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Los Angeles WaterKeeper v. City of Burbank

United States District Court, C.D. California

May 22, 2018

LOS ANGELES WATERKEEPER, a California non-profit corporation, Plaintiff,
v.
CITY OF BURBANK, a municipality, Defendant.

          LOZEAU DRURY LLP Michael R. Lozeau (State Bar No. 142893) Douglas J. Chermak (State Bar No. 233382) Attorneys for Plaintiff LOS ANGELES WATERKEEPER

          BROWNSTEIN HYATT FARBER SCHRECK, LLP Ryan Waterman (State Bar No. 229485) Attorney for Defendant CITY OF BURBANK

          Plaintiff's and Defendant's Additional Counsel Listed On Next Page Plaintiff's Additional Counsel LOS ANGELES WATERKEEPER Arthur Pugsley (State Bar No. 252200) Melissa Kelly (State Bar No. 300817) Defendant's Additional Counsel CITY OF BURBANK Amelia Ann Albano, City Attorney (State Bar No. 103640) Carolyn A. Barnes, Sr. Asst. City Attorney (State Bar No. 113313) Christopher Chwang, Sr. Asst. City Attorney (State Bar No. 210700)

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

          Honorable Rozella A. Oliver United States Magistrate Judge

         CONSENT DECREE

         The following Consent Decree is entered into by and between Plaintiff Los Angeles Waterkeeper (“Plaintiff” or “Waterkeeper”) and Defendant City of Burbank (“Defendant” or “Burbank”). 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, Burbank is a California municipal corporation located in the eastern San Fernando Valley, nestled between the Hollywood Hills and the Verdugo Mountains, encompassing 17 square miles with a diverse population of approximately 103, 000;

         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, Burbank operates two, adjacent electrical power facilities, individually called the Magnolia Power Project and the Burbank Water and Power Facility, and collectively called the BWP Campus, located at 164 West Magnolia Boulevard in Burbank, California, hereinafter referred to by the Settling Parties collectively as the “Facility”;

         WHEREAS, Burbank is committed to complying with all environmental laws and regulations, while also recognizing the importance of conservation and environmental protection.

         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 Los Angeles River, the Burbank Western Channel, San Pedro Bay, and the Pacific Ocean;

         WHEREAS, storm water discharges associated with industrial activity at the Facility are regulated pursuant to 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 Water Quality Order 97-03-DWQ and as subsequently amended by Water Quality Order No. 2014-0057-DWQ) (hereinafter the “Permit”), issued pursuant to Section 402 of the Federal Water Pollution Control Act (“Clean Water Act” or “the Act”), 33 U.S.C. §§ 1251 et seq.;

         WHEREAS, the Magnolia Power Project and the Burbank Water and Power Facility located at the Facility are both registered under the Permit;

         WHEREAS, the Facility's subsurface storm water drainage system receives storm water flows from offsite non-industrial sources through a shared storm water conveyance system;

         WHEREAS, the Permit includes the following requirements for all permittees, including Burbank: 1) develop and implement a storm water pollution prevention plan (“SWPPP”); 2) control pollutant discharges using best available technology economically achievable (“BAT”) and 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 applicable water quality standards;

         WHEREAS, on October 28, 2016, Waterkeeper served Burbank, the Administrator of the United States Environmental Protection Agency (“EPA”), the Executive Director of the State Water Resources Control Board (“State Board”), the Executive Officer of the Los Angeles Regional Water Quality Control Board (“Regional Board”), the U.S. Attorney General, and the Regional Administrator of the EPA (Region 9) with a notice of intent to file suit under Sections 505(a)(1) and (f) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A) (“60-Day Notice letter”), alleging violations of the Act and the Permit at the Facility;

         WHEREAS, on February 1, 2017, Waterkeeper filed a complaint against Burbank in the United States District Court, Central District Court of California, entitled Los Angeles Waterkeeper v. City of Burbank (No. 2:17-cv-00822-RAO); alleging violations of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), and violations of the Permit at the Facility (“Complaint”) based on the 60-Day Notice letter;

         WHEREAS, Waterkeeper contends in its 60-Day Notice letter and Complaint that, among other things, Burbank has repeatedly discharged polluted storm water in violation of the Permit and the Clean Water Act;

         WHEREAS, Burbank denies all allegations set forth in the 60-Day Notice letter and Complaint relating to the Facility;

         WHEREAS, the Settling Parties, through their authorized representatives and without either adjudication of Waterkeeper's claims or any admission by Burbank of any alleged violation or other wrongdoing, believe it is in their mutual interest and choose to resolve in full Waterkeeper's allegations in the 60-Day Notice letter and Complaint through settlement and avoid the cost and uncertainties of further litigation;

         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 Permit and all applicable provisions of the Clean Water Act at the Facility.

         II. COMMITMENTS OF BURBANK

         7. In order to reduce or prevent pollutants associated with industrial activity from discharging via storm water to the waters of the United States, Burbank shall implement appropriate structural and non-structural BMPs, as described more fully below.

         8. Maintenance of Implemented Storm Water Controls. Burbank agrees that the Facility shall maintain in good working order all storm water collection and management systems currently installed or to be installed pursuant to this Consent Decree, including but not limited to, existing housekeeping measures.

         9. Structural Improvements to Storm Water Management Measures.

         a. In order to prevent storm water from contacting some potential pollutant sources at the Facility, within sixty (60) days of the Effective Date, Burbank shall implement permanent awnings to the Magnolia Hydrogen Fill Station and the MPP Hydrogen Storage Area at the Facility that are consistent with other permanent awnings at the Facility. These locations are depicted on a map of the Facility attached hereto as Exhibit A.

         b. In order to filter storm water prior to discharge, within thirty (30) days of the Effective Date, Burbank shall:

i. Enlarge the vault at sampling location 1 and install CleanWay Catch Basin Filtration inserts with the MetalZorb filter;
ii. Install CleanWay MetalZorb filters at sampling locations 2 and 3;

         c. Within fourteen (14) days of each of the improvements set forth in Paragraph 9(a) and 9(b), Burbank shall e-mail Waterkeeper digital photographs confirming said improvements.

         10. Storm Water Quality Improvement Feasibility Study. On or before June 1, 2018, Burbank shall obtain a draft Storm Water Quality Improvement Feasibility Study (Feasibility Study) to analyze options to improve the quality of storm water discharges from the Burbank campus to the Burbank Western Channel and/or to eliminate/prevent storm water discharges. The Feasibility Study will review the options for treatment of industrial pollutants (including, but not limited to, soluble metals), various site treatment controls, source control and structural BMPs to improve the quality of Burbank's storm water discharge and/or eliminate/prevent storm water discharges. The Feasibility Study will include a technology assessment and alternatives analysis, which will consider a range of criteria, including (a) run-on characteristics, (b) diversion options, (c) site geometrics, (d) depth to groundwater, (e) site geotechnical constraints, (e) capital and annual ...


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