San Francisco Baykeeper v. Premier Recycle Company

Filing 32

ORDER re 31 Entry of Consent Decree and Dismissal filed by San Francisco Baykeeper. Signed by Magistrate Judge Howard R. Lloyd on 1/3/2014. Court retains jurisdiction for the sole purpose of enforcing compliance with the consent decree. The clerk shall close the file.(hrllc1, COURT STAFF) (Filed on 1/6/2014) Modified on 1/6/2014 (hrllc1, COURT STAFF).

*E-Filed: January 6, 2013* 1 2 3 4 5 6 7 Sejal Choksi-Chugh (Bar No. 222093) Andrea Kopecky (Bar No. 276366) SAN FRANCISCO BAYKEEPER 785 Market Street, Suite 850 San Francisco, California 94103 Telephone: (415) 856-0444 Facsimile: (415) 856-0443 Email: sejal@baykeeper.org Email: andrea@baykeeper.org Attorneys for Plaintiff SAN FRANCISCO BAYKEEPER 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 SAN FRANCISCO BAYKEEPER, Plaintiff, v. 15 16 17 18 PREMIER RECYCLE COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. C 13-01695 HRL [PROPOSED] ORDER OF ENTRY OF CONSENT DECREE, AND DISMISSAL 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Proposed Order Entering Consent Decree and Dismissal Civ No. 13-01695 HRL 1 [PROPOSED] ORDER OF ENTRY OF CONSENT DECREE, AND DISMISSAL 2 WHEREAS, the Parties in the above captioned action have reached a settlement whose 3 4 5 6 7 specific terms are set forth in the [Proposed] Consent Decree, attached hereto as Exhibit A. WHEREAS, as required by federal law, a copy of the [Proposed] Consent Decree was mailed on November 8, 2013, to the U.S. Department of Justice (“DOJ”) and to the U.S. Environmental Protection Agency for a mandatory 45-day review period under Section 135.5 of Title 40 of the Code of Federal Regulations. The 45-day review period commenced on 8 9 10 11 12 13 14 November 13, 2013, and terminated on December 30, 2013. WHEREAS, DOJ approved the [Proposed] Consent Decree and submitted its approval letter to the Court on December 30, 2013. See Exhibit B. IT IS HEREBY ORDERED that the [Proposed] Consent Decree is fully incorporated herein by reference, and is entered as an Order of the Court. IT IS FURTHER ORDERED that the Court shall retain jurisdiction over Case No. CV- 15 13-01695-HRL for the sole purpose of enforcing compliance by the Plaintiff and Defendant 16 with the terms of the [Proposed] Consent Decree. 17 18 19 IT IS FURTHER ORDERED that the above captioned action against Defendant is dismissed with prejudice. IT IS SO ORDERED. 20 21 1/3/14 Date: ____________________ NORTHERN DISTRICT OF CALIFORNIA 22 23 ________________________________ Honorable Howard R. Lloyd United States Magistrate Judge United States District Court Northern District of California 24 25 26 27 28 29 30 31 32 Proposed Order Entering Consent Decree and Dismissal Civ No. 13-01695 HRL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 EXHIBIT A EXHIBIT 1 EXHIBIT 2 Premier Recycle Company Sweeping Log Date: ____________ Personnel (initials): ____________ Front of Shop (Area surrounding DI #1,2,8,9) Description Outdoor accessible paved areas of the Facility and any areas on public streets where Premier Recycle may have operated are swept at least once per day during days of operation, using the Tennant 6600 Sweeper. Done ☐ Front of Metal Storage Area Done ☐ Front of Unloading/Sorting area Done ☐ Front of Break Room Area/Temp Storage Area Done ☐ Area Surrounding Scale House Done ☐ Leo Ave North of Driveway Entrance Done ☐ Area Exhibit 3 Target Levels for Sampling Parameter Target Level Target Reference pH 6.5 – 8.5 SU RWQCB Basin Plan Total Suspended Solids 100 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Chemical Oxygen Demand (COD) 120 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Aluminum 0.75 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Copper* 0.0156 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Iron 1.0 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Lead* 0.095 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark Zinc* 0.13 mg/L Multi-Sector General Permit 2008 Sector-specific benchmark *Sector-specific benchmarks for these parameters are contained in the 2008 Multi-Sector General Permit, but are hardness dependent. Hardness calculations are appropriate for discharges to freshwater (see http://water.epa.gov/scitech/swguidance/standards/current/index.cfm#appendxb; http://www.waterboards.ca.gov/sanfranciscobay/water_issues/programs/planningtmdls/basinplan/web/bp _ch3.shtml). Benchmark values based on an assumed hardness of 100-125 mg/L in freshwater receiving waters. EXHIBIT 4 Release And Waiver Of Liability I understand that I am being permitted to enter the premises located at 260 Leo Avenue, San Jose, California (the “site”) for a property inspection and agree to the following: My entry onto the above-mentioned property is entirely voluntary and I agree to indemnify, defend, hold harmless and release Premier Recycle Company, its shareholders, officers, directors, employees, agents, attorneys, trustees, beneficiaries, and any other representative(s) affiliated with the property and operations at the site (collectively “Premier”) from any and all lawsuits, damages, claims, judgments, losses, liability, or expenses arising out of or resulting from any damage or loss to myself, including any tools and equipment I am bringing onto the site, Premier, or others, which may be caused in whole or in part as a result of my entry onto the site, whether or not caused by the alleged negligence, whether active or passive, or any acts or omissions of Premier, or by any of the Premier’s licensees, invitees, or permittees also on the site or any other third party not under Premier’s control to the extent permitted by California law. I REPRESENT AND ACKNOWLEDGE THAT I HAVE READ THIS ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY AND FULLY UNDERSTAND EACH AND EVERY PROVISION. Dated: ________________ Name (Printed):__________________ EXHIBIT B Case5:13-cv-01695-HRL Document30 Filed12/30/13 Page1 of 5 U.S. Department of Justice Environment and Natural Resources Division 90-1-24-03658 Law and Policy Section P.O. Box 7415 Ben Franklin Station Washington, DC 20044-7415 Telephone (202) 514-1442 Facsimile (202) 514-4231 December 30, 2013 Clerk’s Office U.S. District Court Northern District of California, San Jose Robert F. Peckham Federal Building 280 South 1st Street San Jose, CA 95113 Re: San Francisco Baykeeper v. Premier Recycle Company, United States District Court for the Northern District of California, Case No. 5:13-cv-1695 Dear Clerk of Court: I am writing to notify you that the United States has reviewed the proposed consent judgment in this action and does not object to its entry by this Court. On November 13, 2013, the Citizen Suit Coordinator for the Department of Justice received a copy of the proposed consent judgment in the above-referenced case for review pursuant to Clean Water Act, 33 U.S.C. § 1365(c)(3). This provision provides, in relevant part: No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. See also 40 C.F.R. § 135.5 (service on Citizen Suit Coordinator in the U.S. Department of Justice). A settlement that does not undergo this federal review process is at risk of being void. In its review, the United States seeks to ensure that the proposed consent judgment complies with the requirements of the relevant statute and is consistent with its purposes. See Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525-26 (1986) (a consent decree should conform with and further the objectives of the law upon which the complaint was based). For example, if the defendant has been out of compliance with statutory or permit requirements, the proposed consent judgment should require the defendant to come into prompt compliance and should include a civil penalty, enforceable remedies, injunctive relief, and/or a supplemental environmental project (SEP) payment sufficient to deter future violations, or combinations of the above. Case5:13-cv-01695-HRL Document30 Filed12/30/13 Page2 of 5 In this case, the Plaintiff alleged violations of section 301 of the Clean Water Act, 33 U.S.C. § 1311, for the unlawful discharge of pollutants and violations of storm water permit requirements. In terms of injunctive relief, the consent decree provides that the Defendant amend its current Storm Water Pollution Prevention Plan to incorporate storm water pollution prevention measures and develop and implement specified Best Management Practices. The consent decree provides for, inter alia, pavement washing, employee training, structural control maintenance, and specified storm water sampling and reporting. In the event of certain exceedances, the Defendant will develop and implement an Action Plan, which is subject to Plaintiff’s review and comment. The Defendant’s facility will also be subject to one site inspection per year by Plaintiff during the life of the consent decree. This consent decree also provides that the Rose Foundation will receive a total payment of $8,000 for SEPs to benefit the San Francisco watershed. The consent decree further provides that, in the event of certain exceedances or future missed deadlines by the Defendant, the Defendant shall pay additional stipulated amounts to Rose Foundation. Here, “the San Francisco watershed” describes a very large area that may not ensure that the selected project will be within the immediate geographic area of the alleged violation. The United States encourages the parties to select projects that are in the immediate geographic area of the alleged violations when possible. Similarly, to better enable the United States and courts to evaluate the appropriateness of a proposed consent judgment, parties are generally encouraged to specify a particular project or type of project that SEP funds will be used for, particularly where, as here, a significant monetary contribution is involved. The project should have a sufficient nexus to the alleged violation. See, e.g., EPA Final Supplemental Environmental Projects Policy at 7 n. 5 (April 10, 1998). Where the parties are unable to identify a particular project or type of project at the time they lodge a proposed consent judgment, the United States requests to be informed when a project is ultimately selected as to the nature of such a project. Where a consent judgment provides for the possible payment of sums to a third party that is to undertake a SEP, the United States ordinarily requests that the third party provide a letter to the Court and to the United States representing that it is a 501(c)(3) tax-exempt entity and that it (1) has read the proposed consent judgment; (2) will spend any monies it receives under the proposed judgment for the purposes specified in the judgment; (3) will not use any money received under the proposed consent judgment for political lobbying activities; and (4) will submit to the Court, the United States, and the parties a letter describing how the SEP funds were spent. On November 13, 2013, the United States received from the Rose Foundation a letter confirming that all funds received by the organization as a result of the consent judgment would be used solely for the purpose outlined in the decree and that The Rose Foundation agrees not to use any of the funds it receives to conduct a SEP to fund political lobbying activities; a copy of that letter is attached. The United States believes that this letter will help to ensure that any monies expended under the consent judgment will be used in a manner that furthers the purposes of the Act, and that is consistent with the law and the public interest. Given these representations, the United States has no objection to the entry of the proposed consent judgment. We accordingly notify the Court of that fact. The United States affirms for the record that it is not bound by this settlement. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 268 n.23 (1982) (Attorney General is not bound by cases to -2- Case5:13-cv-01695-HRL Document30 Filed12/30/13 Page3 of 5 which he was not a party); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484 U.S. 49, 60 (1987) (explaining that citizen suits are intended to “supplement rather than supplant governmental action”); Sierra Club v. Electronic Controls Design, 909 F.2d 1350, 1356 n.8 (9th Cir. 1990) (explaining that the United States is not bound by citizen suit settlements, and may “bring its own enforcement action at any time”); 131 Cong. Rec. S15,633 (June 13, 1985) (statement of Senator Chafee, on Clean Water Act section 505(c)(3), confirming that the United States is not bound by settlements when it is not a party). The United States also notes that, if the parties subsequently propose to modify any final consent judgment entered in this case, the parties should so notify the United States, and provide a copy of the proposed modifications, forty-five days before the Court enters any such modifications. See 33 U.S.C. §1365(c)(3). We appreciate the attention of the Court. Please contact the undersigned at (202) 5143473 if you have any questions. Sincerely, /s/ Ragu-Jara Gregg Ragu-Jara Gregg, Attorney U.S. Department of Justice Environment and Natural Resources Division Law and Policy Section P.O. Box 7415 Washington, D.C. 20044-4390 cc: Counsel on Record via ECF Attachment -3- Case5:13-cv-01695-HRL Document30 Filed12/30/13 Page4 of 5 11/12/13 Sarah Lu Environment & Natural Resources Division Law and Policy Section P.O. Box 7415 Ben Franklin Station Washington, D.C. 20044-7415 Re: San Francisco Baykeeper v. Premier Recycle Company (13-01695-HRL) Dear Ms. Lu, This letter is intended to provide assurance that I have received the proposed Consent Decree between San Francisco Baykeeper and Premier Recycle Company, and that I am authorized by my Board of Directors to make the following binding commitments on behalf of the Rose Foundation. 1) I understand that the Rose Foundation should receive funds from Premier Recycle Company as specified in the Consent Decree. These funds may include stipulated payments as well as a mitigation payment. 2) The Rose Foundation shall only use these Premier Recycle Company funds to support projects that will benefit the San Francisco Bay watershed. 3) After the funds have been disbursed, the Rose Foundation shall send a report to the Justice Department, the Court and the Parties describing how the funds were utilized and demonstrating conformance with the nexus of the Consent Decree. Rose Foundation for Communities and the Environment The Rose Foundation is a 501(c)(3) public charity (tax ID#94-3179772). Its mission is to support grassroots initiatives to inspire community action to protect the environment, consumers and public health. To fulfill this mission, the Rose Foundation conducts the following activities: • Raise money to award as grants to qualified non-profit organizations conducting charitable operations. The Foundation does not fund political lobbying activities prohibited by Section 501(c)(3) of the IRS Code. • Work directly in schools and in the community to encourage environmental stewardship and civic participation. • Help government efforts to control pollution and protect the environment by encouraging community engagement in local, state and federal research and policy development. Case5:13-cv-01695-HRL Document30 Filed12/30/13 Page5 of 5 Within this broad range of activities, all of the Rose Foundation's work revolves around one or more of the following strategic themes: • Build and maintain a bridge between the community and organized philanthropy. • Protect the natural environment, public health, and community and consumer rights. • Promote collaboration between labor, environmental, business, consumer and social interests. • Cultivate a new generation of environmental stewards and social policy leaders. • Respect the inalienable rights protected by our nation's constitution, and the essential human rights to clean air, clean water, and individual dignity and privacy. The Rose Foundation is governed by a Board of Directors. Grant applicants are required to submit written proposals, which must include at a minimum specific information about the goals, activities and projected outcomes of the proposed project, background about the charitable applicant, budget information, and a specific funding request. The Foundation may require additional information in order to fully evaluate the application. Applications are first screened by Foundation staff. Staff then makes recommendations to the Foundation Board for action. The Foundation requires all projects to submit written reports within one year of receipt of the grant award describing work conducted under the grant, thereby providing an accountability mechanism over funds awarded. Annual audits by the certified public accounting firm Levy and Powers are posted on the Foundation’s website www.rosefdn.org. I hope this provides you with the information you require. Please do not hesitate to contact me with any questions, or for additional information at (510) 658-0702 or tlittle@rosefdn.org. Sincerely, Tim Little, Executive Director