C. § 1391(e)(2), venue lies in this judicial district because the SBRF is located in, and the actions alleged in the complaints occurred in, this judicial district.
3. Solely for purposes of this Consent Decree and any action to enforce this Consent Decree, Defendants consent to this Court's jurisdiction and to venue in this judicial district.
4. The provisions of this Consent Decree shall apply to, inure to the benefit of, and be binding upon the Environmental Plaintiffs, the Regional Board, and the Defendants, and the Parties' officers, directors, employees, and agents, and any successors in interest and assigns, as to matters that might reasonably include compliance with any provisions of this Decree.
5. Except as otherwise provided herein, the terms used in this Consent Decree shall have the meaning given those terms in the CWA, 33 U.S.C. § 1362, RCRA, 42 U.S.C. § 6903, and those statutes' implementing regulations. The following terms, as used in this Consent Decree and for purposes of this Decree only, are defined as follows:
(a) "Consent Decree" shall mean this Consent Decree and all attachments hereto and all modifications to this Consent Decree.
(b) "Day" shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.
(c) "Effective Date" shall mean the date on which this Consent Decree is entered by the Court.
(d) "Exfoliated Paint" shall mean paint and associated dust and debris that have entirely separated from a Vessel surface.
(e) "Exfoliating Paint" shall mean paint that is not yet entirely separated from a Vessel surface but that can be removed from the surface with a hand scraper forced into and under cracks in the painted surface.
(f) "Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral or an uppercase or lowercase letter.
(g) "Remove for Disposal" or "Removed for Disposal" shall mean the permanent removal of a Vessel from the Suisun Bay Reserve Fleet: pursuant to a contract or agreement for subsequent disposal pursuant to 16 U.S.C. § 5405, 46 U.S.C. § 57102, 46 U.S.C. § 57103 or
16 U.S.C. § 1220(a); or as lawfully authorized pursuant to the U.S. Navy's SINKEX program; or for disposal as otherwise provided by law.
(h) "Section" shall mean a portion of this Consent Decree identified by a capitalized roman numeral.
(i) "Vessel" or "Vessels" shall mean the non-retention vessels that are anchored at the SBRF as of November 1, 2009 as described in Exhibit A, which is attached to the Proposed Consent Decree filed in this case on April 9, 2010 and located on the docket at entry 124.
6. Defendants shall undertake the following activities on or before the dates or within the time periods specified below:
(a) NPDES Permit for Discharges from SBRF Non-Retention Vessels
(1) Notice of Intent to Comply
(i) Within 14 days of the Effective Date, Defendants will submit to the Regional Board a Notice of Intent to Comply ("NOIC") and acknowledge that they are obligated by law to comply with the terms of State Water Resources Control Board, Water Quality Order No. 97-03-DWQ, National Pollutant Discharge Elimination System (NPDES) General Permit No. CAS000001, Waste Discharge Requirements for Discharges of Storm Water Associated with Industrial Activities Excluding Construction Activities (hereafter "General Permit").
(ii) Should the State Water Resources Control Board ("State Water Board") issue a new or revised NPDES Permit for Discharges of Storm Water Associated with Industrial Activities, Defendants shall submit another NOIC with respect to such new or revised general permit as required by paragraph E.8 of the General Permit and shall submit a new or revised storm water pollution prevention plan ("SWPPP") if required by the general permit then in effect.
(iii) If Defendants ever vacate the property on which the SBRF is located, Defendants shall file a Notice of Termination to the Regional Board. Upon receipt of such notice, the Regional Board shall terminate the Defendants' requirement to comply with the General Permit with respect to the SBRF facility.
(2) Storm Water Pollution Prevention Plan. Concurrently with submittal of the NOIC, Defendants shall submit a SWPPP in compliance with the requirements of the General Permit. The SWPPP shall be in the same form and content as that attached as Exhibit B to the Proposed Consent Decree filed in this case on April 9, 2010 and located on the docket at entry 124. The Regional Board, by and through its staff, will accept and approve the SWPPP if it is submitted in the same form and content as that attached as Exhibit B.
(b) Removal of Exfoliating and Exfoliated Paint
(1) Except as otherwise provided in Paragraph 6(b)(5) below, Defendants will remove or encapsulate exfoliating and exfoliated paint above the waterline from the exterior Vessel surfaces (including hulls and topsides) in dry-dock of 25 Vessels, including all Vessels with Condition Coating #1 or #2, listed in Exhibit A by September 30, 2011.
(2) Except as otherwise provided in Paragraph 6(b)(5) below, Defendants will remove or encapsulate exfoliating and exfoliated paint above the waterline from the exterior Vessel surfaces (including hulls and topsides) in dry-dock or at the SBRF fleet site from all Vessels in Exhibit A, other than those described in Paragraph 6(b)(1), within two years of the Regional Board's approval of the SWPPP or by March 31, 2012, whichever is later. If paint removal from exterior vessel surfaces above the waterline is conducted at the SBRF fleet site, Defendants agree to conduct such paint removal activities pursuant to a SWPPP reviewed and approved by the Regional Board and required by the General Permit.
(3) Except as provided in Paragraph 6(b)(1), the order of cleaning the Vessels listed in Exhibit A shall be determined solely by MARAD.
(4) Before Defendants may encapsulate (rather than remove) exfoliating and exfoliated paint pursuant to Paragraph 6(b)(1), Defendants shall first provide Plaintiffs with a written description of the paint encapsulation methods and materials and their effectiveness in preventing or eliminating discharges of exfoliating and exfoliated paint, and said methods and materials must be approved by the Regional Board. If Defendants determine that encapsulation of exfoliating and exfoliated paint pursuant to Paragraph 6(b)(2) is required or preferred, Defendants agree to revise the SWPPP to specifically describe paint encapsulation methods and materials and their effectiveness in preventing or eliminating discharges of exfoliating and exfoliated paint, and to submit such SWPPP to the Regional Board for review and approval, prior to performing any encapsulation.
(5) Exceptions to requirements to remove exfoliating and exfoliated paint above the waterline on exterior vessel surfaces:
(i) Any of the 25 Vessels otherwise subject to Paragraph 6(b)(1) that are Removed for Disposal prior to September 30, 2011 for use in the United States Navy's SINKEX program shall not be subject to Paragraph 6(b)(1).
(ii) Any of the remaining Vessels otherwise subject to Paragraph 6(b)(2) that are Removed for Disposal prior to the deadline specified in Paragraph 6(b)(2) for use in the Navy's SINKEX program shall not be subject to Paragraph 6(b)(2).
(iii) Any other Vessel otherwise subject to Paragraph 6(b)(1) or 6(b)(2) that is designated to be Removed for Disposal by the deadlines specified in those Paragraphs for donation to an organization specified in 46 U.S.C. § 57103, sale for reuse, artificial reefing, or other removal as provided by law (including but not limited to special legislation directing the disposition of a particular Vessel) ...