Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 1 of 62
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`FILED
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` 2020 Nov-02 PM 03:48
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ALABAMA
`EASTERN DIVISION
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`Civil Action No. __________
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`UNITED STATES OF AMERICA,
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`and
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`ALABAMA DEPARTMENT OF
`ENVIRONMENTAL MANAGEMENT
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`Plaintiffs,
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`KRONOSPAN, LLC,
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`Defendant.
`____________________________________)
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`v.
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`Plaintiffs, the United States of America, by the authority of the Attorney
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`COMPLAINT
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`General of the United States, and through the undersigned attorneys, acting at the
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`request of the United States Environmental Protection Agency (“EPA”), and the
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`Alabama Department of Environmental Management (“ADEM”), file this
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`complaint and allege as follows:
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`
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`NATURE OF THE CASE
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`1.
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`This is a civil action by the United States and the Alabama
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`Department of Environmental Management against Kronospan, LLC
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`1
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`FILED
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` 2020 Nov-02 PM 03:48
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ALABAMA
`EASTERN DIVISION
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`Civil Action No. __________
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`
`
`
`
`UNITED STATES OF AMERICA,
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`
`
`
`
`
`
`
`and
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`ALABAMA DEPARTMENT OF
`ENVIRONMENTAL MANAGEMENT
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`Plaintiffs,
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`)
`)
`)
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`KRONOSPAN, LLC,
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`Defendant.
`____________________________________)
`
`
`v.
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`
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`Plaintiffs, the United States of America, by the authority of the Attorney
`
`COMPLAINT
`
`General of the United States, and through the undersigned attorneys, acting at the
`
`request of the United States Environmental Protection Agency (“EPA”), and the
`
`Alabama Department of Environmental Management (“ADEM”), file this
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`complaint and allege as follows:
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`
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`NATURE OF THE CASE
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`1.
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`This is a civil action by the United States and the Alabama
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`Department of Environmental Management against Kronospan, LLC
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`1
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 2 of 62
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`(“Kronospan”) (also referred to as “Defendant”), for injunctive relief and civil
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`penalties arising from the “discharge” of pollutants from the facility located at 1
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`Kronospan Way, Eastaboga, Calhoun County, Alabama (“Facility”), to the Oxford
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`Water Works and Sewer Board’s (“OWSB”) publicly owned treatment works
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`(“POTW”) in violation of the Federal Water Pollution Control Act, 33 U.S.C. §§
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`1251 et seq., as amended (“Clean Water Act” or “CWA”), and the Alabama Water
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`Pollution Control Act, Ala. Code § 22-22-1 et seq. (“AWPCA”).
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`2.
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`The complaint is filed pursuant to Sections 309(b) and (d) of the
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`CWA, 33 U.S.C. § 1319(b) and (d), for injunctive relief and the assessment of civil
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`penalties against Defendant for violations of the CWA and its implementing
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`regulations.
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`JURISDICTION, VENUE, AUTHORITY AND NOTICE
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`3.
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`This Court has jurisdiction over the subject matter of this action
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`pursuant to 28 U.S.C. §§ 1331 (Federal question), 1345 (United States as plaintiff),
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`1355 (Fine, penalty or forfeiture), and 1367(a); Sections 309(b) and (d) of the
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`CWA, 33 U.S.C. § 1319(b) and (d), (Civil actions and Civil penalties,
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`respectively); and Sections § 22-22A-5(12) and (18) of the AWPCA.
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`4.
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`Venue is proper in the Northern District of Alabama pursuant to 28
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`U.S.C. §§ 1391(b) (Venue generally) and 1395(a) (Fine, penalty or forfeiture), and
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`pursuant to the CWA, 33 U.S.C. § 1319(b) (Civil actions), because it is the judicial
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`district where the Defendant is located, where a substantial part of the events or
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`omissions giving rise to the claims occurred, and where the alleged violations
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`occurred.
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`5.
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`The United States has the authority to bring this action on behalf of
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`the Administrator of the EPA (“Administrator”) under Section 506 of the CWA, 33
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`U.S.C. § 1366, and 28 U.S.C. §§ 516 and 519.
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`6.
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`Pursuant to 33 U.S.C. § 1342(b), the State of Alabama has been
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`delegated authority to administer its NPDES program since October 19, 1979, and
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`ADEM is therefore authorized to bring this action on behalf of the State of
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`Alabama.
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`7.
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`The United States has provided notice of the commencement of this
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`action to the State of Alabama pursuant to Section 309(b) of the CWA, 33 U.S.C. §
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`1319(b), and ADEM has joined as a co-Plaintiff.
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`PLAINTIFFS
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`8.
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`Plaintiff the United States of America is acting at the request and on
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`behalf of the Administrator of the EPA.
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`9.
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`Plaintiff the ADEM is acting on behalf of the State of Alabama.
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`DEFENDANT
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`10. Defendant Kronospan is a limited liability company duly organized
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`under the laws of the State of Delaware.
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`11. Defendant’s principal place of business in the United States is
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`Eastaboga, Calhoun County, Alabama.
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`12. At times relevant herein and through the date of this Complaint,
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`Defendant owns and operates the Facility, which manufactures reconstituted wood
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`products, and is an integrated pulp and fiberboard mill.
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`13. At all times relevant herein, Defendant is a “person” within the
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`meaning of Section 502(5) of the CWA, 33 U.S.C. § 1362(5).
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`14. At all times relevant herein, the Facility is an “industrial user,” as
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`defined in 40 C.F.R. § 403.3(j) and Ala. Admin. Code r. 335-6-5-.02(v).
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`15. At all times relevant herein, the Facility is a “significant industrial
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`user,” as defined in 40 C.F.R. § 403.3(v)(1) and Ala. Admin. Code r. 335-6-5-
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`.02(oo).
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`16. At all times relevant herein, the Facility is a “new source,” as defined
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`in 40 C.F.R. § 403.3(m)(1) and Ala. Admin. Code r. 335-6-5-.02(bb).
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`STATUTORY AND REGULATORY FRAMEWORK
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`17. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the
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`discharge of pollutants by any person into waters of the United States except as in
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`compliance, inter alia, with Section 307 of the CWA, 33 U.S.C. § 1317.
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`18. Pursuant to Section 307 of the CWA, 33 U.S.C. § 1317, the EPA has
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`established standards that govern discharges into POTWs that discharge to
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`navigable waters.
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`19. Section 307(d) of the CWA, 33 U.S.C. § 1317(d), prohibits the
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`operation of any source in violation of any effluent standard, prohibition, or
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`pretreatment standard promulgated under Section 307 of the CWA, 33 U.S.C. §
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`1317.
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`20. The General Pretreatment Regulations, found at 40 C.F.R. Part 403,
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`are designed to ensure that each POTW can comply with its NPDES permit. These
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`Regulations are intended to prevent discharges to a POTW from non-domestic
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`users that can either interfere with its operations or lead to the discharge of
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`untreated or inadequately treated wastewater into waters of the United States.
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`21.
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`In addition, EPA has promulgated pretreatment standards for specified
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`categories of industrial users pursuant to Section 307(b) of the CWA. These
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`categories of industrial users, or “categorical” industrial users, are subject to
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`specific pretreatment requirements set forth at 40 C.F.R. Parts 405-471. See also
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`Ala. Admin. Code r. 335-6-5-.06.
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`22. The pulp, paper, and paperboard manufacturing industry is one of the
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`specified industries subject to categorical pretreatment standards. See 40 C.F.R.
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`Part 430, Subpart G. These categorical pretreatment standards apply to process
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`wastewater discharges resulting from, inter alia, integrated pulp mills and molded
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`fiber product production. See 40 C.F.R. § 430.70.
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`23. The EPA published proposed Pretreatment Standards for the pulp,
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`paper, and paperboard manufacturing industry for 40 C.F.R. Part 430, Subpart G
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`on January 6, 1981. See 46 Fed. Reg. 1430.
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`24. Pursuant to Section 402(b) of the CWA, 33 U.S.C. § 1342(b), a state
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`may establish its own pretreatment program by receiving approval of the program
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`by the Administrator of the EPA.
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`25. The Alabama Department of Environmental Management (“ADEM”)
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`is the state agency with the authority to administer the Pretreatment Program in
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`Alabama pursuant to 33 U.S.C. § 1342(b), implementing regulations, and the
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`National Pollutant Discharge Elimination System Memorandum of Agreement
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`between the State of Alabama and the United States Environmental Protection
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`Agency Region 4 (Apr. 11, 2008) (“MOA”). As such, ADEM is the Approval
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`Authority as defined by 40 C.F.R. § 403.3(c).
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`26. Pursuant to 40 C.F.R. § 403.10(e), ADEM has also assumed
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`responsibility for implementing the Pretreatment Program in Alabama in lieu of
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`requiring POTWs to develop independent pretreatment programs. As such, ADEM
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`is also the Control Authority as defined by 40 C.F.R. § 403.3(f) and responsible for
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`the requirements in 40 C.F.R. § 403.8(f) in lieu of OWSB.
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`27. Among other requirements, categorical industrial users, including
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`those facilities engaged in the pulp, paper, and paperboard manufacturing industry,
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`are required to obtain a permit from a “Control Authority” prior to “discharging” to
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`a POTW. See 40 C.F.R. §§ 403.8(f)(1)(iii) (requiring significant industrial users to
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`have individual permits for discharge to a POTW) and 403.10(e) (State program in
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`lieu of POTW program).
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`28. Pursuant to Ala. Admin. Code r. 335-6-5-.04(2), no “significant
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`industrial user” shall introduce “pollutants” into a “POTW” without having first
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`obtained a valid State Indirect Discharge (“SID”) permit from ADEM.
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`Applications for new sources shall be submitted at least 180 days prior to the
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`applicant’s desired date for commencement of the new discharge. Id. 335-6-5-
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`.13(6).
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`29.
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`In states authorized to implement their own pretreatment programs,
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`the EPA retains authority concurrent with the authorized state pretreatment
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`program to enforce state-issued permits, pursuant to 33 U.S.C. §§ 1319(a)(3) and
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`1342(i).
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`30. Section 309(b) of the CWA, 33 U.S.C. § 1319(b), provides that,
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`whenever the EPA finds that any person is in violation of any condition or
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`limitation which implements, inter alia, Section 307 of the CWA, 33 U.S.C. §
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`1317, the EPA is authorized to commence a civil action for appropriate relief for
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`any violation for which the EPA is authorized to issue a compliance order under
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`Section 309(a) of the CWA.
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`31. Noncompliance with any pretreatment standard, prohibition or
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`effluent standard is a violation of the Clean Water Act. 33 U.S.C. § 1317(d).
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`32. Section 309(d) of the CWA, 33 U.S.C. § 1319(d), and 40 C.F.R. §
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`19.4 provide that any person who violates, inter alia, Section 307 of the CWA, 33
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`U.S.C. § 1317, shall be subject to a civil penalty not to exceed $32,500 per day for
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`each violation which takes place after March 15, 2004 through January 12, 2009;
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`not to exceed $37,500 per day for each violation occurring after January 12, 2009
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`through November 2, 2015; and not to exceed $55,800 per day for each violation
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`occurring after November 2, 2015, pursuant to the Federal Civil Penalties Inflation
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`Adjustment Act of 1990 (28 U.S.C. § 2461 note, Pub. L. 101-410), as amended
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`through the Federal Civil Penalties Inflation Adjustment Act Improvements Act of
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`2015 (Pub. L. 114-74). See also 40 C.F.R. Part 19; 85 Fed. Reg. 1751 (Jan. 13,
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`2020); 83 Fed. Reg. 1193 (Jan. 10, 2018); 78 Fed. Reg. 66,643 (Dec. 6, 2013); 73
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`Fed. Reg. 75,346 (Dec. 11, 2008); 69 Fed. Reg. 7121 (Feb. 13, 2004).
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`GENERAL ALLEGATIONS
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`33. At times relevant herein, Defendant “discharged” from the Facility
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`“pollutants” subject to “pretreatment standards” and “prohibitions” within the
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`meaning of Sections 307(b), (c) and (d) and Section 502(6) of the CWA, 33 U.S.C.
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`§§ 1317(b), (c) and (d), and 1362(6); 40 C.F.R. § 403.3(i), (l), and (t); and 40
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`C.F.R. § 403.5(a)(1).
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`34. Such pollutants are discharged from the Facility to the Tull C. Allen
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`Wastewater Treatment Plant (“WWTP” or “treatment plant”) and its conveyances,
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`which comprise a “publicly owned treatment works” within the meaning of 40
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`C.F.R. § 403.3(q). See also 33 U.S.C. § 1292(2)(A).
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`35. OWSB’s POTW includes the Tull C. Allen wastewater treatment
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`plant (“WWTP”), which is a “POTW Treatment Plant” within the meaning of 40
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`C.F.R. § 403.3(r).
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`36. OWSB’s POTW also includes intercepting sewers; outfall sewers;
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`sewage collection systems; pumping, power, and other equipment; and their
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`appurtenances; pursuant to 33 U.S.C. § 1292(2)(A).
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`37. OWSB operates its POTW pursuant to National Pollutant Discharge
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`Elimination System (“NPDES”) Permit No. AL0058408, issued by ADEM to
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`OWSB, effective September 1, 2013.
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`38. OWSB’s NPDES Permit requires, among other things, that OWSB “at
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`all times properly operate and maintain all facilities and systems of treatment and
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`control (and related appurtenances) which are installed or used by [OWSB] to
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`achieve compliance with the conditions of the [NPDES] permit. Proper operation
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`and maintenance includes effective performance. . . .” Part II.A.1, Permit No.
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`AL0058408.
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`39. Since 2008, OWSB has experienced chronic violations of its
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`permitted effluent limitations, including total suspended solids (“TSS”), ammonia-
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`nitrogen, fecal coliform, carbonaceous biochemical oxygen demand (“CBOD”),
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`and total residual chlorine, as documented in OWSB’s discharge monitoring
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`reports (“DMRs”).
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`40. The POTW’s effluent limitation violations began several months after
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`Defendant’s Facility began discharging.
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`41. The Facility’s discharge to the POTW routinely contained TSS,
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`ammonia-nitrogen, and oxygen-demanding pollutants during the period concurrent
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`with the POTW’s effluent limit violations for TSS, ammonia-nitrogen, and CBOD.
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`42. OWSB began collecting grab samples of pH and temperature at its
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`Highway 202 pump station (referred to herein as the “Highway 202 lift station,”
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`using OWSB’s naming convention) (latitude 33.60685, longitude -85.98864) on
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`November 20, 2012.
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`43. The Highway 202 lift station collects process and sanitary wastewater
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`from Defendant’s Facility, as well as sanitary wastewater from another business,
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`and two small neighborhoods totaling approximately 60 residences.
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`44. OWSB began compositing daily samples of TSS collected from
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`hourly grab samples at its Highway 202 lift station on November 1, 2013.
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`45. Defendant’s Facility discharges into a manhole located approximately
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`600 feet before the Highway 202 lift station (latitude 33.60685, longitude -
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`85.98595).
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`46. OWSB began collecting samples at that manhole in or around July
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`2010 in order to analyze the isolated discharge from Defendant’s Facility into the
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`POTW.
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`47. At all times relevant herein, Defendant’s Facility is the primary source
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`of non-domestic wastewater into the OWSB POTW at the Highway 202 lift
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`station.
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`48. Domestic wastewater TSS concentrations typically range from 100
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`milligrams per liter (“mg/L”) (weak) to 350 mg/L (strong), with moderate
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`concentrations typically 220 mg/L.
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`49. Domestic wastewater does not typically have high temperatures.
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`50. Domestic wastewater does not typically contribute to low pH levels.
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`51. The OWSB WWTP discharges effluent to Choccolocco Creek.
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`52. Choccolocco Creek is a perennial tributary to the Coosa River.
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`53. Choccolocco Creek and the Coosa River are “waters of the United
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`States” within the meaning of the CWA. See 33 U.S.C. § 1362(7).
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`Defendant’s Operational History Prior to Obtaining a SID Permit
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`54. On February 21, 2005, OWSB sent a letter to Kronospan indicating
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`that the POTW had the capacity to accept the Facility’s wastewater, at a cost of
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`$4,034.05 for 126,000 gallons per day.
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`55. Defendant began construction of the Facility on May 26, 2005.
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`56. Beginning in or around 2007, Defendant began commissioning trials
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`of certain equipment, including the Facility’s refiner, and discharged pollutants to
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`the POTW.
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`57. On June 26, 2007, Defendant sent a letter to OWSB which included
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`an estimate of the Facility’s anticipated wastewater discharge volume and
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`constituent concentrations. Defendant’s estimate indicated that the Facility would
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`discharge approximately 67,400 gallons of process wastewater per day to the
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`POTW from three processes.
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`58. On August 7, 2007, OWSB sent Defendant a letter indicating that the
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`expected discharges indicated in Defendant’s June 26, 2007, letter would not
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`violate OWSB’s NPDES Permit limits.
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`59.
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`In February 2008, Defendant began full production of medium-
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`density fiberboard at the Facility, and began the discharge of associated process
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`wastewater to OWSB’s POTW.
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`60. On March 1, 2008, OWSB discovered that the Facility had increased
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`both its discharged flow and the concentration of pollutants to the POTW beyond
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`the estimates presented in Defendant’s June 26, 2007 letter.
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`61.
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`In April 2008, OWSB began to identify interference with proper
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`operation of the WWTP due to the pollutants in the discharge from the Facility,
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`which was observed and measured to have high temperatures (in excess of 130 °F),
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`low pH values, very high levels of TSS, excessive wood chips, high levels of
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`formaldehyde, and high biochemical oxygen demand (“BOD”).
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`62. The Facility’s pollutants also caused the biosolids produced by the
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`WWTP to increase substantially beyond the POTW’s designed capacity,
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`compelling the POTW to quickly rent additional biosolids handling equipment
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`(some of which broke from the unusual stress of being operated 24 hours a day to
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`keep up with the demand), and to meet the unforeseen expenses of managing and
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`disposing of the additional biosolids.
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`63. On May 9, 2008, a sample from the Facility’s wastewater indicated
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`that the pH at that time was 4.5 standard units, which is a prohibited discharge
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`level as defined at 40 C.F.R. § 403.5(b)(2).
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`64. On November 4, 2008, OWSB met with ADEM to request assistance
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`with the increasing interference with proper operation of the POTW’s treatment
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`plant that was being caused by the discharge of pollutants from the Facility.
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`65.
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`In 2009, OWSB began emptying a treatment basin at the POTW with
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`intentions to use the basin for equalization to control problematic peak flow rates
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`entering the POTW. Due to the operational problems at the POTW either caused or
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`contributed by the Facility’s discharge, this basin was eventually used instead to
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`segregate the Facility’s discharge in an effort to manage its interference with
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`operations.
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`66. On August 11, 2009, ADEM conducted a compliance sampling
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`inspection of the OWSB POTW, and noted a dark brown influent attributable to
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`Defendant’s Facility’s discharge. A manhole below the effluent cascade of the
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`POTW’s WWTP was also observed to be overflowing with foam.
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`67.
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`In a period of two years, between November 2009 and November
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`2011, OWSB repaired pump and pump part failures at least nine times at its
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`Highway 202 lift station.
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`68.
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`In or around 2010, in contravention of 40 C.F.R. § 403.6(d),
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`Defendant began diluting its discharge with potable water in an attempt to control
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`the problems at the OWSB POTW that were known to be caused by the excessive
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`temperature of Defendant’s process wastewater discharge. Defendant continued
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`this practice through at least November 2012.
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`69.
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`In March 2010, OWSB identified a dark-colored and viscous
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`substance entering the POTW treatment basin that was receiving flow from the
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`Highway 202 lift station, and therefore flow principally from the Facility. This
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`substance caused staining and other operational interference before subsiding.
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`70. During three days in September 2010, Defendant introduced
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`pollutants to the OWSB POTW with pH levels less than 5.0 standard units, which
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`is a prohibited discharge level as defined at 40 C.F.R. § 403.5(b)(2).
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`71. On September 1, 2010, ADEM conducted a compliance inspection of
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`the OWSB’s POTW. During this inspection, ADEM identified that OWSB had
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`altered the design of its WWTP in order to divert influent from the Defendant’s
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`Facility and attempt sequestered treatment of it before reintroducing it back into
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`the normal WWTP flow prior to discharge. ADEM also identified the WWTP
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`effluent was brown and that this color remained in the receiving stream for several
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`hundred feet after mixing.
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`72. At the time of the September 2010 inspection, concurrent ADEM
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`sampling found the WWTP effluent had elevated CBOD and ammonia-nitrogen
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`levels, and was exceeding NPDES permit limitations for fecal coliform, residual
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`chlorine, and required percent removals of CBOD and TSS; all of which indicated
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`impaired operations. A manhole below the effluent cascade of the WWTP, just
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`prior to discharge into Choccolocco Creek, was also observed to be overflowing
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`with foam.
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`73. On October 14, 2010, ADEM conducted a site visit to the OWSB’s
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`POTW to observe the receiving stream for the WWTP discharge, which is
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`Choccolocco Creek, and identified that the effluent from the WWTP had a sewage
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`odor and a reddish-brown color. The discharge from the Defendant’s Facility has
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`this same distinctive color. ADEM again identified a distinct plume for at least
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`several hundred feet downstream from the point that the WWTP effluent enters
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`Choccolocco Creek. ADEM also identified a very thick layer of solids on the
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`bottom of Choccolocco Creek beginning at the point where the WWTP effluent
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`enters Choccolocco Creek. ADEM also identified several clumps of solids floating
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`in Choccolocco Creek near to and immediately downstream of the WWTP
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`discharge point. These solids appeared to be sourced from the WWTP discharge;
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`these were not observed prior to the discharge point.
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`74.
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`During the period from July 12 to 14, 2011, ADEM conducted a
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`compliance inspection of OWSB’s POTW. ADEM identified that the distinctive
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`color of the discharge from the Facility was visible both within the WWTP and
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`17
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 18 of 62
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`within a plume observed at the point that the WWTP effluent enters Choccolocco
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`Creek, which was visible for over a hundred feet downstream. At the time of the
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`inspection, concurrent ADEM sampling found the WWTP effluent had elevated
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`CBOD and ammonia-nitrogen levels; and was exceeding NPDES permit
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`limitations for fecal coliform, minimum dissolved oxygen, color, and required
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`percent removals of CBOD and TSS; all of which indicated impaired operations.
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`75.
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`In 2011, Defendant installed screening equipment at the Facility
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`capable of removing larger wood solids, and installed piping in its wastewater pit
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`to improve the decantation of its wastewater prior to discharging into the POTW.
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`76.
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`In January 2012, OWSB began purchasing and adding treatment
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`chemicals beyond what was typically required for normal operation of the WWTP,
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`and began making more physical alterations to the design of the WWTP. These
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`alterations involved semi-permanent rigging of one entire half of the WWTP to
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`effect the segregation of, and attempts to pretreat, the influent received from the
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`Facility. These alterations also involved the fabrication and installation of
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`additional aeration systems in the other half of the WWTP to aid in treatment of
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`the recombined influent (both the acceptable influent and the Facility influent
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`following the attempt by the WWTP to pretreat it). All of these efforts were
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`purposed to curtail the ongoing interference with normal sewage treatment
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`18
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 19 of 62
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`operations and the ongoing non-compliance with its NPDES permit conditions,
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`which were either caused or contributed by pollutants from the Facility’s
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`discharge.
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`77. On March 21, 2012, ADEM issued Consent Order No. 12-093-CWP
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`to OWSB alleging a number of violations of the CWA the AWPCA, and its
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`NPDES Permit, including, inter alia, discharge of certain pollutants to waters of the
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`United States in violation of limitations established in the NPDES Permit issued to
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`the POTW. In the ADEM Consent Order, OWSB contended that the exceedances
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`of the ammonia nitrogen effluent limitations in the NPDES Permit were directly
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`related to discharges from Defendant’s Facility to the POTW.
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`78.
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`In April 2012, OWSB began using additional sewage sludge handling
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`and disposal equipment at the POTW treatment plant beyond what was typically
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`required for normal operation of the WWTP in an effort to curtail the interference
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`with normal sludge handling and treatment operations of the POTW either caused
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`or contributed by Defendant’s discharge.
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`Defendant’s Permitting History
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`79. Defendant submitted its initial application for an SID permit to
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`ADEM on January 15, 2008, after it had already begun discharging pollutants to
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`the POTW related to its start-up trials. In its initial permit application, Defendant
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`19
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 20 of 62
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`indicated that the Facility conducts pulp, paper, and fiberboard manufacturing and,
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`as such, is a categorical industrial user pursuant to 40 C.F.R. § 403.6.
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`80. On October 22, 2009, ADEM sent its first draft SID permit for the
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`Facility to Defendant and OWSB, and requested comments.
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`81. On November 19, 2009, OWSB provided ADEM comments on the
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`first draft SID permit, noting that the first draft included only pH limits and
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`requesting limits set for temperature, dissolved oxygen (“DO”), BOD, TSS,
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`chemical oxygen demand (“COD”), total phosphorous, ammonia, oil and grease,
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`and formaldehyde. In the same letter, OWSB stated, “[h]igh levels of these
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`compounds are putting a strain on our Wastewater Treatment Facility.”
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`82. On October 6, 2011, ADEM sent its second draft of the SID permit
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`for the Facility to Defendant and OWSB, and requested comments.
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`83. On April 5, 2012, OWSB provided ADEM comments on the second
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`draft SID permit, noting that: “[t]emperatures exceeding 105°F have broken
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`[OWSB’s] pumps in the lift station receiving Kronospan’s discharge on multiple
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`occasions,” but that Kronospan and OWSB had agreed to work out the temperature
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`issues in a separate discharge agreement; “Kronospan typically runs approximately
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`200,000 gallons to 250,0000 gallons per day when in full production,” and that
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`“[t]he 100,000 gallons per day [proposed flow limit] will be exceeded regularly
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`20
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 21 of 62
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`and needs to be modified”; requesting that COD, oil and grease, and phosphorous
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`be included for monthly reporting; and OWSB and Kronospan were working to
`
`determine a pretreatment alternative to reduce Kronospan’s TSS, color, and
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`formaldehyde levels.
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`84. On May 2, 2012, ADEM sent its third draft SID permit for the Facility
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`to Defendant and OWSB, and requested comments.
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`85.
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`On June 29, 2012, ADEM issued SID Permit No. IU350801146
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`(hereinafter “SID Permit”) to Defendant allowing the discharge of pollutants from
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`the Facility to the POTW subject to certain terms and conditions including, among
`
`other things, those related to quantity, temperature, and pH level. The SID Permit
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`became effective on July 1, 2012 and expired on June 30, 2017.
`
`a.
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`Defendant’s SID Permit set a temperature limit of 110°F to be
`
`measured at the Facility’s monitoring point, which, by ADEM’s calculation,
`
`correlates to a temperature of 104 °F as measured at the POTW.
`
`b.
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`Defendant’s SID Permit set a daily maximum TSS limit of 600
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`mg/L.
`
`c.
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`Defendant’s SID Permit set a pH limit of no less than 5.0
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`standard units and no greater than 10.5 standard units.
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`21
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 22 of 62
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`d.
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`Defendant’s SID Permit set a daily maximum oil and grease
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`limit of 150 mg/L.
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`e.
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`Pursuant to Part I.E.1.b of Defendant’s SID Permit, Defendant
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`is required to submit DMRs monthly to ADEM no later than the 28th day of
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`the following month (e.g., submit DMR for January no later than February
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`28th).
`
`f.
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`Pursuant to Part I.E.1.c of the SID Permit, Defendant was
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`required to submit an application to ADEM for participation in the electronic
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`reporting program known as “E2 DMR” within one-hundred eighty
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`(180) days of the effective date of the SID Permit, or by December 28, 2012.
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`g.
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`Pursuant to Part I.G.1 of the SID Permit, Defendant was
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`required to submit an engineering report to ADEM within forty-five (45)
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`days of the effective date of the SID Permit, or by August 15, 2012,
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`describing the steps to be taken to reduce levels of formaldehyde in the
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`effluent.
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`86. From the time the Facility began discharging without a SID Permit
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`until the effective date of its SID Permit on July 1, 2012, Defendant had amassed
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`over 8,400 CWA violations
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`22
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 23 of 62
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`87. ADEM is currently processing Defendant’s application for renewal of
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`the Facility’s SID Permit. Until a new permit is issued, the requirements of the
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`Defendant’s SID Permit issued July 1, 2012, are applicable to its operations,
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`pursuant to Ala. Admin. Code r. 335-6-5-.11.
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`Defendant’s Compliance History with the EPA and ADEM,
`and Post-Permit Operations
`88. On July 18, 2012, the EPA sent Defendant an information request
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`pursuant to Section 308(a) of the CWA, 33 U.S.C. § 1318(a), to investigate a
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`report made to the EPA of interference and pass-through of the POTW, as those
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`terms are defined by 40 C.F.R. § 403.3(k) and (p), respectively.
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`89. On August 25, 2012, Defendant provided its response to the
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`information request from the EPA.
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`90. On November 14 and 15, 2012, the EPA and ADEM conducted
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`inspections at the POTW and the Facility, respectively, to supplement the Section
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`308(a) investigation.
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`91. During its November 14, 2012, inspection of the POTW, EPA
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`inspectors noted that the POTW was experiencing dry weather operational
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`problems due to uncontrolled pollutant loads from significant industrial users,
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`including Defendant’s Facility. The EPA inspectors noted, “Industrial interference
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`with the WWTP continues to occur and has recently worsened. Dissolved oxygen
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`23
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 24 of 62
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`levels remain difficult to maintain in the treatment train, and normal biosolids
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`management continues to be disrupted. Removal efficiencies for BOD and TSS
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`have continued their decline, and recently fallen below the permit limits.”
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`92. During its November 15, 2012 inspection of the Facility, EPA
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`inspectors noted a large number of deficiencies with the Pretreatment Regulations,
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`including that the Facility discharged “the same type [of] solids observed to be
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`contributing to interference at the [POTW]” and that the Facility’s discharge
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`lacked necessary pretreatment prior to discharge.
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`93. On December 13, 2012, ADEM sent a Notice of Violation (“NOV”)
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`letter to Defendant regarding some of the violations noted during the EPA and
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`ADEM compliance inspections.
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`94. Defendant responded to ADEM’s NOV on February 8, 2013.
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`95. The EPA issued Defendant an Administrative Order (“AO”) Docket
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`No. CWA-04-2013-4756, effective April 29, 2013, which required Defendant to,
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`inter alia:
`
`a.
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`On or before June 1, 2013, complete installation of pretreatment
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`equipment to control the discharge from the Facility to the POTW, and
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`achieve normal operation of the equipment to meet the maximum standard
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`of 600 mg/L TSS at the monitoring point identified in the SID Permit;
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`24
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`Case 1:20-cv-01720-ACA Document 1 Filed 11/02/20 Page 25 of 62
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`b.
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`On or before December 1, 2013, complete installation of
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`pretreatment equipment to control the discharge from the Facility to the
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`POTW, and achieve normal operation of the equipment to meet the
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`temperature and pH limitations identified in the SID Permit, as well as the
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`general pretreatment standards and prohibitions identified in the SID Permit
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`and in 40 C.F.R. Part 403;
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`c.
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`On or before June 1, 2013, complete installation and calibration
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`of equipment to monitor and report the flow of the discharge from the
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`Facility to the POTW under the terms of the SID Permit, and commence
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`using that equipment to report flow to ADEM;
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`d.
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`On the Effective Date of the AO, maintain full compliance with
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`the monitoring and reporting requirements of the S
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