Baykeeper v. Alco Iron and Metal Company et al

Filing 25

ORDER ENTERING AMENDED CONSENT DECREE. Signed by Judge Maxine M. Chesney on November 4, 2008. (mmclc1, COURT STAFF) (Filed on 11/4/2008)

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1 2 3 4 5 6 7 8 9 10 Christopher Sproul (State Bar No. 126398) Jodene Isaacs (State Bar No. 226895) ENVIRONMENTAL ADVOCATES 5135 Anza Street San Francisco, California 94129 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 E-mail: csproul@enviroadvocates.com jisaacs@enviroadvocates.com Attorneys for Plaintiff BAYKEEPER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BAYKEEPER, ) ) Plaintiff, ) ) v. ) ) ALCO IRON AND METAL COMPANY, a ) corporation, and KEM KANTOR, an individual, ) ) Defendants. ) ) ___________________________________________ ) Civil No. CV-05-00398-MMC [Proposed] ORDER ENTERING AMENDED CONSENT DECREE (Federal Water Pollution Control Act, 33 U.S.C. 1251 et. seq.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS this case closed in 2005 but the Court expressly retained continuing jurisdiction over the Consent Decree filed in this case on September 7, 2005. and entered by the Court on November 3, 2005; WHEREAS, Baykeeper notified Alco on June 5, 2008 that Alco had failed to comply with numerous requirements of the 2005 Consent Decree and that Alco was in violation of the Clean Water Act; WHEREAS the parties have jointly agreed to amend the storm water compliance measures in existing consent decree and extend its term by two years in a cooperative effort to avoid further litigation; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Baykeeper and Alco, by their authorized representatives, consent to the entry of the Amended Consent Decree; and WHEREAS, Baykeeper and Alco agree that settlement of this matter and entry of this Amended Consent Decree are in the public interest and made in good faith in an effort to avoid expensive and protracted litigation to enforce the 2005 Consent Decree. It is HEREBY ORDERED that the existing Consent Decree entered November 3, 2005. on is hereby superceded by the attached Amended Consent Decree attached to this Order. 4th November APPROVED AND SO ORDERED, this ___ day of ____________, 2008. by: __________________________________ MAXINE M. CHESNEY United States District Judge P R O P O S E D ORDER ENTERING AMENDED CONSENT DECREE Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jodene Isaacs (State Bar No. 226895) Christopher Sproul (State Bar No. 126398) ENVIRONMENTAL ADVOCATES 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Attorney for Plaintiff Baykeeper UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BAYKEEPER, Plaintiff, v. ALCO IRON AND METAL COMPANY, a corporation, and KEM KANTOR, an individual, AMENDED CONSENT DECREE (Federal Water Pollution Control Act, 33 U.S.C. 1251 et. seq.) Civil No. CV-00398-MMC Defendants. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Baykeeper is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of the San Francisco Bay and other area waters; WHEREAS, Alco Iron and Metal Company is a family-owned California business engaged in the collection and recycling of scrap metal with a facility at 321 Azuar Avenue, Vallejo, California (the "Mare Island Facility") and at 1091 Doolittle Drive, San Leandro, California (the "San Leandro Facility"). Alco Iron and Metal Company shall hereinafter be referred to as "Alco." WHEREAS, storm water discharges associated with industrial activity are regulated pursuant to the National Pollutant Discharge Elimination System ("NPDES"), General Permit No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 91-13-DWQ (as amended by Water Quality Order 92-12 DWQ and 97-03-DWQ), issued pursuant to Section 402 of the Federal Water Pollution Control Act, 33 U.S.C. 1342 (hereinafter "General Permit"); WHEREAS, on November 15, 2004, Baykeeper served Alco, the United States Environmental Protection Agency, the State Water Resources Control Board, the California Regional Water Quality Control Board, and the United States Attorney General with a notice of intent to file suit ("60-Day Notice") under Sections 505(a)(1) and (f) of the Federal Water Pollution Control Act ("Clean Water Act" or "the Act"), 33 U.S.C. 1365(b)(1)(A), for violations of the Act and the General Permit at the Facility; WHEREAS, Alco alleges to have remedied the conditions leading to allegations of the 60Day Notice prior to the filing of the Complaint and Baykeeper disputes these allegations; WHEREAS, Baykeeper filed a complaint ("Complaint") against Alco in the United States District Court, Northern District Court of California on January 28, 2005; WHEREAS, this Consent Decree shall be submitted to the United States Department of Justice for the statutory review period pursuant to 33 U.S.C. 1365(c); WHEREAS, all actions taken by Alco pursuant to this Consent Decree shall be made in compliance with all applicable federal, state, and local rules and regulations; WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter without further litigation; Amended Consent Decree Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. 3. 2. 1. WHEREAS, the Parties agree this Consent Decree is not intended in any way to prevent future lawful expansion or reorganization of Alco operations provided such expansion or reorganization is consistent and in compliance with the terms of this Consent Decree; NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS: I. COMMITMENT OF ALCO Commencement of Compliance Measures: Beginning immediately, Alco shall commence all measures needed to operate the Mare Island and San Leandro Facilities in full compliance with the requirements of the General Permit and applicable sections of the Clean Water Act. BMP Implementation: To prevent storm water from coming into contact with contaminants at the Mare Island and San Leandro Facilities and/or to prevent the discharge of contaminated storm water and non-storm water from the Mare Island and San Leandro Facilities into the waters of the State and of the United States, Alco shall implement appropriate structural and non-structural Best Management Practices ("BMPs") as defined in the General Permit and as described more fully below. Designated Discharge Points: Within 30 days of execution of this Consent Decree, Alco shall identify every point at the Mare Island and San Leandro Facilities at which storm water is discharged ("Designated Discharge Point"). Each Designated Discharge Point shall be numbered and clearly labeled on the Facilities' respective Site Maps. II. MARE ISLAND FACILITY COMPLIANCE MEASURES Designation of Process Area: The outdoor sorting, shredding, and bailing processing areas located at the southwestern side of the Mare Island Facility will hereinafter be referred to, and are designated on the Facility Site Map, as the "Process Area." Alco shall operate the Mare Island Facility such that operational activities that generate finely divided metals, dust, shavings, or other pollutants that can be tracked or entrained in storm water, including but not limited to, crushing, bailing, grinding, and torch cutting, are principally conducted within the Process Area until such time that facility improvements in other areas facilitate appropriate BMPs and such BMPs are in place to prevent tracking or entraining of finely divided materials into storm water. Amended Consent Decree Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Designation of Storage Area: The outdoor sorting and storage area located to the north of the warehouse at the Mare Island Facility will hereinafter be referred to as the "Storage Area," and shall be designated on the Site Map as such. Alco shall not conduct operational activities that generate finely divided metals, dust, shavings, or other pollutants that can be tracked or entrained in storm water, including but not limited to, crushing, bailing, grinding, and torch cutting ("operational activities") in the Storage Area until Alco completes paving and other site improvements in this area and institutes similar storm water BMPs in the Storage Area as Alco must implement for the Process Area under this Decree. (a) Designation of Driveway Areas: The roadway located to the south of the warehouse that extends from Azuar Drive to Alco's truck scale shall be referred to as the "Southern Driveway Area" and shall be designated on the Site Map as such. The driveway in front of the warehouse where customer vehicles park and truck traffic enters and exits shall be referred to as the "Front Driveway" and shall be designated as such. All of the drop inlets along the Southern Driveway shall be designated on the Site Map, and shall be included in the activities described under Paragraphs 9, 10, 11, 13, and 50. (b) Sampling of Drop Inlets along Southern Driveway: By September 30, 2008, Alco shall update its Site Map and designate the location of all drop inlets located between and in front of Buildings 627 and 629 on Azuar Drive. During the 2008-2009 wet season, Alco shall treat each of the drop inlets as Discharge Points and sample them according to the procedures set forth in Paragraph 50. If two consecutive samples from each of the Discharge Points results in pollutant levels below the Target levels set forth in the Sampling Chart for any parameter sampled, Alco need not conduct additional sampling during that Wet Season from that discharge point. In the 2009-2010 wet season, Alco shall only sample the two drop inlets with consistently highest concentrations of metals and solids as determined by the samples taken in the 2008-2009 wet season. 6. Hydraulic Controls: By September 30, 2005, Alco shall design and install berms or equivalent structural controls necessary to prevent storm water from flowing into, through, or out of the Process Area other than through the engineered storm water conveyance system. Alco Amended Consent Decree Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. 8. 7. shall operate the Mare Island Facility such that water, including non-storm water and storm water discharges, are otherwise directed away from the Process Area. Alco shall implement similar hydraulic controls which prevent storm water from flowing into, through, or out of the Storage Area other than through the engineered storm water conveyance system before commencing any operational activities in the Storage Area. Thereafter, Alco shall operate the Mare Island Facility such that water, including non-storm water and storm water discharges, are otherwise directed away from the Storage Area. Sealing of Storm Drain Inlet/Catch Basin: By September 30, 2005, Alco shall permanently seal the southwestern most storm drain inlet/catch basin within the Process Area adjacent to the Shear/Baler to prevent the discharge of any storm water or process water, or solid wastes, or liquid wastes into this storm drain inlet/catch basin. The permanent seal shall fully prevent any dust, debris, or water from entering the storm drain inlet/catch basin and shall be fixed in place so that it cannot be displaced or moved. Paving and Improving Storage Area: By September 30, 2005, Alco shall pave the Storage Area and complete storm drain inlet/catch basin and storm water filter system designed to capture and treat all storm water runoff from the Storage Area, except for a 200' wide by 500' long strip at northeast corner of the Storage Area which will be graveled (not paved). Initial Storm Water Treatment System: By September 30, 2005, Alco shall collect and treat storm water from the Process Area, Storage Area, and Southern Driveway prior to discharge. Initially, treatment shall consist of filters in each storm drain inlet or catch basin receiving storm water from the Process Area and Storage Area and well-maintained sand/oil interceptors, or other means of Alco's choosing designed to achieve, or at least advance, compliance with Target and Benchmark levels in the attached Exhibit 1. Alco shall inspect the storm drain inlets/catch basins on a daily basis during the rainy season (October 1 to May 31) to ensure that the filtering devices are not torn, clogged or otherwise in a condition that would impair their efficacy. Filter device installation shall include support by a rigid frame or other equivalent method to prevent short-circuited flows. Alco shall clean out filters to all storm drain inlets or catch basins following each storm event and shall properly dispose of any sediments or other pollutants Amended Consent Decree Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 removed from storm drain inlets or catch basins. Filters shall be changed or replaced as often as necessary to retain optimal removal of pollutants. During the dry season (June 1 to September 30), Alco shall seal, cap, or cover all of the storm drain inlets/catch basins in the Process Area and Storage Area to prevent oil and grease, sediments, and other pollutants from building up in and around the filtering devices and storm drain inlets/catch basins. 10. Storm Drain Inlet/Catch Basin Inspection: Alco shall inspect all storm drain inlets/catch basins on or around the Mare Island Facility into which storm water from the Facility may flow prior to the beginning of each wet season, within seven (7) days of the first anticipated storm event or September 15 of each year, which ever is earlier. During this inspection, Alco shall clean each storm drain inlet/catch basin and associated filter device with a vacuum or other effective cleaning device/method to remove fugitive dusts or solids that might have entered the storm drain inlet/catch basins despite the placement of coverings over the storm drain inlet/catch basins. The filter devices within each storm drain inlet/catch basin shall also be checked for integrity and replaced as necessary. 11. Storm Drain Inlet/Catch Basin Log: Alco shall prepare and maintain a Log of all Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning at the Facility. The Log shall identify the person who conducted the inspections, the date of inspection, the date of cleaning or maintenance, the date of filtration system replacement, and any other relevant information. Alco shall forward the Log to its in-house counsel on a monthly basis. Alco shall make the Log available to Baykeeper upon request. 12. Additional Management/Treatment of Storm Water: By March 1, 2006, Alco shall complete a further comprehensive study of the following additional treatment/source reduction measures for reducing the level of pollutants in storm water discharge from the Facility: (a) construction and operation of a retention pond and/or perimeter trench to retain storm water from the Process Area and/or Storage Area for sufficient retention times prior to discharge such that levels of pollutants in discharge meet Target and Benchmark levels in the attached Exhibit 1, (b), installation of a hook-up to the local publicly owned treatment works sanitary sewage collection system and the discharge of all storm water from the Process Area and/or Storage Amended Consent Decree Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Area to this collection system, and (c) installation of a roof/canopy structure over some or all of the Process Area and/or Storage Area to eliminate or reduce storm water contact with potential sources of pollution in these areas, (d) identification and segregation of pollutant generating materials to areas where they can be covered and isolated from rainfall and storm water flow and/or to areas where storm water can be routed to the sanitary sewer or effectively filtered and treated on-site, and (e) such other measures as Alco deems appropriate for study. By March 15, 2006, Alco shall submit a report to Baykeeper analyzing: (a) the expected storm water pollutant reduction benefits of the measures, (b) the costs of the measures, (c) the public agency approvals and permits needed to implement the measures, (d), the time reasonably needed to implement the measures, (e), the year storm event for which the measures would be designed to be effective, (f) and all factors specified in CWA section 304(b) for determining whether the measures constitute best available technology economically achievable ("BAT") and best conventional pollutant control technology ("BCT"). The report shall include Alco's recommendations for one or more additional treatment or management measures ("Treatment Measures") reasonably likely to achieve compliance with Target and Benchmark levels and timelines for reasonably expeditious implementation of the Treatment Measures. Baykeeper shall have thirty days to review and suggest revisions to the Report, including the Treatment Measures Recommendations. Within thirty days of receiving Baykeeper's comments on Alco's report, Alco shall revise the Report in accord with Baykeeper's suggestions or explain in writing why it is rejecting these suggestions. Any party may thereafter seek Dispute Resolution in accord with paragraph 69 of this Decree if the parties remain in dispute over the Report or the Treatment Measures Recommendations. After the parties reach agreement on the Treatment Measures Recommendations, or after Dispute Resolution resolves any dispute concerning such Recommendations, Alco implement the Treatment Plan Recommendations as an obligation of this Decree, according to the timelines set in the Report. 13. Site Sweeping and Cleaning: Immediately upon execution of this Consent Decree, Alco shall sweep the Process Area, Southern Driveway Area, and Front Driveway Area (collectively "driveways") not less than one time per day and more often as necessary to prevent the tracking Amended Consent Decree Page 6 of metal shavings and other pollutants outside the Process and Driveway Areas and to minimize the area that metal shavings and other pollutants are dispersed. Alco may employ mechanical sweepers until August 31, 2009. At which point, Alco shall either retain an outside commercial sweeping vendor who services are required to be used 3 days a week and that uses a regenerative sweeper to reach all areas where truck sweepers can effectively reach or Alco can obtain its own regenerative sweeper for daily use. If Alco retains an outside service to provide regenerative sweeping, Alco shall have the entire facility swept with the regenerative sweeper at least once week during dry season and at least three times a week during the wet season and continue to sweep daily with its mechanical sweeper and as needed to prevent accumulation of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pollution generating materials. Alco shall purchase a push type outdoor vacuum and conduct manual sweeping with the push vacuum in areas unreachable by mechanical sweeping. The push type outdoor vacuum shall be used in conjunction with manual push brooms such that the push brooms dislodge materials from the cracks in the pavement which can be collected by the vacuum. Alco may initially employ its recently acquired mechanical sweeper for this sweeping and shall evaluate the effectiveness of this sweeper. Should Alco continue to exceed Benchmarks and Target Levels, then Alco shall analyze whether employing a regenerative sweeper should be included in an Action Plan adopted pursuant to paragraph 57. For purposes of this Consent Decree, a regenerative sweeper is a mechanized sweeper that uses a blast of air in front of the brushes to raise tiny particles and improve sweeping performance. At least annually, Alco shall conduct a thorough inspection of the Facility to determine whether an additional comprehensive site cleaning is warranted with power wash or similar effective techniques. Alco shall not discharge any waste fluids or solid wastes generated in site cleaning to storm drain inlets or waterways. Alco shall store and dispose of all wastes generated in Facility cleaning and sweeping in a manner that complies with all local, state, and federal laws. Alco shall institute these sweeping and cleaning measures for the Storage Area after completing paving of this area and before commencing operational activities in this area. Alco shall acquire a handheld Global Positioning System ("GPS") tracker for use with the truck sweeper. The Sweeper operator shall use the GPS as an aid to ensure that all designated areas have actually Amended Consent Decree Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 been swept daily. (a) Alco shall remove any storm water that ponds around the discharge point located the Front Driveway around Discharge Point 3. The ponded storm water shall be removed at the start of business (if present), at the close of business (if present), and as needed during operating hours to prevent any tracking of the water onto Azuar Drive. 14. Site Sweeping and Cleaning Log: Alco shall keep a log of the sweeping and any other site cleaning activity performed at the Mare Island Facility. The person carrying out the sweeping or cleaning shall record his or her name, the locations that were swept or cleaned, the date and time that sweeping or cleaning was completed, and any other relevant information. Alco shall forward the Sweeping and Cleaning Log to its in-house counsel on a monthly basis. Alco shall make the sweeping and cleaning log available to Baykeeper upon request. 15. Prevention of Pollutant Discharge to Azuar Drive: Immediately upon execution of this Consent Decree, Alco shall implement BMPs necessary to ensure that industrial pollutants from operational activities are not discharged from the Facility onto Azuar Drive. Prevention measures shall include ensuring that materials or equipment are not stored in a manner that allows spillage or tracking onto the parking lots or driveways surrounding the Mare Island Facility. Alco may use truck mounted sweepers (mechanical sweepers no later than August 31, 2009 and must start to use a regenerative type sweeper after August 31, 2009) to sweep Azuar Drive at least 500 feet from the Front Driveway Area on a daily basis. If Alco elects to retain an outside sweeping service the regenerative sweeper must be used at least three days a week to sweep Azuar Drive during the wet season and once a week during the dry season, but Alco will sweep with its mechanical sweeper on those days which are not swept by the regenerative sweeper. If Alco obtains its own regenerative sweeper daily sweeping will be required. 16. Tracking: Alco shall implement BMPs to prevent tracking of pollutants from the Mare Island Facility. Immediately upon execution of this Consent Decree for existing paved areas and upon completion of improvements to the Facility for unpaved areas, Alco shall undertake enhanced BMP measures to prevent tracking of pollutants from the Facility, such as sweeping of the Process Area, Storage Area, Southern Driveway Area, and Front Driveway Area as described Amended Consent Decree Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 above. Sweeping and other appropriate BMPs shall be sufficient to prevent contaminants from being moved around the Mare Island Facility, to reduce the entrainment of pollutants into storm water flows, to prevent pollutants from being blown off the Facility into the adjacent wetlands, and to prevent pollutants from being tracked off the Facility onto surface streets. 17. Waste, Hazardous Materials Storage Area: On and after the date of execution of this Consent Decree, Alco shall implement a system: (1) for identifying all toxic and hazardous materials, including batteries, oil, solvents and hazardous or potentially hazardous waste materials such as waste oil and used absorbent materials that are delivered to or generated at the Mare Island Facility and (2) for segregating such identified materials from other materials at the Facility. By September 30, 2005, Alco shall complete a thorough site inspection to identify all toxic and hazardous materials, including batteries, oil, solvents and hazardous or potentially hazardous waste materials such as waste oil and used absorbent materials stored or kept at the Mare Island Facility. Thereafter, Alco shall store all such materials in a single area, under cover and on an impermeable surface, out of potential contact with flooding associated with storm water. 18. Loading/Unloading Areas: Immediately upon execution of this Consent Decree, loading and unloading of scrap materials shall take place only within the Process Area. Loading/Unloading of scrap materials also may be conducted in the Storage Area, providing structural and treatment controls are in place to prevent storm water contamination as described above. Alco shall sweep all loading and unloading areas as necessary to remove contaminants. If a spill occurs from materials awaiting processing, Alco shall immediately isolate and clean the loading area. 19. Vehicle and Equipment Management: Within 45 days of the execution of this Consent Decree, Alco shall implement BMPs to minimize pollutant release from stored or parked equipment such as forklifts, hydraulic lifts, and other heavy equipment. Such BMPs shall include parking all mobile heavy equipment in a consolidated parking area behind Building 629 overnight and during other prolonged hours of non-operation of such equipment, placing drip pans under stored or parked equipment with the potential to leak pollutant-containing fluids, weekly inspections for evidence of leaks from such equipment, and immediate cleaning up of Amended Consent Decree Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any spills, drips, or leaks from such equipment. Alco shall dispose of any spilled substances and absorbent materials used in cleaning up spills in accordance with all local, state, and federal laws and regulations. 20. Vehicle and Equipment Maintenance: Alco shall not conduct vehicle or movable equipment maintenance or repair in outdoor, uncovered areas at the Mare Island Facility during rainfall. Alco shall further not conduct vehicle or movable equipment maintenance or repair in outdoor, uncovered areas at the Facility if Alco could feasibly conduct the maintenance or repair in a covered area. Whenever Alco conducts maintenance or repair activities in non-covered areas, Alco shall inspect the area where the maintenance or repair occurred and clean-up any waste products, including pollutant containing fluids, deposited or spilled on the ground as a result of the maintenance or repair. 21. Maintenance of BMP Structural Controls: Immediately upon execution of the Consent Decree, Alco shall maintain structural BMPs at the site in good operating condition at all times. 22. Fueling Activities: Alco shall utilize a containment system with an impermeable surface for the fuel storage tanks at the Mare Island Facility in accordance with applicable laws and regulations. The containment system shall be designed and constructed to hold the entire capacity of the largest single container and sufficient freeboard to contain precipitation. Alco shall conduct fueling activities only on an impervious surface, in areas designated in its SWPPP. Alco shall require that its fuel supplier or employees immediately remove and dispose of any fuel spills in accordance with all applicable local, state, and federal laws and regulations. 23. Storage of Waste and Received Material Bins: By September 30, 2005, Alco shall store all waste storage bins at the Mare Island Facility indoors, or if stored outdoors, shall cover such waste storage bins, except when bins are being dumped, to prevent dust and other materials from being blown outside the waste storage bins and to minimize storm water runoff from such bins. Alco shall unload all drop boxes containing received materials by the end of each work day in which they are received or the following workday for night time deliveries or shall cover such drop boxes with a secured tarp or similar device if boxes are to be stored overnight with materials still in them. Amended Consent Decree Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Amendment of SWPPP: By September 30, 2008, Alco shall amend the Mare Island Facility SWPPP to incorporate all improvements and best management practices set forth in this Consent Decree. Alco shall also update the SWPPP as needed to make the document consistent with the requirements of the General Permit and reflect the current stormwater BMPs at the Facility. Alco shall provide a copy of the Amended SWPPP to Baykeeper within seven (7) days of completion. Within fourteen (14) days of notification by Baykeeper, Alco shall make all reasonable changes to the Amended Facility SWPPP that are requested by Baykeeper unless Alco invokes Dispute Resolution. 25. Amendment of the Site Map: By September 30, 2008, Alco shall amend the Facility Site Map to include all components set forth in the General Permit and this Consent Decree. A copy of the Amended Site Map shall be provided to Baykeeper within seven (7) days of completion. Within fourteen (14) days of notification by Baykeeper, Alco shall make all reasonable changes to the Facility Site Map that are requested by Baykeeper unless Alco invokes Dispute Resolution. III. SAN LEANDRO FACILITY COMPLIANCE MEASURES 26. Designation of Southern Processing Area: The uncovered sorting, shredding, and bailing processing areas of the San Leandro Facility that drain storm water to the city of San Leandro sanitary sewer system will hereinafter be referred to and designated on the Facility Site Map as the "Southern Processing Area." Alco shall not discharge storm water or non-storm water from the Southern Processing Area to any storm drain or off-site ground location. Alco shall not intermingle water that is collected or contained within the Southern Processing Area with storm water discharged from the other areas of the San Leandro Facility. 27. Designation of the Davis Street Receiving Area: The outdoor customer unloading area on and adjacent to Davis Street will hereinafter be referred to and designated on the Facility Site Map as the "Davis Street Receiving Area." This includes the entire area Alco and/or its customers use to unload scrap metal. This Area will be designated on the San Leandro Facility Site Map. 28. Designation of the Yard Process Area: The outdoor loading, sorting, and storage area Amended Consent Decree Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29. immediately south of Eden Road at the San Leandro Facility will hereinafter be referred as the "Yard Process Area" and shall be designated as such on the Site map. Loading and Unloading of Scrap Materials: Immediately upon execution of this Consent Decree, Alco shall load and unload scrap materials only within designated loading areas at the San Leandro Facility. Such loading areas shall be on the identified and defined on the Site Map. If a spill of pollutant containing fluid occurs from recycled materials awaiting processing, Alco shall immediately isolate the area where the spill occurs and clean up the spill appropriately, including using absorbent materials as appropriate. Alco shall dispose of all cleaned-up fluids and used absorbent materials in accord with all applicable laws. Alco shall amend its SWPPP for the San Leandro Facility to designate all loading areas for the Facility. 30. Hydraulic Control: By September 30, 2005, Alco shall design and install or maintain berms or equivalent structural controls to prevent the discharge of storm water from the Facility to Davis Street. Such flows shall be directed to areas that drain into Alco's sanitary sewer discharge. (a) Prior to the start of the 2008-2009 wet season, Alco shall purchase a push type outdoor vacuum and sweep the entire Davis Street frontage at least once a day with the vacuum. The push type outdoor vacuum shall be used in conjunction with manual push brooms such that the push brooms dislodge materials from the cracks in the pavement which can be collected by the vacuum. Alco shall continue to utilize manual push brooms along the entire Davis Street frontage and driveways during operating hours to prevent pollutants from collecting and/or being tracked into Davis Street. 31. Eden Road Access Point BMPs: By September 30, 2005, Alco shall implement BMPs to ensure that industrial pollutants are not discharged from the San Leandro Facility driveways leading to Eden Road. BMP measures shall include installation and maintenance of site contouring/hydraulic barriers to prevent water flow from the San Leandro Facility out the Eden Road driveway to Eden Road. Until such time as Eden Road is paved or lined with gravel, BMP measures shall further include minimizing the use of the Eden Road driveway for vehicle ingress to the San Leandro Facility to the maximum extent practicable, including not using the Eden Amended Consent Decree Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Road driveway for vehicle ingress on any day following measurable rainfall at the San Leandro Facility site. In addition, Alco shall at the close of every business day or before accumulation of significant rainfall (whichever is sooner) cleanup and remove any mud, dust or sediment tracked onto the San Leandro Facility as a result of using the Eden Road driveway for vehicle ingress. Alco shall include in its comprehensive study of additional treatment/source reduction measures feasibility analysis required pursuant to paragraph 37 paving of Eden Road or lining Eden Road with gravel as a more effective potential BMP. 32. Davis Street Pollution Prevention: Beginning immediately, Alco shall implement BMPs to ensure that industrial pollutants from activities within the Davis Street Receiving Area are not tracked, spilled, blown, or conveyed by surface water flow onto Davis Street. Such BMPs shall include: (a) ensuring that Alco or Alco's customers' materials or equipment are not unloaded or stored in a manner that allows spillage of pollutant materials onto Davis Street or the driveway or sidewalks fronting Davis Street, (b) immediate sweeping up of dust, sediment, or other dry pollutant materials spilled or deposited in the Davis Street Receiving Area, the driveways or sidewalks fronting Davis Street and the San Leandro Facility, or Davis Street to prevent movement of such pollutants onto surrounding sidewalks and streets (provided such dust, sediment, or pollutant materials are present due to Alco's operations or customer unloading of materials at the San Leandro Facility), (c) daily sweeping of the Davis Street Receiving Area and fronting sidewalk at close of business following any unloading in this area to ensure that any accumulated pollutants in this area are not washed or blown into storm drains or Davis Street overnight, (d) sweeping of the Davis Street Receiving Area twice a day (once by noon and again at closing time) on any day of rainfall during which customers unload materials at the Davis Street Receiving Area, (e) immediate cleaning up of any spills of pollutant containing fluids with absorbent materials or other effective technique, (f) inspecting all equipment, including hydraulic lifts, used in the Davis Street Receiving Area prior to use to ensure that no leaking or dripping of oils or fluids are occurring from such equipment and not using any leaking equipment in this area, and (g) powerwashing the Davis Street Receiving Area annually. The powerwash shall utilize the appropriate controls necessary to prevent any discharges to Amended Consent Decree Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Davis Street or any storm drains. Alco shall dispose of any spilled materials in this area and any absorbent materials used for cleaning up spills in this area in accordance with all local, state and federal laws and regulations. (a) Should Alco move their sales and bin storage operations from their current location, all BMPs and other requirements described in paragraphs 37 through 65 of this consent decree shall apply to the new location as appropriate. Alco shall inform the Region al Water Quality Control Board of the change in operations and apply for coverage under General Permit for the new facility if separate coverage is required. 33. Storm Water Treatment: By September 30, 2005, Alco shall design and implement an initial treatment system for storm water collected by all storm drain inlets/catch basins at the San Leandro Facility. 34. Initial Storm Water Treatment System: By September 30, 2005, Alco shall treat all storm water discharged from the San Leandro Facility, other than storm water discharged to the sanitary sewer, prior to discharge. Initially, treatment shall consist of filters in each storm drain inlet or catch basin receiving storm water or other means of Alco's choosing designed to achieve, or at least advance, compliance with Target and Benchmark levels in the attached Exhibit 1. Alco shall inspect the storm drain inlets/catch basins on a daily basis during the rainy season (October 1 to May 31) to ensure that the filtering devices are not torn, clogged or otherwise in a condition that would impair their efficacy. Filter device installation shall include support by a rigid frame or other equivalent method to prevent short-circuited flows. Alco shall clean out filters to all storm drain inlets or catch basins following each storm event and shall properly dispose of any sediments or other pollutants removed from storm drain inlets or catch basins. Filters shall be changed or replaced as often as necessary to retain optimal removal of pollutants. During the dry season (June 1 to September 30), Alco shall seal or cap cover all Facility storm drain inlets/catch basins to prevent oil and grease, sediments, and other pollutants from building up in and around the filtering devices and storm drain inlets/catch basins. 35. Storm Drain Inlet/Catch Basin Inspection: Alco shall inspect all storm drain inlets/catch basins on or around the San Leandro Facility into which storm water from the Facility may flow Amended Consent Decree Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prior to the beginning of each wet season, within seven (7) days of the first anticipated storm event or September 15 of each year, which ever is earlier. During this inspection, Alco shall clean each storm drain inlet/catch basin and associated filter device with a vacuum or other effective cleaning device/method to remove fugitive dusts or solids that might have entered the storm drain inlet/catch basins despite the placement of coverings over the storm drain inlet/catch basins. Alco shall also check the filter devices within each storm drain inlet/catch basin for integrity and shall replaced the devices as necessary. 36. Storm Drain Inlet/Catch Basin Log: Alco shall prepare and maintain a Log of all Storm Drain Inlet/Catch Basin Inspections, Maintenance and Cleaning at the Facility. The Log shall identify the person who conducted the inspections, the date of inspection, the date of cleaning or maintenance, the date of filtration system replacement, and any other relevant information. Alco shall make the Log available to Baykeeper upon request. 37. Additional Management/Treatment of Storm Water: By March 1, 2006, Alco shall complete a further comprehensive study of the following additional treatment/source reduction measures for reducing the level of pollutants in storm water discharge from the San Leandro Facility: (a) installation of measures to route a greater percentage of storm water flow from the Facility into the local publicly owned treatment works sanitary sewage collection system, (b) installation of a roof/canopy structure over some or all of the areas of the Facility that are currently uncovered, (c) installation of additional storm water treatment measures, such as improved pollutant filters, (d) identification and segregation of pollutant generating materials to areas where they can be covered and isolated from rainfall and storm water flow and/or to areas where storm water can be routed to the sanitary sewer or effectively filtered and treated on-site, (e) paving Eden Road or lining Eden Road with gravel, (f) repairing any leaking water conveyances that are a source of non-storm water inundation of Eden Road, and (g) such other measures as Alco deems appropriate for study. By March 15, 2006, Alco shall submit a report to Baykeeper analyzing: (a) the expected storm water pollutant reduction benefits of the measures, (b) the costs of the measures, (c) the public agency approvals and permits needed to implement the measures, (d), the time reasonably needed to implement the measures, (e), the Amended Consent Decree Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 year storm event for which the measures would be designed to be effective, (f) and all factors specified in CWA section 304(b) for determining whether the measures constitute best available technology economically achievable ("BAT") and best conventional pollutant control technology ("BCT"). The report shall include Alco's recommendations for one or more additional treatment or management measures ("Treatment Measures") reasonably likely to achieve compliance with Target and Benchmark levels and timelines for reasonably expeditious implementation of the Treatment Measures. Baykeeper shall have thirty days to review and suggest revisions to the Report, including the Treatment Measures Recommendations. Within thirty days of receiving Baykeeper's comments on Alco's report, Alco shall revise the Report in accord with Baykeeper's suggestions or explain in writing why it is rejecting these suggestions. Any party may thereafter seek Dispute Resolution in accord with paragraph 69 of this Decree if the parties remain in dispute over the Report or the Treatment Measures Recommendations. After the parties reach agreement on the Treatment Measures Recommendations, or after Dispute Resolution resolves any dispute concerning such Recommendations, Alco shall implement the agreed upon or resolved Treatment Plan Recommendations as an obligation of this Decree, according to the timelines set in the Report. (a) Alco to install additional treatment system to be implemented by January 1, 2009 which will treat all storm water from the facility (excluding area that currently discharges to the City of San Leandro's sanitary sewer system and Davis Street Receiving Area frontage) prior to discharge. (b) Prior to designing and installing the treatment system, Alco shall provide the results of any pilot tests as well as the conceptual proposal for the facility system. After the conceptual proposal is approved by Baykeeper, Alco will design the treatment system such that it is capable of capturing the runoff associated with a 25 year/ 24 hour storm event. If the treatment system is not designed to capture a 25 year/ 24 hour storm event, Alco may propose an alternative capture capacity that Alco provides an explanation as to why the alternative capacity is adequately protective. Alco will provide the following information pertaining to the design of the treatment system to Baykeeper: Amended Consent Decree Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i. Facility flow pattern: Alco will provide Baykeeper with a contour map which denotes where storm water runoff flows throughout the facility, where it will be captured, and where it will be diverted to the treatment system. Any flow that is not captured and treated by the system will also be indicated on the contour map. ii. Collection system storage and detention volumes: Alco will provide Baykeeper with information as to the location of any collection sumps (such as drop inlets, manholes or other such conveyance devices), plumbing (such as trenches, pipes, flumes), storage vessels (such as tanks, sumps, ponds), and the capacity of any storage vessels that are part of the treatment system. iii. Collection and transfer system flow rate: Alco will provide Baykeeper with information as to the limiting flow rate (i.e. gallons per minute) for each component of the collection system. iv. Treatment system flow rate: Alco will provide Baykeeper with information as to the treatment flow rate (i.e. gallons per minute) for each component of the collection system. v. Maintenance cycle: If available, Alco will provide Baykeeper with an estimated maintenance cycle represented as either the volume of water, timeframe, or a mechanical function of the system that signifies when regular maintenance is expected to be needed. (c) Once Alco has provided Baykeeper with the above information, Baykeeper shall have fourteen days to comment on and suggest revisions to the treatment system design. Alco shall adopt Baykeeper's suggested revisions unless Alco invokes Dispute Resolution. (d) Alco may petition Baykeeper for an extension of time to install the additional treatment system discussed above. Based on a showing that the timeframe is infeasible despite Alco's best efforts, Baykeeper shall grant a three month extension for the installation of the treatment system. 38. Site Sweeping and Cleaning: Within 45 days of executing this Consent Decree, Alco shall complete a thorough cleaning of the San Leandro Facility using mechanical sweeping. Alco Amended Consent Decree Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shall acquire a push-type outdoor vacuum and conduct manual sweeping with the push vacuum in areas unreachable by mechanical sweeping. Alco shall powerwash the Yard Process Area at least annually or more frequently as necessary to remove shavings, particulates, oil and grease and other pollutants from the Facility grounds. The powerwash shall utilize all appropriate controls to prevent any discharges to Doolittle Drive or any storm drains. Immediately upon execution of this Consent Decree, Alco shall sweep the Facility not less than one time per day and more often as necessary to prevent the tracking of metal shavings and other pollutants outside the Facility and to minimize the area within the Facility where metal shavings and other pollutants are disbursed. Alco shall employ mechanical sweepers to reach all areas where mechanical sweepers can effectively reach and push vacuum sweeping in areas unreachable by mechanical sweeping. At least annually, Alco shall conduct a thorough inspection of the Facility to determine whether an additional comprehensive site cleaning is warranted with power wash or similar effective techniques. Alco shall not discharge any waste fluids or solid wastes generated in site cleaning to storm drain inlets or waterways. Alco shall store and dispose of all wastes generated in Facility cleaning and sweeping in a manner that complies with all local, state, and federal laws. By October 1, 2008, Alco shall either retain an outside commercial sweeping vendor that uses a regenerative sweeper or obtain its own regenerative sweeper and sweep Doolittle Drive and Davis Street within 500 feet of the Facility's entrances every two weeks in the dry season (June 1 to September 30) and on a weekly basis during the wet season (October 1 to May 31). 39. Site Sweeping and Cleaning Log: Alco shall keep a Log of the sweeping and any other site cleaning activity performed at the San Leandro Facility. The Log shall identify the person carrying out the sweeping or cleaning, the locations that were swept or cleaned, the date and time that sweeping or cleaning was completed, and any other relevant information. Alco shall make the sweeping and cleaning log available to Baykeeper upon request. 40. Covering of Storage Areas: At the end of every business day and during any rainfall, Alco shall store all collected loose and finely divided metal materials, fragments, or debris that have been processed with lubricating oils in the course of grinding, cutting, or shredding in an Amended Consent Decree Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enclosed building or roofed area or in bins covered with secured tarps or other rain-impermeable cover. 41. Waste, Hazardous Materials Storage Area: On and after the date of execution of this Consent Decree, Alco shall implement a system: (1) for identifying all toxic and hazardous materials, including batteries, oil, solvents and hazardous or potentially hazardous waste materials such as waste oil and used absorbent materials that are delivered to or generated at the San Leandro Facility and (2) for segregating such identified materials from other materials at the Facility. By September 30, 2005, Alco shall complete a thorough site inspection to identify all toxic and hazardous materials, including batteries, oil, solvents and hazardous or potentially hazardous waste materials such as waste oil and used absorbent materials stored or kept at the San Leandro Facility. Thereafter, Alco shall store all such materials in a single area, under cover and on an impermeable surface, out of potential contact with flooding associated with storm water. 42. Storage of Materials Outside the Facility: Immediately upon execution of this Consent Decree, Alco shall not store scrap metal or waste outside of the Facility boundary. Alco shall prevent stored scrap metal or wastes from spilling over Facility fencing onto areas outside of such fencing. 43. Vehicle and Equipment Management: Within 45 days of the execution of this Consent Decree, Alco shall implement BMPs to minimize pollutant release from stored or parked equipment such as forklifts, hydraulic lifts, and other heavy equipment. Such BMPs shall include parking all mobile heavy equipment in one or more consolidated paved parking areas overnight and during other prolonged hours of non-operation of such equipment, placing drip pans under stored or parked equipment found to be leaking pollutant-containing fluids until such time as the leak is repaired, weekly inspections for evidence of leaks from such equipment, and immediate cleaning up of any spills, drips, or leaks from such equipment (with absorbent materials or similar effective technique). Alco shall dispose of spilled substances and used absorbent materials in accordance with all local, state, and federal laws and regulations. Alco shall not store or park heavy equipment such as forklifts and hydraulic lifts outside of the Amended Consent Decree Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Facility boundary that have the potential to release oil and other contaminants on public Streets, including Eden Road, or sidewalks surrounding the San Leandro Facility for time increments greater than two hours. Alco shall minimize the storing or parking of any other Alco vehicles (such as trucks and trailers) or Facility vehicles on public Streets, including Eden Road, or sidewalks surrounding the San Leandro Facility to the extent practicable. Such stored or parked vehicles shall either be empty or shall store only covered materials, and Alco shall inspect such vehicles daily to ensure that parked or stored vehicles are not leaking oil, fuel or other contaminants. 44. Vehicle and Equipment Maintenance: Alco shall not conduct vehicle or movable equipment maintenance or repair in outdoor, uncovered areas at the San Leandro Facility during rainfall. Alco shall conduct vehicle and movable equipment maintenance and repair indoors or under cover, and begin to utilize the warehouse to the south of the Yard Process Area for all vehicle and movable equipment maintenance by January 1, 2009. Whenever Alco conducts maintenance or repair activities Alco shall inspect the area where the maintenance or repair occurred and clean-up any waste products, including pollutant containing fluids, deposited or spilled on the ground as a result of the maintenance or repair. 45. BMP Maintenance: Beginning immediately, Alco shall maintain structural BMPs at the site in good operating condition at all times. 46. Fueling Activities: Alco and/or Alco's contractors shall conduct fueling activities only in designated areas on an impervious surface where storm water runoff is collected and treated prior to discharge. Alco shall require that its fuel supplier or employees place drip pans underneath vehicles being fueled, immediately control and cleanup any fuel spills and remove and dispose of all associated wastes in accordance with all applicable local, state, and federal laws and regulations. Alco shall ensure that any fueling contractor is informed about and adheres to these requirements. 47. Storage of Waste and Received Material Bins: By September 30, 2005, Alco shall store all waste storage bins at the San Leandro Facility indoors, or if stored outdoors, shall cover such waste storage bins, except when bins are being dumped, to prevent dust and other materials from Amended Consent Decree Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 being blown outside the waste storage bins and to minimize storm water runoff from such bins. Alco shall unload all drop boxes containing received materials by the end of each work day in which they are received or the following workday for night time deliveries or shall cover such drop boxes with a secured tarp or similar device if boxes are to be stored overnight with materials still in them. 48. Amendment of SWPPP: By January 1, 2009, Alco shall amend the Facility SWPPP to incorporate all improvements and BMPs set forth in this Consent Decree. Alco shall also update the SWPPP as needed to make the document consistent with the requirements of the General Permit and reflect the current stormwater BMPs at the Facility. A copy of the Amended SWPPP shall be provided to Baykeeper within seven (7) days of completion. Within fourteen (14) days of notification by Baykeeper, Alco shall make all reasonable changes to the Amended Facility SWPPP that are requested by Baykeeper unless Alco seeks Dispute Resolution. 49. Amendment of the Site Map: By January 1, 2009, Alco shall amend the Facility Site Map to include all components set forth in the General Permit and this Consent Decree. A copy of the Amended Site Map shall be provided to Baykeeper within seven (7) days of completion. Within fourteen (14) days of notification by Baykeeper, Alco shall make all reasonable changes to the Facility Site Map that are requested by Baykeeper unless Alco seeks Dispute Resolution. IV. SAMPLING, MONITORING, INSPECTION & REPORTING 50. Sampling Program: Subject to the limitations set forth in Paragraphs 51 to 53, Alco shall collect samples from each Discharge Point at the Mare Island and San Leandro Facilities according to the following sampling schedule: (a) During the first year of this Consent Decree, and except as set forth below in this paragraph, Alco shall collect five storm water samples per year from each Discharge Point at the Mare Island and San Leandro Facilities. If two consecutive samples from each of the Discharge Points results in pollutant levels below the Target levels set forth in the Sampling Chart for any parameter sampled, Alco need not conduct additional sampling during that Wet Season for such parameter. Amended Consent Decree Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) During the second year of this Consent Decree, and except as set forth below in this paragraph, Alco shall collect four storm water samples from each Discharge Point at the Mare Island and San Leandro Facilities. (c) During the third year of this Consent Decree, Alco shall collect three storm water samples from each of the Discharge Points at the Mare Island and San Leandro Facilities. (d) During the fourth and fifth year of this Consent Decree, Alco shall collect four storm water samples from each Discharge Point at the Mare Island and San Leandro Facilities. Alco may take samples from non-qualifying events for the purposes of acquiring four samples. When providing the sample results to Baykeeper, Alco shall note how long it was raining prior to sample collection and how much rainfall occurred on any of the preceding days, if any. (e) Alco shall analyze each storm water sample collected for each of the parameters listed on the Sampling Chart attached hereto as Exhibit 1. Should operations change at the either the Mare Island and San Leandro Facilities, Alco shall conduct sampling for any additional priority pollutants listed in 40 C.F.R. 131.38 likely to be present in Alco's storm water discharges as a result of the changed operations. (f) Where Alco discharges storm water into a storm drain inlet or catch basin, Alco may choose to collect a sample below any insert or treatment system. If Alco chooses not to collect a post-filtration or post-treatment sample, the chemical quality of storm water samples entering a storm drain inlet or catch basin containing a fabric insert shall be considered the same as a sample collected below the insert. 51. Timing of Samples: While this Consent Decree is in effect, Alco shall take all storm water samples within the first two hours that flow is observed at the Discharge Points for each storm event. 52. Lack of Qualifying Storms: Although Alco is required to take samples from qualifying storm Amended Consent Decree Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 events to meet the requirements of the General Permit, Alco may sample any storm event, including non-qualifying events, for the purposes of Paragraph 50 provided that the sampled event is submitted with data from the on-site weather station, i.e. hourly rainfall totals for the preceding three days. If samples are not collected from the designated sampling locations for the above referenced storm event due to lack of discharge, Alco shall document such fact in a Storm Water Sampling Log. Alco shall provide such Log to Baykeeper upon request. 53. Qualified Laboratory Analysis: Alco shall have all storm water samples collected pursuant to this Decree delivered to a California state certified environmental laboratory for analysis within the time needed for analysis within laboratory method allowable hold times. The laboratory shall thereafter conduct analysis sufficient to detect individual constituents at or below the Target levels set forth in the attached Exhibit 1. 54. Presentation of Sample Results: Alco shall provide complete results from Alco's sampling and analysis to Baykeeper within fourteen (14) days of receipt of the laboratory report from each sampling event. Each time Alco receives sampling results, Alco shall provide a chart in digital or hardcopy form that summarizes the results of all the samples and includes the Target and Benchmark levels for comparison. The summary chart shall consistently present the sample summaries in micrograms per liter for all of the metal parameters tested. Target and Benchmark levels included for comparison shall also be presented in micrograms per liter for reference. 55. Compliance with Best Available Technology Economically Achievable and Best Conventional Pollutant Control Technology: Effluent Limitation B(3) of the General Permit requires that BMPs be developed and implemented to achieve Best Available Technology Economically Achievable ("BAT") and Best Conventional Pollutant Control technology ("BCT"). Alco agrees to develop and implement BMPs necessary to comply with the BAT/BCT standard in the General Permit. These BMPs shall include, but are not limited to, the measures identified in this Consent Decree. Alco will compare analytical results of storm water samples with the Benchmark levels in Exhibit 1 to evaluative the effectiveness of BMPs. If Alco's storm water results exceed a Benchmark level in Exhibit 1, Alco agrees to comply with the assessment and action plan requirements specified below. Amended Consent Decree Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56. Compliance with Applicable Water Quality Standards: Receiving Water Limitation C(2) in the General Permit requires that Alco "not cause or contribute to the exceedance of any applicable water quality standards." Target levels in Exhibit 1 are taken from the California Toxics Rule, codified at 40 C.F.R. 131.38 ("CTR"), and the San Francisco Bay Regional Water Quality Control Board's Water Quality Control Plan ("Basin Plan"). The Parties agree that if the water quality standard in the CTR or the Basin Plan that apply to the constituents in Exhibit 1 change during the life of this Consent Decree, then the Target Levels will be deemed revised to reflect the current, applicable water quality standards. Alco agrees to develop and implement BMPs designed to achieve the Target levels in Exhibit 1. Alco shall compare analytical results of storm water samples with the Target Levels to evaluate the effectiveness of its BMPs. Also agrees to comply with the assessment and action plan requirements specified below if any of Alco's storm water result exceed the Target levels. 57. Action Plan: Within 45 days of receiving any sample results showing that pollutant concentrations in Alco's storm water discharges have exceeded an Exhibit 1 Target or Benchmark level during the life of this Consent Decree, Alco shall prepare and send to Baykeeper an action plan or revised action plan designed to make progress toward eventual compliance with Exhibit 1 Target and Benchmark levels ("Action Plan"). Each Action Plan will set or set forth the sample results showing the exceedance, the possible cause and/or the source of the exceedance, measures that Alco will take to reduce the level of pollutants associated with the exceedances in future storm water discharges to or below the Target and Benchmark levels in Exhibit 1, and a schedule to implement the proposed BMPs by the earliest practicable time, generally not to exceed thirty days. Should Alco decide that structural measures are necessary to resolve pollutant problems, and such structural measures will require more than 30 days to design and install, Alco shall contact and provide Baykeeper with the reason for the additional time required and the expected date of implementation. Alco shall not unreasonably delay in implementing additional structural measures. In preparing any Action Plan, Alco shall consider specifying comprehensive, site specific storm water testing within the Facility to identify areas within the Facility that are responsible for storm water pollutant generation and the adoption of Amended Consent Decree Page 24 BMPs specifically tailored for such areas. Baykeeper shall have thirty days to comment on and suggest revisions to the Action Plan. Alco shall adopt Baykeeper's suggested revisions unless Alco invokes Dispute Resolution. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a). In years four and five of this Consent Decree, Alco shall provide Action Plans for each Facility on February 1st and June 15th. The February 1st Action Plan shall include all storm water samples taken prior to January 16 of that storm water year that exceed an Exhibit 1 Target or Benchmark levels. The June 15th Action Plan shall include all storm water samples taken between January 15th and May 31st of that storm water year that exceed an Exhibit 1 Target or Benchmark levels. The February 1st and June 15th Action Plans for each Facility shall include all of the components of the Action Plan as described above in Paragraph 57. 58. SWPPP Amendment: At the conclusion of the rainy season, by the due date for Annual Reports pursuant to this Consent Decree, Alco shall amend its SWPPP to include all additional BMP measures designated in each Action Plan. Alco shall submit its revised SWPPP to Baykeeper within ten days of completing any SWPPP revisions. 59. Liquidated Mitigation Payments: If any storm water sample from the Mare Island or San Leandro Facility exceeds Benchmark pollutant levels as set forth in Exhibit 1 after October 1, 2006, Alco shall pay liquidated mitigation of $500 for each exceedance of any Benchmark level for any one pollutant parameter in any given sampling event, subject to a cap of the lesser of (1) $10,000 per storm event per Alco facility, or (2) total annual liquidated mitigation payment liability of no more than $35,000. Notwithstanding the foregoing, any storm water samples that Alco takes within either the Mare Island or San Leandro Facility for the purpose of identifying site specific areas of pollutant generation as part of designing remedial measures pursuant to paragraphs12 or 37 shall not be subject to the payment requirement of this paragraph. In years four and five of this Consent Decree, Alco may choose among all the storm water samples t

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