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`Sarah Spinuzzi (Bar No. 305658)
`Email: Sarah@coastkeeper.org
`Lauren Chase (Bar No. 3324162)
`Email: Lauren@coastkeeper.org
`ORANGE COUNTY COASTKEEPER
`3151 Airway Avenue, Suite F-110
`Costa Mesa, California 92626
`Telephone: (714) 850-1965
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`Attorneys for Plaintiff Orange County Coastkeeper
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`ORANGE COUNTY COASTKEEPER, a
`California non-profit corporation,
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`HIXSON METAL FINISHING, a
`California corporation; FPC
`MANAGEMENT, LLC; and REID
`WASHBON, an individual, as Trustee of
`the Reid Washbon Trust,
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`v.
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` Plaintiff,
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`Defendants.
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` Civil Case No. 8:22-cv-00932
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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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`Orange County Coastkeeper (“Coastkeeper” or “Plaintiff”), by and through counsel,
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`hereby alleges:
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`I.
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`JURISDICTION AND VENUE
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`1.
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`Plaintiff brings this civil suit under the citizen suit enforcement provision of
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`the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (the “Clean Water
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`Act” or the “CWA”). See 33 U.S.C. § 1365. This Court has subject matter jurisdiction
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`over the parties and this action pursuant to 33 U.S.C. § 1365(a)(1) and 28 U.S.C. §§ 1331
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`and 2201 (an action for declaratory and injunctive relief arising under the Constitution and
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`laws of the United States). On February 23, 2022, Plaintiff issued a 60-day Notice of
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`Violation and Intent To Sue letter (the “Notice Letter”), attached hereto as Exhibit A and
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 2 of 46 Page ID #:2
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`incorporated by reference herein, to Hixson Metal Finishing (“Hixson”), FPC
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`Management LLC (“FPC”), and Reid Washbon, Trustee of the Reid Washbon Trust
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`(“Trustee”) (collectively, “Defendants”), as the owners and operators of the Hixson Metal
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`Finishing facilities located on Production Place in Newport Beach (the “Facility”). The
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`Notice Letter informed Defendants of the violations of California’s General Permit for
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`Discharges of Storm Water Associated with Industrial Activities (National Pollution
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`Discharge Elimination System (“NPDES”) General Permit No. CAS000001, Water
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`Quality Order No. 97-03-DWQ, as amended by Order No. 2014-0057-DWQ, as amended
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`by Order No. 2015-0122-DWQ, as subsequently amended by Order 20XX-XXXX-DWQ
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`(effective July 1,2020) (hereinafter, the “Storm Water Permit” or “Permit”) and the Clean
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`Water Act at the Facility. The Notice Letter informed Defendants of Plaintiff’s intent to
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`file suit against Defendants to enforce the Storm Water Permit and the Clean Water Act.
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`2.
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`The Notice Letter was also sent to the Attorney General of the United States
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`Department of Justice (“USDOJ”), the Administrator of the United States Environmental
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`Protection Agency (“EPA”), the Regional Administrator of EPA Region IX, the Executive
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`Director of the State Water Resources Control Board (the “State Board”), and the
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`Executive Officer of the Regional Water Quality Control Board, Santa Ana Region (the
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`“Santa Ana Regional Board” or “Regional Board”), as required by 40 C.F.R. § 135.2(a)(1)
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`and Section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A).
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`3. More than sixty (60) days have passed since the Notice Letter was sent via
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`certified mail to Defendants and the State and Federal agencies. Plaintiff is informed and
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`believes, and thereon alleges, that neither the EPA, USDOJ, nor the State of California
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`have commenced or are diligently prosecuting an action to redress the violations alleged
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`in the Notice Letter and in this complaint. See 33 U.S.C. § 1365(b)(1)(B). This action is
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`not barred by any prior administrative penalty under Section 309(g) of the CWA. 33
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`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 CWA, 33 U.S.C. § 1365(c)(1), because the sources of the violations are
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 3 of 46 Page ID #:3
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`located within this judicial district.
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`5.
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`Plaintiff seeks relief for Defendants’ substantive and procedural violations of
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`the Storm Water Permit and the Clean Water Act resulting from industrial activities at the
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`Facility.
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`II.
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`INTRODUCTION
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`6.
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`This complaint seeks relief for the Defendants’ unlawful discharges of
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`pollutants into waters of the United States from industrial operations at the Facility.
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`Specifically, Coastkeeper is informed and believes, and thereon alleges, that Defendants’
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`discharges of pollutants from the Facility enter the Orange County Municipal Separate
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`Storm Sewer System (“MS4”) and into nearby Lower Newport Bay (collectively referred
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`to as the “Receiving Waters”), in violation of the substantive and procedural requirements
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`of the Storm Water Permit and the Clean Water Act. These violations have been occurring
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`since at least March 6, 2017, and are ongoing and continuous.
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`7. With every significant rainfall event, millions of gallons of polluted storm
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`water, originating from industrial operations such as the Facility, pour into storm drains
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`and local waterways. The consensus among regulatory agencies and water quality
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`specialists is that storm water pollution accounts for more than half of the total pollution
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`entering surface waters each year. These surface waters, known as receiving waters, are
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`ecologically sensitive areas. These waters are essential habitat for dozens of fish and bird
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`species as well as macro-invertebrate and invertebrate species. Storm water and non-storm
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`water contain sediment, heavy metals, such as aluminum, iron, magnesium, chromium,
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`copper, lead, mercury, nickel, and zinc, as well as high concentrations of nitrate and nitrite,
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`and other pollutants. Exposure to polluted storm water harms the special aesthetic and
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`recreational significance that the surface waters have for people in the surrounding
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`communities. The public’s use of the surface waters exposes many people to toxic metals
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`and other contaminants in storm water and non-storm water discharges. Non-contact
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`recreational and aesthetic opportunities, such as wildlife observation, are also impaired by
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`polluted discharges to surface waters such as the Receiving Waters.
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`Complaint
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 4 of 46 Page ID #:4
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`III. PARTIES
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`A. Orange County Coastkeeper.
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`8.
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`Orange County Coastkeeper is a non-profit public benefit corporation
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`organized under the laws of the State of California and has over 2,400 members. Orange
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`County Coastkeeper’s office is located at 3151 Airway Avenue, Suite F-110, Costa Mesa,
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`California 92626.
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`9.
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`Orange County Coastkeeper is dedicated to the preservation, protection, and
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`defense of the environment, wildlife, and natural resources of Orange County.
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`Coastkeeper’s mission is to preserve the region’s water resources so they are swimmable,
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`drinkable, and fishable for present and future generations. To further these goals, Orange
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`County Coastkeeper actively seeks federal and state agency implementation of the Clean
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`Water Act, and, where necessary, directly initiates enforcement actions on behalf of itself
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`and its members.
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`10. Members of Orange County Coastkeeper live and own homes in the Lower
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`Newport Bay and the greater watershed and use and enjoy the waters into which the
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`Facility discharges polluted storm water. Members of Orange County Coastkeeper use
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`these waterways to participate in a variety of water sports and other activities including,
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`but not limited to, fishing, swimming, boating, kayaking, bird watching, viewing wildlife,
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`hiking, biking, surfing, wading, standup paddle boarding, walking, running, and engaging
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`in scientific study, including monitoring, restoration, and research activities. The
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`discharge of pollutants from the Facility impairs each of these uses.
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`11. Defendants’ failure to comply with the procedural and substantive
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`requirements of the Storm Water Permit and the Clean Water Act including, but not
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`limited to, discharges of polluted storm water from the Facility, failure to report such
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`pollution, and failure to act in accordance with the Storm Water Permit to improve the
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`quality of storm water discharges from the Facility, degrades water quality and harms
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`aquatic life in the Santa Ana River and its tributaries, and impairs Orange County
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`Coastkeeper members’ use and enjoyment of those waters, giving Plaintiff standing on
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`Complaint
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 5 of 46 Page ID #:5
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`behalf of its members.
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`12. The violations of the Storm Water Permit and Clean Water Act at the Facility
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`are ongoing and continuous. Thus, the interests of Coastkeeper’s members have been, are
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`being, and will continue to be adversely affected by Defendants’ failure to comply with
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`the Storm Water Permit and the Clean Water Act. The relief sought herein will redress the
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`harms to Plaintiff’s members caused by Defendants’ activities.
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`13. Continuing commission of the acts and omissions alleged herein will
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`irreparably harm Plaintiff’s members, for which harm they have no plain, speedy, or
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`adequate remedy at law.
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`B.
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`The Owners and Operators of the Facility.
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`14. Hixson Metal Finishing is the current owner and operator of the Facility, and
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`has been the owner and operator of the Facility at all times relevant to this complaint, and
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`is a responsible party under the Clean Water Act.
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`15. Coastkeeper is informed and believes, and thereon alleges, that Hixson is an
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`active California corporation, registered and authorized to do business in California.
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`16. Coastkeeper is informed and believes, and thereon alleges, that Dale W.
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`Young, Jr., located at 829 Production Place, Newport Beach, CA 92663, is the registered
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`agent for service of process for Hixson.
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`17. Coastkeeper is informed and believes, and thereon alleges, that Bruce Greene
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`is the Facility Contact and EHS Manager identified by Hixson in its Notice of Intent
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`(“NOI”) for coverage under the Storm Water Permit and is also identified as the Legally
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`Responsible Person in the Facility’s Storm Water Pollution Prevention Plan (“SWPPP”).
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`18. Coastkeeper is informed and believes, and thereon alleges, that Douglas
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`Greene is identified by Hixson in its Notice of Intent (“NOI”) for coverage under the Storm
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`Water Permit as Hixson’s President.
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`19. Coastkeeper is informed and believes, and thereon alleges, that FPC
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`Management LLC is the owner of the real property underlying the portion of the Facility
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`at 861 Production Place where Hixson operates industrial activities.
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`Complaint
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 6 of 46 Page ID #:6
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`20. Coastkeeper is informed and believes, and thereon alleges, that FPC has been
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`the owner of this portion of the Facility since at least March 6, 2017.
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`21. Coastkeeper is informed and believes, and thereon alleges, that FPC has a
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`lease agreement or other contractual relationship with Hixson that gives FPC knowledge
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`and control over the acts and omissions giving rise to the violations alleged in this
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`complaint.
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`22. Coastkeeper is informed and believes, and thereon alleges, that FPC is
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`currently an active Delaware limited liability company registered in California.
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`23. Coastkeeper is informed and believes, and thereon alleges, that FPC’s
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`registered agent for service is Adam John Mikkelsen located at 307 Medina Way, Newport
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`Beach, CA 92661.
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`24. Coastkeeper is informed and believes, and thereon alleges, that the real
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`property underlying the portion of the Facility located at 816 Production Place is held in
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`the Reid Washbon Trust.
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`25. Coastkeeper is informed and believes, and thereon alleges, that Reid
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`Washbon is the trustee of the Reid Washbon Trust.
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`26. Coastkeeper is informed and believes, and thereon alleges, that the portion of
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`the Facility located at 816 Production Place has been held by the Reid Washbon Trust at
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`all times relevant to this complaint.
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`27. Coastkeeper is informed and believes, and thereon alleges, that the Trustee
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`has a lease agreement or other contractual relationship with Hixson that gives the Trustee
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`knowledge and control of Hixson’s acts and omissions giving rise to the violations alleged
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`in this complaint.
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`28. Property owners with knowledge and control of the activities giving rise to a
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`Clean Water Act claim are liable for those violations over which they had knowledge and
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`control.
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`IV. LEGAL BACKGROUND
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`A. The Clean Water Act.
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 7 of 46 Page ID #:7
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`29. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the
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`discharge of any pollutant into waters of the United States unless the discharge complies
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`with various enumerated sections of the CWA. Among other things, section 301(a)
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`prohibits discharges not authorized by, or in violation of, the terms of an NPDES permit
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`issued pursuant to section 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342(b).
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`30. The Clean Water Act requires point source discharges of pollutants to
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`navigable waters be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. §
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`122.26(c)(1).
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`31. The “discharge of a pollutant” means, among other things, “any addition of
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`any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12); see 40
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`C.F.R. § 122.2.
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`32. The term “pollutant” includes “dredged spoil, solid waste… rock, sand, cellar
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`dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C.
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`§ 1362(6); see 40 C.F.R. § 122.2.
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`33.
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`“Waters of the United States” are defined as “navigable waters,” and “all
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`waters which are currently used, were used in the past, or may be susceptible to use in
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`interstate or foreign commerce, including waters which are subject to the ebb and flow of
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`the tide.” 33 U.S.C. § 1362(7); 40 C.F.R. § 122.2.
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`34. The EPA promulgated regulations defining “waters of the United States.” See
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`40 C.F.R. § 122.2. The EPA interprets waters of the United States to include not only
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`traditionally navigable waters, but also other waters, including waters tributary to
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`navigable waters, wetlands adjacent to navigable waters, and intermittent streams that
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`could affect interstate commerce. Id.
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`35. The Clean Water Act confers jurisdiction over waters that are tributaries to
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`traditionally navigable waters where the water at issue has a significant nexus to the
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`navigable water. See Rapanos v. United States, 547 U.S. 715 (2006); see also N. Cal. River
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`Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).
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`36. A significant nexus is established if the “[receiving waters], either alone or
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`Complaint
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 8 of 46 Page ID #:8
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`in combination with similarly situated lands in the region, significantly affect the
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`chemical, physical, and biological integrity of other covered waters.” Rapanos, 547 U.S.
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`at 779; N. Cal. River Watch, 496 F.3d at 999-1000.
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`37. A significant nexus is also established if waters that are tributary to navigable
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`waters have flood control properties, including functions such as the reduction of flow,
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`pollutant trapping, and nutrient recycling. Rapanos, 547 U.S. at 782; N. Cal. River Watch,
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`496 F.3d at 1000-1001.
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`38. Section 505(a)(1) and Section 505(f) of the Clean Water Act provide for
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`citizen enforcement actions against any “person” who is alleged to be in violation of an
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`“effluent standard or limitation . . . or an order issued by the Administrator or a State with
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`respect to such a standard or limitation.” See 33 U.S.C. §§ 1365(a)(i) and 1365(f).
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`39. Defendants are “persons” within the meaning of Section 502(5) of the Clean
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`Water Act. See 33 U.S.C. § 1362(5).
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`40. An action for injunctive relief is authorized under Section 505(a) of the Clean
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`Water Act. See 33 U.S.C. § 1365(a).
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`41. Each separate violation of the Clean Water Act subjects the violator to a
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`penalty of up to $59,973 per day per violation for all violations that occurred after
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`November 2, 2015 and were assessed on or after January 12, 2022. See 33 U.S.C. §§
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`1319(d) and 1365(a); Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. §
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`19.4.
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`42. Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), permits
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`prevailing or substantially prevailing parties to recover litigation costs, including
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`attorneys’, experts’, and consultants’ fees.
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`B. California’s Storm Water Permit.
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`43. Section 402(p) of the Clean Water Act establishes a framework for regulating
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`industrial storm water discharges under the NPDES permit program. 33 U.S.C. § 1342(p).
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`44. Section 402(b) of the Clean Water Act allows each state to administer its own
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`EPA-approved NPDES permit program for regulating the discharge of pollutants,
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 9 of 46 Page ID #:9
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`including discharges of polluted storm water. See 33 U.S.C. § 1342(b). States with
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`approved NPDES permit programs are authorized by section 402(b) to regulate industrial
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`storm water discharges through individual NPDES permits issued to dischargers and/or
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`through the issuance of a statewide general NPDES permit applicable to all industrial
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`storm water dischargers. See id.
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`45. California is a state authorized by EPA to issue NPDES permits.
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`46.
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`In California, the State Board is charged with regulating pollutants to protect
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`California’s water resources. See Cal. Water Code § 13001.
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`47. The Storm Water Permit is a statewide general NPDES permit issued by the
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`State Board pursuant to the Clean Water Act.
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`48. The Storm Water Permit was issued on July 1, 2015 pursuant to Order No.
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`2014-0057-DWQ.
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`49. On November 6, 2018, pursuant to Order No. 2015-0122-DWQ, the State
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`Board amended the Storm Water Permit to incorporate Total Maximum Daily Load
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`(“TMDL”) implementation requirements for waterbodies subject to TMDLs with
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`contributions from industrial dischargers.
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`50.
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`In order to discharge storm water to waters of the United States lawfully in
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`California, industrial dischargers must secure coverage under the Storm Water Permit and
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`comply with its terms, or obtain and comply with an individual NPDES permit. See Storm
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`Water Permit Finding 12. Prior to beginning industrial operations, dischargers are required
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`to apply for coverage under the Storm Water Permit by submitting a Notice of Intent to
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`Comply with the Terms of the General Permit to Discharge Storm Water Associated with
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`Industrial Activity (“NOI”) to the State Board. See Storm Water Permit, Finding 17.
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`51. Violations of the Storm Water Permit are violations of the Clean Water Act.
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`See Storm Water Permit, Section XXI(A) (Duty to Comply).
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`C. The Storm Water Permit’s Discharge Prohibitions And Technology
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`Based Effluent Limitations.
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`52. The Storm Water Permit contains certain absolute prohibitions. The Storm
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 10 of 46 Page ID #:10
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`Water Permit prohibits the direct or indirect discharge of materials other than storm water
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`(“non-storm water discharges”), which are not otherwise authorized by an NPDES permit,
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`to the waters of the United States. See Storm Water Permit, Discharge Prohibition III(B).
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`53. The Storm Water Permit Effluent Limitations require dischargers covered by
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`the Storm Water Permit to reduce or prevent pollutants associated with industrial activity
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`in storm water discharges through the implementation of Best Available Technology
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`Economically Achievable (“BAT”) for toxic or non-conventional pollutants, and Best
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`Conventional Pollutant Control Technology (“BCT”) for conventional pollutants. Toxic
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`pollutants are listed at 40 C.F.R. § 401.15 and include copper, lead, and zinc, among
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`others. Conventional pollutants are listed at 40 C.F.R. § 401.16 and include biochemical
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`oxygen demand (“BOD”), total suspended solids (“TSS”), oil and grease (“O&G”), pH,
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`and fecal coliform. See Storm Water Permit, Section V(A).
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`54. Pursuant to the CWA and the Storm Water Permit, dischargers must employ
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`Best Management Practices (“BMPs”) that constitute BAT and BCT to reduce or
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`eliminate storm water pollution. 33 U.S.C. § 1311(b); Storm Water Permit, Effluent
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`Limitation V(A).
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`55. EPA’s NPDES Storm Water Multi-Sector General Permit for Industrial
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`Activities (“MSGP”) includes numeric benchmarks for pollutant concentrations in storm
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`water discharges (“EPA Benchmarks”), which are, in part, incorporated into the Storm
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`Water Permit via the Table 2 Numeric Action Levels (“NALs”). See Storm Water Permit,
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`Monitoring, Sampling and Analysis, XI(B).
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`56. The EPA Benchmarks provide an objective standard to determine whether a
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`facility’s BMPs are successfully developed and/or implemented and achieve compliance
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`with BAT and BCT standards. Storm Water Permit, Effluent Limitation V(A); See EPA’s
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`NPDES MSGP Fact Sheet at 106; see also, 65 Federal Register 64839 (2000).
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`57. The EPA Benchmarks and NALs for the following parameters are as follows:
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`pH – 6.0 – 9.0 standard units; TSS – 100 mg/L; copper – 0.0332 mg/L; zinc – 0.26 mg/L;
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`nickel – 1.02 mg/L; iron – 1.0 mg/L; nitrate plus nitrate as nitrogen (“N+N”) – 0.68 mg/L;
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 11 of 46 Page ID #:11
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`O&G – 15 mg/L; and aluminum – 0.75 mg/L. Additional EPA Benchmarks for heavy
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`metals, which depend on the hardness of the receiving water, also apply to storm water
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`discharges from the Facility.
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`58. Discharges from an industrial facility containing pollutant concentrations
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`that exceed EPA Benchmarks indicate that BMPs that meet BAT for toxic pollutants
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`and/or BCT for conventional pollutants have not been developed and/or implemented at
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`the Facility. Id.
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`D. The Storm Water Permit’s Numeric Effluent Limitations.
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`59.
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` Effective July 1, 2020, the Storm Water Permit establishes numeric
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`effluent limitations (“NELs”) for facilities that discharge storm water associated with
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`industrial activities into water bodies that have approved TMDLs set forth in Storm
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`Water Permit, Attachment E.
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`60. An instantaneous maximum NEL exceedance occurs when two (2) or
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`more analytical results from samples taken for any single parameter within a reporting
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`year exceed the instantaneous maximum NEL value. Storm Water Permit, Section
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`V(C)(1).
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`61. An exceedance of an NEL is a violation of the Storm Water Permit
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`and the Clean Water Act. Id.
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`62. The Facility is subject to the San Diego Creek and Newport Bay Toxics
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`TMDL requirements for metals and selenium, which include the following NELs:
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`copper – 0.00578 mg/L, lead – 0.221 mg/L, and zinc – 0.095 mg/L. See Storm Water
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`Permit, Table F.46
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`E. The Storm Water Permit’s Receiving Water Limitations.
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`63. The CWA and the Storm Water Permit’s Receiving Water Limitations
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`prohibit storm water discharges and authorized non-storm water discharges that cause or
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`contribute to an exceedance of any applicable Water Quality Standards (“WQS”). See 33
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`U.S.C. § 1311(b)(1)(C); 40 C.F.R. §§122.4(d), 122.4(i), 122.44(d); Storm Water Permit,
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`Receiving Water Limitation VI(A).
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 12 of 46 Page ID #:12
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`64. WQS establish the water quality goals for a water body. See 40 C.F.R.
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`§131.2.
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`65. WQS are pollutant concentration levels determined by the State Board, the
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`various regional boards, and the EPA to be protective of the beneficial uses of the waters
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`that receive polluted discharges.
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`66. Discharges above or below WQS cause or contribute to impairment of the
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`beneficial uses of the waters that receive polluted discharges.
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`67. The State of California regulates water quality through the State Board and
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`the nine Regional Boards. Each Regional Board maintains a separate Water Quality
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`Control Plan, called a basin plan, which contains WQS for water bodies within its
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`geographical area.
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`68. The Santa Ana Regional Board adopted the Basin Plan for the Santa Ana
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`Region (the “Santa Ana Basin Plan” or the “Basin Plan”). The Santa Ana Basin Plan
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`identifies the “Beneficial Uses” of water bodies within the region. The Basin Plan
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`identifies the Beneficial Uses for the Lower Newport Bay to include: navigation (NAV);
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`water contact recreation (REC1); non-contact water recreation (REC2); commercial and
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`sport fishing (COMM); wildlife habitat (WILD); rare, threatened, or endangered species
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`(RARE); spawning reproduction and development (SPWN); marine habitat (MAR); and
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`shellfish harvesting (SHEL). See Santa Ana Basin Plan at Table 3-1.
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`69. Surface waters that cannot support the Beneficial Uses of those waters listed
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`in the basin plans are designated as impaired water bodies pursuant to Section 303(d) of
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`the Clean Water Act, 33 U.S.C. § 1313(d).
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`70. According to the 2018 303(d) List of Impaired Water Bodies, Lower Newport
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`Bay is listed for the following water quality impairments: chlordane, copper, DDT,
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`indicator bacteria, nutrients, PCBs, and toxicity. Polluted discharges from industrial sites,
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`such as the Facility, contribute to the degradation of these already-impaired surface waters
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`and aquatic-dependent wildlife that depend on these waters. These contaminated
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`discharges can and must be controlled for the ecosystem to regain its health.
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`Complaint
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`Case No. 8:22-cv-00932
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 13 of 46 Page ID #:13
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`71. Discharges of polluted storm water to the Receiving Waters pose threats to
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`the public, dramatically affect the use and enjoyment of the surrounding environment, and
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`adversely affect the aquatic environment.
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`72. Discharges of pollutants at levels above WQS, like those from the Facility,
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`cause or contribute to the impairment of the Beneficial Uses of the Receiving Waters.
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`73. WQS may be either numeric or narrative objectives. Applicable WQS
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`include, among others, the water quality objectives in the Basin Plan, and the Criteria for
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`Priority Toxic Pollutants in the State of California (“CTR”), 40 C.F.R. § 131.38.
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`74. The Santa Ana Basin Plan provides that “[t]he pH of bays and estuaries shall
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`not be raised above 8.6 or depressed below 7.0 as a result of controllable water quality
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`factors.” See Santa Ana Basin Plan, 4-5.
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`75. The Santa Ana Basin Plan also includes a narrative WQS that establishes a
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`toxicity standard which states that “[t]he concentrations of toxic substances in the water
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`column, sediments or biota shall not adversely affect beneficial uses.” See Santa Ana
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`Basin Plan, 4-20.
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`76. Further, the Santa Ana Basin Plan states that “[t]oxic substances shall not be
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`discharged at levels that will bioaccumulate in aquatic resources to levels which are
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`harmful to human health.” See Santa Ana Basin Plan 4-6.
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`77. The Santa Ana Basin Plan also states that “[t]he concentrations of toxic
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`pollutants in the water column, sediments or biota shall not adversely affect beneficial
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`uses” Id.
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`78. The CTR establishes numeric WQS to protect human health and the
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`environment in the State of California. Water Quality Standards; Establishment of
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`Numeric Criteria for Priority Toxic Pollutants for the State of California Factsheet, EPA-
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`823-00-008
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`(April
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`2000),
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`available
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`at:
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`http://water.epa.gov/lawsregs/rulesregs/ctr/factsheet.cfm.
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`79. The numeric WQS established in the CTR for zinc is 0.12 mg/L, silver is
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`0.0034 mg/L, cadmium is 0.0043 mg/L, chromium (III) is 0.55 mg/L, chromium (IV) is
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`Complaint
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 14 of 46 Page ID #:14
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`0.016 mg/L, nickel is .47 mg/L, copper is 0.013 mg/L, and for cyanide is 0.022 mg/L,
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`assuming a water hardness calculation of 100 mg/L.
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`80. The CTR numeric limits are expressed as dissolved metal concentrations.
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`81. Discharges with pollutant levels that cause or contribute to an exceedance of
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`the CTR criteria, the Basin Plan standards, and/or other applicable WQS in the Receiving
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`Waters are violations of Receiving Water Limitation Section VI(A) of the Storm Water
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`Permit.
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`82. The Storm Water Permit’s Receiving Water Limitations prohibit storm water
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`discharges from adversely impacting human health or the environment. See Storm Water
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`Permit, Section VI(B).
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`83. Storm water discharges with pollutant levels that exceed levels known to
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`adversely impact aquatic species and the environment are violations of Receiving Water
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`Limitation Section VI(B) of the Storm Water Permit.
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`F. The Storm Water Permit’s Storm Water Pollution Prevention Plan
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`Requirements.
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`84. Dischargers must develop and implement a SWPPP prior to conducting, and
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`in order to continue, industrial activities. Storm Water Permit, Sections I(I) (Finding 54),
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`X(B). The SWPPP must meet all of the requirements of the Storm Water Permit. Storm
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`Water Permit, Sections X(A)-(H); See also Storm Water Permit, Appendix 1. The SWPPP
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`must identify and evaluate sources of pollutants associated with industrial activities that
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`may affect the quality of storm water and authorized non-storm water discharges from the
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`facility. Storm Water Permit, Section X(G).
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`85. The SWPPP must identify and implement site-specific BMPs to reduce or
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`prevent pollutants associated with industrial activities in storm water and authorized non-
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`storm water discharges. Storm Water Permit, Section X(H). The SWPPP must include
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`BMPs that achieve pollutant discharge reductions attainable via BAT and BCT. Storm
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`Water Permit, Section I(D) (Finding 32), Section X(C).
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`86. The SWPPP must include: a narrative description and summary of all
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`Case 8:22-cv-00932 Document 1 Filed 05/05/22 Page 15 of 46 Page ID #:15
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