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Ventura Coastkeeper, A Program of the Wishtoyo Foundation, and v. Standard Industries

December 14, 2010

VENTURA COASTKEEPER, A PROGRAM OF THE WISHTOYO FOUNDATION, AND WISHTOYO FOUNDATION, A NON-PROFIT CORPORATION PLAINTIFFS,
v.
STANDARD INDUSTRIES, J.M.D.L., INC. DOING BUSINESS AS STANDARD INDUSTRIES, MJL INVESTMENTS LLC, STANDARD DEMOLITION, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. John F. Walter

Daniel Cooper (Bar No. 153576) daniel@lawyersforcleanwater.com Lawyers for Clean Water, Inc. 1004 O'Reilly Avenue San Francisco, California 94129 Tel: (415) 440-6520 Fax: (415) 440-4155 Jason Weiner (Bar No. 259264) jweiner.venturacoastkeeper@wishtoyo.org Wishtoyo Foundation / Ventura Coastkeeper 3875-A Telegraph Road #423 Ventura, CA 93003 Tel: (805) 823-3301 Fax: (805) 258-5135 Attorneys for Plaintiffs William W. Funderburk, Jr. (Bar No. 176244) wfunderburk@candffirm.com Anna L. Cole (Bar No. 258312) acole@candffirm.com Castellon & Funderburk LLP 811 Wilshire Boulevard, Suite 1025 Los Angeles, California 90017 Tel: (213) 623-7515 Fax: (213) 532-3984 JS-6 Attorney for Defendants

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

WHEREAS, Ventura Coastkeeper is a program of the Wishtoyo Foundation, a non-profit public benefit corporation. Ventura Coastkeeper's mission is to protect, preserve, and restore the ecological integrity and water quality of Ventura County's inland water bodies, coastal waters and watersheds. The Wishtoyo Foundation's mission is to preserve, protect and restore Chumash culture, the culture and history of the coastal communities, cultural resources and the environment;

WHEREAS, Ventura Coastkeeper and Wishtoyo Foundation are referred to herein as ("Coastkeeper" or "Plaintiff");

WHEREAS, Standard Industries, J.D.M.L. Inc. doing business as Standard Industries, and MJL Investments LLC are collectively referred to herein as "Defendants" or "Standard";

WHEREAS, Defendants are the owners and/or operators of the scrap metal recycling facility (SIC Code 5093) located at 1905 Lirio Avenue, Ventura, California 93004 ("Facility");

WHEREAS, Standard Demolition does not conduct and has never conducted activities at the Facility that are regulated by the California General Industrial Stormwater Permit, and Standard Demolition does not discharge and has never discharged storm water associated with industrial activity at the Facility;

WHEREAS, based on Standard Demolition's representation, Coastkeeper dismisses Standard Demolition with prejudice for claims alleged in Complaint through the Effective Date;

WHEREAS, on March 23, 2010, Coastkeeper 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 for violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq. ("Clean Water Act" or "CWA"). The notice letter alleged violations of the Clean Water Act for Defendants' discharges of 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");

WHEREAS, on May 28, 2010, Coastkeeper filed a complaint against Defendants in the United States District Court, Central District of California (Civil Case No. CV 10-04039-JFW (SHx)) entitled Ventura Coastkeeper, et al. v. Standard Industries, et al. ("Complaint");

WHEREAS, Defendants deny all allegations of the Complaint;

WHEREAS, Plaintiffs 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;

WHEREAS, all actions taken by Defendants 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 CWA, 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 CWA, 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 Defendants pursuant to Section 505 of the CWA, 33 U.S.C. § 1365;

4. Plaintiffs have 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 Coastkeeper 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. 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 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 Facility sufficient to achieve the numeric limits detailed in Table 1 below.

II. COMMITMENTS OF THE PARTIES

A. Industrial Storm Water Pollution Control Measures

7. Defendants shall implement the BMPs in the Storm Water Pollution Prevention Plan ("SWPPP") and map attached hereto as Exhibit B by October 31, 2010. Defendants shall implement the BMPs in order 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. Included in the SWPPP are the following BMPs: (1) diverting and infiltrating roof runoff; (2) consolidating discharge points to maximize the amount of storm water runoff that is treated by the existing treatment methods already in place at the Facility; (3) reducing the volume of offsite discharges by applying stored runoff to existing on-site scrap piles; and (4) a new sweeping protocol using a new sweeper, Model # Tenant S 30. Defendants are not limited to implementing only BMPs outlined in the SWPPP. If the SWPPP does not effectively prevent discharges or reduce contamination in storm water discharged from the Facility in a manner sufficient to achieve the Numeric Limits detailed in paragraph 11, below, Defendants shall implement additional BMPs developed pursuant to this Consent Decree.

8. The storm water pollution control measures and contaminant mass reduction plans required by this Consent Decree and the Industrial Permit shall be designed and operated to manage through treatment and/or diversion at least 95% of the average annual runoff volume ("Volume-Based Compliance Requirement"). The storm water pollution control measures and contaminant mass reduction plans shall be operated throughout the entire year. The Volume-Based Compliance Requirement will be based on an assumed runoff coefficient of 0.9 and the 20-year rainfall record from the Ventura County Watershed Protection District rainfall gauge VC 175. For the purpose of this Consent Decree, properly documented discharges of storm water and/or storm water pollutants from the Facility in connection with rainfall events that cause runoff volume to exceed the Volume-Based Compliance Requirement is not a violation of this Consent Decree. Any storm water discharge without treatment and/or diversion shall be documented in a report that includes the quantity of water discharged and the reason for the discharge. The report shall be created within fifteen (15) days of any such discharge and shall be provided to Coastkeeper within three (3) days of its completion.

9. As described in paragraphs 12 and 13 below, beginning with the 2010/2011 wet season, and for each year thereafter during the term of this Consent Decree, storm water discharges from the Facility (except storm water discharges in a storm that causes runoff volume to exceed the Volume-Based Compliance Requirement) shall require Defendants to submit an Action Plan by June 30 of each year if the any pollutant concentration in any such storm water discharge exceed any one of the Numeric Limits set forth in Table 1 below. Notwithstanding any other provision of this paragraph, no Action Plan will be required if the Defendants have demonstrated corresponding potential mass emission reductions described in paragraphs 14-15 for any parameter in Table 1.

10. Non-stormwater discharges from the Facility not authorized by the Industrial Permit shall be considered a breach of this Consent Decree.

C. Reduction of Pollutants in Discharges

11. Numeric Limits and Contaminant Reduction. Contaminants in discharges shall not exceed the limits ("Numeric Limits") in Table 1.*fn1 The presence of any contaminant in any discharge from the Facility in excess of, or outside the range of, the Numeric Limits in Table 1 is a breach of this Consent Decree.

Table 1

Contaminant Limit

(All but pH expressed as mg/L; hardness dependent limits in bold)

Total Suspended Solids 100

Total Recoverable Copper 0.0123

Total Recoverable Lead 0.069

Total Recoverable Zinc 0.110

Oil and grease 15

Total Recoverable Aluminum 0.750

Dissolved Arsenic 0.340

Dissolved Cadmium 0.0043 Total Recoverable Iron 1.0 Total ...


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