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San Francisco Baykeeper v. City of Berkeley

United States District Court, N.D. California, Oakland Division

May 12, 2016

SAN FRANCISCO BAYKEEPER, a California non-profit corporation, Plaintiff,
v.
CITY OF BERKELEY and COMMUNITY CONSERVATION CENTERS, INC., Defendants.

          George Torgun, Nicole C. Sasaki, SAN FRANCISCO BAYKEEPER, Attorneys for Plaintiff SAN FRANCISCO BAYKEEPER.

          [PROPOSED] CONSENT DECREE (FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§ 1251 ET SEQ.)

         CONSENT DECREE

         WHEREAS, San Francisco Baykeeper, Inc. ("Baykeeper") is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of San Francisco Bay and other area waters;

         WHEREAS, the City of Berkeley (the "City") and Community Conservation Centers, Inc. ("CCC") (collectively, "Defendants") respectively operate the City of Berkeley Transfer Station located at 1201 2nd Street, Berkeley, California and the Materials Recovery Facility located at 699 Gilman Street, Berkeley, California (collectively, the "Facility");

         WHEREAS, Baykeeper, the City, and CCC are collectively referred to herein as the "Parties";

         WHEREAS, stormwater discharges associated with industrial activity at the Facility are regulated pursuant to the National Pollutant Discharge Elimination System ("NPDES") General Permit No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 2014-57-DWQ (hereinafter, the "Industrial Stormwater Permit"), issued pursuant to Section 402 of the Federal Water Pollution Control Act (the "Clean Water Act" or "Act"), 33 U.S.C. § 1342. These industrial activities include, inter alia, processing municipal, commercial, and private solid waste to be transferred to a sanitary landfill; processing green waste for composting; and processing recyclables (i.e., plastic, glass, metal, and paper) collected by residential curbside, commercial pick-up, buyback, and drop-off recycling programs;

         WHEREAS, the Industrial Stormwater Permit includes the following requirements for all permittees, including Defendants: (1) develop and implement a stormwater pollution prevention plan ("SWPPP"), (2) control pollutant discharges using, as appropriate, best available technology economically achievable ("BAT") or best conventional pollutant control technology ("BCT") to prevent or reduce pollutants, (3) implement BAT and BCT through the development and application of Best Management Practices ("BMPs"), which must be included and updated in the SWPPP, and (4) when necessary, implement additional BMPs to prevent or reduce any pollutants that are causing or contributing to any exceedance of water quality standards;

         WHEREAS, on November 6, 2015 Baykeeper served Defendants, the Administrator of the U.S. Environmental Protection Agency ("EPA"), the Executive Director of the State Water Resources Control Board ("State Water Board"), the Executive Officer of the Regional Water Quality Control Board, San Francisco Bay Region ("Regional Water Board"), and the Regional Administrator of EPA Region IX, with a notice of intent to file suit ("60-Day Notice") under Section 505(b)(1)(a) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A), alleging violations of the Act and the Industrial Stormwater Permit and its previous version, Water Quality Order No. 92-12-DWQ (as amended by Water Quality Order 97-03-DWQ), at the Facility;

         WHEREAS, on April 20, 2016, Baykeeper filed a complaint ("Complaint") alleging certain violations of the Act and the Industrial Stormwater Permit and its previous version, Water Quality Order No. 92-12-DWQ (as amended by Water Quality Order 97-03-DWQ), at the Facility;

         WHEREAS, Defendants deny all allegations and claims contained in the Complaint and reserve all rights and defenses with respect to such allegations and claims;

         WHEREAS, the Parties believe it is in their mutual interest and choose to resolve in full Baykeeper's allegations in the 60-Day Notice and Complaint through settlement and avoid the cost and uncertainties of further litigation;

         NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:

         I. OBJECTIVES

         1. It is the express purpose of the Parties 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 Baykeeper in its 60-Day Notice and Complaint. In light of these objectives and as set forth fully below, Defendants agree to comply with the provisions of this Consent Decree and to comply with the Industrial Stormwater Permit and all applicable provisions of the Clean Water Act.

         II. TERM OF CONSENT DECREE

         2. Effective Date: The Effective Date of this Consent Decree shall be the last day for the U.S. Department of Justice to provide comment on this Consent Decree, i.e., the 45th day following the U.S. Department of Justice's receipt of the Consent Decree.

         3. Term of Consent Decree: This Consent Decree shall continue in effect until September 30, 2019 (the "Term"), at which time the Consent Decree, and all obligations under it, shall automatically terminate, unless one of the Parties has invoked Dispute Resolution in accordance with Paragraph 26.

         4. Early Termination: If Defendants should cease industrial operations at the site and file a Notice of Termination ("NOT") under the Industrial Stormwater Permit prior to the termination date of this Consent Decree, Defendants shall send Baykeeper a copy of the proposed NOT concurrent with its submittal to the Regional Water Board. Within ten (10) days of the Regional Water Board's approval of the NOT, Defendants shall notify Baykeeper in writing of the approval and remit all outstanding payments, including stipulated payments, to Baykeeper. In the event a new successor or assign continues industrial operations at the site and assumes responsibility for implementation of this Consent Decree pursuant to Paragraph 45, Defendants shall notify Baykeeper within ten (10) days of the transition.

         III. BEST MANAGEMENT PRACTICES

         5. In order to further reduce or prevent pollutants associated with industrial activity from discharging via stormwater to the waters of the United States, Defendants shall implement additional appropriate structural and non-structural Best Management Practices ("BMPs") to, at a minimum, comply with the requirements of the Industrial Stormwater Permit.

         6. Site Map: Within thirty (30) days of the Effective Date, Defendants shall update the Site Map included in the Facility SWPPP to comply with the Industrial Stormwater Permit, Section X.E. Specifically, the Site Map shall clearly denote: (a) the topography and the direction of stormwater flow for each drainage area of the Facility, (b) property boundaries, (c) known or suspected drop inlets, (d) ground type (pervious or impervious), (e) berms and the materials they are composed of, (f) any permanent structures and features, (g) discharge points, (h) sampling points, and (i) all other physical structures or items relevant under the Industrial Stormwater Permit and this Consent Decree. During the term of the Consent Decree, if Defendants make significant changes to the Facility, such as moving a discharge or sampling point, modifying the topography of the site so as to change a drainage area, or removing or adding structural BMPs, Defendants shall update the SWPPP within forty-five (45) days, submit the revised SWPPP to Baykeeper, and upload the revised SWPPP to the Storm Water Multiple Application and Report Tracking System ("SMARTS"), consistent with the requirements of Paragraph 11, below.

         7. Non-Structural Best Management Practices. Beginning on the Effective Date, unless otherwise stated, Defendants shall implement the following non-structural BMPs:

         A. Storm Drain Inlet/Catch Basin Best Management Practices:

i. Storm Drain Inlet/Catch Basin Inspections: Within thirty (30) days of the Effective Date and between September 1 and October 1 of each subsequent year, beginning in 2017, Defendants shall inspect any storm drain inlets, catch basins, discharge and sampling points, filtration/treatment devices, and other BMPs in place at the Facility. Defendants or their designee(s) shall promptly clean, as needed, each drain inlet, catch basin, discharge and sampling point, filtration/treatment device, and other BMPs in order to remove any accumulated dust, sediment, solids, or debris.
ii. Storm Drain Inlet/Catch Basin Maintenance and Cleaning: On a weekly basis between October 1 to May 31 of each year ("Wet Season"), Defendants shall inspect all storm drain inlets, catch basins, discharge and sampling points, filtration/treatment devices, and other BMPs in place at the Facility to ensure that they are not in a condition that would materially impair their efficacy, and clean out accessible deposited sediment or debris. Defendants shall properly dispose of any dust, sediment, debris, or other removed pollutants.
iii. Log of Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning: Each Defendant shall prepare and maintain a log of the Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning described herein ("Maintenance Log"). Each Maintenance Log shall indicate the staff who completed the maintenance activity and when it was completed. All Maintenance Logs shall be made available for inspection by Baykeeper at any site inspection or within three (3) business days of a request by Baykeeper.

         B. Site Sweeping:

         Defendants shall mechanically sweep the accessible paved areas of the Facility that are accessible to mechanical sweepers two (2) times per day on days that Defendants are actively operating, and shall also sweep areas that are not accessible to mechanical sweepers by hand or vacuum at least monthly, and prior to any rain events on days that Defendants are actively operating, with the exception of the Container/Bin Storage, as depicted in Figure 1 of Exhibit 1. Defendants shall move all containers and bins from the Container/Bin Storage Area for sweeping one time per year prior to the rain season, and shall sweep around the inlet to DP-1A prior to any rain event on days that Defendants are actively operating. Defendants shall continue to include on-site sweeping activity required under this Consent Decree in the daily work assignments for staff. Such work assignments shall be made available for inspection by Baykeeper at any site inspection or within three (3) business days of a request by Baykeeper.

         C. Garbage/Trash Control:

         Within thirty (30) days of the Effective Date, Defendants shall conduct daily inspections of the Facility's perimeter and pick up wind-blown garbage and trash.

         D. Maintenance of Paved Surfaces:

         No later than October 31, 2016, Defendants shall repave with asphalt Areas 1, 2, 3, 4 and 5 as depicted in Figure 1 of Exhibit 1, and the Truck Parking Area as depicted in Figure 2 of Exhibit 1. Long-term preventative maintenance shall be performed to extend the life of the pavement. Preventative maintenance shall be performed at 3 to 5 year intervals, depending on the deterioration rate of the pavement. Typical preventative maintenance techniques include crack sealing, asphalt patching, and slurry seal applications.

         E. Abandoned or Inutile Equipment Storage and Removal:

         Defendants shall either store under cover or remove from the Facility all abandoned or broken equipment or materials no longer considered for future use that have the potential to serve as the source for pollutant loading.

         F. Vehicle and Equipment Management:

         Defendants shall implement BMPs to reduce or minimize pollutant release from equipment such as forklifts, hydraulic lifts, trucks, and other heavy equipment that are parked or stored in areas of the Facility from which stormwater discharges. Such BMPs shall include relocating the vehicles elsewhere on the site to better facilitate sweeping of paved areas when feasible, placing drip pans under equipment stored or parked for a week or longer, weekly inspections for evidence of leaks from such equipment, and prompt clean-up of spills, drips, or leaks from such equipment. Any spilled substances and absorbent materials used in cleaning up spills shall be disposed of in accordance with all local, state, and federal laws and regulations.

         G. Vehicle and Equipment Maintenance:

         Defendants shall not conduct significant repairs that involve potential contamination, to vehicles or movable equipment at the Facility in outdoor, uncovered areas from which stormwater discharges during rainfall events.

         8. Structural Best Management Practices:

         Defendants shall develop and implement the following structural BMPs:

         A. Transfer Station:

i. Green Waste Operations. Defendants shall continue to conduct all green waste receiving, processing, and shipping inside of the Transfer Station/Tipping Floor, and shall repair the mist generating system by September 30, 2016, for dust control in the Tipping Floor.
ii. Construction Debris Operations. Defendants shall continue to conduct all construction debris receiving, processing, and shipping in the Construction Debris Receiving Area, as depicted in Figure 1 of Exhibit 1. Defendants shall use a mist generating or other dust suppression system for dust control in the Construction Debris Receiving Area. No later than October 31, 2016, Defendants shall implement diversion of the existing trench drain Figure 1 of Exhibit 1, to the stormwater holding tank for discharge to the sanitary sewer and have secured necessary permits and installed necessary infrastructure to divert stormwater collected from the Construction Debris Receiving Area. Stormwater shall be held and discharged to the East Bay Municipal Utility District ("EBMUD") Sanitary Sewer ("Sanitary Sewer"), according to all applicable permit requirements. Temporary stormwater storage shall be sufficient to meet the volume-based treatment standard in the Industrial Stormwater Permit (85th percentile 24-hour storm).
iii. Diversion to Sanitary Sewer. No later than October 31, 2016, Defendants shall have secured necessary permits and installed necessary infrastructure to divert stormwater collected from Catchment Area B, as depicted in Figure 1 of Exhibit 1. Stormwater shall be held and discharged to the EBMUD Sanitary Sewer, according to all applicable permit requirements. Temporary stormwater storage shall be sufficient to meet the volume-based treatment standard in the Industrial Stormwater Permit (85th percentile 24-hour storm).
iv. Miscellaneous Containers. Within thirty (30) days of the Effective Date, Defendants shall cover all containers for household appliances and cardboard, as depicted in Figure 1 of Exhibit 1, at the end of each work day and prior to rain events, provided that such covers may be removed when the Defendants are actively operating.

         B. Recycling CDated:

i. Truck Parking. No later than October 31, 2016, Defendants shall install an asphalt berm around the storage container to the Ecology Center office building to eliminate stormwater discharge from DP-5, as depicted in Figure 2 of Exhibit 1, and direct stormwater to new discharge location DP-5A as depicted in Figure 2 of Exhibit 1. No later than October 31, 2016, Defendants shall install wattles around DP-5A, designed to capture sediment, heavy metals, and oil and grease.
ii. Glass Sorting Area. No later than October 31, 2016, Defendants shall install an asphalt berm and trench drain or other engineered drainage solution in front of the Glass Sorting Area, as depicted in Figure 2 of Exhibit 1, to direct stormwater to holding tanks for temporary storage prior to discharge to the Sanitary Sewer.
iii. Commingled Container Storage Area. No later than October 31, 2016, Defendants shall install an asphalt berm and trench drain or other engineered drainage solution in front of the Commingled Container Storage Area, as depicted in Figure 2 of Exhibit 1, to facilitate temporary storage prior to discharge to the Sanitary Sewer.
iv. Customer Recycling Area. No later than October 31, 2016, Defendants shall install a canopy or awning structure and asphalt berm, as depicted in Figure 2 of Exhibit 1.
v. Diversion to Sanitary Sewer. No later than October 31, 2016, Defendants shall have secured necessary permits and installed necessary infrastructure to divert stormwater collected from the Glass Sorting and Commingled Container Storage Areas, as depicted in Figure 2 of Exhibit 1. Stormwater shall be held and discharged to the Sanitary Sewer, according to all applicable permit requirements. Temporary stormwater storage shall be sufficient to meet the volume-based treatment standard in the Industrial Stormwater Permit (85th percentile 24-hour storm).

         C. Defendants shall diligently file and pursue all required permit applications for the structural BMPs and shall diligently procure contractors, labor, and materials needed to complete all structural BMPs by the required deadlines.

         D. Maintenance of BMP Structural Controls:

         Beginning on the Effective Date or the date of installation, Defendants shall maintain all structural BMPs at the Facility in good operating condition and shall promptly repair any damaged or degraded structural BMPs.

         9. ...


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