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Los Angeles Waterkeeper v. Security Paving Company, Inc.

United States District Court, C.D. California

January 16, 2020

LOS ANGELES WATERKEEPER, A California non-profit corporation, Plaintiff,
v.
SECURITY PAVING COMPANY, INC., a California corporation, Defendant.

          Bruce Reznik Executive Director Los Angeles Waterkeeper

          Robert Shaffer Security, Paving Company, Inc. General Counsel

          Anthony M. Barnes Los Angeles Waterkeeper Attorney for Plaintiff

          S. Wayne Rosenbaum Environmental Law Group LLP Attorney for Security Paving Company, Inc.

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

          Hon. Dean D. Pregerson Judge

         The following Consent Decree is entered by and between Los Angeles Waterkeeper (“Waterkeeper”) and Security Paving Company, Inc. (“Defendant” or “Security”). The entities entering 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 rivers, creeks, and coastal waters of Los Angeles County from all sources of pollution and degradation;

         WHEREAS, Security is the owner and operator of a concrete/aggregate reuse and recycling facility located at 8960 Bradley Avenue, Sun Valley, California, hereinafter referred to by the Settling Parties as the “Security Facility”;

         WHEREAS, the Security Facility operates under SIC code 3295-Minerals and Earths, Ground or Otherwise Treated with the Waste Discharge Identification (“WDID”) number of 4 19I026031; industrial activities occurring at the Security Facility include storing concrete, asphalt rubble and aggregate base, crushing raw materials to create aggregate base, weighing raw materials and finished aggregate base, conveyance and storage of materials via conveyors and hoppers, and vehicle loading and unloading

         WHEREAS, Plaintiff's members live and/or recreate in and around waters which Plaintiff's members allege receive discharges from the Security Facility to the Los Angeles County municipal storm sewer system, and into waters of the United States, including the Los Angeles River and Queensway Bay adjacent to Junipero Beach (collectively the “Receiving Waters”), 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, storm water and non-storm water discharges from the Security Facility 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, as superseded by Order No. 2014-0057-DWQ and amended by Order No. 2015-0122 - 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;

         WHEREAS, the Storm Water Permit includes the following requirements for all permittees, including Security: (1) develop and implement a stormwater pollution prevention plan (“SWPPP”), (2) control pollutant discharges using, as appropriate, 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;

         WHEREAS, on April 10, 2019, Waterkeeper sent Security, 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 Security Facility;

         WHEREAS, on June 11, 2019, Waterkeeper filed a complaint against Security in the United States District Court, Central District of California 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 Security Facility (“Complaint”);

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

         WHEREAS, Security denies all allegations in the Notice Letter and Complaint relating to the Security Facility;

         WHEREAS, Plaintiff and Security have agreed that it is in the Settling Parties' mutual interest to enter a Consent Decree setting forth terms and conditions appropriate to resolving the allegations set forth in the Complaint with respect to the Security Facility without further proceedings;

         WHEREAS, any reference to Attachment I of the Storm Water Permit is for the purpose of resolving the allegations set forth in the Complaint with respect to the Security Facility only;

         WHEREAS, all actions taken by Security 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) of the Clean Water Act, 33 U.S.C. § 1365(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 Security Facility 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 interpreting, modifying, or 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 this Consent Decree to further the objectives set forth in the Clean Water Act and to resolve those issues alleged by Waterkeeper in its Complaint. Considering these objectives and as set forth fully below, Security 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 Security Facility.

         II. AGENCY REVIEW AND TERM OF CONSENT DECREE

         7. Plaintiff shall submit this Consent Decree to the United States Department of 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 are to be provided to Security upon request. If 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, the Settling Parties shall submit the Consent Decree to the Court for entry.

         8. The term “Effective Date” as used herein shall mean the day that this Consent Decree is entered by the Court.

         9. This Consent Decree will terminate five (5) years from the Effective Date, unless prior to the termination date either Party has invoked the dispute resolution provisions of this Consent Decree and there is an ongoing, unresolved dispute regarding either Party's compliance with this Consent Decree, in which case the Consent Decree will terminate upon final resolution of the dispute pursuant to the dispute resolution provisions contained herein.

         III. COMMITMENTS OF THE SETTLING PARTIES

         10. The Settling Parties acknowledge that Security is in the process of making significant changes to its Facility to improve storm water quality and/or reduce or eliminate discharges from the Facility (BMPs) Listed in Exhibit A.

         11. In addition to the BMPs set forth in Exhibit A, Security will design, construct and operate a system to capture storm water based upon the 85th Percentile Storm Event for reuse in the industrial processes at the Security Facility as set forth in Attachment I of the Storm Water Permit (Capture BMP). Security shall also: 1) engage a California Licensed Professional Engineer (PE) to design the Capture BMP pursuant to the schedule attached hereto as Exhibit D and provide Waterkeeper with the certifications and a curriculum vitae for the PE selected by Security within ten (10) days of the selection of the PE, 2) apply for any necessary permits to construct the Capture BMP pursuant to the schedule attached hereto as Exhibit D, 3) obtain necessary permits to construct the Capture BMP pursuant to the schedule attached hereto as Exhibit D, 4) commence construction of the Capture BMP pursuant to the schedule attached hereto as Exhibit D, and 5) complete construction pursuant to the schedule attached hereto as Exhibit D.

11.1. The Settling Parties agree that Security will provide Waterkeeper with design drawings signed by its PE and copies of necessary permits to implement the construction of the Capture BMP within ten (10) days following completion of design drawings as shown on Exhibit D, and within ten (10) days of the issuance of all construction permits necessary to build the Capture BMP as shown on Exhibit D. Waterkeeper through its licensed California PE will then have ten (10) days as shown on Exhibit D to review and comment on the completed design drawings' conformity with the design standards set forth in Attachment I, and on any permits, as necessary. The Settling Parties agree to meet and confer within fifteen (15) days of Waterkeeper's submission of any comments to Security as needed as shown on Exhibit D. Within thirty (30) days of completion of construction of the Capture BMP as shown on Exhibit D, Security will provide Waterkeeper with a certification signed by Security's PE certifying that the Capture BMP was built in conformity with the design drawings and permits. Waterkeeper shall be allowed a site inspection in compliance with Section IV below within thirty (30) days of receipt of the certification of completion of the project as shown on Exhibit D.
11.2. Upon Waterkeeper's receipt of the certification by Security's PE that the Capture BMP was built in conformity with the design drawings and permits, and provided the BMPs listed in Exhibit A have been fully implemented, Security shall be considered to be in compliance with the provisions set forth in paragraphs 15.1, 17, 18, and 19 of this Consent Decree provided, however: should a discharge occur during a QSE from a discharge point, other than the overflow of the Capture BMP, such discharges will be sampled up to four (4) times during each reporting year as set forth in the Permit for the analytes identified in Table 1 in conformity with paragraphs 15.3 through 15.8 herein; and 2) any discharges from the Capture BMP (excluding storm water used on site for dust suppression without discharge from the Security Facility) shall be sampled and analyzed in conformity with the Storm Water Permit, the analytes identified in Table 1, and paragraphs 15.3 through 15.8 below.
11.3. Should the Capture BMP fail to fully capture any 85th Percentile Storm Event during the term of this Consent Decree, the Settling Parties agree to follow the procedures for dispute resolution detailed in Section VI to determine what further actions should be taken at the Security Facility to ensure compliance with the Storm Water Permit and the terms of this Consent Decree.

         12. If Security determines that it is infeasible to implement the Capture BMP described above pursuant to the force majeure provisions set forth in paragraph 44 below, Security and Waterkeeper shall meet and confer to discuss the feasibility of an alternative BMP or BMPs including but not limited to those listed in Exhibit B, within thirty (30) days of the determination of infeasibility. Should the Settling Parties be unable to agree on an alternative to the Capture BMP, either party may initiate the dispute resolution procedures described herein.

         A. Storm Water Pollution Control Best Management Practices.

         13. In addition to maintaining the current structural and non-structural BMPs described in the Security Facility's SWPPP, Security shall develop and implement BMPs necessary to comply with the provisions of this Consent Decree and the Storm Water Permit that achieve the BAT and the BCT, including those described in Exhibit A, and to comply with the Storm Water Permit's Discharge Prohibitions and Receiving Water Limitations.

         B. Discharge Locations and Storm Water Sampling.

         14. Discharge Locations.

         The current and future storm water sample locations for the Security Facility are identified in Exhibit E, the Facility site map. Should the future storm water sample locations change from what is presently depicted on Exhibit E, Security will provide Waterkeeper with an updated Exhibit within thirty (30) days of such change.

         15. Sampling.

         The following storm water monitoring procedures shall be implemented at the Security Facility:

15.1. Frequency. During the life of this Consent Decree, Security shall collect samples from all discharge locations at the Security Facility from a minimum of four (4) “qualifying storm events” that occur in a reporting year such that Security collects two (2) samples during the first half of the reporting year and two (2) samples during the second half of the reporting year. A “qualifying storm event” or “QSE” is a storm event that produces a discharge from at least one drainage area and is preceded by forty-eight (48) hours with no discharge from any drainage area. If, prior to March 1, Security has collected samples from two (2) or fewer qualifying storm events, Security shall, to the extent feasible, collect samples during as many QSE's as necessary until a minimum of 4 storm events have been sampled for the reporting year. No. two (2) samples may be from the same storm event.
15.2. Contained or Stored Storm Water. To the extent storm water is stored or contained, Security shall sample the stored or contained water at the Security Facility before it is discharged from the Security Facility even if not during operating hours.
15.3. Parameters. Security shall analyze each storm water sample collected from a Sample Location for the contaminants set forth in the Table 1 Numeric Limits.
15.4. Laboratory. A laboratory accredited by the State of California shall analyze all samples collected pursuant to this Consent Decree.
15.5. Detection Limits. The laboratory shall use analytical methods adequate to detect the individual contaminants at or below Table 1 Numeric Limits.
15.6. Hold Time. All samples collected from the Security Facility shall be delivered to the laboratory as necessary to ensure that sample “hold time” is not exceeded for each contaminant sampled. For field measurements, such as pH, Security shall use portable instruments, and not pH paper, which shall be calibrated and used according to manufacturers' instructions and approved industry methodology, i.e., 40 C.F.R., Part 136.
15.7. Results. Security shall request that sample analysis results be reported to them within ten (10) days of laboratory receipt of the sample, or as soon as possible without incurring “rush” charges.
15.8. Reporting. Security shall provide Waterkeeper with the complete laboratory results, including a copy of the Quality Assurance/Quality Control and the laboratory report for all samples described and taken in accordance with the samples identified in paragraphs 14.1 and 14.2 collected at the ...

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