Baykeeper v. Bae Systems San Francisco Ship Repair, Inc.

Filing 7

Consent Decree (tf, COURT STAFF) (Filed on 1/6/2012)

CONSENT DECREE
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,

Systems

shipyard where ship cleaning, repair, and other industrial activities occur. BAE Systems
is located at the Foot of 20th S
WHEREAS, stormwater discharges associated with industrial activity at the Facility are

Permit No. CAS000001 [State Water Resources Control Board], Water Quality Order No. 92-12DWQ (as amended by Water Quality Order 97-03-DWQ), issued pursuant to Section 402 of the

. These industrial activities include, inter alia, structural repair of ships, sheet metal
fabrication, surface preparation (abrasive blasting, hydroblasting, and pressure washing),
painting, electrical component repair and replacement, machinery overhaul and repair, piping
and boiler repair, bilge water treatment, lagging and insulation removal and installation, overhaul
and rigging of shipboard components, and other industrial activities related to ship cleaning or
repair;
WHEREAS, the Industrial Stormwater Permit includes the following requirements for all
permitees, including BAE Systems: 1) develop and implement a storm water pollution

to prevent and reduce pollutants and any more stringent controls necessary to meet water quality
1

standards, and 3) implement BAT and BCT through the development and application of Best
Management P
WHEREAS, discharges at the Facility are also regulated by the San Francisco Regional
NPDES Permit No. CA0005321 [R2-20110017 and R2-2006-0

;

WHEREAS, on August 23, 2011, Baykeeper served BAE Systems, BAE Systems
registered agent, the Administrator of EPA Region IX, the Executive Director of the State Water
e Officer of the Regional Board, the U.S.
Attorney General, and the Administrator of the EPA

-Day

, 33 U.S.C. § 1365(b)(1)(A), alleging violations of the Act, the
Industrial Stormwater Permit, and BAE Systems Individual NPDES Permit at the Facility;
BAE Systems in the
United States District Court, Northern District Court of California on October 24, 2011 (Case
No. 3:11-cv-05184-SI);
WHEREAS, Baykeeper contends in its 60-Day Notice and Complaint that, among other
things, BAE Systems has repeatedly discharged polluted stormwater in violation of the Industrial
Stormwater Permit and the Clean Water Act, discharged pollutants in violation of its Individual
NPDES Permit, and discharged pollutants without a permit in violation of the Clean Water Act,
and BAE Systems denies all allegations set forth in the 60-Day Notice and Complaint and
s Complaint should be dismissed;
WHEREAS, the Parties, through their authorized representatives and without either
by BAE Systems of any alleged violation or
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ions in the 60-Day Notice and
Complaint through settlement and avoid the cost and uncertainties of further litigation;
WHEREAS, the Parties agree that it is in their mutual interest to resolve this matter
without further litigation;
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE SETTLING
PARTIES, AND ORDERED AND DECREED BY THE COURT, AS FOLLOWS:
I.

COMMITMENTS OF BAE SYSTEMS

1.

In order to reduce or prevent pollutants associated with industrial activity from

discharging via stormwater to the waters of the United States, and in order to eliminate direct
discharges of pollutants to waters of the United States, BAE Systems shall implement
appropriate structural and non-

as required by

the Industrial Stormwater Permit and its Individual NPDES Permit, as described more fully
below.
2.

Site Maps: BAE Systems shall inspect its Facility so as to complete site maps

that comprehensively depict the flow of stormwater at the Facility
shall clearly denote the direction of stormwater flow. The Site Map shall clearly identify the
property boundaries, known or suspected drop inlets, ground type (pervious or impervious),
berms and the materials they are comprised of, any permanent structures and features, discharge
points, and all other physical structures or items relevant under the Industrial Stormwater Permit
and in this Consent Decree.
3.

Designated Discharge Points: BAE Systems shall identify and number on the

Site Map every location at which stormwater and non-stormwater is known to be discharged or
which may potentially be discharged

.
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4.

Dust Generating Activities: BAE Systems shall update the SWPPP to fully

describe, and designate on the Site Map, all industrial activities that generate dust, particulates,
to:
(a) structural repair of ships, (b) sheet metal fabrication, (c) surface preparation (abrasive
blasting, hydroblasting, and pressure washing), (d) painting, (e) electrical component repair and
replacement, (f) machinery overhaul and repair, (g) bilge water treatment, (h) lagging and
insulation removal and installation, (i) overhaul and rigging of shipboard components, (k) other
industrial activities related to ship cleaning or repair, and (l) storage areas. Describe the
characteristics of dust and particulate pollutants; the approximate quantity of dust and particulate
pollutants that may be deposited within and outside the facility boundaries; and a description of
the primary areas of the facility where dust and particulate pollutants would settle. BAE Systems
shall denote all actions taken to control the deposition of dust and particulate matter at the
Facility, including any sweeping activities, water spraying activities, and use of shrouding,
berms, filtration devices or systems, or other such equipment.
5.

Designation and Protocol for All Sampling Locations: BAE Systems shall

update its SWPPP to fully describe the protocol for taking stormwater samples. The description
shall be precise with respect to exactly where and when the samples are to be collected and shall
further explain why the sample points are representative of off-site discharge. For instance, if
the discharge point is a driveway, BAE Systems shall specify which side of the driveway the
sample is collected and determine if additional collection points need to be added on the
driveway to ensure that the sampling program characterizes all the monitored constituents in the
stormwater runoff.

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6.

Best Management Practices: BAE Systems shall develop and implement BMPs

necessary to comply with Effluent Limitation B(3) and Receiving Water Limitation C(2) of the
Industrial Stormwater Permit, which requires that BMPs be developed and implemented to limit
pollutant discharge to that attainable with BAT and BCT. Accordingly, BAE Systems shall
implement the BMPs set forth in paragraphs 7-22 at the Facility.
7.

Storm Drain Inlet/Catch Basin Best Management Practices:
a.

Prior to October 1 of each year, BAE Systems shall inspect each storm

drain inlet at the Facility. During this inspection, BAE Systems shall clean, as
needed, each drain inlet in order to remove dust and solids that have entered the storm
drain inlets.
b.

Twice per month during the Wet Season (i.e., from October 1 to May 31

of each year that this Consent Decree is in effect

, BAE Systems

shall inspect all storm drain inlets or catch basins at the Facility to ensure that the
storm drain inlets or catch basins are not in a condition that would materially impair
their efficacy and clean out any sediment deposited into these storm drain inlets or
catch basins. BAE Systems shall properly dispose of any dust, sediment, or other
pollutants removed from storm drain inlets or catch basins.
c.

At present, the wharf at BAE contains approximately 100 drains that

discharge to the Bay. BAE shall undertake an evaluation of such drains to determine
which drains are needed for continued discharge. Within thirty (30) days of the
Effective Date, those drains that have been designated for sampling in accordance
with the SWPPP shall be fitted with cloth filters. Within sixty (60) days of the
Effective Date, all drains that have not been designated for discharge shall be sealed.
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Additionally, all drains that discharge shall be fitted with cloth filters. Within one
hundred twenty (120) days of the Effective Date, BAE Systems shall install and
maintain drain filter units within storm drains that are designated for discharge to
permit drainage of the wharf or any other storm drains that have not been sealed off
and do not drain to the sanitary sewer. Filters should be sourced such that they target
pollutant removal with particular focus on reducing heavy metals, including copper,
zinc, nickel, and lead. Select drains may require modification to enable sampling of
post-treatment stormwater associated with the wharf, the monitoring requirements for
which are specified in Section V.
d.

Log of Storm Drain Inlet/Catch Basin Inspections, Maintenance and

Cleaning: BAE Systems shall prepare and maintain a log of the Storm Drain
Inlet/Catch Basin Inspections, Maintenance and Cleaning described herein

the maintenance activity and when it was completed. The Log shall be made
available for inspection by Baykeeper at any site inspection or otherwise within two
(2) business days advance request by Baykeeper.
8.

Block Stowage Area: It shall be the commitment of BAE Systems to eliminate

contaminated stormwater discharges from the block stowage area within ninety (90) days of the
Effective Date. BAE Systems shall sweep the block stowage area and remove all trash or scrap
material. BAE Systems may choose to (i) install stormwater collection facilities and treat
stormwater prior to discharge to the Bay, (ii) permanently remove all sources of potential
pollutants, or (iii) collect and discharge stormwater to the sanitary sewer.

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9.

Facility Monitoring: Prior to October 1 of each year, and weekly during the Wet

Season, BAE Systems shall conduct inspections of those portions of the Facility from which
stormwater discharges. Such inspections shall include driveways, storage areas, hazardous
material areas, and all process areas. All Designated Discharge Locations shall also be inspected
for accumulation of dust, sediment, sand, grit, oily substances, oily sheens upon any standing
water, and other materials associated with operations at the Facility. If any of these materials are
present, BAE Systems will clean the area.
10.

Site Sweeping: After the Effective Date, BAE Systems shall sweep the paved

areas of the entire Facility once per week. BAE Systems shall sweep the paved area on the
wharf adjacent to the dry docks twice per week. BAE Systems shall keep a log or checklist, as
appropriate, of the on-site sweeping activity performed at the Facility
shall direct employees and/or contractors to accurately complete this Log. The Sweeping Log
shall indicate the employee or contractor who conducted the sweeping, the location of the
sweeping, and the dates the sweeping activities occurred. The Sweeping Log shall be made
available for inspection by Baykeeper at any site inspection or otherwise within two (2) business
day advance request by Baykeeper.
11.

Paving and Pavement Repair: BAE Systems shall routinely inspect paved areas

and implement repairs or replacement to damaged surface pavement on an as needed basis to
prevent accumulation of pollutants.
12.

Hazardous Waste Materials Segregation and Handling: After the Effective

Date, to the extent not already implemented, BAE Systems shall implement a system: (1) for
identifying any toxic and hazardous materials handled at the Facility and (2) for segregating such
identified materials from other materials at the Facility and storing all such materials under cover
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and on an impermeable surface, out of potential contact with stormwater or site flooding, with
the exception of satellite accumulation stations, which may be located on a permeable surface so
long as they are not located near a storm drain inlet or catch basin. The requirement that

or covered container. BAE shall update the SWPPPs for both of the Facility to reference any
Hazardous Materials Management Plans.
13.

Abandoned or Inutile Equipment Storage and Removal: After the Effective

Date, BAE Systems shall either store under cover or remove from the Facility all abandoned or
broken equipment, scrap metals, or other equipment no longer considered for future use that have
the potential to serve as the source for pollutant loading.
14.

Vehicle and Equipment Management: After the Effective Date, to the extent

not already implemented, BAE Systems shall implement BMPs to reduce or minimize pollutant
release from equipment such as forklifts, hydraulic lifts, dump trucks, and other heavy equipment
that are parked or stored in areas of the Facility from which stormwater discharges. Such BMPs
shall include placing drip pans under equipment stored or parked for a week or longer, weekly
inspections for evidence of leaks from such equipment, and promptly (as soon as reasonably
possible and in no case later than in advance of forecasted rainfall events) cleaning up of spills,
drips, or leaks from such equipment. Any spilled substances and absorbent materials used in
cleaning up spills shall be disposed of in accordance with all local, state, and federal laws and
regulations.
15.

Vehicle and Equipment Maintenance: After the Effective Date, to the extent

not already implemented, BAE Systems shall not conduct routine (i.e., non-emergency) vehicle
or movable equipment maintenance or repair at the Facility in outdoor, uncovered areas from
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which stormwater discharges during rainfall events. Whenever BAE Systems conducts such
maintenance or repair activities in non-covered areas from which stormwater discharges from the
Facility, BAE Systems shall inspect the area where the maintenance or repair occurred and
clean-up waste products, including pollutant containing fluids, deposited or spilled on the ground
as a result of the maintenance or repair.
16.

Fueling Activities: After the Effective Date, to the extent not already

implemented, except in unusual and unexpected circumstances where equipment located on a
pervious surface has run out of fuel and requires refueling to be operational, BAE Systems shall
conduct fueling activities at the Facility only on an impervious surface, in accordance with its
SWPPP, and require that its fuel supplier or employees immediately clean-up, remove and
dispose of any fuel spills in accordance with all applicable local, state, and federal laws and
regulations.
17.

Vertical Shrouding: Within sixty (60) days of the Effective Date, BAE Systems

shall install new shrouding on both ends of the dry docks to seal these areas. This vertically
hanging shrouding must be in place at both ends of each dry dock whenever a ship is present in
the dry dock. The shrouding must reach both sides and the base of the dry dock and be free of:
tears, gaps between the sheets and wing walls and dock basin, or holes except for the entrance
for vehicles or wind loading criteria at or below which all particulate generating activity must
have ceased. In order to minimize the opening in the shrouding, BAE Systems shall install a
shrouding strips that can be pushed aside to enable vehicle access to the dry dock.
While performing spraying, sanding, painting, or dust-generating operations in dry docks,
shrouding shall be in place to minimize the loss of fugitive dust and associated pollutants. BAE
Systems shall inspect all shrouding before each day that the dry docks are in use. BAE Systems
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must maintain the shrouding and keep a log at the Facility of its daily inspections and
maintenance.
18.

Dry Dock Pollution Control: Within ninety (90) days of the Effective Date, to

prevent the discharge of pollutants from the dry docks associated with pressure spraying,
painting, and general operations and maintenance activities, additional BMPs shall be
implemented. Such measures shall include the use of shrouds during dry abrasive blasting
within three meters of the top of the wing wall, extending from the tops of the wing walls to the
deck or upper sides of the vessel, to contain pollutants within the dry dock for on-site
containment and disposal

. Other measures shall include self-contained

hydroblasting machines and/or fog nozzles, when appropriate. Recommended guidance for
installation of wing wall shrouds and other containment techniques may be found in the shipyard
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The shroud

should be large enough to adequately enclose or segregate the working area and be sufficiently
supported to withstand anticipated wind stress. BAE Systems shall inspect all shrouding and
other BMPs before each day that the dry docks are in use. BAE Systems must maintain the
shrouding and keep a log at the Facility of its daily inspections and maintenance.
19.

Over Water Protection: In the event vessel maintenance and operations

activities occur directly over San Francisco Bay, additional over water protection shall be
employed to prevent discharge of pollutants directly to the water surface. Whenever pollutants
cannot be effectively contained within the dry dock, lighters (e.g. pontoons, small floating decks
or barges) shall be used to protect the water surface beneath and adjacent to vessels that
overhang floating dry docks. Lighters must be large enough to support workers and required
1

Oregon Department of Environmental Quality. 2000. Best Management Practices for Oregon Shipyards. Available
at www.deq.state.or.us

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equipment, and shall be positioned adjacent to the operations area to provide a catch surface for
paint, grit, oil, etc. During particulate generating activities, lighters shall be used in conjunction
with shrouding to contain all pollutants for effective cleanup. Cleanup of the lighter shall occur
daily, involving sweeping or vacuuming of spent material, followed by appropriate disposal.
20.

Dry Dock Track Out Prevention: Within ninety (90) days of the Effective

Date, BAE Systems shall modify existing tire wash facilities so that tracking from the dry dock
is minimized and contaminated wash water is not discharged to San Francisco Bay. Currently,
ramps between the dry docks and wharf are not liquid tight, which encourage the deposition of
potentially contaminated wash water directly into the Bay. An appropriate stabilized exit shall
be installed that achieves the dual objectives of removing contaminated wash water from
vehicles and preventing discharge of such water directly into San Francisco Bay. This could be
achieved by isolating tire wash activities on the dry dock and installing an impervious ramp
equipped with rumble strips and a mechanism for directing wash water to the on-site treatment
system, prior to discharge to the sanitary sewer.
21.

Training: After the Effective Date, and annually thereafter, and within thirty (30)

days of hiring of new employees, BAE Systems shall conduct training for all appropriate
employees to explain the requirements of this Consent Decree, the Facility SWPPP, the
Industrial Stormwater Permit, and BAE Systems Individual NPDES Permit to the extent
applicable to such employee. Training shall focus
various Consent Decree measures including, for example, implementation of BMPs, sweeping,
shroud maintenance, appropriate power spraying methods, or Facility inspections. Training shall
be conducted bilingually (i.e., Spanish/English or other pertinent language) to the extent that
such employee is not reasonably able to comprehend training in English. BAE Systems shall
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SWPPP. BAE Systems shall also update the SWPPP to identify the positions responsible for
carrying out stormwater management, process water management, monitoring, sampling, and
SWPPP implementation at the Facility.
22.

Maintenance of BMP Structural Controls: After the Effective Date, BAE

Systems shall maintain structural BMPs at the Facility in good operating condition during the
Wet Season and shall promptly repair any damaged or degraded structural BMPs.
23.

Amendment of SWPPP: Within sixty (60) days of the Effective Date, BAE

Systems shall amend, and submit to Baykeeper, its SWPPP to incorporate the requirements and
BMPs set forth in this Consent Decree pursuant to Paragraphs 7 through 22 above (e.g., updated
Site Map, designation of areas, protocol for stormwater sampling) and to incorporate any other
requirements of the Industrial Stormwater Permit not already incorporated. Baykeeper shall
have thirty (30) days from receipt of the amended SWPPP to propose changes to that SWPPP.
Within thirty (30) days of notification by Baykeeper of proposed changes to the SWPPP and of
the reasons for such changes, BAE Systems
SWPPP unless BAE Systems timely invokes Dispute Resolution. Compliance with the SWPPP,
as amended in accordance with this paragraph provision, shall at all times be a requirement of
this Consent Decree.
V.

SAMPLING, MONITORING, INSPECTION & REPORTING

24.

Sampling Program - Stormwater: After the Effective Date, subject to the

limitations set forth below, BAE Systems shall collect and analyze stormwater samples from
each Designated Discharge Point at the Facility according to the following sampling schedule:

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a.

During the Wet Seasons of 2012-2013 and 2013-2014, BAE Systems shall

collect and analyze samples from four (4) storm events, as qualified in the Industrial
Stormwater Permit, except that BAE Systems can collect and analyze storm water
discharges after the first hour of discharge during scheduled facility operating hours
and samples can be collected on a day which has been preceded by one (1) day of
measurable rain (i.e., 0.1 inches or more per day) and at least 24 hours has passed
since any previous samples were taken, from each Designated Discharge Point at the
Facility, unless a Designated Discharge Point does not discharge that often in a Wet
Season, in which case, BAE Systems shall collect as many samples described above
as possible. If three (3) consecutive samples from a Designated Discharge Point have
constituent concentrations below the Target levels set forth in Exhibit 1 for all
parameters sampled, BAE Systems need not conduct additional sampling in that Wet
Season.
b.

BAE Systems shall analyze each stormwater sample collected for the

presence of each of the parameters listed on the Sampling Chart attached hereto as
Exhibit 1. If BAE Systems obtains three consecutive samples from each of the
Designated Discharge Points at the Facility which are below the Target Levels in
Exhibit 1 for a given constituent, BAE Systems need not have its stormwater from the
Facility analyzed for that particular constituent for the remainder of this Consent
Decree. Should operations materially change at the Facility, BAE Systems shall
conduct sampling for any additional toxic priority pollutants listed in 40 C.F.R. §
131.38 likely to be present in BAE Systems stormwater discharges as a result of the
changed operations.
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c.

Where BAE Systems discharges stormwater into a storm drain inlet or

catch basin, BAE Systems may choose to collect a sample below any insert or
treatment system.
25.

Certified Lab: BAE Systems shall have all stormwater samples collected

pursuant to this Consent 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 levels set forth in the attached Exhibit 1.
26.

Sample Result Reporting: After the Effective Date, BAE Systems shall provide

complete results from BAE System

seven (7)

calendar days of receipt of the laboratory report from each sampling event.
27.

Baykeeper Monitoring: After the Effective Date, BAE Systems will provide a

schedule of planned ship activity to Baykeeper each month, including days when BAE Systems
employees are planning to perform hydroblasting, pressure washing, and/or dry abrasive
blasting. Ship repair schedules are proprietary and business sensitive. Baykeeper shall keep
these schedules confidential and shall not disclose any of these schedules to any person or entity
Baykeeper will periodically
observe, by boat, BAE Systems

visually determine if BAE Systems is discharging

process wastewater in violation of its Individual NPDES Permit and/or the Clean Water Act.
Certain contracts involving Vessels of the Armed Forces require Force Protection Barriers to
establish a perimeter security boundary around those vessels. If such a security barrier or
equivalent signage is in place, no small vessel traffic may enter within that area. Should
Baykeeper observe any violation it will immediately inform BAE Systems of such activity by
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calling Mr. Michael Cheng, BAE Systems SFSR Environmental Supervisor at [phone],
or Mr. Shaun Halvax, BAE Systems Ship Repair Environmental Manager [phone]. If no
answer is received, a voice mail message shall be left identifying the date, time, and location of
the alleged violation. Baykeeper shall provide documentation of any such violations to BAE
Systems within two (2) business days of the observations. Within ten (10
notification to BAE Systems of a discharge violation, BAE Systems must submit to Baykeeper a
document which includes: 1) a description of the BMPs that BAE Systems will implement over
the subsequent thirty (30) days to correct the discharge, or 2) an explanation of why BAE
Systems disagrees that it has discharged process wastewater in violation of its Individual NPDES
Permit and/or the Clean Water Act. Any further disagreement shall follow the dispute resolution
provisions of paragraph 42, below.
28.

Action Plan: By June 15 of each year after the Effective Date, BAE Systems

shall prepare and send to Baykeeper an Action Plan if stormwater sample results during the
previous Wet Season exceed EPA Benchmarks set forth in Exhibit 1.
29.

Contents of Action Plan: If an Action Plan is required, it shall set forth: (1) a

summary chart setting forth all sample results for the Facility from the previous Wet Season,
including the constituent concentrations from Designated Discharge Point samples collected at
the Facility exceeding EPA Benchmarks in Exhibit 1

ible sources

of such Exceedances, (3) recommended BMPs that attempt to reduce the level of pollutants
associated with the Exceedances in future storm water discharges and that satisfy the goal of
protecting adopted receiving water quality standards, taking into account factors specified in
CWA section 304(b), 33 U.S.C. section 1314(b), including consideration of treatment

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technology; and (4) a schedule to implement any new BMPs by the earliest practicable time, and
before the next Wet Season, if possible.
30.

Baykeeper shall have thirty (30) days from receipt to propose revisions to the

Action Plan and explain in writing the basis for each such revision. Within thirty (30) days of
BAE Systems
the Action Plan unless BAE Systems timely invokes Dispute Resolution.
31.

BAE Systems shall implement the Action Plan(s) adopted pursuant to this

Consent Decree as an obligation of this Consent Decree.
32.

Within thirty (30) days after BMPs recommended in an Action Plan pursuant to

this Consent Decree are complete, BAE Systems shall amend its SWPPP to include all BMP
Recommendations not otherwise already implemented and included in the SWPPP. Within
thirty (30) days thereafter pursuant to this paragraph, BAE Systems shall provide Baykeeper with
a copy of such revised SWPPP.
33.

During each Wet Season, BAE Systems is under an ongoing obligation to

evaluate the BMPs implemented at the Facility and discussed in current or previous Action Plans
and continue to attempt to reduce the level of pollutants for the remainder of the Wet Season.
BAE Systems shall use the results from subsequent stormwater samples as they become
available to assist with its ongoing evaluation of the effectiveness of BMPs.
34.

End of Season Summary: By June 15th of each year, BAE Systems shall provide

Baykeeper an end of season summary report that includes (1) a summary chart with all the
sample results from the previous Wet Season; and (2) identification of any new BMPs that BAE
Systems has implemented or will implement not already discussed in prior summary reports or
Action Plans.
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VII.

EXCEEDANCES, SITE ACCESS, & REPORTING

35.

Stipulated Payments: BAE Systems shall pay the following stipulated payments

during the term of this Consent Decree.
a. Industrial Stormwater Permit
i.

One thousand dollars ($1,000) for each failure to collect a required sample
during the Wet Season.

ii.

Beginning with the second stormwater sampling event of the 2012/2013
wet season, so long as at least two (2) qualifying events occur during the
2012/2013 wet season: Two hundred fifty dollars ($250) each time that a
parameter from a sampling event exceeds EPA Benchmarks (Exhibit 1),
and an additional two hundred fifty dollars ($250) each time that a
parameter from a sampling event exceeds the Target Levels/Water Quality
Standards (Exhibit 1).

b. Individual NPDES Permit
i.

One thousand five hundred dollars ($1500) each time that Baykeeper
observes, and provides to BAE Systems contemporaneous notification of
observation and within two (2) business days, photographic or video
documentation of, a discharge from BAE Systems
the Individual NPDES Permit or the discharge of a pollutant without a
permit in violation of the Clean Water Act, following the process provided
in Paragraph 27 above;

c.

Five hundred dollars ($500) per day for every business day (Monday

through Friday, excluding state and federal holidays) past the due date that BAE
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Systems fails to submit to Baykeeper any document, report or other communication
required under the Consent Decree; and
d.

Five hundred ($500) per day for every business day (Monday through

Friday, excluding state and federal holidays) past the due date that BAE Systems fails
to submit any payments due under the terms of this Consent Decree.
e.

All payments of stipulated payments described above shall be paid by

June 30th of each year this Consent Decree is in effect to the Rose Foundation for the
Environment, 6008 College Avenue, Oakland, CA 94618, Attn: Tim Little, with a
copy of payment sent concurrently to Baykeeper. Stipulated payment funds will be
used by the Rose Foundation to fund projects that benefit water quality in the San
Francisco Bay watershed. The Rose Foundation will provide in writing to BAE
Systems a description of how funds were used on a specific water quality project(s).
In no case shall any of the funds be received by Baykeeper.
36.

Stipulated payments shall begin to accrue one day after any passed deadline as

provided in Paragraph 35, above, provided that, within ten (10) business days from the
applicable deadline, BAE receives notice under Paragraph 62 of the missed deadline. If
Baykeeper provides written notice to BAE more than ten (10) business days from the applicable
missed deadline, stipulated payments shall begin to accrue ten (10) days prior to the date of

37.

Reduction in Stipulated Payments: BAE Systems shall be allowed a 50%

reduction of any stipulated payments due in any given calendar year pursuant to the preceding
paragraph if BAE Systems tenders the reduced payment to Baykeeper along with a certification
signed under penalty of perjury stating that BAE Systems will, within one year, spend or be
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under contract to spend the balance of the sum that would otherwise be due as a stipulated
payment on alternative environmental enhancements. Alternative environmental enhancements
shall include: (a) completing indoor or covered facilities at the Facility including the
construction of canopies over processing, operation, or material storage areas; (b) the acquisition
of an improved stormwater filtration system approved by Baykeeper (including any stormwater
retention capacity integrated with the filtration system), or (c) construction and operation of the
appurtenances needed to discharge stormwater runoff from the Facility to a publicly owned
treatment works sanitary sewer system provided that BAE Systems includes as part of this sewer
connection project the construction and operation of stormwater retention devices (such as
retention ponds, basins, or tanks) to allow storage of stormwater for disposal after peak rainfallrelated sewer collection system flows have subsided. BAE Systems must further submit within
thirty (30) days of completing the foregoing alternative environmental enhancement project a
subsequent notice to Baykeeper explaining how BAE Systems expended the funds and how this
expenditure met the required terms. If BAE Systems fails to meet all conditions of this
paragraph, then it must pay the balance of the stipulated payment sum not yet paid within twelve
(12) months from the date the payment was originally due.
38.

Site Access: During the term of this Consent Decree, BAE Systems shall permit

representatives of Baykeeper to perform one (1) physical inspection per year of the Facility
during operating hours, which may include sampling, and agreed-upon photographing and/or
videotaping compliant with applicable Federal Rules of Civil Procedure. The scope of the
inspection and agreed-upon photographing and/or videotaping may be limited or conditioned by
(and its customers
) business sensitive/proprietary information, security requirements, to comply with
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International Traffic at Arms Regulations (ITAR), or to comply with prohibitions related to U.S.
export control laws. Baykeeper shall provide BAE Systems notice at least two (2) business days
in advance of such physical inspection, and BAE Systems shall have the right to deny access if
circumstances would make the inspection unduly burdensome and pose significant interference
with business operations. In such case, BAE Systems shall specify at least three (3) days within
the next two (2) weeks upon which a Baykeeper inspection may proceed during normal business
hours, and the Parties shall agree upon the inspection date. Baykeeper shall comply with all
safety instructions provided to Baykeeper by BAE Systems staff during any site inspection.
BAE Systems shall not use the period of Baykeeper advance notice pursuant to this paragraph to
make any alterations to Facility conditions that BAE Systems would not otherwise have made

be allowed to inspect and sample normally representative Facility conditions and any discharges.
39.

Reports: During the term of this Consent Decree, BAE Systems shall provide

Baykeeper with a copy of all documents submitted to the Regional Water Board or the State
Water Board concerning the Facility and compliance with the Industrial Stormwater Permit and
BAE Systems Individual NPDES Permit. Such documents and reports shall be transmitted to
Baykeeper via electronic mail, if feasible, or by U.S. Mail when electronic transmission is not
feasible, at the time the documents are due to be submitted to the Regional Water Board or State
Water Board.
VIII. MITIGATION, FEES, AND COSTS
40.

Environmental Mitigation Funding: As mitigation of the violations alleged in
s Notice and Complaint, BAE Systems shall pay the sum of one hundred thirty

thousand dollars ($130,000) to Spaulding Wooden Boat Center

, a nonprofit
20

organization located in Sausalito, California, for a Supplemental Environmental Project (Exhibit
2). BAE Systems shall pay the sum of sixty-five thousand dollars ($65,000) to Spaulding within
thirty (30) days of the Effective Date. BAE Systems shall pay the remaining sixty-five thousand
dollars ($65,000) to Spaulding within one (1) year of the Effective Date, for a total of one
hundred thirty thousand dollars ($130,000). Spaulding shall report to the U.S. Department of
Justice and the Parties on how the funds were spent, as provided in Exhibit 2. Payments shall be
made to Spaulding Wooden Boat Center, Foot of Gate Five Road, Sausalito, California 94965,
with notice to Baykeeper. In the event that the SEP is completed under budget, the remainder of
the sum of one hundred thirty thousand dollars ($130,000) shall be paid to the Rose Foundation
for the Environment, for projects that will benefit the environment of the San Francisco Bay
watershed. The Rose Foundation shall report the grant funding made with the tendered funds to
the U.S. Department of Justice, and the Parties, setting forth the recipient and purpose of the
funds. Any such payment shall be made to the Rose Foundation for the Environment, 6008
College Avenue, Oakland, California 94618 within twenty-five months of the Effective Date.
41.

Reimbursement of Fees and Costs: BAE Systems shall reimburse Baykeeper in

the amount of thirty thousand dollars ($30,000)
investigation, expert,

s reasonable

fees and costs, and all other reasonable costs incurred as a

result of investigating the activities at the Facility related to this Consent Decree, bringing these
matters to BAE Systems attention, and negotiating a resolution of this action in the public
interest. BAE Systems shall tender payment to Baykeeper within thirty (30) days of the
Effective Date.
42.

Compliance Monitoring Funds: BAE Systems shall reimburse Baykeeper

thirteen thousand three hundred and thirty three dollars ($13,333) per year for each of the three
21

years of the Term of this Consent Decree, in the total amount of forty thousand dollars ($40,000)
for costs and fees associated with monitoring BAE Systems
Decree. Monitoring activities include site inspections, review of water quality sampling reports,
review of annual summary reports, review of Action Plans and other documents submitted
pursuant to this Consent Decree, discussion with representatives of BAE Systems concerning
potential changes to compliance requirements, water quality sampling, informal dispute
resolution, and other actions necessary to monitor and ensure BAE Systems
this Consent Decree. The first compliance monitoring fund payment of $13,333 shall be made
payable to Baykeeper within thirty (30) days after the Effective Date, the second compliance
monitoring fund payment of $13,333 shall be made payable to Baykeeper within 12 months from
the Effective Date, and the third compliance monitoring fund payment of $13,334 shall be made
payable to Baykeeper within 24 months from the Effective Date.
43.

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

Party believes that a breach of this Consent Decree has occurred, the Parties shall schedule a
meet and confer within ten (10) business days of receiving written notification from the other
Party of a request for a meeting to determine whether a violation has occurred and to develop a
mutually agreed upon plan, including implementation dates, to resolve the violation. If the
Parties fail to meet and confer or the meet and confer does not resolve the issue, after at least
seven (7) days have passed after the meet and confer occurred or should have occurred, either
Party shall be entitled to all rights and remedies under the law, including bringing a motion
before the United States District Court for the Northern District of California for the limited
purposes of enforcement of the terms of this Consent Decree. The parties shall be entitled to
seek fees and costs incurred in any such action pursuant to the provisions set forth in the Section
22

505(d) of the Clean Water Act, 33 U.S.C. §1365(d), and applicable case law interpreting such
provision.
IX.

JURISDICTION AND STIPULATION TO DISMISS

44.

For the purposes of this Consent Decree, the Parties stipulate that the United

States District Court of California, Northern District of California, has jurisdiction over the
Parties and subject matter of this Action. The Parties stipulate that venue is appropriate in the
Northern District of California and that BAE Systems will not raise in the future as part of
enforcement of this Agreement whether Baykeeper has standing to bring the Complaint or any
subsequent action pursuant to the Dispute Resolution procedures herein.
45.
Consent Decree, Baykeeper shall submit this Consent Decree to the U.S. Department of Justice
.R. §135.5. The agency review period expires
forty-five (45) calendar days after receipt by the DOJ. In the event DOJ comments negatively on
the provisions of this Consent Decree, the Parties agree to meet and confer to attempt to resolve
the issues raised by DOJ.
46.

-day review period as

provided above, the Parties will submit this Consent Decree to the District Court, along with a
Stipulation and proposed Order that shall provide:
a.

For dismissal of the Complaint and all claims therein with prejudice

pursuant to Federal Rule of Civil Procedure 41(a)(2);
b.

That the Court shall retain and have jurisdiction over the Parties with

respect to resolving disputes arising under this Consent Decree; and

23

c.

If any court of competent jurisdiction subsequently finds that the Court

lacks jurisdiction to resolve any dispute that may arise under this Consent Decree and
enforce this Consent Decree
Parties stipulate that (1) they will jointly request the Court to set aside dismissal of
the Complaint and to reinstate the Complaint for the sole purpose of providing the
Court jurisdiction to resolve the dispute and enforce this Consent Decree accordingly
and (2) should the Court decline to do so, this Consent Decree shall be deemed a
binding contract enforceable as a contract by the California Superior Court for the
County of San Francisco.
X.

WAIVER AND RELEASES

47.

Baykeeper Waiver and Release of Noticed Parties and Covenant Not to Sue:

Upon the Effective Date, Baykeeper, on its own behalf and on behalf of its officers, directors,
employees, members, parents, subsidiaries, affiliates and each of their successors and assigns and
its agents, attorneys, and other representatives covenants not to sue BAE Systems or its officers,
directors, employees, members, parents, subsidiaries, affiliates, or their successors or assigns, or
its agents, attorneys, or other representatives with respect to any stormwater or process-related
discharges, as alleged in the 60-Day Notice and/or the Complaint, from the Facility that arose
before or may arise during the term of this Consent Decree, and agrees not to provide any
information obtained through this consent decree, that is not otherwise publically available, to
any third party with the intent of facilitating a third party lawsuit against BAE Systems.
However, any information obtained through this consent decree may be used in dispute
resolution between the parties. Baykeeper, on its own behalf and on behalf of its officers,
directors, employees, members, parents, subsidiaries, affiliates and each of their successors and
24

assigns, and its agents, attorneys, and other representatives, releases BAE Systems or its officers,
directors, employees, members, parents, subsidiaries, affiliates, or their successors or assigns, or
its agents, attorneys, and other representatives from and waives all claims raised, or could have
been raised, for matters included in the 60-Day Notice and/or the Complaint, including all claims
for fees (including fees of attorneys, experts, and others), costs, expenses, or any other sum
incurred or claimed or which could have been claimed for matters included in the 60-Day Notice
and/or the Complaint and their resolution via this Consent Decree.
48.

BAE Systems Waiver and Release of Baykeeper: BAE Systems, on its own

behalf and on behalf of its officers, directors, employees, members, parents, subsidiaries,
affiliates, or their successors or assigns, or its agents, attorneys, and other representatives,
releases Baykeeper and its officers, directors, employees, members, parents, subsidiaries, and
affiliates, and each of their successors and assigns and its agents, attorneys and other
representatives from, and waives all claims which arise from or pertain to the 60-Day Notice
and/or the Complaint, including all claims for fees (including fees of attorneys, experts, and
others), costs, expenses or any other sum incurred or claimed or which could have been claimed
for matters included in the 60-Day Notice and/or the Complaint and its resolution via this
Consent Decree.
49.

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 BAE Systems expressly does not intend to imply, any admission as to any fact, finding, issue
of law, or violation of law, nor shall compliance with this Consent Decree constitute or be
construed as an admission by BAE Systems of any fact, finding, conclusion, issue of law, or

25

violation of law. However, this paragraph shall not diminish or otherwise affect the obligation,
responsibilities, and duties of the Parties under this Consent Decree.
XI.

MISCELLANEOUS PROVISIONS

50.

Effective Date: The Effective Date of this Consent Decree shall be the last day

for the U.S. Department of Justice to provide comment on the lodged Settlement Agreement, i.e.,

Agreement.
51.

Term of Consent Decree: The Consent Decree shall continue in effect from the

Effective Date until September 1, 2014.
52.

Execution in Counterparts: The Consent Decree may be executed in one or

more counterparts which, taken together, shall be deemed to constitute one and the same
document.
53.

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

stated, shall be construed according to its plain and ordinary meaning.
54.

Authority to Sign: The undersigned are authorized to execute this Consent

Decree on behalf of their respective parties and have read, understood and agreed to all of the
terms and conditions of this Consent Decree.
55.

Integrated Consent Decree: All agreements, covenants, representations and

warranties, express or implied, oral or written, of the Parties concerning the subject matter of this
Consent Decree are contained herein.
56.

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.
26

57.

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.
58.

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 Parties with and upon advice of counsel.
59.

Negotiated Agreement: The Parties have negotiated this Consent Decree, and

agree that it shall not be construed against the party preparing it, but shall be construed as if the
Parties jointly prepared this Consent Decree, and any uncertainty and ambiguity shall not be
interpreted against any one party.
60.

Modification of the Agreement: This Consent Decree, and any provisions

herein, may not be changed, waived, discharged or terminated unless by a written instrument,
signed by the Parties.
61.

Assignment: Subject only to the express restrictions contained in this 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 Parties, and their successors and assigns.
62.

Mailing of Documents to Baykeeper/Notices/Correspondence: Any notices or

documents required or provided for by this Consent Decree or related thereto that are to be
provided to Baykeeper pursuant to this Consent Decree shall be, to the extent feasible, sent via
electronic mail transmission to the e-mail addresses listed below or, if electronic transmission is
not feasible, via U.S. Mail or hand delivery to the following addresses:
Baykeeper:
Andrea Kopecky
San Francisco Baykeeper
785 Market Street, Suite 850
San Francisco, CA 94103
27

E-mail: [e-mail]
Unless requested otherwise by BAE Systems, any notices or documents required or
provided for by this Consent Decree or related thereto that are to be provided to BAE Systems
pursuant to this Consent Decree may be provided by electronic mail transmission to the e-mail
addresses listed below, or alternatively may be sent by U.S. Mail to the addresses below:
BAE Systems:
Raymond A. Parra
Legal Department
BAE Systems Ship Repair Inc.
P.O. Box 13308
San Diego, CA 92170-3308
E-mail: [e-mail]
With copies sent to:
Shaun Halvax
Environmental Manager
BAE Systems Ship Repair Inc.
P.O. Box 13308
San Diego, CA 92170-3308
E-mail: [e-mail]
63.

Facsimile Signatures

by facsimile or electronic mail transmission shall be deemed binding.
64.

Impossibility of Performance: No Party shall be considered to be in default in

the performance of any of its obligations under this Consent Decree when performance becomes
impossible, despite the timely good faith efforts of the Party, due to circumstances beyond the

ll not
include normal inclement weather, economic hardship or inability to pay. Any Party seeking to
rely upon this paragraph shall have the burden of establishing that it could not reasonably have
28

6th

January 20, 2012

EXHIBIT 2