Los Angeles Waterkeeper v. Bodycote Thermal Processing, Inc.

          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 ...