Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 1 of 27 Page ID #:1
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`Evan J. Smith, Esquire (SBN 242352)
`esmith@brodskysmith.com
`Ryan P. Cardona, Esquire (SBN 302113)
`rcardona@brodskysmith.com
`BRODSKY & SMITH, LLC
`9595 Wilshire Blvd., Ste. 900
`Beverly Hills, CA 90212
`Telephone: (877) 534-2590
`Facsimile: (310) 247-0160
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`Counsel for Plaintiff
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`TANNIA DELAPAZ,
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`Plaintiff,
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`vs.
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Civil No.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
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`(Federal Water Pollution Control Act, 33
`U.S.C. § 1251 et seq.)
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`JURY TRIAL DEMAND
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`NATIONAL TECHNICAL SYSTEMS,
`INC.,
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`Defendant.
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`Plaintiff Tannia Delapaz (“Plaintiff”), by and through her counsel, alleges as
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`follows:
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`This is a citizen suit, brought pursuant to the section 505(a)(1) of the
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`Federal Water Pollution Control Act (the “Clean Water Act” or “CWA”), 33 U.S.C.
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`§ 1365(a)(1), to address violations of the CWA by defendant National Technical
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`Systems, Inc. (“National Technical Systems” or the “Defendant”) arising out of
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`operations at Blair Adhesives’ facility located at 20970 Centre Point Pkwy, Santa
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`Clarita, CA 91350 (the “Facility”).
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`PLAINTIFF’S COMPLAINT
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 2 of 27 Page ID #:2
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`2.
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`Since at least October 21, 2014, Defendant has been discharging and
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`continues to discharge polluted stormwater from the Facility in violation of the
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`express terms and conditions of Sections 301 and 402 of the Clean Water Act, 33
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`U.S.C. §§ 1311, 1342, and in violation of the General Industrial Stormwater Permits
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`issued by the State of California (NPDES General Permit No. CAS000001 [State
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`Water Resources Control Board] Water Quality Order No. 92-12-DWQ, as amended
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`by Order No. 97-03-DWQ) (“1997 Permit”) and Order No. 2014-0057-DWQ (“2015
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`Permit”) (collectively, the “Industrial Stormwater Permit” or “IGP”).
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`3.
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`Plaintiff seeks a declaratory judgment, injunctive relief, the imposition
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`of civil penalties, and the award of costs, including attorneys’ and expert witness
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`fees, for Defendant’s repeated and ongoing violations of the Clean Water Act.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over the parties and subject
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`matter of this action pursuant to section 505(a)(1) of the CWA, 33 U.S.C. §
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`1365(a)(1), 28 U.S.C. § 1331 (an action arising under the laws of the United States),
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`and 28 U.S.C. § 2201 (declaratory relief).
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`5.
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`On October 21, 2019, as required by the CWA, 33 U.S.C. §
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`1365(b)(1)(A), Plaintiff provided notice of intent to file suit against Defendant for
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`CWA violations (“NoV”) to the Administrator of the United States Environmental
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`Protection Agency (“EPA”); the Regional Administrator of EPA Region IX; the
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`Executive Director of the State Water Resources Control Board (“State Board”); the
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`Executive Officer of the Regional Water Quality Control Board, Los Angeles
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`Region (“Regional Board”) collectively, “state and federal agencies”) and
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`Defendant.
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`6.
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`The NoV provided Defendant with sufficient information to determine
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`(i) the CWA requirements Plaintiff alleges Defendant violated, (ii) the activity
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`alleged to constitute the violation(s), (iii) sufficient information to determine the
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 3 of 27 Page ID #:3
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`date, location, and person responsible for the violation(s), and (iv) the contact
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`information for the Plaintiff and Plaintiff’s Counsel. A copy of the NoV is attached
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`as Exhibit 1.
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`7. More than sixty (60) days have passed since the NoV was served upon
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`Defendant and the state and federal agencies. During this time, neither the EPA, nor
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`the State of California, has commenced or is diligently prosecuting a court action to
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`redress the violations alleged herein. No claim in this action is barred by any prior
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`administrative action pursuant to section 309(g) of the CWA, 33 U.S.C. § 1319(g).
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`8.
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`Venue is proper in the Central District of California pursuant to section
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`505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because the source of the violations
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`is located within this judicial district.
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`9.
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`Plaintiff is a citizen of the State of California who, through her
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`PARTIES
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`recreational activities, uses and enjoys the waters of the Santa Clara River, its
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`inflows, outflows, and other waters of the overall Santa Clara River Watershed, of
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`which the Santa Clara River is a part. Plaintiff’s use and enjoyment of these waters
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`is negatively affected by the pollution caused by Defendant’s operations. Plaintiff
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`is dedicated to protecting the water quality of the Santa Clara River, and the overall
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`Santa Clara River Watershed, for the benefit of its ecosystems and communities. To
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`further these goals, Plaintiff actively seeks federal and state agency implementation
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`of the CWA, and, where necessary, directly initiates enforcement actions on behalf
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`of herself and for her community.
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`10. Plaintiff, like other citizens, taxpayers, property owners, and residents
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`of her community, lives, works, travels near, and recreates in, the Santa Clara River,
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`its inflows, outflows, and other waters of the overall Santa Clara River Watershed,
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`of which the Santa Clara River is a part, into which Defendant discharges pollutants.
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`Plaintiff, like other citizens, taxpayers, property owners, and residents, uses and
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 4 of 27 Page ID #:4
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`enjoys the Santa Clara River, its inflows, outflows, and other waters of the overall
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`Santa Clara River Watershed, of which the Santa Clara River is a part, for
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`recreational, educational, scientific, conservation, aesthetic, spiritual, and other
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`purposes. Defendant’s discharges of stormwater containing pollutants impairs each
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`of these uses. Thus, Plaintiff’s interests have been, are being, and will continue to
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`be adversely affected by Defendant’s failure to comply with the CWA and the
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`Industrial Stormwater Permit.
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`11. Plaintiff enjoys going to the Duane R. Harte Park (the “Park”). Plaintiff
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`enjoys relaxing in the park and walking along the paths located in the Park.
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`12. The Santa Clara River runs immediately adjacent to the Park, and the
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`Santa Clara River is accessible from the Park by Park goers to recreate and fish in.
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`While at the Park, Plaintiff has witnessed the polluted nature of the Santa Clara
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`River. She has observed that the Santa Clara River appears both brown and dirty.
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`In addition to her visual observation of the water, Plaintiff has also noticed an
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`unpleasant smell coming from the water.
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`13. Plaintiff is aware that Defendant’s Facility is upstream from the Park
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`and that the pollution from the Facility flows downstream through the Santa Clara
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`River and the Park before ultimately reaching the Pacific Ocean. Plaintiff believes
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`that this has degraded the beauty of the Park and curtailed her enjoyment of the Park.
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`14. Plaintiff intends to return to the Park in the future and believes that
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`reducing Defendant’s pollution of the Santa Clara River will improve the water
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`quality in the Santa Clara River and allow her the opportunity to better enjoy the
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`recreational and aesthetic interests in the Santa Clara River and the Park.
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`15. Defendant is a California Corporation with headquarters at 24007
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`Ventura Blvd., Ste. 200, Calabasas, CA 91302.
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`16. Defendant owns and operates the Facility, located at 20970 Centre
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`Point Pkwy, Santa Clarita, CA 91350.
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 5 of 27 Page ID #:5
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`17. The Facility operates as a testing facility and provider of engineering
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`services to various industries. Industrial activities carried out at the Facility include
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`(i) industrial testing; (ii) loading and unloading of materials; and (iii) outdoor storage
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`of materials. Repair and maintenance activities carried out at the Facility include,
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`but are not limited to, electrical, plumbing, roofing, asphalt, concrete, and utilities
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`repairs as well as janitorial duties.
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`18. The Facility’s industrial activities fall under Standard Industrial
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`Classification (“SIC”) Code 3826, relating to Laboratory Analytical Instruments and
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`SIC Code 3825, relating to Instruments for Measuring and testing of Electricity and
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`Electrical Signals. Defendant applied for and received coverage under the California
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`Industrial General Permit since at least June 30, 2005, and was issued WDID No. 4
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`19I019623. Defendant reapplied for coverage under the 2015 Industrial Stormwater
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`Permit on July 9, 2015, and was granted the continued use of its previously issued
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`WDID No. These “Notice of Intents” for the Facility to comply with the terms of
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`the Industrial Stormwater Permit list “National Technical Systems” as the name of
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`the Operator and Facility name. Plaintiff is therefore informed and believes and
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`thereon alleges that Defendant owns and/or operates the Facility.
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`REGULATORY BACKGROUND
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`The Problem of Stormwater Pollution
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`19. Stormwater runoff is one of the most significant sources of water
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`pollution in the nation and has been recognized as a leading cause of significant and
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`cumulative harmful impacts to the water quality of the Santa Clara River, its inflows,
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`outflows, and other waters of the overall Santa Clara River Watershed, of which the
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`Santa Clara River is a part. With every rainfall event, significant amounts of polluted
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`rainwater flow from local industrial facilities, such as the Facility, and pour into
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`storm drains, local tributaries, and directly into the Santa Clara River, its inflows,
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 6 of 27 Page ID #:6
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`outflows, and other waters of the overall Santa Clara River Watershed, of which the
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`Santa Clara River is a part.
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`20. Stormwater runoff from industrial sites such as the Facility causes harm
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`to humans and aquatic life. In particular, stormwater can contain heavy metal
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`pollutants such as aluminum, chromium, copper, iron, lead, mercury, nickel, tin, and
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`zinc, as well as high concentrations of suspended solids, and nitrate plus nitrite
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`nitrogen. Exposure and ingestion of heavy metals can cause health problems in
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`people and aquatic animals, including neurological, physiological, and reproductive
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`effects. Heavy metals have been shown to alter activity in tissues and blood of fish.
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`21. High concentrations of total suspended solids (“TSS”) degrade optical
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`water quality by reducing water clarity and decreasing light available to support
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`photosynthesis. TSS has been shown to alter predator/prey relationships (for
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`example, turbid water might make it difficult for fish to see their prey). Deposited
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`solids alter habitat for fish, aquatic plants, and benthic organisms. TSS can also be
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`harmful to aquatic life because numerous pollutants, including metals and polycyclic
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`aromatic hydrocarbons (“PAHs”), are absorbed onto TSS.
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` Thus, higher
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`concentrations of TSS mean higher concentrations of toxins associated with those
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`sediments. Inorganic sediments, including settleable matter and suspended solids,
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`have been shown to negatively impact species richness, diversity, and total biomass
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`of filter feeding aquatic organisms on bottom surfaces.
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`The Clean Water Act
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`22. CWA section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of
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`any pollutant into waters of the United States unless the discharge is in compliance
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`with various enumerated CWA requirements. Among other things, CWA section
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`301(a) prohibits discharges not authorized by, or in violation of, the terms of a
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 7 of 27 Page ID #:7
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`National Pollutant Discharge Elimination System (“NPDES”) permit issued
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`pursuant to CWA section 402, 33 U.S.C. § 1342.
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`23. CWA section 402(b), 33 U.S.C. § 1342(b), allows each state to
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`administer its own EPA approved permit program for discharges. In California, the
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`State Board and its nine Regional Boards have approval from EPA to administer an
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`NPDES permit program for the State. The State Board and Regional Boards issue
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`individual and general NPDES permits regulating water pollutant discharges from
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`various categories of dischargers.
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`24. CWA section 402(p), 33 U.S.C. § 1342(p), requires that NPDES
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`permits be issued for stormwater discharges “associated with industrial activity.”
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`25. CWA section 301(b) required that, by March 31, 1989, all point source
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`dischargers, including those discharging polluted stormwater must achieve
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`technology based effluent limitations by utilizing the Best Available Technology
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`Economically Achievable (“BAT”) for toxic and nonconventional pollutants and the
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`Best Conventional Pollutant Control Technology (“BCT”) for conventional
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`pollutants. See 33 U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(2)(ii)-(iii).
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`26. CWA section 505(a)(1) provides for citizen enforcement actions
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`against any “person,” including individuals, corporations, or partnerships, for
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`violations of NPDES permit requirements and for unpermitted discharges of
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`pollutants. 33 U.S.C. § 1365(a)(1), see 33 U.S.C. § 1362(5).
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`27. CWA section 505(a) authorizes a citizen suit action for injunctive relief.
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`33U.S.C. § 1365(a).
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`28. CWA violators are subject to an assessment of civil penalties of up to
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`$51,570 per day per violation for violations occurring after November 2, 2015 and
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`$37,500 per day per violation for violations occurring after January 12, 2009 but
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`before November 2, 2015. 33 U.S.C. § 1319(d), 40 C.F.R. §§ 19.1-19.4.
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 8 of 27 Page ID #:8
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`State Regulations
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`29. Section 303 of the CWA, 33 U.S.C. § 1313, requires states to adopt
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`Water Quality Standards, including water quality objectives and beneficial uses for
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`navigable waters of the United States. The CWA prohibits discharges from causing
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`or contributing to a violation of such state Water Quality Standards. See 33 U.S.C.
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`§ 1311(b)(1)(c); 40 C.F.R. §§ 122.4(a), (d); 40 C.F.R. § 122.44(d)(1).
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`30. The State of California regulates water quality through the State Board
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`and nine Regional Boards, and each Regional Board maintains a separate Water
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`Quality Control Plan which contains Water Quality Standards for water bodies
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`within its geographic area.
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`31. Water Quality Standards (“WQS”) applicable to Defendant are set forth
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`in the California Toxic Rule (“CTR”)1 and the Inland Surface and Coastal Waters of
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`Los Angeles and Ventura Counties Water Quality Control Plan (the “Basin Plan”).
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`Exceedances of WQS constitute violations of the Industrial Stormwater Permit, the
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`CTR, and the Basin Plan.
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`32. The Basin Plan establishes WQS for all various areas of the inland
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`surface and coastal waters of Los Angeles and Ventura Counties, including the
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`waters of the Santa Clara River, its inflows, outflows, and other waters of the overall
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`Santa Clara River Watershed, of which the Santa Clara River is a part and its
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`tributaries, including but not limited to the following:
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`a. Waters shall not contain suspended or settleable material in
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`concentrations that cause nuisance or adversely affect beneficial users;
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`b. Waters shall be free of changes in turbidity that cause nuisance
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`or adversely affect beneficial uses. Increases in natural turbidity
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`attributable to controllable water quality factors shall not exceed 20%
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`1 The CTR is set forth at 40 C.F.R. § 131.38 and is explained in the Federal Register preamble
`accompanying the CTR promulgation set forth at 65 Fed. Reg. 31, 682 (May 18, 2000).
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 9 of 27 Page ID #:9
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`where natural turbidity is between 0 and 50 nephelometric turbidity
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`units (“NTU”), and shall not exceed 10% where the natural turbidity is
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`greater than 50 NTU;
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`c.
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`All waters shall be maintained free of toxic substances in
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`concentrations
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`that are
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`toxic
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`to, or
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`that produce detrimental
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`physiological responses in, human, plant, animal, or aquatic life; and
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`Surface waters shall not contain concentrations of chemical
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`constituents in amounts that adversely affect any designated beneficial
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`use.
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`33.
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`In addition, the EPA has promulgated WQS for toxic priority pollutants
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`in all California water bodies (the “California Toxics Rule” or “CTR”), which
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`include and apply to the Santa Clara River, its tributaries, and the overall Santa Clara
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`River Watershed, unless expressly superseded by the Basin Plan. 65 Fed. Reg.
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`31,682 (May 18, 2000); 40 C.F.R. § 131.38.
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`The Industrial Stormwater Permit
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`34.
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`In California, the State Board has elected to issue a single, statewide
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`general permit applicable to all stormwater discharges associated with industrial
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`activity. On April 17, 1997, the State Board adopted the 1997 Permit, which was in
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`effect through June 30, 2015. On July 1, 2015, the 2015 Permit became effective
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`and superseded the 1997 Permit, except for enforcement purposes.2 To discharge
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`stormwater lawfully in California, industrial dischargers must secure coverage under
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`the Industrial Stormwater Permit and comply with its terms or obtain and comply
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`2 Notably, the 2015 Permit is much more comprehensive than its predecessor, including expanding
`its purview to “Light Industry” uses previously exempted, and including more prescriptive
`requirements for various parts of permit compliance, including BMPs, NALs, SWPPP
`requirements, Total Daily Maximum Loads for receiving waters, amongst others. See generally,
`2015 Permit.
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 10 of 27 Page ID #:10
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`with an individual NPDES permit. 1997 Permit, p. II; 2015 Permit, Section
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`I(A)(Findings 8, 12).
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`35. The Industrial Stormwater Permit is an NPDES permit issued pursuant
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`to CWA section 402(p), 33 U.S.C. § 1342(p). Violations of the Industrial
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`Stormwater Permit are also violations of the CWA. 1997 Permit, Section C(1); 2015
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`Permit, Section XXI(A).
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`36. The
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`Industrial Stormwater Permit contains certain absolute
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`prohibitions. The Industrial Stormwater Permit prohibits the direct or indirect
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`discharge of materials other than stormwater (“non-stormwater discharges”), which
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`are not otherwise authorized by an NPDES permit, to the waters of the United States.
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`1997 Permit, Order Part A(1); 2015 Permit, Section III(B). The Industrial
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`Stormwater Permit prohibits stormwater discharges that cause or threaten to cause
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`pollution, contamination, or nuisance (1997 Permit, Order Part A(2); 2015 Permit,
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`Sections III(C), VI(C)) and discharges that adversely impact human health or the
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`environment (1997 Permit, Order Part C(1); 2015 Permit, Section VI(B)). Finally,
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`the Industrial Stormwater Permit prohibits discharges that cause or contribute to an
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`exceedance of any applicable water quality standard contained in a Statewide Water
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`Quality Control Plan or the applicable Regional Board’s Basin Plan. 1997 Permit,
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`Order Part C(2); 2015 Permit, Section VI(A).
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`37. On April 1, 2014, the State Board adopted an updated NPDES General
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`Permit for Discharges Associated with Industrial Activity, Water Quality Order No.
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`2014-57-DWQ, effective as of July 1, 2015. As of the effective date, Water Quality
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`Order No. 2014-57-DWQ supersedes and rescinds the current Industrial Stormwater
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`Permit, Water Quality Order No. 97-03-DWQ, except for purposes of enforcement
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`actions brought pursuant to the Industrial Stormwater Permit, Water Quality Order
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`No. 97-03-DWQ.
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 11 of 27 Page ID #:11
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`38. Notably, under the 2015 Permit, all “Light Industry” facilities falling
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`under SIC where industrial materials, equipment, or activates are not exposed to
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`stormwater are now required to obtain coverage under the IGP. 3
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`39. Under the CWA and the Industrial Stormwater Permit, dischargers
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`must employ Best Management Practices (“BMPs”) that constitute BAT and BCT
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`to reduce or eliminate stormwater pollution. 33 U.S.C. § 1311(b); 1997 Permit,
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`Order Part B(3); 2015 Permit, Section X(H). The EPA has developed benchmark
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`levels (“Benchmarks”) that are objective guidelines to evaluate whether a
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`permittee’s BMPs achieve compliance with the BAT/BCT standards. Final National
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`Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater
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`Discharges From Industrial Activities (“Multi-Sector Permit”), 65 Fed. Reg. 64,746,
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`64,766-67 (Oct. 30, 2000); Multi Sector Permit, 73 Fed. Reg. 56,572, 56,574 (Sept.
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`29, 2008); Multi Sector Permit, 80 Fed. Reg. 34,403 (June 16, 2015).
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`40. The 2015 Permit includes Numeric Action Limits (NALs) that are
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`based on Benchmarks. 2015 Permit, Section I(M) (Finding 62). Like Benchmarks,
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`the NALs indicate “the overall pollutant control performance at any given facility.”
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`Id. Section I(M) (Finding 61).
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`41. Dischargers must develop and implement a Storm Water Pollution
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`Prevention Plan (“SWPPP”) at the time industrial activities begin. 1997 Permit,
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`Section A(1)(a) and Order Part E(2); 2015 Permit, Sections I(I) (Finding 54), X(B).
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`The SWPPP must identify and evaluate sources of pollutants associated with
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`industrial activities that may affect the quality of stormwater and authorized non-
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`stormwater discharges from the facility. 1997 Permit, Section A(2); 2015 Permit,
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`Section X(G). The SWPPP must identify and implement site-specific BMPs to
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`3 Light Industry” facilities are included in the category of “Manufacturing Facilities” defined in
`the Industrial Stormwater Permit as “Facilities with Standard Industrial Classifications (SICs)
`20XX through 39XX, 5221 through 4225.”3 See, Industrial Stormwater Permit, Attachment A,
`Category 2.
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 12 of 27 Page ID #:12
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`reduce or prevent pollutants associated with industrial activities in stormwater and
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`authorized non-stormwater discharges. 1997 Permit, Section A(2); 2015 Permit,
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`Section X(H). The SWPPP must include BMPs that achieve pollutant discharge
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`reductions attainable via BAT and BCT. 1997 Permit, Order Part B(3); 2015 Permit,
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`Sections I(D) (Finding 32), V(A).
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`42. The SWPPP must include: a narrative description and summary of all
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`industrial activity, potential sources of pollutants, and potential pollutants; a site map
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`indicating the stormwater conveyance system, associated points of discharge,
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`direction of flow, areas of actual and potential pollutant contact, including the extent
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`of pollution generating activities, nearby water bodies, and pollutant control
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`measures; a description of stormwater management practices; a description of the
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`BMPs to be implemented to reduce or prevent pollutants in stormwater discharges
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`and authorized non-stormwater discharges; the identification and elimination of non-
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`stormwater discharges; the location where significant materials are being shipped,
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`stored, received, and handled, as well as the typical quantities of such materials and
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`the frequency with which they are handled; a description of dust and particulate-
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`generating activities; and a description of
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`individuals and
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`their current
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`responsibilities for developing and implementing the SWPPP. 1997 Permit, Section
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`A(1)-(10); 2015 Permit, Section X.
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`43. The Industrial Stormwater Permit also requires facility operators to
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`properly operate and maintain any facilities and systems of treatment and control
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`installed or used to achieve compliance with the conditions of the Industrial
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`Stormwater Permit and requirements of the SWPPP at all times. 1997 Permit,
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`Section C(5); 2015 Permit, Section XXI(F).
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`44. The SWPPP and site maps must be assessed annually and revised as
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`necessary to ensure accuracy and effectiveness. 1997 Permit, Sections A(1), B(3)-
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`(4); 2015 Permit, Sections I(J) (Finding 55), X(B)(1).
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 13 of 27 Page ID #:13
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`45. The 1997 Permit required facility operators to develop and implement
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`a monitoring and reporting program (“MRP”) when industrial activities begin at a
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`facility. 1997 Permit, Section B(1)-(2) and Order Part E(3). The MRP must ensure
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`that stormwater discharges are in compliance with the Discharge Prohibitions,
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`Effluent Limitations, and Receiving Water Limitations specified in the 1997 Permit.
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`Id. at Section B(2). The MRP must ensure that practices at the facility to prevent or
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`reduce pollutants in stormwater and authorized non-stormwater discharges are
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`evaluated and revised to meet changing conditions at the facility, including revision
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`of the SWPPP. Id.
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`46. Facilities are required to make monthly visual observations of storm
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`water discharges. The visual observations must represent the quality and quantity
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`of the facility’s storm water discharges form the storm event. 1997 Permit, § B(7);
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`2015 Permit, § XI.A.
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`47. The 2015 Permit requires facility operators to monitor and sample
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`stormwater discharges to ensure that the facility is complying with the terms of the
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`permit. 2015 Permit, Sections I(J) (Findings 55-56); XI.
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`48. Under the 1997 Permit, facilities must analyze storm water samples for
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`“toxic chemicals and other pollutants that are likely to be present in storm water
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`discharges in significant quantities.” 1997 Permit, § B(5)(c)(ii). Under the 2015
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`Permit, facilities must analyze storm water samples for “[a]dditional parameters
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`identified by the Discharger on a facility-specific basis that serve as indicators of the
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`presence of all industrial pollutants identified in the pollutant source assessment.”
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`2015 Permit, § XI(B)(6)(c).
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`49. Pursuant to the monitoring and reporting requirements of the Industrial
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`Stormwater Permit, facility operators must conduct ongoing visual observations of
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`stormwater and non-stormwater discharges and record responsive measures taken to
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`eliminate unauthorized non-stormwater discharges and to reduce or prevent
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 14 of 27 Page ID #:14
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`pollutants in stormwater and authorized non-stormwater discharges. 1997 Permit,
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`Sections B(3)-(4); 2015 Permit, Section XI(A). Facility operators must collect
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`samples of stormwater discharges from all locations where stormwater may be
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`discharged from the facility. 1997 Permit, Sections B(5), (7); 2015 Permit, Section
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`XI(B)(4)-(5). As a part of MRP, these collections and analyses must be conducted
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`twice a year; samples must be collected during “the first hour of discharge from (1)
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`the first storm event of the wet season, and (2) at least one other storm event in the
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`wet season.” Id. Through the 2014-2015 reporting period, facility operators were
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`required to analyze stormwater samples for pH, total suspended solids, total organic
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`carbon (or oil and grease as a substitute), specific conductance, toxic chemicals, and
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`other pollutants which are likely to be present in significant quantities in stormwater
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`discharging from the facility. 1997 Permit, Section B(5).
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`50. Section XI(B)(2) of the 2015 Permit requires that dischargers collect
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`and analyze storm water samples from two qualifying storm events (“QSEs”) during
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`the first half of each reporting year (July 1 to December 31) and two QSEs during
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`the second half of each reporting year (January 1 to June 30).
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`51. The EPA has established the Benchmark values as guidelines for
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`determining whether a facility discharging industrial storm water has implemented
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`the requisite BAT and BCT. See, U.S. EPA Multi-Sector General Permit for
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`Stormwater Discharges Associated with Industrial Activity (the “MSGP”). These
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`Benchmarks represent pollutant concentrations at which a storm water discharge
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`could potentially impair, or contribute to impairing, water quality, or affect human
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`health from ingestion of water or fish. Notably, the Benchmark levels contained in
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`the MSGP is “consistent” with the BMPs required of facilities under the Industrial
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`Stormwater Permit, and serve as the reference point for the Numeric Action Levels
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`(“NALs”) contained in the IGP itself. 2015 Permit I(D)(33).
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`Case 2:20-cv-06502 Document 1 Filed 07/22/20 Page 15 of 27 Page ID #:15
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`52. These Benchmarks are reflected in the 2015 Permit in the form of
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`Numeric Action Levels (“NALs”). The 2015 Permit incorporates annual NALs,
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`which are derived from a Water Board dataset. The following NALs have been
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`established under the 2015 Permit for facilities under SIC codes 2891 and 3825: (i)
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`Oil & Grease – 15.0 Mg/L; and (ii) Total Suspended Solids (“TSS”) – 100 Mg/L.
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`An exceedance of annual NALs occurs when the average of all samples obtained for
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`an entire facility during a single reporting year is greater than a particular annual
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`NAL. The reporting year runs from July 1 to June 30. The 2015 Permit also
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`established the following instantaneous maximum NALs for all permitted facilities:
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`(i) pH – 6.0 – 9.0 s.u.; (ii) TSS – 400 Mg/L; and (iii) Oil & Grease – 25 Mg/L. An
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`instantaneous maximum NAL exceedance occurs when two or more analytical
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`results from samples taken for any single parameter within a reporting year exceed
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`the instantaneous maximum NAL value (for TSS and O&G) or are outside of the
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`instantaneous maximum NAL range for pH. When a discharger exceeds an
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`applicable NAL, it is elevated to “Level 1 Status,” which requires revision of the
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`SWPPP and additional BMPs. If a discharger exceeds an applicable NAL during
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`Level 1 Status, it is then elevated to “Level 2 Status.” For Level 2 Status, a
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`discharger is required to submit an Action Plan requiring a demonstration of either
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`additional BMPs to prevent exceedances, a determination that the exceedance is
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`solely due to non-industrial pollutant sources, or a determinatio