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Waterkeeper v. Triumph Processing, Inc.

United States District Court, C.D. California

May 16, 2017

LOS ANGELES WATERKEEPER, a non-profit corporation, Plaintiff,
v.
TRIUMPH PROCESSING, INC., a corporation; DOES 1 through 10, Defendants.

          Gaidon Kracov (State Bar No. 179815) Law Office of Gideon Kracov Arthur Pugsley(State Bar No. 252200), Melissa Kelly (State Bar No. 300817) ,LOS ANGELES WATERKEEPER Attorney for Plaintiff LA Waterkeeper

          Scott S. Humpheys(State Bar No. 298021), BALLARD SPAHRLLP,Attorneys for Defendant Triumph Processing, Inc,

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

          PHILIP S. GUTIERREZ Judge..

         WHEREAS, Los Angeles Waterkeeper ("Waterkeeper") is a 501(c)(3) non-profit public benefit corporation organized under the laws of the State of California, with its main office in Santa Monica, California;

         WHEREAS, Waterkeeper is dedicated to the preservation, protection and defense of the surface, ground, coastal and ocean waters of Los Angeles County from all sources of pollution and degradation;

         WHEREAS, Triumph Processing, Inc. facilities are located at 2588 ("Plant 2) and 2605 ("Plant 1") Industry Way in Lynwood, California ("Triumph Facilities" or "Facilities"); WHEREAS, the Facilities are owned and/or operated by Triumph Processing, Inc., a California corporation ("Defendant" or "Triumph");

         WHEREAS, Triumph as a matter of corporate policy has set as a priority being a good corporate citizen focused on making its local communities better places to live and work;

         WHEREAS, on July 15, 2016, Waterkeeper sent 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 alleged violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, el seq. ("Clean Water Act" or "CWA"). The Notice Letter alleged violations of the CWA for Defendant's alleged discharges of pollutants into storm drains and receiving waters, including Compton Creek ("Creek"), the Los Angeles River ("River") and ultimately the Pacific Ocean (collectively "Receiving Waters"), in alleged violation of National Pollution Discharge Elimination System ("NPDES") General Permit No. CAS000001 [State Board] Water Quality Order No. 97-03-DWQ ("1997 Permit"), as superseded by Order No. 2014-0057-DWQ ("2015 Permit"). The 1997 Permit and/or 2015 Permit may be referred to generically as the "Storm Water Permit";

         WHEREAS, during the 60-Day notice period, Triumph made significant efforts to review and improve stormwater management practices at Plant 1 and Plant 2, including installation of new stormwater management equipment and practices;

         WHEREAS, during the notice period to the present LAW and Triumph have been in comprehensive, good-faith settlement negotiations, including a site visit to Plant 1 and Plant 2 on October 26, 2016, where LAW was able to inspect site conditions and the new stormwater management equipment installed by Triumph;

         WHEREAS, sampling of stormwater discharges at Plant 1 and Plant 2 for the 2016-2017 Reporting Year (July 1 to the following June 30) have shown very significant improvement, demonstrating the success of Triumph's new stormwater management equipment and practices, with nearly every sample result below the numeric limits set forth in the EPA's 2015 Multi-Sector General Permit, WHEREAS, on October 19, 2016 Waterkeeper filed a complaint ("Complaint") against Defendant in the United States District Court, Central District of California (Case No. 2:16-cv-07037 PSG (KSx)), entitled Los Angeles Waterkeeper v. Triumph Processing, Inc.

         WHEREAS, the Defendant denies all allegations of the Complaint;

         WHEREAS, Plaintiff 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 without further proceedings;

         WHEREAS, all actions taken by the Defendant pursuant to this Consent Decree shall be made in compliance with all applicable federal, state and local rules and regulations; .

         NOW THEREFORE FOR THE PURPOSE OF THIS CASE 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 Facilities at which the alleged violations are taking place is located within this District;

         3. The Complaint states a claim upon which relief may be granted against Defendant pursuant to Section 505 of the CWA, 33 U.S.C. § 1365;

         4. Waterkeeper has 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, for as long as is necessary for the Court to resolve any motion to enforce this Consent Decree.

         I. OBJECTIVES

         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, etseq., and to resolve those issues alleged by Waterkeeper in its Complaint. These objectives include compliance with the provisions of this Consent Decree, and compliance with the requirements of the 2015 Permit and all applicable provisions of the CWA which are the subject of this Consent Decree-specifically Receiving Water Limitations A, B and C at Section VI of the 2015 Permit, and Effluent Limitations A, B and C at Section V of the 2015 Permit, which require, inter alia, that Defendant ensure that industrial storm water discharges and authorized non-stormwater discharges do not cause or contribute to an exceedance of any applicable Water Quality Standards ("WQS"), and implement Best Management Practices ("BMPs") that comply with the Best Available Technology ("BAT") and Best Conventional Pollutant Control Technology ("BCT") requirements of the 2015 Permit. BMPs must be developed and implemented to prevent discharges or to reduce contamination in storm water discharged from the Facilities in compliance with this Consent Decree.

         II. EFFECTIVE DATE AND TERMINATION

         7. The term "Effective Date, " as used in this Consent Decree, shall mean the date the Court enters the final Consent Decree.

         8. This Consent Decree will terminate on its own terms two (2) years from the Effective Date (the "Termination Date"), unless there is a prior ongoing, unresolved dispute regarding Defendant's compliance with its terms as described in a Notice of Dispute filed with the Court prior to the Termination Date, which Notice shall identify the issue in dispute. The filing of such a Notice of Dispute shall extend the Termination Date until the Court determines the dispute has been resolved and thereupon dismisses the case, or, alternatively, if the Settling Parties file a stipulation for dismissal.

         9. Triumph may move the Court to terminate the Consent Decree at any time provided that the following conditions, or such alternative conditions to which Triumph and Waterkeeper agree in writing after compliance with the meet and confer provisions of paragraph 44 below, are satisfied:

a. Defendant has fully implemented all measures detailed in paragraph 15 below, and all other applicable requirements to be completed under this Consent Decree prior to the date on which the Defendant moves for termination;
b. Defendant has revised and fully implemented its Storm Water Pollution Prevention Plans ("SWPPP") and Monitoring and Reporting Programs ("M&RP") pursuant to the requirements of this Consent Decree and the 2015 Permit;
c. There are no ongoing, unresolved disputes regarding Defendant's compliance with this Consent Decree, including but not limited to any dispute related to the payment of fees/costs, Supplemental Environmental Project ("SEP") implementation, compliance monitoring fees, implementation of storm water and non-storm water control BMPs, and compliance with numeric levels detailed below at Table 1;
d. All payments required under sections F (paras. 35 and 36) and G (paras. 39-41) of this Consent Decree are made; and
e, Following the Effective Date, monitoring data from four (4) consecutive storm water samples collected at each discharge point demonstrate pollutant concentrations in stormwater discharges do not exceed the numeric levels in Table 1;

         10. To terminate early as provided above, Defendant shall file a motion for early termination with the Court. Defendant shall provide Plaintiff and its counsel with written notice at least thirty-five (35) days prior to filing any motion for termination of the Consent Decree.

         11. Upon receipt of the written request to terminate, Waterkeeper may conduct an inspection of the Facilities within thirty (30) calendar days and Triumph will work with Waterkeeper to schedule and accommodate the inspection, if requested, within the 30-day period. During the Site Inspection, Defendant shall allow Waterkeeper and/or its representatives access to the Facilities' SWPPP, M&RP, and storm water monitoring records. Further, Defendants shall allow Waterkeeper and/or its representatives to collect during the site inspection split samples of storm water or non-stormwater discharges, if applicable, at the Facilities. Waterkeeper shall be permitted to take photographs or video recording during any Site Inspection and will, upon request, provide photographs and/or video to Triumph within fourteen (14) calendar days. Notwithstanding the foregoing, Waterkeeper agrees that all individuals participating in a Site Inspection will execute, and be subject to, waivers, releases and similar agreements as were executed in connection with the Site Inspection conducted on October 26, 2016, including but not limited to those forms establishing restrictions on allowed recorded documentary images or depictions.

         12. Unless there is an ongoing, unresolved dispute regarding Defendant's compliance with this Consent Decree, thirty-five (35) calendar days after written notice was given, Defendant may move the Court to terminate the Consent Decree and Waterkeeper shall not oppose the motion.

         III. COMMITMENTS OF THE PARTIES

         A. Industrial Storm Water Pollution Control Measures

         13. Any non-stormwater discharges ("NSWDs") from the Facilities must be authorized by the 2015 Permit ...


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