Donny Macias v. Safeshred Co., Inc.

Filing 44

CONSENT DECREE by Judge Dean D. Pregerson: Consent Decree is entered into by and between Plaintiffs Los Angeles Waterkeeper (Plaintiff or Waterkeeper) and Donny Macias (collectively Plaintiffs) and Defendant Safeshred Co., Inc. (Defendant or Safeshre d). The entities entering into this Consent Decree are each an individual Settling Party and collectively the Settling Parties or Parties. MITIGATION PAYMENT, REIMBURSEMENT OF LITIGATION FEES AND COSTS, OVERSIGHT, AND STIPULATED PAYMENTS: Safeshred of any penalties, which have been disputed but may have been assessed in this action if it had been adjudicated adverse to Safeshred, the Settling Parties agree that Safeshred will pay the sum of Thirty Thousand Dollars ($30,000) to the Rose Fou ndation for Communities and the Environment (Rose Foundation) for the sole purpose of providing grants to environmentally beneficial projects, not including litigation, relating to water quality improvements in Los Angeles County watersheds. Reimburs ement of Fees and Costs. Safeshred shall reimburse Plaintiffs in the amount of One Hundred Thirteen Thousand Dollars ($113,000.00 ) to help defray Plaintiffs reasonable investigation, expert, and attorneys fees and costs, and all other reasonabl e costs incurred as a result of investigating the activities at the Facility related to this Consent Decree. Compliance Monitoring Funds. Safeshred shall make a one-time payment of Twelve Thousand Dollars ($12,000) to compensate Plaintiffs for costs and attorney fees to be incurred for monitoring Safeshreds compliance with this Consent Decree. See order for more information. Related to: Order 43 . ( MD JS-6. Case Terminated ) (shb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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DONNY MACIAS,

Case No. 2:20-cv-08423-DDP (SKx)
(Consolidated)

vs.

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SAFESHRED CO., INC.,
Defendant.

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LOS ANGELES WATERKEEPER,

2:20-cv-10176-DDP (SKx)

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Plaintiff,

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vs.

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CONSENT DECREE

SAFESHRED CO., INC.,

(Federal Water Pollution Control Act,
33 U.S.C. §§ 1251 to 1387)

Defendant.

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CONSENT DECREE

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2:20-cv-08423-DDP (SKx) and 2:20-cv-10176-DDP (SKx)

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CONSENT DECREE
The following Consent Decree is entered into by and between Plaintiffs Los
Angeles Waterkeeper (“Plaintiff” or “Waterkeeper”) and Donny Macias (collectively

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“Plaintiffs”) and Defendant Safeshred Co., Inc. (“Defendant” or “Safeshred”). The

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

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collectively the “Settling Parties” or “Parties.”

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WHEREAS, Waterkeeper is a 501(c)(3) non-profit public benefit corporation

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organized under the laws of the State of California, with its main office in Santa
Monica, California;
WHEREAS, Waterkeeper is dedicated to the preservation, protection, and
defense of the inland and coastal surface and ground waters of Los Angeles County
from all sources of pollution and degradation;

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WHEREAS, Donny Macias is a citizen of the State of California.
WHEREAS, Mr. Macias is concerned with the environmental health of the Los

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Angeles River and overall Los Angeles River Watershed, of which the Los Angeles

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River is a part, and uses and enjoys the waters of the Los Angeles River, its inflows,

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outflows, and other waters of the Los Angeles River Watershed;

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WHEREAS, Safeshred is the owner and operator of a facility located at 5928

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S. Malt Ave. in Commerce, California that stores, shreds, and bales recyclable paper

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and cardboard and stores electronic waste for transfer to other disposal facilities,

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hereinafter referred to by the Settling Parties as the “Facility”;

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WHEREAS, the Facility falls within Standard Industrial Classification (“SIC”)
code 5093 (“Scrap and Waste Materials”);

CONSENT DECREE

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2:20-cv-08423-DDP (SKx) and 2:20-cv-10176-DDP (SKx)

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WHEREAS, Mr. Macias and Waterkeeper’s members live and/or recreate in
and around the Commerce area waterbodies receiving discharges from the Facility,

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including the Los Angeles River Basin;
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, Mr. Macias issued to Safeshred a notice of intent to file suit under
Sections 505(a)(1) and (f) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A) (“60Day Notice letter”) dated April 14, 2020, alleging violations of the Act and the Permit

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at the Facility, which listed the Administrator of the United States Environmental

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Protection Agency (“EPA”), the Executive Director of the State Water Resources

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Control Board (“State Board”), the Executive Officer of the Los Angeles Regional

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Water Quality Control Board (“Regional Board”), the U.S. Attorney General, and the

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Regional Administrator of the EPA (Region 9) as additional recipients;
WHEREAS, Waterkeeper issued to Safeshred a 60-Day Notice letter dated

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August 31, 2020, alleging violations of the Act and the Permit at the Facility, which

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included a service list identifying the EPA, the State Board, the Regional Board, the

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U.S. Attorney General, and the Regional Administrator of the EPA (Region 9) as
additional recipients;

CONSENT DECREE

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2:20-cv-08423-DDP (SKx) and 2:20-cv-10176-DDP (SKx)

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WHEREAS, on September 15, 2020, Mr. Macias filed a complaint against
Safeshred in the United States District Court, Central District Court of California,

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entitled Donny Macias v. Safeshred Co., Inc. (Case No. 2:20-cv-08423-DDP (SKx)),

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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 (“Macias Complaint”) based on his 60-Day

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Notice letter;

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WHEREAS, on November 5, 2020, Waterkeeper filed a complaint against

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Safeshred in the United States District Court, Central District Court of California,

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entitled Los Angeles Waterkeeper v. Safeshred Co., Inc. (Case No. 2:20-cv-10176-

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DDP (SKx)), alleging violations of Section 301(a) of the Clean Water Act, 33 U.S.C.

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§ 1311(a), and violations of the Permit at the Facility (“Waterkeeper Complaint”)

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based on its 60-Day Notice letter;

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WHEREAS, on November 9, 2021, the Court ordered the two cases to be

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related and transferred the Waterkeeper Complaint to the Honorable Judge Dean D.

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Pregerson;

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WHEREAS, Plaintiffs contend in their 60-Day Notice letters and Complaints
that, among other things, Safeshred has repeatedly discharged polluted storm water in

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violation of the Permit and the Clean Water Act;
WHEREAS, Safeshred denies Plaintiffs’ allegations as set forth in the answers

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it filed to the Macias Complaint on November 30, 2020 and to the Waterkeeper

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Complaint on December 21, 2020, respectively;

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WHEREAS, solely for the purposes of this Consent Decree, the Parties agree
that the Court has jurisdiction over the Parties and the subject matter of this action

CONSENT DECREE

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under Section 505(a)(l)(A) of the Clean Water Act, 33 U.S.C. § 1365(a)(1)(A);
WHEREAS, on September 30, 2021, the Settling Parties filed a stipulated

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request for the Court to consolidate the two cases in order to facilitate the entry of the

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settlement agreed to by all of the Settling Parties, avoid confusion in the review of the

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proposed Consent Decree by EPA and the U.S. Attorney General, and result in the

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entry by the Court of a single Consent Decree, which request remains pending;

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WHEREAS, the Settling Parties, through their authorized representatives and
without either adjudication of Plaintiffs’ claims or any admission by Safeshred of any

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alleged violation or other wrongdoing, believe it is in their mutual interest and choose

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to resolve in full Plaintiffs’ allegations in the 60-Day Notice letters and Complaints

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through settlement and avoid the cost and uncertainties of further litigation;

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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,
AS FOLLOWS:
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);
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
at which the alleged violations took place is located within this District;
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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

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long thereafter as is necessary for the Court to resolve any motion to enforce this
Consent Decree.

CONSENT DECREE

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4.

This Consent Decree, and any relief ordered within, applies solely to

Defendant’s storm water discharges from the Facility subject to the Permit.

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I.

OBJECTIVES

5.

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 Plaintiffs in their Complaints. In light

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of these objectives and as set forth fully below, Defendant agrees to use its best efforts

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to comply with the provisions of this Consent Decree and to use its best efforts to

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comply with all applicable requirements of the Permit and all applicable provisions of

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the Clean Water Act at the Facility.

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II.

COMMITMENTS OF SAFESHRED

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Safeshred shall continue to implement appropriate structural and non-

structural best management practices (“BMPs”), as required by the Permit.
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Maintenance of Implemented Storm Water Controls. Safeshred

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agrees to continue to implement its adaptive management approach for addressing

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storm water discharges from the Facility. Specifically, Safeshred shall use its best

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efforts to maintain in good working order all storm water collection and management

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systems currently installed or to be installed pursuant to this Consent Decree,

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including but not limited to, existing housekeeping measures; provided, however, it is

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understood and agreed by the Parties that nothing in this Consent Decree prohibits

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Safeshred from enhancing, improving, or otherwise modifying the storm water

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collection and management systems currently installed at the Facility in accordance
with its adaptive management approach. Currently installed management practices

[CONSENT DECREE

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include, but are not limited to, the following:

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a. Berms and speed bumps directing all storm water flows from the

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Facility to a single discharge point located at the southwest corner of

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the Facility and labeled as DP-1. See Exhibit A (Facility Site Map).

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b. Outdoor materials storage areas are located away from concentrated

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storm water flow paths around the Facility.

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c. Drums, roll-off containers and bins stored outdoors are equipped

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with covers and/or will be covered prior to forecast rain events with

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50% or greater chance of precipitation over 0.1 inches.

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d. Deployment of multiple layers of filtration socks (Filtrexx

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Envirosoxx and BiocharBASIC) upstream of DP-1 prior to forecast

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rain events of 50% or greater probability and over 0.1 inches using

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media designed to reduce total suspended solids (“TSS”) and metal

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concentrations.

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e. During the 2021-2022 rainy season, bench-scale media testing will

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be conducted using a flow-through column test apparatus, the results

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of which will inform and support the development of future BMP

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recommendations (e.g., additional enhanced media for storm water

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filtration), to evaluate the treatability of storm water at the Property

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and the deployment of additional or alternate filtration.

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f. Annual storm water training seminars for Safeshred staff.

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8.

Additional Treatment if NAL Exceedances in 2022-2023. If, at the

conclusion of the 2022-2023 Reporting Year on June 30, 2023, either (1) the average

CONSENT DECREE

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concentration of any parameter using the results of all the sampling obtained during
QSEs and analytical results for the entire Facility for the 2022-2023 Reporting Year

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exceed any Annual Numeric Action Level set forth in Table 2 of the Permit, or (2) the

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concentration of TSS in any two samples obtained during QSEs exceed the

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Instantaneous Maximum NAL for TSS of 400 mg/L, Safeshred shall, by not later than

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October 1, 2023, install an Aquip storm water filtration system (manufactured by

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StormwateRx) and generally described in the attached Exhibit B (“Aquip System”), or

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an equivalent storm water treatment system.

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a. If, not later than October 1, 2022, Safeshred installs any additional

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storm water treatment system at the Facility other than an Aquip

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System or equivalent system, only the sampling obtained during

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QSEs and analytical results for the entire Facility that occur after the

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installation of such additional system (calculated pursuant to

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Paragraph 8) shall be used for the purposes of evaluating the need for

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installation of the Aquip System or an equivalent storm water

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treatment system described in the preceding paragraph.

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b. By not later than February 1, 2023, Safeshred may submit a plan to

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Plaintiffs identifying an alternative treatment system that Safeshred

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has determined would be equally or more effective in meeting the

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NALs at the Facility as the Aquip System. The plan must include

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sufficient information, including available influent and effluent data

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from the manufacturer, storm flow rate capabilities, and other

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relevant information, necessary to demonstrate to Plaintiffs and their

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CONSENT DECREE

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consultant(s) that the alternative treatment system is equally effective

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at removing pollutants from industrial storm water from the Facility

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as would be achieved by the installation of the Aquip System.

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i. Within thirty (30) days of Plaintiffs’ receipt of an alternative

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treatment system plan described in the preceding paragraph, the

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Parties shall meet and confer to discuss whether they concur

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that the alternative treatment system is equivalent in treatment

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effectiveness to the Aquip System. Plaintiffs shall not withhold

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their concurrence in an alternative treatment system proposed

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by Safeshred if Safeshred demonstrates that the alternative

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treatment system is equally effective at removing pollutants

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from industrial storm water as would be achieved by the

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installation of the Aquip System.

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ii. Any concurrence by Plaintiffs with regard to the reasonableness

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or effectiveness of any alternative treatment system proposed

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by Safeshred shall not be deemed to be an admission of the

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adequacy of such treatment measure to achieve the Permit’s

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best available technology requirements should the alternative

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treatment system fail to reduce pollutants in the Facility’s storm

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water to levels below any NAL.

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iii. If no proposal for an alternative treatment system is submitted

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by Safeshred prior to February 1, 2023, Safeshred shall install

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the Aquip System. If the Settling Parties do not concur by

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CONSENT DECREE

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March 31, 2023 that an alternative treatment system proposed

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by Safeshred is equally effective as the Aquip System, not later

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than April 4, 2023 Safeshred shall present the alternative

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treatment proposal, along with any written comments on the

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system prepared by Plaintiffs, to mediator Jad Davis or a

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mediator satisfactory to the Parties if Mr. Davis is not available.

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By not later than April 28, 2023, the mediator shall make a

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determination whether Safeshred’s proposal demonstrates by a

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preponderance of evidence that the alternative treatment system

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is equally effective at removing pollutants from industrial storm

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water as would be achieved by the installation of the Aquip

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System. The mediator shall immediately notify the Parties of

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the determination. The mediator’s determination will be final

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and not subject to challenge on any grounds in any forum by

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any of the Parties. By not later than October 1, 2023, Safeshred

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shall install either the Aquip system or the proposed alternative

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treatment system consistent with the mediator’s determination.

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Safeshred shall be responsible for fees and costs incurred by the

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mediator in carrying out the review prescribed in this

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subparagraph.

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c. The Aquip System, or any agreed upon alternative treatment system,

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shall be configured to meet the applicable Annual NALs and

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Instantaneous Maximum NALs set forth in the Permit.

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[PCONSENDECREE

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d. The Aquip System, or any agreed upon alternative treatment system,

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shall be sized, at a minimum, in accordance with the “Design Storm

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Standards for Treatment Control BMPs” requirements set forth in

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Section X.H.6 of the Permit.

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Within fourteen (14) days of completing the installation and initial

operation of the Aquip System, or any agreed upon alternative treatment system,
Safeshred shall confirm the installation of the Aquip System or alternative system by

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forwarding to Plaintiffs photographs of the installed treatment system and a

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certification that installation of the treatment system has been completed and the

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treatment system is fully operational.

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10.

“Reporting Year” is defined in the same way as the term is used in the

Permit (July 1 to June 30).

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A QSE is defined consistent with Permit, Section XI.B(1).

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All sampling and analysis shall be conducted consistent with the Permit,

Section XI.B.
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Amendment of SWPPP. Within thirty (30) days of the installation of

the Aquip System or an equivalent storm water treatment system, Safeshred shall

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amend the Facility’s Storm Water Pollution Prevention Plan (“SWPPP”) to

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incorporate all changes, improvements, and best management practices set forth in or

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resulting from installation of such systems. A copy of the amended SWPPP shall be

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provided to Plaintiffs within ten (10) business days of completion.

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14.

Provision of Documents and Reports. During the term of this Consent

Decree, Safeshred shall notify Plaintiffs within five (5) business days after it uploads

CONSENT DECREE

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to SMARTS any document related to storm water quality at the Facility. Safeshred
shall copy Plaintiffs on its submittal of any document and/or written communication

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that is not uploaded via SMARTS that is related to storm water quality at the Facility

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to any state or local agency or municipality. Any correspondence related to storm

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water quality received by Safeshred from any state or local agency or municipality

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shall be provided to Plaintiffs within ten (10) business days of receipt by Safeshred.

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Provision of Sampling Results. Results from the Facility’s sampling

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and analysis during the term of this Consent Decree shall be provided to Plaintiffs

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within thirty (30) days of receipt of the validated sampling results by Safeshred or its

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counsel.

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Site Inspections. Plaintiffs and their representatives may conduct up to

one site inspection per Reporting Year at the Facility during the life of this Consent

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Decree. Each site inspection shall occur during normal business hours and shall be

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subject to all applicable access, health and safety requirements ordinarily used by the

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Facility for visitors and contractors (including any applicable COVID-19 safety

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requirements). The Settling Parties shall work in good faith to select a mutually

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acceptable date or dates for the inspections, which will be scheduled at least ten (l0)

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business days in advance. Defendants’ personnel or consultants may accompany
Plaintiff's representative(s) throughout the site inspections.
III.

MITIGATION PAYMENT, REIMBURSEMENT OF LITIGATION
FEES AND COSTS, OVERSIGHT, AND STIPULATED
PAYMENTS

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Mitigation Payment. In recognition of the good faith efforts by

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Safeshred to comply with all aspects of the Permit and the Clean Water Act, and in

CONSENT DECREE

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lieu of payment by Safeshred of any penalties, which have been disputed but may
have been assessed in this action if it had been adjudicated adverse to Safeshred, the

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Settling Parties agree that Safeshred will pay the sum of Thirty Thousand Dollars

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($30,000) to the Rose Foundation for Communities and the Environment (“Rose

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Foundation”) for the sole purpose of providing grants to environmentally beneficial

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projects, not including litigation, relating to water quality improvements in Los

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Angeles County watersheds. Payment shall be provided to the Rose Foundation as

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follows: Rose Foundation, 201 4th Street, Suite 102, Oakland, CA 94607, Attn: Tim

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Little. Payment shall be made by Safeshred to the Rose Foundation within thirty (30)

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calendar days of the Effective Date. Safeshred shall copy Plaintiffs with any

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correspondence and a copy of the check sent to the Rose Foundation. The Rose

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Foundation shall provide notice to the Settling Parties within thirty (30) days of when

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the funds are dispersed by the Rose Foundation, setting forth the recipient and purpose
of the funds.
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Reimbursement of Fees and Costs. Safeshred shall reimburse Plaintiffs

in the amount of One Hundred Thirteen Thousand Dollars ($113,000.00 ) to help
defray Plaintiffs’ reasonable investigation, expert, and attorneys’ fees and costs, and

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all other reasonable costs incurred as a result of investigating the activities at the

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Facility related to this Consent Decree, bringing these matters to Safeshred’s

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attention, and negotiating a resolution of this action in the public interest. The

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payment shall be made within thirty (30) days of the Effective Date. The payment

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shall be made via check, made payable to: “Lozeau Drury LLP” and mailed to Lozeau
Drury LLP, c/o Michael Lozeau, 1939 Harrison Street, Suite 150, Oakland, CA

CONSENT DECREE

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94612.
19.

Compliance Monitoring Funds. Safeshred shall make a one-time

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payment of Twelve Thousand Dollars ($12,000) to compensate Plaintiffs for costs and

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attorney fees to be incurred for monitoring Safeshred’s compliance with this Consent

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Decree. Payment shall be made within thirty (30) days of the Effective Date. The

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payment shall be made via check, made payable to: “Los Angeles Waterkeeper” via

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certified mail, return receipt requested to Los Angeles Waterkeeper, c/o Kelly Clark,

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120 Broadway, Suite 105, Santa Monica, California 90401. Defendant shall not be

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responsible for any other costs or fees that may be incurred by Plaintiffs prior to the

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Termination Date.

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IV.

COMMITMENT OF PLAINTIFFS

20.

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

of receiving all of the Settling Parties’ signatures to this Consent Decree, Plaintiffs

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shall submit this Consent Decree to the U.S. Department of Justice (“DOJ”) and EPA

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

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

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correspondence from DOJ establishing the review period. If for any reason the DOJ

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or the District Court should decline to approve this Consent Decree in the form

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presented, the Parties shall use their best efforts to work together to modify the

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Consent Decree within thirty (30) days so that it is acceptable to the DOJ or the

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District Court. If the Parties are unable to modify this Consent Decree in a mutually

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acceptable manner that is also acceptable to the District Court, this Consent Decree
shall immediately be null and void as well as inadmissible as a settlement

CONSENT DECREE

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communication under Federal Rule of Evidence 408 and California Evidence Code
section 1152.

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21.

During the effective period of this Consent Decree set forth in Paragraphs

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28 and 29, Plaintiffs shall not support other lawsuits, by providing financial

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assistance, personnel time or other affirmative actions, against the Facility that may be

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proposed or pursued by other groups or individuals who would rely upon the citizen

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suit provision of the Clean Water Act to challenge the Facility’s compliance with the

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Permit or any successor thereto.

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V.

WAIVER, RELEASES, AND COVENANTS NOT TO SUE

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22.

In consideration of the above, and except as otherwise provided by this

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Consent Decree, the Parties hereby forever and fully release each other and their
respective parents, affiliates, subsidiaries, divisions, insurers, successors, assigns, and

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current and former employees, attorneys, officers, directors and agents from any and

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

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and all liabilities, damages, injuries, actions or causes of action, either at law or in

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equity, which the Parties have against each other arising from Plaintiffs’ allegations

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and claims as set forth, or as could have been set forth, in the 60-Day Notice Letters

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and Complaints for any and all violations of the Permit or the Clean Water Act at the
Facility up to and including the Termination Date of this Consent Decree.
23.

The Parties acknowledge that they are familiar with section 1542 of the

California Civil Code, which provides:

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A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at

[CONSENT DECREE

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the time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the debtor or

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released party.

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Except as otherwise provided by this Consent Decree, the Parties hereby waive and

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relinquish any rights or benefits they may have under California Civil Code section

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1542 with respect to any other claims against each other arising from, or related to,

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the allegations and claims as set forth in the 60-Day Notice Letters and Complaints for

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alleged Clean Water Act violations up to and including the Termination Date of this

11

Consent Decree.

12

24.

13
14

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 Safeshred expressly does not intend to imply, any

15
16

admission as to any fact, finding, issue of law, or violation of law, nor shall

17

compliance with this Consent Decree constitute or be construed as an admission by

18

Safeshred of any fact, finding, conclusion, issue of law, or violation of law. However,

19

this paragraph shall not diminish or otherwise affect the obligation, responsibilities,

20

and duties of the Parties under this Consent Decree.

21
22
23

VI.
25.

BREACH OF CONSENT DECREE AND DISPUTE RESOLUTION
PROCEDURES
Continuing Jurisdiction. This Court shall retain jurisdiction over this

24
25

matter until the Termination Date identified in Paragraph 29 for the purposes of

26

implementing and enforcing the terms and conditions of this Consent Decree and

27

adjudicating all disputes among the Settling Parties that may arise under the

28

CONSENT DECREE

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1
2

provisions of this Consent Decree, unless a Settling Party files and is granted a timely
motion requesting an extension of time for the Court to retain jurisdiction. The Court

3
4
5
6
7
8

shall have the power to enforce this Consent Decree with all available legal and
equitable remedies, including contempt.
26.

Informal Dispute Resolution. The Settling Parties will engage in

“Informal Dispute Resolution” pursuant to the terms of this paragraph:
a. If a dispute under this Consent Decree arises, including whether any

9

Settling Party believes that a violation of the Consent Decree has

10
11

occurred, the Settling Parties will meet and confer (telephonically or

12

in-person) within twenty-one (21) days of receiving written

13

notification of a request for such meeting. During the meet and

14

confer proceeding, the Settling Parties will discuss the dispute and

15

make reasonable efforts to devise a mutually acceptable plan,

16
17

including implementation dates, to resolve the dispute. The Settling

18

Parties may, upon mutual written agreement, extend the time to

19

conduct the meet and confer discussions beyond twenty-one (21)

20

days. If meet and confer discussions fail to resolve the dispute, the

21

Settling Parties shall request a magistrate judge of this court to

22
23

conduct a single mediation session pursuant to such procedures as the

24

magistrate judge may require. The mediation is to be held within

25

forty-five (45) days of the conclusion of the meet and confer

26

discussions, or as soon thereafter as the schedule of the magistrate

27

judge will permit.

28

CONSENT DECREE

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1

b. If any Settling Party fails to meet and confer or mediate within the

2

timeframes set forth in paragraph (a) directly above, or the meet and

3

confer and mediation do not resolve the dispute, after at least twenty-

4
5

one (21) days have passed after the meet and confer or mediation

6

occurred or should have occurred, either Settling Party may initiate

7

the “Formal Dispute Resolution” procedures outlined directly below.

8

27.

Formal Dispute Resolution. In any action or proceeding which is

9
10

brought by any Settling Party against any other Settling Party pertaining to, arising out

11

of, or related to the requirements of this Consent Decree, the Settling Parties will first

12

utilize the “Informal Dispute Resolution” proceedings set forth in the preceding

13

paragraph and, if not successful, the Settling Parties will utilize the “Formal Dispute

14

Resolution” procedures in this paragraph. “Formal Dispute Resolution” will be

15
16

initiated by filing a Motion to Show Cause or other appropriately titled motion

17

(“Motion”) in the United States District Court, Central District of California, to

18

determine whether either party is in violation of the Consent Decree and, if so, to

19

require the violating party to remedy any violation identified by the District Court

20

within a reasonable time frame. Litigation costs and fees incurred in the Formal

21
22
23

Dispute Resolution process will be awarded in accord with the standard established by
Section 505 of the Clean Water Act, 33 U.S.C. § 1365.

24

VII. MISCELLANEOUS PROVISIONS

25

28.

Effective Date. The “Effective Date” as used in this Consent Decree

26
27
28

shall mean the date the Court enters the Consent Decree.
29.

Termination Date. This Consent Decree shall terminate on December 1,

CONSENT DECREE

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1
2

2024; provided, however, that if, at the conclusion of the 2022-2023 Reporting Year
on June 30, 2023, the average concentration of all parameters using the results of all

3
4

the sampling obtained during QSEs and analytical results for the entire Facility do not

5

exceed any Numeric Action Level set forth in Table 2 of the Permit, then this Consent

6

Decree shall terminate 60-days after such results are provided to Plaintiffs, provided

7

there are no pending dispute resolution proceedings initiated under Paragraphs 26 and

8

27 and Defendant has completed all payments and affirmative duties required by the

9
10

Consent Decree. If, on December 1, 2024, any dispute resolution proceedings are

11

pending or Defendant has failed to complete all payments and affirmative duties

12

required by the Consent Decree, then the term of the Consent Decree shall be

13

extended through completion of any such proceedings or obligations.

14

30.

Force Majeure. Safeshred’s performance of the requirements in Section

15
16
17

II of this Consent Decree shall be extended or modified in the case of a force majeure
event, as follows:
a. A “force majeure event” is any event beyond the control of Safeshred

18
19

that prevents or delays the performance of any requirement in

20

Section II of this Consent Decree despite Safeshred’s best efforts to

21

fulfill the requirement. A force majeure event does not include a

22
23

financial inability to perform a requirement. A force majeure event

24

includes governmental orders or restrictions relating to COVID-19

25

and similar public-health threats.

26

b. Safeshred shall provide notice to Plaintiffs by electronic transmission

27

no later than fourteen (14) days after the time that Safeshred first

28

ONSENT DECREE

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2:20-cv-08423-DDP (SKx) and 2:20-cv-10176-DDP (SKx)

1

knew of, or by the exercise of due diligence, should have known of, a

2

force majeure event. The notice shall state the anticipated duration of

3

any delay, its cause(s), and propose an alternative schedule for

4

performing the affected requirement(s).

5

c. If Plaintiffs agree that a force majeure event has occurred, Plaintiffs

6
7

shall agree to extend the time for Safeshred to perform the affected

8

requirement(s) for the time necessary to complete those obligations.

9

d. If Plaintiffs do not agree that a force majeure event has occurred or

10
11

does not agree to the extension of time sought by Safeshred, the

12

Parties may invoke the Dispute Resolution Procedure in Paragraphs

13

26 and 27 of this Consent Decree.

14

31.

Execution in Counterparts. The Consent Decree may be executed in

15
16
17
18
19
20

one or more counterparts which, taken together, shall be deemed to constitute one and
the same document.
32.

Facsimile Signatures. The Settling Parties’ signatures to this Consent

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

21
22

33.

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

23

otherwise stated, shall be construed according to its plain and ordinary meaning. The

24

captions and paragraph headings used in this Consent Decree are for reference only

25

and shall not affect the construction of this Consent Decree.

26
27
28

34.

Authority to Sign. The undersigned are authorized to execute this

Consent Decree on behalf of their respective parties and have read, understood and

CONSENT DECREE

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1
2

agreed to all of the terms and conditions of this Consent Decree.
35.

Integrated Consent Decree. All covenants, representations and

3
4
5
6
7
8

warranties, express or implied, oral or written, of the Settling Parties concerning the
subject matter of this Consent Decree are contained herein.
36.

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

Decree are held by a court to be unenforceable, the validity of the enforceable
provisions shall not be adversely affected.

9
10
11
12
13
14

37.

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.
38.

Full Settlement. This Consent Decree constitutes a full and final

settlement of this matter. It is expressly understood and agreed that the Consent
Decree has been freely and voluntarily entered into by the Settling Parties with and

15
16
17

upon advice of counsel.
39.

Negotiated Consent Decree. The Settling Parties have negotiated this

18

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

19

but shall be construed as if the Settling Parties jointly prepared this Consent Decree,

20

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

21
22

40.

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

23

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

24

instrument signed by the Settling Parties.

25

41.

Assignment. Subject only to the express restrictions contained in this

26
27
28

Consent Decree, all of the rights, duties and obligations contained in this Consent
Decree shall inure to the benefit of and be binding upon the Settling Parties, and their

CONSENT DECREE

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1
2

successors and assigns.
42.

Mailing of Documents to Parties/Notices/Correspondence. Any

3
4

notices or documents required or provided for by this Consent Decree or related

5

thereto that are to be provided to Plaintiffs pursuant to this Consent Decree shall be, to

6

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

7

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

8

return receipt, or by hand delivery to the following addresses:

9
10
11
12

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

13
14

With copies sent to:

15

Michael R. Lozeau
Lozeau Drury LLP
1939 Harrison St., Suite 150
Oakland, CA 94612
E-mail: [e-mail]

16
17
18
19
20
21
22
23
24
25
26
27
28

Evan J. Smith
Ryan P. Cardona
BRODSKY & SMITH
9595 Wilshire Blvd., Ste. 900
Beverly Hills , CA 90212
Email: [e-mail]
[e-mail]
Unless requested otherwise by Safeshred, any notices or documents required or
provided for by this Consent Decree or related thereto that are to be provided to
Safeshred 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

CONSENT DECREE

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1

transmission is not feasible, by certified U.S. Mail with return receipt, or by hand

2

delivery to the addresses below:

3

Masahiko Nagata, President
Safeshred Co., Inc.
5928 S. Malt Ave.
Commerce, CA 90040
E-mail: [e-mail]

4
5
6
7

With copies sent to:

8

R Raymond Rothman
Morgan Lewis & Bockius LLP
300 South Grand Ave., 22nd Floor
Los Angeles, CA 90071-3132
E-mail: [e-mail]

9
10
11
12

Notifications of communications shall be deemed submitted on the date that

13
14

they are emailed, or postmarked and sent by first-class mail or deposited with an

15

overnight mail/delivery service. Any changes of address or addressees shall be

16

communicated in the manner described above for giving notices.

17

43.

18

Deadlines Falling on Non-Business Days. Any deadlines relating to

19

this Consent Decree which fall on the weekend or on a federal holiday shall be

20

extended to the following business day.

21
22

///

23

///

24

///

25
26
27

///
///

28

CONSENT DECREE

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2:20-cv-08423-DDP (SKx) and 2:20-cv-10176-DDP (SKx)

Case 2:20-cv-08423-DDP-SK Document 42-1 Filed 12/27/21 Page 29 of 39 Page ID #:188

EXHIBIT A 

Case 2:20-cv-08423-DDP-SK Document 42-1 Filed 12/27/21 Page 31 of 39 Page ID #:190

EXHIBIT B