CONSENT DECREE (Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.)
[Proposed] Consent Decree 1 2:12-cv-9060-SJO-(RZx)
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 Ormond Beach Generating Facility is located at 6635 South Edison Drive, Oxnard, California 93033 ("GenOn Facility" or "Facility");
WHEREAS, the GenOn Facility is owned and operated by GenOn West, LP (hereinafter "Defendant"), a wholly owned subsidiary of NRG Energy, Inc.;
WHEREAS, effectiveDecember14, 2012, GenOn Energy, Inc. and NRG Energy, Inc., merged, and the combined entity retains the name NRG Energy, Inc. As a result of the merger, all of the former wholly owned subsidiaries of GenOn Energy, Inc., including Defendant, are now wholly owned subsidiaries of NRG Energy, Inc., but there has been no change in the ownership or operation of the Facility, as Defendant was and continues to be the owner and operator of the Facility, notwithstanding the merger of the GenOn Energy, Inc. and NRG Energy, Inc.;
WHEREAS, on June 11, 2012, GenOn Energy, Inc. filed a Notice of Intent to comply with the Terms of the General Permit to Discharge Storm Water Associated with Industrial Activity (WQ Order No. 97-03-DWQ) ("Notice of Intent"), and on March 11, 2013 Defendant filed a corrected Notice of Intent with the State Water Resources Control Board naming Defendant as the Facility operator;
WHEREAS, the following entities do not conduct and have never conducted activities at the Facility that are regulated by the California General Industrial Stormwater Permit: GenOn Energy, Inc.; GenOn Asset Management, LLC; GenOn Energy Management, LLC; GenOn Power Generation Assets, LLC; GenOn Americas, Inc.; GenOn California North, LLC; GenOn Energy Services, LLC; and GenOn West GP, LLC. As such the listed entities in this paragraph do not discharge and have never discharged stormwater associated with industrial activity at the Facility;
WHEREAS, based on the representation of the entities listed in the paragraph above, Coastkeeper dismisses GenOn Energy, Inc.; GenOn Asset Management, LLC; GenOn Energy Management, LLC; GenOn Power Generation Assets, LLC; GenOn Americas, Inc.; GenOn California North, LLC; GenOn Energy Services, LLC; and GenOn West GP, LLC with prejudice for claims alleged in the Complaint and first amended Complaint through the Effective Date;
WHEREAS, on August 22, 2012, 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 October 22, 2012, Coastkeeper filed a complaint against Defendant in the United States District Court, Central District of California (Case No. 2:12-cv-9060-SJO- (RZx)) entitled Ventura Coastkeeper, et al. v. GenOn Energy, Inc., et al. ("Complaint");
WHEREAS, on October 23, 2012, Coastkeeper issued a sixty (60) day Supplemental Notice Letter ("Supplemental Notice Letter") to Defendant, EPA, the State Water Board and the Regional Board, stating its intent to file suit for additional violations of the Clean Water Act. The Supplemental Notice Letter alleged violations of the Clean Water Act for Defendant's discharges of pollutants into receiving waters in violation of the Storm Water Permit.
WHEREAS, on January 29, 2013, Coastkeeper filed a first amended Complaint ("First Amended Complaint") in this action;
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 First Amended Complaint without further proceedings;
WHEREAS, Defendant denies all allegations of the Complaint and First Amended Complaint;
WHEREAS, Defendant does not admit that the Consent Decree Standards are the proper Standards to be applied to the Facility's storm water discharges. However, in the spirit of cooperation to settle this matter and to resolve the allegations set forth in the Complaint and First Amended Complaint without further proceedings, Defendant has compromised, and has agreed to enter into this Consent Decree and to comply with the provisions of this Consent Decree;
WHEREAS, the Settling Parties agree that the Consent Decree is an actual agreement that is the product of good faith, arms-length negotiations;
WHEREAS, it is the express purpose of the Parties entering into this Consent Decree to protect and enhance the water quality of the Ormond Beach Wetlands, Mugu Lagoon, and the Pacific Ocean, to further the objectives set forth in the Clean Water Act, and to resolve those issues alleged by the Plaintiffs in their Complaint and First Amended Complaint;
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 Complaint and First Amended Complaint states claims 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.
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 Complaint and First Amended Complaint without further litigation. In light of these objectives and as set forth fully below, Defendant agrees, inter alia, to comply with the terms and provisions of this Consent Decree, the Storm Water Permit, and all applicable provisions of the CWA.
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 shall terminate on its own terms on August 1, 2018, provided, however, that if Defendant implements one of the stormwater management options described below in clauses (a) or (b) in paragraph 10 the Consent Decree shall terminate on August 1, 2016, unless there is an ongoing, unresolved dispute regarding Defendant's compliance with this Consent Decree. If there is an ongoing and unresolved dispute about Defendant's compliance with the Consent Decree, the Consent Decree shall extend until the dispute is resolved.
III. COMMITMENTS OF THE PARTIES
A. Initial Pollution Control Measures for Stormwater at the Facility Associated with Industrial Operations Discharged to the Beach, Inland or Coastal Waterways, or Inland or Coastal Wetlands ("Stormwater Discharges")*fn1
9. The stormwater pollution control measures required by this Consent Decree and the Storm Water Permit shall be designed and operated to manage stormwater generated from a 5-year, 24 hour rainfall event recorded by the National Oceanic and Atmospheric Administration("NOAA") Oxnard Airport Rainfall gauge ("Design Standard"). *fn2 For the purpose of this Consent Decree, properly documented Stormwater Discharges, in connection with rainfall events in which precipitation exceeds the Design Standard, are not subject to the requirements of this Consent Decree.
10. Defendant has revised its Storm Water Pollution Prevention Plan ("SWPPP"), which is required by the Storm Water Permit. The revised SWPPP is attached hereto as Exhibit 1. Defendant shall implement the SWPPP, including the Best Management Practices ("BMPs") specified therein, as may be amended from time to time, including as required under paragraphs 14 and 15 of this Consent Decree. This Consent Decree requires Defendant, by October 1, 2013, to implement BMPs designed to achieve the Consent Decree Standards listed in Table 1. If, by November 1, 2013, Defendant either (a) retains on-site and/or discharges stormwater to the City of Oxnard sanitary sewer system such that there are no Stormwater Discharges except for during the portions of storms that exceed the Design Standard; or (b) installs an enhanced metal-removing media system*fn3 designed to achieve the Consent Decree Standards listed in Table 1 for Stormwater Discharges caused by storms within the Design Standard, then the Consent Decree shall terminate on August 1, 2016, as provided in Paragraph 8 above. For Stormwater Discharges during storms within the Design Standard, if the BMPs set forth in this paragraph do not effectively prevent discharges or reduce contamination in stormwater discharged from the Facility in a manner sufficient to achieve the Consent Decree Standards listed in Table 1 below, Defendant shall develop and implement additional BMPs pursuant to Paragraph 14 of this Consent Decree to meet the Consent Decree Standards in Table 1 of this Consent Decree.
11. Defendant will continue to use the existing onsite precipitation gage at the Facility, and will establish adequate procedures for accurately determining total rainfall at the Facility over 24 hours and adequate procedures for accurately logging ...