Wishtoyo Foundation v. Los Angeles Coastkeeper et al

Filing 283

CONSENT DECREE AND ORDER by Judge Stephen V. Wilson: Upon Joint Motion 282 , the Consent Decree is entered into by and between Plaintiffs Wishtoyo Foundation and its Ventura Coastkeeper program, Los Angeles Waterkeeper, Friends of the Santa Clara Ri ver, and Defendants Magic Mountain, LLC and Six Flags Theme Parks, Inc. Defendants agree, inter alia, to comply with the provisions of this Consent Decree and to comply with the requirements of the Individual Permit with respect to stormwater dischar ges, including pollution control and treatment technology and Best Management Practices. Defendants shall make a payment of $7,500 to Los Angeles Waterkeeper and a payment of $7,500 to Wishtoyo Foundation within 30 days of the Effective Dat e to cover Plaintiffs' costs associated with Plaintiffs' Compliance Monitoring during the duration of this Consent Decree. Defendants shall make a payment of $300,000.00 within 20 days of the Effective Date to the Rose Foundation for C ommunities and the Environment for a project designed to analyze, reduce, prevent, or otherwise mitigate the effects of polluted stormwater and/or non-stormwater discharges into the Santa Clara River. Defendants shall partially reimburse Plaintiffs f or their investigation fees and costs, consultant fees and costs, reasonable attorneys' fees, and other costs incurred as a result of investigating and filing the lawsuit, and negotiating a resolution of this matter in an amount totaling $1,285,000.00. This Consent Decree constitutes a full and final settlement of this matter. See document for further details.( MD JS-6. Case Terminated ) (gk)

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Additional Counsel for Plaintiffs
Jason Weiner (Bar No. 259264)
General Counsel for Wishtoyo Foundation
and its Ventura Coastkeeper Program
E-mail: [e-mail]
3875-A Telegraph Rd. #423
Ventura, California 93003
Telephone: [phone]
Facsimile: (805) 258- 5135
Tatiana Gaur (Bar No. 246227)
Senior Attorney for Los Angeles Waterkeeper
E-mail: [e-mail]
120 Broadway, Suite 105
Santa Monica, CA 90401
Telephone: [phone]
Facsimile: [phone]

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Counsel for Defendants
Steven L. Hoch, Esq.
Sudhir L. Burgaard
Ryan McKim
Hubert Lee
Morris Polich & Purdy, LLP
1055 West Seventh Street
Twenty Fourth Floor
Los Angeles, CA 90017

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[Proposed] Consent Decree

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CONSENT DECREE
The following Consent Decree is entered into by and between Plaintiffs Wishtoyo
Foundation and its Ventura Coastkeeper program, Los Angeles Waterkeeper, Friends of
the Santa Clara River, and Defendants Magic Mountain, LLC and Six Flags Theme
Parks, Inc. The entities entering into this Consent Decree are each an individual “Settling
Party” and collectively “Settling Parties.”
WHEREAS, the Wishtoyo Foundation is a 501(c)(3) non-profit public benefit
grassroots corporation organized under the laws of the State of California. The Wishtoyo
Foundation’s mission is to preserve, protect and restore Chumash culture, the culture and
history of coastal communities, cultural resources, and the environment;
WHEREAS, Ventura Coastkeeper is a program of the Wishtoyo Foundation.
Ventura Coastkeeper’s mission is to protect, preserve, and restore the ecological integrity
and water quality of Ventura County’s inland water bodies, coastal waters and
watersheds;
WHEREAS, Los Angeles Waterkeeper (“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;

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[Proposed] Consent Decree

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WHEREAS, Friends of the Santa Clara River (“FSCR”) is a 501(c)(3) non-profit,
public interest organization formed in 1993 dedicated to the protection, enhancement and
management of the resources of the Santa Clara River;
WHEREAS, the Wishtoyo Foundation, Ventura Coastkeeper, Waterkeeper, and
FSCR are collectively referred to herein as “Plaintiffs”;
WHEREAS, the approximately 260-acre Magic Mountain amusement park
facility is located at 26101 Magic Mountain Parkway in Valencia, California (hereinafter
“Facility”);
WHEREAS, the Magic Mountain Facility is owned and/or operated by Magic
Mountain, LLC, which is a direct subsidiary of Six Flags Theme Parks, Inc. (hereinafter
together “Defendants”);
WHEREAS, as part of its operations, the Facility discharges wastewater and
stormwater into the Santa Clara River;
WHEREAS, the Facility’s discharges are authorized and governed by National
Pollutant Discharge Elimination System (“NPDES”) Permit No. CA0003352, Order No.
R4-2011-0029 (“Individual 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(a)-(d),
(e), (i)-(k), and (o), 33 U.S.C. §§ 1311(a), 1342(a)-(d), (e), (i)-(k), and (o);
WHEREAS, Defendants’ Individual Permit includes any renewals, reissuances or
issuances of that permit that occur during the life of the Consent Decree;

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[Proposed] Consent Decree

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WHEREAS, on April 20, 2012, Plaintiffs served Defendants with a 60-day notice
of intent to sue letter (“Notice Letter”), with copies to the United States Environmental
Protection Agency (“EPA”), EPA Region IX, the State Water Resources Control Board
(“State Board”), and the Regional Water Quality Control Board (“Regional Board”),
stating their intent to file suit for violations of the Clean Water Act. The Notice Letter
alleged violations of the Clean Water Act for Defendants’ discharges of pollutants into
the Santa Clara River in violation of their Individual Permit and California’s General
Permit for Discharges of Storm Water Associated with Industrial Activities, NPDES
General Permit No. CAS000001, State Water Resources Board Water Quality Order No.
92-12-DWQ, as amended by Order No. 97-03-DWQ (“Stormwater Permit”);
WHEREAS, on June 27, 2012, Plaintiffs filed a complaint under section 505(a)(1)
of the Clean Water Act, 33 U.S.C. § 1365(a)(1), against Defendants and other entities
since dismissed in the United States District Court, Central District of California (Case
No. 2:12-cv-05600-SVW-MAN) entitled Wishtoyo Foundation, et al. v. Magic Mountain,
LLC, et al., (“Complaint”);
WHEREAS, Defendants deny they have violated or are violating the Clean Water
Act, and deny all allegations in the Complaint;
WHEREAS, the Settling Parties agree that it is in the Parties’ mutual interests to
enter into a Consent Decree setting forth terms and conditions appropriate to resolving
the allegations set forth in the Complaint without further proceedings;

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[Proposed] Consent Decree

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WHEREAS, it is the express purpose of the Parties entering into this Consent
Decree to protect and enhance the water quality of the Santa Clara River, further the
objectives set forth in the Clean Water Act and to resolve those issues alleged by the
Plaintiffs in their Complaint;
NOW, THEREFORE, without the trial of any issue of fact or law, upon consent
of the Settling Parties, and upon consideration of the mutual promises contained herein,
IT IS HEREBY ORDERED, ADJUDGED 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 Central District of California pursuant to Section

505(c)(1) of the CWA, 33 U.S.C. §1365(c)(1), because the Facility where the alleged
violations took place is located within this District;
3.

The Complaint states a claim upon which relief may be granted against

Defendants pursuant to Section 505 of the CWA, 33 U.S.C. § 1365;
4.

Plaintiffs have standing to bring this action;

5.

Until this Consent Decree is terminated pursuant to paragraphs 40–43,

below, this Court shall retain jurisdiction over this matter for the purposes enabling the
Settling Parties to apply to the Court for any further order that may be necessary to
construe, carry out, enforce compliance and/or resolve any dispute regarding the terms or
conditions of this Consent Decree and any future modifications agreed to in writing by
[Proposed] Consent Decree

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the Settling Parties, including, but not limited to, termination of this Consent Decree,
and/or for granting any further relief as applicable law may require and for as long as it is
necessary for the Court to resolve any motion to enforce this Consent Decree.
I.

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OBJECTIVES
6.

It is the express purpose of the Settling Parties 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 Plaintiffs in their Complaint. In light of these objectives and as set forth fully
below, Defendants agree, inter alia, to comply with the provisions of this Consent Decree
and to comply with the requirements of the Individual Permit with respect to stormwater
discharges, including pollution control and treatment technology and Best Management
Practices (“BMPs”), which must be designed, implemented, operated, and managed to
prevent non-permitted discharges and to reduce contamination in stormwater discharged
from the Facility sufficient to comply with all terms and conditions of the Facility’s
Individual Permit, including numeric effluent limitations (presently contained in Section
IV of the Individual Permit), and all terms and conditions of any future renewals,
reissuances or issuances of the Individual Permit during the life of this Consent Decree.
II.

COMMITMENTS OF THE PARTIES
A.

Compliance with Facility’s Individual Permit for Stormwater
Discharges

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[Proposed] Consent Decree

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7.

Defendants shall comply with the Individual Permit, including numeric

effluent limitations (presently contained in Section IV of the Individual Permit) for all
stormwater discharges from the Facility’s Discharge Points 001, 002 and 003.
8.

In order to demonstrate compliance with the Consent Decree, Defendants

must show four consecutive Stormwater Samples, as that term is defined below in
paragraphs 17-21, that do not exceed any numeric effluent limitations in the Individual
Permit (presently contained in Section IV of the Individual Permit). If Defendants show
four consecutive Stormwater Samples without exceedances of the numeric effluent
limitations described above, and if Defendants have met all other obligations of the
Consent Decree, the Defendants shall move the Court to terminate the Consent Decree as
set forth in paragraphs 40–44 of this Consent Decree.
9.

If, by December 31, 2017, as a result solely of lack of sufficient rainfall and

resultant stormwater runoff to sample, Defendants have not shown four consecutive
Stormwater Samples, as that term is defined below in paragraphs 17-21, without any
exceedances of the Individual Permit’s numeric effluent limitations (presently contained
in Section IV of the Individual Permit), the Settling Parties shall confer by January 31,
2018, regarding the status of the Consent Decree, including, but not limited to, the
possibility of extending the time to show compliance by an additional year. If the
Parties’ conferral does not result in an agreement in writing to amend this Consent
Decree in order to take a different course of action to achieve compliance, Defendants
shall, within 30 days of the conferral, initiate the process of designing and installing an
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on-site infiltration basin/gallery that would be operated to retain, manage and infiltrate
stormwater runoff from the entire facility, generated from a 85th percentile 24-hour
rainfall event (1.06 inches of rain in a 24-hour period), as further described in paragraphs
11-14 herein.
10.

If, by December 31, 2017, Defendants have collected at least four

Stormwater Samples, as that term is defined below in paragraphs 17-21, and Defendants
have not shown four consecutive samples without any exceedances of the Individual
Permit’s numeric effluent limitations, the Parties shall confer by January 31, 2018,
regarding the status of the Consent Decree. If the Parties’ conferral does not result in an
agreement in writing to amend this Consent Decree in order to take a different course of
action to achieve compliance, Defendants shall, within 30 days of the conferral, initiate
the process of designing and installing an on-site infiltration basin/gallery that would be
operated to retain, manage and infiltrate stormwater runoff from the entire facility,
generated from a 85th percentile 24-hour rainfall event (1.06 inches of rain in a 24-hour
period), as further described in paragraphs 11-14 herein.
11.

Within 180 days of the requirement to install an on-site infiltration

basin/gallery being triggered by this Consent Decree as described in paragraphs 9 and 10
above, Defendants shall submit a proposal for the on-site infiltration basin/gallery
(“Infiltration Plan”) to the appropriate California Regional Water Quality Control Board
and any other local, state or federal regulatory agency necessary for approval for the
infiltration basin/gallery project.
[Proposed] Consent Decree

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12.

Defendants shall work with Plaintiffs, Plaintiffs’ experts, and Plaintiffs’

counsel, as described in paragraphs 13 and 14 of this Consent Decree, to ensure the best
chance for approval by regulatory authorities for the Infiltration Plan.
13.

At least 90 days prior to submitting a proposal to any state regulatory agency

from which approval will be required for the on-site infiltration basin/gallery, Defendants
shall provide Plaintiffs an Infiltration Plan for the design, installation, operation, and
maintenance of the infiltration basin/gallery, that includes procedures for ensuring that
the infiltration basin is designed for and maintains sufficient capacity for retaining and
infiltrating the volume of stormwater runoff from the entire Facility generated from a
85th percentile 24-hour rainfall event. The Infiltration Plan shall also ensure that
accumulated sediment in the infiltration basin containing metals and other contaminants
is disposed of and tracked in accordance with all local, state, and federal regulations if
necessary.
14.

Plaintiffs shall provide comments on Defendants’ Infiltration Plan no later

than 45 days after receipt of the Infiltration Plan. Defendants shall consider Plaintiffs’
and Plaintiffs’ experts’ comments in good faith and incorporate them into the Infiltration
Plan as Defendants deem appropriate and to ensure adequacy of the Infiltration Plan.
Defendants also shall facilitate, at Plaintiffs’ request and after Defendants have received
Plaintiffs’ comments on the Infiltration Plan but before it is submitted to regulatory
authorities for approval, a conferral between Defendants’ consultants responsible for the
Infiltration Plan and Plaintiffs’ experts to discuss ways to ensure approval of the
[Proposed] Consent Decree

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Infiltration Plan. Finally, Defendants shall notify Plaintiffs no later than 48 hours in
advance of any non-public meetings between Defendants and regulatory authorities
responsible for Infiltration Plan approval, and Defendants agree that up to a total of three
Plaintiffs’ representatives (including an attorney) or consultants may be present for and
participate in any such meetings.
15.

Nothing in this Consent Decree prevents Defendants from installing, prior to

December 31, 2017, an on-site infiltration basin/gallery that would be operated to retain,
manage and infiltrate stormwater runoff from the entire Facility, generated from the 85th
percentile 24-hour rainfall event (1.06 inches of rain in a 24-hour period), so long as
Defendants do so in accordance with paragraphs 12–14 above.
16.

In the event that, despite the Settling Parties’ best efforts, the infiltration

basin/gallery is not approved by the necessary regulatory agencies, Defendants will,
within 30 days of disapproval of the Infiltration Plan meet and confer with Plaintiffs
regarding stormwater operational and structural controls, and pollutant recovery and
treatment options that Defendants have not yet tried, which Defendants shall employ at
the Facility during the remaining life of this Consent Decree.
B.

Stormwater Sampling and Monitoring at the Facility

17.

Defendants shall collect stormwater samples from all of the Facility’s

Discharge Points during Qualifying Storm Events (“QSE”) (hereinafter “Stormwater
Samples”). For the purpose of this Consent Decree, QSEs are defined as a precipitation
event: (1) that produces a discharge from at least one of the Facility’s discharge points
[Proposed] Consent Decree

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(001, 002, or 003 as those points are defined in the Individual Permit); (2) that is
preceded by 48 hours with no discharge from any of the Facility’s discharge points; and
(3) during which at least 0.25 inches of rain has fallen in a 24-hour period, as determined
by the Facility’s on-site rain gauge, located at 34°25'38.8"N 118°35'55.8"W. If, for any
reason, Defendants’ on-site rain gauge malfunctions or is off-line for repair or
replacement, the Settling Parties agree that hourly rainfall data from 1012Z Castaic
Junction (ALERT ID# 385) rain gauge, operated by the Los Angeles County Department
of Public Works, shall be used to determine if a QSE has occurred. Defendants will
notify Plaintiffs within 24 hours of when they become aware that the Facility’s on-site
rain gauge is not functioning properly or off-line, or if Defendants decide to change the
current location, type and/or model of rain gauge.

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18.

Defendants agree to provide Plaintiffs, via email, with photo documentation

of the QSE stormwater discharges along with data documenting the flow rate of the
discharge. As of the Effective Date, the Facility has three Discharge Points identified in
its Individual Permit (001, 002, 003). If Defendants make engineering changes that cease
all discharges from any of the Discharge Points, Defendants shall notify Plaintiffs of
those changes and, within 10 days of implementing the changes, provide Plaintiffs with
design and engineering plans demonstrating such Discharge Points will no longer be
used.
19.

Defendants shall take any Stormwater Sample within the first four hours of a

QSE, or within the first hour of the Facility’s operating hours if the QSE began during the
[Proposed] Consent Decree

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last 12 hours prior to the start of the Facility’s operating hours. The Facility’s operating
hours are defined to mean 7:00 a.m. to 7:00 p.m. Monday through Sunday. Defendants
agree to provide Plaintiffs with rainfall data from their on-site rain gauge on a weekly
basis (via email) during any rainy seasons (defined for the purpose of this Consent
Decree as October 1 through May 31) for which this Consent Decree is in effect.
20.

Defendants shall collect Stormwater Samples using all appropriate Quality

Assurance and Quality Control (“QA/QC”) procedures, and send the samples to a statecertified laboratory for analysis. For all Discharge Points, Defendants shall analyze
Stormwater Samples for all constituents with numeric effluent limitations in the
Individual Permit (presently contained in Section IV of the Individual Permit) as well as
for total zinc, iron and aluminum. Defendants shall provide the results of the samples’
analysis to Plaintiffs (via email) within five days of receiving the results. Plaintiffs shall
provide confirmation to Defendants upon receipt of the sample results.
21.

Defendants shall begin taking Stormwater Samples during the first QSE

after the Effective Date.
22.

Defendants shall conduct annually during the life of the Consent Decree

Whole Effluent Toxicity (“WET”) sampling and analysis on one Stormwater Sample
collected during a QSE. Defendants shall take the Stormwater Sample taken for purposes
of WET analysis pursuant to the sample collection procedures set forth in paragraphs 17–
20 above. Defendants shall provide the results of the WET analysis to Plaintiffs (via

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[Proposed] Consent Decree

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email) within five days of receiving the results. Plaintiffs shall provide confirmation to
Defendants of receiving the sample results.

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C.
23.

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Trash Best Management Practices
Defendants shall develop and implement a Facility Trash Management Plan

that includes, in addition to all Trash Best Management Practices (“Trash BMPs”)
currently employed at the Facility, at a minimum, the following:

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a.

foot chain link fence with gates that will be kept closed except when trash compacting
area in active use. The entire chain link fence shall be covered with 90% windscreen.
Defendants shall implement BMPs the goal of which is to prevent trash from the sorting
and compacting operation from discharging into storm drains or being windblown into
channels leading to the Santa Clara River;

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b.

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In addition to routinely and regularly emptying trash containers during

the day, Defendants shall empty all trash containers just prior to closing the Facility on
days that the Facility is open to paying guests, so that all trash containers are empty over
night;

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Defendants shall enclose their trash sorting and compactor with a 10-

c.

Defendants shall continue to employ an individual who is charged

with walking the fence line and picking up trash each day the Facility is open to paying
guests;
d.

Defendants shall continue to provide basic training to all its

employees regarding its trash pickup policy and other Trash BMPs;
[Proposed] Consent Decree

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e.

Defendants shall continue to maintain rewards programs for

employees who promote cleanliness at the Facility by picking up trash and employing
Trash BMPs;
f.

Defendants shall continue to employ an individual who is charged

with cleaning the storm drains and storm channels four days a week;
g.

Defendants shall continue to use a PM 10-efficient sweeper to sweep

the entire Facility, including parking lot areas, each day paying guests are present at the
Facility and prior to any expected storms;
h.

Defendants shall continue to maintain nets at discharge points 001 and

003 to capture trash particles before they are washed into the storm drain system, and
should preventative Trash BMPs prove to be ineffective, then Defendants will consider
installing and maintaining inserts in all Facility stormwater drains designed to pick up
trash particles, to determine their practicality and efficiency, and, at a minimum,
Defendants will install and maintain inserts in agreed upon Facility stormwater drains to
be determined by the Settling Parties after the first Annual site visit;
i.

Within 30 days of the Effective Date, Defendants shall provide

Plaintiffs with their written Trash Management Plan documenting all of their current
Trash BMPs as well as all of the requirements related to trash in this Consent Decree.
Defendants shall incorporate the Trash Management Plan in the next update of the
Facility’s Storm Water Pollution Prevention Plan to the extent that it is not already
incorporated, in whole or in part, in said Storm Water Pollution Prevention Plan.
[Proposed] Consent Decree

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j.

If trash emanating from the Facility is observed and photo/video

documented by Defendants or Plaintiffs (during an Annual Site Inspection or during a
rain event) in stormwater discharge from the Facility’s Discharge Points (001, 002, or
003 as those points are defined in the Individual Permit), Defendants shall confer in good
faith, within 30 days following notice to the other party of the observation, with Plaintiffs
to determine the need to either install and maintain additional trash recovery devices
and/or effective end-of-pipe net traps designed to prevent the discharge of trash from the
Facility in stormwater or create/modify BMPs to prevent such incidents from occurring.
Should no resolution be forthcoming from this process, the matter will be subject to
Dispute Resolution.
D.

Plaintiffs’ Compliance Monitoring

24.

Defendants shall make a payment of $7,500 to Los Angeles Waterkeeper

and a payment of $7,500 to Wishtoyo Foundation within 30 days of the Effective Date to
cover Plaintiffs’ costs associated with Plaintiffs’ Compliance Monitoring during the
duration of this Consent Decree. The payments shall be mailed via certified mail or
overnight delivery to the attention of contacts for Los Angeles Waterkeeper and
Wishtoyo Foundation, as set forth below in paragraph 60.
25.

Annual Site Inspections. Every year during the life of this Consent Decree

up to a total of three Plaintiffs’ representatives (including an attorney) or consultants may
conduct one Wet Season (October 1 through May 31) site inspection and one Dry Season
site inspection (June 1 through September 30) at the Facility.
[Proposed] Consent Decree

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26.

Site inspections shall occur between 7:00 am and 7:00 pm on any day of the

week and Plaintiffs shall provide Defendants with as much notice as possible, but at least
24 hours notice prior to a Wet Season site inspection, and seven days notice prior to a
Dry Season site inspection. Plaintiffs shall provide notice by telephone and electronic
mail.
27.

During the site inspection, Defendants shall allow Plaintiffs and/or their

representatives access to the Facility’s Stormwater Pollution Prevention Plan (“SWPPP”),
Monitoring and Reporting Plan (“M&RP”), stormwater monitoring records, and to all
stormwater monitoring reports and data for the Facility. Plaintiffs also shall be allowed
to visit all of the Facility’s Discharge Points, so long as Defendants believe it is safe to do
so, as well as the locations of any BMPs implemented at the Facility. Defendants’
determination of safe or unsafe conditions must be reasonable and made in good faith. If
Defendants determine it is not safe to visit the Facility’s Discharge Points, Defendants
will arrange for Plaintiffs’ representatives to observe the Discharge Points from the safest
vantage point available. During the Wet Season site inspection, Plaintiffs and/or their
representatives may obtain from Defendants’ representative split samples of stormwater
discharges from the Facility’s Discharge Points, and Plaintiffs’ representative(s) may
observe the split sample(s) being collected by Defendants’ representative. Any split
samples collected during site inspections will be collected at Plaintiffs’ request and
direction.

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[Proposed] Consent Decree

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28.

If Plaintiffs’ representative notices a QA/QC issue with the sample-taking

procedure at the time it is being taken, and if the representative immediately notifies
Defendants, then Defendants will immediately take an additional sample at Plaintiffs’
request, correcting for the issue raised by Plaintiffs’ representative. Once the sample is
collected, Defendants will transfer custody of the sample, with an appropriate chain of
custody form, to Plaintiffs’ representative, who will then be responsible for delivering the
sample to a certified laboratory. Plaintiffs shall provide Defendants copies of their split
sample results as well as all laboratory back up and chain of custody documentation
within 10 days of receiving the sample results.
29.

Plaintiffs may take photographs or video recordings during any site

inspection pursuant to this Consent Decree. However, Plaintiffs shall not intentionally
video or audio record any comment(s) by any employee of Defendants without the
express permission of Defendants. If Plaintiffs take photographs and/or video recordings,
Plaintiffs shall provide Defendants with all the unedited photographs and/or video
recordings within 14 days of the taking and recording of any such photographs and/or
videos.
30.

All individuals who will participate in any site inspections shall execute a

waiver and release prior to the site inspection in the form attached as Exhibit A hereto.
All individuals participating in any site inspections shall sign a sign-in sheet upon arrival
at the Facility.

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[Proposed] Consent Decree

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31.

Split samples obtained by Plaintiffs and/or their representatives during Site

Inspections shall be considered Stormwater Samples for the Facility under and for the
purpose of determining compliance with this Consent Decree, so long as the samples are
taken pursuant to paragraphs 17–20 above. Only Defendants’ sample results may be used
for determining compliance with the Individual Permit. If a dispute arises as to the
Plaintiffs’ or Defendants’ split sample results, such dispute shall be resolved pursuant to
the Dispute Resolution provisions, paragraphs 47–50, in this Consent Decree.
32.

Data Reporting. During the life of this Consent Decree, Defendants shall

provide Plaintiffs with a copy of all Consent Decree and Individual Permit compliance
and monitoring data, including inspection reports, on a quarterly basis, beginning 90 days
after the Effective Date.
33.

Document Provision. During the life of this Consent Decree, Defendants

shall copy Plaintiffs on all documents and communications solely in relation to
stormwater runoff at the Facility that are submitted to the Regional Board, the State
Board, and/or any State agency, local agency, county, or municipality. Such documents
and communications shall be provided to Plaintiffs concurrently as they are sent to the
agencies and/or municipalities. Any correspondence related to water quality received by
Defendants from any regulatory agency, State or local agency, county, or municipality
shall be provided to Plaintiffs within 14 days of receipt by Defendants. Notwithstanding
paragraph 60 below, Defendants are not required to copy or provide documentation
referenced in this paragraph to Plaintiffs’ outside counsel (Earthrise Law Center).
[Proposed] Consent Decree

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E.

Environmental Project, Reimbursement of Litigation Fees and Costs,
and Stipulated Penalties

34.

Environmental Project. Defendants shall make a payment of $300,000.00

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within 20 days of the Effective Date to the Rose Foundation for Communities and the
Environment for a project designed to analyze, reduce, prevent, or otherwise mitigate the
effects of polluted stormwater and/or non-stormwater discharges into the Santa Clara
River. The payment shall be mailed via certified mail or overnight delivery to the
attention of Tim Little, Executive Director, Rose Foundation, at 1970 Broadway, Suite
600, Oakland, California 94612-2218. Defendants shall provide Plaintiffs, via electronic
mail, with proof of the payment at the time it is made.
35.

Plaintiffs will provide Defendants, via electronic mail, documentation of the

projects for which the Rose Foundation is using the payment and, to the extent feasible,
the amounts allocated to each project within 20 days of Plaintiffs receiving such
documentation from the Rose Foundation.
36.

Reimbursement of Plaintiffs’ Fees and Costs. Defendants shall partially

reimburse Plaintiffs for their investigation fees and costs, consultant fees and costs,
reasonable attorneys’ fees, and other costs incurred as a result of investigating and filing
the lawsuit, and negotiating a resolution of this matter in an amount totaling
$1,285,000.00. All such payments shall be made within 20 days of the Effective Date and
shall be made payable to Earthrise Law Center, addressed to Allison LaPlante, Earthrise

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[Proposed] Consent Decree

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Law Center at Lewis and Clark Law School, 10015 SW Terwilliger Blvd., Portland,
Oregon 97219, and sent via certified mail or overnight delivery.
37.

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a.

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Plaintiffs agree to waive any Clean Water Act claims they may have

involving the Facility’s discharges that may have arisen prior to the Effective Date of the
Consent Decree, as well as any Clean Water Act claims they may have involving the
Facility’s stormwater discharges that may arise during the life of this Consent Decree
except as set forth herein.

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Waiver and Stipulated Penalties.

b.

Defendants shall make a remediation payment of $3,000 (“Stipulated

Penalty”) for each exceedance of any numeric effluent limitation in the Facility’s
Individual Permit (presently contained in Section IV of the Individual Permit), except
that this Stipulated Penalty provision shall not apply during the first year of this Consent
Decree.
c.

Any Stipulated Penalties paid shall be used for a project designed to

analyze, reduce, prevent, or otherwise mitigate the effects of polluted stormwater and/or
non-stormwater discharges into the Santa Clara River and shall be made to the Rose
Foundation for Communities and the Environment, and mailed via certified mail or
overnight delivery to Tim Little, Executive Director, Rose Foundation at 1970 Broadway,
Suite 600, Oakland, California 94612-2218.
d.

Defendants shall pay the Stipulated Penalties within 20 days of

receiving the analysis of a Stormwater Sample that shows a violation of the Facility’s
[Proposed] Consent Decree

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Individual Permit numeric effluent limitations. Defendants shall provide Plaintiffs, via
electronic mail, with proof of each payment at the time it is made.

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38.

Interest Payments. In the event of late payment of any of the sums due

under this Consent Decree, Defendants shall pay interest to Plaintiffs, if the sum is owed
pursuant to paragraphs 24 or 36, or to the Rose Foundation for Communities and the
Environment, if the sum is owed pursuant to paragraphs 34 or 37, and interest shall
accrue daily from the first day past the date the sum was due until the date Defendants
tender payment. The interest rate, as specified in 28 U.S.C. 1961, shall apply. All such
interest payments to the Plaintiffs shall be made payable to Earthrise Law Center,
addressed to Allison LaPlante, Earthrise Law Center at Lewis and Clark Law School,
10015 SW Terwilliger Blvd., Portland, Oregon 97219, and sent via certified mail or
overnight delivery.
III.

EFFECTIVE DATE AND TERMINATION DATE
39.

The term “Effective Date,” as used in this Consent Decree, shall mean the

date the Court enters the final Consent Decree.
40.

This Consent Decree shall terminate five years from the Effective Date

provided that Defendants have demonstrated compliance with the requirements of this
Consent Decree and unless there is an ongoing, unresolved dispute regarding Defendants’
compliance with the Consent Decree’s provisions.
41.

The Consent Decree may terminate early in the event that the following

conditions are satisfied:
[Proposed] Consent Decree

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a.

Facility Trash Management Plan as detailed in paragraph 23 of this Consent Decree;

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b.

exceed the numeric effluent limitations in the Individual Permit (presently contained in
Section IV of the Individual Permit);
c.

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All payments required under paragraphs 24, 34, 36, 37, and 38 of this

Consent Decree are made; and

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Four consecutive Stormwater Samples from all Discharge Points at

the Facility, as detailed and defined in paragraphs 17–21 of this Consent Decree, do not

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Defendants have implemented all of the measures described in the

d.

There are no outstanding disputes regarding the provisions of this

Consent Decree, including, but not limited to, disputes related to the payment of
fees/costs, Environmental Project and compliance monitoring payments, implementation
of the Facility Trash Management Plan, and compliance with all terms and conditions of
the Individual Permit.
42.

The Consent Decree also may terminate early if Defendants install an

infiltration basin/gallery capable of retaining, managing and infiltrating stormwater
runoff from the entire facility, generated from a 85th percentile 24-hour rainfall event
(1.06 inches of rainfall in a 24-hour period), such infiltration basin/gallery has received
all necessary regulatory approvals, it meets the Consent Decree Infiltration Plan
requirements in paragraphs 11–14, it is fully operational, and the requirements in
paragraph 41, sub-paragraphs a, c, and d have been met.

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[Proposed] Consent Decree

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43.

shall file a motion for termination with the Court. Defendants shall provide Plaintiffs and
their counsel with written notice at least 30 days prior to filing any motion for
termination of the Consent Decree.

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To terminate early as provided by paragraphs 41 and 42 above, Defendants

44.

Plaintiffs may conduct an inspection of the Facility during the 30 days

following any motion for termination of the Consent Decree, or during the 30 days prior
to termination under paragraph 40. Defendants will work with Plaintiffs to schedule and
accommodate the inspection, if requested, within the 30-day period. The inspection shall
be conducted according to the rules applicable to dry weather Annual Site Inspections in
paragraphs 25–31 of this Consent Decree.
IV.

Entry of Consent Decree
45.

Within three days of the final signatures of the Parties, Plaintiffs shall lodge

the executed Consent Decree with the Court and submit it to the U.S. Department of
Justice and U.S. Environmental Protection Agency for review consistent with 40 C.F.R. §
135.5. The federal government review period expires 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 shall be provided to Defendants. In the event
that the federal government objects to entry of this Consent Decree, the Parties shall meet
and confer to attempt to resolve the issue(s) raised by the Federal Agencies.
46.

Within five days of receiving notice from the federal government of its

intent not to object or intervene or when the 45-day review period expires, whichever
[Proposed] Consent Decree

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occurs first, the Settling Parties shall submit a joint motion to the Court seeking entry of
the Consent Decree.
V.

DISPUTE RESOLUTION
47.

This Court shall retain jurisdiction over this matter for the purposes of

adjudicating all disputes among the Parties that may arise under the provisions of this
Consent Decree, including, but not limited to, interpretation of, compliance with, and
modification of Consent Decree terms. The Court shall have the power to enforce this
Consent Decree, notwithstanding paragraph 37 above, with all available legal and
equitable remedies, including contempt.
48.

Meet and Confer. A party to this Consent Decree shall invoke the dispute

resolution procedures of this Section by notifying all other Parties in writing of the
matter(s) in dispute and of the party’s proposal to resolve the dispute under this Section.
The Parties shall then meet and confer in an attempt to resolve the dispute no later than
14 days from the date of the notice. The Parties have 14 days from the date on which they
meet and confer to resolve the dispute.
49.

If the Parties cannot resolve a dispute by the end of the meet and confer

period, the party initiating the dispute resolution provision may invoke formal dispute
resolution by filing a motion before the United States District Court for the Central
District of California. The Parties shall jointly apply to the Court for an expedited hearing
schedule on the motion.

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[Proposed] Consent Decree

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50.

Litigation costs and fees incurred due to motions practice before this Court

to enforce the Consent Decree or address an alleged breach of this Consent Decree as
described in paragraph 49 herein, may be awarded at the Court’s discretion to any of the
Settling Parties in accordance with the standard established by the Clean Water Act, 33
U.S.C. §§ 1365 and 1319, and case law interpreting that standard.
VI.

MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE
51.

In consideration of the above, upon the Effective Date of this Consent

Decree, the Parties hereby fully release, except for claims for the Defendants’ failure to
comply with this Consent Decree and as expressly provided below, each other and their
respective successors, assigns, officers, agents, employees, boards of directors, and all
persons, firms and corporations having an interest in them, from any and all alleged
Clean Water Act violations claimed in the Complaint, up to and including the Effective
Date of this Consent Decree.
52.

Nothing in this Consent Decree limits or otherwise affects the Plaintiffs’

right to address or take any position that they deem necessary or appropriate in any
formal or informal proceeding before the Regional Board, State Board, EPA, or any other
judicial or administrative body on any other matter relating to the Facility.
53.

Neither the Consent Decree nor any payment pursuant to the Consent Decree

shall constitute or be construed as a finding, adjudication, or acknowledgement of any
fact, law or liability, nor shall it be construed as an admission of violation of any law,

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[Proposed] Consent Decree

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rule, or regulation. Defendants maintain and reserve all defenses they may have to any
alleged violations that may be raised in the future.
54.

this paragraph, when timely implementation of the requirements set forth in this Consent
Decree becomes impossible, despite the timely good-faith efforts of Defendants, due to
circumstances beyond the reasonable control of Defendants or their agents, and which
could not have been reasonably foreseen and prevented by the exercise of due diligence
by Defendants. In no circumstances shall a claim of inability to pay be considered Force
Majeure.

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Force Majeure. Defendants shall notify Plaintiffs pursuant to the terms of

a.

If Defendants claims impossibility, they shall notify Plaintiffs in

writing within 21 days of the date that Defendants first knew of the event or circumstance
that caused or would cause a violation of this Consent Decree. The notice shall describe
the reason for the nonperformance and specifically refer to this Section. It shall describe
the anticipated length of time the delay may persist, the cause or causes of the delay, the
measures taken or to be taken by Defendants to prevent or minimize the delay, the
schedule by which the measures will be implemented, and the anticipated date of
compliance. Defendants shall adopt all reasonable measures to avoid and minimize such
delays.
b.

The Parties shall meet and confer in good-faith concerning the non-

performance and, where the Parties concur that performance was or is impossible, despite
the timely good faith efforts of Defendants, due to circumstances beyond the control of
[Proposed] Consent Decree

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Defendants that could not have been reasonably foreseen and prevented by the exercise
of due diligence by Defendants, the Parties will establish new deadlines consistent with
the intent of this Consent Decree.

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c.

If Plaintiffs disagree with Defendants’ notice, or in the event that the

Parties cannot timely agree on the terms of new performance deadlines or requirements,
either party shall have the right to invoke the Dispute Resolution Procedure pursuant to
Section V above. In such proceeding, Defendants shall bear the burden of proving that
any delay in performance of any requirement of this Consent Decree was caused or will
be caused by force majeure and the extent of any delay attributable to such
circumstances.
VII. MISCELLANEOUS PROVISIONS
55.

Facility Changes. Any changes in the Facility’s layout, stormwater

management, outfalls, maintenance areas, bone yards, or any other structures reference in
this Consent Decree shall not relieve Defendants of their obligations in this Consent
Decree, unless explicitly agreed to in writing by Plaintiffs.
56.

Construction. The language in all parts of this Consent Decree shall be

construed according to its plain and ordinary meaning, except as to those terms defined in
the Individual Permit, the Clean Water Act, or specifically herein.
57.

Mutual Drafting and Construction. It is hereby expressly understood and

agreed that the Settling Parties jointly drafted this Consent Decree. Accordingly, the
Parties hereby agree that any and all rules of construction to the effect that ambiguity is
[Proposed] Consent Decree

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construed against the drafting party shall be inapplicable in any dispute concerning the
terms, meaning, or interpretation of this Consent Decree.
58.

Choice of Law. The laws of the United States shall govern this Consent

Decree.
59.

Severability. In the event that any provision, paragraph, section, or sentence

of this Consent Decree is held by a court to be unenforceable, the validity of the
enforceable provisions shall not be adversely affected.
60.

Correspondence. All notices required herein or any other correspondence

pertaining to this Consent Decree shall be in writing via first class mail and electronic
mail, as follows:
If to Plaintiffs:
Jason Weiner
General Counsel
Wishtoyo Foundation / Ventura Coastkeeper
3875-A Telegraph Road #423
Ventura, CA 93003
E-mail: [e-mail]
Tatiana Gaur
Senior Attorney
Los Angeles Waterkeeper
120 Broadway, Suite 105
Santa Monica, CA 90401
E-mail: [e-mail]
Kevin Cassidy
Earthrise Law Center
P.O. Box 445
Norwell, MA 02061
Email: [e-mail]
[Proposed] Consent Decree

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Allison LaPlante
Earthrise Law Center
Lewis & Clark Law School
10015 SW Terwilliger Blvd.
Portland, OR 97219
Email: [e-mail]
If to Defendants:
Amanda Goedike
Six Flags Magic Mountain & Hurricane Harbor
Safety and Risk Manager
26101 Magic Mountain Pkwy.
Valencia, CA 91350
[e-mail]
Danielle Bernthall
Assistant General Counsel
Six Flags Entertainment Corporation
230 Park Avenue, 16th Floor
New York, NY 10169
230 Park Avenue, 16th Floor
New York, NY 10169
Steven L. Hoch, Esq.
Morris Polich & Purdy, LLP
1055 West Seventh Street
Twenty Fourth Floor
Los Angeles, CA 90017
Email: [e-mail]

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Notifications of communications shall be deemed submitted three days after the date that
they are postmarked and sent by first-class mail, or immediately after acknowledgement
of receipt via email by the receiving party. Any change of address or addresses shall be
communicated in the manner described above for giving notices.
[Proposed] Consent Decree

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61.

Effect of Consent Decree. Plaintiffs do not, by their agreement to this

Consent Decree, warrant or aver in any manner that Defendants’ compliance with this
Consent Decree will constitute or result in compliance with any federal or state law or
regulation. Nothing in this Consent Decree shall be construed to affect or limit in any
way the obligation of Defendants to comply with all federal, state, and local laws and
regulations governing any activity referenced in this Consent Decree.
62.

Counterparts. This Consent Decree may be executed in any number of

counterparts, all of which together shall constitute one original document. Telecopy,
electronic copies, PDF’d signatures sent via email, and/or facsimile copies of original
signatures shall be deemed to be originally executed counterparts of this Consent Decree.
63.

Modification of the Consent Decree. Upon its entry by the Court, this

Consent Decree shall have the force and effect of a final judgment. This Consent Decree,
and any provisions herein, may not be changed, waived, or discharged, unless by a
written instrument, signed by all Settling Parties. Approval by the Court of any changes
is required only if a modification materially changes the terms of this Consent Decree or
materially affects Defendants’ ability to meet the requirements or objectives of this
Consent Decree.
64.

Full Settlement. This Consent Decree constitutes a full and final settlement

of this matter.
65.

Integration Clause. This is an integrated Consent Decree. This Consent

Decree, along with any attachments incorporated into the Consent Decree by reference, is
[Proposed] Consent Decree

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intended to be a full and complete statement of the terms of the agreement between the
Settling Parties and expressly supersedes any and all prior oral or written agreements
covenants, representations, and warranties (express or implied) concerning the subject
matter of this Consent Decree.
66.

Authority. The undersigned representatives for the Settling Parties each

certify that he/she is fully authorized by the party whom he/she represents to enter into
the terms and conditions of this Consent Decree.
67.

The provisions of this Consent Decree apply to and bind the Settling Parties,

including any successors or assigns. The obligations created in this Consent Decree are
enforceable by this Court at the request of either Party. The Parties certify that their
undersigned representatives are fully authorized to enter into this Consent Decree, to
execute it on behalf of the Parties, and to legally bind the Parties to its terms.
68.

The Parties shall be bound by this Consent Decree and will not contest its

validity in any subsequent proceeding to implement or enforce its terms. By entering into
this Consent Decree, Defendants do not admit liability for any purpose as to any
allegation or matter arising out of this Action.
IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as of
the latest date of the signatures below.

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[Proposed] Consent Decree

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Exhibit A
WAIVER OF CLAIMS, EXPRESS
ASSUMPTION OF RISKS
This waiver of claims and express assumption of risks (WAIVER) shall apply inclusive of the
beginning and ending dates listed below.
From: _________________________ To: ______________________________
1. The undersigned, being of lawful age hereby acknowledged, do/does hereby and for my
heirs, executors, administrators, successors and assigns release, acquit and forever discharge
Magic Mountain LLC, dba, SIX FLAGS MAGIC MOUNTAIN (SFMM), and Six Flags
Theme Park Inc. (SFTP), and their respective officers, agents, servants, successors, heirs,
executors, administrators and all other related persons, firms, corporations, associations or
partnerships, of and from any and all claims, actions, causes of action, demands, rights,
damages, costs, loss of service, expenses and compensation whatsoever, which the
undersigned now has/have or which may hereafter accrue on account of or in any way
growing out of any and all known and unknown, foreseen and unforeseen bodily and
personal injuries and/or property damage and the consequences thereof resulting or to result
from any accident, casualty or event which may occur while visiting, working at, or
inspecting the facility located at 26101 Magic Mountain Parkway in Valencia, California
(FACILITY) for the purpose of a visit, work or inspection or any other related purpose
whatsoever as required/sought and/or agreed to and set forth in the Consent Decree filed with
the United States District Court for the Central District of California in the case of Wishtoyo
Foundation v. Magic Mountain LLC, Civil Case No.:CV12-05600-SVW-MAN.

2. I understand that there are potential risks and dangers associated with my entry onto and
presence at the FACILITY and I agree to enter onto and be present at the FACLITY and
freely accept and assume all associated risks and hazards in conjunction with my
presence there.
3. Said WAIVER shall apply to any and all claims, actions, causes of action, demands, rights,
damages, costs, loss of service, expenses and compensation described in paragraph 1
(“CLAIMS”) arising out of or related in any manner to the activities of SFMM and and/or
SFTP and their employees, agents or contractors without limitation, except for any CLAIMS
resulting from the intentional or grossly negligent actions or omissions of SFMM and and/or
SFTP and their employees, agents or contractors.

In signing this WAIVER, I acknowledge and represent that I have read and understand it and that
I sign it voluntarily and for full and adequate consideration, fully intending to be bound by the
same. I expressly agree that the WAIVER is intended to be as broad and inclusive as permitted
by the laws of California, by which it shall be governed and interpreted. I agree that in the event
that any clause or provision in this WAIVER shall be held to be invalid by any court of
competent jurisdiction, the invalidity of such clause or provision shall not otherwise affect the
remaining provisions of this WAIVER, which shall continue to be enforceable.
Date__________

Print Name_____________________
Sign Name______________________

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[PROPOSED]
xxxxxxxxxxxxxxxxx

ORDER

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This Court having found that the foregoing Consent Decree was entered into in

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good faith and that the terms of the foregoing Consent Decree are fair, reasonable and

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just, the provisions of the foregoing Consent Decree are hereby approved and compliance

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with all provisions thereof is HEREBY ORDERED.

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This Court shall retain jurisdiction over this matter during the pendency of the term

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of this Consent Decree.

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IT IS SO ORDERED.

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March
Date: _______________

_______________________________
Honorable Stephen V. Wilson
UNITED STATES DISTRICT COURT JUDGE
CENTRAL DISTRICT OF CALIFORNIA