Los Angeles Water Keeper v. City of Burbank

Filing 28

CONSENT DECREE by Magistrate Judge Rozella A. Oliver, Related to: Stipulation for Judgment 27 (MD JS-6, Case Terminated). (dml)

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LOZEAU DRURY LLP
Michael R. Lozeau (State Bar No. 142893)
Douglas J. Chermak (State Bar No. 233382)
E-mail: [e-mail]
410 12th Street, Suite 250
Oakland, CA 94607
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
LOS ANGELES WATERKEEPER

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BROWNSTEIN HYATT FARBER SCHRECK, LLP
Ryan Waterman (State Bar No. 229485)
E-mail: [e-mail]
225 Broadway, Suite 1670
San Diego, CA 92101
Tel: [phone]
Fax: [phone]
Attorney for Defendant
CITY OF BURBANK
Plaintiff’s and Defendant’s Additional Counsel Listed On Next Page

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LOS ANGELES WATERKEEPER, a
California non-profit corporation,

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Plaintiff,

Case No. 2:17-cv-00822-RAO

[PROPOSED] CONSENT DECREE

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vs.
CITY OF BURBANK, a municipality,

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

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Defendant.

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[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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Plaintiff’s Additional Counsel
LOS ANGELES WATERKEEPER
Arthur Pugsley (State Bar No. 252200)
Melissa Kelly (State Bar No. 300817)
E-mail: [e-mail]
[e-mail]
120 Broadway, Suite 105
Santa Monica, CA 90401
Tel: [phone]
Fax: [phone]

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Defendant’s Additional Counsel
CITY OF BURBANK
Amelia Ann Albano, City Attorney (State Bar No. 103640)
Carolyn A. Barnes, Sr. Asst. City Attorney (State Bar No. 113313)
Christopher Chwang, Sr. Asst. City Attorney (State Bar No. 210700)
Email: [e-mail]
[e-mail]
[e-mail]
275 E. Olive Avenue
Burbank, CA 91502
Tel: [phone]
Fax: [phone]

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[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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CONSENT DECREE
The following Consent Decree is entered into by and between Plaintiff Los
Angeles Waterkeeper (“Plaintiff” or “Waterkeeper”) and Defendant City of Burbank

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(“Defendant” or “Burbank”). The entities entering into this Consent Decree are each

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an individual “Settling Party” and collectively the “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

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Monica, California;
WHEREAS, Burbank is a California municipal corporation located in the

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eastern San Fernando Valley, nestled between the Hollywood Hills and the Verdugo

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Mountains, encompassing 17 square miles with a diverse population of approximately

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103,000;

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WHEREAS, Waterkeeper is dedicated to the preservation, protection, and

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defense of the inland and coastal surface and ground waters of Los Angeles County

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from all sources of pollution and degradation;

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WHEREAS, Burbank operates two, adjacent electrical power facilities,
individually called the Magnolia Power Project and the Burbank Water and Power

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Facility, and collectively called the BWP Campus, located at 164 West Magnolia

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Boulevard in Burbank, California, hereinafter referred to by the Settling Parties

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collectively as the “Facility”;

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WHEREAS, Burbank is committed to complying with all environmental laws

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and regulations, while also recognizing the importance of conservation and
environmental protection.
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WHEREAS, Waterkeeper has approximately 3,000 members who live and/or
recreate in and around the Los Angeles area waterbodies receiving discharges from

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the Facility, including the Los Angeles River, the Burbank Western Channel, San
Pedro Bay, and the Pacific Ocean;
WHEREAS, storm water discharges associated with industrial activity at the

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Facility are regulated pursuant to the National Pollutant Discharge Elimination

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System (“NPDES”) General Permit No. CAS000001 [State Water Resources Control

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Board], Water Quality Order No. 92-12-DWQ (as amended by Water Quality Order

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97-03-DWQ and as subsequently amended by Water Quality Order No. 2014-0057-

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DWQ) (hereinafter the “Permit”), issued pursuant to Section 402 of the Federal Water

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

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WHEREAS, the Magnolia Power Project and the Burbank Water and Power

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Facility located at the Facility are both registered under the Permit;

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WHEREAS, the Facility’s subsurface storm water drainage system receives

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storm water flows from offsite non-industrial sources through a shared storm water

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conveyance system;

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WHEREAS, the Permit includes the following requirements for all permittees,

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including Burbank: 1) develop and implement a storm water pollution prevention plan

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(“SWPPP”); 2) control pollutant discharges using best available technology

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economically achievable (“BAT”) and best conventional pollutant control technology

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(“BCT”) to prevent or reduce pollutants; 3) implement BAT and BCT through the

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development and application of Best Management Practices (“BMPs”), which must be
included and updated in the SWPPP; and 4) when necessary, implement additional
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BMPs to prevent or reduce any pollutants that are causing or contributing to any
exceedance of applicable water quality standards;

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WHEREAS, on October 28, 2016, Waterkeeper served Burbank, the

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Administrator of the United States Environmental Protection Agency (“EPA”), the

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Executive Director of the State Water Resources Control Board (“State Board”), the

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Executive Officer of the Los Angeles Regional Water Quality Control Board

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(“Regional Board”), the U.S. Attorney General, and the Regional Administrator of the

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EPA (Region 9) with a notice of intent to file suit under Sections 505(a)(1) and (f) of

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the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A) (“60-Day Notice letter”), alleging

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violations of the Act and the Permit at the Facility;

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WHEREAS, on February 1, 2017, Waterkeeper filed a complaint against
Burbank in the United States District Court, Central District Court of California,

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entitled Los Angeles Waterkeeper v. City of Burbank (Case No. 2:17-cv-00822-RAO);

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alleging violations of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), and

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violations of the Permit at the Facility (“Complaint”) based on the 60-Day Notice

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letter;

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WHEREAS, Waterkeeper contends in its 60-Day Notice letter and Complaint

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that, among other things, Burbank has repeatedly discharged polluted storm water in
violation of the Permit and the Clean Water Act;
WHEREAS, Burbank denies all allegations set forth in the 60-Day Notice
letter and Complaint relating to the Facility;

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WHEREAS, the Settling Parties, through their authorized representatives and
without either adjudication of Waterkeeper’s claims or any admission by Burbank of
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any alleged violation or other wrongdoing, believe it is in their mutual interest and

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choose to resolve in full Waterkeeper’s allegations in the 60-Day Notice letter and

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Complaint through settlement and avoid the cost and uncertainties of further
litigation;
WHEREAS, all actions taken by Defendant pursuant to this Consent Decree
shall be made in compliance with all applicable federal and state laws and local rules
and regulations;

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NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE

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SETTLING PARTIES, AND ORDERED AND DECREED BY THE COURT,

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AS FOLLOWS:

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1.

The Court has jurisdiction over the subject matter of this action pursuant

to Section 505(a)(l)(A) of the Clean Water Act, 33 U.S.C. § 1365(a)(1)(A);

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2.

Venue is appropriate in the Central District of California pursuant to

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Section 505(c)(l) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Facility

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at which the alleged violations took place is located within this District;

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3.

The Complaint states claims upon which relief may be granted pursuant

to Section 505(a)(l) of the Clean Water Act, 33 U.S.C. § 1365(a)(1);

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4.

Plaintiff has standing to bring this action;

5.

The Court shall retain jurisdiction over this matter for purposes of

enforcing the terms of this Consent Decree for the life of the Consent Decree, or as
long thereafter as is necessary for the Court to resolve any motion to enforce this

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Consent Decree.

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[PROPOSED] CONSENT DECREE

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I.

OBJECTIVES

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It is the express purpose of the Settling Parties entering into this Consent

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

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et seq., and to resolve those issues alleged by Waterkeeper in its Complaint. In light

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of these objectives and as set forth fully below, Defendant agrees to comply with the

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

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and all applicable provisions of the Clean Water Act at the Facility.

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II.

COMMITMENTS OF BURBANK

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In order to reduce or prevent pollutants associated with industrial activity

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from discharging via storm water to the waters of the United States, Burbank shall

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implement appropriate structural and non-structural BMPs, as described more fully

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below.

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8.

Maintenance of Implemented Storm Water Controls. Burbank agrees

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that the Facility shall maintain in good working order all storm water collection and

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management systems currently installed or to be installed pursuant to this Consent

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Decree, including but not limited to, existing housekeeping measures.

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9.

Structural Improvements to Storm Water Management Measures.

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a.

In order to prevent storm water from contacting some potential

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pollutant sources at the Facility, within sixty (60) days of the Effective Date, Burbank

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shall implement permanent awnings to the Magnolia Hydrogen Fill Station and the

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MPP Hydrogen Storage Area at the Facility that are consistent with other permanent

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awnings at the Facility. These locations are depicted on a map of the Facility attached
hereto as Exhibit A.
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b.

In order to filter storm water prior to discharge, within thirty (30)

days of the Effective Date, Burbank shall:

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i. Enlarge the vault at sampling location 1 and install CleanWay

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Catch Basin Filtration inserts with the MetalZorb filter;

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ii. Install CleanWay MetalZorb filters at sampling locations 2 and

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3;

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c.

Within fourteen (14) days of each of the improvements set forth in

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Paragraph 9(a) and 9(b), Burbank shall e-mail Waterkeeper digital photographs
confirming said improvements.
10.

Storm Water Quality Improvement Feasibility Study. On or before

June 1, 2018, Burbank shall obtain a draft Storm Water Quality Improvement
Feasibility Study (Feasibility Study) to analyze options to improve the quality of

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storm water discharges from the Burbank campus to the Burbank Western Channel

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and/or to eliminate/prevent storm water discharges. The Feasibility Study will review

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the options for treatment of industrial pollutants (including, but not limited to, soluble

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metals), various site treatment controls, source control and structural BMPs to

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improve the quality of Burbank’s storm water discharge and/or eliminate/prevent

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storm water discharges. The Feasibility Study will include a technology assessment

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and alternatives analysis, which will consider a range of criteria, including (a) run-on

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characteristics, (b) diversion options, (c) site geometrics, (d) depth to groundwater, (e)

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site geotechnical constraints, (e) capital and annual maintenance costs, (f)

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constructability, (g) operations and maintenance considerations, and (h) CEQA
compliance and associated permitting requirements. The Feasibility will also prepare
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initial draft preliminary conceptual plans for the preferred alternative.

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a. Within ten (10) business days of delivery of the draft Feasibility

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Study to Burbank, Burbank shall provide a copy to Waterkeeper for

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review and comment.

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b. Waterkeeper shall provide comments, if any, to Burbank within

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twenty (20) days. Burbank shall respond to Waterkeeper’s comments

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within twenty (20) days.

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c. Within sixty (60) days of receiving Waterkeeper’s comments,

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Burbank staff shall recommend one of the options evaluated in the

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Feasibility Study to the Burbank Water and Power General Manager

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or the City Council for consideration, depending on the level of

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approval required to proceed. Within ten (10) business days of

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making this recommendation, Burbank shall inform Waterkeeper via

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e-mail of staff’s recommendation. The Parties acknowledge that a

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Burbank staff recommendation does not constitute a commitment to

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implement that alternative and that the selection of any alternative

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identified in the Feasibility Study would be conditioned on prior

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compliance with the California Environmental Quality Act (CEQA)

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and any public review and hearing processes, and would be subject to

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all other applicable governmental approvals.

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11.

Storm Water Sampling and Monitoring

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a.

Burbank shall collect and analyze storm water discharges from the

Facility from each of the four (4) sampling locations as depicted on Exhibit A from at
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least four (4) qualified storm events (“QSE”) pursuant to the Storm Water Permit.1
Burbank shall start this practice as of the Effective Date with respect to sample points

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2, 3, and 4; provided, however, to the extent that Burbank has taken such samples

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prior to the Effective Date, Burbank shall provide copies of such results as provided

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for in sub-clause (f) below. Burbank shall start this practice as soon as the structural

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improvement to sample point 1, described above in 9.b.i, is complete.

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b.

For internal sampling locations 1 – 3, as identified on Exhibit A,

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Burbank shall collect storm water samples of water after it exits the filter that is

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installed in each drain inlet.

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c.

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For internal sample location 4, Burbank shall collect storm water

samples of water from the bottom of the pipe such that it represents the confluence of
all upstream drain inlets.

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d.

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Burbank shall analyze all storm water samples collected at the

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Facility for, at a minimum, the following parameters: pH, total suspended solids, oil &

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grease, zinc, copper, and iron.

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e.

Burbank shall use a state certified laboratory to conduct all

analysis pursuant to this Consent Decree. Burbank shall select analytical test methods

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from the list provided in Table 2 of the Permit.
f.

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Burbank shall provide Waterkeeper with the complete laboratory

results, including a copy of the Quality Assurance/Quality Control and the laboratory
report, for all storm water samples collected at the Facility sample locations 1-4 as

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The “reporting year” runs from July 1 to June 30.

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depicted on Exhibit A at the same that Burbank posts results to SMARTS.

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12. Employee Training. Within sixty (60) days of the Effective Date,

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Burbank shall conduct employee training for employees/workers who have

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responsibility for the implementation of any new storm water management

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measures that are contained in this Consent Decree.

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13.

Amendment of SWPPP. Within thirty (30) days of the Effective Date,

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Burbank shall amend the Facility’s SWPPP to incorporate all changes, improvements,
and BMPs set forth in or resulting from this Consent Decree that have been
implemented. Burbank shall ensure that all maps, tables, and text comply with the
requirements of the Permit. Burbank shall revise the SWPPP to describe all structural

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and non-structural BMPs, details of the measures to be installed, and discuss why

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such BMPs should be effective in addressing the pollutant sources at the Facility. A

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copy of the amended SWPPP shall be provided to Waterkeeper within ten (10)

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business days of completion. Burbank shall ensure that the SWPPP indicates that

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there will always be a member of the Pollutant Prevention Team or an operator trained

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by the Pollutant Prevention Team at the Facility that can collect storm water

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discharges when the Facility is operational.2 Waterkeeper shall provide written

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comments, if any, to Burbank within thirty (30) days of receipt of the amended

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SWPPP. Burbank shall incorporate Waterkeeper’s comments into the SWPPP or shall

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justify in writing why any comment is not incorporated within thirty (30) calendar
days of receiving Waterkeeper’s comments.

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The Facility operates twenty-four (24) hours a day, seven (7) days a week.

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14.

Additional and Ongoing Revisions to SWPPP. Burbank shall revise

the SWPPP, including the Monitoring Implementation Plan (“MIP”), pursuant to the
Storm Water Permit, including if there are any changes in Burbank’s Facility’s

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operations that may possibly affect the quality of storm water discharges, including

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but not limited to changes to storm water discharge point(s)/sample location(s) or

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changes or additions to the BMPs resulting from an Action Plan, or the reduction of

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discharge points. A copy of the amended SWPPP shall be provided to Waterkeeper

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within ten (10) business days of completion. Waterkeeper shall provide written

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comments, if any, to Burbank within thirty (30) days of receipt of the amended

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SWPPP. Burbank shall incorporate Waterkeeper’s comments into the SWPPP or shall

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justify in writing why any comment is not incorporated within thirty (30) calendar

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days of receiving Waterkeeper’s comments.

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15.

Reports. During the term of this Consent Decree, Burbank shall provide

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Waterkeeper with notice of all documents submitted to the Regional Board or State

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Board via the State Board’s Storm Water Multiple Application and Report Tracking

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System (“SMARTS”), by providing notice to Waterkeeper via e-mail that said

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documents have been uploaded to SMARTS within seven (7) business days of

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uploading said results. If a document (e.g., an e-mail) is submitted to the Regional

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Board and/or State Board concerning storm water quality at the Facility but it is not

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uploaded to SMARTS, a copy of such document shall be provided to Waterkeeper via

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e-mail within five (5) business days of submission to said agency. Burbank need not

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provide documents related to administrative compliance with the Permit or technical
assistance related to using SMARTS.
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16.

Annual Site Inspections. Up to three Waterkeeper representatives or

consultants (including an attorney), may conduct one inspection (“Site Inspection”) at

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the Facility each year that this Consent Decree is in effect. Site Inspections shall

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occur between 8:00 a.m. and 5:00 p.m., Monday through Friday (excluding holidays),

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and Waterkeeper shall provide Defendant with as much notice as possible, but at least

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five (5) business days’ written notice prior to a Site Inspection and two (2) business

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days’ notice prior to a Site Inspection during wet weather. Burbank reserves the right

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to deny access to the Facility due to safety, security, and/or maintenance activities in

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its sole discretion. Each Waterkeeper representative must pass a security screening

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prior to admission to the Facility. Waterkeeper will provide any information required

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by Burbank to perform a security clearance review in a timely fashion. To facilitate

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this process, Waterkeeper may provide this information and obtain security clearance

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at any point during the term of this Consent Decree Burbank retains sole discretion

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whether to admit a Waterkeeper representative. Notice will be provided in accordance

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with Paragraph 45. During the Site Inspection, Burbank shall allow Waterkeeper

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and/or its representatives access to the Facility’s SWPPP, MIP, storm water

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monitoring records, and non-privileged reports and data related to storm water

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monitoring at the Facility. If the inspection occurs during a QSE, Waterkeeper may

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request that Burbank collect a sample of storm water discharge from the Facility’s

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designated sampling locations referenced in its SWPPP. Burbank shall collect the

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sample and provide a split sample to Waterkeeper. Waterkeeper’s representative(s)

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may observe the split sample being collected by Burbank’s representative.
Waterkeeper shall be permitted to take photographs during any Site Inspection
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pursuant to this paragraph, consistent with Burbank’s security procedures. If
Waterkeeper takes photographs, Waterkeeper shall provide Burbank with the

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photographs within fourteen (14) calendar days after the Site Inspection. Waterkeeper

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agrees that all individuals who will participate in a Site Inspection will execute the

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waiver and release provided by Burbank prior to the Site Inspection.

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17.

Early Termination. If Burbank meets the requirements for Discharges

claiming “No Discharge” through the Notice of Non-Applicability (“NONA”) and
files a Notice of Termination (“NOT”) under the Permit prior to the termination of

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this Consent Decree, Burbank shall provide Waterkeeper with a copy of the NONA

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and NOT, concurrent with their submittal to the Regional Board. Within ten (10)

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business days of the Regional Board’s approval of the NOT, Burbank shall provide

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written notification to Waterkeeper of the approval and remit all outstanding

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payments under the Consent Decree related to the Facility to Waterkeeper, if any.

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Within ten (10) business days of Waterkeeper’s receipt of such notification, the

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Consent Decree will terminate as to the Facility.

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III.

MEET AND CONFER ABOUT SAMPLING RESULTS

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Action Plan Regarding Exceedance of Numeric Limits.

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a.

If the Facility’s storm water sampling conducted in accordance

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with Paragraphs 11.b and 11.c, above, during the term of this Consent Decree show

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two or more exceedances of the numeric limit in Table 1 for a particular parameter at

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either the sample point 4 or the average results from sample points 1-3 in a single

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reporting year, then Burbank agrees to take responsive actions to improve its storm
water management practices, including re-evaluating its structural and non-structural
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BMPs and implementing additional BMPs aimed at reducing levels observed in storm
water samples.

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Table 1. Numeric Limits.

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Contaminant

Numeric Limit

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Total Suspended Solids

100 mg/L

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pH

6.0-9.0 s.u.

Oil and Grease

15 mg/L

Iron

1.0 mg/L

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Zinc

0.120 mg/L3

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Copper

0.013 mg/L

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b.

In furtherance of that objective, Burbank shall prepare a written

statement (“Action Plan”) that includes the following:
i. A discussion of any exceedance or exceedances of the numeric

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limitations;

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Several of the Numeric Limits drawn from the California Toxics Rule are hardness
dependent (shown in bold). The California Toxics Rule-based limits assume hardness
of 100 mg/l CaCO3, however, Burbank may adjust the limit using the methods
provided in Appendix J of the 2008 EPA Multi-Sector General Permit based on
receiving water sampling hardness data. Burbank shall take a wet weather sample
from the Burbank Western Channel downstream of Burbank’s point of discharge
twice per storm water year to establish the hardness value for that year. Burbank shall
sample for hardness once during the first half of the storm water year (July –
December) and again during the second half of the storm water year (January – June).
Burbank shall use the hardness value from the first half of the storm water year for all
samples taken between July and December, and the second hardness value for
samples taken between January and June. As required by Appendix J of the 2008
EPA Multi-Sector General Permit, hardness will be sampled and analyzed using
approved methods as described in 40 C.F.R. Part 136.
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ii. An explanation of the possible cause(s) and/or source(s) of any
exceedance; and

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iii. Identification of responsive BMPs that will be taken to improve

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the Facility’s storm water management practices to further

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reduce the possibility of future exceedance(s). Such BMPs that

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Burbank shall implement, must include, at least one of the

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following: additional or replacement storm drain filter inserts,

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downspout filters for roof drains, infiltration of all or some

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portion of storm water discharges from the Facility, retention of

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storm water discharges from the Facility, active storm water

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treatment of all or some portion of storm water discharges from

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the Facility, or another comparable advanced BMP. To the

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extent that one of the previous BMPs has been implemented

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subsequent to a reporting year and there are exceedances of the

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numeric limits in Table 1 during the following reporting year,

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then Burbank shall be required to identify, at a minimum

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another of the aforementioned BMPs in its subsequent Action

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Plan and propose a plan for implementation. Burbank shall

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retain sole discretion as to how to achieve Table 1 numeric

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action levels in storm water samples at the Facility, so long as

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the Action Plan is reasonably targeted to reduce the pollutant(s)

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at issue to further reduce the possibility of future exceedance(s)
of the Table 1 numeric limits.
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iv. No Action Plan shall be required during the 2017-2018 storm
water year if Burbank decides to implement an alternative from

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the Feasibility Study described in Paragraph 10.
c. Should an Action Plan be required, such Action Plan shall be e-mailed

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or sent via first class mail to Waterkeeper not later than July 30th

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during each year that this Consent Decree is in effect, unless an

8

Action Plan is triggered less than ninety (90) days from July 30, in

9
10

which case the Action Plan shall be due ninety (90) days from the

11

point where the Action Plan requirement was triggered. Burbank shall

12

also be entitled to request an extension of time to prepare the Action

13

Plan, which Waterkeeper shall not unreasonably refuse.

14

d. In the Action Plan, Burbank shall provide a time schedule to

15
16

implement any new BMPs. Burbank shall exercise reasonable

17

diligence to implement any new BMPs pursuant to an Action Plan by

18

the November 1 subsequent to the due date of each respective Action

19

Plan. Burbank shall exercise diligence in planning, permitting, and

20

implementing any new BMPs.

21
22

e. No Action Plan shall be required for an exceedance of a Table 1

23

numeric limit if Burbank is in the process of implementing a

24

previously submitted Action Plan.

25

f. The Parties acknowledge that the State Board is currently considering

26
27
28

amendments to the Permit that may define Permit compliance options
through on-site and off-site storm water capture that are not currently
[PROPOSED] CONSENT DECREE

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1

set forth in the Permit. To the extent that the State Board amends the

2

Permit during the term of this Consent Decree, the Parties agree to

3

meet-and-confer to determine if on-site and/or off-site storm water

4
5

capture compliance options added to the Permit may be utilized to

6

demonstrate compliance with Paragraph 18 of this Consent Decree.

7
8
9
10

19.

Action Plan Review. Upon receipt of the Action Plan, Waterkeeper

shall have thirty (30) days to provide Burbank with written comments. Within thirty
(30) days of receipt of Waterkeeper’s Action Plan comments, Burbank shall revise its

11

Action Plan to reflect the changes and /or additional BMPs as set forth in the Action

12

Plan or shall justify in writing why any comment is not incorporated. If requested by

13

Waterkeeper within thirty (30) days of receipt of such Action Plan, Waterkeeper and

14
15
16

Burbank shall meet and confer to discuss the contents of the Action Plan and the
adequacy of proposed BMPs to improve the quality of the Facility’s storm water to

17

levels at or below the numeric limits. If requested by Waterkeeper within thirty (30)

18

days of receipt of such Action Plan, Waterkeeper and Burbank shall meet and confer

19

and conduct a site inspection within sixty (60) days after the due date of the Action

20

Plan to discuss the contents of the Action Plan and the adequacy of proposed

21
22

measures to improve the quality of the Facility’s storm water to levels at or below the

23

numeric limits. This site visit shall count against Waterkeeper’s allotted site visit per

24

year pursuant to Paragraph 16.

25

20.

Any concurrence or failure to object by Waterkeeper with regard to the

26
27
28

reasonableness of any additional measures required by this Consent Decree or
implemented by Burbank shall not be deemed to be an admission of the adequacy of
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Case No. 2:17-cv-00822-RAO

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1
2

such measures should they fail to bring the Facility’s storm water discharges into
compliance with applicable water quality criteria or the BAT/BCT requirements set

3
4

forth in the Permit.

5

IV.

MITIGATION, FEES AND COSTS, AND OVERSIGHT

6

21.

Mitigation Payment(s). In recognition of the good faith efforts by

7
8

Burbank to comply with all aspects of the Permit and the Clean Water Act at the
Facility, and in lieu of payment by Burbank of any penalties, which may have been

9
10

assessed in this action if it had been adjudicated adverse to Burbank, the Parties agree

11

that Burbank will pay the sum of forty thousand dollars ($40,000.00) to the Trust for

12

Public Land for the sole purpose of providing funding to green infrastructure projects

13

in the Los Angeles River watershed (see, e.g.,

14
15
16

https://www.tpl.org/node/79108#sm.0000kmuaib1baocrfpws6jrl29zql) (the
“Mitigation Payment”). Payment shall be mailed via certified mail or overnight

17

delivery to: Trust for Public Land, Attn: Tori Kjer, 135 West Green Street, 2nd Floor,

18

Pasadena, CA 91105. Payment shall be made by Burbank to the Trust for Public

19

Land within thirty (30) calendar days of the Effective Date. Burbank shall copy

20

Waterkeeper with any correspondence and a copy of the check sent to the Trust for

21
22

Public Land. The Trust for Public Land shall provide notice to the Parties within

23

thirty (30) days of when the funds are utilized by the Trust for Public Land, setting

24

forth the recipient and purpose of the funds.

25

If, pursuant to the Feasibility Study described above in Paragraph 10, Burbank

26
27
28

selects any alternative that does not retain, treat, or infiltrate, or a combination of the
above, storm water discharges from the Facility for equal to or greater than a 90th
[PROPOSED] CONSENT DECREE

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1

percentile storm event, then Burbank shall pay an additional sum (the “Supplemental

2

Mitigation Payment”) to the Trust for Public Land (in the manner as specified above)

3
4

as follows:
a. Thirty thousand dollars ($30,000.00) if Burbank selects any alternative

5
6

that retains, treats, or infiltrates, or a combination of the above, storm

7

water discharges from the Facility for equal to or greater than a 85th

8

percentile, 24 hour storm event but less than a 90th percentile, 24 hour

9

storm event; or

10

b. Sixty thousand dollars ($60,000.00) if Burbank selects any alternative

11
12

that does not retain, treat, or infiltrate, or a combination of the above,

13

storm water discharges from the Facility for equal to or greater than a

14

85th percentile, 24 hour storm event.

15
16

Any alternative selected shall comply with the Design Storm Standards for

17

Treatment Control BMPs, as defined by Section X.H.6 of the Permit, and shall be

18

sized to accommodate the intended storm event size of the selected alternative (i.e.,

19

85th percentile, 90th percentile, etc.).

20

Burbank’s obligations under this Paragraph 21 shall not terminate until it makes

21
22

the Mitigation Payment and either (1) provides notice to Waterkeeper of

23

commencement of construction of the selected alternative, or (2) pays the

24

Supplemental Mitigation Payment to the Trust for Public Lands in the manner

25

described above.

26
27
28

22.

Reimbursement of Fees and Costs. Burbank shall reimburse

Waterkeeper in the amount of Eighty-five thousand dollars ($85,000.00) to help
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1
2
3
4

defray Waterkeeper’s reasonable investigation, expert, and attorneys’ fees and costs,
and all other reasonable costs incurred as a result of investigating the activities at the
Facility related to this Consent Decree, bringing these matters to Burbank’s attention,

5

and negotiating a resolution of this action in the public interest. Burbank shall tender

6

said payment, payable to “Los Angeles Waterkeeper”, within thirty (30) days of the

7

Effective Date.

8

23.

Compliance Monitoring Funds. As reimbursement for Waterkeeper’s

9
10

future fees and costs that will be incurred in order for Waterkeeper to monitor

11

Burbank’s compliance with this Consent Decree and to effectively meet and confer

12

and evaluate storm water monitoring results for the Facility, Burbank agrees to pay

13

Waterkeeper the amount of twenty thousand dollars ($20,000) for its costs to be

14

incurred in overseeing the implementation of this Consent Decree. Burbank shall

15
16

make payment to Waterkeeper within thirty (30) calendar days of the Effective Date.

17

Payment by Burbank to Waterkeeper shall be made in the form of a single check

18

payable to “Los Angeles Waterkeeper.”

19
20

24.

Stipulated Payment for Missed Deadlines. Burbank shall make a

stipulated payment of Six Hundred Dollars ($600.00) for each missed deadline

21
22

(defined as the due date plus three (3) business days) included in this Consent Decree,

23

not excused by Force Majeure. Payments for a missed deadline shall be used for the

24

sole purpose of providing funding to green infrastructure projects in the Los Angeles

25

River watershed. The Stipulated Payment shall be paid to the Trust for Public Land,

26
27
28

and mailed via certified mail or overnight delivery to: Trust for Public Land, Attn:
Tori Kjer, 135 West Green Street, 2nd Floor, Pasadena, CA 91105. Burbank shall
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

provide Waterkeeper with a copy of such payment at the time it is made. Burbank
shall make the Stipulated Payment within thirty (30) days of a missed deadline, unless

3
4
5

Waterkeeper agreed in writing to an extension of that deadline. Burbank shall provide
Waterkeeper with a copy of such payment at the time it is made.

6

V.

COMMITMENTS OF WATERKEEPER

7

25.

Submission of Consent Decree to DOJ. Within three (3) business days

8
9
10

of receiving all of the Parties’ signatures to this Consent Decree, Waterkeeper shall
submit this Consent Decree to the U.S. Department of Justice (“DOJ”) and EPA for

11

agency review consistent with 40 C.F.R. §135.5. The agency review period expires

12

forty-five (45) calendar days after receipt by the DOJ, evidenced by correspondence

13

from DOJ establishing the review period. In the event DOJ comments negatively on

14

the provisions of this Consent Decree, the Parties agree to meet and confer to attempt

15
16

to resolve the issues raised by DOJ.

17

VI.

WAIVER, RELEASES AND COVENANTS NOT TO SUE

18

26.

Releases.

19
20

In consideration of the above, and except as otherwise

provided by this Consent Decree, the Parties hereby forever and fully release each
other and their respective parents, affiliates, subsidiaries, divisions, insurers,

21
22

successors, assigns, and current and former employees, attorneys, officers, directors

23

and agents from any and all claims and demands of any kind, nature, or description

24

whatsoever, and from any and all liabilities, damages, injuries, actions or causes of

25
26
27
28

action, either at law or in equity, which the Parties have against each other arising
from Waterkeeper’s allegations and claims as set forth in the 60-Day Notice Letter
and Complaint for storm water pollution discharges at the Facility up to and including
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

the Termination Date of this Consent Decree.
27.

Waiver.

The Parties acknowledge that they are familiar with section

3
4
5
6
7

1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his
or her settlement with the debtor.

8

The Parties hereby waive and relinquish any rights or benefits they may have under

9

California Civil Code section 1542 with respect to any other claims against each other

10

arising from, or related to, the allegations and claims as set forth in the 60-Day Notice

11

Letter and Complaint and allegations and claims that could have been brought under

12
13
14
15
16
17

Section 505(a) of the Act, 33 U.S.C. § 1365(a) for storm water pollution discharges at
the Facility, up to and including the Termination Date of this Consent Decree.
28.

No Admission. The Parties enter into this Consent Decree for the

purpose of avoiding prolonged and costly litigation. Nothing in this Consent Decree
shall be construed as, and Burbank expressly does not intend to imply, any admission

18
19

as to any fact, finding, issue of law, or violation of law, nor shall compliance with this

20

Consent Decree constitute or be construed as an admission by Burbank of any fact,

21

finding, conclusion, issue of law, or violation of law. However, this Paragraph shall

22

not diminish or otherwise affect the obligation, responsibilities, and duties of the

23
24
25
26
27

Parties under this Consent Decree.
VII. BREACH OF CONSENT DECREE AND DISPUTE RESOLUTION
PROCEDURES
29.

Dispute Resolution. If a dispute under this Consent Decree arises, or

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[PROPOSED] CONSENT DECREE

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2

either Party believes that a breach of this Consent Decree has occurred, the Parties
shall schedule a meet and confer within ten (10) business days of receiving written

3
4

notification from the other Party of a request for a meeting to determine whether a

5

violation of this Consent Decree has occurred and to develop a mutually agreed upon

6

plan, including implementation dates, to resolve the dispute. In the event that such

7

disputes cannot be resolved through this meet and confer process, the Parties agree to

8

request a settlement meeting before the Magistrate Judge assigned to this action. The

9
10

Parties agree to file any waivers necessary for the Magistrate Judge to preside over

11

any settlement conference pursuant to this Paragraph. In the event that the Parties

12

cannot resolve the dispute by the conclusion of the settlement meeting with the

13

Magistrate Judge, the Parties agree to submit the dispute via motion to the District

14
15
16

Court. In resolving any dispute arising from this Consent Decree, the Court shall have
discretion to award attorneys’ fees and costs to either party. The relevant provisions

17

of the then-applicable Clean Water Act and Rule 11 of the Federal Rules of Civil

18

Procedure shall govern the allocation of fees and costs in connection with the

19

resolution of any disputes before the Court. The Court shall award relief limited to

20

compliance orders and awards of attorneys’ fees and costs, subject to proof.

21
22

30.

Force Majeure. Burbank will notify Waterkeeper if timely

23

implementation of Burbank’s respective duties under this Consent Decree becomes

24

impossible due to circumstances beyond the control of Burbank or its agents, and

25

which could not have been reasonably foreseen and prevented by Burbank’s exercise

26
27
28

of due diligence. Any delays due to Burbank’s failure to make timely and bona fide
applications and to exercise diligent efforts to comply with the terms in this Consent
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

Decree will not, in any event, be considered to be circumstances beyond Burbank’s
control.

3
4

a.

If Burbank claims impossibility, it will notify Waterkeeper in

5

writing within twenty (20) days of the date that Burbank discovers the event or

6

circumstance that caused or would cause non-performance with the terms of this

7

Consent Decree, or the date Burbank should have known of the event or circumstance

8

by the exercise of due diligence. The notice must describe the reason for the non-

9
10

performance and specifically refer to this section of this Consent Decree. The notice

11

must describe the anticipated length of time the non-performance may persist, the

12

cause or causes of the non-performance, the measures taken or to be taken by Burbank

13

to prevent or minimize the non-performance, the schedule by which the measures will

14

be implemented, and the anticipated date of compliance. Burbank will adopt all

15
16
17

reasonable measures to avoid and minimize such non-performance.
b.

The Settling Parties will meet and confer in good faith concerning

18

the non-performance and, if the Settling Parties concur that performance was or is

19

impossible, despite the timely good faith efforts of Burbank, due to circumstances

20

beyond the control of Burbank that could not have been reasonably foreseen and

21
22
23
24
25

prevented by the exercise of due diligence by Burbank, new performance deadlines
will be established.
c.

If Waterkeeper disagrees with Burbank’s notice, or in the event

that the Settling Parties cannot timely agree on the terms of new performance

26
27
28

deadlines or requirements, either Settling Party may invoke the dispute resolution
process described in Paragraph 29 of this Consent Decree. In such proceeding,
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

Burbank will bear the burden of proving that any delay in performance of any
requirement of this Consent Decree was caused or will be caused by force majeure

3
4
5

and the extent of any delay attributable to such circumstances.
31.

If circumstances outside of Burbank or its agents’ control result in

6

changes to the Burbank’s budget that delay implementation of Burbank’s duties

7

pursuant to Paragraphs 9, 10, and 18 of this Consent Decree, the Term of the Consent

8

Decree shall extend day-for-day until the completion of such delayed duties.

9
10
11
12
13
14

VIII. MISCELLANEOUS PROVISIONS
32.

Effective Date. The Effective Date of this Consent Decree shall be upon

the subsequent entry of the Consent Decree by the Court.
33.

Term of Consent Decree. Subject to Paragraphs 21, 30, and 31, above,

this Consent Decree shall terminate on June 30, 2020 or through the conclusion of

15
16

any proceeding to enforce this Consent Decree initiated prior to June 30, 2020, or

17

until the completion of any payment or affirmative duty required by this Consent

18

Decree, whichever is the later occurrence.

19
20

34.

Execution in Counterparts. The Consent Decree may be executed in

one or more counterparts which, taken together, shall be deemed to constitute one

21
22
23
24
25

and the same document.
35.

Facsimile Signatures. The Parties’ signatures to this Consent Decree

transmitted by facsimile or electronic mail transmission shall be deemed binding.
36.

Construction. The language in all parts of this Consent Decree, unless

26
27
28

otherwise stated, shall be construed according to its plain and ordinary meaning. The
captions and paragraph headings used in this Consent Decree are for reference only
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

and shall not affect the construction of this Consent Decree.
37.

Authority to Sign. The undersigned are authorized to execute this

3
4
5
6
7
8

Consent Decree on behalf of their respective parties and have read, understood and
agreed to all of the terms and conditions of this Consent Decree.
38.

Integrated Consent Decree. All Consent Decrees, covenants,

representations and warranties, express or implied, oral or written, of the Parties
concerning the subject matter of this Consent Decree are contained herein.

9
10

39.

Severability. In the event that any of the provisions of this Consent

11

Decree are held by a court to be unenforceable, the validity of the enforceable

12

provisions shall not be adversely affected.

13
14

40.

Choice of Law. This Consent Decree shall be governed by the laws of

the United States, and where applicable, the laws of the State of California.

15
16

41.

Full Settlement. This Consent Decree constitutes a full and final

17

settlement of this matter. It is expressly understood and agreed that the Consent

18

Decree has been freely and voluntarily entered into by the Parties with and upon

19

advice of counsel.

20

42.

Negotiated Consent Decree. The Parties have negotiated this Consent

21
22

Decree, and agree that it shall not be construed against the party preparing it, but

23

shall be construed as if the Parties jointly prepared this Consent Decree, and any

24

uncertainty and ambiguity shall not be interpreted against any one party.

25

43.

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

26
27
28

provisions herein, may not be changed, waived, or discharged unless by a written
instrument signed by the Parties.
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

44.

Assignment. Subject only to the express restrictions contained in this

Consent Decree, all of the rights, duties and obligations contained in this Consent

3
4
5
6
7
8

Decree shall inure to the benefit of and be binding upon the Parties, and their
successors and assigns.
45.

Mailing of Documents to Waterkeeper/Notices/Correspondence.

Any notices or documents required or provided for by this Consent Decree or related
thereto that are to be provided to Waterkeeper pursuant to this Consent Decree shall

9
10

be, to the extent feasible, sent via electronic mail transmission to the e-mail addresses

11

listed below or, if electronic mail transmission is not feasible, via certified U.S. Mail

12

with return receipt, or by hand delivery to the following address:

13

Los Angeles Waterkeeper:

14
15
16
17

Melissa Kelly
Los Angeles Waterkeeper
120 Broadway, Suite 105
Santa Monica, CA 90401
E-mail: [e-mail]

18
19
20
21
22
23
24

With copies sent to:
Douglas Chermak
Lozeau Drury LLP
410 12th Street, Suite 250
Oakland, CA 94607
E-mail: [e-mail]

25
26
27

Unless requested otherwise by Burbank, any notices or documents required or
provided for by this Consent Decree or related thereto that are to be provided to

28
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

Burbank pursuant to this Consent Decree shall, to the extent feasible, be provided by
electronic mail transmission to the e-mail addresses listed below, or, if electronic mail

3
4
5
6
7
8
9
10

transmission is not feasible, by certified U.S. Mail with return receipt, or by hand
delivery to the addresses below:
Burbank:
Jorge Somoano, General Manager
Burbank Water and Power
P.O. Box 631
Burbank, CA 91503-0631
Email: [e-mail]

11
12
13
14

Claudia Fierro, Environmental and Safety Manager
Burbank Water and Power
P.O. Box 631
Burbank, CA 91503-0631
Email: [e-mail]

15
16

With copies sent to:

17

Amelia Ann Albano, City Attorney
275 E. Olive Avenue
Burbank, CA 91502
Email: [e-mail]

18
19
20
21
22
23
24
25
26
27

Chris Chwang, Senior Deputy City Attorney
275 E. Olive Avenue
Burbank, CA 91502
Email: [e-mail]
Ryan Waterman
Brownstein Hyatt Farber Schreck, LLP
225 Broadway, Suite 1670
San Diego, CA 92101
E-mail: [e-mail]

28
[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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1
2

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

3
4

mail, or one (1) business day after deposited with an overnight mail/delivery service.

5

Any changes of address or addressees shall be communicated in the manner described

6

above for giving notices.

7
8

46.

If for any reason the DOJ or the Court should decline to approve this

Consent Decree in the form presented, the Parties shall use their best efforts to work

9
10

together to modify the Consent Decree within thirty (30) days so that it is acceptable

11

to the DOJ or the Court. If the Parties are unable to modify this Consent Decree in a

12

mutually acceptable manner that is also acceptable to the Court, this Consent Decree

13

shall immediately be null and void as well as inadmissible as a settlement

14

communication under Federal Rule of Evidence 408 and California Evidence Code

15
16
17

section 1152.
47.

The settling Parties hereto enter into this Consent Decree, Order and

18

Final Judgment and submit it to the Court for its approval and entry as a final

19

judgment.

20
21
22

[SIGNATURES ON FOLLOWING PAGE]

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24
25
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[PROPOSED] CONSENT DECREE

Case No. 2:17-cv-00822-RAO

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May 22, 2018

EXHIBIT A

1

NOTES:
M is the Magnolia Street Catch Basin
O is the Outfall Building
Sample 4 must be taken from the bottom of the pipe

Sampling Locations

M

MPP Hydrogen Fill Station

2
3

MPP Hydrogen Storage Station

O

4