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Ventura Coastkeeper, A Program of the Wishtoyo Foundation, and v. Dismantled Vehicles and Record Service

March 7, 2012

VENTURA COASTKEEPER, A PROGRAM OF THE WISHTOYO FOUNDATION, AND WISHTOYO FOUNDATION, A NON-PROFIT CORPORATION PLAINTIFFS,
v.
DISMANTLED VEHICLES AND RECORD SERVICE, INC., A CALIFORNIA CORPORATION; AND DISMANTLED VEHICLES AND RECORD SERVICE, INC., DOING BUSINESS AS VENTURA TRUCK ONLY, DEFENDANTS.



The opinion of the court was delivered by: Dolly M. Gee United States District Judge

LAWYERS FOR CLEAN WATER, INC. Layne Friedrich (Bar No. 195431) Email: Layne@lawyersforcleanwater.com Drevet Hunt (Bar No. 240487) Email: Drev@lawyersforcleanwater.com 1004-A O'Reilly Avenue San Francisco, California 94129 Telephone: (415) 440-6520 Facsimile: (415) 440-4155 VENTURA COASTKEEPER Jason Weiner (Bar No. 259264) Email: jweiner.venturacoastkeeper@wishtoyo.org 3875-A Telegraph Rd. #423 Ventura, California 93003 Telephone: (805) 658-1120 Facsimile: (805) 258- 5135 Attorneys for Plaintiffs VENTURA COASTKEEPER, a program of the WISHTOYO FOUNDATION, and WISHTOYO FOUNDATION

JS-6

CONSENT DECREE

WHEREAS, the Wishtoyo Foundation is a 501(c)(3) non-profit public benefit grassroots corporation organized under the laws of the State of California. The Wishtoyo Foundation's mission is to preserve, protect and restore Chumash culture, the culture and history of coastal communities, cultural resources, and the environment;

WHEREAS, Ventura Coastkeeper is a program of the Wishtoyo Foundation. 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;

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

WHEREAS, the Ventura Truck Only facility is located at 918 Mission Rock Road, Suite A, Santa Paula, California ("Ventura Truck Only Facility" or "Facility"). Ventura Truck Only is a leasee of the real property owned by Tim Finnigan.

WHEREAS, the Ventura Truck Only Facility is owned and operated by Dismantled Vehicles And Record Service, Inc., and Dismantled Vehicles And Record Service, Inc., doing business as Ventura Truck Only (hereinafter "Defendants");

WHEREAS, on April 20, 2011, Coastkeeper issued a sixty (60) day notice letter ("Notice Letter") to 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 arising from 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 ("Storm Water Permit");

WHEREAS, on June 24, 2011, Coastkeeper filed a complaint against Defendants in the United States District Court, Central District of California (Case No. CV 11-05295 DMG (AJWx) entitled Ventura Coastkeeper, et al. v Dismantled Vehicles And Record Service, Inc., 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") agree 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 of California 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; and 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 the CWA, 33 U.S.C. §§ 1251 et seq., and to resolve those CWA 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 Storm Water Permit and all applicable provisions of the CWA. Specifically, the Storm Water 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"), and to achieve compliance with applicable water quality standards.

II. EFFECTIVE DATE AND TERMINATION DATE

7. The term "Effective Date," as used in this Consent Decree, shall mean the last day for the United States Department of Justice and the United States Environmental Protection Agency (collectively "Federal Agencies") to comment on the Consent Decree,

i.e., the 45th day following the Federal Agencies' receipt of the Consent Decree, or the date on which the Federal Agencies provide notice that they require no further review and the Court enters the final Consent Decree, whichever occurs earlier.

8. This Consent Decree will terminate on its own terms three (3) years from the Effective Date, unless there is an ongoing, unresolved dispute regarding Defendants' compliance with this Consent Decree.

III. COMMITMENTS OF THE PARTIES

A. Initial Industrial Storm Water Pollution Control Measures

9. As soon as possible, but no more than thirty (30) days after the Effective Date of this Consent Decree, Defendants shall revise their Storm Water Pollution Prevention Plan ("SWPPP") as required by the Stormwater Permit and Monitoring & Reporting Plan ("M&RP") as required by the Stormwater Permit to incorporate the requirements of the Storm Water Permit and this Consent Decree as set forth herein.

10. As soon as possible, but no more than fifteen (15) days after the Effective Date of this Consent Decree, Defendants shall develop and implement BMPs in addition to those required by this Consent Decree 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. All BMPs shall be set forth in the SWPPP. Defendants shall implement the BMPs in order to comply with the provisions of this Consent Decree, and to comply with the requirements of the Storm Water Permit and all applicable provisions of the CWA at the Facility. If the BMPs do not effectively prevent discharges or reduce contamination in storm water discharged from the Facility in a manner sufficient to achieve the Numeric Limits in Table 1, below, Defendants shall develop and implement additional BMPs pursuant to this Consent Decree.

11. Defendants shall take the following measures to control the discharge of pollutants from the Facility:

a. Within fifteen (15) days after the Effective Date, Defendants shall increase its sweeping of any paved surface to ensure that any paved areas are swept during the Wet Season at least once a week and at least 24 hours prior to any precipitation event where more than 0.1 inches of rain is predicted with a minimum likelihood of occurrence of 50% by the nearest National Oceanic and Atmospheric Administration or Santa Paula airport rain gauge, whichever is closer, and during the Dry Season at least once per month. A log of all sweeping done shall be kept.

b. As soon as possible, and in no event later than January 31, 2012, Defendants shall install concrete curbs or berms to prevent storm water run-on to the Facility and to ensure only one storm water discharge point from the Facility.

c. As soon as possible, and in no event later than the January 31, 2012, Defendants shall ensure that all automobile dismantling at the Facility is conducted under a canopy or other cover adequate to prevent precipitation from contacting pollutant sources associated with the act of dismantling the vehicle (which includes, but is not limited to, the vehicle itself while being dismantled, and any portion of the ground where fluids or other materials spill or leak during dismantling).

d. As soon as possible, and in no event later than January 31, 2012, all parts or other materials (other than doors and window glass) removed from a car prior to being sold shall be stored under cover where they will not come in contact with precipitation.

e. As soon as possible, and in no event later than January 31, 2012, Defendants shall ensure that no portion of the parking lot used by Defendants at 918 Mission Rock Road is used for any of Defendants' auto dismantling.

f. To ensure there are no unauthorized non-stormwater discharges, nonstormwater discharges from the Facility not authorized by the Storm Water Permit shall be considered a breach of this Consent Decree.

B. Reduction of Pollutants in Discharges

12. 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. Defendants may discontinue sampling for Total Arsenic, Total Recoverable Mercury, Dissolved Cadmium, Dissolved Nickel, Dissolved Silver, and Chemical Oxygen Demand if any three (3) consecutive samples are below the Table 1 limit for the specific parameter. Defendants may request a meet and confer with Plaintiffs regarding Table 1 Numeric Limits if either (a) a reissued Storm Water Permit contains numeric limits different from those in Table 1, or (b) it applies for and obtains dilution credits or a mixing zone for any of the parameters.

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 ...


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