Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 1 of 35 Page ID #:7
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`Anthony M. Barnes (Bar No. 199048)
`Jason Flanders (Bar No. 238007)
`Email: amb@atalawgroup.com
`AQUA TERRA AERIS LAW GROUP LLP
`4030 Martin Luther King Jr. Way
`Oakland, CA 94609
`Phone: (917) 371-8293
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`Kelly Clark (Bar No. 312251)
`Email: kelly@lawaterkeeper.org
`LOS ANGELES WATERKEEPER
`120 Broadway
`Santa Monica, CA 90401
`Phone: (310) 394-6162
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`Attorneys for Plaintiff
`LOS ANGELES WATERKEEPER
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`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Civil Case 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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`LOS ANGELES WATERKEEPER, a
`California non-profit association,
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`SENIOR OPERATIONS LLC, a Delaware
`Limited Liability Company, doing business
`as SENIOR AEROSPACE SSP,
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`Plaintiff,
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`v.
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`Defendant.
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`Complaint for Declaratory and Injunctive 1
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 2 of 35 Page ID #:8
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`LA Waterkeeper (“LA Waterkeeper” or “Plaintiff”), by and through its counsel,
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`hereby alleges:
`JURISDICTION AND VENUE
`I.
`This is a civil suit brought under the citizen suit enforcement provision of
`1.
`the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act”
`or “CWA”). See 33 U.S.C. § 1365. This Court has subject matter jurisdiction over the
`parties and this action pursuant to 33 U.S.C. § 1365(a)(1) and 28 U.S.C. §§ 1331 and
`2201 (an action for declaratory and injunctive relief arising under the Constitution and
`laws of the United States).
`On April 7, 2021, LA Waterkeeper issued a 60-day notice letter (“Notice
`2.
`Letter”) to Senior Operations LLC (collectively, “Defendant” or “Senior Aerospace”), for
`an industrial facility under their control. The Notice Letter informed Defendants of their
`violations of California’s General Permit for Discharges of Storm Water Associated with
`Industrial Activities (National Pollutant Discharge Elimination System (NPDES) General
`Permit No. CAS000001, State Water Resources Control Board Water Quality Order No.
`2014-0057-DWQ and amended by Order No. 2015-0122 –DWQ incorporating: 1)
`Federal Sufficiently Sensitive Test Method Ruling; 2) TMDL Implementation
`Requirements; and 3) Statewide Compliance Options Incentivizing On-Site or Regional
`Storm Water Capture and Use (“General Permit” or “Storm Water Permit”), and the
`Clean Water Act at the industrial facility located at 2980 N San Fernando Blvd, Burbank
`CA 91504 with Waste Discharger Identification Number (“WDID”) 4 19I011647
`(“Facility”).
`The Notice Letter informed Defendant of LA Waterkeeper’s intent to file
`3.
`suit against Defendant to enforce the Storm Water Permit and the Clean Water Act.
`The Notice Letter was sent to Senior Operations LLC’s Chief Executive
`4.
`Officer, Michael Sheppard, and Senior Operations LLC’s EHSS Director (40 C.F.R.
`§ 135.2(a)(2)). The Notice Letter was also sent to the Acting Administrator of the United
`States Environmental Protection Agency (“EPA”), the Acting Administrator of EPA
`Complaint for Declaratory and Injunctive 2
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 3 of 35 Page ID #:9
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`Region IX, the Executive Director of the State Water Resources Control Board (“State
`Board”), and the Executive Officer of the Regional Water Quality Control Board, Los
`Angeles Region, (“Regional Board”) as required by Section 505(b) of the CWA, 33
`U.S.C. § 1365(b)(1)(A). The Notice Letter is attached hereto as Exhibit A and is fully
`incorporated herein by reference.
`5. More than sixty (60) days have passed since the Notice Letter was served on
`the Defendants and the State and Federal agencies. LA Waterkeeper is informed and
`believes, and thereon alleges, that neither the EPA nor the State of California has
`commenced or is diligently prosecuting an action to redress the violations alleged in the
`Notice Letter and in this complaint. See 33 U.S.C. § 1365(b)(1)(B). This action is not
`barred by any prior administrative penalty under Section 309(g) of the CWA, 33 U.S.C. §
`1319(g).
`6. Venue is proper in the Central District of California pursuant to Section
`505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because the sources of the violations are
`located within this judicial district.
`INTRODUCTION
`II.
`7. With every rainfall event, hundreds of millions of gallons of polluted
`rainwater, originating from industrial operations such as the Facility referenced herein,
`pour into the storm drains and local waterways. The consensus among regulatory
`agencies and water quality specialists is that storm water pollution accounts for more than
`half of the total pollution entering marine and river environments each year. These
`surface waters, known as Receiving Waters, are ecologically sensitive areas. Although
`pollution and habitat destruction have drastically diminished once abundant and varied
`fisheries, these waters are still essential habitat for dozens of fish and bird species as well
`as macro-invertebrate and invertebrate species. Storm water and non-storm water contain
`sediment, heavy metals, such as aluminum, iron, chromium, copper, lead, mercury,
`nickel, and zinc, as well as, high concentrations of nitrate and nitrite, and other pollutants.
`Exposure to polluted storm water harms the special aesthetic and recreational
`Complaint for Declaratory and Injunctive 3
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 4 of 35 Page ID #:10
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`significance that the surface waters have for people in the surrounding communities. The
`public’s use of the surface waters exposes many people to toxic metals and other
`contaminants in storm water and non-storm water discharges. Non-contact recreational
`and aesthetic opportunities, such as wildlife observation, are also impaired by polluted
`discharges to the Receiving Waters.
`High concentrations of total suspended solids (“TSS”) degrade optical water
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`quality by reducing water clarity and decreasing light available to support photosynthesis.
`TSS has been shown to alter predator-prey relationships (for example, turbid water may
`make it difficult for fish to hunt prey). Deposited solids alter fish habitat, aquatic plants,
`and benthic organisms. TSS can also be harmful to aquatic life because numerous
`pollutants, including metals and polycyclic aromatic hydrocarbons, are absorbed onto
`TSS. Thus, higher concentrations of TSS result in higher concentrations of toxins
`associated with those sediments. Inorganic sediments, including settleable matter and
`suspended solids, have been shown to negatively impact species richness, diversity, and
`total biomass of filter feeding aquatic organisms on bottom surfaces.
`Storm water discharged with high pH can damage the gills and skin of
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`aquatic organisms and cause death at levels above 10 standard units. The pH scale is
`logarithmic and the solubility of a substance varies as a function of the pH of a solution.
`A one-whole-unit change in SU represents a tenfold increase or decrease in ion
`concentration. If the pH of water is too high or too low, the aquatic organisms living
`within it will become stressed or die.
`10. This complaint seeks a declaratory judgment, injunctive relief, the
`imposition of civil penalties, and the award of costs, including attorney and expert
`witness fees, for Defendant’s substantive and procedural violations of the Storm Water
`Permit and the Clean Water Act resulting from Defendant’s operations at the Facility.1
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`1 The Facility are fully described in Section V below.
`Complaint for Declaratory and Injunctive 4
`and Civil Penalties Relief
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`11. LA Waterkeeper specifically alleges violations regarding Defendant’s
`discharge of pollutants from the Facility into waters of the United States; violations of the
`monitoring, reporting, and best management practice requirements; and violations of
`other procedural and substantive requirements of the Storm Water Permit and the Clean
`Water Act, are ongoing and continuous.
`PARTIES
`III.
` Los Angeles Waterkeeper
`A.
`12. LA Waterkeeper is a non-profit 501(c)(3) public benefit corporation
`organized under the laws of the State of California. LA Waterkeeper’s main office is
`located at 120 Broadway, Santa Monica, California 90401.
`13. LA Waterkeeper’s members live and/or recreate in and around Los Angeles.
`LA Waterkeeper is dedicated to the preservation, protection, and defense of the
`environment, wildlife, and natural resources of local surface waters. To further these
`goals, LA Waterkeeper actively seeks federal and state agency implementation of the
`Clean Water Act and, where necessary, directly initiates enforcement actions on behalf of
`itself and others.
`14. LA Waterkeeper members work, own homes and live in Los Angeles
`County and use and enjoy the waters near the Facility, including the Burbank Western
`Channel, the Los Angeles River and the bordering parks, pathways, golf, courses and
`athletic fields, and further downstream, Queensway Bay and Junipero Beach (“Receiving
`Waters”) for biking, boating, kayaking, viewing wildlife, walking, running, and engaging
`in scientific study, including habitat monitoring and restoration activities.
`15. Discharges of polluted storm water and non-storm water from the Facility
`degrade water quality and harm aquatic life in the Burbank Western Channel, the Los
`Angeles River and its estuary, Queensway Bay, and Junipero Beach, and impair LA
`Waterkeeper’s and its members’ use and enjoyment of those waters.
`16. The violations of the Storm Water Permit and Clean Water Act at the
`Facility are ongoing and continuous, including but not limited to Defendant’s discharge
`Complaint for Declaratory and Injunctive 5
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 6 of 35 Page ID #:12
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`of polluted storm water from the Facility. Thus, the interests of LA Waterkeeper’s
`members have been, are being, and will continue to be adversely affected by Defendant’s
`failure to comply with the Storm Water Permit and the Clean Water Act.
`17. Continuing commission of the acts and omissions alleged above will
`irreparably harm Plaintiff and its members, for which they have no plain, speedy or
`adequate remedy at law.
`18. The interests of LA Waterkeeper and LA Waterkeeper’s members have
`been, are being, and will continue to be adversely affected by Defendant’s failure to
`comply with the Clean Water Act and the Storm Water Permit. The relief sought herein
`will redress the harms to Plaintiff caused by Defendant’s activities.
`B. The Owners and/or Operators of the Facility
`19. LA Waterkeeper is informed and believes, and thereon alleges, that the
`Senior Operations LLC Facility, doing business as Senior Aerospace SSP, is located at
`2980 N. San Fernando Boulevard Burbank, CA 91504.
`20. LA Waterkeeper is informed and believes, and thereon alleges, that Senior
`Operations LLC, registered in Delaware, maintains its headquarters at 300 E. Devon
`Ave., Bartlett, IL 60103.
`21. LA Waterkeeper is informed and believes, and thereon alleges, that the name
`and address of the Registered Agent for Senior Operations LLC is CT Corporation c/o
`Nancy Flores, 818 West Seventh St. Los Angeles, CA 90017.
` LA Waterkeeper is informed and believes, and thereon alleges, that Senior
`22.
`Operations LLC is an owner of the Facility located at 2980 N. San Fernando Boulevard
`Burbank, CA 91504.
`23. LA Waterkeeper is informed and believes, and thereon alleges, that Senior
`Operations LLC is an operator of the Facility.
`24. LA Waterkeeper is informed and believes, and thereon alleges, that Senior
`Operations LLC is an active Delaware corporation registered in California.
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`Complaint for Declaratory and Injunctive 6
`and Civil Penalties Relief
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`25. LA Waterkeeper refers to Defendant Senior Operations LLC and its
`management herein as the “Owners/Operators” of the Facility.
`STATUTORY BACKGROUND
`IV.
`A. The Clean Water Act
`26. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the
`discharge of any pollutant into waters of the United States unless the discharge complies
`with various enumerated sections of the CWA. Among other things, Section 301(a)
`prohibits discharges not authorized by, or in violation of, the terms of a National
`Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to Section
`402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342(b).
`27. Section 402(p) of the CWA establishes a framework for regulating
`municipal and industrial storm water discharges under the NPDES program. 33 U.S.C. §
`1342(p). States with approved NPDES permit programs are authorized by Section 402(p)
`to regulate industrial storm water discharges through individual permits issued to
`dischargers and/or through the issuance of a single, statewide general permit applicable to
`all industrial storm water dischargers. 33 U.S.C. § 1342.
`28. Section 301(b) of the Clean Water Act requires that, by March 31, 1989, all
`point source dischargers, including those discharging polluted storm water, must achieve
`technology-based effluent limitations by utilizing Best Available Technology
`Economically Achievable (“BAT”) for toxic and nonconventional pollutants and the Best
`Conventional Pollutant Control Technology (“BCT”) for conventional pollutants. See 33
`U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(2)(ii)-(iii).
`29. The Clean Water Act requires point source discharges of pollutants to
`navigable waters be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. §
`122.26(c)(1).
`30. The “discharge of a pollutant” means, among other things, “any addition of
`any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12); see 40
`C.F.R. § 122.2.
`Complaint for Declaratory and Injunctive 7
`and Civil Penalties Relief
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`31. The term “pollutant” includes “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.” 33 U.S.C. §
`1362(6); see 40 C.F.R. § 122.2.
`32. The term “point source” means any “discernible, confined and discrete
`conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,
`discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel
`or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. §
`1362(14); see 40 C.F.R. § 122.2.
`“Navigable waters” means “the waters of the United States.” 33 U.S.C.
`33.
`1362(7).
`“Waters of the United States” are defined as “navigable waters,” and “all
`34.
`waters which are currently used, were used in the past, or may be susceptible to use in
`interstate or foreign commerce, including waters which are subject to the ebb and flow of
`the tide.” 33 U.S.C. § 1362(7).
`35. The EPA promulgated regulations for the Section 402 NPDES permit
`program defining “waters of the United States.” See 40 C.F.R. § 122.2. The EPA
`interprets waters of the United States to include not only traditionally navigable waters
`but also other waters, including waters tributary to navigable waters, wetlands adjacent to
`navigable waters, and other waters including intermittent streams that could affect
`interstate commerce.
`36. The Clean Water Act confers jurisdiction over non-navigable waters that are
`tributaries to traditionally navigable waters where the non-navigable water at issue has a
`significant nexus to the navigable water. See Rapanos v. United States, 547 U.S. 715
`(2006); see also N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).
`37. A significant nexus is established if the “[receiving waters], either alone or
`in combination with similarly situated lands in the region, significantly affect the
`Complaint for Declaratory and Injunctive 8
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`chemical, physical, and biological integrity of other covered waters.” Rapanos, 547 U.S.
`at 779; N. Cal. River Watch, 496 F.3d at 999-1000.
`38. A significant nexus is also established if waters that are tributary to
`navigable waters have flood control properties, including functions such as the reduction
`of flow, pollutant trapping, and nutrient recycling. Rapanos, 547 U.S. at 782; N. Cal.
`River Watch, 496 F.3d at 1000-1001.
`39. Section 505(a)(1) and Section 505(f) of the Clean Water Act provide for
`citizen enforcement actions 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.” See 33 U.S.C. §§ 1365(a)(i) and 1365(f).
`40. The Defendant is a “person[s]” within the meaning of Section 502(5) of the
`Clean Water Act, 33 U.S.C. § 1362(5).
`41. An action for injunctive relief is authorized under Section 505(a) of the
`CWA, 33 U.S.C. § 1365(a).
`42. Pursuant to Section 309(d) of the Act (33 U.S.C. § 1319(d)) and the
`Adjustment of Civil Monetary Penalties for Inflation (40 C.F.R. § 19.4), each separate
`violation of the CWA occurring after November 2, 2015 commencing five years prior to
`the date of Notice of Violation and Intent to File Suit subjects Senior Aerospace to a
`penalty of up to $56,460.00 per day per violation.
`43. Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), permits
`prevailing or substantially prevailing parties to recover litigation costs, including
`attorneys’ fees, experts’ fees, and consultants’ fees.
`B. California’s Storm Water Permit
`44. Section 402(b) of the CWA, 33 U.S.C. § 1342(b), allows each state to
`administer its own EPA-approved NPDES permit program for regulating the discharge of
`pollutants, including discharges of polluted storm water. States with approved NPDES
`permit programs are authorized by Section 402(b) to regulate industrial storm water
`discharges through individual NPDES permits issued to dischargers and/or through the
`Complaint for Declaratory and Injunctive 9
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`issuance of a statewide general NPDES permit applicable to all industrial storm water
`dischargers. See id.
`45. Pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, the Administrator of
`the EPA has authorized California to issue NPDES permits, including general NPDES
`permits. California has designated the State Board and the Regional Water Quality
`Control Boards to administer its NPDES program. City of Rancho Cucamonga v.
`Regional Water Quality Control Bd., 135 Cal. App. 4th 1377, 1380-81 (2006). In
`California, the State Board is charged with regulating pollutants to protect California’s
`water resources. See Cal. Water Code § 13001.
`46. The Storm Water Permit is a statewide general NPDES permit issued by the
`State Board pursuant to Section 402 of the CWA, 33 U.S.C. §§ 1342(b), (p), and 40
`C.F.R § 123.25. Violations of the Storm Water Permit are also violations of the CWA.
`Storm Water Permit, Section XXI(A).
`47. Section 303 of the CWA, 33 U.S.C. § 1313, requires states to adopt Water
`Quality Standards, including water quality objectives and beneficial uses for navigable
`waters of the United States. The CWA prohibits discharges from causing or contributing
`to a violation of such state Water Quality Standards. See 33 U.S.C. § 1313(b)(1)(c); 40
`C.F.R. §§ 122.4(a), (d); 40 C.F.R. §§ 122.44(D)(1).
`48. The State Board elected to issue a statewide general permit for industrial
`discharges. The State Board issued the Storm Water Permit on or about November 19,
`1991, modified the Storm Water Permit on or about September 17, 1992, and reissued the
`Storm Water Permit on or about April 17, 1997, pursuant to Section 402(p) of the Clean
`Water Act, 33 U.S.C. § 1342(p).
`49. On July 1, 2015, the current Storm Water Permit became effective and was
`issued as NPDES General Permit No. CAS000001 Order No. 2014-0057-DWQ. Storm
`Water Permit, Section I(A) (Finding 4).
`50. On November 6, 2018, the State Board amended the Storm Water Permit
`with Order No. No. 2015-0122 –DWQ, incorporating: 1) Federal Sufficiently Sensitive
`Complaint for Declaratory and Injunctive 10
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 11 of 35 Page ID #:17
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`Test Method Ruling; 2) TMDL Implementation Requirements; and 3) Statewide
`Compliance Options Incentivizing On-Site or Regional Storm Water Capture and Use
`(“2018 Permit Amendment”).
`In order to discharge storm water lawfully in California, industrial
`51.
`dischargers must secure coverage under the Storm Water Permit and comply with its
`terms, or obtain and comply with an individual NPDES permit. Storm Water Permit,
`Section I(A) (Findings 8, 12). Prior to beginning industrial operations, dischargers are
`required to apply for coverage under the Storm Water Permit by submitting a Notice of
`Intent to Comply with the Terms of the General Permit to Discharge Storm Water
`Associated with Industrial Activity (“NOI”) to the State Board. Storm Water Permit,
`Section I(A) (Finding 17), Section II(B).
`52. Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), provides for citizen
`enforcement actions 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.” See 33 U.S.C. §§ 1365(a)(i), 1365(f).
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`C. The Storm Water Permit’s Discharge Prohibitions, Effluent
`Limitations, and Receiving Water Limitations
`53. The Storm Water Permit contains certain absolute prohibitions. The Storm
`Water Permit prohibits the direct or indirect discharge of materials other than storm water
`(“non-storm water discharges”), which are not otherwise authorized by an NPDES
`permit, to the waters of the United States. Storm Water Permit, Discharge Prohibition
`III(B).
`54. Effluent Limitation V(A) of the Storm Water Permit requires dischargers to
`reduce or prevent pollutants associated with industrial activity 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. Toxic pollutants are listed at 40
`C.F.R. § 401.15 and include copper, lead, and zinc, among others. Conventional
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`Complaint for Declaratory and Injunctive 11
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 12 of 35 Page ID #:18
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`pollutants are listed at 40 C.F.R. § 401.16 and include biological oxygen demand
`(“BOD”), TSS, oil and grease, pH, and fecal coliform.
`55. Discharge Prohibition III(C) of the Storm Water Permit prohibits storm
`water discharges that cause or threaten to cause pollution, contamination, or nuisance.
`56. Under the CWA and the Storm Water Permit, dischargers must employ Best
`Management Practices (“BMPs”) that constitute BAT and BCT to reduce or eliminate
`storm water pollution. 33 U.S.C. § 1311(b). Storm Water Permit, Effluent Limitation
`V(A). EPA has developed benchmark levels (“Benchmarks”) that are objective
`guidelines to evaluate whether a permittee’s BMPs achieve compliance with the
`BAT/BCT standards. See Final National Pollutant Discharge Elimination System
`(NPDES) General Permit for Storm Water Discharges From Industrial Activities (“Multi-
`Sector Permit”), 80 Fed. Reg. 34,403, 34,405 (June 16, 2015); Multi-Sector Permit, 73
`Fed. Reg. 56,572, 56,574 (Sept. 29, 2008; Multi-Sector Permit, 65 Fed. Reg. 64,746,
`64,766-67 (Oct. 30, 2000).
`57. The EPA established Parameter Benchmark Values for the following
`parameters, among others, are as follows: TSS—100 mg/L; oil & grease (“O&G”)—15
`mg/L; aluminum (“Al”)—0.75 mg/l; iron (“Fe”)—1 mg/l; cadmium (“Cd”)—0.0018
`mg/L; copper (“Cu”)—0.0123 mg/l; zinc (“Zn”)—0.11 mg/L; pH—6-9 s.u.; chemical
`oxygen demand (“COD”)—120 mg/L; lead (“Pb”)—0.069 mg/L; and nitrate & nitrite
`nitrogen (“N+N”)—0.68 mg/L. The Basin Plan’s Water Quality Standards for the Los
`Angeles Region requires a narrower pH range of 6.5—8.5 pH units. The Storm Water
`Permit contains Numeric Action Levels (“NALs”) for these same parameters that
`generally mirror the Benchmark Values.
`58. The Storm Water Permit includes NALs. Storm Water Permit, Section I(M)
`(Finding 62). During the public commenting period, the State Board stated that "NALs
`are not designed or intended to function as numeric technology-based effluent
`limitations.” State Board 2012 Draft Industrial General Permit Response to Comments,
`Response #6 to Comment #12; see also Storm Water Permit Section I(M) (Finding 63).
`Complaint for Declaratory and Injunctive 12
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 13 of 35 Page ID #:19
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` The 2018 Permit Amendment implemented Numeric Effluent Limits
`59.
`(“NELs”) which the Facility are subject to following implementation of pollutant
`limitations based upon allowable Total Maximum Daily Loads (“TMDLs”) of certain
`pollutants discharged from industrial facilities to the Los Angeles River and Los Angeles
`Harbor. These pollutants include zinc (0.159 mg/L), copper (0.06749 mg/L), and lead
`(0.094 mg/L) and LA Waterkeeper alleges herein that each of these limits have already
`been exceeded at the Facility in self-reported storm water sample analyses.
`60. LA Waterkeeper alleges that storm water sampling results from samples
`taken at the Facility after July 2020 have exceeded the NEL for zinc, lead, and copper.
`61. Receiving Water Limitation VI(B) of the Storm Water Permit prohibit storm
`water discharges from adversely impacting human health or the environment.
`62. Discharges with pollutant levels that exceed levels known to adversely
`impact aquatic species and the environment are violations of the Storm Water Permit’s
`Receiving Water Limitation.
`63. Receiving Water Limitation VI(A) of the Storm Water Permit prohibit storm
`water discharges that cause or contribute to an exceedance of any “applicable Water
`Quality Standard in a Statewide Water Quality Control Plan or the applicable Regional
`Board’s Basin Plan.”
`64. Water Quality Standards (“WQS”) are pollutant concentration levels
`determined by the State Board, the various Regional Boards, and the EPA to be
`protective of the beneficial uses of the waters that receive polluted discharges.
`65. The State of California regulates water quality through the State Board and
`the nine Regional Boards. Each Regional Board maintains a separate Water Quality
`Control Plan which contains WQS for water bodies within its geographic area.
`66. The State Water Quality Control Board, Los Angeles Region, has issued the
`Water Quality Control Plan for the Los Angeles Region (“the Basin Plan”) to establish
`water quality objectives, implementation plans for point and non-point source discharges,
`prohibitions, and to further statewide plans and policies. The Basin Plan sets forth water
`Complaint for Declaratory and Injunctive 13
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 14 of 35 Page ID #:20
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`quality objectives for dissolved metals such as aluminum, arsenic, and mercury. Basin
`Plan, Table 3.8. The Basin Plan states that the waters shall not receive sediment,
`settleable materials, or suspended materials that cause nuisance or adversely affect the
`waters’ beneficial uses. Id. at 3-27. The Basin Plan also provides that “Toxic pollutants
`shall not be present at levels that will bioaccumulate in aquatic life to levels which are
`harmful to aquatic life or human health.” Id. at 3-24.
`67. The Basin Plan specifies potential and existing Los Angeles River including
`municipal and domestic supply, industrial and service supply, groundwater recharge,
`warm freshwater habitat, wildlife habitat, and wetland habitat. Id. The Basin Plan further
`specifies beneficial uses for the Los Angeles River Estuary, at Queensway Bay, including
`rare, threatened, or endangered species. Basin Plan, Table 2-1 and 2-3.
`68. Surface waters that cannot support the Beneficial Uses of those waters listed
`in the Basin Plan are designated as impaired water bodies pursuant to Section 303(d) of
`the Clean Water Act.
`69. The Los Angeles River is listed on the Section 303(d)-list for the following
`water quality impairments: copper, lead, ammonia, indicator bacteria, algae, oil, zinc,
`cadmium, pH, and cyanide. Queensway Bay is impaired for chlordane, toxicity and trash.
`LA Waterkeeper alleges that Defendant’s discharges of pollutants contributes to the
`continued impairment of the Receiving Waters and their beneficial uses.
`In addition, EPA has promulgated WQS for toxic priority pollutants in all
`70.
`California water bodies (“California Toxics Rule” or “CTR”), which apply to the
`Receiving Waters, unless expressly superseded by the Basin Plan. 65 Fed. Reg. 31,682
`(May 18, 2000); 40 C.F.R. § 131.38. The CTR sets forth lower numeric limits for zinc
`and other pollutants; CTR criteria can be as low as 0.067 mg/L for zinc in freshwater
`surface waters with water hardness calculation of 50 mg/L.2
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`2 The CTR numeric limits, or “criteria,” are expressed as dissolved metal concentrations
`in the CTR, but the Storm Water Permit required permittees to report their sample results
`as total metal concentrations. See Storm Water Permit, Attachment H at 18.
`Complaint for Declaratory and Injunctive 14
`and Civil Penalties Relief
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`Case 2:21-cv-08980 Document 4 Filed 11/16/21 Page 15 of 35 Page ID #:21
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`71. The CTR includes further numeric criteria set to protect human health and
`the environment in the State of California. See Establishment of Numeric Criteria for
`Priority Toxic Pollutants for the State of California Factsheet, EPA-823-00-008 (April
`2000), available at: https://www.epa.gov/wqs-tech/water-quality-standards-
`establishment-numeric-criteria-priority-toxic-pollutants-state.
`72. Discharges with pollutant levels in excess of the CTR criteria, the Basin
`Plan, and/or other applicable WQS are violations of Receiving Water Limitations and
`Section VI(A) of the Storm Water Permit.
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`D. The Storm Water Permit’s Storm Water Pollution Prevention Plan
`Req