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Inland Empire Waterkeeper v. American Metal Recycling

July 26, 2010

INLAND EMPIRE WATERKEEPER, A PROGRAM OF ORANGE COUNTY COASTKEEPER, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
AMERICAN METAL RECYCLING, INC., A CALIFORNIA CORPORATION, DEFENDANT.



CONSENT DECREE

(Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.)

WHEREAS, Inland Empire Waterkeeper, a program of Orange County Coastkeeper, is a non-profit corporation dedicated to the protection and enhancement of the Upper Santa Ana River Watershed through programs of advocacy, education, research, restoration, and enforcement;

WHEREAS, Orange County Coastkeeper is a non-profit corporation dedicated to the preservation, protection and defense of the environment, the wildlife, and the natural resources of Orange County area waters, including the Santa Ana River Watershed and its receiving waters;

WHEREAS, Inland Empire Waterkeeper and Orange County Coastkeeper are collectively referred to herein as ("Waterkeeper" or "Plaintiff");

WHEREAS, American Metal Recycling, Inc. ("American Metal" or "Defendant") is an Owner and/or Operator of the American Metal scrap metal recycling facility located at 11150 Redwood Avenue, Fontana, California (hereinafter "Facility");

WHEREAS, on 10 June 2009, Waterkeeper served American Metal, 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") for violations of the Federal Water Pollution Control Act, 33 U.S.C. §§1251 et seq. ("Clean Water Act" or "CWA"). The notice alleged that the recipients had in the past and in fact continue to violate Sections 301(a) and 402 of the CWA, 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 CWA;

WHEREAS, on 24 August 2009, Waterkeeper filed a complaint against American Metal in the United States District Court, Central District of California, Eastern Division (Civil Case No. CV 09- 06147 GAF (RZx)) entitled Inland Empire Waterkeeper et al., v. American Metal Recycling, Inc. ("Complaint");

WHEREAS, Defendant denies all allegations set forth in the Complaint;

WHEREAS, Waterkeeper and American Metal (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

WHEREAS, all actions taken by American Metal pursuant to this Consent Decree shall be made in compliance with all applicable federal, state 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 Facility at which the alleged violations took place is located within this District;

3. The Complaint states a claim upon which relief may be granted against American Metal 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. OBJECTIVES

6. It is the express purpose of the Parties entering into this Consent Decree to further the objectives set forth in Section 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, American Metal agrees, 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 Facility. Specifically, Receiving Water Limitation C(2) in the Industrial Permit requires that the Facility "not cause or contribute to the exceedance of an applicable water quality standard." 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"). American Metal is required to develop and implement BMPs necessary to comply with the Industrial Permit's requirement to achieve compliance with BAT/BCT standards and with Water Quality Standards. BMPs must continue to be developed and implemented to prevent discharges or to reduce contamination in storm water discharged from the Facility sufficient to achieve the numeric limits detailed in Tables 1 and Table 2 in section II.B below.

II. COMMITMENTS OF THE PARTIES

A. Industrial Storm Water Pollution Control Measures

7. The storm water pollution control measures and contaminant reduction provisions of this Consent Decree shall only apply to rainfall events up to and including the 5-year 24-hour return period rain event ("Qualifying Storm Event"), as defined by the National Oceanographic and Atmospheric Administration ("NOAA") Atlas 14, Vol. I, Version 4 (2006) with an assumed dry antecedent condition and 3.9 total inches of rainfall over a 24-hour period. The Parties agree that any discharge of stormwater and/or non-stormwater pollutants from the Facility in connection with a rainfall event that exceeds a Qualifying Storm Event is not a violation of this consent decree.

8. American Metal is in the process of developing and implementing a storm water discharge treatment system involving the use of stormwater holding tanks and filters designed to harvest, capture, store, and treat stormwater prior to discharge from the southeast corner of the Facility. In accordance with the requirements of section II.C below, within thirty (30) days of the Effective Date of this Consent Decree, American Metal shall revise the Stormwater Pollution Prevention Plan ("SWPPP") currently in effect at the Facility to fully describe the current features and treatment capacity of this stormwater treatment system. In addition, American Metal agrees to develop, implement, and/or continue to maintain, as applicable, additional measures as necessary to reduce contamination in storm water discharged from the Facility to levels below the numeric limits set forth in Table 1 and Table 2 in section II.B below. These additional measures may include:

(a) Materials Storage and Industrial Activities. Placing sources of contamination in covered containers or under cover with such areas contained by berming or other containment sufficient to prevent the exposure of pollutants to storm water or rainwater and the runoff or discharge of pollutants;

(b) Coating. Coating structural sources of contamination (e.g. galvanized building roofs (other than the existing non-ferrous building which has been coated)), and siding);

(c) Sweeping. Employing high efficiency sweeping in order to prevent the discharge of pollutants;

(d) Harvesting and Storing Runoff. Constructing and maintaining on-site retention facilities (such as retention ponds or swales, infiltration basins, baker tanks, sumps, cisterns, or dry wells/ injection wells) designed to hold and store the runoff generated by a 5-year 24-hour return period storm event without any off-site discharge;

(e) Treating Runoff. Treating runoff discharging from the site.

(f) Sand Filters. Treating runoff discharging from the site with devices such as sand filters evaluated in the Caltrans Retrofit Study ("CRS") or equivalent treatment devices at appropriate locations.

(g) Routing Discharge to the Publicly Owned Treatment Works. Routing discharge to the publicly owned treatment works ("POTW")/ sanitary sewers, in combination with on-site retention such that flows are discharged off-peak in the POTW so as not to risk exacerbating wet weather Sanitary Sewer Overflow risks from the POTW.

(h) Vehicle and Equipment Maintenance and Fueling.

i. Conducting all vehicle and equipment maintenance and fueling at the Facility on asphalt or another impermeable surface;

ii. Conducting all vehicle and equipment maintenance and fueling at the Facility under cover;

iii. Berming of otherwise containing the surface of the area where vehicle maintenance and fueling occurs (hereinafter "Maintenance and Fueling Area") in order to prevent the exposure of pollutants to storm water or rainwater and the runoff or discharge of pollutants;

iv. Cleaning the Maintenance and Fueling Area as necessary to control track-off of pollutants;

v. Dispensing all petroleum products within the Maintenance and Fueling Area(s);

vi. Installing tire washing facilities at exit points from the Facility to prevent off-site tracking from vehicles;

vii. Annually power washing the entire paved part of the Facility, including areas not reachable by mechanical sweepers, and dispose of the contaminated water consistent with all federal, state and local requirements, and not to area storm drains.

B. Sampling, Monitoring, Inspecting, and Reporting

9. Sampling Program. Within thirty (30) days of the Effective Date of this Consent Decree, Defendant shall revise its monitoring and reporting plan ("M&RP") to comply with this section. All storm water discharge locations shall be sampled at the Facility. Storm water samples collected must represent the discharge at the point it leaves the Facility. For example, if storm water is discharging from both sides of a driveway, two separate storm water samples must be collected from each side of the driveway. Additionally, sampling of stored or contained storm water shall occur at the time the stored or contained storm water is released. Finally, the M&RP shall be revised to include sampling at all new or additional discharge points created in the future.

10. Waterkeeper's Review of Revised M&RP. Defendant agrees to submit the revised M&RP to Waterkeeper for review and comment as soon as it is completed but in any event no later than thirty (30) days from the Effective Date of this Consent Decree. Waterkeeper shall provide comments, if any, to the Defendant within thirty (30) days of receipt of the M&RP. Defendant shall incorporate Plaintiff's comments into the M&RP, or shall justify in writing why any comment is not incorporated within thirty (30) days of receiving comments. Any disputes as to ...


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