Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 1 of 16 Page ID #:1
`
`
`COAST LAW GROUP, LLP
`MARCO A. GONZALEZ (SBN 190832)
`LIVIA BORAK BEAUDIN (SBN 259434)
`AMY C. JOHNSGARD (SBN 279795)
`1140 South Coast Highway 101
`Encinitas, CA 92024
`Ph: (760) 942-8505
`Fx: (760) 942-8515
`email: marco@coastlawgroup.com
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`COASTAL ENVIRONMENTAL RIGHTS
`FOUNDATION,
`a non-profit corporation,
`
`
`
`
`NAPLES RESTAURANT GROUP, LLC, a
`California Limited Liability Company;
`JOHN MORRIS, an individual,
`
`
` Plaintiff,
`
`
`v.
`
`Defendants.
`
`
` Civil Case No.
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
`
`
`
`(Federal Water Pollution Control Act,
` 33 U.S.C. § 1251 et seq.)
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 2 of 16 Page ID #:2
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Coastal Environmental Rights Foundation, (“CERF” or “Plaintiff”), by and
`
`through its counsel, 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.
`
`On or about November 5, 2015, Plaintiff issued a 60-day notice letter (“First
`2.
`Notice Letter”) to Defendant John Morris, Action Sports Kids Foundation, and the City
`of Long Beach regarding Defendant’s violations of the Clean Water Act.
`Plaintiff also sent the First Notice Letter to the registered agent for
`3.
`Defendant, the Administrator of the United States Environmental Protection Agency
`(“EPA”), the Administrator of EPA Region IX, the Executive Director of the California
`State Water Resources Control Board (“State Board”), and the Executive Officer of the
`Los Angeles Regional Water Quality Control Board (“Regional Board”) as required by
`40 C.F.R. § 135.2(a)(1) and 33 U.S.C. § 1365(b)(1)(A).
`Plaintiff issued a second 60-day notice letter (“Second Notice Letter”) on or
`4.
`about June 29, 2021. The Second Notice Letter was sent to Defendant John Morris,
`Defendant Naples Restaurant Group, LLC, the Port and City of Long Beach, and
`Defendant Children Today. The Second Notice Letter is attached hereto as Exhibit A and
`incorporated herein by reference.
`Plaintiff also sent the Second Notice letter to the EPA, the Acting
`5.
`Administrator of EPA Region IX, the State Board, and the Regional Board as required
`by40 C.F.R. § 135.2(a)(1) and 33 U.S.C. § 1365(b)(1)(A).
`6. More than sixty (60) days have passed since the First and Second Notice
`Letters were served on Defendants and the State and Federal agencies. Plaintiff is
`informed and believes, and thereon alleges, that neither the EPA nor the State of
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`1
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 3 of 16 Page ID #:3
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`California has commenced or is diligently prosecuting an action to redress the violations
`alleged in the Notice Letters 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).
`Venue is proper in the Central District of California pursuant to 33 U.S.C. §
`7.
`1365(c)(1) because the source of the violations is located within this judicial district.
`INTRODUCTION
`II.
`Every year since 2011, Defendants have organized and sponsored the July
`8.
`3rd Big Bang on the Bay event, which includes a fireworks show from a barge in
`Alamitos Bay.
`Plaintiff seeks relief for Defendants’ substantive and procedural violations
`9.
`of the Clean Water Act resulting from their unlawful discharge of pollutants into
`Alamitos Bay.
`10. Specifically, Defendants have discharged and continue to discharge
`fireworks debris and pollution into Alamitos Bay and the Pacific Ocean (collectively
`“Receiving Waters”) without a permit, in violation of the express terms and conditions of
`the Clean Water Act, 33 U.S.C. §§ 1301, 1342.
`11. Many species of waterbirds forage and roost at the Marina, including some
`classified as endangered, of special concern, or special animals. Two species listed by the
`State and federal governments as endangered and known to frequent Alamitos Bay are
`the California brown pelican and the California least tern.
`12. During the 2021 Big Bang on the Bay fireworks show, adjacent Snowy
`Egret and Western Gull nests were monitored and adults and chicks showed signs of
`stress as a result of the fireworks.
`13. Alamitos Bay provides habitat for benthic infauna and bottom-feeding and
`resident soft bottom-dwelling fish. The Bay is also home to clam beds, burrowing
`anemones, octopus, and California horn snail.
`14. The Bay’s water column habitat supports plankton small enough to be
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`2
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 4 of 16 Page ID #:4
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`suspended in the water column and fish eggs and larvae. Common water column fish
`species in Alamitos Bay include northern anchovy, topsmelt, queenfish, and white
`croaker.
`15. Over 40 different fish species have been found in Alamitos Bay, and
`bottlenose dolphins and gray whales are occasionally found in the Bay’s entrance channel
`or adjacent San Gabriel River mouth. California sea lions and harbor seals also
`occasionally enter Alamitos Bay.
`16. Alamitos Bay supports a variety of Beneficial Uses under the Clean Water
`Act, including: industrial service supply, navigation, commercial and sport fishing,
`estuarine habitat, marine habitat, wildlife habitat, rare, threatened or endangered species,
`shellfish harvesting, and wetland habitat.
`17. Defendants’ discharge of pollutants causes and/or contributes to the
`impairment of Alamitos Bay and compromises or destroys its Beneficial Uses.
`18. With every sparkle and flash of color from fireworks, pollutants in the form
`of debris, fuses, toxic metals and chemical residue fall into the waters below.
`19. When an individual firework is detonated, the chemical constituents burn at
`high temperatures and are scattered by the burst charge which separates them from the
`fireworks casing and internal shell components. A combustion residue is produced in the
`form of smoke, airborne particulates, chemical pollutants, and debris including paper,
`cardboard, wires, and fuses. This combustion residue falls into surface waters.
`20. Residual firework pollutant waste discharged into surface waters constitutes
`discharge of a pollutant from a point source within the meaning of the Clean Water Act.
`Therefore, a discharger must obtain a Permit before residual firework pollutant waste can
`be lawfully discharged.
`21. Typical firework constituents include, but are not limited to, aluminum,
`antimony, barium, carbon, calcium, chlorine, cesium, copper, iron, potassium, lithium,
`magnesium, oxidizers including nitrates, chlorates and perchlorates, phosphorus, sodium
`sulfur, strontium, titanium, and zinc. Defective shells or “duds” will on occasion fall
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`3
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 5 of 16 Page ID #:5
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`directly into the water. Duds contain 100 percent concentration of these chemical
`constituents, which can leak into receiving waters with little dilution.
`22. Many of the enumerated pollutants are particularly harmful to aquatic
`wildlife and humans alike. Firework discharges can directly impact multiple beneficial
`uses of receiving waters. Released copper can cause toxicity for organisms living on the
`bay bottom while fireworks debris can cause a condition of nuisance for people
`participating in recreational activities.
`In San Diego County, SeaWorld’s Mission Bay sediment monitoring data
`23.
`showed enrichment of numerous metals when compared to reference sites. The data
`indicates pollutants accumulate over time within the fireworks fallout area when
`compared to reference sites not impacted by the events.
`24. Perchlorate, a particularly dangerous firework constituent, is exceedingly
`mobile in water and can persist for many decades under typical ground and surface water
`conditions. Perchlorate can also greatly impact human health and is regulated as a
`drinking water contaminant. Recent studies have confirmed fireworks displays are a
`problematic source of perchlorate water contamination.
`25. The Clean Water Act prohibits the discharge of any pollutant to waters of
`the United States, except in compliance with a National Pollutant Discharge Elimination
`System (“NPDES”) permit. Because residual firework pollutant wastes constitute
`discharge of a pollutant from a point source within the meaning of the Clean Water Act,
`an NPDES permit is required when fireworks are detonated over water.
`26. The polluted discharges from Defendants’ fireworks shows harm the special
`aesthetic and recreational significance that the Receiving Waters have for people in the
`surrounding communities, including Plaintiff’s members. The public’s, including CERF’s
`members’, use of the Receiving Waters for water contact recreation exposes people to
`toxic metals, carcinogenic chemicals, and other contaminants resulting from Defendants’
`discharges. Non-contact recreational and aesthetic opportunities, such as wildlife
`observation and aesthetic enjoyment, are also impaired by polluted discharges, as such
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`4
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 6 of 16 Page ID #:6
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`discharges cause or contribute to ecosystem and food web degradation.
`PARTIES
`III.
` Defendant Naples Restaurant Group, LLC, (“Naples”) is an active
`27.
`California limited liability company and is the owner of restaurant Boathouse on the Bay,
`located at 190 N Marina Dr, Long Beach, CA 90803. Naples is a fiscal sponsor and
`organizer of the annual Big Bang on the Bay fireworks event.
`28. Defendant John Morris (“Morris”) is Naples’ managing member and
`primary organizer of the annual Big Bang on the Bay fireworks event.
`29. Plaintiff CERF is a non-profit public benefit corporation organized under the
`laws of the State of California with its office is located in Encinitas, California. CERF
`was founded by surfers in North San Diego County and is active throughout California’s
`coastal communities. CERF was established to advocate for the protection and
`enhancement of coastal natural resources and the quality of life for coastal residents. One
`of CERF’s primary areas of advocacy is water quality protection and enhancement.
`30. Many of Plaintiff’s members live and/or recreate in and around the
`Receiving Waters. Plaintiff’s members use and enjoy the Receiving Waters to fish, sail,
`boat, kayak, paddle board, surf, swim, hike, view wildlife and scenery, and engage in
`scientific studies, among other activities.
`31. Defendants’ failure to comply with the procedural and substantive
`requirements of the CWA results in discharges of pollutants into the Receiving Waters.
`Defendants’ unpermitted pollutant discharges degrade water quality and harm aquatic life
`in the Receiving Waters and thus impair Plaintiff’s members’ use and enjoyment of those
`waters.
`32. Defendants’ violations of the CWA are ongoing and continuous. The Big
`Bang on the Bay has occurred annually since 2011, with the exception of 2020 due to the
`Covid-19 pandemic. Thus, the interests of Plaintiff’s members have been and will continue
`to be adversely affected by Defendants’ failure to comply with the CWA.
`33. CERF’s members donate their time and resources to protect, enhance, and
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`5
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 7 of 16 Page ID #:7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`assist in the preservation of coastal and inland waterbodies, including Alamitos Bay.
`34. At least two of CERF’s members live near Alamitos Bay and recreate in or
`around the Bay. They regularly use Alamitos Bay for recreational and aesthetic purposes,
`including viewing wildlife. These members intend to use Alamitos Bay and the Pacific
`Ocean for these activities again in the future. These members are aware of Defendants’
`unlawful discharges of pollutants to the Receiving Waters and their use and enjoyment of
`the Receiving Waters is lessened due to such knowledge.
`35. The relief sought herein will redress the harms to Plaintiff’s members caused
`by Defendants’ activities. Continuing commission of the acts and omissions alleged herein
`will irreparably harm Plaintiff’s members, for which it has no other plain, speedy, or
`adequate remedy at law.
`36. An actual controversy exists as to the rights and other legal relations
`between Defendants and Plaintiff.
`LEGAL BACKGROUND
`IV.
`The Clean Water Act.
`A.
`37. Section 301(a) of the Act, 33 U.S.C.A. § 1311(a), prohibits the discharge of
`pollutants from a point source into navigable waters of the United States, unless in
`compliance with various enumerated sections of the Act. Among other things, § 301(a)
`prohibits such discharges not authorized by or in violation of the terms of an NPDES
`permit pursuant to Section 402 of the Act, 33 U.S.C.A. § 1342.
`“Waters of the United States” are defined as “navigable waters” and “all
`38.
`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); 40 C.F.R. § 122.2.
`39. 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).
`40. The EPA interprets waters of the United States to include not only
`traditionally navigable waters, but also other waters, including waters tributary to
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`6
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 8 of 16 Page ID #:8
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`navigable waters, wetlands adjacent to navigable waters, and intermittent streams that
`could affect interstate commerce. See 40 C.F.R. § 120.2.
`41. The CWA confers jurisdiction over waters that are tributaries to traditionally
`navigable waters where the water at issue has a significant nexus to the navigable water.
`42. The term “pollutant” means 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).
`43. 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).
`The Discharge of Fireworks Over Water.
`B.
`44. California is a state authorized by the EPA to issue NPDES permits. In
`California, the State Board is charged with regulating pollutants to protect California’s
`water resources. Cal. Water Code § 13001.
`In California, two of the nine Regional Water Quality Control Boards
`45.
`(“RWQCB”) have issued general NPDES permits to regulate the discharge of fireworks
`over water.
`46. The Region 9, San Diego RWQCB Fireworks General Permit was adopted
`on May 11, 2011. The Region 9 Permit states:
`“The Clean Water Act (CWA), at section 301(a), broadly prohibits the discharge of
`any pollutant to waters of the United States, except in compliance with a National
`Pollutant Discharge Elimination System (NPDES) permit. Residual firework
`pollutant waste discharged into surface waters constitutes discharge of a pollutant
`from a point source within the meaning of the CWA. Therefore, coverage under an
`NPDES permit is required before residual firework pollutant waste can be lawfully
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`7
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 9 of 16 Page ID #:9
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`discharged.” (Order No. R9-2011-0022, p. 6 [I. Discharge Information]).
`47. The Region 2, San Francisco Bay RWQCB Fireworks General Permit
`became effective on August 1, 2020.
`48. Region 4, the Regional Board with jurisdiction over Defendants’ discharges,
`has not issued a general NPDES for the discharge of fireworks
`49. The Defendants have not been granted an individual NPDES permit for their
`discharge of pollutants from the Big Bang on the Bay fireworks event.
`V.
`FACTUAL BACKGROUND
`Fireworks Discharges.
`A.
`50. Professional pyrotechnic devices used in fireworks displays can be grouped
`into three general categories: 1) aerial shells (paper and cardboard spheres or cylinders
`filled with pyrotechnic materials), 2) low-level comet and multi-shot devices such as
`roman candles, and 3) set piece displays mounted on the ground.
`51. Typical firework constituents include, but are not limited to, aluminum,
`antimony, barium, carbon, calcium, chlorine, cesium, copper, iron, potassium, lithium,
`magnesium, oxidizers including nitrates, chlorates and perchlorates, phosphorus, sodium
`sulfur, strontium, titanium, and zinc.
`52. The chemical constituents burn at high temperatures when the firework is
`detonated which promotes incineration. The chemical constituents within the fireworks
`are scattered by the burst charge which separates them from the fireworks casing and
`internal shell components. A firework combustion residue is produced in the form of
`smoke, airborne particulates, chemical pollutants, and debris including paper, cardboard,
`wires, and fuses. This combustion residue can fall into surface waters. In addition, un-
`ignited pyrotechnic material including duds and misfires can also fall into surface waters.
`The receiving water fallout area affected by the fireworks residue can vary depending on
`wind speed and direction, size of the shells, the angle of mortar placement, the type and
`height of firework explosions and other environmental factors. Once the fireworks
`residue enters a water body it can be transported to waters and shorelines outside the
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`8
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 10 of 16 Page ID #:10
`
`
`
`fallout area due to wind shear and tidal effects.
`53. For years, CERF volunteers visually monitored the La Jolla Cove 4th of July
`fireworks display conducted on land with discharges over water. The La Jolla Cove
`fireworks event sponsors routinely claimed minimal or no debris entered the adjacent
`waters as a result of the fireworks show.
`54. CERF volunteers found the La Jolla Cove fireworks show resulted in
`substantial debris, such as cardboard, wires, fuses, string, and plastics falling onto the
`adjacent cliffs and into the water. CERF volunteers were unable to collect debris from the
`water in the dark, but picked up significant quantities of debris from the adjacent cliffs,
`much of which would be swept into the water with rising tides. Photos of the launch area
`and of the debris collected by CERF volunteers after the July 4, 2011 fireworks event are
`reproduced below.
`La Jolla Cove Fireworks Launch Area
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 11 of 16 Page ID #:11
`Case 2:21-cv-09172 Document1 Filed 11/23/21 Page 11of16 Page ID#:11
`
`
`
`
`
`
`Launch Footprint
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 10
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 12 of 16 Page ID #:12
`
`
`
`Debris Collected by CERF volunteers
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 13 of 16 Page ID #:13
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Big Bang on the Bay.
`B.
`55. The Big Bang on the Bay is an annual event comprised of a street fair with
`live music, a fireworks display, catered food, and alcohol service. In years past, including
`2021, the event included aircraft flyovers and skydivers. It has historically been held on
`July 3rd in honor of Independence Day with the fireworks show as the main attraction.
`56. The 30-minute fireworks show is conducted from a barge in Alamitos Bay to
`allow fireworks debris and residue to fall into the Bay.
`57. Alamitos Bay is a navigable water. The barge from which the Big Bang on
`the Bay fireworks are detonated is towed into Alamitos Bay by a tugboat and temporarily
`anchored for the event.
`58. Since 2011, Defendants have sponsored and organized the Big Bang on the
`Bay every July, except for July 2020 due to the Covid-19 pandemic.
`59. The Boathouse on the Bay website typically sells event tickets and promotes
`the event. Defendant Naples is the sponsoring organization listed on the City of Long
`Beach Public Fireworks Display permit application.
`In response to CERF’s First Notice Letter and as a result of an agreement
`60.
`between Defendant Morris and CERF, the Big Bang on the Bay has monitored its
`discharge of fireworks since 2015.
`61. Defendants’ sampling report has noted firework debris collected in the water
`after the event includes used cardboard, plastic firework cylinders, paper bound in zip
`ties, and a variety of fireworks wrapping paper. This debris is consistent with the debris
`collected by CERF volunteers after the La Jolla Cove fireworks event.
`In the San Diego region, dischargers enrolled in the General Fireworks
`62.
`Permit must report the dry and wet weight of debris collected from the firing range after
`the event. Most events report collecting between 8 and 700 pounds of dry debris post
`fireworks shows.
`63. The 2021 event was comprised of more than 735 fireworks.
`64. Defendants’ 2021 sampling report states that .5 pounds of plastic and water-
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 12
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 14 of 16 Page ID #:14
`
`
`
`saturated cardboard was recovered by their consultants, though none of it appeared event
`related. Therefore, most of the 2021 firework debris remains within Alamitos Bay.
`65. Similar results were reported in prior years where sampling was conducted.
`Therefore, most of the fireworks debris from every Big Bang on the Bay event remained
`within Alamitos Bay.
`66. The fireworks fallout area is a radius of approximately 600 feet. A figure
`showing the location of the barge for the 2021 Big Bang on the Bay Event was included
`in Defendants’ sampling report and is reproduced below.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 15 of 16 Page ID #:15
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`C. The Los Angeles Regional Board Has Not Issued a Permit for the Big
`Bang on the Bay.
`In response to CERF’s First Notice Letter, the Los Angeles Regional Board
`67.
`issued a California Water Code Section 13267 investigative order. The Board issued
`investigative orders in 2017 and 2018, requesting water quality monitoring data.
`68. The Regional Board has not taken any subsequent action toward establishing
`a general NPDES permit for fireworks discharges or issuing individual NPDES permits
`for fireworks discharges.
`69. The Los Angeles Regional Board has not issued an NPDES to Defendants
`for their discharge of fireworks for the Big Bang on the Bay. On information and belief,
`Defendants have not applied for an NPDES permit.
`CLAIMS FOR RELIEF
`V.
`FIRST CAUSE OF ACTION
`Discharges of Pollutants Without an NPDES Permit.
`33 U.S.C. §§ 1311(a), 1342
`70. Plaintiff incorporates the allegations contained in the above paragraphs as
`though fully set forth herein.
`71. The discharge of pollutants from a point source without an NPDES permit is
`a violation of the Clean Water Act. Defendant’s ongoing failure to obtain an NPDES
`permit for its annual Big Bang on the Bay discharges is an ongoing violation of the
`CWA. 33 U.S.C. § 1311(a), § 1342.
` Defendants violated and will continue to violate the Clean Water Act each
`72.
`and every time unauthorized discharges occur as a result of the Big Ban on the Bay
`fireworks show.
`73. Defendants have been in violation of the Clean Water Act since July 3, 2011
`to the present. Defendants’ violations are ongoing and continuous.
`74. Each and every violation of the Clean Water Act is a separate and distinct
`violation of 33 U.S.C. § 1311(a) and § 1342. By committing the acts and omissions
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 14
`
`

`

`Case 2:21-cv-09172 Document 1 Filed 11/23/21 Page 16 of 16 Page ID #:16
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`alleged above, Defendants are subject to an assessment of civil penalties for each and
`every violation of the CWA occurring from June 29, 2016 to the present pursuant to
`Sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365; 40 C.F.R. § 19.4.
`WHEREFORE, Plaintiff prays judgment against Defendants as set forth hereafter.
`RELIEF REQUESTED
`75. Plaintiff respectfully requests that this Court enter judgment providing the
`following relief:
`Declare the Defendants to have violated and to be in violation of the Clean
`a.
`Water Act;
`Issue an injunction to enjoin Defendants from discharging pollutants unless
`b.
`and until they obtain an NPDES permit;
`Order Defendants to pay civil monetary penalties for each violation of the
`c.
`CWA at $56,460.00 per day per violation for violations that occurred after November 2,
`2015, as permitted by CWA Section 309(d), 33 U.S.C. § 1319(d) and Adjustment of
`Civil Monetary Penalties for Inflation, and 40 C.F.R. § 19.4.
`d. Order Defendants to take appropriate actions to restore the quality of United
`States waters impaired by their unlawful discharge of pollutants;
`Award Plaintiff its reasonable costs of suit, including attorney, witness,
`e.
`expert, and consultant fees, as permitted by Section 505(d) of the Clean Water Act, 33
`U.S.C. § 1365(d); and
`Any other relief as this Court may deem appropriate.
`f.
`Dated: November 23, 2021
`
`
`
`Respectfully submitted,
`COAST LAW GROUP LLP
`By: s/Livia B. Beaudin
`LIVIA B. BEAUDIN
`Attorney for Plaintiff
`COASTAL ENVIRONMENTAL
`RIGHTS FOUNDATION
`E-mail: livia@coastlawgroup.com
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 15
`
`
`
`
`
`
`
`
`
`
`
`
`
`VI.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`