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Orange County Coastkeeper v. Associated Ready Mixed Concrete, Inc.

United States District Court, C.D. California

November 17, 2017

ORANGE COUNTY COASTKEEPER, a California non-profit corporation; and LOS ANGELES WATERKEEPER, a California non-profit corporation; Plaintiffs,
v.
ASSOCIATED READY MIXED CONCRETE, INC., a California Corporation; A&A READY MIXED CONCRETE, INC., a California Corporation; Defendant.

          Garry Brown Orange County Coastkeeper Bruce Reznik Los Angeles Waterkeeper Kurt Caillier Associated Ready Mixed Concrete, Inc. Randy Caillier A&A Ready Mixed Concrete, Inc. LAWYERS FOR CLEAN WATER, INC. Caroline Koch Attorney for Plaintiffs

          BROWNSTEIN HYATT FARBER SCHRECK, LLP Ryan Waterman Attorney for Defendants

          LAWYERS FOR CLEAN WATER, INC. Caroline Koch (Bar No. 266068) Drevet Hunt (Bar. No. 240487) O'Reilly Avenue San Francisco, California Attorneys for Plaintiffs ORANGE COUNTY COASTKEEPER and LOS ANGELES WATERKEEPER

          BROWNSTEIN HYATT FARBER SCHRECK, LLP Ryan Waterman (State Bar No. 229485) Attorney for Defendants ASSOCIATED READY MIXED CONCRETE, INC. and A & A READY MIXED CONCRETE, INC. ORANGE COUNTY COASTKEEPER Colin Kelly (Bar No. 266956) (Bar No. 305658) LOS ANGELES WATERKEEPER Arthur Pugsley (Bar No. 252200) Melissa Kelly (Bar No. 300817)

          CONSENT DECREE

          James V. Selna United States District Judge

         The following Consent Decree is entered into by and between Plaintiffs Orange County Coastkeeper and Los Angeles Waterkeeper (“Plaintiffs”), and Defendants Associated Ready Mixed Concrete, Inc. and A&A Ready Mixed Concrete, Inc. (“Defendants”). The entities entering into this Consent Decree are each an individual “Settling Party” and collectively “Settling Parties.”

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

         WHEREAS, Los Angeles Waterkeeper is a non-profit public benefit corporation organized under the laws of the State of California;

         WHEREAS, together, Plaintiffs are dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of local surface waters;

         WHEREAS, Defendants operate batch plants located at: (1) 25901 Towne Centre Drive, Foothill Ranch, California 92610 (“Foothill Ranch Facility”), (2) 18030 Mount Washington Street, Fountain Valley, California 92708 (“Fountain Valley Facility”, and referred to herein collectively as the “Orange County Facilities”), (3) 100 E. Redondo Beach Boulevard, Gardena, CA 90248 (“100 Gardena Facility”), and (4) 134 W. Redondo Beach Boulevard, Gardena, CA 90248 (“134 Gardena Facility”, and referred to herein collectively as “the Gardena Facilities”);

         WHEREAS, the Settling Parties refer to the Orange County Facilities and the Gardena Facilities collectively as the “Facilities”;

         WHEREAS, Associated Ready Mixed Concrete, Inc. operates and controls the industrial activities at the Orange County Facilities;

         WHEREAS, A&A Ready Mixed Concrete, Inc. operates and controls the industrial activities at the Gardena Facilities;

         WHEREAS, storm water discharges associated with industrial activity at the Orange County Facilities and at the Gardena Facilities 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, Defendants' operations at the Orange County Facilities and at the Gardena Facilities are permitted under the Storm Water Permit;

         WHEREAS, Plaintiffs contend that Defendants' operations at the Orange County Facilities and at the Gardena 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, Defendants assert that they have attempted to comply in good faith with the Storm Water Permit at their Orange County Facilities and Gardena Facilities;

         WHEREAS, the 134 Gardena Facility presents particular complexities and challenges for storm water retention given that the facility consists of multiple, noncontiguous parcels;

         WHEREAS, Defendants also operate concrete batch plant facilities throughout Coastkeeper and Waterkeeper's jurisdictions, and Defendants will implement retention BMPs designed to retain the maximum volume that can be retained within operating constraints above the 85th Percentile storm event at those facilities consistent with the BMPs described in paragraph 14 of this Consent Decree;

         WHEREAS, the Storm Water Permit includes the following requirements for all permittees, including Defendants: (1) develop and implement a storm water pollution prevention plan (“SWPPP”) and a storm water monitoring and implementation program (“MIP”), (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 2, 2017, Plaintiffs issued 60-day notice letters to Associated Ready Mixed Concrete, Inc., the registered agent of Defendant Associated Ready Mixed Concrete, Inc., 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 Los Angeles Regional Water Quality Control Board (“Regional Water Board”), and the Regional Administrator of EPA Region IX, with a notice of intent to file suit 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 Orange County Facilities and the Gardena Facilities;

         WHEREAS, on March 29, 2017, Plaintiffs re-issued a 60-day notice letter to A&A Ready Mixed Concrete, Inc., the registered agent of Defendant A&A Ready Mixed Concrete, Inc., the EPA Administrator, the State Water Board Executive Director, the Executive Officer of the Los Angeles Regional Water Board, and the Regional Administrator of EPA Region IX, with a notice of intent to file suit 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 Gardena Facilities;

         WHEREAS, the Settling Parties refer to the February 2 and March 29 letters together as the “60-Day Notices;”

         WHEREAS, on April 4, 2017, Plaintiffs filed a complaint against Associated Ready Mixed Concrete, Inc. in the United States District Court, Central District of California, Civil Case No. 8:17-00611-JVS-JDE;

         WHEREAS, on May 30, 2017, Plaintiffs filed an amended complaint against Associated Ready Mixed Concrete, Inc. and A&A Ready Mixed Concrete, Inc. in the United States District Court, Central District of California, Civil Case No. 8:17-00611-JVS-JDE, which is the operative complaint in this action;

         WHEREAS, Plaintiffs allege Defendants are in violation of the substantive and procedural requirements of the Storm Water Permit and the Clean Water Act;

         WHEREAS, Defendants deny all allegations and claims contained in the 60-Day Notices and the amended complaint and reserve all rights and defenses with respect to such allegations and claims;

         WHEREAS, the Settling Parties have agreed that it is in their mutual interest and choose to resolve in full Plaintiffs' allegations in the 60-Day Notices and amended complaint through settlement and avoid the cost and uncertainties of further litigation; and

         WHEREAS, all actions taken by Defendants 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 Court pursuant to Section 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Orange County Facilities and the Gardena Facilities at which the alleged violations took place are located within this District.

         3. The amended complaint states claims upon which relief may be granted against the Defendants pursuant to Section 505 of the Clean Water Act, 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 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 Plaintiffs in its 60-Day Notices and amended complaint.

         7. In light of these objectives and as set forth fully below, Defendants agree to comply with the provisions of this Consent Decree, the Storm Water Permit, and all applicable provisions of the Clean Water Act at the Orange County Facilities and the Gardena Facilities.

         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 following the end of 45-day Federal Agencies review period described above or the date the Federal Agencies inform the Court that they have no objections to entry of this Consent Decree, whichever is sooner.

         10. Term of Consent Decree: This Consent Decree shall terminate on June 30, 2020 as to the Orange County Facilities and the 100 Gardena Facility, and given the additional BMPs to be implemented at the 134 Gardena Facility, on June 30, 2022 as to the 134 Gardena Facility unless one of the Settling Parties has invoked Dispute Resolution in accordance with paragraph 39, in which case the Consent Decree will terminate within fifteen (15) days' notice by the Settling Party that invoked Dispute Resolution that the dispute has been fully resolved or as of the time when the Court's decision resolving the dispute is final and no longer subject to appeal, whichever is earlier.

10.1. Early Termination. If a Defendant ceases industrial operations at any Facility and files a Notice of Termination (“NOT”) under the Storm Water Permit prior to the termination of this Consent Decree, Defendant shall provide Plaintiffs with a copy of the 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 Plaintiffs of the approval and remit all outstanding payments under the Consent Decree related to the Facility to Plaintiffs. Within ten (10) days of Plaintiffs' receipt of such notification, the Consent Decree will terminate as to the Facility for which the NOT was approved, unless one of the Settling Parties has invoked Dispute Resolution in accordance with the Dispute Resolution process described in paragraph 39, in which case the Consent Decree will terminate as to the Facility in accordance with paragraph 10.

         B. Discharges from the Facility to the Separate Storm Sewer

         i. Best Management Practices for Storm water Discharges

         11. Current and Additional Best Management Practices:

         In addition to maintaining the current storm water BMPs at the Orange County Facilities and the Gardena Facilities, Defendants 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, Defendants shall develop and implement BMPs to prevent and/or reduce contamination in storm water discharges from the Orange County Facilities and the Gardena Facilities consistent with use of BAT and BCT and/or in compliance with WQS.

12. Non-Structural BMPs: Within thirty (30) days of the Effective Date, Defendants shall develop and implement the following non-structural BMPs at the Orange County Facilities and the Gardena Facilities.
12.1. Sweeping. Institute a daily sweeping program using a dry vacuum sweeper, and a weekly sweeping program with a PM-10 compliant and/or wet/dry vacuum sweeper, covering all exterior areas of the site exposed to rainfall or runoff and accessible to the sweeper. To document compliance with this paragraph, Defendants will institute an established sweeping route map to be followed during daily sweepings, record the length of time of sweeper operation, and provide these records to Plaintiffs within fourteen (14) days of receipt of a written request;
12.2. Vehicle Maintenance. Any outdoor vehicle and equipment maintenance will be conducted in accordance with written standard operating and incident procedures to be developed consistent with the SWPPP and in a contained area, i.e., an area where any storm water runoff or non-storm water flow will be captured and used in the industrial process(es) according to the provisions of paragraphs 13 and 14;
12.3. Vehicle Fueling. Any outdoor vehicle fueling will be conducted in accordance with written standard operating and incident procedures to be developed consistent with the SWPPP and in a contained area, i.e., an area where any storm water runoff or non-storm water flow will be captured and used in the industrial process(es) according to the provisions of paragraphs 13 and 14;
12.4. Vehicle Storage. Place drip mats or pads beneath trucks and other Facility equipment likely to spill or leak while such equipment is not under cover and is idle for more than 1 hour;
12.5. Source Controls. Complete an evaluation of all outdoor storage of miscellaneous equipment, obsolete tooling, and/or miscellaneous materials, e.g., scrap metal, at the Facilities, and dispose of any miscellaneous equipment, obsolete tooling, and/or miscellaneous materials, e.g., scrap metal, no longer relevant to Defendant's operation. To the extent Defendants comply with this paragraph by disposing of miscellaneous equipment, obsolete tooling, and/or miscellaneous materials, e.g., scrap metal, currently stored outdoors at the Facilities, Defendants will comply with all applicable disposal requirements. Any outdoor storage of miscellaneous equipment, obsolete tooling, and/or miscellaneous materials, e.g., scrap metal, remaining following the evaluation required by this paragraph will be in areas designated by the SWPPP as outdoor storage areas only;
12.6. Secondary Containment. Defendants shall store all petroleum-based materials and wastes and all concrete additives and coloring agents that could come into contact with rainfall or runoff within secondary containment having a volume at least 110 percent of the contents of the largest vessel stored within the containment. Where formal walled containment is not present around additives and/or coloring agents, within thirty (30) days of the Effective Date, Defendants shall provide data and calculations demonstrating that low areas to which additives and coloring agents can drain meet the 110 percent containment requirement; 12.7. Defendants shall ...

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