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Ventura Coastkeeper, A Program of the Wishtoyo Foundation, and v. Ventura County Auto Parts

June 15, 2012

VENTURA COASTKEEPER, A PROGRAM OF THE WISHTOYO FOUNDATION, AND WISHTOYO FOUNDATION, A NON-PROFIT CORPORATION PLAINTIFFS,
v.
VENTURA COUNTY AUTO PARTS, INC., A CALIFORNIA CORPORATION DEFENDANT.



The opinion of the court was delivered by: Honorable Consuelo B. Marshall District Court Judge Central District OF California

LAWYERS FOR CLEAN WATER, INC. Layne Friedrich (Bar No. 195431) JS6 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

[Proposed] CONSENT DECREE (Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.)

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 County Auto Parts facility is located at 788, 842, 910, 936 and 1021 Mission Rock Road, Santa Paula, California ("VCAP Facility" or "Facility").

WHEREAS, the VCAP Facility is owned and/or operated by Ventura County Auto Parts, Inc. (hereinafter "Defendant");

WHEREAS, on 20 April 2011, Coastkeeper issued a sixty (60) day notice letter ("Notice Letter") to Defendant, 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"), stating its 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 for Defendant's discharges of pollutants into receiving waters in violation of National Pollution Discharge Elimination System ("NPDES") General Permit No. CAS000001 [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 Defendant in the United States District Court, Central District of California (Case No. 2:11-cv-05293 CBM (FFMx)) entitled Ventura Coastkeeper, et al. v. Ventura County Auto Parts, Inc. ("Complaint");

WHEREAS, on September 8, 2011, Coastkeeper filed an amended complaint against Defendant ("Amended Complaint");

WHEREAS, the Defendant denies all allegations of the Complaint and Amended Complaint;

WHEREAS, Plaintiffs and Defendant (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 and Amended Complaint without further proceedings;

WHEREAS, all actions taken by Defendant 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 Court 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 Amended Complaint states a claim upon which relief may be granted against Defendant pursuant to Section 505 of the CWA, 33 U.S.C. § 1365;

4. Plaintiffs have standing to bring this action;

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 Clean Water Act, 33 U.S.C. §§ 1251, et seq., and to resolve those issues alleged by Coastkeeper in its Amended Complaint. In light of these objectives and as set forth fully below, Defendant agrees, 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 five (5) years from the Effective Date, unless there is an ongoing, unresolved dispute regarding Defendant's compliance with this Consent Decree. However, if no numeric limit, as outlined in Table 1, is exceeded for two consecutive Wet Seasons, beginning with the 2014-2015 Wet Season, Defendant may move the Court to terminate the 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 of the Effective Date of this Consent Decree, Defendant shall obtain Storm Water Permit coverage for all operations taking place at the VCAP Facility, and shall revise its Notice of Intent ("NOI"), Storm Water Pollution Prevention Plan ("SWPPP") that is required by the Industrial General Storm Water Permit ("Storm Water Permit"), and Monitoring & Reporting Plan ("M&RP") that is required by the Storm Water Permit to incorporate the requirements of the Storm Water Permit and this Consent Decree as set forth herein.

10. Defendant shall develop and implement BMPs 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. Defendant 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, Defendant shall develop and implement additional BMPs pursuant to this Consent Decree.

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

a. Within fifteen (15) days of the Effective Date, Defendant shall develop and implement a sweeping protocol that includes the use of a regenerative sweeper or a Tennant Model S30 sweeper and ensures that any paved areas and any drainage channel upstream of any discharge point at the Facility are swept during the Wet Season (defined as October 1-May 31) at least twenty-four (24) hours prior to any likely precipitation event forecast of 50% or greater probability and at least once per week in the Wet Season, and once per week during the Dry Season.

b. Within fifteen (15) days of the Effective Date, Defendant shall install concrete curbs or berms to prevent storm water run-on to each of the properties that make up the Facility.

c. Within fifteen (15) days of the Effective Date, Defendant shall develop and implement a plan to prevent track-off of pollutants from each of the properties that make up the Facility.

d. Within fifteen (15) days of the Effective Date, Defendant shall ensure that Defendant does not conduct automobile dismantling or draining of fluids outdoors at the Facility during precipitation events, and develop and implement a plan to cover areas where automobile dismantling or draining of fluids occurs prior to and during any precipitation events.

e. Within fifteen (15) days of the Effective Date, all parts or other materials other than doors and window glass removed by Defendant from a car prior to being sold shall be stored under cover where they will not come in contact with precipitation.

f. Within fifteen (15) days of the Effective Date, Defendant shall develop and implement a plan to clean any bins or containers at the Facility used to store scrap metal or dismantled car parts (e.g., engines, cores, brakes) that ensures the removal of all residue or remnant materials stored in any bin or container each time the container or bin is emptied, or at least four times a year.

g. Within fifteen (15) days of the Effective Date, Defendants shall develop and implement a plan that ensures all materials stored in bins, containers, or containment structures at the site are stored under cover and not subject to contact with precipitation.

h. By May 1, 2012, VCAP shall develop and submit to Coastkeeper for review and comment, a plan ("the 936 Pretreatment and Infiltration Plan") for the installation of a pretreatment system and infiltration gallery to capture storm water at the portion of the Facility located at 936 Mission Rock Road ("936 Site").. The site-specific pretreatment and infiltration system shall be capable of containing and infiltrating the volume of runoff generated by the 95th percentile storm occurring over 24 hours ("Design Standard"), which was calculated based on historical rainfall measured at Ventura County Watershed Protection District's gauge VC 245A (Santa Paula -- UWCD) from October 1986 through September 2010.*fn1 The system performance monitoring will include flow totalizers at the locations where bypass may occur and a rain gage to document rainfall depths at the site.

Coastkeeper shall have twenty-one (21) days to review and comment on the 936 Pretreatment and Infiltration Plan. Defendant shall have fourteen (14) days to accept Coastkeeper's comments and incorporate them into the 936 Pretreatment and Infiltration Plan, or to respond to Coastkeeper's comments in writing, explaining why the comments were not accepted and incorporated. Disputes regarding the adequacy of the 936 Pretreatment and Infiltration Plan shall be subject to Dispute Resolution under Section IV. The 936 Pretreatment and Infiltration Plan shall be completely implemented no later than October 1, 2012. Following complete implementation of the 936 Pretreatment and Infiltration Plan, discharges from the 936 Site occurring as a result of precipitation that exceeds the Design Standard shall not be required to meet the Numeric Limits in Table 1.

i. VCAP agrees to meet the Numeric Limits for surface discharges at the portion of the Facility located at 1021 Mission Rock Road ("1021 Site"). VCAP agrees to monitor groundwater at the 1021 Site beginning with the 2012-2013 wet season. VCAP agrees to submit a Groundwater Monitoring Work Plan for the 1021 Site ("1021 Groundwater Monitoring Work Plan") by June 1, 2012. The 1021 Groundwater Monitoring Work Plan shall include a well or wells designed and operated to sample groundwater potentially impacted by infiltrating storm water. The 1021 Site Groundwater Monitoring Work Plan shall ensure the installation of well or wells directly adjacent (i.e., beneath or as close as physically possible) to areas of infiltration at the 1021 Site so as to ensure the detection of impacts of storm water percolating to groundwater. The 1021 Site Groundwater Monitoring Work Plan shall also set forth the monitoring well sampling procedures to ensure that samples taken of groundwater, as required by Paragraph 18 of the Consent Decree, are representative of the groundwater influenced by storm water percolating from the areas of the 1021 Site where infiltration occurs. Coastkeeper shall have twenty one (21) days to review and comment on the 1021 Site Groundwater Monitoring Work Plan. Defendant shall have fourteen (14) days to accept Coastkeeper's comments and incorporate them into the 1021 Site Groundwater Monitoring Work Plan, or to respond to Coastkeeper's comments in writing, explaining why the comments were not accepted and incorporated. Disputes regarding the adequacy of 1021 Site Groundwater Monitoring Work Plan shall be subject to Dispute Resolution under Section IV.

j. In the event operational areas at the 1021 Site change (e.g., scrap metal processing or storage areas, or automobile dismantling or fluid draining or part storage areas are moved to a different location), VCAP shall submit a Revised 1021 Site Groundwater Monitoring Work Plan that includes necessary modifications to the 1021 Site Groundwater Monitoring Work Plan to account for the changes in the 1021 Site's operational layout. When a Revised 1021 Site Groundwater Monitoring Work Plan is submitted, VCAP shall submit $5,000 to Coastkeeper to compensate Coastkeeper for its review and comment on the Revised 1021 Site Groundwater Monitoring Work Plan.

k. Unless the required Conditional Use Permit is obtained for the portion of the Facility located at 910 Mission Rock Road ("910 Site"), or an infiltration gallery with a groundwater monitoring well is implemented as described below for the 910 Site, VCAP will not conduct any industrial operations on the 910 Site.

l. In the event a Conditional Use Permit is obtained for the 910 Site, VCAP shall have until the beginning of the next Wet Season to develop and implement a plan for the pretreatment and infiltration of storm water ("910 Pretreatment and Infiltration Plan"). Within sixty (60) days following the obtainment of a Conditional Use Permit for the 910 Site, the Defendant shall develop and submit the 910 Pretreatment and Infiltration Plan to Coastkeeper for review and comment. The site-specific pretreatment and infiltration system shall be capable of containing and infiltrating the volume of runoff generated by the 95th percentile storm occurring over 24 hours ("Design Standard"), which was calculated based on historical rainfall measured at Ventura County Watershed Protection District's gauge VC 245A (Santa Paula -- UWCD) from October 1986 through September 2010.*fn2 The system performance monitoring will include flow totalizers at the locations where bypass may occur and a rain gage to document rainfall depths at the site. Coastkeeper shall have twenty-one (21) days to review and comment on the 910 Pretreatment and Infiltration Plan. Defendant shall have fourteen (14) days to accept Coastkeeper's comments and ...


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