The opinion of the court was delivered by: Hon. Dean D. Pregerson
ORDER MODIFYING CONSENT DECREE
WHEREAS, Baykeeper and Kramer Inc. (collectively referred to herein as the "Parties") entered into a Consent Decree setting forth terms and conditions appropriate to resolving the allegations set forth in the Complaint;
WHEREAS, on August 3, 2009, the District Court issued an order approving the Consent Decree and retaining jurisdiction over this action to resolve any disputes, including enforcement of the Decree's terms;
WHEREAS, Baykeeper filed a Motion for Civil Contempt, or in the Alternative, Motion to Enforce Consent Decree, ECF Dkt. No. 101, in this court on July 14, 2010;
WHEREAS, Baykeeper alleges that Kramer Metals violated the terms of the Consent Decree by: (1) failing to eliminate stormwater discharges from the areas at the 1760 Slauson Avenue facility ("Kramer 1760") where industrial activities occur (the "Containment Area"), in this instance by failing to roof the Containment Area; (2) installing infiltration ponds at Kramer 1760 without adequate analysis or documentation, without a demonstration that the ponds eliminate discharges from the Containment Area, and without following the Consent Decree's process to evaluate whether infiltration eliminates the discharge; (3) failing to timely provide Baykeeper with documents required by the Consent Decree; (4) failing to make stipulated payments totaling $4,000 for four missed deadlines contemplated in the Consent Decree; and (5) failing to make the agreed-to lump sum payment for the Environmental Mitigation Project and for Baykeeper's attorneys' fees and costs;
WHEREAS, Kramer denies Baykeeper's allegations and does not admit to any liability in connection with the Consent Decree;
WHEREAS, the Parties agree that in an effort to resolve this action without incurring additional fees and costs and to abate discharges of polluted stormwater as soon as possible, the Parties are stipulating to a modification of the Consent Decree ("Stipulation") resolving the disputes at issue;
WHEREAS, the Parties agree, pursuant to paragraph 40 of the Consent Decree to modify the Consent Decree to include the paragraphs set out below and that unless modified by this Stipulation all the terms of the Consent Decree continue in force;
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND ORDERED AND DECREED BY THE COURT AS FOLLOWS:
A. STORMWATER CONTAINMENT PROGRAM
1. Design Storm. The infiltration and containment plans required by this Stipulation are designed and shall be operated to infiltrate at least 95% of the average annual runoff volume ("Volume-Based Compliance Requirement"). The infiltration and containment plans shall be operated throughout the entire year. The Volume-Based Compliance Requirement shall be based on an assumed runoff coefficient of 0.9 and the 20-year rainfall record from the Downtown L.A./USC Campus Rain Gauge ("Design Storm").
2. Defendants shall install canopies, Infiltration Pits A and B, grates at Slauson Avenue and at Holmes Avenue, curbs at Randolph Street, trench drains, catch basins, among other measures, sufficient to capture and infiltrate stormwater as required in paragraph 1 above (collectively, "Stormwater Containment Program"), as fully detailed in The Kramer Facility Stormwater Containment Program (set forth on and attached hereto as Exhibit A). Defendants shall implement the Stormwater Containment Program on or before 1 January 2011.
B. VADOSE ZONE MONITORING
3. Defendant shall install a suction lysimeter vertically below and within the ponding area of the existing infiltration pit, measuring 42 feet by 42 feet by 8 feet, located in the west side of the Kramer facility near Randolph Street ("Infiltration Pit A") by January 31, 2011 ...