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Los Angeles Waterkeeper v. Bell Foundry Co.

United States District Court, C.D. California

May 22, 2017

LOS ANGELES WATERKEEPER, a nonprofit corporation, Plaintiff,
v.
BELL FOUNDRY CO. a corporation, Defendant.

          Gideon 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 Attorneys for Plaintiff LOS ANGELES WATERKEEPER

          William W. Funderburk, Jr. (State Bar No. 176244) Anna L. Le May (State Bar No. 258312) CASTELLON & FUNDERBURK LLP Attorneys for Defendant BELL FOUNDRY CO.

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

          JOHN F. WALTER, DISTRICT COURT JUDGE

         WHEREAS, Los Angeles Waterkeeper ("Waterkeeper") is a 501(c)(3) nonprofit 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, the Bell Foundry Co. facility is located at 5310 and 5311 Southern Avenue, South Gate, California ("Bell Facility" or "Facility").

         WHEREAS, the Facility is owned and/or operated by Bell Foundry Co., a California corporation ("Defendant" or "Bell Foundry");

         WHEREAS, on May 17, 2016, Waterkeeper sent a sixty (60) day notice letter ("Notice Letter") to Defendant, the United States Environmental Protection Agency ("EPA"), EPA Region IX, California's 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 alleged discharges of pollutants into storm drains and receiving waters, including the Los Angeles River ("River") and ultimately the Pacific Ocean, 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System ("NPDES") General Permit No. CAS000001 [State Board] Water Quality Order No. 97-03-DWQ ("1997 Permit"), as superseded by Order No. 2014-0057-DWQ ("2014 Permit"). The 1997 Permit and/or 2014 Permit may be referred to generically as the "Storm Water Permit";

         WHEREAS, on October 2, 2016 Waterkeeper filed a complaint ("Complaint") against Defendant in the United States District Court, Central District of California (Case No. 2:16-cv-07389 JFW-PJW), entitled Los Angeles Waterkeeper v. Bell Foundry Co.

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

         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 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 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, or for 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, etseq., and to resolve those issues alleged by Waterkeeper in its Complaint. In light of these objectives and as set forth fully below, Defendant agrees, inter alia, to comply with the provisions of this Consent Decree, and to comply with the requirements of the Storm Water Permit and all applicable provisions of the C WA. Specifically, Receiving Water Limitations A, B and C at Section VI of the 2014 Permit, and Effluent Limitations A, B and C at Section V of the 2014 Permit, which requires, inter alia, that Defendant develop and implement Best Management Practices ("BMPs") designed to achieve Best Available Technology ("BAT") and Best Conventional Pollutant Control Technology ("BCT"). Bell Foundry Co. shall develop and implement BMPs necessary to comply with the 2014 Permit (or subsequently adopted Storm Water Permit) requirement to achieve compliance with BAT/BCT standards and with applicable Water Quality Standards ("WQS") including, inter alia, standards outlined in the "Water Quality Control Plan-Los Angeles Region: Basin Plan for Coastal Watersheds of Los Angeles and Ventura County" ("Basin Plan") and those contained in 40 C.F.R § 131.38 ("California Toxics Rule"). BMPs must be developed and implemented to prevent discharges or to reduce contamination in storm water discharged from the Facility sufficient to achieve the numeric limits detailed in Table 1 at paragraph 21 below of this Consent Decree.

         II. EFFECTIVE DATE AND TERMINATION

         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.

         8. This Consent Decree will terminate 3 years from the Effective Date ("Termination Date") unless there is a prior ongoing, unresolved dispute regarding Defendant's compliance with its terms. Should there be such a dispute, Waterkeeper shall file a Notice of Dispute with the Court prior to the Termination Date, which 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. Bell Foundry may move the Court to terminate the Consent Decree at any time provided that the following conditions are satisfied:

a. Defendant has fully implemented all measures detailed in paragraph 15 below;
b. Defendant has revised and fully implemented a Storm Water Pollution Prevention Plan ("SWPPP") and Monitoring and Reporting Program ("M&RP") pursuant to the requirements of this Consent Decree and the Storm Water Permit;
c. There are no ongoing, unresolved disputes regarding Defendant's compliance with this Consent Decree, including but not limited to disputes 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 limits in Table 1;
d. All payments required under paragraphs 41 through 45 of this Consent Decree are made; and
e. Beginning with the 2017-18 Monitoring Period, monitoring data from four (4) consecutive storm water samples collected at each industrial discharge point demonstrate compliance with the numeric limits 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 (30) 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 Facility within thirty (30) calendar days and Bell Foundry will work with Waterkeeper to schedule and accommodate the inspection, if requested, within the 30-day period. The inspection will be conducted according to the rules applicable to Annual Site Inspections in paragraph 38 below. Unless there is an ongoing, unresolved dispute regarding Defendant's compliance with this Consent Decree, sixty (60) 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

         12. To ensure there are no unauthorized non-stormwater discharges, any non-stormwater discharges from the Facility not authorized by the Storm Water Permit shall be considered a breach of this Consent Decree.

         13. All storm water pollution measures required by this Consent Decree will be implemented at the Facility. Any disputes over the adequacy and/or timing of the implementation of BMPs shall be resolved pursuant to the force majeure (if applicable) and/or dispute resolution provisions of this Consent Decree, set out in Section IV below.

         14. Compliance Standard. The storm water pollution control measures required by this Consent Decree shall be designed to comply with the design storm standard for treatment control BMPs set forth in Section X(H)(6) of the 2014 Permit ("Compliance Standard") based on historical rainfall measured at the South Gate Transfer Station (Gauge 1256Z) located at 9530 Garfield Avenue, South Gate, California 90280. The storm water pollution control measures agreed to under this Consent Decree shall be operated throughout the entire year. For purposes of this Consent Decree, properly documented discharges of storm water and/or storm water pollutants from the Facility in connection with rainfall events that exceed the Compliance Standard are not a violation of this Consent Decree and are not subject to requirement to meet Table 1 Numeric Limits.

         15. BMP Plan, Bell has implemented the following BMPs at the areas identified in the site map attached as Exhibit A hereto:

a. Remove surplus and excess equipment from the storage area in discharge area 1;
b. Remove approximately 40 tons of dirt that had accumulated on the asphalt in storage area 1;
c. Install concrete diversion berm to control flow from storage area I;
d. Paint the buildings located in the oil storage area, forklift and maintenance area and ...

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