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

Filing 9

AMENDED ORDER RE: CONSENT DECREE (tf, COURT STAFF) (Filed on 1/10/2012)

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Jason Flanders (Bar No. 238007)
Andrea Kopecky (Bar No. 276366)
SAN FRANCISCO BAYKEEPER, INC.
785 Market Street, Suite 850
San Francisco, California 94103
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff
BAYKEEPER

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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BAYKEEPER, a non-profit corporation,

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Plaintiff,

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v.

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BAE SYSTEMS SAN FRANCISCO SHIP
REPAIR, INC.,

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Civil Case No. C 11-05184-SI
Hon. Susan Illston
AMENDED [PROPOSED] ORDER OF
ENTRY OF CONSENT DECREE, AND
DISMISSAL

Defendant.

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[Proposed] Order

Civil Case No. C 11-05184-SI

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[PROPOSED] ORDER OF ENTRY OF CONSENT DECREE, AND DISMISSAL

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WHEREAS, the Parties in the above captioned action have reached a settlement whose

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specific terms are set forth in the [Proposed] Consent Decree, which was attached as Exhibit A in the

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previously submitted [Proposed] Order of Entry of Consent Decree, and Dismissal.

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WHEREAS, as required by federal law, a copy of the [Proposed] Consent Decree was mailed

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o

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Protection Agency for a mandatory 45-day review period under Section 135.5 of Title 40 of the Code

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of Federal Regulations. The 45-day review period commenced on November 21, 2011, and

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terminated on December 29, 2011.

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WHEREAS, DOJ approved the [Proposed] Consent Decree and submitted its approval letter
to the Court on January 3, 2012. See Exhibit 1.
IT IS HEREBY ORDERED that the [Proposed] Consent Decree is fully incorporated herein
by reference, and is entered as an Order of the Court.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction over Case No. CV-11-

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05184-SI for the sole purpose of enforcing compliance by the Plaintiff and Defendant with the terms

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of the [Proposed] Consent Decree.

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IT IS FURTHER ORDERED that the above captioned action against Defendant is dismissed
with prejudice.
IT IS SO ORDERED.

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1/9/12
Date: ____________________

NORTHERN DISTRICT OF CALIFORNIA

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____________________________________
Honorable Susan Illston
United States District Court
Northern District of California

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Civil Case No. C 11-05184-SI

[Proposed] Order

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EXHIBIT 1

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U.S. Department of Justice
Environment and Natural Resources Division
90-1-24-177-03187
Law and Policy Section
P.O. Box 7415
Ben Franklin Station
Washington, DC 20044

Telephone [phone]
Facsimile [phone]

January 3, 2012
Clerk’s Office
U.S. District Court
Northern District of California, San Francisco
450 Golden Gate Ave., 16th Fl.
San Francisco, CA 94102
Re:

Baykeeper v. Bae Systems San Francisco Ship Repair, Inc, United States District
Court for the Northern District of California, Case. No. 3:11-cv-5184

Dear Clerk of Court:
I am writing to notify you that the United States has reviewed the proposed consent
decree in this action and does not object to its entry by this Court.
On November 21, 2011, the Citizen Suit Coordinator for the Department of Justice
received a copy of the proposed consent judgment in the above-referenced case for review
pursuant to Clean Water Act, 33 U.S.C. § 1365(c)(3). This provision provides, in relevant part:
No consent judgment shall be entered in an action in which the United States is
not a party prior to 45 days following the receipt of a copy of the proposed
consent judgment by the Attorney General and the Administrator.
See also 40 C.F.R. § 135.5 (service on Citizen Suit Coordinator in the U.S. Department of
Justice). A settlement that does not undergo this federal review process is at risk of being void.
In its review, the United States seeks to ensure that the proposed consent judgment
complies with the requirements of the relevant statute and is consistent with its purposes. See
Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525-26 (1986) (a
consent decree should conform with and further the objectives of the law upon which the
complaint was based). For example, if the defendant has been out of compliance with statutory
or permit requirements, the proposed consent judgment should require the defendant to come
into prompt compliance and should include a civil penalty, enforceable remedies, injunctive
relief, and/or a supplemental environmental project (SEP) payment sufficient to deter future
violations, or combinations of the above.

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In this case, the Plaintiff alleged violations of section 301(a) and 402 of the Clean Water
Act, 33 U.S.C. § 1311, for the unlawful discharge of pollutants and violations of storm water
permit requirements. In terms of injunctive relief, the proposed consent decree requires the
Defendant to implement stormwater-related facility compliance measures including designating
discharge points, process areas, and storage areas; designing protocol for all sampling locations;
implementing specified Best Management Practices to comply with the Industrial Stormwater
Permit and its Individual NPDES Permit, and amending their current Storm Water Pollution
Prevention Plan. The consent decree also provides for employee training, specified stormwater
sampling schedules and reporting, and drafting of an action plan for the facilities in question
subject to Plaintiff review.
This consent decree further provides that the Spaulding Wooden Boat Center receive a
total payment of $130,000 for a SEP to fund an enhanced stormwater pollution prevention
program at the Center’s facility located along the San Francisco Bay, and within several miles of
the Defendant’s facility at issue in this litigation. The project will include revisions of the
Center’s existing Stormwater Pollution Prevention Plan, construction of structural improvements
to the facility’s pier and drainage system, and development of a community outreach and
education program related to stormwater containment treatment. In the event that the SEP is
completed under budget, the remainder of the sum shall be paid to the Rose Foundation for
projects that will benefit the environment of the San Francisco Bay watershed. The consent
decree also provides that, in the event of future missed deadlines and failure to collect required
samples by the Defendant, the Defendant shall pay additional stipulated amounts to the Rose
Foundation.
Where a consent judgment provides for the payment of sums to a third party for a SEP,
the United States asks the third party to confirm in writing that it is a section 501(c)(3) taxexempt entity and that it (1) has read the proposed consent judgment; (2) will spend any monies
it receives under the proposed judgment for the purposes specified in the judgment; (3) will not
use any money received under the proposed consent judgment for political lobbying activities;
and (4) will submit to the Court, the United States, and the parties a letter describing how the
SEP funds were spent.
On December 22 and November 28, 2011, the United States received from Rose
Foundation and Spaulding Wooden Boat Center, respectively, letters confirming that all funds
received from the Defendant as a result of the proposed consent decree would be used solely for
the purpose outlined in the decree and that they do not fund political lobbying activities
prohibited by section 501(c)(3) of the IRS Code; copies of those letters are attached as Exhibits
A and B. The Department of Justice believes that these letters will help ensure that any monies
expended under the proposed consent judgment will be used in a manner that furthers the
purposes of the Act, and that is consistent with the law and the public interest.
Given these representations, the United States has no objection to the entry of the
proposed consent judgment. We accordingly notify the Court of that fact.
The United States affirms for the record that it is not bound by this settlement. See, e.g.,
Hathorn v. Lovorn, 457 U.S. 255, 268 n.23 (1982) (Attorney General is not bound by cases to
which he was not a party); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484
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U.S. 49, 60 (1987) (explaining that citizen suits are intended to “supplement rather than supplant
governmental action”); Sierra Club v. Electronic Controls Design, 909 F.2d 1350, 1356 n.8 (9th
Cir. 1990) (explaining that the United States is not bound by citizen suit settlements, and may
“bring its own enforcement action at any time”); 131 Cong. Rec. S15,633 (June 13, 1985)
(statement of Senator Chafee, on Clean Water Act section 505(c)(3), confirming that the United
States is not bound by settlements when it is not a party). The United States also notes that, if
the parties subsequently propose to modify any final consent judgment entered in this case, the
parties should so notify the United States, and provide a copy of the proposed modifications,
forty-five days before the Court enters any such modifications. See 33 U.S.C. §1365(c)(3).
We appreciate the attention of the Court. Please contact the undersigned at (202) 5143932 if you have any questions.
Sincerely,

/s/ Judy B. Harvey
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Judy B. Harvey, Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Law and Policy Section
P.O. Box 7415
Washington, D.C. 20044

cc:

Counsel on Record via ECF

Exhibits

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EXHIBIT A

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EXHIBIT B

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BOARD OF
DIRECTORS
PRESIDENT
Bert Damner

SECRETARY
Linda Swanson
TREASURER
Tom Miller
Mike Douglas
Terry Klaus
Tom List
Richard Pfaff
Richard Ponzio
Sharon White
Michael Wiener
ADVISORY
COUNCIL
Rod bauer
Grace Bodle
Diane Brenden
John Colver
Hank Easom
Peter English
Susan Frank
Irv Gubman
Glenn Isaacson
Annette Rose
John Swain
Mark Welther
Monroe Wingate

November 28, 2011

Ms. Sarah Lu
US Department of Justice
Environmental and Natural Resources Division
Policy, Legislative & Special Litigation Section
P.O. Box 4390
Ben Franklin Station
Washington, D.C. 20044-4390
Re: Baykeeper v. BAE systems San Francisco Ship Repair, Inc. (Case No: 3:1-cv05184-SI)
Dear Ms. Lu,
1. This letter is intended to provide assurance that I have received and read the

proposed Consent Decree in the action Baykeeper v. BAE systems San
Francisco Ship Repair, Inc.
And that I am authorized by my Board of Directors to make the following binding
commitments on behalf of the Spaulding Wooden Boat Center.
1) I understand that the Spaulding Wooden Boat Center may receive funds from
BAE systems San Francisco Ship Repair, Inc. as specified in the Consent
Decree.
2. As specified in the Consent Decree, the Spaulding Wooden Boat Center shall

ASSOCIATE
DIRECTOR
Andrea Rey
BOATYARD
MANAGER
Michael Wiener

only use these monies to fund an environmental project to benefit the San
Francisco Bay Watershed described in Exhibit 2 of the consent decree
2) None of the funds shall be used to support litigation of against any solid waste or
recycling projects; none of the funds may be used to support grants related to
opposition to BAE systems San Francisco Ship Repair, Inc.; and we will not use
any funds received for political lobbying activities.
3) Within 30 days of these funds being disbursed, the Spaulding Wooden Boat
Center shall send a report to the Justice Department, the court and the parties
describing how the funds were utilized and demonstrating conformance with the
nexus of the Consent Decree.
Spaulding Wooden Boat Center (SWBC)
SWBC is a 501(c) (3) public charity (tax ID # 75-3079357). Its mission is to:
Educate the next generation in traditional wooden boat restoration and building skills;
Preserve the Spaulding Boat Works as a working and living museum;
Restore and return to active use historically significant wooden vessels; and
FOOT OF GATE FIVE ROAD ~ SAUSALITO, CA 94965 ~ TEL: [phone]

Case3:11-cv-05184-SI Document6 Filed01/03/12 Page9 of 9

In order to achieve its mission, our organization offers the following community programs and
services:
Community Sailing Program: A community outreach and culturally relevant initiative
designed to bridge the divide between diverse underserved communities and bay area’s most
valuable and least accessible open space area – the San Francisco Bay. The Community
Sailing Program serves over 200 youth and adults a year.
Youth Boatbuilding & Sailing Program: This program provides 25 teenagers with a unique
environment that offers them the tools, rare woods, and mentoring needed to build a sailing
vessel from scratch as it was done a hundred years ago.
Spaulding Boat Works Living Museum & Maritime Center: SWBC’s public facility gives
visitors the opportunity to step back in time and experience the art of wooden boatbuilding as
it has been done for centuries. The smell of wood shavings, and the sounds and sight of
beautiful wooden vessels being brought back to life by skilled craftspeople inspires everyone
who steps through the facility’s doors.
Restoration of the Historic Freda: Widely celebrated as the Matriarch of San Francisco Bay,
Freda, a 52-ft. gaff sloop, was built in 1885 in Belvedere, CA, and is the oldest active sailing
yacht on the west coast. Freda is the only remaining boat of its kind in existence today. After
sinking in 2004, SWBC acquired Freda with the goal of restoring and returning her to San
Francisco Bay.
Volunteer Program: SWBC is able to provide these valuable community education
experiences thanks to our more than 50 skilled and committed volunteer craftspeople,
educators, historians, and advanced sailors.
Arques School of Traditional Boatbuilding: SWBC is home to the Arques School of
Traditional Boatbuilding. Founded in 1996 by highly respected local master builder, Bob Darr,
the Arques School is a 501(c)(3) apprentice school with the mission of developing craftspeople
skilled in the art of building boats in the traditional plank-on-frame methods. The Arques
School is restoring Freda, thorough her restoration students and graduates learn traditional
lofting, framing and planking.
I hope this provides you with the information you require. Please do not hesitate to contact me
with any questions, or additional information at [phone] or
[e-mail]
Sincerely,

Andrea Rey
Associate Director

FOOT OF GATE FIVE ROAD ~ SAUSALITO, CA 94965 ~ TEL: [phone]