Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 1 of 22
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`FILED
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` 2022 Feb-07 AM 09:07
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`COOSA RIVERKEEPER, INC.,
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`Plaintiff,
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`CASE NO.:
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`NEWCASTLE HOMES, INC.,
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`v.
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`Defendant.
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`COMPLAINT
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`Plaintiff, Coosa Riverkeeper, Inc. (“Riverkeeper”), by and through its counsel, hereby
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`files this Complaint and alleges as follows:
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`I.
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`Nature of the Case
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`1.
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`For many years, Newcastle Homes, Inc. (“Newcastle”) has been polluting Alabama’s
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`waterways through its irresponsible development activities. Specifically, in the construction of
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`the Dunnavant Valley Subdivision, Newcastle has illegally discharged sediment into the North
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`Fork of Yellowleaf Creek and Ivy Branch in Shelby County in violation of the Clean Water Act,
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`33 U.S.C. §§ 1251–1376. The violations raised in this Complaint are the latest in a continuous
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`pattern of violations. The Alabama Department of Environmental Management (“ADEM”) has
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`issued several Notices of Violation to Newcastle and has entered into an administrative order
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`with the company, but the violations continue at the construction site.
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`2.
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`Newcastle is violating its Clean Water Act National Permit Discharge Elimination
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`System (“NPDES”) permit. This Complaint seeks the enforcement as to more than 150 violations
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`of the Clean Water Act (“CWA”).
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 2 of 22
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`3.
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`Through counsel, Riverkeeper issued a 60-day notice to Newcastle on June 16, 2021,
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`stating its intention to file a citizen’s suit to address numerous violations, pursuant to the CWA,
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`33 U.S.C. § 1365. The notice stated that Riverkeeper intended to file a complaint in federal court
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`against Newcastle to enforce the requirements of the NPDES permit. A copy of the notice letter
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`is attached as Exhibit 1.
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`4.
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`After sixty days had passed, Riverkeeper’s counsel also sent numerous written
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`communications to Newcastle’s counsel informing Newcastle that the violations were
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`continuing.
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`5.
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`Newcastle’s counsel always responded that the company was working on the problems at
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`the site and would abate the discharges.
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`6.
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`Over a year has passed since the violations began and seven months have passed since
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`Riverkeeper sent the notice letter. The violations identified in the notice letter have not been
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`addressed and will continue in the future, absent a court order for corrective action.
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`7.
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`Riverkeeper now seeks declaratory and injunctive relief, the assessment of penalties, and
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`an award of litigation costs and fees to address Newcastle’s violations of its NPDES permit and
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`unauthorized discharges.
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`II.
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`Jurisdiction and Venue
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`8.
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`This action arises under the Clean Water Act § 505(a), 33 U.S.C. § 1365(a), and this
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`Court has subject matter jurisdiction over the claims set forth in this Complaint under those
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`provisions and under 28 U.S.C. § 1331 (federal question).
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`9.
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`Venue is proper in the Northern District of Alabama because the source of the violations
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`alleged herein is located within the Northern District of Alabama (Shelby County). 33 U.S.C. §
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`1365(c)(1) and 28 U.S.C. § 1391(b) and (c).
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 3 of 22
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`III.
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`Parties
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`10.
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`Plaintiff Riverkeeper is an Alabama nonprofit membership corporation with over 2,700
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`members that is dedicated to the protection and restoration of the Coosa River and its tributaries.
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`Riverkeeper actively supports effective implementation and enforcement of environmental laws,
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`including the CWA, on behalf and for the benefit of its members. (Overton Declaration, Exhibit
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`2). Riverkeeper is a “citizen” within the meaning of section 505(g) of the CWA, 33 U.S.C. §
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`1365(g), with associational standing to bring this case.
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`11. Members of Riverkeeper use and value the North Fork of Yellowleaf Creek and Ivy
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`Branch, tributaries of the Coosa River, for recreation, including but not limited to fishing,
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`swimming, wildlife observation, photography, and for aesthetic enjoyment. Shelby County built
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`a 1.8-mile trail, called the Dunnavant Valley Greenway, along a section of the North Fork of
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`Yellowleaf Creek for citizens to enjoy. Newcastle’s construction site is across the Creek from
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`this Greenway. Members’ enjoyment of this trail and the neighboring Creek is harmed by
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`Newcastle’s illegal discharges.
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`12.
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`For example, Riverkeeper Member Joe Craddock lives half a mile from Yellowleaf
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`Creek. He fishes in Yellowleaf Creek and frequently visits the Dunnavant Valley Greenway. His
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`ability to fish at Yellowleaf Creek is impaired by Newcastle’s illegal discharges of sediment.
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`(Craddock Declaration, Exhibit 3).
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`13.
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`Riverkeeper Member Dr. Beau Beard works approximately half a mile from the
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`Newcastle construction site. He runs along the Creek on the Dunnavant Valley Greenway on a
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`weekly basis. His enjoyment of the Greenway is harmed by Newcastle’s illegal discharges of
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`sediment. (Beard Declaration, Exhibit 4).
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`14.
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`The violations alleged herein harm members’ recreational and aesthetic enjoyment of the
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`North Fork of Yellowleaf Creek and Ivy Branch. They would use and enjoy these waters more if
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`the violations alleged herein were abated. Enforcement by this Court of the CWA as to Plaintiff’s
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`claims, including injunctive relief and the imposition of fines, would remedy the recreational and
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`aesthetic injuries suffered by Riverkeeper’s members. The interests Plaintiff seeks to protect are
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`germane to its purposes and objectives, but neither the claims asserted herein, nor any of the
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`relief requested, require the participation of individual members in this lawsuit. Accordingly,
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`Riverkeeper has associational standing to prosecute this action.
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`15.
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`Newcastle Homes, Inc., otherwise known as Newcastle Construction, Newcastle
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`Construction, Inc., Newcastle Development, Newcastle Development, LLC, and Newcastle
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`Development Enterprises, LLC is owned by Glen Siddle. According to the Birmingham Business
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`Journal, Newcastle is the second most active homebuilder in Shelby and Jefferson counties,
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`based on its number of building permits. Newcastle has repeatedly violated its construction
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`stormwater permits for its projects across the state, including at the Dunnavant Valley
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`Subdivision. A search for “Newcastle” in ADEM’s efile database for the last five years alone
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`reveals stormwater violations at thirteen of the fifteen Newcastle construction sites inspected by
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`ADEM, and the issuance of at least five warning letters, eight notices of violation ("NOVs"), and
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`two consent orders to the company (totaling $39,200 in penalties).
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`IV.
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`Plaintiff’s Compliance with the Pre-Suit Notice Requirements
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`16.
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`Section 505(a) of the CWA authorizes any “citizen” to “commence a civil action on his
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`own behalf . . . against any person . . . who is alleged to be in violation of . . . . an effluent
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`standard or limitation under this chapter.” 33 U.S.C. § 1365(a). An “effluent standard or
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 5 of 22
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`limitation” is defined to include unlawful acts under the terms and conditions of an NPDES
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`permit issued pursuant to Section 402 of the CWA.
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`17.
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`The plaintiff must give 60 days notice to the EPA Administrator, to the State, and to the
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`violator of the alleged violation before commencing suit. 33 U.S.C. § 1365(b).
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`18.
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`Additionally, the State cannot be “diligently prosecuting” the violation of the specific
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`standard or violation. 33 U.S.C. § 1319(g)(6)(A).
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`19.
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`Pursuant to the CWA, 33 U.S.C. § 1365(b)(1)(A), Riverkeeper gave notice of the
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`violations alleged in this Complaint on June 16, 2021. Copies of such notice were also served on
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`the Administrator of the U.S. Environmental Protection Agency (“EPA”), the Regional
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`Administrator of EPA - Region 4, and the Director of ADEM. (Exhibit 1).
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`20.
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`At least 60 days have passed since service and receipt of Plaintiff’s June 16, 2021 notice
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`letter and neither EPA nor the State of Alabama has commenced or is diligently prosecuting a
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`civil or criminal action against Newcastle in a court of the United States, or a state court, to
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`address the violations of the specific standards, limitations, and orders at issue in this Complaint.
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`21.
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`ADEM entered into a Special Order Consent Decree with Newcastle on September 28,
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`2021 which included a $21,000 penalty; however, this administrative order did not mention or
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`enforce any of the violations that this Complaint seeks to enforce, namely violations of Part I of
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`the permit and discharging without a permit.
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`22.
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`Plaintiff is commencing this action within 236 days of the date of service of its notice
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`letter.
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`V.
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`Legal Background
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`23.
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`The goal of the CWA is to “restore and maintain the chemical, physical, and biological
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`integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 6 of 22
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`24.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants
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`from a point source into navigable waters of the United States, unless in compliance with various
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`enumerated sections of the law. Among other things, Section 301(a) prohibits discharges not
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`authorized by the terms of an NPDES permit issued pursuant to Section 402, 33 U.S.C. § 1342 of
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`the statute.
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`25.
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`26.
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`An NPDES permit authorizes the discharge only under certain conditions.
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`Under authority of the Alabama Water Control Pollution Act of 1975 (“AWCPA”) and
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`the authority delegated to the State of Alabama from the EPA, ADEM requires an NPDES
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`permit for discharges associated with construction activity that will result in land disturbance
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`equal to or greater than one acre.
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`27.
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`Based on 40 C.F.R. Part 40, on April 16, 2020, ADEM issued NPDES permit
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`ALR10BHC4 to Newcastle, which mandates certain erosion and sediment controls when
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`constructing the Dunnavant Valley Subdivision.
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`28.
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`The permit contains terms and limitations regulating how and where Newcastle is
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`authorized to discharge pollution into Yellowleaf Creek.
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`29.
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`Newcastle’s permit prohibits discharges that cause an increase in the turbidity of the
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`receiving water by more than 50 NTUs [Nephelometric Turbidity Units] above background.
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`ADEM, NPDES Permit # ALR10BHC4 (March 29, 2016) at 4; Part I.C.10.
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`30.
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`Further, Part I.C.9. of the permit prohibits discharges that “will cause or contribute to a
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`substantial visible contrast with the natural appearance of the receiving water.” ADEM, NPDES
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`Permit # ALR10BHC4 (March 29, 2016) at 4.
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`31.
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`Citizen suits are permitted when there is a pattern of intermittent violations, even if no
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`violation is occurring at the moment suit is filed. “Intermittent or sporadic violations do not cease
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 7 of 22
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`to be ongoing until the date when there is no real likelihood of repetition.” Chesapeake Bay
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`Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 172 (4th Cir. 1988). Riverkeeper
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`alleges that the violations cited in this Complaint are both continuous and intermittent.
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`32.
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`The CWA allows a civil penalty of $56,460 for each and every actionable violation that
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`occurred after November 2, 2015 and accessed after December 23, 2020 in accordance with
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`CWA § 505(a), 33 U.S.C. § 1365(a); 33 U.S.C. § 1319(d); Civil Penalty Inflation Adjustment,
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`87 Fed. Reg. 1676-01 (Jan. 12, 2022) (to be codified 40 C.F.R. Part 19).
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`33.
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`Finally, under Section 505(d) of the CWA, 33 U.S.C. § 1365(d), the court “may award
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`costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or
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`substantially prevailing party, whenever the court determines such award is appropriate.”
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`VI.
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`Factual Allegations
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`34.
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`According to ADEM, siltation is the third leading cause of impairment to Alabama’s
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`waterways. Sediment pollution from newly-cleared construction can degrade water quality, harm
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`fish and other aquatic animals and plants, and increase the difficulty and cost of treating water
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`for drinking and other uses.
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`35.
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`Newcastle has clearcut along the steep banks of the North Fork of Yellowleaf Creek in
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`Shelby County to build a 53-acre, 78-lot subdivision called Dunnavant Valley Subdivision or
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`Melrose Landing.
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`36.
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`This site is directly adjacent to the North Fork of Yellowleaf Creek which runs along the
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`scenic and popular Shelby County Dunnavant Valley Greenway where hikers, dog-walkers,
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`swimmers, fishermen, and birders recreate.
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`37.
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`Ivy Branch flows on the other side of the site, besides some soccer fields, and discharges
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`into the North Fork of Yellowleaf Creek.
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`38.
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`The North Fork of Yellowleaf Creek flows into the Coosa River where boaters fish and
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`swim on a daily basis.
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`Newcastle’s Application for its Permit
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`39.
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`Construction projects involving an acre or more are required to obtain a CWA permit (the
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`Construction General Permit) which requires the implementation of best management practices
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`to limit sediment runoff into surface waters.
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`40.
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`Newcastle requested a Construction General Permit on April 16, 2020 by filing the
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`required Notice of Intent.
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`41.
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`In this Notice of Intent, Newcastle was required to list its discharge points with latitude
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`and longitude, which it did (33.374133; -86.658889 and 33.371394; -86.657714).
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`42.
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`On April 17, 2020, ADEM issued NPDES permit ALR10BHC4 (the Construction
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`General Permit) to Newcastle for the Dunnavant Valley Subdivision. This permit mandates
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`certain erosion and sediment controls and limits discharges into the North Fork of Yellowleaf
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`Creek.
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`43.
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`In the cover letter for the permit, ADEM specified that “[c]overage under this permit
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`does not authorize the discharge of any pollutant or wastewater that is not specifically identified
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`in the permit and by the Notice of Intent.” Letter from Jeff Kitchens, ADEM, to Shawn
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`Arterburn, Newcastle, Re: Dunnavant Valley Subdivision (April 16, 2020).
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`44.
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`The places where Newcastle is currently discharging (Outfalls 1, 2, 2.1, 3, 3.1) do not
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`correspond with the GPS coordinates that Newcastle listed in its Notice of Intent.
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`45.
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`In the Notice of Intent, Newcastle lists 33.374133; -86.658889 and 33.371394; -
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`86.657714 as its discharge points. However, its true discharge points are: outfall 1: 33.3732328, -
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 9 of 22
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`86.6534041; outfall 2 (and 2.1): 33.3717436; -86.6550295; outfall 3 (and 3.1): 33.3716330, -
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`86.6558533.
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`46.
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`The map below compares the discharge points listed in the Notice of Intent (orange
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`points) with Newcastle’s true discharge points (purple points).
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`Violations Discovered
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`47.
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`Riverkeeper first became aware of the pollution in December of 2020 when Dr. Beau
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`Beard was running along the trail and noticed muddy water pouring into the North Fork of
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`Yellowleaf Creek from the site. He immediately notified the Riverkeeper.
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`48.
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`Because of the magnitude of the problem, on December 14, Shelby County submitted a
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`complaint to ADEM noticing “significant discoloration to the water of Yellow Leaf Creek [sic].”
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`ADEM, Complaint #0Y-006XQ6H34 (Dec. 14, 2020).
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`49.
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`Additionally, that same day, Riverkeeper submitted a complaint to ADEM and attached
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`photographs of the streams of muddy water emanating from the site.
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`ADEM Finds Violations of Best Management Practices
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`50.
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`On December 23, 2020, ADEM inspected the site and found multiple Best Management
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`Practices that were not followed. “Slopes were not stabilized. Silt fence and rip-rap was not
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`properly maintained. Drainage areas were not stabilized. Culvert collars were not protected.
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`Construction exit pad was not implemented according to the Alabama Handbook. Excessive
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`sediment accumulation was observed at silt fence installations. Excessive sediment accumulation
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`observed in drainage area. Erosion rills observed onsite. Sediment was observed leaving the site
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`and entering an UT to North Fork of Yellowleaf Creek.” ADEM, Inspection Report, Dunnavant
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`Valley Subdivision: 63696-CSW (Dec. 21, 2020) at 2.
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`51.
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`On December 28, 2020, ADEM issued a Notice of Violation finding that “[a]ppropriate,
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`effective Best Management Practices . . . have not been fully implemented and regularly
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`maintained” in violation of “Permit Part III. A” . . . [And] [a]ccumulation of sediment was
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`observed offsite . . .” in violation of Permit “Part III. A. 7.” Letter from Anthony Scott Hughes,
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`ADEM, to Shawn Arterburn, Newcastle, Re: Notice of Violation (Dec. 28, 2020) at 2.
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`52.
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`Because the violations continued, Riverkeeper filed a 60-day Notice of Intent to Sue on
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`June 16, 2021.
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`53.
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`On July 8, 2021, ADEM inspected the site again and issued another Notice of Violation
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`on July 21, 2021 because “[a]ppropriate, effective Best Management Practices (BMPs) for the
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 11 of 22
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`control of pollutants in stormwater run-off have not been fully implemented and regularly
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`maintained” in violation of the “Permit, Part III. A.” Letter from Anthony Scott Hughes, ADEM,
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`to Shawn Arterburn, Newcastle, Re: Notice of Violation (July 21, 2021) at 1.
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`54.
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`On September 28, 2021, ADEM entered into a Special Order Consent Decree with
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`Newcastle because Newcastle was in violations of Parts III. A. and III. D of the Permit.
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`Additionally, Newcastle had not taken “reasonable steps to remove, to the maximum extent
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`practical, pollutants deposited offsite or in any waterbody or stormwater conveyance structure”
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`in violation of Part III. H. 3. of the Permit. ADEM, In the Matter of Newcastle Homes, Inc.
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`Dunnavant Valley Subdivision, Consent Order 21-095-CLD (Sept. 28, 2021) at 3. Because
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`Newcastle caused “substantial off-site environmental impacts,” ADEM imposed a penalty of
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`$21,100 on Newcastle for all of the violations regarding Part III. of the permit listed above. Id. at
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`4, 5.
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`55.
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`In this Consent Order, ADEM ordered that Newcastle “fully implement effective BMPs .
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`. . and correct all deficiencies at the Facility” “within thirty days of issuance of this Consent
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`Order.” Id. at 6.
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`56.
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`On November 16, 2021, ADEM inspected the site on a “clear and warm” day “to
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`determine the operator’s compliance with Consent Order 21-095-CLD. At the time of the
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`inspection, all BMPs were properly implemented and maintained.” ADEM, Inspection Report,
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`Dunnavant Valley Subdivision: 63696-CSW (Nov. 16, 2021) at 2.
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`57.
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` On December 6, 2021, ADEM wrote to Newcastle and advised that based on the
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`November 16, 2021 inspection, the Operator appears to have met all the conditions of the
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`Consent Order. Letter from Anthony Scott Hughes, ADEM, to Shawn Arterburn, Newcastle, Re:
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`Final Order (Dec. 6, 2021) at 1.
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`58.
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`ADEM did not take any instream turbidity samples during any of its inspections nor did it
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`ever cite Newcastle for unpermitted discharges.
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`59.
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`In its Consent Decree, ADEM never mentioned Newcastle’s turbidity or contrast
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`violations (i.e. violations of Part I. of its permit) nor did it mention Newcastle’s unpermitted
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`discharges to the Creek.
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`Riverkeeper Documents Turbidity Violations at the Site
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`60.
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` Since December of 2020, Coosa Riverkeeper has monitored the North Fork of
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`Yellowleaf Creek and taken turbidity readings with a Hach 2100Q Portable Turbidimeter 25
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`times after it rained. The last time it monitored was February 3, 2022.
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`61.
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`Every time the organization monitored and sampled, it found that Newcastle contributed
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`“to an increase in the turbidity of the receiving water by more than 50 NTUs above background”
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`in violation of its permit, Part I. C. 10. ADEM, NPDES Permit # ALR10BHC4 (March 29, 2016)
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`at 4. Large amounts of sediment from the site are washed into the Creek every time it rains.
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`62.
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`At times, Newcastle caused the turbidity in the streams to be 15 times what the permit
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`allows.
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`63.
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` Additionally, every time the organization monitored and sampled, it found that
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`Newcastle caused “discharge that will cause or contribute to a substantial visible contrast with
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`the natural appearance of the receiving water” in violation of its permit, Part I. C. 9. ADEM,
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`NPDES Permit # ALR10BHC4 (March 29, 2016) at 4.
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`Dec. 14, 2021, Outfall 1
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`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 14 of 22
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`Jan. 6, 2022, Ivy Branch Outfall
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`Jan. 6, picture showing “substantial visible contrast” with receiving stream
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`64.
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`The violations have continued. After the notice letter was sent, legal counsel for
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`Riverkeeper contacted Newcastle’s counsel and sent photographs with details of the specific,
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`different continuing violations on July 20, July 30, August 12, August 23, August 31, September
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`17, October 21, November 29, and December 8th.
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`65.
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` On November 10, 2021, Riverkeeper visited the site with Newcastle employees to talk
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`about specific remedies. Yet, the violations have persisted into the new year.
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`Count I
` NPDES Turbidity Permit Violations
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`Riverkeeper incorporates paragraphs 1 through 65 by reference.
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`Newcastle’s NPDES permit, ALR10BHC4, for the Dunnavant Valley Subdivision states
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`66.
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`67.
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`that discharges that “will cause or contribute to an increase in the turbidity of the receiving water
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`by more than 50 NTUs [Nephelometric Turbidity Units] above background” are “not authorized
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`by this permit.” ADEM, NPDES Permit # ALR10BHC4 (March 29, 2016) at 4 (Part I. C. 10).
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`68.
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`For the last fourteen months, Riverkeeper has taken turbidity samples at the North Fork
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`of Yellowleaf Creek below the site as well as samples at the background stream on 25 different
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`occasions.
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`69.
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`Riverkeeper has recorded 59 turbidity violations (highlighted below in yellow) where
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`Newcastle’s discharge was 50 NTUs above the background stream. All values are in NTUs.
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`
`
`Date Back-
`ground
`Stream
`
`
`Permit
`Limit
`
`Outfall
`#1
`
`Above
`Out-
`fall #1
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`Out-
`fall
`#2
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`Out-
`fall
`#2.2
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`Front
`Drain-
`age
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`Ivy
`Branch
`Pipe
`
`Out-
`fall
`#3
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`Out-
`fall
`#3.1
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`Down-
`stream
`Bend1
`
`
`12/14
`/20
`
`2/11/
`21
`
`
`2/15/
`21
`
`68.5
`
`118.5
`
`67.1
`
`117.1
`
`146
`
`196
`
`
`
`
`
`
`
`Detector
`signal
`too low;
`too
`turbid2
`
`Detector
`signal
`too low;
`too
`turbid
`
`Detector
`signal
`too low;
`too
`turbid
`
`
`
`
`
`
`
`Detec
`tor
`signal
`too
`low;
`too
`turbid
`
`258
`
`Detec
`tor
`signal
`too
`low;
`too
`turbid
`
`Detector
`signal too
`low; too
`turbid
`
`Detector
`signal too
`low; too
`turbid
`
`Detector
`signal too
`low; too
`turbid
`
`Detector
`signal
`too low;
`too
`turbid
`
`Detector
`signal
`too low;
`too
`turbid
`
`Detector
`signal
`too low;
`too
`turbid
`
`
`
`
`
`
`
`
`
`
`
`
`
`621
`
`195
`
`240
`
`                                                            
`1 Riverkeeper took samples downstream, and these samples indicate that Newcastle’s discharges impacted
`downstream water quality.
`
` 2
`
` “Detector signal too low; too turbid” indicates that the light on the turbidity meter could not penetrate the water in
`the vial because the sample was too turbid. It indicates a violation.
`
`
` 
`
`16
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 17 of 22
`
`Date Back-
`ground
`Stream
`
`Permit
`Limit
`
`Outfall
`#1
`
`Above
`Out-
`fall #1
`
`
`3/01/
`21
`
`3/16/
`21
`
`3/25/
`21
`
`5/4/2
`1
`
`8.91
`
`58.91
`
`57.9
`
`18.2
`
`68.2
`
`857
`
`9.92
`
`59.92
`
`227
`
`4.12
`
`54.12
`
`211
`
`30.3
`
`80.3
`
`71.1
`
`37.2
`
`87.2
`
`99.5
`
`
`
`
`
`
`
`
`
`
`
`
`
`Out-
`fall
`#2
`
`68.1
`
`Detec
`tor
`signal
`too
`low
`over-
`range
`
`295
`
`over-
`range
`
`969
`
`Out-
`fall
`#2.2
`
`
`
`
`
`
`
`758
`
`
`
`
`
`
`
`Front
`Drain-
`age
`sediment
`collected;
`not
`enough
`water
`
`over-
`range3
`
`pipe was
`not
`draining
`pipe was
`not
`draining
`pipe was
`not
`draining
`n/a4
`
`Ivy
`Branch
`Pipe
`
`Out-
`fall
`#3
`
`Out-
`fall
`#3.1
`
`Downst
`ream
`Bend
`
`9.03
`
`84.9
`
`57.8
`
`89.6
`
`74.1
`
`n/a
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`12.9
`
`187
`
`72
`
`5.79
`
`51.6
`
`16.9
`
`5/5/2
`1
`6/3/2
`1
`6/7/2
`1
`6/10/
`21
`6/29/
`21
`7/07/
`21
`7/19/
`21
`7/21/
`21
`7/28/
`21
`8/11/
`21
`
`6.47
`
`56.47
`
`41.9
`
`18
`
`68
`
`25.4
`
`75.4
`
`20
`
`36.7
`
`19.2
`
`17.7
`
`70
`
`86.7
`
`69.2
`
`67.7
`
`7.14
`
`57.14
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`182
`over-
`range
`149
`
`241
`over-
`range
`403
`detector
`signal
`too low
`
`817
`over-
`range
`over-
`range
`56
`
`62.4
`
`n/a
`
`n/a
`no
`disch
`arge
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`n/a
`
`n/a
`
`n/a
`
`n/a
`
`n/a
`
`n/a
`
`n/a
`
`n/a
`over-
`range
`over-
`range
`n/a
`over-
`range
`n/a
`
`3.78
`
`no
`discharge
`
`over-
`range
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`39.7
`
`20.2
`over-
`range
`44.5
`
`400
`
`16.2
`
`22.4
`
`103
`
`                                                            
`3 “Overrange” means the light on the turbidity meter could penetrate the water in the vial, but the turbidity was too
`high for the meter to read the sample. It indicates a violation.
`
` 4
`
` 
`
` “N/A indicates a place where Riverkeeper did not sample.
`
`17
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 18 of 22
`
`Date Back-
`ground
`Stream
`
`Permit
`Limit
`
`Outfall
`#1
`
`8/19/
`21
`
`8/31/
`21
`9/16/
`21
`10/21
`/21
`
`12/6/
`21
`
`12.6
`
`62.6
`
`over-
`range
`
`81.1
`
`131.1
`
`594
`
`4.45
`
`54.45
`
`256
`
`89.8
`
`139.8
`
`150
`
`200
`
`over-
`range
`
`over-
`range
`
`Above
`Out-
`fall #1
`
`
`Out-
`fall
`#2.2
`
`
`Ivy
`Branch
`Pipe
`
`Front
`Drain-
`age
`no
`discharge 71.8
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`no
`discharge 136
`no
`discharge n/a
`no
`discharge 417
`
`n/a
`
`over-
`range
`
`Out-
`fall
`#3
`
`Out-
`fall
`#3.1
`
`Down-
`stream
`Bend
`
`
`
`
`
`
`
`
`
`
`over
`rang
`e
`
`
`over
`rang
`e
`
`239
`
`126
`
`2.78
`
`159
`
`173
`
`Out-
`fall
`#2
`no
`disch
`arge
`no
`disch
`arge
`31
`no
`disch
`arge
`water
`too
`high
`to
`sampl
`e
`n/a
`
`n/a
`
`n/a
`
`site
`was
`floo
`ded
`
`653
`
`408
`
`n/a
`
`site
`was
`floo
`ded
`
`n/a
`
`n/a
`
`n/a
`
`162
`
`60.5
`
`n/a
`
`
`
`
`
`
`
`n/a
`
`n/a
`
`n/a
`
`169
`
`320
`
`n/a
`
`12/30
`/21
`1/06/
`22
`2/3/2
`2
`
`50.9
`
`48.9
`
`22.1
`
`
`
`100.9
`
`98.9
`
`72.1
`
`170
`
`663
`
`207
`
`
`
`950
`
`
`
`70.
`
`Based upon Newcastle’s egregious history of non-compliance, Riverkeeper believes in
`
`good faith that the violations are intermittent and sporadic and will likely continue.
`
`71.
`
`Because these discharges are in violation of the NPDES permit, the above-stated conduct
`
`constitutes permit violations which are violations of the CWA 33 U.S.C. § 1311(a).
`
`Count II
` NPDES Visible Contrast Violations
`
`Riverkeeper incorporates paragraph 1 through 71 by reference.
`
`Newcastle’s NPDES Permit No. ALR10BHC4 prohibits discharges where the turbidity of
`
`72.
`
`73.
`
`the discharge “will cause or contribute to a substantial visible contrast with the natural
`
` 
`
`18
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 19 of 22
`
`appearance of the receiving water.” ADEM, NPDES Permit # ALR10BHC4 (March 29, 2016) at
`
`4 (Part I. C. 9).
`
`74.
`
`Riverkeeper has taken 59 samples (highlighted in yellow in the above chart) which
`
`display a substantial visible contrast with the receiving water.
`
`75.
`
`76.
`
`These violations are intermittent and sporadic and will likely continue when it rains.
`
`Because these discharges are in violation of the permit, the above-stated omissions
`
`constitute violations of the CWA 33 U.S.C. § 1311(a).
`
`Count III
` Unpermitted Discharges
`
`Riverkeeper incorporates herein paragraphs 1 through 76 by reference.
`
`Section 301(a) of the CWA prohibits the discharge of pollutants not authorized by the
`
`77.
`
`78.
`
`terms of an NPDES permit. 33 U.S.C. § 1311(a).
`
`79.
`
`In its Notice of Intent, Newcastle listed the GPS coordinates where it would be
`
`discharging (33.374133; 86.658889 and 33.371394; -86.657714), and ADEM issued a permit
`
`based on those listed discharges.
`
`80.
`
`The NPDES permit “does not authorize the discharge of any pollutant or wastewater that
`
`is not specifically identified in the permit and by the Notice of Intent.” Letter from Jeff Kitchens,
`
`ADEM, to Shawn Arterburn, Newcastle, Re: Dunnavant Valley Subdivision (April 16, 2020).
`
`81.
`
`At least 40 times, Newcastle has discharged at several locations without a permit. These
`
`outfalls are not identified in the permit or by the Notice of Intent: outfall 1: 33.3732328, -
`
`86.6534041; outfall 2 (and 2.1): 33.3717436; -86.6550295; outfall 3 (and 3.1): 33.3716330, -
`
`86.6558533.
`
`82.
`
`These violations are intermittent and sporadic and will be ongoing.
`
`
`
` 
`
`19
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 20 of 22
`
`
`
`
`
`
`VII. Demand for Relief
`
`Riverkeeper respectfully requests that this Court grant the following relief:
`
`A.
`
`Render a judgment finding and declaring that Newcastle has violated and is
`
`violating its permit and the Clean Water Act through the illegal and unpermitted discharges of
`
`pollutants from the site in question into the North Fork of Yellowleaf Creek and Ivy Branch.
`
`B.
`
`Issue an injunction ordering Newcastle to immediately cease all ongoing and
`
`continuing CWA violations.
`
`C.
`
`Order that Newcastle remove the pollutants that it has placed in the creeks in a
`
`manner that will not harm the creeks.
`
`D.
`
`Order the modification of Newcastle’s Notice of Intent to provide updated
`
`discharge points in its permit.
`
`E.
`
`Assess a civil penalty of $56,460 for each and every actionable violation of the
`
`CWA alleged herein that occurred after November 2, 2015 (158 violations in total) in accordance
`
`with 33 U.S.C. § 1365(a), 33 U.S.C. § 1319(d), and Civil Penalty Inflation Adjustment, 87 Fed.
`
`Reg. 1676-01 (Jan. 12, 2022) (to be codified 40 C.F.R. Part 19).
`
`F.
`
`Award costs of litigation (including reasonable attorney and expert witness fees)
`
`to Riverkeeper in accordance with CWA § 505(d), 33 U.S.C. § 1365(d), and award Riverkeeper
`
`such other or different relief to which it may be entitled.
`
`G.
`
`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Riverkeeper
`
`demands a trial by jury in this action of all issues so triable.
`
`Respectfully submitted this 7th day of February, 2022.
`
` 
`
`20
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 21 of 22
`
`
`
`
`/s/ Sarah M. Stokes
`Sarah M. Stokes (ASB-1385-A55S)
`Barry Brock (ASB-9137-B61B)
`SOUTHERN ENVIRONMENTAL LAW CENTER
`2829 2nd Avenue South, Suite 282
`Birmingham, AL 35233
`Telephone: (205) 745-3060
`Facsimile: (205) 745-3064
`Email: sstokes@selcal.org
`
`bbrock@selcal.org
`
`
`
`
`
` 
`
`
`
`
`
`
`21
`
`

`

`Case 2:22-cv-00158-NAD Document 1 Filed 02/07/22 Page 22 of 22
`
`With Copies sent via United States Postal Service to:
`
`Mr. Lance R. LeFleur
`Director
`Alabama Department of Environmental Management
`P.O. Box 301463
`Montgomery, AL 36130-1463
`
`Mr. Michael Regan
`Administrator
`Environmental Protection Agency
`Office of the Administrator, 1101A
`1200 Pennsylvania Ave., N.
`
`Mr. John Blevins
`Acting Regional Administrator
`U.S. EPA, Region 4
`Sam Nunn Atlanta Federal Center
`61 Forsyth Street, S.W.
`Atlanta, GA 30303-8960
`
`Hon. Merrick Garland
`United States Attorney General
`U.S. Department of Justice
`950 Pennsylvania Avenue N.W.
`Washington, DC 20530-0001
`
`
`
` 
`
`22
`
`