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Wishtoyo Foundation v. Wiggins Lift Co., Inc.

United States District Court, C.D. California

May 18, 2017

WISHTOYO FOUNDATION, VENTURA COASTKEEPER, a program of the WISHTOYO FOUNDATION, Plaintiffs,
v.
WIGGINS LIFT CO., INC.; DOES 1 THROUGH 10, Defendants.

          Mati Waiya, Executive Director Wishtoyo Foundation and its Ventura Coastkeeper Program WIGGINS LIFT CO., INC., Michele Wiggins-McDowell, CEO Wiggins Lift Co., Inc. GRESHAM SAVAGE NOLAN & TILDEN, P.C. Jonathan E. Shardlow Attorney for Defendant.

          Jason Weiner General Counsel Attorney for Plaintiffs Wishtoyo Foundation and its Ventura Coastkeeper Program. LAW OFFICE OF GIDEON KRACOV Gideon Kracov Attorney for Plaintiffs Wishtoyo Foundation and its Ventura Coastkeeper Program.

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

          GEORGE H. WU, U.S. District Judge.

         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 “Wishtoyo” or “Plaintiffs”;

         WHEREAS, the Wiggins Lift Co., Inc. (hereinafter “Defendant”) facility is located at 2571 Cortez St., Oxnard, California 93036 (“Wiggins Facility” or “Facility”);

         WHEREAS, on June 26, 2015, Wiggins filed a Notice of Intent (“Notice of Intent”) to comply with the Terms of the General Permit to Discharge Storm Water Associated with Industrial Activity National Pollution Discharge Elimination System (“NPDES”) General Permit No. CAS000001 [State Board] Water Quality Order No. 2014-0057-DWQ (“2015 Permit”);

         WHEREAS, on January 17, 2017 and February 7, 2017, Wishtoyo issued sixty (60) day notice letters (“Notice Letters”) 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 (“NPDES”) Industrial General Permit No. CAS000001 [State Board] Water Quality Order No. 97-03-DWQ (“1997 Permit”), as superseded by the 2015 Permit;

         WHEREAS, during the 60-Day notice period, Wiggins made significant efforts to review stormwater management practices at the Facility, including installation of new stormwater management and treatment equipment which resulted in Wiggins incurring significant costs;

         WHEREAS, during the notice period Wishtoyo and Wiggins have been in comprehensive, good-faith settlement negotiations;

         WHEREAS, on March 21, 2017, Wishtoyo filed a complaint against Defendant in the United States District Court, Central District of California (Case No. 2:17-cv-2204-GW-SK) entitled Wishtoyo Foundation et al. v. Wiggins Lift Co., Inc., et al. (“Complaint”);

         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 the Notice Letters without further proceedings;

         WHEREAS, Defendant denies all allegations of the Complaint and Notice Letters. However, in the spirit of cooperation to settle this matter and to resolve the allegations set forth in the Complaint and Notice Letter 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 Santa Clara River, 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 Notice Letters;

         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.

         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, et seq., and to resolve those issues alleged by Wishtoyo in its Complaint and Notice Letters 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, 2020 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 Discharges (“Stormwater Discharges”)

         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”).[1] 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 shall implement the following Best Management Practices (“BMPs”) by July 1, 2017, including the BMPs in the current Storm Water Pollution Prevention Plan (“SWPPP”), as depicted in the locations on the site map in Exhibit A hereto, to implement BMPs designed to achieve the Consent Decree Standards listed in Table 1:

a. Stormwater Treatment System
i. Storm water treatment system will be installed to process storm water from the Blind Sump described in Paragraph 10.e and shall be designed and operated to manage stormwater generated from a 5-year, 24 hour rainfall event recorded by NOAA before discharge to the Discharge Trench shown on the site map in Exhibit A hereto. The treatment system is intended to achieve the Consent Decree Standards listed in Table 1 for Stormwater Discharges caused by storms within the Design Standard. On or before May 1, 2017, Wiggins shall provide Wishtoyo with a demonstration prepared by a professional engineer that demonstrates that the Storm water treatment system is sized to treat stormwater discharges caused by storms within the Design Standard (“Storm Water Treatment System Demonstration”), and Wishtoyo shall provide comments on the adequacy of the Storm Water Treatment System Demonstration to Wiggins within fourteen (14) days after receipt. Within fourteen (14) days from the date of Wishtoyo's comments on Defendant's Storm Water Treatment System Demonstration, Defendant shall provide Wishtoyo with a written explanation if Defendant refuses to develop and/or implement any of Wishtoyo's recommended adjustments and or refuses to accept and incorporate any of Wishtoyo's comments. Any disputes as to the adequacy of the Storm Water Treatment System Demonstration shall be resolved pursuant to the dispute resolution provisions of this Consent Decree, set out in Section IV below.
b. Discharge Trench
i. The discharge trench is to be cleaned of all silt, sediment and debris.
ii. On top of crushed rock to be lined in the trench, approximately every 20 feet, a row of woven fabric mono filament crushed rock bags is to be placed.
iii. The rock bags are to be filled with 3/4 inch minus crushed rock iv. Each row of rock bags is to have the corners curved upstream to reduce or eliminate run ...

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