Consent Decree Civil Case No. 2:12-cv-00222-KJM-DAD
The following Consent Decree is entered into by and between Plaintiff California Sportfishing Protection Alliance ("Plaintiff" or "CSPA"), and Defendants Pick-n-Pull Auto Dismantlers, a California general partnership, Pick and Pull Auto Dismantling, Inc., and Norprop, Inc. (collectively "Defendants" or "PNP"). The entities entering into this Consent Decree are each an individual "Settling Party" and collectively "Settling Parties."
WHEREAS, CSPA is a non-profit public benefit corporation dedicated to the preservation, protection, and restoration of the environment, the wildlife and the natural resources of all waters of California, including the Sacramento River, the American River, and the Sacramento-San Joaquin River Delta;
WHEREAS, Plaintiff alleges that Pick and Pull Auto Dismantling, Inc., Schnitzer Steel Industries, Inc., Auto Parts Group, Norprop Inc., and Pick-n-Pull Auto Dismantlers are each an owner and/or operator of the automobile dismantling and used auto parts facility located at 3419 Sunrise Boulevard in Rancho Cordova, California (hereinafter the "PNP Facility" "or "Facility");
WHEREAS, Defendants aver that Pick-n-Pull Auto Dismantlers is the owner and operator of the PNP Facility, and is responsible for compliance with the requirements of the Clean Water Act;
WHEREAS, Defendants' operations involve the de-pollution and recycling of end-of-life vehicles, thus contributing to protection of the environment and conservation of natural resources;
WHEREAS, storm water at the PNP Facility discharges into storm drains, and then into the municipal separate storm sewer system operated by the County of Sacramento (hereafter the "Sacramento County MS4");
WHEREAS, Plaintiff contends that the operations at the PNP Facility result in discharges of pollutants into storm drains, Morrison Creek, the Stone Lake National Wildlife Refuge and ultimately to the Sacramento-San Joaquin Delta;
WHEREAS, Defendants contend that storm water from the Facility flows to a nearby detention basin that is part of the Sacramento County MS4, where it combines with other sources of storm water. When the detention capacity of the basin is exceeded, water flows out of the basin and through a series of channels and culverts, which discharge to Morrison Creek;
WHEREAS, discharges from the PNP Facility are regulated by 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 Order No. 97-03-DWQ ("Storm Water Permit") and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. ("Clean Water Act" or "CWA"). Defendants are participants in the California Auto Dismantlers Group Monitoring Program under the Storm Water Permit;
WHEREAS, on November 22, 2011, Plaintiff served Pick-n-Pull Auto Dismantlers, Pick and Pull Auto Dismantling, Inc. and Schnitzer Steel Industries, Inc., 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 ("Notice Letter") under Sections 505(a) and (b) of the CWA, 33 U.S.C. § 1365(a) and (b). The Notice Letter alleged violations of Sections 301(a) and 402 of the Clean Water Act, 33 U.S.C. §§1311(a) and 1342, and violations of the Storm Water Permit;
WHEREAS, on December 22, 2011, PNP submitted a detailed response to the Notice Letter to Plaintiff, setting forth defenses to many of the alleged violations and describing the steps it had undertaken to correct other alleged violations. Among other things, PNP's response described the structural and non-structural Best Management Practices ("BMPs") employed by the Facility as part of its Storm Water Pollution Prevention Plan ("SWPPP") to reduce or prevent pollutants in storm water discharges;
WHEREAS, on January 27, 2012, Plaintiff filed a complaint against Pick and Pull Auto Dismantling, Inc. and Schnitzer Steel Industries, Inc., in the United States District Court, Eastern District of California (Case No. 2:12-cv-00222-KJM-DAD) alleging ongoing violations of the CWA (hereinafter "Complaint");
WHEREAS, on March 13, 2012, Plaintiff sent Pick-n-Pull Auto Dismantlers, Pick and Pull Auto Dismantling, Inc., Norprop, Inc., and Schnitzer Steel Industries, Inc., the EPA, EPA Region IX, the State Board, and the Regional Board, a supplemental notice of intent to file suit ("Supplemental Notice Letter") under Sections 505(a) and (b) of the CWA, 33 U.S.C. § 1365(a) and (b). The Supplemental Notice Letter alleged the same violations as the Notice Letter and added Norprop, Inc. as an owner and/or operator and described an additional discharge point at the Facility;
WHEREAS, on May 15, 2012, Plaintiff filed an amended complaint against Pick-n-Pull Auto Dismantlers, Pick and Pull Auto Dismantling, Inc., Norprop, Inc., and Schnitzer Steel Industries, Inc., in the United States District Court, Eastern District of California (Case No. 2:12-cv-00222-KJM-DAD) (hereinafter "Amended Complaint");
WHEREAS, Pick-n-Pull Auto Dismantlers, Pick and Pull Auto Dismantling, Inc., Norprop, Inc., and Schnitzer Steel Industries, Inc., deny all allegations in the Notice Letter, Supplemental Notice Letter, Complaint, and the Amended Complaint and maintain that their operations are in compliance with the requirements of the CWA and the Storm Water Permit;
WHEREAS, Plaintiff and Defendants have agreed that it is in the Settling Parties' mutual interest to enter into a Consent Decree setting forth terms and conditions appropriate to resolving the allegations set forth in the Amended Complaint without further proceedings and without any admission of liability on the part of the Defendants; and
WHEREAS, all actions taken by Defendants pursuant to this Consent Decree shall be made in compliance with all applicable Federal and State laws 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 Clean Water Act, 33 U.S.C. § 1365(a)(1)(A);
2. Venue is appropriate in the Eastern District pursuant to Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the PNP Facility at which the alleged violations took place is located within this District;
3. The Complaint and the Amended Complaint state claims upon which relief may be granted pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365;
4. Plaintiff has standing to bring this action;
5. The Court shall retain jurisdiction over this matter for purposes of enforcing the terms of this Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Court to resolve any pending motion to enforce this Consent Decree.
I.AGENCY REVIEW AND TERM OF CONSENT DECREE
6. Plaintiff shall submit this Consent Decree to the United States Department of Justice and the United States Environmental Protection Agency (collectively "Federal Agencies") within three (3) days of the final signature of the Settling Parties for agency review consistent with 40 C.F.R. § 135.5. In the event that the Federal Agencies object to entry of this Consent Decree, the Settling Parties agree to meet and confer to attempt to resolve the issue(s) raised by the Federal Agencies within a reasonable amount of time.
7. The term "Effective Date" as used in this Consent Decree shall mean the last day for the Federal Agencies to comment on the Consent Decree, i.e., the forty-fifth (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, whichever occurs earlier.
8. This Consent Decree will terminate three (3) years from the Effective Date, unless there is an ongoing, unresolved dispute regarding Defendants' compliance with this Consent Decree in which case the Consent Decree will terminate upon final resolution of the dispute.
II.COMMITMENTS OF THE SETTLING PARTIES
A.Storm Water Pollution Control Best Management Practices
9. In addition to maintaining the current structural and non-structural BMPs described in the Facility's SWPPP, Defendants shall develop and implement the BMPs identified herein, as well as any other BMPs necessary to comply with the provisions of this Consent Decree and the Storm Water Permit, including but not limited to developing and implementing BMPs that, collectively, are the Best Available Technology Economically Achievable ("BAT") and the Best Conventional Treatment Technology ("BCT").
10. The minimum BMPs to be developed and implemented are set forth below.
a.Evacuation of Automobile Fluids
i. Upon the Effective Date, consistent with current practice, or to the extent they have not already done so, except as set forth in subparagraph 10.a.ii. below, all draining of automobile fluids shall be conducted in the covered Drain Shop.*fn1
ii. If fluid(s) cannot be drained in the Drain Shop, they will be drained in the Initial Vehicle Intake Area.*fn2 Defendants shall not remove any automotive fluids from vehicles located in the Initial Vehicle Intake Area except those fluids that can only be evacuated by hand pump. Defendants shall prevent releases of automotive fluids at the Initial Vehicle Intake Area from flowing into drain inlets at the Facility. All evacuated fluids shall be emptied into the existing tanks that are located within the concrete containment vault inside the Drain Shop.
iii. Prior to October 1, 2012, to the extent they have not already done so, Defendants shall stage spill kits in the vicinity of the Initial Vehicle Intake Area so they are readily available to employees engaged in the evacuation of fluids. The kits shall be labeled in both English and Spanish and shall include absorbent, oil pads, booms and pillows. Defendant shall train employees engaged in the evacuation of fluids on the proper use of the kits.
iv. In the event the requirements for an Action Plan are triggered during the term of this Consent Decree (see Paragraph 12 below), Defendants shall consider the implementation of additional BMPs for the Initial Vehicle Intake Area, such as paving, cover, or other BMPs. Additional BMPs shall be implemented by the beginning of the next upcoming Wet Season*fn3 as set forth in Paragraph 12 below.
i. Cleaning: Prior to October 1, 2012, and no later than October 1 of each successive year during the term of this Consent Decree, Defendants shall steam-clean the Crush Pad*fn4 area to remove the build up of contaminants. In the event the requirements for an Action Plan are triggered during the term of this Consent Decree (see Paragraph 12 below), Defendants shall steam-clean all other significantly stained impervious ground surfaces at the Facility. While steam-cleaning, Defendants shall block all Outfalls in order to prevent any wash-water from discharging from the Facility.*fn5
ii. Gravel and Other Non-pervious surfaces: Defendants shall continue to implement their good housekeeping program to inspect the Facility for stained or contaminated gravel; remove and replace such gravel with clean gravel; and dispose of the stained and/or contaminated gravel properly.
iii. Patching: After steam cleaning the Crush Pad, Defendants shall patch all cracks in the Crush Pad that are 1/4 inch or wider. In addition, as part of its regularly scheduled paving maintenance activities, Defendants shall repair concrete and other paved surfaces in the production areas of the Facility by patching and/or replacing the surface as needed.
iv. Sweeping: Within fifteen (15) days of the Effective Date, to the extent they have not already done so, Defendants shall develop a plan to implement sweeping of all impervious ground surfaces using a mechanical sweeper according to the following schedule: (1) at least once a week during the Wet Season, (2) at least twenty-four (24) hours prior to any precipitation event where more than 0.1 inches of rain is predicted in Rancho Cordova with a minimum likelihood of occurrence of fifty-percent (50%) by the National Weather Service, and (3) at least once per month during the Dry Season.*fn6 Defendants shall keep a log of all sweeping done at the Facility.
c.Installation of Enhanced Storm Water Treatment Capability
i. Outfall #1: Prior to November 1, 2012, or such later date as the Settling Parties may agree in accordance with Paragraph 15 hereof, Defendants shall re-route all storm water that previously drained from the Facility to Outfall #1 to the retention/settling area that will be constructed in the northwestern area of the Facility in the vicinity of Outfalls #2 and #3 (see subparagraph 10.c.ii. below). After November 1, 2012, except during High Flow Events,*fn7 all storm water that previously discharged to Outfall #1 shall be discharged through Outfall #3 ...