San Francisco Baykeeper v. Air Products & Chemicals Inc.

Background

San Francisco Baykeeper filed a Clean Water Act citizen suit alleging that Air Products Manufacturing Corporation and its parent company, Air Products and Chemicals, Inc., violated substantive and procedural requirements of the applicable industrial stormwater permit and the Clean Water Act at an industrial gas facility in Santa Clara, California. The opinion text states that Baykeeper had served a notice of intent to sue and later filed the complaint. Air Products denied the allegations and reserved its rights and defenses.

The parties negotiated a proposed consent decree to resolve Baykeeper’s allegations and avoid the costs and uncertainties of litigation. The parties submitted the proposed decree for the federal government’s required 45-day review. The Department of Justice notified the parties that it did not object to entry of the proposed consent decree, while stating that the United States was not approving or bound by the settlement.

Consent Decree Terms

The consent decree requires Air Products to comply with its stormwater pollution prevention plan, the industrial stormwater permit, and applicable provisions of the Clean Water Act. It requires additional structural and non-structural best management practices, including storm-drain inspections and maintenance, mechanical sweeping, restrictions on certain outdoor vehicle and equipment maintenance, employee training, and amendments to the facility’s stormwater pollution prevention plan.

The decree also requires Air Products to evaluate, select, design, test, construct, and install an advanced treatment system for stormwater. Air Products must continue stormwater sampling, monitoring, inspections, and reporting; provide sampling results and government submissions to Baykeeper; prepare end-of-season summaries; and prepare action plans if specified pollution levels are exceeded. Baykeeper may conduct up to two physical facility inspections per year during the decree’s term, with advance notice.

The decree requires Air Products to pay $27,500 to the Rose Foundation for Communities and the Environment for projects benefiting the San Francisco Bay-Delta watershed. It also requires payment of $53,417.62 to Baykeeper for specified investigation, expert, attorney, and other costs, plus $5,000 for each year of compliance monitoring, not exceeding $15,000 total. The decree establishes additional payments for certain failures to comply, including failures to collect samples, submit required documents, make required payments, or install or implement required best management practices.

The decree states that it is a full and final settlement of the matter. It also states that compliance with the decree does not mean Air Products is complying with the permit, the Clean Water Act, or any other law. The decree generally continues until January 31, 2024, or may terminate earlier under specified conditions.

Court’s Action and Classification

The court approved and entered the consent decree as an order of the court. It retained jurisdiction over the parties and subject matter solely to enforce compliance with the decree until the decree terminates. The court vacated the case management conference and other deadlines and dismissed the action against Air Products Manufacturing Corporation and Air Products and Chemicals, Inc. with prejudice.

Because the order resolved the case through a stipulated settlement and did not decide the merits of whether Air Products violated the Clean Water Act or the industrial stormwater permit, this is a procedural order rather than a merits ruling. Judge Richard Seeborg signed the order on December 2, 2020.