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Los Angeles Waterkeeper v. Davis Wire Corp.

United States District Court, C.D. California

June 30, 2017

LOS ANGELES WATERKEEPER, a California non-profit corporation, Plaintiff,
v.
DAVIS WIRE CORPORATION, a California corporation, Defendant.

          LAWYERS FOR CLEAN WATER, INC. Attorney for Plaintiff LOS ANGELES WATERKEEPER

          PILLSBURY WINTHROP SHAW PITTMAN LLP Michael S. McDonough (Bar No. 193684) Attorney for Defendant DAVIS WIRE CORPORATION

          [PROPOSED] CONSENT DECREE (FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§1251*/5*9.)

          Honorable Philip S. Gutierrez United States District Court Judge.

         CONSENT DECREE

         The following Consent Decree is entered into by and between Plaintiff Los Angeles Waterkeeper ("Plaintiff or "Waterkeeper") and Defendant Davis Wire Corporation ("Defendant" or "Davis Wire"). The entities entering into this Consent Decree are each an individual "Settling Party" and collectively the "Settling Parties."

         WHEREAS, 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 inland and coastal surface and ground waters of Los Angeles County from all sources of pollution and degradation;

         WHEREAS, Davis Wire Corporation ("DWC" or "Defendant") is the owner and/or operator of a wire drawing facility located at 5555 Irwindale Avenue, Irwindale, California 91706, hereinafter referred to by the Settling Parties as the "Facility";

         WHEREAS, Waterkeeper has approximately 3, 000 members who live and/or recreate in and around the Los Angeles area waterbodies receiving discharges from the Facility, including the San Gabriel River, San Gabriel River Estuary, San Pedro Bay, and the Pacific Ocean;

         WHEREAS, discharges of storm water from the Facility to waters of the United States are regulated by the National Pollutant Discharge Elimination System ("NPDES") General Permit No. CAS000001 [State Water Resources Control Board] Water Quality Order No. 92-12-DWQ, as amended by Order No. 97-03-DWQ and by Order No. 2014-0057-DWQ ("Storm Water Permit" or "Permit") and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. ("Clean Water Act" or "CWA");

         WHEREAS, on April 26, 2016, Waterkeeper sent Defendant, the United States Environmental Protection Agency ("EPA"), EPA Region IX, the State Water Resources Control Board ("State Board"), and the Los Angeles Regional Water Quality Control Board ("Regional Board") a notice of intent to file suit ("Notice Letter") under Sections 505(a) and (b) of the Clean Water Act, 33 U.S.C. §§ 1365(a) and (b). The Notice Letter alleged violations of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), and violations of the Storm Water Permit at the Facility;

         WHEREAS, on July 19, 2016, Waterkeeper filed a complaint against Defendant in the United States District Court, Central District of California (Case No. 2:16-cv-05332-PSG-JC), alleging violations of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), and violations of the Storm Water Permit at the Facility ("Complaint");

         WHEREAS, Waterkeeper alleges Defendant to be in violation of the substantive and procedural requirements of the Storm Water Permit and the Clean Water Act with respect to the Facility;

         WHEREAS, Defendant denies all allegations in the Notice Letter and Complaint relating to the Facility; WHEREAS, Waterkeeper and Defendant have agreed that it is in the Settling 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 Defendant pursuant to this Consent Decree shall be made in compliance with all applicable federal and state laws 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 Clean Water Act, 33 U.S.C. § 1365(a)(1)(A);
2. Venue is appropriate in the Central District of California pursuant to Section 505(c)(1) of the Clean Water Act, 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 claims upon which relief may be granted pursuant to Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1);
4. Plaintiff has 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 motion to enforce this Consent Decree.

         I. OBJECTIVES

         6. It is the express purpose of the Settling 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 Waterkeeper in its Complaint. In light of these objectives and as set forth fully below, Defendant agrees 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 Clean Water Act at the Facility.

         II. AGENCY REVIEW AND TERM OF CONSENT DECREE

         7. Plaintiff shall submit this Consent Decree to the United States Department oi Justice and the EPA (collectively "Federal Agencies") within three (3) days of the final signature of the Settling Parties for agency review consistent with 40 C.F.R. § 135.5. The agency review period expires forty-five (45) days after receipt by both agencies, as evidenced by written acknowledgement of receipt by the agencies or the certified return receipts, copies of which shall be provided to Defendant if requested. 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.

         8. The term "Effective Date" as used in this Consent Decree shall mean the first business day following the expiration of the 4 5-day Agency review period or the date on which the Federal Agencies indicate in writing that they do not object to this Consent Decree, whichever is sooner.

         9. The Court shall retain jurisdiction over this matter for purposes of interpreting, modifying or enforcing the terms of this Consent Decree until the end of the 2017-2018 wet season (May 31, 2018) or until the approval of a Notice of Termination ("NOT"), whichever first occurs (the "Termination Date") and subject to the terms of the dispute resolution process set forth in Section X, unless either Settling Party files and is granted a timely motion requesting an extension of time for the court to retain jurisdiction beyond the Termination Date, or if there is an ongoing dispute regarding Defendant's compliance with this Consent Decree and Waterkeeper has filed, prior to the Termination Date, a Notice of Dispute and a motion requesting the Court retain jurisdiction to resolve the dispute.

         III. LONG-TERM POLLUTION CONTROL AT THE FACILITY

         10. Compliance with Storm Water Permit.

         DWC shall operate the Facility in compliance with the applicable requirements of the Permit (or the statements and commitments of a Notice of Termination ("NOT") and associated documents certified and submitted to the Regional Board) and the CWA.

         11. Storm Water Pollution Control Measures.

         Within thirty (30) days of the Effective Date, Defendant shall implement the following measures to reduce and prevent pollutants in the discharge of storm water associated with industrial activity at the Facility:

         a. Sweeping.

         Defendant shall operate a sweeper or vacuum on at least a weekly basis from October 1 through May 31 that removes particulate matter from surfaces across which sheet flow would occur or in curb and gutter structures, swale structures, or other areas that a street sweeper can feasibly access.

         b. Inventory Management.

         Defendant shall develop and implement a plan to manage inventory to reduce the exposure of raw and finished products to storm water. Specifically with regard to areas of the Facility that will be used to capture, convey and infiltrate storm water, Defendant shall take practicable and cost-effective measures to relocate materials stored below the high-water mark in those areas prior to predicted rain events. Defendant shall train responsible employees involved in executing these measures within thirty (30) days of the Effective Date.

         c. Maintenance of Roofs and Other Structural Sources of Pollutants:

         Defendant shall conduct a corrosion assessment and implement periodic inspections for all roofs and other structural sources of pollutants (such as building siding), and shall implement corrective actions (such as measures to coat visible corrosion or to replace roofing and/or siding materials with less corrosive or non-corrosive materials) as necessary.

         12. Notice of Termination of Coverage Under the Permit.

         Defendant shall file an NOT and pursue termination of coverage and authorization to discharge pollutants under the Permit. Defendant agrees to provide Plaintiff with an opportunity to review the NOT and associated documents prior to filing it, and to consider in good faith any recommended edits to the NOT and associated documents from Plaintiff, as detailed further below.

         13. Submission of Notice of Termination of Coverage Under the Permit. Defendant shall seek termination of coverage under the Permit on the basis that storm water associated with industrial activity does not discharge to waters of the United States. The following process and requirements shall apply to the development, implementation, and request for approval of an NOT:

         a. No later than September 1, 2017, Defendant shall prepare a No Discharge Technical Report to support the Facility's "No Discharge" eligibility. This No Discharge Technical Report may be comprised in whole or in part of materials Defendant prepares in support of the NOT. The No Discharge Technical Report shall be prepared and signed by a California licensed professional engineer. The No Discharge Technical Report shall demonstrate that the Facility is engineered and constructed to contain the maximum historic precipitation events (or series of events) using the precipitation data collected from the rain gauge located at the Santa Fe Dam, so that there will be no discharge of industrial storm water to waters of the United States. The No Discharge Technical Report shall include all appropriate safety factor considerations and apply all other general engineering principles, and shall include the following elements:

i. Hydraulic calculations to quantify the volume of water that must be captured and prevented from discharging to waters of the United States from all areas at the site that generate storm water associated with industrial activity;
ii. A technical soil permeability analysis of the portion of the Facility to be used to capture and retain all storm water associated with industrial activity generated at the Facility that demonstrates that no discharge of storm water associated with industrial activity to waters of the United States will occur because all such water will infiltrate or evaporate;
iii. A geotechnical evaluation of the structures used to convey, capture, and retain all storm water associated with industrial activity generated at the Facility to demonstrate they are capable of serving their intended purpose of preventing all discharges of storm water associated with industrial activity to waters of the United States, and that meet applicable code standards and current state of practice;
iv. A technical demonstrate Technical Report and all underlying data and supporting documentation to Waterkeeper for review and comment. Waterkeeper shall provide comments to Defendant within fifteen (15) days of receipt. Defendant shall incorporate Waterkeeper's comments, or justify in writing why any comment(s) are not incorporated, within ten (15) days of receipt. Within seven (7) days of receipt of Defendant's response to Waterkeeper's comments, Waterkeeper shall notify Defendant of any remaining disputes with Defendant's No Discharge Technical Report. The Parties agree to work in good faith with respect to resolving any disputes with respect to the No Discharge Technical Report, and agree that the existence of any ongoing dispute shall not obligate Defendant to delay its NOT submittal to the Regional Board.

         c. After submitting its response to Waterkeeper's comments on the No Discharge Technical Report, Defendant shall submit the No Discharge Technical Report and the application for NOT to the Regional Board for approval, and shall provide a copy of those final submittals to Waterkeeper.

         14. Until and unless the Regional Board approves an NOT for the Facility, Defendant shall continue to comply with the Permit, its SWPPP and the Storm Water ...


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