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Our Children's Earth Foundation v. Second Amended Consent Decree Standard Iron and Metals Clean

August 29, 2011

OUR CHILDREN'S EARTH FOUNDATION, PLAINTIFF,
v.
SECOND AMENDED CONSENT DECREE STANDARD IRON AND METALS CLEAN WATER ACT, 33 U.S.C. 1251 ET. COMPANY, SEQ. DEFENDANT.



WHEREAS, Our Children's Earth Foundation (hereinafter, "OCE") is a non-profit public benefit corporation dedicated to protecting the environment, including San Francisco Bay;

WHEREAS, Standard Iron and Metals Company (hereinafter, "SIMCO") is a California corporation engaged in the collection and recycling of scrap metal with a facility at 4525 San Leandro Street, Oakland, California ("the Facility"), and Jason Allen is the President of SIMCO;

WHEREAS, storm water discharges associated with industrial activity in California are regulated pursuant to the National Pollutant Discharge Elimination System ("NPDES"), General Permit No. CAS000001, State Water Resources Control Board Water Quality Order No. 91-13- DWQ, as amended by Water Quality Order 92-12-DWQ and 97-03-DWQ (the "General Permit"), issued pursuant to Section 402 of the of the Federal Water Pollution Control Act, 33 U.S.C. section 1251 et seq. ("CWA" or "Clean Water Act");

WHEREAS, on April 27, 2005, pursuant to Clean Water Act Section 505(b)(1)(A), OCE served SIMCO, Jason Allen, the United States Environmental Protection Agency, the State Water Resources Control Board ("SWRCB"), the San Francisco Bay Regional Water Quality Control Board ("RWQCB"), and the United States Attorney General with a notice of intent to file suit ("60-Day Notice") under Sections 505(a)(1) and (f) for alleged violations of the Clean Water Act and the General Permit at the Facility;

WHEREAS, on January 10, 2006, OCE filed a complaint alleging violations of the Clean Water Act and the General Permit against SIMCO and Jason Allen ("the Complaint") in the United States District Court for the Northern District of California, thereby initiating this action, case number C06-0168 MJJ ("the Lawsuit");

WHEREAS, the parties to the Lawsuit ("the Parties") proposed a Consent Decree which was subsequently entered by the Court as an Order on September 5, 2006, at Docket [15];

WHEREAS, the Consent Decree dismissed OCE's claims against Jason Allen and set September 5, 2009 as the Termination Date for the Consent Decree, among other things;

WHEREAS, the Parties requested that the Court extend the term of the Consent Decree by an additional two years, and the Court accordingly entered the Parties' Amended Consent Decree as an Order of the Court on September 11, 2009, at Docket [26];

WHEREAS, the Parties wish to extend the term of the Consent Decree by up to an additional two years, and have therefore submitted this Second Amended Consent Decree for entry as an Order of the Court;

WHEREAS, this Second Amended Consent Decree restates the relevant provisions of the Amended Consent Decree, amends certain substantive provisions concerning obligations of the Parties during the next two years, and appends a new 2011 Addendum;

WHEREAS, SIMCO denies the material allegations of the Lawsuit and denies liability for the causes of action alleged in the Complaint;

WHEREAS, by execution of -- and performance of the obligations under -- this Second Amended Consent Decree, SIMCO does not admit any facts or conclusions of law;

WHEREAS, nothing contained in this Second Amended Consent Decree shall constitute or be construed, considered, offered or admitted, in whole or in part, as evidence of an admission or evidence of fault, wrongdoing, or liability by SIMCO, its officers, directors, agents or employees, in any administrative or judicial proceedings or litigation in any court, agency or forum whatsoever;

WHEREAS, this Second Amended Consent Decree shall be submitted to the United States Department of Justice for the statutory review period pursuant to 33 U.S.C. § 1365(c);

WHEREAS, all actions taken by SIMCO pursuant to this Second Amended Consent Decree shall be made in compliance with all applicable federal, state, and local rules and regulations;

WHEREAS, OCE and SIMCO agree that it is in their mutual interest to enter into this Second Amended Consent Decree and submit it to the Court for its approval and entry as an Order of the Court;

WHEREAS, as part of its efforts to maintain compliance with the CWA and the General Permit, SIMCO has installed and maintains a two-stage storm water treatment plant at the Facility, consisting of an oil/water separator and a storm water filter ("Storm Water Treatment Plant") and, since the entry of the original Consent Decree, has made significant structural modifications to the Storm Water Treatment Plant in an effort to improve its performance;

WHEREAS, the objectives of this Second Amended Consent Decree are to ensure that SIMCO continues to endeavor diligently to maintain compliance with the CWA and the General Permit, to ensure that SIMCO continues to use, implement, and improve ways, means, and methods to reduce the discharge of pollutants to waters of the United States, and to further the goals and objectives of the CWA and the General Permit;

WHEREAS, to implement these objectives, the Parties agree to the terms specified in Parts I through XI of the Second Amended Consent Decree, below, which shall be enforceable by each of the Parties and by the Court;

WHEREAS, Part V of the Second Amended Consent Decree, below, consists of a dispute resolution mechanism that will allow the Parties to resolve most or all disputes that may arise under the Consent Decree ("Dispute Resolution") without consuming the time or resources of the Court;

NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

I. COMMITMENT OF SIMCO

1. Existing Compliance Measures. SIMCO shall continue to implement all measures specified in the Facility's November 2006 revision of its Storm Water Pollution Prevention Plan ("November 2006 SWPPP", hereby incorporated in this Second Amended Consent Decree as if set forth fully herein), unless and until SIMCO modifies the November 2006 SWPPP to comply with this Consent Decree or with the General Permit or the CWA in which case SIMCO shall comply with its adopted revised SWPPP.

2. New and Modified Compliance Measures. To prevent storm water from coming into contact with contaminants at the Facility and to prevent or reduce the discharge of contaminated storm water and non-storm water from the Facility into the waters of the United States, as required by the General Permit, SIMCO shall implement the structural and non-structural storm water and non-storm water management measures specified in Part II, below, and, to the extent not already incorporated, shall amend the November 2006 SWPPP to incorporate each of these measures. SIMCO shall continue to implement the measures specified in Part II unless and until those measures are modified by SIMCO to comply with the General Permit or the CWA.

3. Designated Discharge Points: SIMCO has identified all points from which storm water is discharged from the Facility ("Designated Discharge Point"). Each Designated Discharge Point shall be identified and clearly labeled on the Storm Water Drainage Plan contained in the SWPPP.

II. STORM WATER AND NON-STORM WATER MANAGEMENT MEASURES

4. Storm Water and Non-Storm Water Management Measures. In accordance with the terms of this Consent Decree and the General Permit, SIMCO shall implement the following storm water and non-storm water management measures as Best Management Practices ("BMPs") to the extent necessary to comply with the General Permit and make reasonable progress toward compliance with the Water Quality Standards ("WQS") and EPA Benchmark levels specified in Exhibit B to this Consent Decree, filed with the Court at Docket [15-9] and hereby incorporated in this Second Amended Consent Decree as if set forth fully herein:

a. Designation of Process Areas. The areas of the Facility in which sorting, crushing, torch-cutting, baling, shearing, and/or other processing activities (collectively, "Processing Activities") occur shall hereinafter be referred to and shall be designated on the Storm Water Drainage Plan contained in the Facility's SWPPP as the "Process Areas." SIMCO shall operate the Facility such that Processing Activities that generate finely divided metals, dust, shavings, or other materials that can be tracked or entrained in storm water discharging from the Facility, are conducted within the Process Areas to the extent feasible, considering the nature of the Facility's business operations.

b. Storm Drain Inlet/Catch Basin Inspection. From October 1 to May 31 each year ("Wet Season"), SIMCO shall inspect all storm drain inlets/catch basins at the Facility at least twice per month and prior to any forecasted storm event that could reasonably be expected to result in a storm water discharge from the Facility. During this inspection, SIMCO shall clean each storm drain inlet/catch basin and any associated filter device to remove fugitive dusts or solids that might have entered the inlet/basin despite the placement of coverings over the inlet/basin and shall properly dispose of any sediments or other pollutants removed from storm drain inlets or catch basins. Any filter devices within the storm drain inlets/catch basins shall also be checked to ensure they are in working order and shall be repaired and/or replaced as necessary, if they are determined to be in a condition that would materially impair their efficacy.

c. Storm Drain Inlet/Catch Basin Log. SIMCO shall prepare and maintain a log of all inspections, maintenance and cleaning of storm drain inlets/catch basins at the Facility. The log shall identify the person who conducted the inspections, the date of inspection, the date of cleaning or maintenance, the date of filtration system replacement, and any other actions taken as a result of the inspection. SIMCO shall make the log available to OCE during inspections of the Facility conducted by OCE pursuant to the terms of this Consent Decree.

d. Stormwater Treatment Plant Inspection. During the Wet Season, SIMCO shall inspect the Stormwater Treatment Plant at least twice per month and prior to any forecasted storm event that could reasonably be expected to result in a storm water discharge from the Facility. During this inspection, SIMCO shall clean the Stormwater Treatment Plant to remove any materials that may impede its performance. The filter devices within the storm water filter system shall also be checked for integrity and replaced as necessary.

e. Stormwater Treatment Plant Log. SIMCO shall prepare and maintain a log of all inspections, maintenance and cleaning of the Stormwater Treatment Plant. The log shall identify the person who conducted the inspections, the date of inspection, the date of cleaning or maintenance, the date of filtration system replacement, and any other actions taken as a result of the inspection. SIMCO shall make the log available to OCE during inspections of the Facility conducted by OCE pursuant to the terms of this Consent Decree.

f. Site Sweeping and Cleaning. SIMCO shall implement a routine maintenance site sweeping and cleaning plan to prevent the tracking of metal shavings and other pollutants outside the active operational areas of the Facility and to minimize the area where metal shavings and other pollutants are dispersed ("Sweeping Plan"). The purpose of the Sweeping Plan shall be to prevent, to the extent reasonably possible, the entry of metal shavings and other pollutants into storm water at the Facility. The Sweeping Plan shall:

(i) specify that sweeping and cleaning shall be designed to minimize tracking and other dispersal of pollutants on paved areas of the Facility;

(ii) specify that, in areas where material stockpiles have been cleared, mechanical or manual sweeping of the area shall be conducted prior to further use of those areas for material stockpiling;

(iii) identify areas where mechanical sweeping is feasible, areas where manually sweeping only is feasible, areas where sweeping is not reasonably feasible (such as under piles of metal not reasonably feasible to move);

(iv) identify areas where daily sweeping is likely needed during the Wet Season, and areas where less frequent sweeping during the Wet Season is likely to be adequate;

(v) identify the more limited sweeping and cleaning necessary during times other than the Wet Season to reduce pollutant accumulation and prevent dust from blowing into hard-to-clean areas where storm water is likely to reach during the Wet Season;

(vi) identify triggers for more frequent ad hoc sweeping or cleaning;

(vii) identify the type of equipment that will be employed for sweeping;

(viii) specify that, at least annually, SIMCO shall conduct a thorough inspection of the Facility and, to the extent warranted by this inspection, perform additional comprehensive site cleaning with power wash or other methods reasonably calculated to remove significant accumulations of finely divided metals, dust, shavings, or other pollutants;

(ix) specify that SIMCO shall not discharge any waste fluids or solid wastes generated in site cleaning to storm drain inlets or waterways; and

(x) specify that SIMCO shall collect and dispose of all wastes generated during Facility cleaning and sweeping in a manner that complies with all local, state, and federal laws.

SIMCO shall adjust and update this Sweeping Plan as changes in circumstances warrant. SIMCO shall provide OCE with a copy of any revised Sweeping Plan within fourteen (14) business days of adopting such revised Plan. OCE shall have fourteen (14) days to suggest revisions to the Sweeping Plan and provide SIMCO with its reasons for such revisions. Within fourteen (14) days, SIMCO shall either adopt the revisions suggested by OCE or provide OCE with its reasons for rejecting any such revisions. If the parties are unable to agree on all material provisions of the Sweeping Plan, either Party may invoke Dispute Resolution, as provided in this Consent Decree.

g. Sweeping and Cleaning Log. SIMCO shall prepare and maintain a log or checklist of all site sweeping and cleaning performed at the Facility. The log or checklist shall demonstrate that, at least daily, SIMCO supervisory personnel and/or their designee(s) have determined that all applicable site sweeping and cleaning activities set forth in the Sweeping Plan have been completed by SIMCO personnel. The log shall contain the printed name and signature (or signed initials) of each SIMCO employee making this determination. SIMCO shall make the log available to OCE during inspections of the Facility conducted by OCE pursuant to the terms of the Consent Decree. SIMCO shall provide OCE with the log or checklist three times per year while this Second Amended Consent Decree is in effect, on the following schedule: on or before October 15 (for the time period June-September), on or before February 15 (for the time period October-January), and on or before June 15 (for the time period February-May).

h. Tracking. SIMCO shall implement appropriate additional BMPs to reduce or prevent visible tracking of significant pollutants from the Facility by vehicle traffic, to the extent that the sweeping and cleaning actions specified in the preceding subparagraph and/or other actions required by this Consent Decree are insufficient to prevent such visible tracking.

i. Hazardous Waste Materials Segregation and Handling. SIMCO shall continue to:

(i) identify any toxic and hazardous materials (such as lead batteries, solvents, liquid toxic or hazardous wastes, or petroleum contaminated materials) improperly or mistakenly delivered to the Facility, which does not accept such materials as part of its business operations; and

(ii) segregate such identified materials from other materials at the Facility and store all such materials under cover or in a container on an impermeable surface, out of potential contact with flooding associated with storm water, with the exception of satellite accumulation stations, which may be located on a permeable surface.

j. Vehicle and Equipment Management. SIMCO shall continue to implement BMPs to reduce or minimize pollutant release from equipment such as trucks, forklifts, hydraulic lifts, and other heavy equipment. Such BMPs include:

(i) daily inspections for evidence of leaks from such equipment, and

(ii) cleaning up of spills, drips, or leaks from such equipment as soon as reasonably possible, and in no event later than in advance of forecasted rainfall events. Any spilled substances and absorbent materials used in cleaning up spills shall be disposed of in accordance with all local, state, and federal laws and regulations.

k. Vehicle and Equipment Maintenance. SIMCO shall not conduct vehicle or mobile equipment maintenance or repair in outdoor, uncovered areas during rainfall events. Whenever SIMCO conducts such maintenance or repair activities in non-covered areas, SIMCO shall afterwards inspect the area where the maintenance or repair occurred and clean up any waste products, including pollutant-containing fluids, deposited or spilled on the ground as a result of the maintenance or repair.

l. Additional Structural Controls. SIMCO has implemented and shall maintain in operation the following structural storm water and non-storm water management measures:

i. Steel covers for all storm water catch basins at the Facility. SIMCO shall use these covers at all appropriate times during the dry weather season and during extended periods of dryness in the wet weather season.

ii. Two collection bins for machine shop borings/turnings that minimize contact of potential pollutants in these borings/turnings with the surface of the Facility. One collection bin is designed to facilitate collection and movement of the borings/turnings by the Facility's hoppers, and the other bin is designed with vehicular drive-on unloading capacity. Each bin is designed to drain any liquid into a separate compartment of the bin, with such liquid to be drained into drums and either (i) taken offsite by a licensed waste hauler for disposal in accordance with all applicable local, state, and federal laws and regulations, or (ii) discharged to the sanitary sewer in accordance with all applicable laws and regulations.

iii. A storm water collector to intercept storm water flow in the active driveway area of the Facility bordering San Leandro Street and direct such flow to the unpaved area in the northeast corner of the Facility. This storm water flow will be managed via infiltration into this unpaved area and/or by being ...


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