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Waterkeeper v. Robertsons Ready Mix, Ltd.

United States District Court, C.D. California

February 3, 2017

INLAND EMPIRE WATERKEEPER, a program of ORANGE COUNTY COASTKEEPER; ORANGE COUNTY COASTKEEPER, a California non-profit corporation, Plaintiffs,
v.
ROBERTSON'S READY MIX, LTD., a California Limited Partnership; Defendant. Contaminant Numeric Limit (All but pH expressed as mg/L; hardness-dependent limits in bold) Contaminant Numeric Limit (All but pH expressed as mg/L; hardness-dependent limits in bold) Contaminant

          CONSENT DECREE [46]

          DOLLY M. GEE UNITED STATES DISTRICT JUDGE.

         The following Consent Decree is entered into by and between Plaintiffs Inland Empire Waterkeeper and Orange County Coastkeeper (“Plaintiffs” or “Waterkeeper”), and Defendant Robertson's Ready Mix, Ltd. (“Defendant” or “Robertson's”). The entities entering into this Consent Decree are each an individual “Settling Party” and collectively “Settling Parties.”

         WHEREAS, Orange County Coastkeeper is a non-profit public benefit corporation organized under the laws of the State of California;

         WHEREAS, Inland Empire Waterkeeper is a program of Orange County Coastkeeper;

         WHEREAS, together, Inland Empire Waterkeeper and Orange County Coastkeeper are dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of local surface waters;

         WHEREAS, Robertson's operates concrete, sand, and gravel storage and delivery facilities located at: (1) 6120 20th Street, Riverside, California, 92509, WDID 8 33I018708 (“Riverside Facility”), (2) 2601 N. Alder Avenue, Rialto, California 92376, WDID 8 36I015507 (“Rialto Facility”), (3) 310 N. Townsend Street, Santa Ana, California 92703, WDID 8 30I011158 (“Santa Ana Facility”), (4) 452 W. Luis Estrada, Road, Beaumont, California 92223, WDID 8 33I013718 (“Beaumont Facility”), (5) 16081 Construction Circle W., Irvine, California 92714, WDID 8 30I013539 (“Irvine Facility”), (6) 14250 Old 215 Frontage Road, Moreno Valley, California 92552, WDID 8 33I024390 (“Moreno Valley Facility”), (7) 116 Rincon Ct., San Clemente, California 92672, WDID 930I013199 (“San Clemente Facility”), (8) 1675 S. State St., San Jacinto, California 92383, WDID 8 33I005071 (“San Jacinto Facility”), and (9) 27050 Watson Road, Sun City, California 92585, WDID 8 33I005069 (“Sun City Facility”) (collectively “Facilities”);

         WHEREAS, Robertson's operates and controls the industrial activities at the Facilities;

         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 (“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. Depending upon the particular Facility, these industrial activities may include, inter alia, unloading trucks transporting sand and gravel; vehicle maintenance, cleaning, and storage; vehicle fueling; transporting raw materials across the site; raw and finished materials storage; weighing aggregate and cement; mixing aggregate, water and cement to form concrete; and loading trucks with concrete;

         WHEREAS, as the sole operator of the Facilities, Robertson's is responsible for implementing the Clean Water Act, the Storm Water Permit, and the storm water pollution prevention plan (“SWPPP”) at the Facilities;

         WHEREAS, Waterkeeper contends that Robertson's operations at the Facilities result in discharges of pollutants into waters of the United States and contends that those discharges are regulated by the Clean Water Act, Sections 301(a) and 402, 33 U.S.C. §§ 1311(a), 1342;

         WHEREAS, the Storm Water Permit includes the following requirements for all permittees, including Robertson's: (1) develop and implement a SWPPP, (2) control pollutant discharges using, as applicable, 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 (“WQS”);

         WHEREAS, on February 18, 2016, March 25, 2016, and June 3, 2016, Waterkeeper served Robertson's, the registered agent of Robertson's, 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 Santa Ana Regional Water Quality Control Board, and/or the Executive Director of the San Diego Regional Water Quality Control Board (“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 of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A), alleging violations of the Clean Water Act and the Storm Water Permit, Water Quality Order No. 92-12-DWQ, as amended by Water Quality Order 97-03-DWQ, and as amended by Water Quality Order 2014-0057-DWQ, at the Facilities;

         WHEREAS, the Settling Parties refer herein to the 60-Day notices sent on February 18, March 25, and June 3 collectively as “the 60-Day Notices”;

         WHEREAS, on April 25, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the Riverside Facility, Civil Case No. 5:16-cv-00825-DMG-JCx;

         WHEREAS, on May 25, 2016, Waterkeeper filed complaints against Robertson's in the United States District Court, Central District of California related to the Rialto Facility, Civil Case No. 5:16-cv-01085-DMG-JC, and the Santa Ana Facility, Civil Case No. 8:16-cv-00961-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the Beaumont Facility, Civil Case No. 8:16-cv-01429-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the Irvine Facility, Civil Case No. 8:16-cv-01432-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the Moreno Valley Facility, Civil Case No. 8:16-cv-01434-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the San Clemente Facility, Civil Case No. 8:16-cv-01431-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the San Jacinto Facility, Civil Case No. 8:16-cv-01427-DMG-JC;

         WHEREAS, on August 3, 2016, Waterkeeper filed a complaint against Robertson's in the United States District Court, Central District of California related to the Sun City Facility, Civil Case No. 8:16-cv-01428-DMG-JC;

         WHEREAS, the Court has consolidated the above-referenced cases and the Settling Parties refer herein to the pending complaints in those cases collectively as “the Complaints”;

         WHEREAS, Waterkeeper alleges Robertson's is in violation of the substantive and procedural requirements of the Storm Water Permit and the Clean Water Act;

         WHEREAS, Robertson's denies all allegations and claims contained in the 60-Day Notices and the Complaints and reserves all rights and defenses with respect to such allegations and claims; and

         WHEREAS, the Settling Parties have agreed that it is in their mutual interest and choose to resolve in full Waterkeeper's allegations in the 60-Day Notices and Complaints through settlement in order to 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:

         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 Central District Court pursuant to Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Facilities at which the alleged violations took place is located within this District;

         3. For purposes of this Consent Decree, the Complaints state claims upon which relief may be granted against Defendant pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365;

         4. For purposes of the Consent Decree, Plaintiffs have 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 timely motion to enforce this Consent Decree;

         6. By so stipulating, and because they only do so in furtherance of this Consent Decree, Defendant does not admit or concede any fact alleged by Plaintiffs in the Complaints to support Plaintiffs' standing or any of Plaintiffs' procedural or substantive claims.

         I. OBJECTIVES

         7. Without admitting any allegations or any liability relating to the claims set forth in the Complaints, it is the express purpose of the Settling Parties to settle the claims alleged by Waterkeeper in the Complaints relating to the Facilities. In light of this objective and as set forth fully below, Defendant agrees to comply with this Consent Decree, as well as the Storm Water Permit and all applicable provisions of the Clean Water Act relating to Defendant's operation of the Facilities. Specifically, the Storm Water Permit requires BMPs be developed and implemented to achieve BAT and BCT, to achieve compliance with the applicable water quality standards, to prepare reports to track the Facilities' compliance, and to assess the need for any additional improvements or changes at the Facilities. In consideration of Defendant's agreement, and pursuant to the paragraph 5 and the terms set forth below, Waterkeeper shall dismiss the Complaints pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) within fourteen (14) days of the Court's approval of this Consent Decree.

         II. COMMITMENTS OF THE SETTLING PARTIES

         A. Agency Review, Effective Date, and Term of Consent Decree

         8. Agency Review: Plaintiffs shall submit this Consent Decree to the United States Department of Justice and the 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. Following the Federal Agencies' review, Plaintiffs shall submit the Consent Decree to the Court for entry.

         9. Effective Date: The Effective Date of this Consent Decree shall mean the day this Consent Decree is fully executed by the Settling Parties.

         10. Term of Consent Decree: This Consent Decree shall terminate three (3) years from the Effective Date unless there is an ongoing, unresolved dispute regarding Robertson's compliance with the Consent Decree, in which case the Consent Decree will terminate within fifteen (15) days of notice by the Settling Parties that the dispute has been fully resolved.

         11. Early Termination: If Defendant ceases industrial operations at any Facility and files a Notice of Termination (“NOT”) under the Storm Water Permit prior to the termination date of this Consent Decree, Defendant shall provide Waterkeeper with 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, Defendant shall provide written notification to Waterkeeper of the approval and remit all outstanding payments, including stipulated payments, related to the Facility for which the NOT was approved to Waterkeeper. Within ten (10) days of Waterkeeper's receipt of such notification, the Consent Decree will terminate as to the Facility for which the NOT was approved only, unless there is an ongoing, unresolved dispute regarding Robertson's compliance with the Consent Decree as to that Facility, in which case the Consent Decree will terminate within fifteen (15) days of notice by the Settling Parties that the dispute as to that Facility has been fully resolved.

         B. Best Management Practices

         12. Additional Best Management Practices: In addition to maintaining the current BMPs at the Facilities, Robertson's 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, Robertson's shall develop and implement BMPs to prevent and/or reduce contamination in storm water discharges from the Facilities consistent with use of BAT and BCT and/or in compliance with WQS.

         13. Non-Structural BMPs: Within forty-five (45) days of the Effective Date, Robertson's shall develop and implement the following non-structural BMPs at the Facilities.

13.1. Sweeping. Institute a daily sweeping program using a PM-10 compliant, or equivalent as verified under the certification process under the provisions of South Coast Air Quality Management District (AQMD) Rule 1186 Appendix A, wet/dry vacuum sweeper and covering all exterior areas of the Facilities exposed to rainfall or runoff and accessible to the sweeper, including facility driveways to the intersection with the public roadway. To document compliance with this paragraph, Robertson's will institute an established sweeping route map to be followed during daily sweepings, record the length of time of sweeper operation, and will provide these records to Waterkeeper within fourteen (14) days of receipt of a written request;
13.2. Vehicle Maintenance. Any outdoor vehicle and equipment maintenance will be done in accordance with written standard operating and incident procedures to be developed consistent with the SWPPP, and will be conducted in a contained area, i.e., an area where a drain cover has been installed;
13.3. Slot Drains. Maintain the existing slot drains installed at the Irvine, Santa Ana, and Riverside Facilities, and install slot drains designed to collect all runoff generated within the area of the Facilities controlled by Robertson's as follows:
13.3.1. At the entrance/exit northwest driveway of the San Jacinto Facility;
13.3.2. At the entrance/exit point of the Rialto Facility; and
13.3.3. At the exit of the San Clemente Facility, if the run-on from the City of San Clemente municipal separate storm sewer system is not eliminated.
Storm water collected in the slot drains will be pumped to the water recycling system(s) at the applicable facility.

         14. Robertson's shall confirm that the non-structural BMPs have been implemented by submitting revised SWPPPs for the Facilities as set forth in paragraph 25 below.

         15. 85th Percentile Storm Water Retention BMP: Within one hundred and fifty (150) days of the Effective Date, Robertson's shall develop and implement storm water retention BMP(s) at the Riverside, Rialto, Beaumont, Moreno Valley, San Clemente, San Jacinto and Sun City Facilities, and as of the Effective Date maintain the existing storm water collection and recycling system at the Riverside and Moreno Valley Facilities, designed to retain storm water at the Facilities up to and including the 85th percentile storm event.

15.1. Within sixty (60) days of the Effective Date, Robertson's shall submit an 85th Percentile Storm Water Retention Plan for the Riverside, Rialto, Beaumont, San Clemente, Moreno Valley, and San Jacinto Facilities to Waterkeeper for review and comment. The 85th Percentile Storm Water Retention Plan shall, at a minimum, specify (1) the drainage area contributing to the retention facility; (2) the storm runoff volume associated with the 85th Percentile event; (3) the facility's location, inlet, plan and elevation views with dimensions, volume, and outlet; (4) the receiver of the discharge (e.g., municipal storm drain system, a receiving water body); (5) the volume of water to be pumped for use in the industrial process(es) during and following storm events; and (6) a quantitative hydrologic ...

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