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`
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`Daniel Cooper (SBN 153576)
`daniel@sycamore.law
`Jesse C. Swanhuyser (SBN 282186)
`jesse@sycamore.law
`SYCAMORE LAW, INC.
`1004 O’Reilly Avenue, Ste. 100
`San Francisco, CA 94129
`Tel: (415) 360-2962
`
`Attorneys for Plaintiff
`ECOLOGICAL RIGHTS FOUNDATION
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`ECOLOGICAL RIGHTS
`Case No. _____________________
`FOUNDATION, a public benefit non-
`
`profit corporation,
`
`COMPLAINT FOR DECLARATORY
`
`AND INJUNCTIVE RELIEF AND
`
`CIVIL PENALTIES
`
`
`
`
`
`DIVERSIFIED PANELS SYSTEMS,
`
`INC., a California corporation,
`Federal Water Pollution Control Act,
`
`33 U.S.C. §§ 1251 to 1387
` Defendant.
`
`
` Plaintiff,
`
`vs.
`
`
`
`
`
`
`
`
`
`Case 2:21-cv-03552 Document 1 Filed 04/26/21 Page 2 of 54 Page ID #:2
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`I.
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`JURISDICTION AND VENUE
`1.
`This is a civil action brought under the citizen suit provisions of the
`Federal Water Pollution Control Act (the “Clean Water Act” or “Act”), 33 U.S.C. §
`1251, et seq.
`2.
`This Court has subject matter jurisdiction over Ecological Rights
`Foundation (“EcoRights” or “Plaintiff”) and Diversified Panel Systems, Inc.
`(“Diversified” or “Defendant”) (collectively the “Parties”) and over the subject matter
`of this action pursuant to section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A),
`and 28 U.S.C. § 1331 (an action arising under the laws of the United States).
`3.
`This complaint seeks relief for ongoing violations by Diversified of the
`Clean Water Act and California’s General Industrial Storm Water Permit1 (“General
`Permit”) related to unpermitted polluted storm water and non-storm water discharges
`from the industrial facility owned and operated by Diversified at 2345 Statham
`Boulevard in Oxnard, California (93033) (“Facility”).
`4.
`The relief requested is authorized pursuant to 28 U.S.C. §§ 2201–02
`(power to issue declaratory relief in case of actual controversy and further necessary
`relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive relief
`and civil penalties); 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
`5.
`Prospective citizen plaintiffs must, as a jurisdictional pre-requisite to
`enforcing the Clean Water Act in Federal District Court, prepare a Notice of Violation
`and Intent to File Suit letter (“Notice Letter”) containing, inter alia, sufficient
`
`
`1 National Pollution Discharge Elimination System (“NPDES”) General Permit No. CAS000001,
`Water Quality Order No. 92-12-DWQ, Order No. 97-03-DWQ, as amended by Order No. 2014-
`0057-DWQ; as amended on November 6, 2018.
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`COMPLAINT
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`information to allow the recipient to identify the standard, limitation or order alleged
`to be violated, and the activity alleged to constitute a violation. 33 U.S.C. § 1365(a);
`40 C.F.R. § 135.3(a).
`6.
`The Notice Letter must be sent via certified mail at least sixty days prior
`to filing a complaint (“Notice Period”) to the owner of the facility alleged to be in
`violation of the Act, and where the alleged violator is a corporation, to the
`corporation’s registered agent for service of process. 33 U.S.C. § 1365(b); 40 C.F.R. §
`135.2(a)(1).
`7.
`A copy of the Notice Letter must be mailed to the Administrator of the
`U.S. Environmental Protection Agency (“U.S. EPA”), the Regional Administrator of
`the U.S. EPA for the region in which a violation is alleged to have occurred, and the
`chief administrative officer for the water pollution control agency for the State in
`which the violation is alleged to have occurred. 33 U.S.C. § 1365(b); 40 C.F.R. §
`135.2(b)(1)(A).
`8.
`On February 18, 2021, Plaintiff sent a Notice Letter via certified mail to
`Diversified and its registered agent for service of process. The Notice Letter described
`ongoing violations of the Act and General Permit at the Facility, and provided notice
`of Plaintiff’s intention to file suit against Defendant at the expiration of the 60-day
`Notice Period.
`9.
`The Notice Letter was received by: (a) Richard Bell, CEO and Agent for
`Service of Process, at the Facility on Diversified on February 19, 2021; (b) U.S. EPA
`on February 25, 2021; (c) U.S. Department of Justice on February 26, 2021; (d) State
`Water Resources Control Board on February 24, 2021.
`
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`COMPLAINT
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`10. More than sixty days have passed since the Notice Letter was served on
`Diversified, and the State and Federal agencies.
`11. Plaintiff is informed and believes, and thereon alleges, that neither the
`U.S. EPA nor the State of California has commenced or is diligently prosecuting a
`court action to redress violations alleged in the Notice Letter and complaint.
`12. This action’s claim for civil penalties is not barred by any prior
`administrative penalty under section 309(g) of the Act. 33 U.S.C. § 1319(g).
`13. Venue is proper in the Central District of California pursuant to section
`505(c)(1) of the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is
`located within this judicial district.
`EcoRights, a California public benefit non-profit corporation, by and through
`its counsel, hereby alleges:
`II.
`INTRODUCTION
`14. This complaint seeks relief for unpermitted and unlawful discharges of
`polluted storm water and non-storm water from the Facility in violation of the Act and
`General Permit, including, but not limited to, ongoing, unpermitted discharges of
`polluted storm water to the Oxnard Drain, Ormond Beach Wetlands, Ormond Beach
`and the Pacific Ocean.
`15. The Clean Water Act is a strict liability statute and failure to enroll in the
`General Permit, as well as each violation of any term or condition in the General
`Permit, is an independent violation of the Act. 33 U.S.C. §§ 1342, 1365.
`16. Diversified is liable for ongoing and continuous violations of the Act and
`General Permit at the Facility since February 18, 2016. 33 U.S.C. §§ 1311(a),
`
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`COMPLAINT
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`1319(d); 40 C.F.R. § 19.4.
`17. The world faces a crisis in the production, use, and disposal of plastics
`materials.
`18. There is a staggering 150 million metric tons of plastic in the marine
`environment polluting every single part of the ocean—from the surface of the Pacific
`to the depths of the Mariana Trench; and from pole to pole.
`19. Scientists estimate that up to 20 million tons of plastic end up in the
`ocean annually.
`20. Unless humanity fundamentally changes its use, plastic is set to outweigh
`fish in the ocean by 2050.
`21. Plastics are also abundant in human water supplies. The average person
`ingests up to 5 grams of plastic each week—roughly the equivalent of a credit card.
`22. Currently, the annual weight of plastic production globally is roughly the
`same as the entire weight of humanity.
`23. And because plastic is not biodegradable, it never goes away. Instead,
`plastics in the environment break down into smaller and smaller microplastics, which
`because of their miniscule nature, are now found in every nook and cranny of Earth’s
`ecosystems.
`24. With every significant rainfall event, millions of gallons of polluted
`storm water originating from industrial operations, like those conducted by Defendant,
`flow into Oxnard’s storm drains, local waterways, and the Pacific Ocean.
`25. The consensus among agencies and water quality specialists is that storm
`water pollution accounts for more than half of the total pollution entering local creeks
`
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`COMPLAINT
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`and rivers each year. See e.g. Bay, S., Study of the Impact of Stormwater Discharge on
`Santa Monica Bay, (Nov. 1999).
`26. These discharges of pollutants from industrial facilities contribute to the
`impairment of surface waters and aquatic dependent wildlife.
`27. Numerous scientific studies in recent decades have documented serious
`health risks to recreational users of southern California’s waters from pollutant-loaded
`storm water and non-storm water discharges. See, e.g., Stenstrom, M. K., Southern
`California Environmental Report Card: Stormwater Impact at 15; Los Angeles
`County Grand Jury, Reducing the Risks of Swimming at Los Angeles County Beaches
`(1999–2000) at 205; Haile, R. et al., An Epidemiological Study of Possible Adverse
`Health Effects of Swimming in Santa Monica Bay (Santa Monica Bay Restoration
`Project, 1996) at 5.
`28. Oxnard’s waterways are ecologically sensitive areas, and are essential
`habitat for numerous cetacean, pinniped, fish, bird, macro-invertebrate and
`invertebrate species.
`29. Oxnard’s waterways provide numerous recreational activities, including
`swimming, fishing, surfing, SCUBA diving, and kayaking.
`30. Oxnard’s waterways also provide non-contact recreation and aesthetic
`opportunities, such as biking and wildlife observation, as well as opportunities for
`education and research.
`31.
`Industrial facilities, like Defendant’s, that discharge storm water and non-
`storm water contaminated with sediment, heavy metals, plastics, and other pollutants
`contribute to the impairment of downstream waters and aquatic dependent wildlife,
`
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`COMPLAINT
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`expose people to toxins, and harm the special social and economic benefits Oxnard’s
`waterways have for locals and visitors alike.
`32. Controlling polluted storm water and non-storm water discharges is
`essential to protecting southern California’s surface and coastal waters.
`33. As the Act requires, these contaminated discharges can and must be
`controlled for ecosystems to regain their health and to protect public health.
`III. THE PARTIES
`34. EcoRights is a non-profit public benefit corporation organized under the
`laws of California. The EcoRights office is located at 867 B Redwood Drive,
`Garberville, California (95542).
`35. Founded in 1994, EcoRights is dedicated to promoting rights to a clean,
`healthy, and diverse environment.
`36. Through research, education, and environmental law enforcement,
`EcoRights protects human and wildlife communities.
`37. Where necessary to achieve its objectives, EcoRights initiates citizen
`enforcement actions under the Act on behalf of itself and its members, including those
`who live in and around the Oxnard area, and who use and enjoy the Oxnard Drain,
`Ormond Beach Wetlands, Ormond Beach and the Pacific Ocean (collectively the
`“Receiving Waters”).
`38. EcoRights members use and enjoy the Receiving Waters to research,
`educate, fish, surf, swim, sail, SCUBA dive and kayak.
`39. EcoRights members also use the Receiving Waters to engage in scientific
`study through pollution and habitat monitoring, as well as restoration activities.
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`COMPLAINT
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`40. The Facility’s unlawful discharge of pollutants into the Receiving Waters
`impairs the ability of EcoRights’ members’ use and enjoyment of the Receiving
`Waters by degrading the quality of the Receiving Waters, and by posing risks to
`human health and aquatic life.
`41. The interests of EcoRights and its members, therefore, have been, are
`being, and will continue to be adversely affected by the Facility’s failure to comply
`with the Act and General Permit.
`42. Continuing commission of the acts and omissions alleged herein will
`irreparably harm Plaintiff and its members, for which harm they have no plain, speedy,
`or adequate remedy at law.
`43. The relief sought herein will redress the harms to Plaintiff caused by
`Defendant’s activities.
`44. Diversified Panels Systems, Inc. filed articles of incorporation with
`California’s Secretary of State on October 19, 1994, listing the company’s
`incorporator, initial director, and agent for service of process as Richard Charles Bell
`of 1349 Sterling Drive, Thousand Oaks, California (91360).
`45. On its Statement of Information dated June 6, 2014 (“2014 Statement of
`Information”), Diversified listed its business address as 2345 Statham Boulevard in
`Oxnard, California (93033).
`46. Diversified’s 2014 Statement of Information lists Richard Charles Bell as
`the company’s chief executive officer, secretary, chief financial officer, and agent for
`service of process at 545 Rimrock Road in Thousand Oaks, California (91361).
`47. The Facility is owned and operated by Diversified and located at 2345
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`COMPLAINT
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`Statham Boulevard in Oxnard, California (93033).
`48. According to the company website, Diversified “is the industry leader with
`over 100 years of combined experience in custom design, engineering, [sic]
`manufacturing custom cold storage buildings and refrigeration systems.”
`49. Multiple online business databases identify Diversified as engaged in the
`manufacture of refrigeration equipment under Standard Industrial Classification
`(“SIC”) code 3585 at the Facility.
`50. The City of Oxnard identifies the Facility as a SIC code 3585
`manufacturing facility.
`51. The company’s web site advertises that “[a]ll Diversified[] panels are
`made from closed cell…expanded polystyrene (EPS) cores” (hereinafter “EPS”).
`IV. LEGAL BACKGROUND
`A. The Clean Water Act.
`52. The Act is the primary Federal statute regulating the protection of this
`nation’s water.
`53. The CWA aims to prevent, reduce, and eliminate pollution in order to
`“restore and maintain the chemical, physical, and biological integrity of the Nation's
`waters.” 33 U.S.C. § 1251(a).
`54.
`In order to accomplish that goal, Section 301(a), 33 U.S.C. § 1311,
`prohibits the discharge of any pollutant into waters of the United States unless the
`discharge complies with other enumerated sections of the Act, including the
`prohibition on discharges not authorized by, or in violation of, the terms of a National
`Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to section
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`COMPLAINT
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`402, 33 U.S.C. § 1342(b). See also 40 C.F.R. § 122.26(c)(1) and General Permit, §
`I.A.12.
`55. The Act defines “pollutant” to include “dredged spoil, solid waste,
`incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
`biological materials, radioactive materials, heat, wrecked or discarded equipment,
`rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into
`water.” See 33 U.S.C. § 1362(6); see also 40 C.F.R. 122.2.
`56. The Act requires all point source discharges of pollutants to waters of the
`United States be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. §
`122.26(c)(1).
`57. Unpermitted discharges of storm water associated with industrial
`activities are per se violations of the Act. 33 U.S.C. § 1311(a); Comm. to Save
`Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (“the
`Act categorically prohibits any discharge of a pollutant from a point source without a
`permit.”).
`58. Section 402(p) of the Act establishes the framework regulating industrial
`storm water discharges under federal and authorized state NPDES permit programs.
`33 U.S.C. § 1342(p).
`59. Section 402(b) of the Act allows each state to administer an NPDES
`permit program for regulating the discharge of pollutants, including discharges of
`polluted storm water approved by the U.S. EPA. 33 U.S.C. § 1342(b).
`60. States with approved NPDES permit programs are authorized by section
`402(b) to regulate industrial storm water discharges through the issuance of a
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`COMPLAINT
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`statewide general NPDES permit applicable to all industrial dischargers and/or
`through individual NPDES permits issued to dischargers. See Id.
`61. Section 505(a)(1) of the Act provides for citizen enforcement against any
`“person” who is alleged to be in violation of an “effluent standard or limitation . . . or
`an order issued by the Administrator or a State with respect to such a standard or
`limitation.” 33 U.S.C. §§ 1365(a)(1), 1365(f).
`62. A “person” under the Act includes individuals, corporations,
`partnerships, associations, States, municipalities, commissions, and political
`subdivisions of a State, or any interstate body. 33 U.S.C. 1362(5).
`63.
`“Effluent standard or limitation” is defined to include: (a) the prohibition
`in section 301(a) against unpermitted discharges; or (b) a condition of an NPDES
`permit such as the General Permit. 33 U.S.C. § 1365(f); Citizens for a Better Env't v.
`Union Oil Co., 83 F.3d 1111, 1114 (9th Cir. 1996) (“Private citizens may bring suit
`pursuant to 33 U.S.C. § 1365 to enforce effluent standards or limitations, which are
`defined as including violations of 33 U.S.C. § 1311(a). 33 U.S.C. § 1365(f)(1).”).
`64. Each separate violation of the Act subjects the violator to a penalty of up
`to $52,414 per day per violation for violations occurring after November 2, 2015. 33.
`U.S.C. §§ 1319(d), 1365(a); 40 C.F.R. § 19.4 (Adjustment of Civil Monetary
`Penalties for Inflation).
`65. Section 505(d) of the Act allows a prevailing or substantially prevailing
`party to recover litigation costs, including fees for attorneys, experts, and consultants
`where it finds that such an award is appropriate. 33 U.S.C. § 1365(d).
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`COMPLAINT
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`B. California’s Storm Water Permit.
`66. The State Board Water Resources Control Board (“State Board”) is
`charged with regulating pollutants to protect California’s water resources. See Cal.
`Water Code § 13001.
`67. California is authorized by U.S. EPA to issue NPDES permits for storm
`water discharges associated with industrial activities.
`68. The relevant NPDES permit in this action is the General Permit, which is
`issued by the State Board, and is implemented and enforced by Regional Boards,
`including the Los Angeles Regional Water Quality Control Board (“LA Regional
`Board”). See 33 U.S.C. §§ 1311(a), 1342, 1362(6), 1362(7), 1362(12).
`69.
`In order to lawfully discharge pollutants to waters of the United States in
`California, all persons who discharge storm water associated with industrial activity
`must enroll in, and comply with all terms and conditions of, the General Permit. See
`33 U.S.C. §§ 1311(a), 1342; 40 C.F.R. § 122.26(c)(1).
`70. The General Permit requires that a discharger file an NOI with the State
`Board prior to discharge. The NOI serves as certification to the State of California that
`the industrial facility owner(s) and agent(s) have read the General Permit and will
`comply with all of its terms and conditions. See 40 C.F.R. § 122.26(A)(1)(ii); General
`Permit, Finding #12.
`71. As described above, the Facility is a manufacturing facility classified
`under SIC code 3585. SIC Code 3585 facilities must enroll in and obtain coverage
`under the General Permit in order to lawfully discharge storm water to waters of the
`United States. See General Permit, Attachment A, ¶ 2.
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`COMPLAINT
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`72. Once enrolled, the General Permit requires permittees to consistently
`engage in four independent, but mutual-reinforcing actions: 1) executive planning and
`facility-specific pollution control design; 2) on-the-ground implementation of
`pollution control technologies; 3) monitoring storm water discharges for evidence of
`pollution; and 4) annual evaluation of the effectiveness of pollution control strategies,
`including corrective action where necessary.
`73. Compliance with the General Permit constitutes compliance with the
`Clean Water Act for purposes of storm water discharges. 33 U.S.C. §§ 1311(b)(2)(A),
`1311(b)(2)(E). Conversely, “[General] Permit noncompliance constitutes a violation
`of the Clean Water Act and the [California] Water Code.” General Permit, § XXI.A.
`74. Discharges of storm water containing pollutants to waters of the United
`States, therefore, are violations of the Act where they are: (a) unpermitted; or (b)
`completed without complying with all terms and conditions of a valid NPDES permit.
`See 2015 Permit, Finding No. 8 (“This General Permit authorizes discharges of
`industrial storm water to waters of the United States, so long as those discharges
`comply with all requirements, provisions, limitations, and prohibitions in this General
`Permit.”)
`C. The General Permit’s Discharge Prohibitions, Effluent Limitations,
`and Receiving Water Limitations.
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`75. The General Permit contains three sections restricting contaminated
`discharges from the Facility referred to as: (A) “Discharge Prohibitions;” (B)
`“Effluent Limitations” (a.k.a. technology-based standards); and (C) “Receiving Water
`Limitations” (a.k.a. water quality-based standards).
`a) Discharge Prohibitions.
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`COMPLAINT
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`76. The General Permit contains the following three Discharge Prohibitions.
`77. The General Permit proscribes all discharges of storm water to waters of
`the United States expect as specifically authorized by the General Permit or another
`NPDES permit. General Permit, § III.A
`78. The General Permit proscribes storm water discharges and authorized
`non-storm water discharges that contain pollutants that cause or threaten to cause
`pollution, contamination, or nuisance as defined in section 13050 of California Water
`Code. General Permit, § III.C.
`79. The General Permit proscribes discharges that violate discharge
`prohibitions contained in applicable Basin Plans, or statewide water quality control
`plans and policies. General Permit, § III.D.
`80. The Water Quality Control Plan for Inland Surface Waters, Enclosed
`Bays, and Estuaries (“ISW Plan”) is a statewide water quality control plan. The ISW
`Plan was amended on April 7, 2015. U.S. EPA approved the amendment on January
`12, 2016.
`81. The Media Release announcing the amendment notes that “[t]rash in our
`lakes, streams, and the ocean pose a serious threat to fish and wildlife as well as
`harming the public’s ability to enjoy our precious beaches and waterways.”
`82. The ISW Plan defines trash to include “[a]ll improperly discarded solid
`material from any production, manufacturing, or processing operation including, but
`not limited to, products, product packaging, or containers constructed of plastic, steel,
`aluminum, glass, paper, or other synthetic or natural materials.”
`83. The ISW Plan contains the following Prohibition on Discharge: “The
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`discharge of trash to surface waters of the State or the deposition of trash where it may
`be discharged into surface waters of the State is prohibited.” 2
`b) Effluent Limitations.
`84. The General Permit contains technology-based pollution reduction
`standards titled Effluent Limitations.
`85. The Act and General Permit requires dischargers to comply with
`statutorily established technology-based standards. 33 U.S.C. § 1311(b); General
`Permit, § V.
`86. The General Permit’s Technology Based Effluent Limitations set the
`floor for pollution reduction, i.e. the minimum level of pollution reductions that must
`be achieved by all permittees regardless of the quality of water receiving storm water
`discharges.
`87. The General Permit’s technology-based Effluent Limitations require
`permittee facilities to reduce or prevent pollutants in storm water discharges through
`the implementation of Best Available Technology Economically Achievable (“BAT”)
`for toxic or non-conventional pollutants, and Best Conventional Pollutant Control
`Technology (“BCT”) for conventional pollutants. 40 C.F.R. §§ 401.15-401.16;
`General Permit, § V.A.
`88. Conventional pollutants are listed at 40 C.F.R. § 401.16 and include
`biochemical oxygen demand, TSS, oil and grease, pH, and fecal coliform.
`89. Toxic pollutants are listed at 40 C.F.R. § 401.15 and include zinc, among
`others.
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`2 See https://www.waterboards.ca.gov/water_issues/programs/trash_control/.
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`90. Compliance with the General Permit’s technology-based standard
`requires permittee facilities design and implement effective, site-specific pollution
`control strategies called Best Management Practices (“BMPs”) that prevent or reduce
`storm water discharges in a manner that reflects best industry practice. General
`Permit, § V.A.
`91. BMPs are schedules of activities, prohibitions of practices, maintenance
`procedures, and other management practices to prevent or reduce the pollution of
`waters of the United States. BMPs include treatment systems, operation procedures,
`and practices to control and abate the discharge of pollutants from the Facility. See id.
`92. Permittees must design BMPs that meet the BAT standard for all sources
`of toxic pollutants; and thereafter implement and maintain, as well as evaluate and
`improve, such BMPs so as to ensure pollutant concentrations in any storm water
`discharge are controlled consistent with the BAT standard. See id.
`93. The 2008 and 2015 versions of U.S. EPA’s NPDES Storm Water Multi-
`Sector General Permit for Industrial Activities include numeric benchmark standards
`for pollutant concentrations in storm water discharges (“EPA Benchmarks”). See
`United States Environmental Protection Agency NPDES Multi-Sector General Permit
`for Storm Water Discharges Associated with Industrial Activity, effective September
`29, 2008 (as modified effective May 27, 2009) and effective June 4, 20153; see 80 FR
`34403, 34405 (June 16, 2015)
`94. EPA Benchmarks serve as objective measures for evaluating whether the
`BMPs designed and implemented at a facility achieve the statutory BAT/BCT
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`3 https://www.epa.gov/sites/production/files/2015-10/documents/msgp2015_finalpermit.pdf.
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`standards. See United States Environmental Protection Agency (EPA) National
`Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit for
`Stormwater Discharges Associated with Industrial Activity (MSGP), as modified
`effective June 4, 2015 (“Multi-Sector Permit”), p. 41; see also 80 Federal Register
`34403 (June 16, 2015); 73 Fed. Reg. 56572, 56574 (Sept. 29, 2008); 65 Fed. Reg.
`64746, 64766-67 (Oct. 30, 2000).
`95. The discharge of storm water containing pollutant concentrations
`exceeding EPA Benchmark targets evidence a failure to develop and implement
`pollution control strategies that achieve pollutant reductions consistent with
`BAT/BCT standards. See Santa Monica Baykeeper v. Kramer Metals, Inc.
`(“Kramer”), 619 F. Supp. 2nd 914, 921-25 (C.D. Cal. 2009); see also See 80 Fed.
`Reg. 34403, 34405 (June 16, 2015).
`96. Table 1 contains EPA Benchmark standards relevant to the assessing the
`Facility’s compliance with the BAT/BCT standards.
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`TABLE 1: U.S. EPA BENCHMARKS APPLICABLE TO THE FACILITY’S DISCHARGES
`PARAMETER
`U.S. EPA BENCHMARK
`Aluminum (Al)
`0.75 milligrams per liter (“mg/L”)
`Iron (Fe)
`1.0 mg/L
`Zinc (Zn)
`0.117 mg/L
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`97. Visual observations (and records) required to be conducted pursuant to
`the General Permit are relevant to assessing a permittee’s compliance with the
`BAT/BCT standards.
`98. Objective assessments of whether BMPs described in a SWPPP are
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`consistent with industry best practices are relevant to assessing a permittee’s
`compliance with the BAT/BCT standards.
`99. Facilities covered under the General Permit that handle plastics materials
`are required to implement BMPs to eliminate discharges of plastic in storm water.
`General Permit, § XVIII.
`100. Plastics materials under the General Permit includes virgin and recycled
`plastic resin pellets, powders, flakes, powdered additives, regrind, dust, as well as
`other similar types of preproduction plastics with the potential to discharge or migrate
`off-site.
`101. Any discharger that manufactures, transports, stores, or consumes plastic
`materials shall submit information to the State Board together with its NOI, including
`the type and form of plastics, and which BMPs are implemented at the facility to
`prevent illicit discharges. Id.
`102. Such BMPs must include, at a minimum, containment systems at each
`on-site storm drain discharge location down gradient of areas containing plastic
`materials. General Permit, § XVIII.A.1.a.
`103. A containment system shall be designed to prevent the discharge of
`particles by a 1-millimeter mech screen, with a treatment capacity of no less than the
`peak flow rate from a one-year, one-hour storm event. Id.
`104. Facilities that handle plastic materials smaller than 1-millimeter must
`develop a containment system designed to trap the smallest plastic material handled at
`the facility with a treatment capacity of at least the peak flow rate from a one-year,
`one-hour storm; or develop a feasible alternative BMP or suite of BMPs that are
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`designed to achieve a similar or better performance standard. General Permit, §
`XVIII.A.1.d.
`105. Additionally, plastics facilities shall use durable sealed containers as a
`form of secondary containment during all transfers, loading, or unloading of plastics
`materials. General Permit, § XVIII.A.1.c.
`106. Finally, facilities that use plastics materials must have a vacuum or
`vacuum-type system for quick cleanup of fugitive plastic material available for
`deployment by all employees. General Permit, § XVIII.A.1.e.
`c) Receiving Water Limitations
`107. The General Permit contains water quality-based standards titled
`Receiving Water Limitations.
`108. The General Permit Receiving Water Limitations are intended to protect
`the beneficial uses of surface waters to which a facility’s storm water is discharged.
`General Permit, § VI.A.
`109. The General Permit requires permittees to meet “any more stringent
`[water quality-based limitations] necessary for receiving waters to meet applicable
`water quality standards.” General Permit, §I.D.31.
`110. Receiving Water Limitations are gen