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California Sportfishing Protection Alliance v. All Hyundai Isuzu Kia & Nissan Auto Recycling, Inc.

United States District Court, Ninth Circuit

June 18, 2013

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff,
v.
ALL HYUNDAI ISUZU KIA & NISSAN AUTO RECYCLING, INC., a California corporation, Defendant.

Layne Friedrich, (Bar No. 195431) Drevet Hunt, (Bar No. 240487) LAWYERS FOR CLEAN WATER, INC., Bill Jennings, California Sportfishing Protection Alliance, Chris Castro, All Hyundai Isuzu Kia & Nissan Auto Recycling, Inc., San Francisco, California, Attorneys for Plaintiff, CALIFORNIA SPORTFISHING PROTECTION ALLIANCE.

Michael Vinding, BRADY & VINDING, Attorney for Defendant.

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

KIMBERLY J. MUELLER, Judge.

The following Consent Decree is entered into by and between Plaintiff California Sportfishing Protection Alliance ("Plaintiff" or "CSPA"), and Defendant All Hyundai Isuzu Kia & Nissan Auto Recycling, Inc. ("Defendant"). 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, Defendant operates two automobile dismantling and used auto parts facilities located at 3370 Sunrise Boulevard (All Hyundai #1 Facility) and 3750 Recycle Road, Number 2 ("All Hyundai #2 Facility) in Rancho Cordova, California (collectively "All Hyundai Facilities" "or "Facilities");

WHEREAS, CSPA alleges that All Hyundai Isuzu Kia & Nissan Auto Recycling, Inc. is the owner and/or operator of the All Hyundai Facilities;

WHEREAS, discharges from the All Hyundai Facilities 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"), Sections 301 (a) and 402, 33 U.S.C. §§ 1311 (a), 1342;

WHEREAS, on December 12, 2011, CSPA served 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"), 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 February 20, 2012, CSPA filed a complaint against Defendant in the United States District Court, Eastern District of California (Case No. 2:12-cv-00428-KJM-KJN) (hereinafter "Complaint");

WHEREAS, CSPA alleges Defendant to be in violation of the substantive and procedural requirements of the Storm Water Permit and the Clean Water Act;

WHEREAS, Defendant denies all allegations in the Notice Letter and Complaint;

WHEREAS, CSPA and Defendant 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 Complaint without further proceedings;

WHEREAS, all actions taken by Defendant 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 All Hyundai Facilities are located within this District;

3. The Complaint states 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 motion to enforce this Consent Decree.

I. AGENCY REVIEW AND TERM OF CONSENT DECREE

6. Plaintiffs 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) business 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 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 thirty (30) days after the final payment required by Paragraph 30 has been made and all monetary obligations of Defendant are satisfied, unless there is an ongoing, unresolved dispute regarding Defendant's compliance with this Consent Decree.

II. COMMITMENTS OF THE SETTLING PARTIES

A. Storm Water Pollution Control Measures

9. In addition to maintaining the current Best Management Practices ("BMPs") at the Facilities, Defendant 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. Specifically, Defendant shall develop and implement BMPs to prevent and/or to reduce contamination in storm water discharged from the Facilities sufficient to achieve the limits in Table 1 below.

10. The minimum BMPs to be developed and implemented are set forth below.

a. Automobile Fluid Draining Operations

i. By the Effective Date, Defendant shall designate a portion of each of the All Hyundai Facilities as "Designated Fluid Draining Areas" and shall ensure that all fluid draining operations are conducted in the Designated Fluid Draining Areas.

ii. Within forty-five (45) days[1] of the Effective Date, the Designated Fluid Draining Areas shall be on a paved surface, under cover, and shall be self-contained and have structural BMPs to ensure that fluids do not leave the Designated Fluid Draining Areas.

iii. Within forty-five (45) days of the Effective Date, the Defendant shall provide secondary containment in any area where drained fluids are stored.

iv. Within forty-five (45) days of the Effective Date, Defendant shall post adequate signage throughout the Facilities in English, Spanish, and other applicable languages to ensure employees know and understand that fluids cannot be drained in areas other than in the Designated Fluid Draining Areas.

v. By the Effective Date, Defendant shall ensure that appropriate and fully stocked spill kits are available in the Designated Fluid Draining Areas.

b. Impervious Surfaces

i. Patching: By the Effective Date, Defendant shall patch all cracks in impervious ground surfaces at both Facilities.

ii. Sweeping: By the Effective Date, Defendant shall develop and implement a plan for both Facilities to ensure manual sweeping of all paved surfaces in the dismantling bays on a daily basis, manual sweeping of the remainder of the paved areas during the dry season on a weekly basis, and manual sweeping within forty-eight (48) hours of any predicted rain event during the Wet Season. Defendant shall keep a log of all sweeping done at the Facilities.

iii. Berms: By the Effective Date, Defendant shall install rubber bay door thresholds, not to exceed one-half inch (1/2") in height, along the base of the bay doors of the All Hyundai Facilities' roofed areas to prevent any contaminants spilled within ...


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