Luke Delgadillo Garcia v. Miller Castings, Inc.

Filing 35

CONSENT DECREE by Judge Andre Birotte Jr.: The Consent Decree is entered into by and between Luke Delgadillo Garcia and Miller Castings, Inc. (the "Settling Parties"). It is the express purpose of the Settling Parties entering into this Con sent Decree to further the objectives set forth in the Clean Water Act, 33 U.S.C. Sections 1251, et seq., and to resolve those issues alleged by Plaintiff in their Complaint. In light of these objectives and as set forth fully in this document, Mille r Castings agrees to comply with the provisions of this Consent Decree and to comply with the requirements of the IGP and all applicable provisions of the Clean Water Act. To remediate the alleged environmental harms resulting from noncompliance with the 1997 Storm Water Permit and 2015 Storm Water Permit alleged in the Complaint, Miller Castings agrees to make a payment of $5,000 to University of California San Diego Extension Services to fund tuition grants for owners and employees of sma ll businesses affected by the stormwater permit. Miller Castings shall pay a total of $40,000 to "Brodsky & Smith, LLC" for their investigation fees and costs, expert/consultant fees and costs, and reasonable attorneys' fees incur red as a result of investigating and preparing the lawsuit and negotiating this Consent Decree. This Consent Decree contains the sole and entire agreement and understand of the Parties with respect to the entire subject matter hereof, and any and all discussions, negotiations, commitments and understandings related thereto. See document re Pollution Control Requirements, Monitoring and Reporting, Dispute Resolution, Mutual Release of Liability, etc. and other details. ( MD JS-6. Case Terminated ) (gk)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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LUKE DELGADILLO GARCIA

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Civil Case No.: 2:17-CV-07408-AB (AGRx)

Plaintiff,
[PROPOSED] CONSENT DECREE

vs.
MILLER CASTINGS, INC.;
Defendant,

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

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CONSENT DECREE

Civil Case No.: 2:17-cv-07408

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CONSENT DECREE

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The following Consent Decree is entered into by and between Luke Delgadillo Garcia (“Plaintiff”)

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and Miller Castings, Inc. (“Miller Castings”). The entities entering into this Consent Decree are each an

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individual “Settling Party” and collectively the “Settling Parties.”

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WHEREAS, Plaintiff is a citizen of the State of California.

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WHEREAS, Plaintiff is concerned with the environmental health of the San Gabriel River

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Watershed, and uses and enjoy the waters of the San Gabriel River, its inflows, outflows and other waters

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of the San Gabriel Watershed;

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WHEREAS, Miller Castings is the owner and operator of two nickel, cobalt steel and aluminum

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castings facilities located at 12251 Coast Drive and 2503 Pacific Park Drive in Whittier, California.,

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Hereinafter, the facility located at 12251 Coast Drive shall be referred to herein as the “Coast Drive

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Facility” and the facility at 2503 Pacific Park Drive shall be referred to herein as the “Pacific Park

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Facility.” The Coast Drive Facility and the Pacific Park Facility shall be collectively referred to herein by

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the Settling Parties as the “Facilities”;

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WHEREAS, Plaintiff’s use and enjoyment of these waters are negatively affected by the pollution
allegedly caused by the operations at the Facilities;

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WHEREAS, Plaintiff acts in the interest of the general public to prevent pollution in these

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waterway, for the benefit of their ecosystems, and for the benefits of all individuals and communities who

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use these waterways for various recreational, educational, and spiritual purposes;

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WHEREAS, the discharges from the Facilities are regulated by the National Pollutant Discharge

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

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Water Quality Order No. 92-12-DWQ, as amended by Order No. 97-03-DWQ (“1997 Storm Water

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Permit”), and as amended by Order No. 2014-0057-DWQ (“2015 Storm Water Permit”) (collectively, the

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“Industrial General Permit” or the “IGP”), and the Federal Water Pollution Control Act, 33 U.S.C. §§

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1251 et seq. (“Clean Water Act” or “CWA”);

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WHEREAS, on August 19, 2016 Plaintiff sent Miller Castings, the United States Environmental

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Protection Agency (“EPA”), EPA Region IX, the State Water Resources Control Board (“State Board”),

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and the Los Angeles Water Quality Control Board (“Regional Board”) a notice of intent to file suit
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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(“Notice Letter”) under Sections 505(a) and (b) of the Clean Water Act, 33 U.S.C. §§ 1365(a) and (b).

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

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violations of the 1997 Storm Water Permit and the 2015 Storm Water Permit at the Miller Castings

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Facilities1;

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WHEREAS, the parties engaged in extensive negotiations to reach an agreement in principle

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since the fall of 2016 and agreed that the statute of limitations would be tolled until November 17, 2017;

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WHEREAS, on October 10, 2017 Plaintiff filed a complaint against Miller Castings in the United

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States District Court, Central District of California (Case No. 2:17-cv-07408), alleging violations of

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

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the Miller Castings Facilities (“Complaint”);

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WHEREAS, Plaintiff alleges Miller Castings to be in violation of the substantive and procedural

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requirements of the 1997 Storm Water Permit, the 2015 Storm Water Permit, and the Clean Water Act

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with respect to the Miller Castings Facilities;

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WHEREAS, Miller Castings denies all allegations in the Notice Letter and Complaint relating to
the Miller Castings Facilities;

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WHEREAS, Plaintiff and Miller Castings have agreed that it is in the Settling Parties’ mutual

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interest to enter into a Consent Decree setting forth terms and conditions appropriate to resolving the

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allegations set forth in the Complaint without further proceedings; and

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WHEREAS, all actions taken by Miller Castings 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 SETTLING PARTIES

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AND ORDERED AND DECREED BY THE COURT AS FOLLOWS:

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1.

The Court has jurisdiction over the subject matter of this action pursuant to Section 505(a)

of the Clean Water Act, 33 U.S.C. § 1365(a);

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For purposes of this Consent Decree, the NPDES permit and any amendments thereto in effect
at the time of Miller Castings’ required compliance with the terms of this Consent Decree shall be
referred to as “the Industrial General Permit” or “IGP”.
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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2.

Venue is appropriate in the Central District of California pursuant to Section 505(c)(1) of

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the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Miller Castings Facilities are located within this

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District;

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3.

The Complaint states claims upon which relief may be granted pursuant to Section

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

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4.

Plaintiff has standing to bring this action;

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5.

The Court shall retain jurisdiction over this matter for purposes of enforcing the terms of

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this Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Court

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to resolve any motion to enforce this 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 Decree to further the

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

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by Plaintiff in their Complaint. In light of these objectives and as set forth fully below, Miller Castings

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

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IGP and all applicable provisions of the Clean Water Act. Specifically, Miller Castings agrees to comply

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with Receiving Water Limitation VI.A. in the IGP which requires that Miller Castings “shall ensure that

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industrial storm water discharges and authorized Non-Storm Water Discharges (“NSWDs”) do not cause

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or contribute to the exceedance of any applicable water quality standards in any affected receiving water,”

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and Effluent Limitation V.A. of the 2015 Storm Water Permit.

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implement BMPs necessary to achieve compliance with the IGP.

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II.

AGENCY REVIEW AND TERM OF CONSENT DECREE

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A.

Agency Approval. Plaintiff shall submit this Consent Decree to the United States Department of

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Justice and the EPA (collectively “Federal Agencies”) within three (3) days of the final signature of the

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

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forty-five (45) days after receipt by both agencies, as evidenced by written acknowledgement of receipt

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by the agencies or the certified return receipts, copies of which shall be provided to Miller Castings if

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requested. In the event that the Federal Agencies object to entry of this Consent Decree, the Settling Parties

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agree to meet and confer to attempt to resolve the issue(s) raised by the Federal Agencies within a
CONSENT DECREE

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Miller Castings shall develop and

Civil Case No.: 2:17-cv-07408

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reasonable amount of time.

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B.

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Court enters this Consent Decree.

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C.

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(“Termination Date”), unless there is a prior ongoing, unresolved dispute regarding Miller Castings’

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compliance with this Consent Decree.

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D.

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to forty-five (45) days prior to the Termination Date. The inspection shall be conducted according to the

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rules applicable to annual site inspections described below.

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

Termination Date. This Consent Decree shall terminate two (2) years after the Effective Date

Inspection of Facilities. Plaintiff may conduct an inspection of the Miller Castings’ Facilities up

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III.

POLLUTION CONTROL REQUIREMENTS

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A.

Storm Water Pollution Reduction Measures

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1.

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designed and operated to manage storm water discharges, through full compliance with the IGP.

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2.

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Castings shall engage in the following activities to achieve compliance with the Permit and this

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Consent Decree:

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(a)

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The storm water pollution control measures required by this Consent Decree shall be

Commencing July 1, 2017 through the Termination Date of this Consent Decree, Miller

If it has not done so by the Effective Date, Miller Castings will appoint a Qualified
Industrial Storm Water Practitioner (“QISP”) for each of the Facilities by January 1, 2018;

(b)

Level 1 ERA Evaluations – By January 1, 2018, Miller Castings shall, if it has not done so

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prior to the Effective Date:

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(i)

Complete an evaluation, with the assistance of a QISP, of the industrial pollutant

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sources at the Facilities that are or may be related to the exceedance(s) of numeric

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effluent limits set forth in this Consent Decree; and

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(ii)

Identify in the evaluation the corresponding BMPs in the SWPPP and any

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additional BMPs and Storm Water Pollution Prevention Plan (“SWPPP”) revisions

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necessary to prevent future exceedances of numeric effluent limits set forth in this

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Consent Decree and to comply with the requirements of the Industrial General

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Permit (“IGP”).
CONSENT DECREE

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(iii)

Level 1 Action Plan and ERA Report. Based upon the above evaluation, Miller

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Castings shall, as soon as practicable, but no later than January 1, 2018:

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a) Revise the SWPPP as necessary and implement any additional BMPs identified

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in the evaluation;

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b) Certify and submit to Plaintiff, the Court and the Los Angeles Regional Water

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Quality Control Board (“RWQCB”) via SMARTS a Level 1 Action Plan/ERA

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Report prepared by a QISP that includes the following:

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1) A summary of the Level 1 ERA Evaluation required in by this provision;

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2) A detailed description of the SWPPP revisions and any additional BMPs for

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each parameter that exceeded a numeric limit set forth in this Consent

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Decree; and

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c) Certify and submit to Plaintiff, the Court and the RWQCB via SMARTS the

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QISP’s identification number, name, and contact information (telephone

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number, e-mail address).

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3.

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agrees to, comply, at its sole discretion, with any one of the following three (3) options set forth in

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Paragraphs 4-6 below.

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4.

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Park Facility or as to both Facilities, at Miller Castings’ option, it will file a NEC and provide a

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copy of the NEC Permit Registration Documents (PRDs) to Plaintiff. Miller Castings further

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agrees to notify Plaintiff pursuant to Section VIII.E. when it receives notification from the Los

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Angeles Regional Water Quality Control Board (“State Board”) either approving or disapproving

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the NEC conditional exclusion for the Coast Drive Facility or the Pacific Park Facility or both

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Facilities as the case may be, or;

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5.

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set forth in Section III.A.3(a) above, for either or both Facilities, then, as through the Termination

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Date, as to the facility for which a NEC was not filed and/or approved, and by January 1, 2019,

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Miller Castings will complete modifications to direct industrial stormwater discharge flows from

In addition to the activities described in Sections III.A.2(a) and (b) above, Miller Castings

CONSENT DECREE

OPTION 1: By March 1, 2018, as to either the Coast Drive Facility or the Pacific

OPTION 2: In the event that Miller Castings: does not file for and obtain NEC, as

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those areas uniquely identified including industrial activities potentially impacting stormwater

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discharges (does not include employee parking areas, roof outfalls, and other non-industrial

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sources) to a stormwater collection and infiltration system designed to comply with design storm

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standards established in Section H.6. of the IGP, except as provided in an Industrial Activity BMP

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Demonstration (Section XII.D.2.a). A Factor of Safety shall be incorporated into the design of all

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treatment control BMPs to ensure that storm water is sufficiently treated throughout the life of the

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treatment control BMPs. The design storm standards for treatment control BMPs are as follows:

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(a)

be treated using one of the following methods:

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Volume-based BMPs: The Discharger, at a minimum, shall calculate the volume to

(i)

The volume of runoff produced from an 85th percentile 24-hour storm

event, as determined from local, historical rainfall records;

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(ii)

The volume of runoff produced by the 85th percentile 24-hour storm event,

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determined as the maximized capture runoff volume for the facility, from the formula

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recommended in the Water Environment Federation’s Manual of Practice;14 or,

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(iii)

The volume of annual runoff required to achieve 80% or more treatment,

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determined in accordance with the methodology set forth in the latest edition of California

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Stormwater Best Management Practices Handbook, using local, historical rainfall records.

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(b)

using one of the following methods:

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Flow-based BMPs: The Discharger shall calculate the flow needed to be treated

(i).

The maximum flow rate of runoff produced from a rainfall intensity of at

least 0.2 inches per hour for each hour of a storm event;

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(ii)

The maximum flow rate of runoff produced by the 85th percentile hourly

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rainfall intensity, as determined from local historical rainfall records, multiplied by a factor of two;

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or,

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(iii)

The maximum flow rate of runoff, as determined using local historical

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rainfall records, that achieves approximately the same reduction in total pollutant loads as would

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be achieved by treatment of the 85th percentile hourly rainfall intensity multiplied by a factor of

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two.
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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6.

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2 as set forth in Sections III.A.4 and III. A.5 above, or does not file for and obtain NEC for either

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or both Facilities, then, as to the facility for which a NEC was not filed and/or approved, then,

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through either through the Termination Date, or until the modifications set forth in OPTION 2 are

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completed, whichever is earlier, Miller Castings will continue to comply with the IGP, and will

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assure the incorporation of the following BMPs, as more fully described in Miller Castings’

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SWPPP, which shall be implemented at the Miller Castings Facilities, the boundaries of which are

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outlined on the Miller Castings Facilities Site Maps (“Site Maps”), attached as Exhibit “A” hereto.

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The Parties agree that the SWPPP may be modified from time to time as more fully described in

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this Consent Decree. In the event of a modification to the SWPPP or Facilities Site Map, Miller

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Castings will provide a copy of the revised exhibits on Plaintiff, the Court in the manner described

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herein, and the RWQCB via SMARTs.

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(a)

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OPTION 3: In the event that Miller Castings: does not elect either OPTION 1 or OPTION

Non-Structural BMPs
(i)

Good Housekeeping

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a) Observe and maintain industrial activity outdoor areas;

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b) Minimize or prevent material tracking offsite;

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c) Minimize dust generated by industrial activities;

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d) Cleanup areas affected by rinse and wash water;

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e) To the extent practical, cover stored industrial materials that can be readily

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mobilized by contact with storm water;

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f) Contain stored non-solid industrial materials or wastes;

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g) Prevent improper disposal of rinse/wash waters; and

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h) Minimize flows of offsite storm water and NSWDs into material handling areas.

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(ii)

Preventative Maintenance

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a) Identify industrial equipment and systems that may leak;

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b) Observe the equipment and systems to detect leaks;

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c) Establish a schedule for maintenance; and
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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d) Establish procedures for maintenance and repair.
(iii)

Spill Prevention and Response Procedures

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a) Establish procedures and/or controls to minimize spills and leaks;

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b) Develop and implement spill and leak response procedures to prevent industrial

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materials from being discharged;

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c) Clean up spills and leaks promptly;

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d) Identify and describe needed spill and leak response equipment; and

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e) Train Storm Water Team in appropriate spill response.

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(iv)

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Material Handling and Waste Management
a) Prevent or minimize handling of industrial materials or wastes that can be

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readily mobilized;

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b) Contain all stored non-solid industrial materials or wastes that can be

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transported or dispersed by the wind or rain;

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c) Cover industrial waste disposal containers and industrial material storage

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containers that contain industrial materials when not in use;

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d) Divert run-on and storm water generated from the Facilities within the Facilities

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away from all stockpiled materials;

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e) Clean all spills of industrial materials or wastes; and

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f) Observe and clean as appropriate any outdoor material or waste that could cause

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contamination to storm water if contact is made.
(v)

Erosion and Sediment Controls

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a) Implement effective wind erosion controls;

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b) Provide effective stabilization for inactive areas, finished slopes, and other

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areas prior to a forecasted storm event based on the closest National Oceanic

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and Atmospheric Administration (“NOAA”) whether station.;

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c) Maintain effective perimeter controls and stabilize site entrances;

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d) Divert run-on and storm water generated from within the Facilities away from

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erodible materials; and
CONSENT DECREE

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e) Properly design and maintain sediment basins.

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(vi)

Employee Training. Miller Castings’ QISP(s) will provide sufficient training to

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the appropriate team members assigned to perform activities required by this

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Consent Decree (“Storm Water Team”) including:

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a) Preparing or acquiring necessary and appropriate training manuals;

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b) Providing a training schedule; and

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c) Maintaining training documentation.

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(vii)

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Quality Assurance and Record Keeping
a) Develop and implement management procedures to ensure implementation of

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plans;

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b) Develop a method of tracking and recording program implementation; and

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c) Maintain implementation records (i.e., BMP deployment records, employee

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training logs, spill occurrence and clean-up records).
(b)

Advanced BMPs. Advanced BMPs will be implemented to the extent appropriate and

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feasible, in conjunction with industry standards and applicable to the Facilities industrial

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activities in order to prevent and reduce storm water contact with industrial

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(c)

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Non-Storm Water Discharges (NSWDs)
(i)

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Reduce or prevent the contact of authorized NSWDs with materials or equipment
that are potential sources of pollutants;

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(ii)

Reduce, to the extent practicable, the flow or volume of authorized NSWDs;

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(iii)

Ensure that authorized NSWDs do not contain quantities of pollutants that cause or

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contribute to an exceedance of water quality standards (“WQS”) as set forth in the

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RWQCB Basin Plan; and

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(iv)

Reduce or prevent discharges of pollutants in authorized NSWDs in a manner that

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reflects best industry practice considering technological availability and economic

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practicability and achievability.

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(d)

Waste, Garbage, and Floatable Debris
(i)

CONSENT DECREE

Dispose of grass clippings, leaves, sticks, or other collected vegetation as garbage,
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or by composting. Do not dispose of collected vegetation into waterways or storm

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drainage systems; and

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(ii)

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Waste receptacles exposed to storm water shall be tightly closed or otherwise
covered when not in use.

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B.

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Exceedances of the values presented in Table 1 indicate to the discharger that additional BMPs may be

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needed in order to comply with BAT/BCT.

Numeric Action Level (“NAL”) for Discharges from the Miller Castings Facilities.

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Table 1: Numeric Action Levels for Discharges

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Pollutant

Test Method

Units

Annual NAL

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Instantaneous
Maximum NAL

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pH

Per IGP Section XI.C.2

pH units

N/A

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Less than 6.0,
Greater than 9.0

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Total Suspended Solids

SM-2540-D

mg/L

100

400

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Oil and Grease

EPA-1664A

mg/L

15

25

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Total Recoverable Aluminum

EPA-200.8

mg/L

0.750

N/A

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Copper, Total

EPA-200.8

mg/L

0.03322

N/A

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Total Recoverable Iron

EPA-200.8

mg/L

1.0 mg/L

N/A

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Total Recoverable Zinc

EPA-200.8

mg/L

0.26 3

N/A

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C.

Level 2 Status

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1.

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water samples collected at the Miller Castings Miller Castings Facilities for those Qualifying

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Storm Events (“QSEs”) Miller Castings is required to sample pursuant to the terms of this Consent

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Decree to the corresponding instantaneous maximum NAL exceedance4 or annual NAL

Level 2 Action Plan. Miller Castings shall compare the analytical results of the storm

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Or as adjusted based on California Toxic Rule hardness provisions.
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Or as adjusted based on California Toxic Rule hardness provisions.
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An Instantaneous Maximum NAL Exceedance occurs when two or more analytical results from
samples taken for any single parameter within a reporting year exceed the instantaneous maximum NAL
value as illustrated in Table 1.
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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exceedance5 as specified in Table 1. If it is determined that a NAL exceedance has occurred for

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the same parameter while Miller Castings is in Level 1, any time after October 1, 2018, Miller

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Castings shall certify and submit a Level 2 Action Plant that identifies industrial activity BMP

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demonstrations the Facilities has selected to perform to Plaintiff, the Court, and the RWQCB via

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SMARTS by January 1 following the reporting year during which the exceedance occurred or

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thirty (30) days from Miller Castings’ receipt of sampling data showing the exceedance, whichever

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is greater.

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2.

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by a QISP and include one or more of the following demonstrations:

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(a)

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Level 2 Action Plan Requirements. Each Level 2 Action Plan submitted shall be prepared

The identification of the contaminant(s) discharged in excess of the numeric value(s) in
Table 1;

(b)

An assessment of all pollutant sources of each contaminant discharged in excess of the

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numeric value(s) in Table 1 and the extent to which those contaminants are associated with

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industrial activities at the Facilities; and

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(c)

For contaminants associated with industrial activities, the identification of additional

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BMPs that shall be implemented to achieve compliance with the Table 1 Limit(s), as well

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as the design plans and calculations of these additional BMPs, or, in the alternative, an

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evaluation of any additional BMPs that would reduce or prevent an exceedance, estimated

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costs of the additional BMPs evaluated, an analysis demonstrating that the additional BMPs

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needed to prevent the exceedance are not BAT/BCT and are not required to ensure

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discharges do not cause or contribute to violations of water quality standards, and an

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analysis describing the basis for the selection of BMPs implemented in lieu of the

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additional BMPs evaluated but not implemented.

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(d)

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Implementation Schedule
(i)

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The time schedules for implementation shall ensure that all BMPs are implemented
as soon as possible but in no case later than January 1 following the reporting year

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An Annual NAL Exceedance occurs when the average concentration for each parameter using
the results of all the samples taken for the entire Facilities over the reporting year.
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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during which the exceedance occurred or thirty (30) days from Miller Castings’s

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receipt of sampling data showing the exceedance, whichever is greater.

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(ii)

Miller Castings shall be entitled to a single time extension of up to six (6) months

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upon submitting the following information to SMARTS and the Plaintiff:

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a) Reason for the time extension;

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b) A revised Level 2 Action Plan describing the necessary tasks that will need to

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be taken in order to complete the technical report justifying the extension; and

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c) A description of the BMPs that will be implemented in the interim while

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permanent BMPs are being implemented.

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3.

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permits and/or approvals for the BMPs included in any Level 2 Action Plan. Miller Castings shall

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further diligently pursue the procurement of contractors, labor, and materials to complete all such

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BMPs by the deadline for implementing the Level 2 Action Plan described in this section, and

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shall use commercially reasonable efforts to meet these deadlines.

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D.

Miller Castings shall diligently file and pursue all required local agency applications for

Sampling and Analysis

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1.

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inches at the Miller Castings Facilities within thirty (30) days of the Effective Date. Miller Castings

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shall maintain the recording rain gauge in accordance with the manufacturers’ recommendations,

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maintain records of all maintenance and rain data, and provide such rain gauge data to Plaintiff

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with Miller Castings’ Monitoring Report described in F below for the term of this Consent Decree.

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In the event there is a dispute about the quantity of rainfall at the Facilities, the rain gauge installed

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pursuant to this section shall be deemed to be the actual rainfall at the site.

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2.

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and NSWDs from the Miller Castings Facilities that meets the requirements of this Consent Decree

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and Section XI of the Permit, and incorporate same into its SWPPP.

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3.

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Qualifying Storm Event (“QSE”) from at least two QSEs within the first half of each reporting

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year (July 1 – December 31) and at least two QSEs within the second half of each reporting year

Miller Castings shall install a recording rain gauge capable of recording rainfall to 0.1

By January 1, 2018, Miller Castings shall develop a plan for monitoring all storm water

During the life of this Consent Decree, Miller Castings shall collect samples of any

CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

1

(January 1 – June 30) from each sampling point at the Miller Castings Facilities in conformity with

2

its Storm Water Monitoring Implementation Plan (“Monitoring Plan”) and in compliance with the

3

IGP. Should Miller Castings demonstrate full compliance with all of the NALs in Table 1 for four

4

(4) consecutive QSEs, Miller Castings may reduce sampling in compliance with XI.C.7 of the

5

2015 Storm Water Permit, except under no circumstances shall Miller Castings be permitted to

6

collect samples from less than two (2) QSEs per reporting year unless two QSEs do not occur in a

7

particular reporting year.

8

4.

9

the 2015 Storm Water Permit as more fully described in the Monitoring Plan.

Miller Castings shall comply with the analytical methods as required by Section XI.B of

10

5.

11

Decree be reported to it within fifteen (15) days of laboratory receipt of the sample.

12

6.

13

required by this Consent Decree to Plaintiff concurrently with the posting of same on SMARTS

14

or no later than thirty (30) days from receipt of the sample results from the laboratory, whichever

15

is sooner.

Miller Castings shall request that results of all sample analyses required by this Consent

Miller Castings shall provide the complete laboratory results of all samples collected as

16

E.

17

document visual observations pursuant to Section XI.A of the 2015 Storm Water Permit and as more fully

18

described in the Miller Castings SWPPP.

19

F.

Visual Observations. During the life of this Consent Decree, Miller Castings shall conduct and

Annual Comprehensive Facilities Compliance Evaluation

20

1.

21

(“Annual Evaluation”) to Plaintiff no later than June 15, of each year that contains the following

22

information:

23

(a)

24
25

28

A review of all sampling, visual observations, and inspection records conducted during the
previous reporting year;

(b)

26
27

Miller Castings shall submit an Annual Comprehensive Facilities Compliance Evaluation

An inspection of all areas of industrial activity and associated potential pollutant sources
for evidence of, or the potential for, pollutants entering the storm water conveyance system;

(c)

An inspection of all drainage areas previously identified as having no exposure to industrial
activities and materials in accordance with the definitions in Section XVII of the 2015

CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

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Storm Water Permit;

2

(d)

An inspection of equipment needed to implement the BMPs identified in the SWPPP;

3

(e)

An inspection of any structural BMPs identified in the SWPPP;

4

(f)

A review and effectiveness assessment of all BMPs identified in the SWPPP for each area

5

of industrial activity and associated potential pollutant sources to determine if the BMPs

6

are properly designed, implemented, and are effective in reducing and preventing

7

pollutants in industrial storm water discharges and authorized NSWDs;

8

(g)

9
10

addressed all applicable requirements of the Permit;
(h)

11
12

A Compliance Checklist that indicates whether Miller Castings complies with and has

An explanation for any non-compliance of requirements within the reporting year, as
indicated in the Compliance Checklist;

(i)

13

An identification, including page numbers and/or sections, of all revisions made to the
SWPPP within the reporting year;

14

(j)

The date(s) of the Annual Evaluation; and

15

(k)

An appendix including the following information:

16

(i)

All rain gauge data for the Wet Season; and

17

(ii)

Records of storm water samples collected at the Miller Castings Facilities for QSEs

18

Miller Castings is required to sample pursuant to the terms of this Consent Decree.

19

2.

20

Miller Castings shall revise its Monitoring Plan for the Miller Castings Facilities to incorporate all

21

sampling, analysis, observation, and reporting requirements of this Consent Decree and the Permit.

22

3.

23

Facilities to Plaintiff for review and comment. Plaintiff shall provide comments, if any, to Miller

24

Castings within thirty (30) days of receipt of the Monitoring Plan. Miller Castings shall incorporate

25

Plaintiff’ comments into the Monitoring Plan, or shall justify in a writing prepared by a QISP why

26

any comment is not incorporated within fifteen (15) days of receiving comments. Any disputes

27

over the adequacy of the revised Monitoring Plan shall be resolved pursuant to the dispute

28

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

By January 1, 2018, or forty-five (45) days after the Effective Date, whichever is later,

Miller Castings shall submit the revisions to its Monitoring Plan for the Miller Castings

CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

1

G.

Storm Water Pollution Prevention Plan Revisions

2

1.

3

Miller Castings shall revise the SWPPP(s) for the Miller Castings Facilities to include all BMPs

4

required by the Consent Decree and comply with all provisions of the Permit.

5

2.

6

Plaintiff shall provide comments, if any, to Miller Castings within sixty (60) days of receipt of the

7

SWPPP(s). Miller Castings shall incorporate Plaintiff’ comments into the SWPPP(s), or shall

8

justify in a writing prepared by a QISP why any comment is not incorporated within fifteen (15)

9

days of receiving comments. Any disputes as to the adequacy of the revised SWPPP shall be

10

resolved pursuant to the dispute resolution provisions of this Consent Decree, set out in Section

11

VI below.

12

3.

13

Facilities if there are any changes in the Miller Castings Facilities’ operations, including, but not

14

limited to, changes to storm water discharge point(s) or revisions and/or additions to the BMPs

15

implemented pursuant to the IGP.

16

4.

17

revisions made pursuant to the requirements of this paragraph to Plaintiff for review and comment

18

within ten (10) days of the SWPPP revision. Plaintiff will provide comments, if any, to Miller

19

Castings within thirty (30) days of receipt of such revised SWPPP.

20

incorporate Plaintiff’s comments into any revised SWPPP, or shall justify in a writing prepared by

21

a QISP as to why any comment is not incorporated within thirty (30) days of receiving comments.

22

Any disputes as to the adequacy of the revised SWPPP(s) shall be resolved pursuant to the dispute

23

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

24

H.

By January 1, 2018, or forty-five (45) days after the Effective Date, whichever is later,

Miller Castings shall submit the revised SWPPP(s) to Plaintiff for review and comment.

Miller Castings shall engage a QISP to revise the SWPPP(s) for the Miller Castings

Throughout the term of this Consent Decree, Miller Castings shall submit any SWPPP(s)

Miller Castings shall

Employee Training

25

1.

26

of this Consent Decree, Miller Castings shall develop and implement a training program, in

27

compliance with Section X.H.1.f., X.H.1.g., and IX of the 2015 Storm Water Permit (“Training

28

Program”). At a minimum, the Training Program shall include at least the following:

In addition to Section III.A.(3)(a)(vi) above, within ninety (90) days of the Effective Date

CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

1

(a)

Language. Miller Castings shall conduct the Training Program in English. If there are any

2

Team Members who do not understand English, then Miller Castings shall conduct the

3

Training Program also in the language or languages in which those identified employees

4

participating in the Training Program understand.

5

(b)

Non-Storm Water Discharges. Miller Castings shall train all Team Members on the 2015

6

Storm Water Permit’s prohibition of NSWDs, so that employees know what NSWDs are,

7

that NSWDs can result from improper surface washing or dust control methods, and how

8

to detect and prevent NSWDs to ensure compliance with this Consent Decree and the 2015

9

Storm Water Permit.

10

(c)

BMPs. Miller Castings shall train all Team Members on BMP implementation and

11

maintenance to ensure that BMPs are implemented 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 at the Miller Castings Facilities.

14

(d)

Storm Water Sampling. Miller Castings shall designate an adequate number of Team

15

Members to collect storm water samples from each discharge location as required by this

16

Consent Decree. The training shall include the proper sampling protocols, including chain

17

of custody requirements, to ensure storm water samples are properly collected, stored, and

18

submitted to a certified laboratory.

19

(e)

Visual Observation Training. Miller Castings shall provide training to all Team Members

20

at the Miller Castings Facilities regarding visual observations pursuant to this Consent

21

Decree and the Permit.

22

2.

23

Decree and the IGP. The training shall be repeated annually or as necessary to ensure that all such

24

Team Members are familiar with the requirements of this Consent Decree, the IGP, and the Miller

25

Castings Facilities’ SWPPP(s) or Monitoring Plan(s).

26

3.

27

and shall provide Plaintiff with a copy of these records in its annual monitoring and reporting

28

document described above.

Training shall be provided by a QISP who is familiar with the requirements of this Consent

Miller Castings shall maintain training records to document compliance with this Section,

CONSENT DECREE

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1

IV.

MONITORING AND REPORTING

2

A.

Site Inspections.

3

1.

4

representatives may participate in the Miller Castings Facilities Annual Evaluation site inspections

5

as more fully described in section XV of the 2015 Storm Water Permit (the “Site Inspection”) The

6

site inspections shall occur during normal business hours. Miller Castings shall provide Plaintiff

7

and Plaintiff’s counsel of record with at least seven business’ day notice prior to the Site

8

Inspection. Notice shall be provided by electronic mail to Plaintiff’s counsel of record. Plaintiff

9

shall respond by electronic mail and state the names of all persons that Plaintiff will bring to the

Every year during the life of this Consent Decree, up to three (3) of Plaintiff’

10

Site Inspection.

11

2.

12

within seventy-two (72) hours of the completion thereof. Said comments shall be prepared, signed

13

and certified by Plaintiff’s designated QISP. Miller Castings shall respond to Plaintiff’s comment

14

within thirty (30) days from which they are received, however, Miller Castings is not obligated to

15

respond to any comments regarding the Site Inspection received after seventy-two hours has

16

passed.

Plaintiff shall provide Miller Castings with any comments regarding the Site Inspection

17

B.

18

Thousand Dollars ($5,000.00) to compensate Plaintiff for costs and fees to be incurred for monitoring

19

Miller Castings’ compliance with this Consent Decree. Payment shall be made within five (5) business

20

days of the Effective Date payable to “Brodsky & Smith, LLC” via U.S. Mail.

21

C.

22

Section III.A, supra, Miller Castings shall pay Five Thousand Dollars ($5,000.00) each time an Action

23

Plan is submitted to the United States Treasury care of Alicia Kolaian, Budget Analyst, Environment &

24

Natural Resources Division, Executive Office, P.O. Box 7611, Ben Franklin Station, Washington, D.C.

25

20044-7611. Payments shall be submitted simultaneously with the submittal of the Action Plan.

26

D.

27

shall copy Plaintiff on all documents related to storm water quality at the Miller Castings Facilities that

28

are submitted to the Regional Board, the State Board, and/or any state or local agency, county, or

Compliance Monitoring and Oversight. Miller Castings shall make a onetime payment of Five

Action Plan Payment. With the exception of the Level 1 ERA Action Plan submittal discussed in

Miller Castings Document Provision. During the life of this Consent Decree, Miller Castings

CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

1

municipality. Such reports and documents shall be provided to Plaintiff on the date they are sent to the

2

agencies, counties, and/or municipalities. Any correspondence related to Miller Castings’ compliance with

3

the Permit or storm water quality received by Miller Castings from any regulatory agency, state or local

4

agency, county, or municipality shall be provided to Plaintiff within ten (10) days of receipt by Miller

5

Castings. Provided, however, that this Consent Decree shall not require disclosure of any information or

6

documents subject to the Attorney Client Privilege or the Attorney Work Product doctrine.

7

V. ENVIRONMENTAL PROJECT & REIMBURSEMENT OF LITIGATION FEES & COSTS

8

A.

9

compliance with the 1997 Storm Water Permit and 2015 Storm Water Permit alleged in the Complaint,

10

Miller Castings agrees to make a payment of Five Thousand Dollars ($5,000.00) to University of

11

California San Diego Extension Services to fund tuition grants for owners and employees of small

12

businesses6 affected by the stormwater permit. The payments shall be made within five (5) business days

13

of the Effective Date payable to “Regents of the University of California, UCSD” and mailed to UC San

14

Diego Extension, attention Laura Fandino, 8950 Villa La Jolla Drive, Suite A204, La Jolla, CA 92037-

15

1712.

16

B.

17

Thousand Dollars ($40,000.00) to “Brodsky & Smith, LLC” for their investigation fees and costs,

18

expert/consultant fees and costs, and reasonable attorneys’ fees incurred as a result of investigating and

19

preparing the lawsuit and negotiating this Consent Decree. Payment shall be made payable to “Brodsky

20

& Smith, LLC” within five (5) business days of the Effective Date via U.S. Mail.

21

VI.

DISPUTE RESOLUTION AND RETENTION OF JURISDICTION

22

A.

Continuing Jurisdiction. This Court shall retain jurisdiction over this matter until the Termination

23

Date defined above for the purposes of implementing and enforcing the terms and conditions of this

24

Consent Decree and adjudicating all disputes among the Parties that may arise under the provisions of this

25

Consent Decree, unless a Party files and is granted a timely motion requesting an extension of time for

Environmental Project. To remediate the alleged environmental harms resulting from non-

Reimbursement of Attorneys’ Fees and Costs. Miller Castings shall pay a total of Forty

26
27
28

6

Small Businesses as used herein shall mean businesses that employs no more than fifty (50)

people per calendar year.
CONSENT DECREE

19

Civil Case No.: 2:17-cv-07408

1

the Court to retain jurisdiction. The Court shall have the power to enforce this Consent Decree with all

2

available legal and equitable remedies, including contempt.

3

B.

4

of this Section by notifying the other Party in writing of the matter(s) in dispute. The Settling Parties shall

5

then meet and confer in good faith (either telephonically or in person) in an attempt to resolve the dispute

6

informally over a period of ten (10) days from the date of the notice. The Parties may elect to extend this

7

time in an effort to resolve the dispute without court intervention.

8

C.

9

negotiations, then the parties shall attempt to settle the dispute through mediation provided by the

10

American Arbitration Association (“AAA”) pursuant to AAA’s Commercial Mediation Provisions in

11

effect at the time the act or acts being disputed occurred.

12

D.

13

procedures provided herein shall have the burden of demonstrating that the other Party has failed to meet

14

its obligations as set forth herein.

15

E.

16

fees incurred in conducting such shall be awarded to the prevailing party.

17

VII.

MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE

18

A.

Plaintiff’s Public Release of Claims. This Consent Judgment is a final and binding resolution

19

between Plaintiff, on his own behalf, and on behalf of the public and in the public interest, and Miller

20

Castings, and their parents, subsidiaries, affiliated entities under common ownership, directors, officers,

21

agents, employees, attorneys, if any (collectively “Releasees”), and shall have a preclusive effect such that

22

no other person or entity, whether purporting to act in his, her, or its interests or the public interest shall

23

be permitted to pursue and/or take any action with respect to any violation of the CWA that was alleged

24

in the Complaint, or that could have been brought pursuant to the Notice.

25

B.

26

this Consent Judgment shall have preclusive effect such that he shall not be permitted to pursue and/or

27

take any action with respect to any other statutory or common law claim, to the fullest extent that any of

28

the foregoing were or could have been asserted by him against Miller Castings or the Releasees based on

Meet and Confer. A Party to this Consent Decree shall invoke the dispute resolution procedures

Dispute Resolution. If the Parties cannot resolve a dispute by the end of meet and confer informal

Burden of Proof. In any dispute resolution proceeding, the Party invoking the dispute resolution

Enforcement Fees and Costs. If formal dispute resolution is undertaken, then litigation costs and

Plaintiff’s Release of Additional Claims. As to Plaintiff for and in his individual capacity only,

CONSENT DECREE

20

Civil Case No.: 2:17-cv-07408

1

the facts alleged in the Complaint and the Notice, whether or not based on actions committed by Miller

2

Castings.

3

C.

Waiver of Rights Under Section 1542 of the California Civil Code

4

1.

5

action, and releases all claims against Miller Castings, and the Releasees, (referred to collectively

6

in this Section as the “Claims”). In furtherance of the foregoing, Plaintiff waives any and all rights

7

and benefits which he now has, or in the future may have, conferred upon him with respect to the

8

Claims by virtue of the provisions of § 1542 of the California Civil Code, which provides as

9

follows:

Plaintiff acting in his individual capacity waives all rights to institute any form of legal

10

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES

11

NOT KNOW OR SUSPECT EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE

12

RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS

13

SETTLEMENT WITH THE DEBTOR.

14

2.

15

of California Civil Code § 1542 is that even if Plaintiff suffers future damages arising out of or

16

resulting from, or related directly or indirectly to, in whole or in part, the facts in the Complaint,

17

Plaintiff will not be able to make any claim for those damages against Releasees.

Plaintiff understands and acknowledge that the significance and consequence of this waiver

18

D.

19

agents, representatives, attorneys, successors and/or assignees, hereby waives any and all claims against

20

Plaintiff, his attorney, and other representatives for any and all actions taken or statements made (or those

21

that could have been taken or made) by Plaintiff and his attorney and other representatives, whether in the

22

course of investigating Claims or Otherwise.

23

E.

24

behalf and on behalf of their current and former officers, directors, employees, and each of their successors

25

and assigns, and their agents, and other representatives release all persons including, without limitation,

26

all other Parties to this Consent Decree (and each of their direct and indirect parent and subsidiary

27

companies and affiliates, and their respective current and former officers, directors, members, employees,

28

shareholders, and each of their predecessors, successors, and assigns, and each of their agents, attorneys,

Miller Castings’ Release of Plaintiff. Miller Castings, on behalf of itself, its past and current

Parties’ Release. Unless specifically provided for in this Consent Decree, the Parties, on their own

CONSENT DECREE

21

Civil Case No.: 2:17-cv-07408

1

consultants, and other representatives) from any additional attorney’s fees or expenses related to the

2

resolution of this matter.

3

F.

4

position that it deems necessary or appropriate in any formal or informal proceeding before the State

5

Board, Regional Board, EPA, or any other administrative body on any other matter relating to Miller

6

Castings’ compliance with the 2015 Storm Water Permit or the Clean Water Act occurring or arising after

7

the effective date of this Consent Decree.

8

VIII. MISCELLANEOUS PROVISIONS

9

A.

Nothing in this Consent Decree limits or otherwise affects any Party’s right to address or take any

No Admission of Liability. Neither this Consent Decree, the implementation of additional BMPs,

10

nor any payment pursuant to the Consent Decree shall constitute or be construed as a finding, adjudication,

11

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

12

violation of any law, rule, or regulation. Miller Castings maintains and reserves all defenses they may

13

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

14

B.

15

plain and ordinary meaning, except as to those terms defined in the 2015 Storm Water Permit, the Clean

16

Water Act, or specifically herein.

17

C.

18

venue proper only in the Central District of California.

19

D.

20

Decree is held by a court to be unenforceable, the validity of the enforceable provisions shall not be

21

adversely affected.

22

E.

23

provided for or permitted under this Consent Decree shall be in writing and personally delivered or sent

24

by:

Construction. The language in all parts of this Consent Decree shall be construed according to its

Choice of Law and Venue. The laws of the United States shall govern this Consent Decree, with

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

Correspondence and Notices. Any and all notices and/or correspondence between the Parties

25

1.

First-class (registered or certified) mail return receipt requested; or

26

2.

Overnight or two-day courier; or

27

3.

By email with confirmed receipt only (thus at the risk of the email sender); on any Party

28

by the other Party to the following addresses:
CONSENT DECREE

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Civil Case No.: 2:17-cv-07408

1

If to Plaintiff:

2

Evan J. Smith, Esquire

3

Brodsky & Smith, LLC

4

Two Bala Plaza, Suite #510

5

Bala Cynwyd, PA 19004

6

T:

877.354.2590

7

F:

310.247.0160

8

Email: [e-mail]

9
10

If to Miller Castings:

11

Kimberly D. Lewis, Esquire

12

Ervin Cohen & Jessup, LLP

13

9401 Wilshire Blvd., 9th Floor

14

Beverly Hills, CA 90212-2974

15

T:

17
18
19
20
21
22
23
24
25
26
27
28

310.281.6332

F:

16

310.859.2325

Email: [e-mail]
Any change of address or addresses shall be communicated in the manner described above for giving
notices.
F.

Counterparts. This Consent Decree may be executed in any number of counterparts, all of which

together shall constitute one original document. Telecopy, email of a .pdf signature, or facsimile copies
of original signature shall be deemed to be originally executed counterparts of this Consent Decree.
G.

Modification of the Consent Decree. This Consent Decree, and any provisions herein, may not

be changed, waived, discharged, or terminated unless by a written instrument, signed by the Settling
Parties, or upon motion of any Party as provided by law and upon an entry of a modified Consent Judgment
by the Court. If any Settling Party wishes to modify any provision of this Consent Decree, the Settling
Party must notify the other Settling Party in writing at least twenty-one (21) days prior to taking any step
to implement the proposed change.
CONSENT DECREE

23

Civil Case No.: 2:17-cv-07408

1

H.

2

the Parties with respect to the entire subject matter hereof, and any and all discussions, negotiations,

3

commitments and understandings related thereto. No representations, oral or otherwise, express or

4

implied, other than those contained herein have been made by any party hereto. No other agreements not

5

specifically referred to herein, oral or otherwise, shall be deemed to exist or to bind any of the Parties.

6

I.

7

a full and complete statement of the terms of the Consent Decree between the Settling Parties and

8

expressly supersedes any and all prior oral or written Consent Decrees, covenants, representations, and

9

warranties (express or implied) concerning the subject matter of this Consent Decree.

Full Settlement. This Consent Decree contains the sole and entire agreement and understand of

Integration Clause. This is an integrated Consent Decree. This Consent Decree is intended to be

10

J.

11

certify that he/she is fully authorized by the party whom he/she represents to approve this Consent Decree

12

as to form.

13

K.

14

into this Consent Decree, to execute it on behalf of Miller Castings, and to legally bind Miller Castings to

15

its terms.

16

L.

17

bound by this Consent Decree and not to contest its validity in any subsequent proceeding to implement

18

or enforce its terms.

19

IX.

20

The Parties hereby respectfully request that the Court promptly approve and enter this Consent Decree.

21

Upon entry of this Consent Decree, Plaintiff and Defendant waive their respective rights to a hearing or

22

trial on the allegations of the Complaint and Notice which are at issue in this action. If this Consent Decree

23

is not approved by the Court, it shall be of no force and effect, and it may not be used in any proceeding

24

for any purpose.

25
26

Authority of Counsel. The undersigned representatives for Plaintiff and Miller Castings each

Authority. Miller Castings certifies that its undersigned representative is fully authorized to enter

Agreement to be Bound. The Settling Parties, including any successors or assigns, agree to be

COURT APPROVAL

IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as of the date
first set forth below.

27
28
CONSENT DECREE

24

Civil Case No.: 2:17-cv-07408

1

IT IS SO ORDERED.

2
3
4

Date: November 13, 2018

5

The Honorable Andre Birotte Jr.

6

United States District Court Judge

7

Central District of California

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONSENT DECREE

25

Civil Case No.: 2:17-cv-07408