The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
[PROPOSED] CONSENT DECREE
WHEREAS, Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE ("CSPA") is a 501(c)(3) non-profit, public benefit corporation organized under the laws of the State of California, dedicated to the protection, enhancement, and restoration of the Suisun Bay, the San Francisco Bay, and other California waters. Bill Jennings is the Chairperson and a member of CSPA.
WHEREAS, Defendant DAVIS WASTE REMOVAL CO., INC. ("Defendant" or "DWR") is a corporation organized under the laws of California.
WHEREAS, Defendant operates a recycling facility located at 2727 Second Street in Davis, California. The Facility receives, sorts, and processes a variety of materials for recycling.
WHEREAS, Defendant discharges storm water at the Facility pursuant to State Water Resources Control Board Water Quality Order No. 97-03-DWQ, National Pollutant Discharge Elimination System General Permit No. CAS000001, Waste Discharge Requirements for Discharges of Storm Water Associated with Industrial Activities Excluding Construction Activities (hereinafter, the "General Permit"). A map of the Facility is attached hereto as Exhibit 1 and incorporated by reference;
WHEREAS, on or about June 1, 2010, CSPA served Defendant, the United States Attorney General, the national and Region IX offices of the United States Environmental Protection Agency, the State Water Resources Control Board ("State Board") and the Regional Water Quality Control Board -- Central Valley Region ("Regional Board") with a Notice of Violation and Intent to File Suit ("60-Day Notice") under Sections 505(a)(1) and (f) of the Federal Water Pollution Control Act (the "Act" or "Clean Water Act"), 33 U.S.C. § 1365(a)(1) and (f);
WHEREAS, the 60-Day Notice alleged that Defendant has violated and continues to violate Sections 301(a) and 402(p) of the Clean Water Act, 33 U.S.C. § 1311(a) and 1342(p), due to discharges of polluted storm water from the Facility in violation of the General Permit;
WHEREAS, on August 5, 2010, CSPA filed a complaint against Defendant in the United States District Court for the Eastern District of California, entitled California Sportfishing Protection Alliance v. Davis Waste Removal Co., Inc. (Case No. 2:10-cv-02079-GEB-JFM) (hereinafter "Complaint" or "Action"). A true and correct copy of the Complaint as well as the 60-Day Notice is attached hereto as Exhibit 2;
WHEREAS, Defendant Davis Waste Removal denies any and all claims in the Notices; WHEREAS, Defendant Davis Waste Removal maintains that is has been, at all relevant times, and continues to be, in compliance with the Clean Water Act, The General Permit, and denies the occurrence of the violations alleged in the Notices;
WHEREAS, CSPA and Defendant (hereinafter, collectively referred to as the "Settling 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, after agreement of the Settling Parties to this proposed Consent Decree, the proposed Consent Decree will be submitted to the United States Department of Justice and the national and Region IX offices of the United States Environmental Protection Agency for the statutory review period pursuant to 33 U.S.C. § 1365(c) at least 45 days prior to the submittal of this Consent Decree to the Court for entry;
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING PARTIES AND ORDERED AND DECREED BY THE COURT AS FOLLOWS:
1. DWR agrees, to the extent it has not already done so, to operate the Facility in compliance with the applicable requirements of the General Permit and Clean Water Act. If, because of any other court order, change in law, and/or upon the effective date of an amended or revised General Permit, the applicable requirements of the General Permit and Clean Water Act should change, DWR agrees to comply with the controlling law, including revisions to the General Permit as authorized by law.
2. In order to prevent storm water from coming into contact with contaminants at the Facility and/or to prevent the discharge of waste or contaminated storm water from the Facility into the waters of the State and of the United States, DWR shall implement additional and/or different structural and non-structural best management practices ("BMPs") as described more fully below. DWR shall maintain all structural BMPs at the site in good operating condition. The effectiveness of the BMPs shall be measured by comparing analytical results of storm water discharge samples with the "Levels of Concern" set forth in Paragraph 22. Exceeding Levels of Concern shall cause the initiation of actions as discussed below.
IMPROVEMENTS TO THE FACILITY'S STORM WATER POLLUTION CONTROL MEASURES
3. By not later than November 2, 2011, DWR shall install and maintain the Baker Corp. Box Culvert Filtration System ("Filtration System") as illustrated in Exhibit 3. The Filtration System shall have the reported capacity to handle a design intensity of 0.2 inches per hour at the Facility (based upon the cumulative rainfall intensity curve Sacramento 5 ESE (7633) from the California Stormwater Handbook). The Filtration System shall fully capture and treat 95 percent of the volume of runoff generated from the 1-hour storms as measured by runoff flowing through the Filtration System. All storm water falling on the facility (except as provided in paragraph 5 below) shall be collected and conveyed to the intake of the Filtration System. Any storm water flows exceeding the capacity of the Filtration System shall be by-passed through the by-pass weir identified on Exhibit 4. The Filtration System shall fully capture and treat 85 percent of the total annual volume of storm water runoff resulting from the rain falling on the Facility in an "average rainfall year". An "average rainfall year" shall be defined as 17.26 inches. By agreeing to this minimum requirement, CSPA expressly does not concur that the Filtration System achieves the BAT or BCT standards.
4. As of the effective date of this Agreement, CSPA takes the position that a treatment system achieves BAT/BCT at the Facility if it captures and treats 95 percent of the total annual volume of storm water runoff resulting from the rain falling on the Facility in an "average rainfall year," as that term is defined in Paragraph 3. At the conclusion of each rainy season, if the Filtration System fails to capture and treat 95 percent of the total annual volume of storm water runoff resulting from the rain falling on the Facility in the "average rainfall year," DWR shall prepare the written memorandum report and the parties shall engage in the meet and confer process set forth at Paragraphs 22 to 30 below.
5. DWR may reroute directly to a municipal storm drain storm water raining on the front of the employee parking area and the western half of the roof of the office building as depicted on the attached Exhibit 1.
6. By not later than September 1, 2012, DWR shall install three continuous flow meters that shall measure and record the total volume of all storm water fully treated at the Facility and the total volume of all storm water bypassing the treatment system and discharging from the Facility (excluding the flows addressed in Paragraph 5 above). A continuous flow meter shall be installed to measure all flow in the influent pipe labeled "East Side of Facility" ("East Side Flow") shown in Exhibit 4 to this Consent Decree, which exhibit is hereby incorporated by reference. A second continuous flow meter shall be installed to measure all flow in the influent pipe labeled "West Side of Facility" shown in Exhibit 4 ("West Side Flow"). A third continuous flow meter shall be installed to measure all flow exiting the pipe labeled "Treated Storm Water" " shown in Exhibit 4 ("Total Treated Flow"). DWR shall measure and report the total volume of all storm water bypassing the treatment system and discharging from the facility (excluding the flows addressed in Paragraph 5 above) by subtracting the Total Treated Flow from the sum of the West Side Flow plus the East Side Flow (i.e. Total Bypass = (West Side Flow East Side Flow) - Total Treated Flow). DWR stipulates that this method of calculating the volume of storm water bypassing the Filtration System is technically appropriate and accurate. The storm water flow records shall be compiled monthly. DWR will pursue installation of a digital logging flow meter as part of the permanent system.
7. By September 1, 2012, DWR shall provide CSPA with a description of the installed flow meters, including their type, location, and flow capacity. In the interim, DWR shall provide CSPA with flow records for the amount of treated water under the existing system along with notes and dates indicating if, when, and for how long there is bypass from the existing system based upon visual observation, the protocol for this visual observation, and an estimate of the volume of water bypassing the system. . From September 2012 through February 2013, DWR shall e-mail and send via first class mail to CSPA the flow records obtained for each of those months by the 15th of the following month. For each wet season, DWR shall e-mail and send via first class mail the compiled flow records for the entire wet season to CSPA not later than July 30th following the conclusion of each wet season. At the request of CSPA, the parties shall promptly meet and confer regarding any question about the adequacy or location of the flow meters.
8. DWR agrees to contract with a mutually agreed upon company to provide regenerative sweeping services at the Facility on a twice monthly basis, in lieu of use of mechanical brush sweepers, for all sweeping required under the Facility‟s Storm Water Pollution Prevention Plan ("SWPPP").
9. DWR agrees to have a staff person perform cleaning of any and all oil stains, grease stains, and any other vehicle fluid leakage in all areas of the Facility in which Facility vehicles are parked or stored no less than three (3) days per week, at all times during the year.
10. DWR agrees to cover any and all idle vehicles, meaning vehicles not in regular use by the Facility for more than thirty (30) days at a time, as well as any other surplus Facility equipment not in regular use by the Facility for the same period of time, and which is stored outdoors, using impervious tarp-like covers, or the functional equivalent of such covers, which cover the idle vehicle or equipment. The covering shall be designed and implemented so as to prevent storm water from coming in contact with the covered vehicles or equipment. This condition is required to be met only during the period from October 1 to May 30 of each year.
11. DWR shall install and maintain in proper working order a Triton storm water filter at the drop inlet at the northeast end of the Facility property, in the unpaved storage area, which drop inlet did not have a filter in place at the time of CSPA‟s tour.
12. DWR agrees to the following improvements in its outdoor storage bins: DWR agrees to utilize watertight storage bins for the collection and retention of all street sweepings that are collected and stored at the Facility for any period of time. DWR shall not ...