Los Angeles Waterkeeper v. Bestway Recycling Company Inc et al

Filing 9

CONSENT DECREE is entered into by and between Plaintiff Los Angeles Waterkeeper and Defendants Bestway Recycling Company, Inc., Western Recycling, Inc., Bestway Recycling of Pomona, Inc., and Los Angeles Recycling Center, Inc. by Judge Dean D. Pregerson. (SEE DOCUMENT FOR SPECIFICS) (lc)

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LAWYERS FOR CLEAN WATER, INC.
Drevet Hunt (Bar No. 240487)
Email: [e-mail]
Luthien Niland
Email: [e-mail]
1004-A O’Reilly Avenue
San Francisco, California 94129
Telephone: [phone]
Facsimile: [phone]
LOS ANGELES WATERKEEPER
Tatiana Gaur (Bar No. 247226)
Email: [e-mail]
120 Broadway, Suite 105
Santa Monica, CA 90401
Telephone: [phone], ext. 102
Facsimile: [phone]
Attorneys for Plaintiff
LOS ANGELES WATERKEEPER

CLOSED

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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Civil Case Nos. CV13-08791 DDP
(PLAx); CV13-08793 DDP (PLAx);
CV13-08796 DDP (PLAx); CV13-08797
DDP (PLAx); CV13-08798 DDP (PLAx)

LOS ANGELES WATERKEEPER, a
California non-profit corporation,

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Plaintiff,
vs.

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CONSENT DECREE
BESTWAY RECYCLING COMPANY,
INC., a California Corporation;

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(Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 et seq.)

Defendant.

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{00051804.DOCX-5 }

[Proposed] Consent Decree

CONSENT DECREE

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The following Consent Decree is entered into by and between Plaintiff Los

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Angeles Waterkeeper (“Plaintiff” or “Waterkeeper”), and Defendants Bestway Recycling

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Company, Inc., Western Recycling, Inc., Bestway Recycling of Pomona, Inc., and Los

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Angeles Recycling Center, Inc., collectively referred to as “Bestway.” The entities

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entering into this Consent Decree are each an individual “Settling Party” and collectively

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“Settling Parties.”

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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

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of the rivers, creeks and coastal waters of Los Angeles County from all sources of

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pollution and degradation.

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WHEREAS, Waterkeeper has more than 3,000 members who live and/or recreate

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in and around the Los Angeles River watershed, the Dominguez Channel watershed, the

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Santa Ana River watershed and waterbodies receiving discharges from the Bestway

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Facilities, including San Antonio Creek, the Los Angeles Harbor, the Los Angeles/Long

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Beach Harbor, Santa Monica Bay, San Pedro Bay and the Pacific Ocean.

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WHEREAS, Bestway is a second-generation minority and family-owned and

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operated recycling center serving the greater Los Angeles area since 1979, diverting more

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than 3 million tons of trash from landfills in California.

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WHEREAS, Bestway serves and pays daily hundreds of individual customers
throughout Southern California.
WHEREAS, more than 90% of Bestway’s products are recycled paper, cardboard
and newspaper.

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WHEREAS, Defendant Bestway Recycling Company, Inc. operates five waste

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recycling facilities located at 1000 North Main Street, Los Angeles, California (“Los

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Angeles Recycling Facility”), 2268 Firestone Blvd, Los Angeles, California (“Firestone
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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Facility”), 13528 South Western Avenue, Gardena, California (“Western Recycling

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Facility”), 6001 Jefferson Blvd, Los Angeles, California (“Jefferson Recycling Facility”),

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and 1032 Industrial Street, Pomona, California (“Pomona Recycling Facility”).

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WHEREAS, Defendants Bestway Recycling Company, Inc. and Western

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Recycling, Inc. operate the Western Recycling Facility as the Western Recycling Center.
WHEREAS, Defendants Bestway Recycling Company, Inc. and Bestway

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Recycling of Pomona, Inc. operate the Pomona Recycling Facility as Bestway Recycling

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of Pomona.

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WHEREAS, Defendants Bestway Recycling Company, Inc. and Los Angeles

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Recycling Center, Inc. operate the Los Angeles Recycling Facility as the Los Angeles

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Recycling Center.

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WHEREAS, Defendant Bestway Recycling Company, Inc. operates the Jefferson
Recycling Facility as West LA Deposit Site and Recycling.
WHEREAS, the Settling Parties refer to the Firestone Facility, the Los Angeles

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Recycling Facility, the Jefferson Recycling Facility, the Western Recycling Facility and

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the Pomona Recycling Facility collectively as the “Bestway Facilities.”

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WHEREAS, discharges from the Bestway Facilities are regulated by the National

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Pollution Discharge Elimination System (“NPDES”) General Permit No. CAS000001

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[State Board Water Resources Control Board] Water Quality Order No. 92-12-DWQ, as

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amended by Order No. 97-03-DWQ (“Storm Water Permit”) and the Federal Water

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Pollution Control Act, 33 U.S.C. §§ 1251, et seq. (“Clean Water Act” or “CWA”),

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Sections 301(a) and 402, 33 U.S.C. §§ 1311 (a), 1342;

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WHEREAS, on September 6, 2013, Waterkeeper served Defendants, the United

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States Environmental Protection Agency (“EPA”), EPA Region IX, the State Water

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Resources Control Board (“State Board”) and the Los Angeles Regional Water Quality

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Control Board (“Regional Board”), with a notice of intent to file suit (“Firestone Notice

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Letter”) under sections 505(a) and (b) of the CWA, 33 U.S.C. §§ 1365(a) and (b). The

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Firestone Notice Letter alleged violations of Section 301(a) of the Clean Water Act, 33
Consent Decree

3

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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U.S.C. § 1311(a), and violations of the Storm Water Permit at the Firestone Facility;
WHEREAS, on September 6, 2013, Waterkeeper served Defendants, EPA, EPA

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Region IX, the State Board, and the Regional Board with a notice of intent to file suit

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(“Jefferson Notice Letter”) under sections 505(a) and (b) of the CWA, 33 U.S.C. §§

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1365(a) and (b). The Jefferson Notice Letter alleged violations of Section 301(a) of the

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Clean Water Act, 33 U.S.C. § 1311 (a), and violations of the Storm Water Permit at the

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Jefferson Recycling Facility;

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WHEREAS, on September 6, 2013, Waterkeeper served Defendants, EPA, EPA
Region IX, the State Board, and the Regional Board with a notice of intent to file suit

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(“Pomona Notice Letter”) under sections 505(a) and (b) of the CWA, 33 U.S.C. §§

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1365(a) and (b). The Pomona Notice Letter alleged violations of Section 301(a) of the

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Clean Water Act, 33 U.S.C. § 1311 (a), and violations of the Storm Water Permit at the

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Pomona Recycling Facility;

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WHEREAS, on September 25, 2013, Waterkeeper served Defendants, EPA, EPA

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Region IX, the State Board, and the Regional Board with a notice of intent to file suit

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(“LA Recycling Notice Letter”) under sections 505(a) and (b) of the CWA, 33 U.S.C. §§

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1365(a) and (b). The LA Recycling Notice Letter alleged violations of Section 301(a) of

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the Clean Water Act, 33 U.S.C. § 1311 (a), and violations of the Storm Water Permit at

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the Los Angeles Recycling Facility;

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WHEREAS, on September 25, 2013, Waterkeeper served Defendants, EPA, EPA

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Region IX, the State Board, and the Regional Board with a notice of intent to file suit

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(“Western Notice Letter”) under sections 505(a) and (b) of the CWA, 33 U.S.C. §§

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1365(a) and (b). The Western Notice Letter alleged violations of Section 301(a) of the

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Clean Water Act, 33 U.S.C. § 1311 (a), and violations of the Storm Water Permit at the

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Western Recycling Facility;

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WHEREAS, on November 27, 2013, Waterkeeper filed in the United States

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District Court, Central District of California a complaint against Defendants Bestway

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Recycling Company, Inc. for violations at the Firestone Facility (Case No. CV13-8791
Consent Decree

4

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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DDP (PLAx) (“Firestone Complaint”);
WHEREAS, on November 27, 2013, Waterkeeper filed in the United States

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District Court, Central District of California a complaint against Defendants Bestway

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Recycling Company, Inc. and Bestway Recycling of Pomona, Inc. for violations at the

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Pomona Recycling Facility (Case No. CV13-8796 ABC (FFMx)) (“Pomona

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Complaint”);

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WHEREAS, on November 27, 2013, Waterkeeper filed in the United States

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District Court, Central District of California a complaint against Defendant Bestway

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Recycling Company, Inc. for violations at the Jefferson Recycling Facility (Case No.

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CV13-8793 FMO (FFMx)) (“Jefferson Complaint”);
WHEREAS, on November 27, 2013, Waterkeeper filed in the United States District

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Court, Central District of California a complaint against Defendant Bestway Recycling

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Company, Inc. and Western Recycling, Inc. for violations at the Western Recycling

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Facility (Case No. CV13-8797 R (SHx)) (“Western Complaint”);

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WHEREAS, on November 27, 2013, Waterkeeper filed in the United States

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District Court, Central District of California a complaint against Defendants Bestway

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Recycling Company, Inc. and Los Angeles Recycling Center, Inc. for violations at the

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Los Angeles Recycling Facility (Case No. CV13-8798 RGK (CWx)) (“LA Recycling

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Complaint”);

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WHEREAS, on December 20, 2013, Case Nos. CV13-8793 FMO (FFMx), CV13-

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8796 ABC (FFMx), CV13-8797 R (SHx) and CV13-8798 RGK (CWx) were transferred

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to the calendar of Judge Dean D. Pregerson and the case numbers for each case were

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revised as follows: Case No. CV13-8793 FMO (FFMx) was revised to Case No. CV13-

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8793 DDP (PLAx); Case No. CV13-8796 ABC (FFMx) was revised to Case No. CV13-

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8796 DDP (PLAx); Case No. CV13-8797 R (SHx) was revised to Case No. CV13-8797

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DDP (PLAx); and Case No. CV13-8798 RGK (CWx) was revised to Case No. CV13-

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8798 DDP (PLAx);

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WHEREAS, Waterkeeper and Bestway intend to seek consolidation of the aboveConsent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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referenced actions prior to seeking entry of this Consent Decree;
WHEREAS, Waterkeeper alleges Defendants to be in violation of the substantive
and procedural requirements of the Storm Water Permit and the Clean Water Act;
WHEREAS, Defendants deny all allegations in the LA Recycling Notice Letter and
LA Recycling Complaint;
WHEREAS, Defendants deny all allegations in the Western Notice Letter and
Western Complaint;
WHEREAS, Defendants deny all allegations in the Pomona Notice Letter and
Pomona Complaint;
WHEREAS, Defendants deny all allegations in the Jefferson Notice Letter and
Jefferson Complaint;
WHEREAS, Defendants deny all allegations in the Firestone Notice Letter and
Firestone Complaint;

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WHEREAS, Waterkeeper and Defendants have agreed that it is in the Settling

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Parties’ mutual interest to enter into a Consent Decree setting forth terms and conditions

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appropriate to resolving the allegations set forth in the Firestone Complaint, Pomona

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Complaint, Western Complaint, LA Complaint and Jefferson Complain (collectively,

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“Complaints”) without further proceedings; and

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WHEREAS, all actions taken by Defendants pursuant to this Consent Decree

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shall be made in compliance with all applicable Federal and State laws and local rules

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and regulations.
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE

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SETTLING PARTIES AND ORDERED AND DECREED BY THE COURT AS

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FOLLOWS:

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1.

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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 Court pursuant to Section

505(c)(1) of the CWA, 33 U.S.C. §1365(c)(1), because the facilities at which the alleged
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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violations took place are located within this District;
3.

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The Complaints state claims upon which relief may be granted against

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

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Waterkeeper has standing to bring these actions;

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The Court shall retain jurisdiction over this matter for purposes of

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interpreting, modifying and/or enforcing the terms of this Consent Decree for the life of

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the Consent Decree, or as long thereafter as is necessary for the Court to resolve any

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motion to enforce this Consent Decree.

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I.

OBJECTIVES
6.

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It is the express purpose of the Parties entering into this Consent Decree to

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further the objectives set forth in the Clean Water Act, 33 U.S.C. §§ 1251, et seq., and to

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resolve those issues alleged by Waterkeeper in its Complaints. In light of these

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objectives and as set forth fully below, Defendants agree, inter alia, to comply with the

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provisions of this Consent Decree and to comply with the requirements of the Storm

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Water Permit and all applicable provisions of the CWA. Specifically, Receiving Water

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Limitation C(2) in the Storm Water Permit requires that the Bestway Facilities “not cause

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or contribute to the exceedance of an applicable water quality limit.” Effluent Limitation

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B(3) of the Storm Water Permit requires that Best Management Practices (“BMPs”) at

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Bestway Facilities be developed and implemented to achieve Best Available Technology

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(“BAT”) and Best Conventional Pollutant Control Technology (“BCT”). Bestway shall

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develop and implement BMPs necessary to comply with the Storm Water Permit

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requirement to achieve compliance with BAT/BCT standards and with the applicable

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Water Quality Standards.1 BMPs must be developed and implemented to prevent

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discharges or to reduce contamination in storm water discharged from the Bestway

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Facilities sufficient to achieve the numeric limits detailed in paragraphs 19 and 20 of this

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Water Quality Standards are the water quality criteria contained in the Water Quality Control Plan: Los
Angeles Region, Basin Plan for the Coastal Watersheds of Los Angeles and Ventura Counties (“Basin
Plan”), the California Ocean Plan, the National Toxics Rule, the California Toxics Rule, and other state
or federally approved surface water quality plans.
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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Consent Decree.

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II.

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

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last day for the United States Department of Justice and the United States Environmental

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Protection Agency (collectively “Federal Agencies”) to comment on the Consent Decree,

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i.e., the 45th day following the Federal Agencies’ receipt of the Consent Decree, or the

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date on which the Federal Agencies provide notice that they require no further review and

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the Court enters the final Consent Decree, whichever occurs earlier.

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8.

This Consent Decree shall terminate five (5) years from the Effective Date

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provided Defendants have demonstrated their compliance with the requirements of this

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paragraph and unless there is an ongoing, unresolved dispute regarding Defendants’

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compliance with the Consent Decree’s provisions. Termination may be sought as to one

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or more of the Bestway Facilities which have met the requirements of this paragraph and

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the Consent Decree. The Consent Decree may terminate early as to any particular

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Bestway Facility in the event the following conditions are satisfied for that Bestway

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Facility:

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a. Defendants have implemented all the measures identified in the Minimum
BMPs attached as Exhibit A to this Consent Decree.
b. Defendants have revised and fully implemented the Storm Water Pollution

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Prevention Plan (“SWPPP”) and Monitoring and Reporting Program

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(“M&RP”) pursuant to the requirements of this Consent Decree and the

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Storm Water Permit.

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c. There are no outstanding disputes regarding the provisions of this Consent

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Decree, including, but not limited to, disputes related to the payment of

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fees/costs, SEP and compliance monitoring fees, implementation of storm

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water and non-storm water control BMPs, and compliance with Table 1 and

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Table 2 numeric limits.

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d. All payments required under paragraphs 39, 42 and 43 of this Consent
Consent Decree

8

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

Decree are made.2

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e. Monitoring data from five consecutive storm water samples collected at the

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discharge points of the Bestway Facility seeking termination (five storm

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water samples collected for each storm water outfall) demonstrates

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compliance with Surface Water Numeric Limits, and/or

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f. In the event that infiltration basins/galleries for storm water treatment are

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installed at the Bestway Facility seeking termination, monitoring data from

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five consecutive vadose zone samples collected at that Bestway Facility

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with an infiltration basin/s demonstrate compliance with MCL limits.

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9.

Defendants shall provide Waterkeeper and its counsel with written notice at

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least fourteen (14) days prior to filing any motion for termination of the Consent Decree

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as to one or more Bestway Facilities.

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10.

Waterkeeper may conduct an inspection of any and all Bestway Facilities

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during the sixty (60) days following any motion for termination of the Consent Decree.

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Bestway will work with Waterkeeper to schedule and accommodate the inspection, if

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requested, within the 60-day period. The inspection will be conducted according to the

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rules applicable to Annual Site Inspections in paragraph 38 below.

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III.

COMMITMENTS OF THE PARTIES

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A.

Industrial Storm Water Pollution Control Measures

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11.

To ensure there are no unauthorized non-stormwater discharges, any non-

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stormwater discharges from any of the Bestway Facilities not authorized by the Storm

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Water Permit shall be considered a breach of this Consent Decree.

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12.

Defendants shall implement all BMPs at each of the Bestway Facilities in

the Minimum BMPs attached as Exhibit A.

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13.

If, despite the implementation of the Minimum BMPs outlined in Exhibit A,

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Complete payment is only required to terminate the Consent Decree with respect to the last outstanding
Bestway Facility. Otherwise, Defendants are expected to follow the payment schedule provided in
Exhibit E.
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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storm water monitoring conducted in or after the 2016 – 2017 Wet Season (“Wet Season”

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is defined as October 1 – May 31) demonstrates exceedances of Table 1 Numeric Limits

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at any of the Bestway Facilities, Defendants shall implement additional BMPs at each

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Bestway Facility where the exceedances have occurred. The additional BMPs shall

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consist of one of the three following options, (1) active storm water treatment systems

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such as StormwateRx or Storm Water Systems, (2) complete permanent cover of all

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potential pollutant sources, or (3) infiltration basins and galleries, and shall be

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implemented prior to October 1 of the subsequent Wet Season, or within 120 days of

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submission of the required Surface Water Action Plan arising from the exceedance

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described in this paragraph 13, whichever is later.
14.

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If sampling demonstrates that additional BMPs are necessary pursuant to

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paragraph 13, the additional BMPs required shall be designed and operated to manage

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through infiltration, treatment and/or diversion the storm water runoff generated by the

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85th percentile storm event occurring over 24 hours, based on historical rainfall measured

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at the Los Angeles-USC Rain Gauge, No. 438,3 multiplied by a factor of two, or 2.2

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inches in 24 hours, (“Compliance Standard”). For purposes of this Consent Decree,

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following implementation of pollution control measures described in paragraph 13,

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properly documented discharges of storm water and/or storm water pollutants from the

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Bestway Facilities in connection with rainfall events that exceed the Compliance

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Standard applicable to each Facility are not a violation of this Consent Decree and are not

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subject to the paragraph 19 requirement to meet Table 1 Surface Water Numeric Limits.

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15.

BMP Plan. For each Bestway Facility, Defendants shall develop and submit

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to Waterkeeper for review and comment a plan for the implementation and installation of

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all measures identified in Exhibit A (Minimum BMPs) and any additional BMPs

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Based on rain fall data provided in County of Los Angeles Department of Public Works Water
Resources Division/Hydrology Section “Analysis of 85th Percentile 24-hour Rainfall Depths Within the
County of Los Angeles” (February 2004), available at
http://ladpw.org/wrd/publication/engineering/Final_ReportProbability_Analysis_of_85th_Percentile_24-hr_Rainfall1.pdf.
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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identified by Defendants necessary to ensure implementation of BAT/BCT at each

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Bestway Facility. This BMP Plan shall contain a detailed site map for each Bestway

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Facility, clearly delineating the location of each storm water outfall and the type and

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location of all proposed BMPs. The BMP Plan shall further provide an implementation

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schedule for all BMPs, including frequency of implementation, maintenance and

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inspection schedule to ensure the BMPs are operated optimally. The BMPs and storm

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water pollution control measures agreed to under this Consent Decree shall be operated

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throughout the entire year. Defendants shall submit the BMP Plan for each Bestway

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Facility within forty-five (45) days of the Effective Date of this Consent Decree.

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16.

Waterkeeper will have thirty (30) days to review and comment in writing on

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the BMP Plan for each Bestway Facility. Defendants shall have twenty-one (21) days to

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accept Waterkeeper’s comments and incorporate them into the applicable BMP Plan, or

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to respond to Waterkeeper’s comments in writing, explaining why the comments were

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not accepted and incorporated. Disputes regarding the adequacy of any of the BMP

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Plan(s) shall be subject to the dispute resolution provisions in Section IV of this Consent

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Decree.

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17.

The BMP Plans shall be completely implemented at each of the Bestway

Facilities pursuant to the schedule set forth in Exhibit A.
18.

Defendants shall diligently file and pursue all required local agency

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applications for permits and/or approvals for the BMPs included in each BMP Plan.

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Defendants shall further diligently pursue the procurement of contractors, labor and

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materials to complete all such BMPs pursuant to the schedule set forth in Exhibit A, and

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shall use their best efforts to meet these deadlines. Defendants’ failure to meet these

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deadlines without an extension granted in writing by Waterkeeper will be considered a

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breach of the Consent Decree subject to the stipulated penalty provisions set forth in

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paragraph 44.

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B.

Numeric Limits

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19.

Numeric Limits for Storm Water Discharges. Contaminants in any storm

Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

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water discharges from any of the Bestway Facilities shall not exceed the limits (“Surface

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Water Numeric Limits”) in Table 1, except as applied to storm water discharges during

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the 2013-2014 and 2014-2015 Wet Seasons and except as set forth in paragraph 14.

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Table 1. Surface Water Numeric Limits

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Contaminant4

Numeric Limit5

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(All but pH expressed as mg/L)

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Total Suspended Solids

100 mg/L

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Copper

0.013 mg/L*

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Lead

0.065 mg/L*

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Zinc

0.120 mg/L*

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Oil and Grease

15 mg/L

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Aluminum

0.75 mg/L

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Arsenic

0.340 mg/L*

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Cadmium

0.0043 mg/L*

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Iron

1.00 mg/L

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Mercury

0.0024 mg/L

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Nickel

0.470 mg/L*

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Silver

0.0034 mg/L*

Chemical oxygen demand

120 mg/L

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If monitoring data collected at each discharge point of any given Bestway Facility demonstrates
compliance with Table 1 Surface Water Numeric Limits for arsenic, cadmium, mercury, nickel, silver,
chromium III, or chromium VI for three (3) consecutive storm water samples at the same discharge
point or with Table 1 Surface Water Numeric Limits for E. coli for two (2) consecutive storm water
samples collected at the same discharge point, that particular Bestway Facility need no longer sample for
those contaminants for which compliance has been demonstrated at this particular discharge point.
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Note: An * next to a Numeric Limit denotes a CTR Limit. The limits for pH and COD are from the
Basin Plan. Compliance with the Numeric Limits for metals will be based on evaluation of dissolved
concentrations only. CTR Limits are expressed as a function of total hardness in the water body based
on the equations provided in Federal Register, Vol. 65, No. 97, May 18, 2000, and being hardness
dependent will vary with the analyzed total hardness of the water body. The CTR Criterion Maximum
levels expressed herein assume a total hardness of 100 mg/L.
Consent Decree

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CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Contaminant4

Numeric Limit5

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(All but pH expressed as mg/L)

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pH

6.5-8.5

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Chromium (III)

0.550 mg/L*

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Chromium (VI)

0.016 mg/L*

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E. coli

Varies by Receiving Water6

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20.

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Numeric Limits for Infiltrated Discharges. Contaminants from Bestway

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Facilities discharges infiltrated through an infiltration gallery designed according to the

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requirements of paragraph 14 above shall not exceed the limits (“Vadose Zone Numeric

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Limits”) in Table 2. The presence of any contaminant in the Bestway Facilities’ vadose

12

zone in excess of, or outside the range of, the Vadose Zone Numeric Limits in Table 2 is

13

a breach of this Consent Decree.

14

Table 2. Vadose Zone Numeric Limits

15

Contaminant

MCL

16

Aluminum

0.05 to 0.2 mg/L

17

Arsenic

0.010 mg/L

Cadmium

0.005 mg/L

Copper

1.0 mg/L

Iron

0.3 mg/L

Lead

0.015 mg/L

Mercury

0.002 mg/L

Silver

0.10 mg/L

Zinc

5 mg/L

18
19
20
21
22
23
24
25
26
27
28

6

The E. coli water quality limitation varies by receiving water. The three facilities discharging to the
Los Angeles River Watershed (Los Angeles Recycling Facility, Firestone Facility, and Western
Recycling Facility) must comply with 235 MPN/100ml; the facility discharging to the Ballona Creek
Watershed (Jefferson Recycling Facility) must comply with 576/100ml; and the facility discharging to
the Santa Ana River Watershed (Pomona Recycling Facility) must comply with 235 MPN/100ml.
Consent Decree

13

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1
21.

2

Surface Water Action Plan for Table 1 Exceedances. Beginning with the

3

2015-2016 Wet Season, Defendants shall submit to Waterkeeper a plan for reducing

4

and/or eliminating the discharge of pollutants (“Surface Water Action Plan”) if any

5

sampling by Waterkeeper or Defendants during the October 1-May 31 period

6

demonstrates that any contaminant in any discharge from any Bestway Facility exceeds

7

the applicable limit for any contaminant found in Table 1. The Surface Water Action Plan

8

will be specific to each Bestway Facility where the exceedance has occurred. If

9

exceedances have occurred at more than one Bestway Facility, Defendants shall submit a

10

separate Surface Water Action Plan for each respective Facility. The Surface Water

11

Action Plan for each Bestway Facility must be submitted within sixty (60) days of

12

receiving the monitoring data showing exceedances of Table 1 limits at that Facility.7

13

Any subsequent sample demonstrating exceedances of Table 1 limits for the same

14

constituent at the same Bestway Facility and the same discharge location occurring

15

within sixty (60) days of the sample triggering the obligation to submit a Surface Water

16

Action Plan shall not require Defendants to prepare an additional Surface Water Action

17

Plan based solely on that exceedance. However, any such exceedance shall be addressed

18

by the Surface Water Action Plan in preparation at that time.

19

a. Surface Water Action Plan Requirements. Each Surface Water Action

20

Plan submitted shall be in writing and shall include at a minimum: (1) the identification

21

of the pollutant(s) discharged in excess of the Numeric Limit(s), (2) an assessment of the

22

source of each pollutant exceedance specific to the Bestway Facility where the

23

exceedance has occurred,8 (3) the identification of additional BMPs, which, for any

24
25
26
27
28

7

If Bestway must submit three (3) Surface Water Action Plans within any given sixty (60) day period,
Bestway will have seventy-five (75) days from receipt of the data requiring the Surface Water Action
Plans to submit the third Plan. If four (4) or five (5) Surface Water Action Plans are to be submitted
within any given sixty (60) day period, Bestway will have ninety (90) days from receipt of the data
requiring the Surface Water Action Plans to submit the fourth and/or fifth Plans.
8
If Bestway believes that copper or iron present in potable water used to operate the Cyclone Sweeper
have contributed to a copper or iron exceedance above Table 1 limits, it may provide an analysis to
Consent Decree

14

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Surface Water Action Plan submitted to address an exceedance occurring in or after the

2

2016 – 2017 Wet Season must include at least one of the following (a) treating storm

3

water prior to discharge from the respective Bestway Facility via active storm water

4

treatment systems such as StormwateRx and Storm Water Systems designed to meet

5

requirements of paragraph 14, (b) infiltration basins/galleries designed to retain meet

6

requirements of paragraph 14, or (c) complete permanent cover of all potential pollutant

7

sources, that will be implemented to achieve compliance with the Numeric Limit(s) in

8

Table 1, and (4) time schedules for implementation of the proposed BMPs at the specific

9

Bestway Facility where the exceedance or exceedances have occurred.

10

b. Surface Water Action Plan Review. Waterkeeper shall have thirty (30)

11

days upon receipt of a Surface Water Action Plan for any Bestway Facility to provide

12

Defendants with comments. If more than two (2) Surface Water Action Plans are

13

submitted concurrently, Waterkeeper will be provided with an additional fifteen (15) days

14

for review and comment on each additional Surface Water Action Plan.9 Within thirty

15

(30) days from the date Waterkeeper comments on a Surface Water Action Plan,

16

Defendants shall provide Waterkeeper with a written explanation if Defendants refuse to

17

develop and/or implement any of Waterkeeper’s recommended additional BMPs. Any

18

disputes as to the adequacy of the Surface Water Action Plan shall be resolved pursuant

19

to the dispute resolution provisions of this Consent Decree, set out in Section IV below.

20

c. Defendants shall have until October 1 following the Wet Season in which

21

the exceedances giving rise to the obligation to submit a Surface Water Action Plan

22

occurred to implement the Surface Water Action Plan. Defendants shall notify

23

Waterkeeper in writing when the Surface Water Action Plan has been implemented. In

24
25
26
27
28

Waterkeeper demonstrating evidence of contribution and the relationship with the stormwater sample
exceeding the Table 1 limit.
9
If Waterkeeper receives three (3) Surface Water Action Plans, all submitted within the same seven (7)
day period, Waterkeeper will have forty-five (45) days to review and comment on the plans, if four (4)
Surface Water Action Plans are submitted within the same seven (7) day period, Waterkeeper will have
sixty (60) days to review and comment on the plans, and if five (5) Surface Water Action Plans are
submitted within the same seven (7) day period, then Waterkeeper will have seventy-five (75) days to
review and comment on the plans.
Consent Decree

15

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

the event structural BMPs to be implemented pursuant to the Surface Water Action Plan

2

require additional time beyond the October 1 deadline or the deadline set forth in

3

paragraph 13, whichever is applicable, the parties shall meet and confer regarding an

4

alternative deadline, and seek dispute resolution if an alternative deadline cannot be

5

agreed upon.
d. Defendants shall diligently file and pursue all required local agency

6
7

applications for permits and/or approvals for the BMPs included in any Surface Water

8

Action Plan. Defendants shall further diligently pursue the procurement of contractors,

9

labor and materials to complete all such BMPs by the applicable deadline described in

10

paragraph 21.c above, and shall use their best efforts to meet these deadlines. Defendants’

11

failure to meet this deadline without an extension granted in writing by Waterkeeper will

12

be considered a breach of the Consent Decree.

13

22.

Groundwater Action Plan for Table 2 Exceedances. If Defendants construct

14

infiltration basin(s) at any of the Bestway Facilities to meet the Consent Decree

15

requirements, Defendants shall submit a written plan for reducing and/or eliminating the

16

discharge of pollutants in storm water infiltrated at the respective Facility (“Groundwater

17

Action Plan”) when vadose zone sampling during the Wet Season demonstrates that any

18

contaminant specified in Table 2 exceeds the Vadose Zone Numeric Limits at any of the

19

Bestway Facilities. The Groundwater Action Plan will be specific to each Bestway

20

Facility where the exceedance of Table 2 numeric limits has occurred. If exceedances

21

have occurred at more than one Bestway Facility, Defendants shall submit a separate

22

Groundwater Action Plan for each respective Facility.

23

a. The Groundwater Action Plan for each Bestway Facility must be submitted

24

to Waterkeeper within thirty (30) days of Defendants’ receipt of sampling

25

data showing exceedances of Table 2 Vadose Zone Numeric Limits for that

26

Facility.

27
28

b. At a minimum the Groundwater Action Plan shall include increased source
control to prevent pollutant exposure to storm water. In addition, the
Consent Decree

16

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Groundwater Action Plan may include: literature research regarding

2

background concentrations of metals in soil and groundwater; collection and

3

analysis of background soil, pore water, and groundwater samples,

4

additional monitoring of the existing lysimeters; installation and monitoring

5

of deeper lysimeters; installation and monitoring of upgradient/downgradient

6

groundwater wells; vadose zone modeling; additional pretreatment BMPs, or

7

other methods as appropriate to assess or to mitigate the potential for

8

exceedances of MCLs in groundwater; increased size infiltration basins;

9

and/or increased detention.
c. Waterkeeper shall provide comments, if any, to Defendants within sixty (60)

10
11

days of receipt of the Groundwater Action Plan. If more than two (2)

12

Groundwater Action Plans are submitted concurrently, Waterkeeper will be

13

provided with an additional fifteen (15) days for review and comment on

14

each additional Groundwater Action Plan.10 Defendants shall incorporate

15

Waterkeeper’s comments into the Groundwater Action Plan and issue a

16

report within thirty (30) days of receiving Waterkeeper’s comments. If any

17

of Waterkeeper’s comments are not utilized, Defendants shall justify in

18

writing why any comment is not being incorporated within fourteen (14)

19

days of receiving comments. Any disputes as to the adequacy of the

20

Groundwater Action Plan shall be resolved pursuant to the dispute resolution

21

provisions of this Consent Decree, set out in Section IV below.

22

d. Defendants shall have until October 1 (following the Wet Season in which

23

the exceedances giving rise to the obligation to submit a Groundwater

24

Action Plan occurred) to implement the Groundwater Action Plan.

25
26
27
28

10

If Waterkeeper receives three (3) Groundwater Action Plans, all submitted within the same seven (7)
day period, Waterkeeper will have seventy-five (75) days to review and comment on the plans, if four
(4) Groundwater Action Plans are submitted within the same seven (7) day period, Waterkeeper will
have ninety (90) days to review and comment on the plans, and if five (5) Groundwater Action Plans are
submitted within the same seven (7) day period, then Waterkeeper will have 105 days to review and
comment on the plans.
Consent Decree

17

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Defendants shall notify Waterkeeper in writing when the Groundwater

2

Action Plan has been implemented.
e. Defendants shall diligently file and pursue all required local agency

3
4

applications for permits and/or approvals for the BMPs included in any

5

Groundwater Action Plan. Defendants shall further diligently pursue the

6

procurement of contractors, labor and materials to complete all such BMPs

7

by the October 1 deadline described in paragraph 20.d above, and shall use

8

their best efforts to meet these deadlines. Defendants’ failure to meet this

9

deadline will be considered a breach of the Consent Decree.

10

C.

Sampling and Monitoring at the Facility

11

23.

Sample Analysis and Sample Frequency. The Defendants shall collect storm

12

water samples from each discharge location at the Bestway Facilities. The discharge

13

locations/stormwater outfalls for each Bestway Facility will be identified in the site map,

14

which must be included in the respective Facility’s SWPPP and M&RP. Samples will be

15

collected from at least five (5) storm events per Wet Season at each Bestway Facility.

16

The Defendants must sample the Facility’s storm water discharge(s) from the first storm

17

event in each Wet Season. The Defendants must continue to sample storm water

18

discharges from each storm event that produces a discharge until a total of five (5) storm

19

events have been sampled. For purposes of this Consent Decree, this includes any storm

20

water discharge occurring during the Facility’s operating hours,11 or, if storm water is

21

stored onsite prior to discharge, whenever storm water is released, whether during

22

operating hours or not. Defendants shall submit all monitoring and lab reports from storm

23

water discharge samples collected at any Bestway Facility within ten (10) days of receipt

24

of the monitoring and lab reports.

25

24.

Any failure to sample a discharge from each discharge location at the

26
27
28

11

The Bestway Facilities’ operating hours are set forth in Exhibit B hereto. Defendants shall update
Waterkeeper in writing within ten (10) days of any changes to the operating hours at any of the Bestway
Facilities.
Consent Decree

18

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Facility until five (5) storm events per Wet Season have been sampled shall be

2

documented and submitted to Waterkeeper within five (5) days of the date a sample could

3

have been collected but was not. Failure to collect a sample from each discharge location

4

at each Bestway Facility during a storm event will constitute a violation of this Consent

5

Decree, unless Defendants demonstrate to Waterkeeper in its submittal through

6

photographs of the discharge locations, rain fall data from an agreed upon rain gauge

7

located near the respective Facility (see Exhibit C for applicable rain gauges for each

8

Bestway Facility), and other appropriate documentation that the storm water event

9

occurred outside of the Facility’s operating hours and/or did not result in an actual storm

10

water discharge.

11

25.

Defendants shall analyze all samples collected pursuant to paragraph 23 for

12

the constituents identified in Table 1. Defendants shall use a state certified laboratory to

13

conduct all analysis pursuant to this Consent Decree. The Defendants shall select

14

laboratories and analytical limits such that, at a minimum, the method detection limits are

15

below the Surface Water Numeric Limits in Table 1.

16

26.

If Defendants install an infiltration basin/gallery at any of the Bestway

17

Facilities according to the requirements of paragraph 14 above, Defendants shall collect

18

and analyze samples from any and all storm water discharges occurring during any and

19

all storm events that occur during operating hours and that generate runoff from Bestway

20

Facilities with infiltration basins/galleries. Any discharges that occur outside the

21

Facilities’ operating hours will be monitored using a flow totalizer capable of recording

22

the volume of runoff that occurs. Defendants shall submit all monitoring and lab reports

23

from storm water discharge samples collected at any Bestway Facility within ten (10)

24

days of receipt of the monitoring and lab reports. Failure to monitor and /or sample such

25

storm water discharges will be a violation of this Consent Decree. The Defendants shall

26

analyze samples collected for the constituents identified in Table 1. Defendants shall use

27

a state certified laboratory to conduct all analysis pursuant to this Consent Decree. The

28

Defendants shall select laboratories and analytical limits such that, at a minimum, the
Consent Decree

19

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1
2

method detection limits are below the Surface Water Numeric Limits in Table 1.
27.

Defendants shall submit a written report to Waterkeeper no later than June

3

15 at the end of each Wet Season that identifies all samples collected at each Bestway

4

Facility, all analytical results from storm water or groundwater samples collected at any

5

of the Bestway Facilities, an explanation, if any, for any failure to sample a storm water

6

discharge as required by this Consent Decree or the Storm Water Permit, and an

7

explanation of any failure to collect and analyze groundwater samples as required by this

8

Consent Decree.

9

28.

Groundwater Monitoring. If Defendants install an infiltration gallery at any

10

of the Bestway Facilities, Defendants shall install a suction lysimeter vertically below

11

and within the ponding area of the infiltration gallery. Defendants shall collect samples of

12

infiltrating stormwater from the suction lysimeter ("Vadose Zone Samples"). These

13

Vadose Zone Samples shall be collected every time there is a storm event of 0.1 inch for

14

at least four (4) separate storm events each Wet Season and within twenty-four (24) hours

15

after rainfall ends. The lysimeter samples from the four (4) separate storm events shall be

16

analyzed for the metals (both total recoverable and dissolved) listed in Table 2 above.

17

Defendants shall submit to Waterkeeper all monitoring and lab reports from Vadose Zone

18

Samples collected at any Bestway Facility within ten (10) days of receipt of the

19

monitoring and lab reports. Defendants shall compare the results of this analysis with the

20

levels of Table 2.

21

29.

Revising the M&RP. Within thirty (30) days of finalizing the BMP Plans

22

required pursuant to paragraph 15 of this Consent Decree, the Defendants shall revise its

23

M&RP for each Bestway Facility to incorporate the requirements of this Consent Decree

24

and the Storm Water Permit, including, if Defendants install an infiltration gallery at a

25

specific Facility, the Groundwater Monitoring requirements in paragraph 28 of the

26

Consent Decree. The revised M&RP shall require that the samples taken from the

27

Facility’s storm water discharges pursuant to the Storm Water Permit are analyzed for the

28

constituents identified in Table 1 in addition to any other constituents required by the
Consent Decree

20

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

Storm Water Permit. If roof drainage at any of the Bestway Facilities is redirected, the

2

M&RP for that Facility shall require for monitoring of the redirected roof drainage

3

discharges once annually to ensure these discharges are not violating Table 1 Numeric

4

Limits. All roof drainage discharges monitoring should be submitted to Waterkeeper for

5

review within ten (10) days of receipt of monitoring results from the lab. If the redirected

6

roof drainage is violating Table 1 Numeric Limits, Defendants shall implement additional

7

BMPs to bring the discharge into compliance with the Table 1 Numeric Limits. The

8

additional BMPs addressing roof drainage discharges violations of Table 1 Numeric

9

Limits will be submitted in a written report to Waterkeeper within thirty (30) days of

10

receipt of monitoring results. The requirement to implement additional BMPs to bring

11

roof drainage discharges into compliance with Table 1 Numeric Limits will terminate

12

when three (3) consecutive roof drainage samples demonstrate compliance with Table 1

13

Numeric Limits. The sampling locations of all redirected roof drainage discharges will be

14

included as stormwater sampling outfalls in the respective Facility’s site map and M&RP.

15

30.

The Defendants shall submit the revised M&RP for each Bestway Facility to

16

Waterkeeper for review and comment. Waterkeeper shall provide comments, if any, to

17

the Defendants within sixty (60) days of receipt of the M&RP. The Defendants shall

18

incorporate Waterkeeper’s comments into the M&RP, or shall justify in writing why any

19

comment is not incorporated within thirty (30) days of receiving comments. Any disputes

20

over the adequacy of the revised M&RP shall be resolved pursuant to the dispute

21

resolution provisions of this Consent Decree, set out in Section IV below.

22

D.

Storm Water Pollution Prevention Plan

23

31.

SWPPP Revisions. Within sixty (60) days of finalizing the BMP Plans

24

required under paragraph 15, Defendants shall revise the SWPPP for each Bestway

25

Facility to include (1) current BMPs, (2) BMPs developed pursuant to this Consent

26

Decree to control the discharge of pollutants from the Facility, (3) a description of all

27

industrial activities, (4) corresponding potential pollutant sources for industrial activities,

28

(5) a description of the potential pollutants from each source, and (6) a detailed site map.
Consent Decree

21

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

The SWPPP must comply with all other provisions of the Section A of the Storm Water

2

Permit. The Defendants shall submit the revised SWPPP to Waterkeeper for review and

3

comment. Waterkeeper shall provide comments, if any, to Defendants within seventy-

4

five (75) days of receipt of the SWPPP. Defendants shall incorporate Waterkeeper’s

5

comments into the SWPPP, or shall justify in writing why any comment is not

6

incorporated within thirty (30) days of receiving comments. Any disputes as to the

7

adequacy of the revised SWPPP shall be resolved pursuant to the dispute resolution

8

provisions of this Consent Decree, set out in Section IV below.

9

32.

Additional SWPPP Revisions. Defendants shall revise the SWPPP for each

10

Bestway Facility if there are any changes in the applicable Facility’s operations,

11

including, but not limited to, changes to storm water discharge point(s) or revisions

12

and/or additions to the BMPs at each Facility implemented pursuant to Surface Water

13

Action Plans and/or Groundwater Action Plans. Defendants shall submit any revised

14

SWPPP to Waterkeeper for review and comment within ten (10) days of SWPPP

15

revision. Waterkeeper will provide comments, if any, to the Defendants within thirty (30)

16

days of receipt of any revised SWPPP. Defendants shall incorporate Waterkeeper’s

17

comments into any revised SWPPP, or shall justify in writing why any comment is not

18

incorporated within thirty (30) days of receiving comments. Any disputes as to the

19

adequacy of a revised SWPPP shall be resolved pursuant to the dispute resolution

20

provisions of this Consent Decree, set out in Section IV below.

21

E.

Employee Training

22

33.

Within ninety (90) days of the Effective Date, Defendants shall develop and

23

implement a training program (“Training Program”), including any training materials, as

24

necessary, for effective implementation of the Training Program at each Bestway

25

Facility.

26

34.

The Training Program shall ensure (a) that there are a sufficient number of

27

employees designated to achieve compliance with the sampling requirements of the

28

Storm Water Permit and this Consent Decree, and (b) that these employees are properly
Consent Decree

22

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

trained to perform the required compliance activities at each Bestway Facility. Such

2

Training Program shall be specified in the SWPPP.

3
4

35.

The Training Program shall require specific training to include at least the

following:

5

a. Non-Storm Water Discharge Training. The Defendants shall train all

6

employees at each Bestway Facility on the Storm Water Permit’s prohibition of non-

7

storm water discharges so that employees know what non-storm water discharges are,

8

how to detect them, and how to prevent them;

9

b. BMP Training. The Defendants shall train all employees responsible for

10

BMP implementation and maintenance at each Bestway Facility on BMP implementation

11

and maintenance to ensure that BMPs are used effectively to prevent the exposure of

12

pollutants to storm water, to prevent the discharge of contaminated storm water, and to

13

ensure the proper treatment of storm water;

14

c. Storm Water Sampling Training. The Defendants shall designate an

15

adequate number of employees necessary to collect storm water samples from each

16

discharge location of the Bestway Facilities as required by this Consent Decree. The

17

training shall include the proper sampling protocols, including chain of custody

18

requirements, to ensure storm water and/or non-storm water samples are properly

19

collected, stored, and submitted to a certified laboratory;

20

d. Visual Observation Training. The Defendants shall provide training to all

21

individuals performing visual observations at the Bestway Facilities regarding visual

22

observations pursuant to this Consent Decree and the Storm Water Permit.

23

36.

Training shall be provided by a private consultant or a representative of

24

Defendants familiar with the requirements of this Consent Decree and the Storm Water

25

Permit, and shall be repeated as necessary to ensure that all such employees are familiar

26

with the requirements of this Consent Decree, the Storm Water Permit, and the Facility’s

27

SWPPP. All new staff shall receive this training before assuming responsibilities for

28

implementing the SWPPP or M&RP.
Consent Decree

23

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

1

37.

The Defendants shall maintain training records to document compliance

2

with this Section III.E, and shall provide Waterkeeper with a copy of these records within

3

fourteen (14) days of receipt of a written request.

4

F.

Compliance Monitoring and Reporting

5

38.

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

6

up to three (3) Waterkeeper representatives or consultants (including an attorney), may

7

conduct one (1) Wet Season site inspection and one (1) site inspection during the June 1-

8

September 30 period (hereinafter “Dry Season”) at each of the Bestway Facilities. Site

9

inspections shall occur during normal business hours and Waterkeeper shall provide

10

Defendants with as much notice as possible, but at least twenty-four (24) hours notice

11

prior to a Wet Season site inspection, and seventy-two (72) hours notice prior to a Dry

12

Season site inspection. Notice will be provided by telephone and electronic mail. During

13

the site inspection, Defendants shall allow Waterkeeper and/or its representatives access

14

to the respective Bestway Facility’s SWPPP, M&RP, monitoring records, and to all

15

monitoring reports and data for the Facility. During the site inspection, Waterkeeper

16

and/or its representatives may collect samples of storm water or non-stormwater

17

discharges from the Bestway Facilities, and will provide Defendants an opportunity to

18

collect a sample at the same location at approximately the same time. Waterkeeper shall

19

provide Defendants copies of the sampling results as well as all laboratory back up

20

documentation and chain of custody within fourteen (14) days of receiving the sampling

21

results. Waterkeeper may also take photographs or video recording during any site

22

inspection pursuant to this paragraph. If Waterkeeper takes photographs and/or video

23

recording, Waterkeeper shall provide Defendants with the photographs and/or video

24

within fourteen (14) days after any written request by Defendants for such photographs

25

and/or videos. Waterkeeper agrees that all individuals who will participate in a site

26

inspection will execute a waiver and release prior to the site inspection in the form

27

attached as Exhibit D hereto. Waterkeeper also agrees that all individuals who will

28

participate in the site inspection will sign a sign-in sheet upon arrival at the Facility.
Consent Decree

24

CV13-8791 DDP (PLAx); CV13-8793 DDP
(PLAx); CV13-8796 DDP (PLAx); CV13-8797
DDP (PLAx); CV13-8798 DDP (PLAx)

39.

1

Waterkeeper’s Compliance Monitoring.12 Defendants agree to compensate

2

Waterkeeper for time to be spent monitoring the Defendants’ compliance with the

3

Consent Decree as follows:

4

a. Defendants shall pay Waterkeeper $15,000 (fifteen thousand) as follows:

5

$7,500 (Seven thousand five hundred) within thirty (30) days of the effective

6

date of the Consent Decree and $7,500 (seven thousand five hundred) by

7

December 31, 2014.

8

b. Defendants shall pay $3,000 (three thousand) each time a Surface Water

9

Action Plan or Groundwater Action Plan is submitted to Waterkeeper.

10

Payments will be submitted within thirty (30) days of the submittal of the

11

Surface Water Action Plan or Groundwater Action Plan.

12

c. All payments required under this paragraph shall be submitted and made

13

payable to “Los Angeles Waterkeeper,” addressed to Los Angeles

14

Waterkeeper, 120 Broadway, Suite 105, Santa Monica, California 90401,

15

and sent via courier, overnight delivery or bank wire.

16

d. Failure to submit a payment as required under this paragraph will constitute

17

a breach of the Consent Decree.

18

40.

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

19

provide Waterkeeper with a copy of all Consent Decree and Storm Water Permit

20

compliance and monitoring data, including inspection reports, related to the Facility’s

21

coverage under the Storm Water Permit on a quarterly basis. The Defendants shall

22

provide Waterkeeper with all laboratory analyses related to sampling at the Facility

23

within fourteen (14) days of the Defendants’ receipt of such information.

24

41.

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

25

shall copy Waterkeeper on all documents and communications related to water quality at

26

any of the Bestway Facilities that are submitted to the Regional Board, the State Board,

27
28

12

The schedule of payments described in paragraphs 39, 42 and 43 of this Consent Decree is attached in
table form as Exhibit E hereto.
Consent Decree

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and/or any State, local agency, county, or municipality. Such reports and documents

2

shall be provided to Waterkeeper concurrently as they are sent to the agencies and/or

3

municipalities. Any correspondence related to water quality received by the Defendants

4

from any regulatory agency, State or local agency, county, or municipality shall be

5

provided within fourteen (14) days of receipt by the Defendants.

6

G.

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

42.

Environmental Project. The Defendants agree to make a payment of One

7
8
9

Hundred Twenty Thousand Dollars ($120,000), to be paid in eight equal installments

10

with the first installment of Fifteen Thousand ($15,000) to be made by June 30, 2015 and

11

the remaining seven installments to be made every quarter thereafter until paid in full, to

12

the Rose Foundation for Communities and the Environment for a project related to water

13

quality designed to analyze, reduce, prevent, or otherwise mitigate the ecological effects

14

of storm water and/or non-stormwater discharges into Los Angeles area waterbodies.

15

The payments shall be mailed via certified mail or overnight delivery to the attention of

16

Tim Little, Rose Foundation for Communities and the Environment, 1970 Broadway,

17

Suite 600, Oakland, California 94612-2218. Defendants shall provide Waterkeeper with a

18

copy of such payment.

19

43.

Reimbursement of Plaintiff’s Fees and Costs. The Defendants agree to

20

partially reimburse Plaintiff for its investigation fees and costs, consultant fees and costs,

21

reasonable attorneys’ fees, and other costs incurred as a result of investigating and filing

22

the lawsuit, and negotiating a resolution of this matter in an amount totaling One

23

Hundred Twenty Five Thousand Dollars ($125,000) to be paid as follows: Forty

24

Thousand ($40,000) within thirty (30) days of the Effective Date, Twenty Thousand

25

($20,000) by September 30, 2014, Twenty Thousand ($20,000) by December 31, 2014,

26

and Forty-Five Thousand ($45,000) by March 31, 2015. All such payments shall be

27

made payable to Los Angeles Waterkeeper and delivered by certified mail, overnight

28

delivery or bank wire to:
Consent Decree

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Los Angeles Waterkeeper
Attn: Elizabeth Crosson
120 Broadway, Suite 105
Santa Monica, CA 90401

2
3
4
5
6
7
8
9
10
11
12
13

44.

Five Hundred Dollars ($500) for each missed deadline included in this Consent Decree.
Payments for a missed deadline shall be made for the restoration and/or improvement of
the watershed in the area affected by the Defendants’ alleged discharges and shall be
awarded to the Rose Foundation for Communities and the Environment. Defendants
agree to make the stipulated payment within thirty (30) days of a missed deadline. The
payments shall be mailed via regular mail to the attention of Tim Little, Rose Foundation
for Communities and the Environment, 1970 Broadway, Suite 600, Oakland, California
94612-2218. The Defendants shall provide Waterkeeper with a copy of each such
payment at the time it is made.

14

H.

17
18
19
20
21
22
23
24
25
26
27

Agency Review of Consent Decree

45.

15
16

Stipulated Payment. The Defendants shall make a remediation payment of

Plaintiff shall submit this Consent Decree to the Federal Agencies, within

three (3) 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) 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 Agencies object to entry of this Consent Decree, the Parties agree to meet
and confer to attempt to resolve the issue(s) raised by the Federal Agencies.
IV.

DISPUTE RESOLUTION
46.

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. The Court shall have the power to enforce this Consent Decree with all
available legal and equitable remedies, including contempt.
47.

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

28
Consent Decree

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resolution procedures of this Section by notifying all other Parties in writing of the

2

matter(s) in dispute and of the party's proposal to resolve the dispute under this Section.

3

The Parties shall then meet and confer in an attempt to resolve the dispute no later than

4

fourteen (14) calendar days from the date of the notice.
48.

5

If the Parties cannot resolve the dispute within 14 days after the meet and

6

confer described in paragraph 47, the party initiating the dispute resolution provision may

7

invoke formal dispute resolution by filing a motion before the United States District

8

Court for the Central District of California. The Settling Parties shall jointly apply to the

9

Court for an expedited hearing schedule on the motion.
49.

10

Burden of Proof. In the event of any disagreement or dispute between

11

Plaintiff and Defendants over the necessity or appropriateness of implementing any

12

particular BMP or set of BMPs, including in any formal or informal proceeding brought

13

to enforce the terms of this Consent Decree, Defendants shall bear the burden of

14

demonstrating that its BMPs, collectively, constitute BAT/BCT for the Facility, or that

15

they are in compliance with the terms of this Consent Decree. Plaintiff shall not be

16

required to prove that Defendants’ BMPs do not constitute BAT/BCT.

17

50.

Waterkeeper shall be entitled to recover reasonable fees and costs incurred

18

to enforce the terms of this Consent Decree consistent with the provisions of Sections 505

19

and 309 of the CWA, 33 U.S.C. §§ 1365, 1319.

20

V.

21

MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE
51.

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

22

Decree, the Parties hereby fully release, except for claims for Defendants’ failure to

23

comply with this Consent Decree and as expressly provided below, each other and their

24

respective successors, assigns, officers, agents, employees, and all persons, firms and

25

corporations having an interest in them, from any and all alleged CWA violations

26

claimed, fees, costs and any other expenses claimed or incurred in the Complaints or for

27

matters related to the Complaints, up to and including the Effective Date of this Consent

28

Decree.
Consent Decree

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52.

Nothing in this Consent Decree limits or otherwise affects Plaintiff’s right to

2

address or take any position that it deems necessary or appropriate in any formal or

3

informal proceeding before the Regional Board, EPA, or any other judicial or

4

administrative body on any other matter relating to Defendants.

5

53.

No Admission of Liability. Neither the Consent Decree nor any payment

6

pursuant to the Consent Decree shall constitute or be construed as a finding, adjudication,

7

or acknowledgement of any fact, law or liability, nor shall it be construed as an admission

8

of violation of any law, rule, or regulation. The Defendants maintain and reserve all

9

defenses they may have to any alleged violations that may be raised in the future.

10

54.

Force Majeure. Force Majeure includes but is not limited to: any act of God,

11

war, fire, earthquake, flood or natural catastrophe; civil disturbance, vandalism, sabotage

12

or terrorism; restraint by court order or public authority or agency; or action or non-action

13

by, or inability to obtain the necessary authorizations or approvals from, any

14

governmental agency. The Defendants shall notify Waterkeeper pursuant to the terms of

15

this paragraph, when timely implementation of the requirements set forth in this Consent

16

Decree becomes impossible, despite the timely good-faith efforts of the Defendants, due

17

to circumstances beyond the reasonable control of the Defendants or their agents, and

18

which could not have been reasonably foreseen and prevented by the exercise of due

19

diligence by the Defendants. Any delays due to Defendants’ failure to make timely and

20

bona fide applications and to exercise diligent efforts to obtain necessary permits, or due

21

to normal inclement weather, shall not, in any event, be considered to be circumstances

22

beyond Defendants’ control. In no circumstances shall a claim of inability to pay be

23

considered Force Majeure.

24

a. If the Defendants claim Force Majeure, they shall notify Waterkeeper in

25

writing within twenty-one (21) days of the date that the Defendants first knew of the

26

event or circumstance that caused or would cause a violation of this Consent Decree. The

27

notice shall describe the reason for the nonperformance and, in cases where Defendants

28

invoke Force Majeure due to action or non-action by, or inability to obtain the necessary
Consent Decree

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authorizations or approvals from, any government agency, the specific obligations under

2

the Consent Decree which are or have been affected by the Force Majeure. It shall

3

describe the anticipated length of time the delay may persist, the cause or causes of the

4

delay, the measures taken or to be taken by the Defendants to prevent or minimize the

5

delay, the schedule by which the measures will be implemented, and the anticipated date

6

of compliance. The Defendants shall adopt all reasonable measures to avoid and

7

minimize such delays. Delay in compliance with a specific obligation under this Consent

8

Decree due to Force Majeure as set forth above shall not excuse or delay compliance with

9

any other obligations required under this Consent Decree.
b. The Parties shall meet and confer in good faith concerning the non-

10
11

performance and, where the Parties concur that performance was or is impossible due to

12

Force Majeure, despite the timely good faith efforts of the Defendants, new deadlines

13

shall be established.
c. If Waterkeeper disagrees with the Defendants’ notice of Force Majeure, or

14
15

in the event that the Parties cannot timely agree on the terms of new performance

16

deadlines or requirements, either party shall have the right to invoke the Dispute

17

Resolution Procedure pursuant to Section IV. In such proceeding, the Defendants shall

18

bear the burden of proving that any delay in performance of any requirement of this

19

Consent Decree was caused or will be caused by Force Majeure and the extent of any

20

delay attributable to such circumstances.

21

VI.

22

MISCELLANEOUS PROVISIONS
55.

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

23

construed according to its plain and ordinary meaning, except as to those terms defined in

24

the Storm Water Permit, the Clean Water Act, or specifically herein.

25
26
27
28

56.

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

Decree.
57.

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
Consent Decree

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2

enforceable provisions shall not be adversely affected.
58.

Correspondence. All notices required herein or any other correspondence

3

pertaining to this Consent Decree shall be sent by regular mail or electronic mail as

4

follows:

5

If to Plaintiff:

6
7
8
9
10
11
12
13
14
15

Tatiana Gaur
Staff Attorney
Los Angeles Waterkeeper
120 Broadway, Suite 105
Santa Monica, CA 90401
[e-mail]
With copies to:
Elizabeth Crosson
Executive Director
Los Angeles Waterkeeper
[e-mail]
If to Defendants:

16
17
18
19
20

David Cho
Bestway Recycling Company, Inc.
2268 Firestone Blvd.
Los Angeles, CA 90002
[e-mail]

21

With copies to:

22

Nancy Wilms
Edgcomb Law Group, LLP
333 North Glenoaks Blvd., Ste. 610
Burbank, CA 91502
[e-mail]

23
24
25
26
27

Notifications of communications shall be deemed submitted three (3) days after the
date that they are postmarked and sent by first-class mail, or immediately after sending

28
Consent Decree

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notification or communication by email. Any change of address or addresses shall be

2

communicated in the manner described above for giving notices.

3

59.

Effect of Consent Decree. Plaintiff does not, by its consent to this Consent

4

Decree, warrant or aver in any manner that the Defendants’ compliance with this Consent

5

Decree will constitute or result in compliance with any federal or state law or regulation.

6

Nothing in this Consent Decree shall be construed to affect or limit in any way the

7

obligation of the Defendants to comply with all federal, state, and local laws and

8

regulations governing any activity required by this Consent Decree.

9

60.

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

10

counterparts, all of which together shall constitute one original document. Telecopy

11

and/or facsimile copies of original signature shall be deemed to be originally executed

12

counterparts of this Consent Decree.

13

61.

Modification of the Consent Decree. This Consent Decree, and any

14

provisions herein, may not be changed, waived, discharged, or terminated unless by a

15

written instrument, signed by the Parties.

16
17
18

62.

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

of this matter.
63.

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

19

Decree is intended to be a full and complete statement of the terms of the agreement

20

between the parties and expressly supersedes any and all prior oral or written agreements,

21

covenants, representations, and warranties (express or implied) concerning the subject

22

matter of this Consent Decree.

23

64.

Authority. The undersigned representatives for Plaintiff and Defendants

24

each certify that he/she is fully authorized by the party whom he/she represents to enter

25

into the terms and conditions of this Consent Decree.

26

65.

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

27

including any successors or assigns. The Parties certify that their undersigned

28

representatives are fully authorized to enter into this Consent Decree, to execute it on
Consent Decree

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behalf of the Settling Parties, and to legally bind the Settling Parties to its terms.
66.

2

The Settling Parties agree to be bound by this Consent Decree and not to

3

contest its validity in any subsequent proceeding to implement or enforce its terms. By

4

entering into this Consent Decree, the Defendants do not admit liability for any purpose

5

as to any allegation or matter arising out of this Action.

6
7
8

IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as
of the date noted below.
IT IS SO ORDERED.

9
10

Date: April 25, 2014
Honorable Dean D. Pregerson
United States District Judge
for the Central District of California

11
12
13
14
15

Approved as to Content:
Date:

16

David Cho
Bestway Recyling Company, Inc.

17
18
19

Date:
David Cho
Western Recycling, Inc.

20
21
22

Date:
David Cho
Bestway Recyling of Pomona, Inc.

23
24
25

Date:
David Cho
Los Angeles Recycling Center, Inc.

26
27
28
Consent Decree

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Date:
Elizabeth Crosson, Executive Director
Los Angeles Waterkeeper

2
3

Approved as to Form:

4
5

Date:
Nancy Wilms, Esq.
Edgcomb Law Group, LLP
Counsel for Defendants

6
7
8
9

Date:
Tatiana Gaur, Staff Attorney
Los Angeles Waterkeeper

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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Minimum BMPs
1. Structural BMPs
a. Eliminate and/or treat discharges
i.
By September 15, 2014: Install permanent or temporary cover over all
areas where pollutant sources exist. Temporary cover shall be sufficient
to eliminate contact of storm water with any pollutant sources.
2. Source Control BMPs, including housekeeping
a. By May 31, 2014: Cover stored materials (bins and bales) when there is 30%
chance of rain in the forecast.
b. By September 15, 2014: Install permanent or temporary cover for sorting lines.
c. By September 15, 2014: Begin pressure washing areas of stained pavement
(i.e. in area of CRV processing and fiber unloading). Pressure washing is to be
conducted quarterly thereafter at all Bestway Facilities.
d. By September 15, 2014: Begin scrubbing the CRV recycling areas at all
Bestway Facilities regularly with water to eliminate and prevent bacteriological
contamination. Water associated with cleaning the CRV areas should be
contained and disposed of properly to eliminate the potential for storm water
and non-storm water discharges.
e. Sweeping
i. By December 31, 2014: Begin sweeping, using a powered surface
cleaning sweeper such as Cyclone CY5000 or CY5500, at least once
weekly at the Western Recycling Facility, the Jefferson Recycling
Facility and the Pomona Recycling Facility, in addition to continued use
of broom and dustpan efforts. Concentrate sweeping efforts in area where
vehicles enter and exit the site.
ii. By March 31, 2015: Begin sweeping, using a powered surface cleaning
sweeper such as Cyclone CY5000 or CY5500, at least twice weekly at
the Los Angeles Recycling Facility and the Firestone Facility, in addition
to continued use of broom and dustpan efforts. Concentrate sweeping
efforts in area where vehicles enter and exit the site.
f. By September 30, 2014: Paint bins and bin covers to coat all rusty surfaces.
g. By July 31, 2014: Clean, remove excess grease, and paint stationary material
processing equipment (e.g. Sorting Line).
h. By September 30, 2014: Route water from rooftops in area used for CRV
storage to drain away from material processing areas.

Exhibit A

i. By September 30, 2014: Install downspouts and downspout filters to address
potential contaminants from roof drainage.13
j. By July 31, 2014: Discard old, unused equipment (e.g. old sorting line
equipment and unused bins and dumpsters) or store old, unused equipment
under permanent or temporary cover.
k. By September 30, 2014: Repair areas of pitted and cracked paving.

13

http://www.spillcontainment.com/downspout-guard, for example.

Exhibit A

Bestway Facilities Business Hours

Facility Name/Address
Bestway Recycling
2268 Firestone Blvd
Los Angeles, California

Operating Hours
Monday-Friday: 7:00 am to 5:00pm
Saturday: 7:00am to 4:00pm
Sunday: 7:00am to 12:00pm

Los Angeles Recycling
1000 North Main Street
Los Angeles, California

Monday-Friday: 7:00am to 5:00pm
Saturday: 7:00am to 4:00pm
Sunday: Closed

Western Recycling
13528 South Western Avenue
Gardena, California

Monday-Friday: 7:30am to 5:00pm
Saturday: 7:30am to 3:00pm
Sunday: Closed

West LA Deposit Site and Recycling
6001 Jefferson Blvd
Los Angeles, California

Monday-Friday: 8:30am to 4:30pm
Saturday: 8:30am to 2:30pm
Sunday: Closed

Bestway Recycling of Pomona
1032 Industrial Street
Pomona, California

Monday-Friday: 8:00am to 5:00pm
Saturday: 8:00am to 2:00pm
Sunday: Closed

Exhibit B

BESTWAY FACILITIES RAIN GAUGES
Facility Name/Address
Bestway Recycling
2268 Firestone Blvd
Los Angeles, California

Rain Gauge ID/Name
291 - Los Angeles 96th St. Rain
Gauge

Los Angeles Recycling
1000 North Main Street
Los Angeles, California

716 - Los Angeles-Ducommun St.
Rain Gauge

Western Recycling
13528 South Western Avenue
Gardena, California

291 - Los Angeles 96th St. Rain
Gauge

West LA Deposit Site and Recycling
6001 Jefferson Blvd
Los Angeles, California

AL370Z - Ballona Creek Rain
Gauge

Bestway Recycling of Pomona
1032 Industrial Street
Pomona, California

448-Walnut Creek SB Precipitation
Rain Gage

Exhibit C

WAIVER AND RELEASE

I understand that I am being permitted to enter the premises located at
_______________________________________ (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 Bestway Recycling Company, Inc., its
affiliates, shareholders, officers, directors, employees, agents, attorneys, trustees,
beneficiaries, and any other representative(s) affiliated with the property and operations
at the Site (collectively “Bestway”) from any and all lawsuits, damages, claims,
judgments, losses, liability, or expenses (including court costs and attorneys fees) arising
out of or resulting from any damage or loss to myself, including any tools and equipment
I am bringing onto the Site, Bestway, or others, which may be caused in whole or in part
by me. This release expressly does not include an agreement to indemnify, defend, hold
harmless and release Bestway from any harm to me or any tools and equipment I bring on
site caused in whole or in part by any negligent or intentional act by Bestway, or of
Bestway’s licensees, invitees, or permittees also on the Site, or those of any other third
party not under Bestway’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:____________

____________________

(Printed): _____________________

Exhibit D

BESTWAY CONSENT DECREE PAYMENT SCHEDULE
Payment type

Compliance
fees and costs
Litigation
fees and costs
SEP

30 days
after CD
effective
date
$ 7,500

9/30/2014

$40,000

$20,000

12/31/2014

3/31/2015

6/30/2015

9/30/2015

12/31/2015

3/31/2016

6/30/2016

9/30/2016

12/31/2016

3/31/2017

$15,000

$15,000

$15,000

$15,000

$15,000

$15,000

$15,000

$15,000

$7,500
$20,000

$45,000

Total: $260,000

Exhibit E