The opinion of the court was delivered by: Honorable Virginia A. Phillips United States District Judge
(Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.)
(Proposed) Consent Decree 1 Case No. EDCV O9-1549 VAP (OPx)
WHEREAS, Inland Empire Waterkeeper, a program of Orange County Coastkeeper ("Waterkeeper" or "Plaintiff") is a non-profit corporation dedicated to the preservation, protection, and defense of the environment, the wildlife, and the natural resources of Orange County and Inland Empire area receiving waters;
WHEREAS, J Lee's Metals, Inc., dba D & M Metals, Inc., and J. Lee's Metals, Inc. (collectively "Defendants"), operate a scrap metals recycling operation located at 840 E. State Street, in Ontario, California 91761 (hereinafter the "D & M Metals Facility," "Site," or "Facility").
WHEREAS, Waterkeeper contends that the operations at the D & M Metals Facility result in discharges of pollutants into storm drains, West Cucamonga Creek, Cucamonga Creek, the Santa Ana River, and ultimately the Pacific Ocean (collectively referred to as the "Receiving Waters"); and that discharges from the Facility are regulated by the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("Clean Water Act", "CWA" or "Act"), Sections 301 (a) and 402, 33 U.S. C. §§ 1311 (a), 1342;
WHEREAS, on June 10, 2009, Waterkeeper served Defendants, the United States Environmental Protection Agency ("EPA"), EPA Region IX, the State Water Resources Control Board ("State Board") and the Regional Water Quality Control Board ("Regional Board"), with a notice of intent to file suit ("60-Day Notice") under Sections 505 (a) and (b) of the CWA, 33 U.S.C. § 1365 (a) and (b). The 60-Day Notice alleged that the recipients had in the past and continues to violate Sections 301 (a) and 402 of the Act, 33 U.S.C. §§ 1311 (a) and 1342, by discharging pollutants into Receiving Waters in violation of National Pollution Discharge Elimination System ("NPDES") General Permit No. CAS0000001 [State Board] Water Quality Order No. 92-12-DWQ, as amended by Order No. 97-03-DWQ ("Industrial Permit") and the Act;
WHEREAS, on August 13, 2009,Waterkeeper filed a complaint against Defendants in the United States District Court, Central District of California (Civil Case No. EDCV 09-1549 VAP (OPx)) entitled Inland Empire Waterkeeper et al. v. J Lee's Metals, Inc. et al. ("Complaint");
WHEREAS, on August 24, 2009, Waterkeeper filed a corrected complaint against Defendants with the same caption set forth in the preceding paragraph, which corrected a typographical error in the Complaint ("Corrected Complaint");
WHEREAS, Defendants deny all allegations of the Complaint and Corrected Complaint and the contentions of Waterkeeper, as set forth in these Recitals and in the 60-Day Notice;
WHEREAS, Waterkeeper and Defendants (collectively referred to herein as the "Settling Parties" or "Parties") have agreed that it is in the Parties' mutual interest to enter into a Consent Decree setting forth terms and conditions appropriate to resolving the allegations set forth in the Complaint without further proceedings and without any admission of liability on the part of the Defendants;
WHEREAS, Defendants intend to continue their industrial activities at the D & M Metals Facility and will therefore undertake additional measures to control stormwater pollution associated with continuing industrial activities;
WHEREAS, this Consent Decree shall be submitted to the United States Department of Justice and EPA for the statutory review period pursuant to 33 U.S.C. § 1365 (c) and 40 C.F.R. § 135.5;
WHEREAS, all actions taken by Defendants pursuant to this Consent Decree shall be made in compliance with all applicable Federal and State laws and local rules and regulations.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING PARTIES AND ORDERED AND DECREED BY THE COURT AS FOLLOWS:
1. The Court has jurisdiction over the subject matter of this action pursuant to Section 505 (a)(1)(A) of the Act, 33 U.S.C. § 1365 (a)(1)(A);
2. Venue is appropriate in the Central District Court pursuant to Section 505(c) (1) of the Act, 33 U.S.C. § 1365 (c)(1), because the D & M Metals Facility at which the alleged violations took place is located within this District;
3. The Complaint and Corrected Complaint state a claim upon which relief may be granted pursuant to Section 505 of the Act, 33 U.S.C. § 1365.
4. Waterkeeper has standing to bring this action. 5. The Court shall retain jurisdiction over this matter for purposes of interpreting, modifying or enforcing the terms of this Consent Decree, or as long thereafter as is necessary for the Court to resolve any motion to enforce this Consent Decree.
I. CONSENT DECREE OBJECTIVES
6. It is the express purpose of the Parties entering into this Consent Decree to further the objectives set forth in Sections 101 et seq. of the CWA, 33 U.S.C. §§ 1251 et seq., and to resolve those issues alleged by Waterkeeper in its Complaint. In light of these objectives and as set forth fully below, Defendants agree, inter alia, to comply with the provisions of this Consent Decree and to comply with the requirements of the Industrial Permit and all applicable provisions of the CWA at the D & M Metals Facility. Specifically, Receiving Water Limitation C(2) in the Industrial Permit requires that the D & M Metals Facility "not cause or contribute to the exceedance of an applicable water quality limit." Effluent Limitation B(3) of the Industrial Permit requires that Best Management Practices ("BMPs") be developed and implemented to achieve Best Available Technology ("BAT") and the Best Conventional Pollutant Control Technology ("BCT"). Defendants are required to develop and implement BMPs necessary to comply with the Industrial Permit's requirement to achieve compliance with Water Quality Standards and BAT/BCT standards. BMPs must be developed and implemented to prevent discharges or to reduce contamination in storm water discharged from the D & M Metals Facility sufficient to achieve the numeric action limits detailed in paragraph 12 below.
II. COMMITMENTS OF THE PARTIES
A. Industrial Stormwater Pollution Control Measures
7. Design Storm Event. The Parties agree that the Design Storm Event for the D & M Metals Facility is a 25-year 24-hour return period rain event as defined by the County of San Bernardino Hydrology Manual (August 1986) with an assumed dry antecedent condition and 5.87 total inches of rainfall over a 24-hour period; or any single event exceeding a rainfall intensity of 1.67 inches in one hour.
8. BMP Plan. The BMP Plan attached as Exhibit A hereto is designed to capture and infiltrate stormwater generated during rain events up to and including the Design Storm Event (the "Infiltration Unit") within the D & M Metals Facility Containment Zone (set forth on and attached hereto as Exhibit B). The BMPs set forth in the plan shall be implemented to ensure that no stormwater discharges occur from the D & M Metals Facility Containment Zone during rain events up to and including the Design Storm Event, and so that no pollutants from the D & M Metals Facility's stormwater infiltration system cause degradation of groundwater. As set forth on the attached BMP Plan (Exhibit A), the location and design of the Infiltration Unit shall be accessible for future inspection and maintenance. Defendants shall also ensure that the soils and groundwater conditions at the installation site of the Infiltration Unit are at least as conducive to effective infiltration as those on the property owned and/or operated by Defendants directly to the east of the D & M Metals Facility operations yard, shown on Exhibit B as area "YY". If the proposed site of the Infiltration Unit does not provide equally effective infiltration capacity, Defendants and Waterkeeper shall meet and confer to determine an alternate site for the Infiltration Unit. Defendants shall continue to properly implement the BMP Plan during the life of this Consent Decree.
9. Stormwater discharges from the D & M Metals Facility that do occur shall be monitored as described in Section B below of this Consent Decree during the life of this Consent Decree, and discharges from the D & M Metals Facility Containment Zone during storm events less than the Design Storm Event shall constitute a breach of this Consent Decree.
10. Non-stormwater discharges from the D & M Metals Facility Containment Zone during the life of this Consent Decree not authorized by the Industrial Permit shall be considered breaches of this Consent Decree.
B. Stormwater Sampling and Numeric Action Levels
11. Sampling. During the life of this Consent Decree, Defendants shall sample every offsite discharge from the D & M Metals Facility Containment Zone and shall provide the results of such sampling to Waterkeeper in accordance with the provisions set forth below. Samples shall be evaluated consistent with the requirements of the Industrial Permit and shall have detection limits sufficiently sensitive to evaluate compliance with the Numeric Action Levels set forth in paragraph 12.
12. Numeric Action Levels. During the life of this Consent Decree, contaminants in discharges occurring during storm events smaller than the Design Storm Event from the D & M Metals Facility Containment Zone shall not exceed the Numeric Action Levels set forth in Table 1, consistent with paragraphs 13 and 14 below.
Table 1. Numeric Action Levels for D & M Facility Discharges Contaminant Numeric Action Level
Total suspended solids 100 mg/LCopper 0.0636 mg/LLead 0.0816 mg/LZinc 0.117 mg/ Oil and grease 15 mg/LAluminum 0.750 mg/LArsenic 0.16854 mg/LCadmium 0.0159 mg/LIron 1.0 mg/LMercury 0.0024 mg/LNickel 1.417 ...