United States District Court, C.D. California
LOS ANGELES WATERKEEPER, a California non-profit corporation, Plaintiff,
v.
BODYCOTE THERMAL PROCESSING, INC., a Delaware corporation, Defendant
AQUA
TERRA AERIS LAW GROUP LLP Jason Flanders Attorneys for Los
Angeles Waterkeeper
THOMPSON & KNIGHT LLP James B. Harris Attorneys for
Bodycote Thermal Processing, Inc.
DOLLY
M. GEE, UNITED STATES DISTRICT JUDGE.
Consent
Decree
WHEREAS,
Los Angeles Waterkeeper (“Waterkeeper” or the
“Plaintiff”) is a Section 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 surface, ground, coastal, and ocean waters of
Los Angeles County from all sources of pollution and
degradation;
WHEREAS,
Bodycote Thermal Processing, Inc. (“Bodycote” or
the “Defendant”) operates an industrial facility
located at 9921 Romandel Ave., Santa Fe Springs, CA 90670
(the “Facility”).
WHEREAS,
the Facility's industrial activities, which include
industrial metal heat treatment, are categorized under
Standard Industrial Classification Code 3398 - Metal Heat
Treating;
WHEREAS,
stormwater discharges to Waters of the United States
associated with industrial activity at the Facility are
regulated by the National Pollutant Discharge Elimination
System (“NPDES”) General Permit No. CAS000001
[State Water Resources Control Board], Water Quality Order
No. 2014-57-DWQ (“General Permit” or
“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;
WHEREAS,
Defendant's operations at the Facility may result in
discharges of pollutants into waters of the United States
that would be regulated by the Clean Water Act Sections
301(a) and 402, 33 U.S.C. §§ 1311(a), 1342;
WHEREAS,
on August 30, 2018, Plaintiff issued a notice of intent to
file suit (“60-Day Notice”) to Defendant, its
registered agent, the Administrator of the United States
Environmental Protection Agency (“EPA”), the
Executive Director of the State Water Resources Control Board
(“State Water Board”), the Executive Director of
the Los Angeles Regional Water Quality Control Board
(“Regional Water Board”), and the Regional
Administrator of EPA Region IX, alleging violations of the
Clean Water Act and the General 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
Facility;
WHEREAS,
on November 1, 2018, Waterkeeper filed a complaint against
Bodycote in the Central District of California, Civil No. CV
18-09356-DMG (GJSx) (“Complaint”);
WHEREAS,
Plaintiff's Complaint alleged violations of the General
Permit and CWA for Defendant's alleged discharges of
pollutants into storm drains and surface waters, including
the San Gabriel River, La Cañada Verde Creek, Coyote
Creek, and ultimately the Pacific Ocean (“Receiving
Waters”);
WHEREAS,
Bodycote denies all allegations set forth in the 60-Day
Notice Letter and Complaint relating to the Facility,
including that this Court has jurisdiction, that the
Complaint states a claim, or that Waterkeeper has standing,
although for purposes of this Consent Decree, Bodycote will
not challenge jurisdiction, the existence of a claim, or
standing;
WHEREAS,
Plaintiff and Defendant (collectively “Settling
Parties” or “Parties” and individually
“Settling Party” or “Party”) agree
that it is in their mutual interest to enter into a Consent
Decree setting forth terms and conditions appropriate to
resolve the allegations set forth in the 60-Day Notice and
Complaint without further proceedings and without Bodycote
admitting any liability; and
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 (SOLELY FOR PURPOSES OF RESOLVING THEIR DISPUTE
THROUGH THIS CONSENT DECREE) AND IT IS 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 United States District Court for
the Central District of California pursuant to Section
505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because
the Facility at which the alleged violations are taking 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. At
the Parties' request, the Court shall retain jurisdiction
over this action, even though it has been dismissed with
prejudice, for purposes of interpreting, modifying, or
enforcing the terms of this Consent Decree, or as long
thereafter as necessary for the Court to resolve any motion
to enforce this Consent Decree, but only regarding issues
raised while the Consent Decree remains in effect.
I.
OBJECTIVES
6. It
is the express purpose of the Settling Parties through this
Consent Decree to further the objectives of the Clean Water
Act, and to resolve all issues alleged by Waterkeeper in its
60-Day Notice and Complaint.
7. In
light of these objectives and as set forth fully below,
Defendant agrees to comply with the provisions of this
Consent Decree.
II.
AGENCY REVIEW AND CONSENT DECREE TERM
A.
Agency Review of Consent Decree
8.
Agency Review.
Plaintiff
shall submit this Consent Decree to the United States
Department of Justice and the EPA (the “Federal
Agencies”), within three (3) business days of the final
signature of the Parties, for agency review consistent with
40 C.F.R. § 135.5. The agency review period expires
forty-five (45) calendar days after receipt by the Federal
Agencies, as evidenced by certified return receipts, copies
of which shall be provided to Defendant. In the event that
the Federal Agencies object to the entry of this Consent
Decree, the Parties may agree to meet and confer to attempt
to resolve the issue(s) raised by the Federal Agencies, if
necessary. If either Party chooses not to address the issues
raised, the Consent Decree will be entered if that Party so
requests the Court do so.
9.
Court Notice.
Plaintiff
shall notify the Court of the receipt date by the Federal
Agencies, as required by 40 C.F.R. § 135.5, in order to
coordinate the Court's calendar with the 45-day review
period.
10.
Entry of Consent Decree.
Following
expiration of the Federal Agencies' 45-day review period,
the Consent Decree may be entered by the Court.
B.
Effective Date and Term of Consent Decree
11.
Effective Date.
The
Effective Date of this Consent Decree shall be the date of
entry by the Court. All obligations under this Consent Decree
shall begin on the Effective Date, except as stated in this
Consent Decree.
12.
Term & Termination.
This
Consent Decree shall terminate in accordance with paragraph
13 unless one of the Settling Parties has invoked Dispute
Resolution in accordance with Section IV of this Consent
Decree, in which case the Consent Decree will terminate
within the earlier of fifteen (15) days of notice by the
Settling Parties that invoked Dispute Resolution that the
dispute has been fully resolved or an order of the Court
resolving the dispute and terminating the Consent Decree.
13.
Subject to paragraph 12, the Consent Decree shall terminate
upon the date of the first of the following events to occur
(such date shall be ...