throbber
Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 1 of 36 Page ID #:1
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`Michael R. Lozeau (State Bar No. 142893)
`E-mail: michael@lozeaudrury.com
`LOZEAU DRURY LLP
`1939 Harrison Street, Suite 150
`Oakland, CA 94612
`Tel: (510) 836-4200
`Fax: (510) 836-4205
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`Shana Lazerow (State Bar No. 195491)
`E-mail: slazerow@cbecal.org
`COMMUNITIES FOR A BETTER ENVIRONMENT
`340 Broadway
`Richmond, CA 94801
`Tel: (510) 302-0430 x 18
`Fax: (510) 302-0438
`
`Attorneys for Plaintiff
`COMMUNITIES FOR A BETTER ENVIRONMENT
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
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`Case No. ________________________
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
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`vs.
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`COMMUNITIES FOR A BETTER
`ENVIRONMENT, a non-profit
`corporation,
` Plaintiff,
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`EVERPORT TERMINAL
`SERVICES INC., a corporation,
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` Defendant.
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`(Federal Water Pollution Control Act,
`33 U.S.C. §§ 1251 to 1387)
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`Plaintiff Communities for a Better Environment (“CBE”), by and through its
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`counsel, alleges as follows:
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`COMPLAINT
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`1.
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`This is a civil suit brought suit under brought under the citizen suit
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`enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251,
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`et seq. (the “Clean Water Act” or “the Act”) against Everport Terminal Services
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`Inc. (“Everport” or “Defendant”) arising out of operations at Everport’s facility
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`located at 389 Terminal Way, San Pedro, CA 90731 (the “Facility”).
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`2.
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`This action addresses Everport’s unlawful discharge of pollutants from the
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`Facility into the Los Angeles Harbor and the overall San Pedro Bay Watershed. The
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`Facility is discharging storm water pursuant to National Pollutant Discharge
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`Elimination System (“NPDES”) Permit No. CA S000001, State Water Resources
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`Control Board (“State Board”) Order No. 97-03-DWQ (“1997 Permit”) as renewed by
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`Order No. 2015-0057-DWQ (“2015 Permit”). The 1997 Permit was in effect between
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`1997 and June 30, 2015, and the 2015 Permit went into effect on July 1, 2015. As
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`explained below, the 2015 Permit maintains or makes more stringent the same
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`requirements as the 1997 Permit. As appropriate, CBE refers to the 1997 and 2015
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`Permits in this Complaint collectively as the “General Permit.”
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`3. With every significant rainfall event, millions of gallons of polluted storm
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`water originating from industrial operations, such as those conducted by Defendant,
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`pour into storm drains and local waterways. The consensus among agencies and water
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`quality specialists is that storm water pollution accounts for more than half of the total
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`pollution entering surface waters each year.
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`COMPLAINT
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`4.
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`Los Angeles area waters are ecologically sensitive areas and are essential
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`habitat for dozens of fish and bird species as well as macro-invertebrate and invertebrate
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`species. Storm water and non-storm water contaminated with sediment, heavy metals,
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`and other pollutants harm the special aesthetic and recreational significance that Los
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`Angeles area waters have for people in the surrounding communities. The public’s use
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`of Los Angeles area waters for water contact sports exposes many people to toxic metals
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`and other contaminants in storm water and non-storm water discharges. Non-contact
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`recreation and aesthetic opportunities, such as wildlife observation, are also impaired
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`by polluted discharges into Los Angeles area waters.
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`5.
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`Industrial facilities, like Defendant’s, that are discharging polluted storm
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`water and non-storm water contribute to the impairment of downstream waters and
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`aquatic-dependent wildlife. These contaminated discharges can and must be controlled
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`for the ecosystem to regain its health.
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`6.
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`CBE seeks a declaratory judgment, injunctive relief, the imposition of civil
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`penalties, and the award of costs, including attorneys’ and expert witness fees, for
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`Everport’s violations of the CWA.
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`JURISDICTION AND VENUE
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`This Court has subject matter jurisdiction over the parties and subject
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`7.
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`matter of this action pursuant to § 505(a)(1) of the CWA, 33 U.S.C. § 1365(a0(1), 28
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`U.S.C. § 1331, and 28 U.S.C. § 2201. The relief requested is authorized pursuant to 28
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`COMPLAINT
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`U.S.C. §§ 2201-02 (power to issue declaratory relief in case of actual controversy and
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`further necessary relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a)
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`(injunctive relief); and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
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`8.
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`On January 14, 2020, as required by the CWA, 33 U.S.C. § 1365(b)(1)(A),
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`CBE provided notice of intent to file suit against Everport for CWA violations (“Notice
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`Letter”) to the Administrator of the United States Environmental Protection Agency
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`(“EPA”); the United States Attorney General; the Executive Director of the State Water
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`Resources Control Board; the Regional Administrator of EPA Region IX; the Executive
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`Officer of the Regional Water Quality Control Board, Los Angeles Region,
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`(collectively “state and federal agencies”); and Everport.
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`9.
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`The Notice Letter provided Everport with sufficient information to
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`determine (i) the CWA requirements CBE alleges Everport violated; (ii) the activity
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`alleged to constitute the violation(s); (iii) sufficient information to determine the date,
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`location, and person responsible for the violation(s); and (iv) the contact information
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`for CBE and CBE’s Counsel. A copy of the Notice Letter is attached as Exhibit 1.
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`10. More than sixty (60) days have passed since notice of the alleged violation
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`was served upon Everport and the state and federal agencies. Plaintiff is informed and
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`believes, and thereupon alleges, that neither the EPA nor the State of California has
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`commenced or is diligently prosecuting a court action to redress the violations alleged
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`herein. No claim in this action is barred by any prior administrative action pursuant to
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`COMPLAINT
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`§ 309(g) of the CWA, 33 U.S.C. § 1319(g).
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`11. Venue is proper in the Central District of California pursuant to
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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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`PARTIES
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`12. Plaintiff CBE is an environmental justice organization organized under the
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`laws of the State of California with a local office in Wilmington, California. CBE has
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`approximately 6,000 members who live, recreate and work in and around waters of the
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`State of California, including the Los Angeles Harbor and San Pedro Bay. Many of its
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`members live and/or recreate in and around Los Angeles County. CBE is dedicated to
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`empowering low-income communities of color that seek a voice in determining the health
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`of their air, water and land. To further these goals, CBE actively seeks federal and state
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`agency implementation of the Act and other laws and, where necessary, directly initiates
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`enforcement actions.
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`13. CBE has members living in the communities near the Facility and the Los
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`Angeles Harbor Watershed. They enjoy using the Los Angeles Harbor and San Pedro
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`Bay for recreation and other activities. CBE members use and enjoy the waters into
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`which Defendant has caused, is causing, and will continue to cause, pollutants to be
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`discharged. CBE members use those areas to recreate and view wildlife, among other
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`activities. Defendant’s discharges of pollutants threaten or impair each of those uses or
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`COMPLAINT
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`contribute to such threats and impairments. Thus, the interests of CBE’s members have
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`been, are being, and will continue to be adversely affected by Defendant’s failure to
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`comply with the Clean Water Act and the Permit. The relief sought herein will redress
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`the harms to Plaintiff caused by Defendant’s activities.
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`14. CBE brings this action on behalf of its members. CBE’s interest in
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`reducing Defendant’s discharges of pollutants into the Los Angeles Harbor, San Pedro
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`Bay, and their tributaries and requiring Defendant to comply with the requirements of
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`the General Permit are germane to its purposes. Litigation of the claims asserted and
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`relief requested in this Complaint does not require the participation in this lawsuit of
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`individual members of CBE.
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`15. Continuing commission of the acts and omissions alleged above will
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`irreparably harm Plaintiff and one or more of its members, for which harm they have no
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`plain, speedy or adequate remedy at law.
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`16. Defendant Everport Terminal Services is an active California company
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`located at 389 Terminal Way, San Pedro, California, 90731.
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`BACKGROUND
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`17. The Facility collects and discharges storm water from its 180-acre marine
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`cargo site into at least six storm water discharge locations at the Facility. The Facility
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`discharges stormwater to a set of storm drains at the Facility, which conveys the
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`Facility’s storm water discharges into the Los Angeles Harbor, which flows into San
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`COMPLAINT
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`Pedro Bay.
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`Clean Water Act
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`18. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of
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`any pollutant into waters of the United States, unless such discharge is in compliance
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`with various enumerated sections of the Act. Among other things, Section 301(a)
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`prohibits discharges not authorized by, or in violation of, the terms of an NPDES permit
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`issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.
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`19. Section 402(p) of the Act establishes a framework for regulating municipal
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`and industrial storm water discharges under the NPDES program. 33 U.S.C. § 1342(p).
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`States with approved NPDES permit programs are authorized by Section 402(p) to
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`regulate industrial storm water discharges through individual permits issued to
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`dischargers or through the issuance of a single, statewide general permit applicable to
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`all industrial storm water dischargers. 33 U.S.C. § 1342(p).
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`20. The EPA promulgated regulations for the Section 402 NPDES permit
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`program defining waters of the United States. See 40 C.F.R. § 122.2. The EPA
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`interprets waters of the United States to include not only traditionally navigable waters
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`but also other waters, including waters tributary to navigable waters, wetlands adjacent
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`to navigable waters, and other waters including intermittent streams that could affect
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`interstate commerce. The Act requires any person who discharges or proposes to
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`discharge pollutants into waters of the United States to submit an NPDES permit
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`COMPLAINT
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`application. 40 C.F.R. § 122.21.
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`21. Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of
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`the U.S. EPA has authorized California’s State Board to issue NPDES permits including
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`general NPDES permits in California.
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`General Permit
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`22. The State Board elected to issue a statewide general permit for industrial
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`storm water discharges. The State Board originally issued the General Permit on or
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`about November 19, 1991. The State Board modified the General Permit on or about
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`September 17, 1992. Pertinent to this action, the State Board reissued the General
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`Permit on or about April 17, 1997 (the “1997 Permit”), and again on or about April 1,
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`2014 (the “2015 Permit”), pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C.
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`§ 1342(p). The 1997 Permit was in effect between 1997 and June 30, 2015. The 2015
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`Permit went into effect on July 1, 2015. The 2015 Permit maintains, or makes more
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`stringent, the requirements of the 1997 Permit.
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`23.
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`In order to discharge storm water lawfully in California, industrial
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`facilities must comply with the terms of the General Permit or have obtained and
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`complied with an individual NPDES permit. 33 U.S.C. § 1311(a).
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`24. The General Permit contains several prohibitions. Effluent Limitation
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`B(3) of the 1997 Permit and Effluent Limitation V(A) of the 2015 Permit prohibit
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`discharges unless pollutants have been reduced or prevented through implementation
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`COMPLAINT
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`of the Best Available Technology Economically Achievable (“BAT”) for toxic and
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`nonconventional pollutants and the Best Conventional Pollutant Control Technology
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`(“BCT”) for conventional pollutants. Discharge Prohibition A(2) of the 1997 Permit
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`and Discharge Prohibition III(C) of the 2015 Permit prohibit storm water discharges
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`and authorized non-storm water discharges that cause or threaten to cause pollution,
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`contamination, or nuisance. Receiving Water Limitation C(1) of the 1997 Permit and
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`Receiving Water Limitation VI(B) of the 2015 Permit prohibit storm water discharges
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`to any surface or ground water that adversely impact human health or the environment.
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`Receiving Water Limitation C(2) of the 1997 Permit and Receiving Water Limitation
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`VI(A) and Discharge Prohibition III(D) of the 2015 Permit prohibit storm water
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`discharges that cause or contribute to an exceedance of any applicable water quality
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`standards contained in Statewide Water Quality Control Plan or the applicable Regional
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`Board’s Basin Plan.
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`25.
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`In addition to absolute prohibitions, the General Permit contains a variety
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`of substantive and procedural requirements that dischargers must meet. Facilities
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`discharging, or having the potential to discharge, storm water associated with industrial
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`activity that have not obtained an individual NPDES permit must apply for coverage
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`under the State’s General Permit by filing a Notice of Intent to Comply (“NOI”).
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`Dischargers have been required to file NOIs since March 30, 1992.
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`26. Dischargers must develop and implement a Storm Water Pollution
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`COMPLAINT
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`Prevention Plan (“SWPPP”). The SWPPP must describe storm water control facilities
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`and measures that comply with the BAT and BCT standards. For dischargers beginning
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`industrial activities before October 1, 1992, the General Permit requires that an initial
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`SWPPP has been developed and implemented before October 1, 1992. The objective
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`of the SWPPP requirement is to identify and evaluate sources of pollutants associated
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`with industrial activities that may affect the quality of storm water discharges and
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`authorized non-storm water discharges from the facility, and to implement best
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`management practices (“BMPs”) to reduce or prevent pollutants associated with
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`industrial activities in storm water discharges and authorized non-storm water
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`discharges. 1997 Permit, § A(2); 2015 Permit, § X(C). These BMPs must achieve
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`compliance with the General Permit’s effluent limitations and receiving water
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`limitations, including the BAT and BCT technology mandates. To ensure compliance
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`with the General Permit, the SWPPP must be evaluated and revised as necessary. 1997
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`Permit, §§ A(9), (10); 2015 Permit, § X(B). Failure to develop or implement an
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`adequate SWPPP, or update or revise an existing SWPPP as required, is a violation of
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`the General Permit. 2015 Permit, Fact Sheet § I(1).
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`27. Sections A(3)-A(10) of the 1997 Permit set forth the requirements for a
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`SWPPP. Among other requirements, the SWPPP must include: a pollution prevention
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`team; a site map; a list of significant materials handled and stored at the site; a
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`description of potential pollutant sources; an assessment of potential pollutant sources;
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`COMPLAINT
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`and a description of the BMPs to be implemented at the facility that will reduce or
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`prevent pollutants in storm water discharges and authorized non-storm water
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`discharges, including structural BMPs where non-structural BMPs are not effective.
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`Sections X(D) – X(I) of the 2015 Permit set forth essentially the same SWPPP
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`requirements as the 1997 Permit, except that all dischargers are now required to develop
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`and implement a set of minimum BMPs, as well as any advanced BMPs as necessary
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`to achieve BAT/BCT, which serve as the basis for compliance with the 2015 Permit’s
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`technology-based effluent limitations and receiving water limitations. The 2015 Permit
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`further requires a more comprehensive assessment of potential pollutant sources than
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`the 1997 Permit; more specific BMP descriptions; and an additional BMP summary
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`table identifying each identified area of industrial activity, the associated industrial
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`pollutant sources, the industrial pollutants, and the BMPs being implemented. 2015
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`Permit, §§ X(G)(2), (4), (5). Section X(E) of the 2015 Permit requires that the SWPPP
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`map depict, inter alia, all storm water discharge locations.
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`28. The 2015 Permit requires dischargers to implement and maintain, to the
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`extent feasible, all of the following minimum BMPs in order to reduce or prevent
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`pollutants in industrial storm water discharges: good housekeeping, preventive
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`maintenance, spill and leak prevention and response, material handling and waste
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`management, erosion and sediment controls, an employee training program, and quality
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`assurance and record keeping. 2015 Permit, § X(H)(1). Failure to implement these
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`COMPLAINT
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`minimum BMPs is a violation of the 2015 Permit. 2015 Permit, Fact Sheet § I(2)(o).
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`The 2015 Permit further requires dischargers to implement and maintain, to the extent
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`feasible, any one or more of the following advanced BMPs necessary to reduce or
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`prevent discharges of pollutants in industrial storm water discharges: exposure
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`minimization BMPs, storm water containment and discharge reduction BMPs,
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`treatment control BMPs, and other advanced BMPs. 2015 Permit, § X(H)(2). Failure
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`to implement advanced BMPs as necessary to achieve compliance with either
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`technology or water quality standards is a violation of the 2015 Permit. Id. The 2015
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`Permit also requires that the SWPPP include BMP descriptions and a BMP Summary
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`Table. 2015 Permit, § X(H)(4), (5).
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`29. The General Permit requires dischargers to develop and implement an
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`adequate written Monitoring Implementation Program (“MIP”) (previously known as
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`the Monitoring and Reporting Program). The primary objective of the MIP is to detect
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`and measure the concentrations of pollutants in a facility’s discharge to ensure
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`compliance with the General Permit’s discharge prohibitions, effluent limitations, and
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`receiving water limitations. As part of their monitoring program, dischargers must
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`identify all storm water discharge locations that produce a significant storm water
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`discharge, evaluate the effectiveness of BMPs in reducing pollutant loading, and
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`evaluate whether pollution control measures set out in the SWPPP are adequate and
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`properly implemented. The 1997 Permit requires dischargers to collect storm water
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`COMPLAINT
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`samples during the first hour of discharge from the first storm event of the wet season,
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`and at least one other storm event during the wet season, from all storm water discharge
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`locations at a facility. 1997 Permit, § B(5). The 2015 Permit mandates that facility
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`operators sample four (rather than two) storm water discharges from all discharge
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`locations over the course of the reporting year. 2015 Permit, §§ XI(B)(2), (3).
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`30. 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.” 2015
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`Permit, § XI(B)(6)(c).
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`31. Under the 2015 Permit, a facility must analyze collected samples for
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`“[a]dditional applicable industrial parameters related to receiving waters with 303(d)
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`listed impairments or approved TMDLs based on the assessment in Section X.G.2.a.ix.”
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`2015 Permit, § XI(B)(6)(d).
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`32. Facilities are required to make monthly visual observations of storm water
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`discharges. The visual observations must represent the quality and quantity of the
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`facility’s storm water discharges from the storm event. 1997 Permit, § B(7); 2015
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`Permit, § XI.A.
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`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 14 of 36 Page ID #:14
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`33. Section XI(B)(2) of the 2015 Permit requires that dischargers collect and
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`analyze storm water samples from two qualifying storm events (“QSEs”) during the
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`first half of each reporting year (July 1 to December 31) and two QSEs during the
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`second half of each reporting year (January 1 to June 30).
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`34. Section B(14) of the 1997 Permit requires dischargers to include
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`laboratory reports with their Annual Reports submitted to the Regional Board. This
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`requirement is continued with the 2015 Permit. Fact Sheet, Paragraph O.
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`35. The 1997 Permit, in relevant part, requires that the Annual Report include
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`an Annual Comprehensive Site Compliance Evaluation Report (“ACSCE Report”).
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`1997 Permit, § B(14). As part of the ACSCE Report, the facility operator must review
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`and evaluate all the BMPs to determine whether they are adequate or whether SWPPP
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`revisions are needed. The Annual Report must be signed and certified by a duly
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`authorized representative, under penalty of law that the information submitted is true,
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`accurate, and complete to the best of his or her knowledge. The 2015 Permit now
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`requires operators to conduct an Annual Comprehensive Facility Compliance
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`Evaluation (“Annual Evaluation”) that evaluates the effectiveness of current BMPs and
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`the need for additional BMPs based on visual observations and sampling and analysis
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`results. 2015 Permit, § XV.
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`36. The General Permit does not provide for any mixing zones by dischargers.
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`The General Permit does not provide for any receiving water dilution credits to be
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`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 15 of 36 Page ID #:15
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`applied by dischargers.
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`Basin Plan
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`37. The Los Angeles Harbor and overall San Pedro Bay Watershed are waters
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`of the United States.
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`38. The CWA requires that water bodies such as the Los Angeles Harbor and
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`overall San Pedro Bay Watershed meet water quality objectives that protect specific
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`“beneficial uses.” The Regional Board has identified beneficial uses of the Los Angeles
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`Harbor and the San Pedro Bay and established water quality standards for these waters
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`in the “Water Quality Control Plan — Los Angeles Region: Basin Plan for the Coastal
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`Watersheds of Los Angeles and Ventura Counties,” generally referred to as the Basin
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`Plan.1
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`39. The beneficial uses of these waters include, among others, water contact
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`recreation, non-contact water recreation, commercial and sport fishing, marine habitat,
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`and rare, threatened, or endangered species.
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`40. The non-contact water recreation use is defined as “[u]ses of water for
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`recreational activities involving proximity to water, but not normally involving body
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`contact with water, where ingestion of water is reasonably possible. These uses include,
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`but are not limited to, picnicking, sunbathing, hiking, beachcombing, camping, boating,
`
`
`1 See
`http://www.waterboards.ca.gov/losangeles/water_issues/programs/basin_plan/.
`
`
`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 16 of 36 Page ID #:16
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`tidepool and marine life study, hunting, sightseeing, or aesthetic enjoyment in
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`conjunction with the above activities.” Id. at 2-5. Contact recreation use includes
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`“swimming, wading, water-skiing, skin and scuba diving, white water activities,
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`fishing, or use of natural hot springs.” Id.
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`41. The Basin Plan includes a narrative toxicity standard which states that
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`“[a]ll waters shall be maintained free of toxic substances in concentrations that are toxic
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`to, or that produce detrimental physiological responses in, human, plant, animal, or
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`aquatic life.” Id. at 3-45.
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`42. The Basin Plan includes a narrative oil and grease standard which states
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`that “[w]aters shall not contain oils, greases, waxes or other materials in concentrations
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`that result in a visible film or coating on the surface of the water or on objects in the
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`water, that cause nuisance, or that otherwise adversely affect beneficial uses.” Id. at 3-
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`34.
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`43. The Basin Plan provides that “[w]aters shall not contain suspended or
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`settleable material in concentrations that cause nuisance or adversely affect beneficial
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`uses.” Id. at 3-44.
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`44. The Basin Plan provides that “[t]he pH of bays or estuaries shall not be
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`depressed below 6.5 or raised above 8.5 as a result of waste discharges.” Id. at 3-40.
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`45. The Basin Plan provides that “[s]urface waters shall not contain
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`concentrations of chemical constituents in amounts that adversely affect any designated
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`
`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 17 of 36 Page ID #:17
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`beneficial use.” Id. at 3-30.
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`46. The Basin Plan provides that “[w]aters shall not contain floating materials,
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`including solids, liquids, foams, and scum, in concentrations that cause nuisance or
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`adversely affect beneficial uses.” Id. at 3-33.
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`47. The Basin Plan provides that “[w]aters shall be free of coloration that
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`causes nuisance or adversely affects beneficial uses.” Id. at 3-32.
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`48. The EPA has adopted saltwater numeric water quality standards for copper
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`of 0.0048 mg/L (Criteria Maximum Concentration or “CMC”) and zinc of 0.009 mg/L
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`(CMC). 65 Fed. Reg. 31712 (May 18, 2000) (California Toxics Rule); 40 CFR §
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`131.39.
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`49. The EPA 303(d) List of Water Quality Limited Segments lists the Los
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`Angeles/Long Beach Inner Harbor as impaired for copper, PCBs, toxicity, and zinc,
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`among other pollutants.2 San Pedro Bay is impaired for toxicity and PCBs, among other
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`pollutants.
`
`50. EPA has established Parameter Benchmark Values as guidelines for
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`determining whether a facility discharging industrial storm water has implemented the
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`requisite BAT and BCT. These benchmarks represent pollutant concentrations at which
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`a storm water discharge could potentially impair, or contribute to impairing, water
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`
`2 See https://www.waterboards.ca.gov/water_issues/programs/tmdl/integrated2014_2016.shtml.
`
`
`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 18 of 36 Page ID #:18
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`
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`quality, or affect human health from ingestion of water or fish. The following EPA
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`benchmarks have been established for pollution parameters applicable to the Facility:
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`pH – 6.0 - 9.0 standard units (“s.u.”); total suspended solids (“TSS”) – 100 mg/L; oil
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`and grease (“O&G”) – 15 mg/L; iron – 1.0 mg/L; aluminum – 0.75 mg/L; zinc – 0.26
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`mg/L; lead – 0.262 mg/L; and copper – 0.0332 mg/L.
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`51. The 2015 Permit establishes Numeric Action Levels (“NALs”). The 2015
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`Permit establishes annual NALs and instantaneous maximum NALs. The following
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`annual NALs have been established under the 2015 Permit: TSS – 100 mg/L; O&G –
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`15 mg/L; copper – 0.0332 mg/L; iron – 1.0 mg/L; aluminum – 0.75 mg/L; and zinc –
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`0.26 mg/L. An exceedance of an annual NAL occurs when the average of all samples
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`obtained for an entire facility during a single reporting year is greater than a particular
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`annual NAL. The reporting year runs from July 1 to June 30. The 2015 Permit also
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`establishes the following instantaneous maximum NALs: pH – 6.0-9.0 s.u.; TSS – 400
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`mg/L; and O&G – 25 mg/L. An instantaneous maximum NAL exceedance occurs when
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`two or more analytical results from samples taken for any single parameter within a
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`reporting year exceed the instantaneous maximum NAL value (for TSS and O&G) or
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`are outside of the instantaneous maximum NAL range for pH.
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`52. When a discharger exceeds an applicable NAL, it is elevated to “Level 1
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`Status,” which requires a revision of the SWPPP and additional BMPs. If a discharger
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`exceeds an applicable NAL during Level 1 Status, it is then elevated to “Level 2 Status.”
`
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`COMPLAINT
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`Case 2:20-cv-06638-CBM-PJW Document 1 Filed 07/24/20 Page 19 of 36 Page ID #:19
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`
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`For Level 2 Status, a discharger is required to submit an Action Plan requiring a
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`demonstration of either additional BMPs to prevent exceedances, a determination that
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`the exceedance is solely due to non-industrial pollutant sources, or a determination that
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`the exceedance is solely due to the presence of the pollutant in the natural background.
`
`53. Section 505(a)(1) and Section 505(f) of the Act provide for citizen
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`enforcement actions against any “person,” including individuals, corporations, or
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`partnerships, for violations of NPDES permit requirements. 33 U.S.C. §§ 1365(a)(1)
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`and (f), § 1362(5). An action for injunctive relief under the Act is authorized by 33
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`U.S.C. § 1365(a). Violators of the Act are also subject to an assessment of civil
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`penalties of up to $55,800 for violations occurring after November 2, 2015; and up to
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`$37,500 per day per violation occurring since October 28, 2011, up to and including
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`November 2, 2015, pursuant to Sections 309(d) and 505 of the Act, 33 U.S.C. §§
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`1319(d), 1365. See also 40 C.F.R. §§ 19.1 - 19.4.
`
`I.
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`Alleged Violations of the NPDES Permit
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`A. Discharges in Violation of the Permit
`
`54. Eve

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