Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 1 of 26 Page ID #:1
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`Michael R. Lozeau (State Bar No. 142893)
`Douglas J. Chermak (State Bar No. 233382)
`E-mail: michael@lozeaudrury.com
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` doug@lozeaudrury.com
`LOZEAU DRURY LLP
`1939 Harrison Street, Suite 150
`Oakland, CA 94612
`Tel: (510) 836-4200
`Fax: (510) 836-4205
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`Attorneys for Plaintiff
`CENTER FOR COMMUNITY ACTION
`AND ENVIRONMENTAL JUSTICE
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`
`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`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 to 1387)
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` Plaintiff,
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`CENTER FOR COMMUNITY
`ACTION AND ENVIRONMENTAL
`JUSTICE, a non-profit corporation,
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`AIRGAS USA, LLC, a limited
`liability corporation,
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` Defendant.
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`vs.
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`
`
`CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL
`
`JUSTICE (“CCAEJ”), a California non-profit corporation, by and through its counsel,
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`hereby alleges:
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 2 of 26 Page ID #:2
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`I.
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`JURISDICTION AND VENUE
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`1.
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`This is a civil suit brought under the citizen suit enforcement provisions
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`of the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (the “Clean
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`Water Act” or “the Act”). This Court has subject matter jurisdiction over the parties
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`and the subject matter of this action pursuant to Section 505(a)(1)(A) of the Act, 33
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`U.S.C. § 1365(a)(1)(A), and 28 U.S.C. § 1331 (an action arising under the laws of the
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`United States). The relief requested is authorized pursuant to 28 U.S.C. §§ 2201-02
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`(power to issue declaratory relief in case of actual controversy and further necessary
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`relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive relief);
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`and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
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`2.
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`On November 19, 2020, Plaintiff provided notice of Defendant’s
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`violations of the Act, and of Plaintiff’s intention to file suit against Defendant, to the
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`Administrator of the United States Environmental Protection Agency (“EPA”); the
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`Administrator of EPA Region IX; the Executive Director of the State Water
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`Resources Control Board (“State Board”); the Executive Officer of the California
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`Regional Water Quality Control Board, Santa Ana Region (“Regional Board”); and to
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`Defendant, as required by the Act, 33 U.S.C. § 1365(b)(1)(A). A true and correct
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`copy of CCAEJ’s notice letter is attached as Exhibit A, and is incorporated by
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`reference.
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`3. More than sixty days have passed since notice was served on Defendant
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`and the State and federal agencies. Plaintiff is informed and believes, and thereupon
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`alleges, that neither the EPA nor the State of California has commenced or is
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 3 of 26 Page ID #:3
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`diligently prosecuting a court action to redress the violations alleged in this complaint.
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`This action’s claim for civil penalties is not barred by any prior administrative penalty
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`under Section 309(g) of the Act, 33 U.S.C. § 1319(g).
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`4.
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`Venue is proper in the Central District of California pursuant to Section
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`505(c)(1) of the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is
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`located within this judicial district.
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`II.
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`INTRODUCTION
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`5.
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`This complaint seeks relief from Defendant’s discharges of polluted
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`storm water from Defendant’s industrial facility located at 12550 Arrow Route in
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`Rancho Cucamonga, California (“Facility”). These discharges are in violation of the
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`Act and National Pollutant Discharge Elimination System (“NPDES”) Permit No.
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`CAS000001, State Water Resources Control Board Water Quality Order No. 97-03-
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`DWQ, as renewed by Water Quality Order No. 2014-0057-DWQ (“General Permit”).
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`Defendant’s violations of the discharge, treatment technology, monitoring
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`requirements, and other procedural and substantive requirements of the General
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`Permit and the Act are ongoing and continuous.
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`6. With every significant rainfall event, millions of gallons of polluted
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`storm water originating from industrial operations, such as those conducted by
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`Defendant, pour into storm drains and local waterways. The consensus among
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`agencies and water quality specialists is that storm water pollution accounts for more
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`than half of the total pollution entering surface waters each year.
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`7.
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`Industrial facilities, like Defendant’s, that are discharging polluted storm
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 4 of 26 Page ID #:4
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`water and non-storm water contribute to the impairment of downstream waters and
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`aquatic-dependent wildlife. These contaminated discharges can and must be
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`controlled for the ecosystem to regain its health.
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`III. PARTIES
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`8.
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`Plaintiff CCAEJ is a non-profit public benefit corporation under the laws
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`of the State of California with its main office in Jurupa Valley, California. CCAEJ is
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`dedicated to working with communities to advocate for environmental justice and
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`pollution prevention. CCAEJ and its members are deeply concerned with protecting
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`the environment in and around their communities, including the Santa Ana River
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`Watershed. To further these goals, CCAEJ actively seeks federal and state agency
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`implementation of the Act and other laws and, where necessary, directly initiates
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`enforcement actions on behalf of itself and its members.
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`9.
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`CCAEJ has members living in the communities near the Facility and the
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`Santa Ana River Watershed. They enjoy using the Santa Ana River for recreation and
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`other activities. Members of CCAEJ use and enjoy the waters into which Defendant
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`has caused, is causing, and will continue to cause, pollutants to be discharged.
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`Members of CCAEJ use those areas to recreate and view wildlife, among other things.
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`Defendant’s discharges of pollutants threaten or impair each of those uses or contribute
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`to such threats and impairments. Thus, the interests of CCAEJ’s members have been,
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`are being, and will continue to be adversely affected by Defendant’s failure to comply
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`with the Clean Water Act and the Permit. The relief sought herein will redress the
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`harms to Plaintiff caused by Defendant’s activities.
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 5 of 26 Page ID #:5
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`10. CCAEJ brings this action on behalf of its members. CCAEJ’s interest in
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`reducing Defendant’s discharges of pollutants into the Santa Ana River and its
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`tributaries and requiring Defendant to comply with the requirements of the General
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`Permit are germane to its purposes. Litigation of the claims asserted and relief
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`requested in this Complaint does not require the participation in this lawsuit of
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`individual members of CCAEJ.
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`11. Continuing commission of the acts and omissions alleged above will
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`irreparably harm Plaintiff and one or more of its members, for which harm they have no
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`plain, speedy or adequate remedy at law.
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`12. Defendant AIRGAS USA, LLC (“Airgas”) is a limited liability
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`corporation that owns and/or operates the Facility that is at issue in this action.
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`IV. STATUTORY BACKGROUND
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`Clean Water Act
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`13. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of
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`any pollutant into waters of the United States, unless such discharge is in compliance
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`with various enumerated sections of the Act. Among other things, Section 301(a)
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`prohibits discharges not authorized by, or in violation of, the terms of an NPDES
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`permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.
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`14. Section 402(p) of the Act establishes a framework for regulating
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`municipal and industrial storm water discharges under the NPDES program. 33
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`U.S.C. § 1342(p). States with approved NPDES permit programs are authorized by
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`Section 402(p) to regulate industrial storm water discharges through individual
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 6 of 26 Page ID #:6
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`permits issued to dischargers or through the issuance of a single, statewide general
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`permit applicable to all industrial storm water dischargers. 33 U.S.C. § 1342(p).
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`15. The EPA promulgated regulations for the Section 402 NPDES permit
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`program defining waters of the United States. See 40 C.F.R. § 122.2. The EPA
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`interprets waters of the United States to include not only traditionally navigable
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`waters but also other waters, including waters tributary to navigable waters, wetlands
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`adjacent to navigable waters, and other waters including intermittent streams that
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`could affect interstate commerce. The Act requires any person who discharges or
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`proposes to discharge pollutants into waters of the United States to submit an NPDES
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`permit application. 40 C.F.R. § 122.21.
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`16. Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator
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`of the U.S. EPA has authorized California’s State Board to issue NPDES permits
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`including general NPDES permits in California.
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`General Permit
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`17. The State Board elected to issue a statewide general permit for industrial
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`storm water discharges. The State Board originally issued the General Permit on or
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`about November 19, 1991. The State Board modified the General Permit on or about
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`September 17, 1992. Pertinent to this action, the State Board reissued the General
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`Permit on or about April 17, 1997, and again on or about April 1, 2014, pursuant to
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`Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p). The current version of
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`the General Permit went into effect on July 1, 2015.
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`18.
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`In order to discharge storm water lawfully in California, industrial
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 7 of 26 Page ID #:7
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`facilities must comply with the terms of the General Permit or have obtained and
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`complied with an individual NPDES permit. 33 U.S.C. § 1311(a).
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`19. The General Permit contains several prohibitions. Effluent Limitation
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`V(A) prohibits discharges unless pollutants have been reduced or prevented through
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`implementation of the Best Available Technology Economically Achievable (“BAT”)
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`for toxic and nonconventional pollutants and the Best Conventional Pollutant Control
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`Technology (“BCT”) for conventional pollutants. Discharge Prohibition III(C)
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`prohibits storm water discharges and authorized non-storm water discharges that
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`cause or threaten to cause pollution, contamination, or nuisance. Receiving Water
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`Limitation VI(B) prohibits storm water discharges to any surface or ground water that
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`adversely impact human health or the environment. Receiving Water Limitation
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`VI(A) and Discharge Prohibition III(D) prohibit storm water discharges that cause or
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`contribute to an exceedance of any applicable water quality standards contained in
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`Statewide Water Quality Control Plan or the applicable Regional Board’s Basin Plan.
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`20.
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`In addition to absolute prohibitions, the General Permit contains a variety
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`of substantive and procedural requirements that dischargers must meet. Facilities
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`discharging, or having the potential to discharge, storm water associated with
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`industrial activity that have not obtained an individual NPDES permit must apply for
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`coverage under the State’s General Permit by filing a Notice of Intent to Comply
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`(“NOI”). Dischargers have been required to file NOIs since March 30, 1992.
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`21. Dischargers must develop and implement a Storm Water Pollution
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`Prevention Plan (“SWPPP”). The SWPPP must describe storm water control facilities
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 8 of 26 Page ID #:8
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`and measures that comply with the BAT and BCT standards. For dischargers
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`beginning industrial activities before October 1, 1992, the General Permit requires
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`that an initial SWPPP has been developed and implemented before October 1, 1992.
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`The objective of the SWPPP requirement is to identify and evaluate sources of
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`pollutants associated with industrial activities that may affect the quality of storm
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`water discharges and authorized non-storm water discharges from the facility, and to
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`implement best management practices (“BMPs”) to reduce or prevent pollutants
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`associated with industrial activities in storm water discharges and authorized non-
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`storm water discharges. General Permit, § X(C). These BMPs must achieve
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`compliance with the General Permit’s effluent limitations and receiving water
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`limitations, including the BAT and BCT technology mandates. To ensure compliance
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`with the General Permit, the SWPPP must be evaluated and revised as necessary. Id.,
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`§ X(B). Failure to develop or implement an adequate SWPPP, or update or revise an
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`existing SWPPP as required, is a violation of the General Permit. Id., Fact Sheet §
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`I(1).
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`22. Section X of the General Permit sets forth the requirements for a
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`SWPPP. Among other requirements, the SWPPP must include: an Annual
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`Evaluation, the date of preparation, the date of subsequent amendments, a pollution
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`prevention team; a site map containing facility boundaries and depicting municipal
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`storm drain inlets; an evaluation of non-storm water discharges; a list of significant
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`materials handled and stored at the site; a description of potential pollutant sources; an
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`assessment of potential pollutant sources; and a description of the BMPs to be
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 9 of 26 Page ID #:9
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`implemented at the facility that will reduce or prevent pollutants in storm water
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`discharges and authorized non-storm water discharges, including structural BMPs
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`where non-structural BMPs are not effective. Dischargers must develop and
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`implement a set of minimum BMPs, as well as any advanced BMPs as necessary to
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`achieve BAT/BCT, which serve as the basis for compliance with the General Permit’s
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`technology-based effluent limitations and receiving water limitations.
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`23. The General Permit requires dischargers to implement and maintain, to
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`the extent feasible, all of the following minimum BMPs in order to reduce or prevent
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`pollutants in industrial storm water discharges: good housekeeping, preventive
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`maintenance, spill and leak prevention and response, material handling and waste
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`management, erosion and sediment controls, an employee training program, and
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`quality assurance and record keeping. Id., § X(H)(1). Failure to implement these
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`minimum BMPs is a violation of the General Permit. Id., Fact Sheet § I(2)(o). The
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`General Permit further requires dischargers to implement and maintain, to the extent
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`feasible, any one or more of the following advanced BMPs necessary to reduce or
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`prevent discharges of pollutants in industrial storm water discharges: exposure
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`minimization BMPs, storm water containment and discharge reduction BMPs,
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`treatment control BMPs, and other advanced BMPs. Id., § X(H)(2). Failure to
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`implement advanced BMPs as necessary to achieve compliance with either
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`technology or water quality standards is a violation of the General Permit. Id. The
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`General Permit also requires that the SWPPP include BMP descriptions and a BMP
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`Summary Table. Id., § X(H)(4), (5).
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 10 of 26 Page ID #:10
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`24. The General Permit requires dischargers to develop and implement an
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`adequate written Monitoring Implementation Program (“MIP”). The primary
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`objective of the MIP is to detect and measure the concentrations of pollutants in a
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`facility’s discharge to ensure compliance with the General Permit’s discharge
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`prohibitions, effluent limitations, and receiving water limitations. As part of their
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`monitoring program, dischargers must identify all storm water discharge locations that
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`produce a significant storm water discharge, evaluate the effectiveness of BMPs in
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`reducing pollutant loading, and evaluate whether pollution control measures set out in
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`the SWPPP are adequate and properly implemented. The General Permit mandates
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`that facility operators sample four storm water discharges from all storm water
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`discharge locations at a facility over the course of the reporting year. Id., §§ XI(B)(2),
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`(3).
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`25. Under the General Permit, facilities must collect and analyze storm water
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`discharges for “[a]dditional parameters identified by the Discharger on a facility-
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`specific basis that serve as indicators of the presence of all industrial pollutants
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`identified in the pollutant source assessment.” Id., § XI(B)(6)(c).
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`26. Under the General Permit, a facility must analyze collected samples for
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`“[a]dditional applicable industrial parameters related to receiving waters with 303(d)
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`listed impairments or approved TMDLs based on the assessment in Section
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`X.G.2.a.ix.” Id., § XI(B)(6)(d).
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`27. Section XI(B)(2) of the General Permit requires that dischargers collect
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`and analyze storm water samples from two qualifying storm events (“QSEs”) during
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 11 of 26 Page ID #:11
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`the first half of each reporting year (July 1 to December 31) and two QSEs during the
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`second half of each reporting year (January 1 to June 30).
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`28. Section XVI(A) of the General Permit requires dischargers to certify and
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`submit completed Annual Reports by July 15th of each year.
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`29. The General Permit does not provide for any mixing zones by
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`dischargers. The General Permit does not provide for any receiving water dilution
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`credits to be applied by dischargers.
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`Basin Plan
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`30. The Regional Board has identified beneficial uses and established water
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`quality standards for the Santa Ana River and its tributaries in the “Water Quality
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`Control Plan for the Santa Ana River Basin (Region 8),” generally referred to as the
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`Basin Plan.
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`31. The beneficial uses of these waters include, among others, municipal,
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`groundwater recharge, water contact recreation, non-contact water recreation, wildlife
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`habitat, cold freshwater habitat, warm freshwater habitat, and rare, threatened or
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`endangered species. Non-contact water recreation use is defined as “[u]ses of water
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`for recreational activities involving proximity to water, but not normally involving
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`contact with water where water ingestion is reasonably possible. These uses include,
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`but are not limited to, picnicking, sunbathing, hiking, beachcombing, camping,
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`boating, tidepool and marine life study, hunting, sightseeing and aesthetic enjoyment
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`in conjunction with the above activities.” Basin Plan at 3-3. Contact recreation use
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`includes fishing and wading. Id.
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 12 of 26 Page ID #:12
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`32. Discharges of pollutants at levels above water quality standards
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`contribute to the impairment of beneficial uses of the waters receiving the discharge,
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`in violation of the General Permit.
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`33. The Basin Plan includes a narrative toxicity standard which states that
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`“[t]oxic substances shall not be discharged at levels that will bioaccumulate in aquatic
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`resources to levels which are harmful to human health.”
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`34. The Basin Plan includes a narrative suspended and settleable solids
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`standard which states that “Inland surface waters shall not contain suspended or
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`settleable solids in amounts which cause a nuisance or adversely affect beneficial
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`uses...”
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`35. The Basin Plan provides that “[t]he pH of inland surface waters shall not
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`be raised above 8.5 or depressed below 6.5…”
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`36. The Basin Plan contains a narrative floatables standard which states that
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`‘[w]aste discharges shall not contain floating materials, including solids, liquids, foam
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`or scum, which cause a nuisance or adversely affect beneficial uses.”
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`37.
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` The Basin Plan contains a narrative color standard which states that
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`“[w]aste discharges shall not result in coloration of the receiving waters which causes
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`a nuisance or adversely affect beneficial uses.”
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`38. The EPA 303(d) List of Water Quality Limited Segments lists Reach 3 of
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`the Santa Ana River as impaired for copper, indicator bacteria, and lead.
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`39.
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` EPA has established Parameter Benchmark Values as guidelines for
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`determining whether a facility discharging industrial storm water has implemented the
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 13 of 26 Page ID #:13
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`requisite BAT and BCT. These benchmarks represent pollutant concentrations at
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`which a storm water discharge could potentially impair, or contribute to impairing,
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`water quality, or affect human health from ingestion of water or fish. The following
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`EPA benchmarks have been established for pollution parameters applicable to the
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`Facility: pH – 6.0 - 9.0 standard units (“s.u.”); total suspended solids (“TSS”) – 100
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`mg/L; oil and grease (“O&G”) – 15 mg/L; nitrate plus nitrite nitrogen (“N+N”) – 0.68
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`mg/L; iron – 1.0 mg/L; and aluminum – 0.75 mg/L.
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`40. The General Permit establishes annual Numeric Action Levels (“NALs”)
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`and instantaneous maximum NALs. The following annual NALs have been
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`established under the General Permit: TSS – 100 mg/L; O&G – 15 mg/L; N+N – 0.68
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`mg/L; iron – 1.0 mg/L; and aluminum – 0.75 mg/L. An exceedance of an annual
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`NAL occurs when the average of all samples obtained for an entire facility during a
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`single reporting year is greater than a particular annual NAL. The reporting year runs
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`from July 1 to June 30. The General Permit also establishes the following
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`instantaneous maximum NALs: pH – 6.0-9.0 s.u.; TSS – 400 mg/L; and O&G – 25
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`mg/L. An instantaneous maximum NAL exceedance occurs when two or more
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`analytical results from samples taken for any single parameter within a reporting year
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`exceed the instantaneous maximum NAL value (for TSS and O&G) or are outside of
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`the instantaneous maximum NAL range for pH. When a discharger exceeds an
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`applicable NAL, it is elevated to “Level 1 Status,” which requires a an Exceedance
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`Response Action (“ERA”) report requiring a revision of the SWPPP and additional
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`BMPs. If a discharger exceeds an applicable NAL during Level 1 Status, it is then
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 14 of 26 Page ID #:14
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`elevated to “Level 2 Status.” For Level 2 Status, a discharger is required to submit an
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`Action Plan requiring a demonstration of either additional BMPs to prevent
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`exceedances, a determination that the exceedance is solely due to non-industrial
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`pollutant sources, or a determination that the exceedance is solely due to the presence
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`of the pollutant in the natural background.
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`41. Section 505(a)(1) and Section 505(f) of the Act provide for citizen
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`enforcement actions against any “person,” including individuals, corporations, or
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`partnerships, for violations of NPDES permit requirements. 33 U.S.C. §§ 1365(a)(1)
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`and (f), § 1362(5). An action for injunctive relief under the Act is authorized by 33
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`U.S.C. § 1365(a). Violators of the Act are also subject to an assessment of civil
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`penalties of up to $56,460 for violations occurring after November 2, 2015, pursuant
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`to Sections 309(d) and 505 of the Act, 33 U.S.C. §§ 1319(d), 1365. See also 40
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`C.F.R. §§ 19.1 - 19.4.
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`V.
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`STATEMENT OF FACTS
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`42. Defendant owns and/or operates the Facility, a gas manufacturing facility
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`located in Rancho Cucamonga, CA.
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`43. The Facility falls within Standard Industrial Classification (“SIC”) Codes
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`2813 and 4231.
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`44. The Facility covers an area of approximately 19.1 acres.
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`45. Based on CCAEJ’s investigation, including a review of the Facility’s
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`Notice of Intent to Comply with the Terms of the Industrial General Permit (“NOI”),
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`SWPPPs, aerial photography, and CCAEJ’s information and belief, storm water is
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 15 of 26 Page ID #:15
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`collected and discharged from the Facility via at least one storm water discharge
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`locations. Storm water discharged from the Facility flows into channels that flow into
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`the West Fontana Channel, which flows into San Bernardino County’s municipal
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`storm sewer system, which discharges into Day Creek, which then flows into Reach 3
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`of the Santa Ana River (collectively, “Facility Receiving Waters”).
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`46.
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`Information available to Plaintiff indicates that the Facility Receiving
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`Waters are waters of the United States.
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`47. Plaintiff is informed and believes, and thereupon alleges that the storm
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`water flows over the surface of the Facility where industrial activities occur including
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`activities associated with the primary activity of manufacturing industrial gases.
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`Industrial activities include the separation of air components (oxygen and nitrogen)
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`and conversion of those gases to liquid states, transfer of gases, material
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`loading/unloading, machinery maintenance, and material storage. Plaintiff is
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`informed and believes, and thereupon alleges that storm water flowing over these
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`areas collects metals, pH-altering substances, nitrates, nitrites, and other pollutants as
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`it flows towards the storm water discharge locations.
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`48. On information and belief, Plaintiff alleges that the majority of storm
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`water discharges from the Facility contain storm water that is commingled with runoff
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`from areas at the Facility where industrial processes occur.
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`49. On information and belief, CCAEJ alleges that there are insufficient
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`structural storm water control measures installed at the Facility. Plaintiff is informed
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`and believes, and thereupon alleges, that the management practices at the Facility are
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 16 of 26 Page ID #:16
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`currently inadequate to prevent the sources of contamination described above from
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`causing the discharge of pollutants to waters of the United States. The Facility lacks
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`sufficient structural controls such as grading, berming, roofing, containment, or
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`drainage structures to prevent rainfall and storm water flows from coming into contact
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`with exposed areas of contaminants. The Facility lacks sufficient structural controls
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`to prevent the discharge of water once contaminated. The Facility lacks adequate
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`storm water pollution treatment technologies to treat storm water once contaminated.
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`50. Since at least December 19, 2015, Defendant has taken samples or
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`arranged for samples to be taken of storm water discharges at the Facility. The
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`sample results were submitted to the State Board via the Stormwater Multiple
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`Application and Report Tracking System (“SMARTS”).
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`51.
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`In storm water sampling results submitted to the State Board, the Facility
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`has consistently reported high pollutant levels from its storm water sampling results.
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`52. The levels of TSS in storm water detected by the Facility have exceeded
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`the benchmark value and annual NAL for TSS of 100 mg/L established by EPA and
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`the State Board, respectively. For example, on March 12, 2020, Defendant measured
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`a level of TSS of 560 mg/L in storm water discharged from the Facility. That level of
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`TSS is over five times the benchmark value and annual NAL for TSS. Defendant also
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`has measured levels of TSS in storm water discharged from the Facility in excess of
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`100 mg/L on the following dates: November 28, 2019; February 14, 2019; January 18,
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`2019; and November 29, 2018.
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`53. The levels of N+N in storm water detected by the Facility have exceeded
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 17 of 26 Page ID #:17
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`the benchmark value and annual NAL for N+N of 0.68 mg/L established by EPA and
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`the State Board, respectively. For example, on November 28, 2019, Defendant
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`measured a level of N+N of 1.21 mg/L in storm water discharged from the Facility.
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`That level of N+N is almost twice the benchmark value and annual NAL for N+N.
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`Defendant also has measured levels of N+N in storm water discharged from the
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`Facility in excess of 0.68 mg/L on the following dates: March 12, 2020; November
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`29, 2018; and January 9, 2018.
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`54. The levels of iron in storm water detected by the Facility have exceeded
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`the benchmark value and annual NAL for iron of 1.0 mg/L established by EPA and
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`the State Board, respectively. For example, on March 12, 2020, the level of iron
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`measured at one of the Facility’s storm water outfalls was 35.5 mg/L. That level of
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`iron is over 35 times the benchmark value and annual NAL for iron. Defendant also
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`has measured levels of iron in storm water discharged from the Facility in excess of
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`1.0 mg/L on the following dates: April 10, 2020; November 28, 2019; February 14,
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`2019; January 18, 2019; December 6, 2018; November 29, 2018; January 9, 2018; and
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`January 10, 2017.
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`55. The levels of aluminum in storm water detected by the Facility have
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`exceeded the benchmark value and annual NAL for aluminum of 0.75 mg/L
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`established by EPA and the State Board, respectively. For example, on March 12,
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`2020, the level of aluminum measured at one of the Facility’s storm water outfalls
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`was 32.6 mg/L. That level of aluminum is over 43 times the benchmark value and
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`annual NAL for aluminum. Defendant also has measured levels of aluminum in storm
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`COMPLAINT
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`Case 5:21-cv-00271 Document 1 Filed 02/17/21 Page 18 of 26 Page ID #:18
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`water discharged from the Facility in excess of 1.0 mg/L on the following dates: April
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`10, 2020; February 14, 2019; January 18, 2019; December 6, 2018; November 29,
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`2018; January 9, 2018; and January 10, 2017.
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`56. On information and belief, Plaintiff alleges