EMC [PROPOSED] CONSENT DECREE
WHEREAS, Baykeeper is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of the San Francisco Bay and other area waters;
WHEREAS, Hanson Aggregates Mid-Pacific, Inc. and Hanson Aggregates, LLC, (collectively "Hanson") operate various facilities where sand and other aggregate material is washed, processed, prepared, transported, and sold. Hanson's facilities are located at 448 Amador Street in San Francisco, California ("the Pier 92 Facility"), Pier 94, Port of San Francisco in San Francisco, California ("the Pier 94 Facility"), and 4501 Tidewater Avenue in Oakland, California ("the Tidewater Facility") (collectively, the "Facilities") and shall hereinafter be referred to as "Hanson;"
WHEREAS, stormwater discharges associated with industrial activity are regulated pursuant to the National Pollutant Discharge Elimination System ("NPDES") General Permit No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 92-12-DWQ (as amended by Water Quality Order 97-03-DWQ), issued pursuant to Section 402 of the Federal Water Pollution Control Act, 33 U.S.C. §1342 (hereinafter "Industrial Stormwater Permit");
WHEREAS, discharges associated with Hanson's sand washing activities at the Pier 92 Facility and Tidewater Facility are regulated by the San Francisco Regional Water Quality Control ("Regional Board") Board's NPDES Permit CAG98200, Order No. R2-2008-0011 ("Sand Washing Permit").
WHEREAS, on January 21, 2011, Baykeeper served Hanson, the Administrator of EPA Region IX, the Executive Director of the State Water Resources Control Board ("State Board"), the Executive Officer of the Regional Board, the U.S. Attorney General, and other individuals and entities with a notice of intent to file suit ("60-Day Notice") under Sections 505(a)(1) and (f) of the Federal Water Pollution Control Act ("Clean Water Act" or "the Act"), 33 U.S.C. § 1365(b)(1)(A), alleging violations of the Act, the Industrial Stormwater Permit, and the Sand Washing Permit at the Facilities;
WHEREAS, Baykeeper filed a complaint ("Complaint") against Hanson in the United States District Court, Northern District Court of California on April 8, 2011;
WHEREAS, Baykeeper contends in its 60-Day Notice and Complaint that Hanson has repeatedly discharged polluted stormwater in violation of the Clean Water Act and discharged pollutants in violation of its Industrial Stormwater Permit and Sand Washing Permit and Hanson denies all allegations set forth in the 60-Day Notice and Complaint and contends that Baykeeper's Complaint should be dismissed,
WHEREAS, the Parties, through their authorized representatives and without either adjudication of Baykeeper's claims or admission by Hanson of any alleged violation or other wrongdoing, choose to resolve in full Baykeeper's allegations in the 60-Day Notice and Complaint through settlement and avoid the cost and uncertainties of further litigation;
WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter without further litigation;
NOW THEREFORE, IT IS HEREBY STIPULATED BETWEEN THE PARTIES, AND
ORDERED AND DECREED BY THE COURT, AS FOLLOWS:
1. In order to reduce or prevent pollutants associated with industrial activity in stormwater and authorized non-stormwater, and to eliminate any unauthorized non-stormwater discharges from each Facility into the waters of the United States, Hanson shall implement appropriate structural and non-structural Best Management Practices ("BMPs") as required by the Industrial Stormwater Permit and as described more fully below. In order to further reduce or prevent pollutants in discharges associated with Hanson's sand washing activities, Hanson shall take appropriate actions as required by the Sand Washing Permit and as described more fully below.
II. FACILITY COMPLIANCE MEASURES -- STORMWATER
2. Site Maps: Hanson shall inspect its Pier 94 and Tidewater Facilities so as to complete site maps that comprehensively depict the flow of stormwater at the Facilities ("Site Maps"). The Site Maps shall clearly denote the direction of stormwater flow. The Site Maps shall clearly identify the property boundaries, known or suspected drop inlets, ground type (pervious or impervious), berms and the materials they are comprised of, any permanent structures and features, discharge points, and all other physical structures or items relevant under the Industrial Stormwater Permit and in this Consent Decree.
3. Designated Discharge Points: To the extent not already implemented, Hanson shall identify on the Site Map for the Pier 94 and Tidewater Facilities every location at which stormwater and non-stormwater is known to be discharged or which may potentially be discharged ("Designated Discharge Point or Area"). To the extent not already implemented, each Designated Discharge Point or Discharge Area shall be numbered and clearly labeled on each of the Facility's respective Site Maps.
4. Designation of Process Areas: The portion of the Pier 94 and Tidewater Facilities where industrial processes occur, which may include: (a) preparation of trucks for loading sand and gravel; (b) loading of trucks with sand and gravel; (c) sand washing and aggregate processing; (d) loading or unloading of sand or gravel from barge or ship to the Facility by conveyor belt; and (e) any other activities associated with the processing of sand at the Facilities ("Processing Activities"), will hereinafter be referred to, and be designated on the Pier 94 and Tidewater Facilities' respective Site Maps, as the "Process Areas." Hanson shall operate the Pier 94 and Tidewater Facilities such that Processing Activities described above that generate dust, fine particulate matter, or other materials that can be tracked or entrained in stormwater discharged from the Facilities are conducted within the Process Areas. Hanson shall include in its Site Maps for the Pier 94 and Tidewater Facilities a description of all industrial activities that occur in the Process Areas and where within the Process Areas these activities occur.
5. Designation of Storage Areas: The outdoor storage areas at the Pier 94 and Tidewater Facilities where sand, gravel, or other aggregate materials are stored will hereinafter be referred to as the "Storage Areas," and shall be designated on the Facilities' Site Maps as such. Processing Areas and Storage Areas hereinafter shall be collectively referred to as "Operating Areas."
6. Dust Generating Activities: Hanson shall update the SWPPP and Site Maps for the Pier 94 and Tidewater Facilities to fully describe all industrial activities that generate dust or particulates that may be deposited within the Facility's boundaries; the characteristics of dust and particulate pollutants; the approximate quantity of dust and particulate pollutants that may be deposited within and outside the facility boundaries; and a description of the primary areas of the facility where dust and particulate pollutants would settle. Hanson shall denote all actions taken to control the deposition of dust and particulate matter at the Facilities, including any sweeping activities, water spraying activities, addition of berms, covers, or straw wattles, etc.
7. Designation and Protocol for All Sampling Locations: Hanson shall update the SWPPP for the Pier 94 and Tidewater Facilities to fully describe the protocol for taking stormwater samples. The description shall be precise with respect to exactly where and when the samples are to be collected and shall further explain why the sample points are representative of off-site discharge. For instance, if the discharge point is a driveway, Hanson shall specify which side of the driveway the sample is collected and determine if additional collection points need to be added on the driveway to ensure that the sampling program characterizes all the monitored constituents in the Facility's stormwater runoff. At the Pier 94 Facility, Hanson shall designate the drop inlet currently marked as catch basin number 14 in the existing SWPPP as a sample point for stormwater sample collection in addition to the currently designated off-site drop inlets.
8. Best Management Practices: To comply with Effluent Limitation B(3) and Receiving Water Limitation C(2) of the Industrial Stormwater Permit and the Benchmark and Target Levels specified in Exhibit 1, Hanson shall implement the BMPs set forth in paragraphs 9 - 22 at the Pier 94 and Tidewater Facilities.
9. Storm Drain Inlet/Catch Basin Best Management Practices -- Pier 94 Facility:
a. Prior to October 1 of each year, Hanson shall inspect each storm drain inlet at the Pier 94 Facility. During this inspection, Hanson shall clean, as needed, each drain inlet in order to remove dust and solids that have entered the storm drain inlets.
b. Twice per month during the Wet Season (i.e., from October 1 to May 31 of each year that this Consent Decree is in effect) ("Wet Season"), Hanson shall inspect all storm drain inlets or catch basins at the Pier 94 Facility to ensure that the storm drain inlets or catch basins are not in a condition that would materially impair their efficacy and clean out any sediment deposited into these storm drain inlets or catch basins. Hanson shall properly dispose of any dust, sediment, or other pollutants removed from storm drain inlets or catch basins.
c. Hanson shall cover the on-site storm drain inlet at Pier 94 Facility for the entirety of the summer months (June 1 to September 30) ("Dry Season") with a material that will prevent dust and solids from collecting in the storm drain inlet.
d. Within thirty (30) days of the Effective Date, at the Pier 94 Facility, Hanson shall supplement existing storm drain inlet protection measures for the on-site drain inlet by installing and maintaining gravel bag berms or weighted walnut wattles, consistent with specifications contained in the California Stormwater BMP Handbook. Such storm drain inlet protection measures shall be maintained around the on-site storm drain inlet to slow down the flow of stormwater and reduce the potential sediment and pollution load.
e. Log of Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning: Hanson shall prepare and maintain a log of the Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning described herein ("Maintenance Log"). The Maintenance Log shall indicate the staff who completed the maintenance activity and when it was completed. The Log shall be made available for inspection by Baykeeper at any site inspection or otherwise within two (2) business days advance request by Baykeeper.
10. Silt Fencing: Within sixty (60) days of the Effective Date, at the Pier 94 Facility, Hanson shall install silt fencing along its eastern and southern property border. The silt fencing shall be sourced and installed along the base of the chain-link fence to a height of approximately
3 feet. Silt fencing shall extend to the base of the fence and overlap directly adjoining straw wattles or berms, where applicable, which shall be retained and maintained.
11. Facility Monitoring: Prior to October 1 of each year, and monthly during the Wet Season, Hanson shall conduct inspections of those portions of the Pier 94 and Tidewater Facilities from which stormwater discharges. Such inspections shall include driveways, and outdoor equipment storage areas, Storage Areas, hazardous material areas, and all Process Areas. All Designated Discharge Locations shall also be inspected for accumulation of dust, sediment, sand, grit, oily substances, oily sheens upon any standing water, and other materials associated with operations at the Facilities. If any of these materials are present, Hanson will clean the area.
12. Site Sweeping: After the Effective Date, Hanson shall implement a sweeping schedule at the Pier 94 and Tidewater Facilities as follows: (a) at Pier 94, Hanson shall mechanically sweep all paved surfaces, including driveways, at the facility weekly, and the immediately adjacent roadways daily; and (b) at Tidewater, Hanson shall mechanically sweep all paved surfaces, including the driveway and adjacent roadways, three times per week. If heavy rain or severe weather precludes sweeping at the exit on a particular day, the sweeping shall occur as soon as practicable thereafter.
a. Site Sweeping Log: After the Effective Date, Hanson shall keep a log or checklist, as appropriate, of the on-site (e.g., non-roadway) sweeping activity performed at the Pier 94 and Tidewater Facilities ("Sweeping Log"), and shall direct employees and/or contractors to accurately complete this Log. The Sweeping Log shall indicate the employee or contractor who conducted the sweeping, the location of the sweeping, and the dates the sweeping activities occurred. The Sweeping Log shall be made available for inspection by Baykeeper at any site inspection or otherwise within five (5) business day advance request by Baykeeper.
13. Traffic Flow: Hanson shall update the SWPPP for the Pier 94 and Tidewater Facilities to fully describe the type, direction, and volume of vehicle traffic at the Facilities.
14. Tire Cleaning Mechanisms: Hanson shall continue to operate and maintain the tire/wheel washes at the Pier 94 Facility. Hanson shall install a "rumble rack" system, consisting of plates that are at least 8' x 10' in size and weigh at least 3,750 lbs., at the Tidewater Facility, immediately preceding the truck scale, so that trucks exiting the Facility will deposit readily available sediment prior to exiting the property, and Hanson shall maintain and routinely clean the rumble rack system to ensure the system is free of debris. Hanson shall confirm installation in the updated SWPPPs for the Tidewater Facility submitted to Baykeeper.
15. Paving and Pavement Repair: At the Pier 94 and Tidewater Facilities, Hanson shall routinely inspect paved areas and implement repairs or replacement to damaged surface pavement on an as needed basis.
16. Berming: By October 1, 2011, Hanson shall install the following berms in discrete locations to direct stormwater flows to Designated Discharge Points, which shall also be indicated on Hanson's Site Maps.
a. At the Pier 94 Facility, a contiguous 4 inch high asphalt-type berm shall be installed along the southern, eastern, and northeastern border of the property to control flows and prevent discharge of unabated flow. The berm installed along the southern border will contain several openings for stormwater to exit to the off-site drop inlets. Gravel bags and/or walnut wattles will be placed in front of the opening and regularly maintained and/or replaced so as to allow for filtration and settling of stormwater prior to discharge into the storm drains on the adjacent property.
b. At the Pier 94 Facility, a speed-bump style asphalt berm shall be installed near the gauge area of the tire wash to control flows and prevent the discharge of material off-site.
c. At the Tidewater Facility, a short speed-bump style asphalt berm shall be installed to control drainage near the first entrance/exit of the Facility. Currently, a straw wattle is located near the low point of a depression located within the impervious area of the site. This shall be replaced by the asphalt berm, which shall feature an approximately one foot gap in the center to facilitate drainage. Gravel bags or walnut weighted wattles shall be placed across this gap and regularly maintained and/or replaced for the purposes of added filtration and flow management.
d. Berms shall be constructed in such a manner that, in conjunction with the existing berming and sloping at the Facility, stormwater does not discharge from the Facility except at the Designated Discharge Points. Upon installation of the berms, Hanson shall inspect the perimeter of the Facility to ensure that stormwater cannot be discharged from the Facility at any point other than the Designated Discharge Points. Hanson shall confirm berm installation in the updated SWPPPs for the Pier 94 and Tidewater Facilties submitted to Baykeeper.
17. Hazardous Waste Materials Segregation and Handling: After the Effective Date, to the extent not already implemented, Hanson shall implement a system: (1) for identifying any toxic and hazardous materials handled at the Pier 94 and Tidewater Facilities and
(2) for segregating such identified materials from other materials at the Facility and storing all such materials under cover and on an impermeable surface, out of potential contact with stormwater or site flooding, with the exception of satellite accumulation stations, which may be located on a permeable surface so long as they are not located near a storm drain inlet or catch basin. The requirement that hazardous waste materials be stored "under cover" may be satisfied by storage in a covered drum or ...