`
`
`
`Michael R. Lozeau (Bar No. 142893)
`Email: michael@lozeaudrury.com
`Douglas J. Chermak (Bar No. 233382)
`Email: doug@lozeaudrury.com
`LOZEAU DRURY LLP
`1939 Harrison Street, Suite 150
`Oakland, CA 94612
`Telephone: (510) 836-4200
`
`Sarah Spinuzzi (Bar No. 305658)
`Email: sarah@coastkeeper.org
`Armita Ariano (Bar No. 314434)
`Email: armita@coastkeeper.org
`ORANGE COUNTY COASTKEEPER
`3151 Airway Avenue, Suite F-110
`Costa Mesa, California 92626
`Telephone: (714) 850-1965
`
`Attorneys for Plaintiff Orange County Coastkeeper
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
` Civil Case No.
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
`
`(Federal Water Pollution Control Act,
`33 U.S.C. §§ 1251 et seq.)
`
`
`
`
`
`
`ORANGE COUNTY COASTKEEPER, a
`California non-profit corporation,
`
`
`
` Plaintiff,
`
`v.
`
`ALLOY DIE CASTING CO., a
`corporation,
`
`
`Defendant.
`
`
`
`
`
`Orange County Coastkeeper (“Coastkeeper” or “Plaintiff”), by and through its
`counsel, hereby alleges:
`I.
`JURISDICTION AND VENUE
`1.
`Plaintiff brings this civil suit under the citizen suit enforcement provision of
`the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (the “Clean Water
`Act” or the “CWA”). See 33 U.S.C. § 1365. This Court has subject matter jurisdiction
`Complaint
`1
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 2 of 72 Page ID #:2
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`over the parties and this action pursuant to 33 U.S.C. § 1365(a)(1) and 28 U.S.C. §§ 1331
`and 2201 (an action for declaratory and injunctive relief arising under the Constitution and
`laws of the United States). The relief requested is authorized pursuant to 28 U.S.C. §§
`2201-02 (power to issue declaratory relief in case of actual controversy and further
`necessary relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive
`relief); and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
`2.
`On March 23, 2022, Plaintiff issued a 60-day Notice of Violation and Intent
`to Sue letter (the “Notice Letter”), attached hereto as Exhibit A and fully incorporated by
`reference herein, to Alloy Die Casting Co. (“ADC” or “Defendant”) and Sanders Real
`Estate LLC (“Sanders LLC”) as the owners and/or operators of the Facility. The Notice
`Letter informed ADC and Sanders LLC of the violations of California’s General Permit
`for Discharges of Storm Water Associated with Industrial Activities (National Pollution
`
`Discharge Elimination System (“NPDES”) General Permit No. CAS000001, Water
`
`Quality Order No. 97-03-DWQ, as amended by Order No. 2014-0057-DWQ, as amended
`
`by Order No. 2015-0122-DWQ, as subsequently amended by Order 20XX-XXXX-DWQ in
`2018 (effective July 1,2020) (hereinafter, the “Storm Water Permit”) and the Clean Water
`Act at the subject industrial facility located at 6550 Caballero Blvd., Buena Park,
`California 90620 (the “Facility”). The Notice Letter informed ADC and Sanders LLC of
`Plaintiff’s intent to file suit to enforce the Storm Water Permit and the Clean Water Act.
`3.
`The Notice Letter was also sent to the Attorney General of the United States
`Department of Justice (“USDOJ”), the Administrator of the United States Environmental
`Protection Agency (“EPA”), the Acting Regional Administrator of EPA Region IX, the
`Executive Director of the State Water Resources Control Board (the “State Board”), and
`the Executive Officer of the Regional Water Quality Control Board, Santa Ana Region
`Complaint
`2
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 3 of 72 Page ID #:3
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`(the “Santa Ana Regional Board” or “Regional Board”), as required by 40 C.F.R. §
`135.2(a)(1) and Section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A).
`4.
`Sixty (60) days have passed since the Notice Letter was sent via certified mail
`to Defendant and the State and Federal agencies. Plaintiff is informed and believes, and
`thereon alleges, that neither the EPA, USDOJ, nor the State of California has commenced
`or is diligently prosecuting an action to redress the violations alleged in the Notice Letter
`and in this Complaint. See 33 U.S.C. § 1365(b)(1)(B). This action is not barred by any
`prior administrative penalty under Section 309(g) of the CWA. 33 U.S.C. § 1319(g).
`5.
`Venue is proper in the Central District of California pursuant to Section
`505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because the sources of the violations are
`located within this judicial district.
`6.
`Plaintiff seeks relief for Defendant’s substantive and procedural violations of
`the Storm Water Permit and the Clean Water Act resulting from industrial activities at the
`Facility.
`II.
`INTRODUCTION
`7.
`This Complaint seeks relief for the Defendant’s unlawful discharges of
`pollutants into waters of the United States from its industrial operations at the Facility.
`Specifically, Coastkeeper is informed and believes, and thereon alleges, that Defendant’s
`discharges of pollutants from the Facility enter into the City of Buena Park’s municipal
`storm sewer system, which discharges into Fullerton Creek, which then flows into Coyote
`Creek, which flows into the San Gabriel River and ultimately into the Pacific Ocean
`(collectively referred to as the “Receiving Waters”), in violation of the substantive and
`procedural requirements of the Storm Water Permit and the Clean Water Act. These
`violations have been occurring since at least March 28, 2017, and are ongoing and
`Complaint
`3
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 4 of 72 Page ID #:4
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`continuous.
`8. With every significant rainfall event, millions of gallons of polluted
`rainwater, originating from industrial operations such as the Facility, pour into storm
`drains and local waterways. The consensus among regulatory agencies and water quality
`specialists is that storm water pollution accounts for more than half of the total pollution
`entering surface waters each year. These surface waters, known as receiving waters, are
`ecologically sensitive areas. These waters are essential habitat for dozens of fish and bird
`species as well as macro-invertebrate and invertebrate species. Storm water and non-storm
`water contain sediment, heavy metals, such as aluminum, iron, magnesium, chromium,
`copper, lead, mercury, nickel, and zinc, as well as high concentrations of nitrate and nitrite,
`and other pollutants. Exposure to polluted storm water harms the special aesthetic and
`recreational significance that the surface waters have for people in the surrounding
`communities. The public’s use of the surface waters exposes many people to toxic metals
`and other contaminants in storm water and non-storm water discharges. Non-contact
`recreational and aesthetic opportunities, such as wildlife observation, are also impaired by
`polluted discharges to surface waters such as the Receiving Waters.
`III.
`PARTIES
`A. Orange County Coastkeeper.
`9.
`Orange County Coastkeeper is a non-profit public benefit corporation
`organized under the laws of the State of California and has approximately 2,441 members.
`Orange County Coastkeeper’s office is located at 3151 Airway Avenue, Suite F-110,
`Costa Mesa, California 92626.
`10. Orange County Coastkeeper is dedicated to the preservation, protection, and
`defense of the environment, wildlife, and natural resources of Orange County. To further
`Complaint
`4
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 5 of 72 Page ID #:5
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`these goals, Orange County Coastkeeper actively seeks federal and state agency
`implementation of the Clean Water Act and, where necessary, directly initiates
`enforcement actions on behalf of itself and its members.
`11. Members of Orange County Coastkeeper live and own homes in the San
`Gabriel River Watershed and use and enjoy the waters to which the Facility discharges
`storm water. Members of Orange County Coastkeeper use these waterways to participate
`in a variety of water sports and other activities including, but not limited to, fishing,
`swimming, boating, kayaking, bird watching, viewing wildlife, hiking, biking, surfing,
`wading, standup paddle boarding, walking, running, and/or engaging in scientific study,
`including monitoring, restoration, and research activities. The discharge of pollutants from
`the Facility impairs each of these uses.
`12. Defendant’s failure to comply with the procedural and substantive
`requirements of the Storm Water Permit and/or the Clean Water Act including, but not
`limited to, discharges of polluted storm water from the Facility, failure to report such
`pollution, and failure to act in accordance with the Storm Water Permit to improve the
`quality of storm water discharges from the Facility, degrades water quality and harms
`aquatic life in the San Gabriel River and its tributaries, and impairs Orange County
`Coastkeeper members’ use and enjoyment of those waters, giving Plaintiff standing on
`behalf of its members.
`13. The violations of the Storm Water Permit and Clean Water Act at the Facility
`are ongoing and continuous. Thus, the interests of Coastkeeper’s members have been, are
`being, and will continue to be adversely affected by Defendant’s failure to comply with
`the Storm Water Permit and the Clean Water Act. The relief sought herein will redress the
`harms to Plaintiff’s members caused by Defendant’s activities.
`Complaint
`5
`
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 6 of 72 Page ID #:6
`
`
`
`
`14. Continuing commission of the acts and omissions alleged herein will
`irreparably harm Plaintiff’s members, for which harm they have no plain, speedy, or
`adequate remedy at law.
`B.
`The Owner and/or Operator of the Facility.
`15. ADC is the current owner and/or operator of the Facility, and has been the
`owner and/or operator of the Facility since at least March 28, 2017, and is the responsible
`party under the Clean Water Act.
`16. Coastkeeper is informed and believes, and thereon alleges, that ADC is an
`active California corporation.
`17. Coastkeeper is informed and believes, and thereon alleges, that Kiara Gebhart
`is the registered agent for service of process for ADC located at 100 Spectrum Drive, Suite
`600, Irvine, CA 92618.
`18. Coastkeeper is informed and believes, and thereon alleges, that Rick Simpson
`is the Chief Executive Officer and Director of ADC.
`IV.
`LEGAL BACKGROUND
`A. The Clean Water Act.
`19. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the
`discharge of any pollutant into waters of the United States unless the discharge complies
`with various enumerated sections of the CWA. Among other things, section 301(a)
`prohibits discharges not authorized by, or in violation of, the terms of an NPDES permit
`issued pursuant to section 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342(b).
`20. The Clean Water Act requires point source discharges of pollutants to
`navigable waters be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. §
`122.26(c)(1).
`Complaint
`
`
`6
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 7 of 72 Page ID #:7
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`21. The “discharge of a pollutant” means, among other things, “any addition of
`any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12); see 40
`C.F.R. § 122.2.
`22. The term “pollutant” includes “dredged spoil, solid waste… rock, sand, cellar
`dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C.
`§ 1362(6); see 40 C.F.R. § 122.2.
`23.
`“Waters of the United States” are defined as “navigable waters,” and “all
`waters which are currently used, were used in the past, or may be susceptible to use in
`interstate or foreign commerce, including waters which are subject to the ebb and flow of
`the tide.” 33 U.S.C. § 1362(7); 40 C.F.R. § 122.2.
`24. The EPA promulgated regulations defining “waters of the United States.” See
`40 C.F.R. § 122.2. The EPA interprets waters of the United States to include not only
`traditionally navigable waters, but also other waters, including waters tributary to
`navigable waters, wetlands adjacent to navigable waters, and intermittent streams that
`could affect interstate commerce. Id.
`25. The Clean Water Act confers jurisdiction over waters that are tributaries to
`traditionally navigable waters where the water at issue has a significant nexus to the
`navigable water. See Rapanos v. United States, 547 U.S. 715 (2006); see also N. Cal. River
`Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).
`26. A significant nexus is established if the “[receiving waters], either alone or
`in combination with similarly situated lands in the region, significantly affect the
`chemical, physical, and biological integrity of other covered waters.” Rapanos, 547 U.S.
`at 779; N. Cal. River Watch, 496 F.3d at 999-1000.
`27. A significant nexus is also established if waters that are tributary to navigable
`Complaint
`7
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 8 of 72 Page ID #:8
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`waters have flood control properties, including functions such as the reduction of flow,
`pollutant trapping, and nutrient recycling. Rapanos, 547 U.S. at 782; N. Cal. River Watch,
`496 F.3d at 1000-1001.
`28. Section 505(a)(1) and Section 505(f) of the Clean Water Act provide for
`citizen enforcement actions against any “person” who is alleged to be in violation of an
`“effluent standard or limitation . . . or an order issued by the Administrator or a State with
`respect to such a standard or limitation.” See 33 U.S.C. §§ 1365(a)(i) and 1365(f).
`29. Defendant is a “person” within the meaning of Section 502(5) of the Clean
`Water Act. See 33 U.S.C. § 1362(5).
`30. A third-party enforcement action for injunctive relief is authorized under
`Section 505(a) of the Clean Water Act. See 33 U.S.C. § 1365(a).
`31. Each separate violation of the Clean Water Act subjects the violator to a
`penalty of up to $59,973 per day per violation for all violations. See 33 U.S.C. §§ 1319(d)
`and 1365(a); Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4.
`32. Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d), permits
`prevailing or substantially prevailing parties to recover litigation costs, including
`attorneys’, experts’, and consultants’ fees.
`B. California’s Storm Water Permit.
`33. Section 402(p) of the Clean Water Act establishes a framework for regulating
`industrial storm water discharges under the NPDES permit program. 33 U.S.C. § 1342(p).
`34. Section 402(b) of the Clean Water Act allows each state to administer its own
`EPA-approved NPDES permit program for regulating the discharge of pollutants,
`including discharges of polluted storm water. See 33 U.S.C. § 1342(b). States with
`approved NPDES permit programs are authorized by section 402(b) to regulate industrial
`Complaint
`8
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 9 of 72 Page ID #:9
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`storm water discharges through individual NPDES permits issued to dischargers and/or
`through the issuance of a statewide general NPDES permit applicable to all industrial
`storm water dischargers. See id.
`35. California is a state authorized by EPA to issue NPDES permits.
`36.
`In California, the State Board is charged with regulating pollutants to protect
`California’s water resources. See Cal. Water Code § 13001.
`37. The Storm Water Permit is a statewide general NPDES permit issued by the
`State Board pursuant to the Clean Water Act.
`38. The Storm Water Permit was issued on July 1, 2015 pursuant to Order No.
`2014-0057-DWQ.
`39. On November 6, 2018, pursuant to Order No. 2015-0122-DWQ, the State
`Board amended the Storm Water Permit to incorporate, inter alia, Total Maximum Daily
`Load (“TMDL”) implementation requirements for waterbodies subject to TMDLs with
`contributions from industrial dischargers.
`40.
`In order to discharge storm water to waters of the United States lawfully in
`California, industrial dischargers must secure coverage under the Storm Water Permit and
`comply with its terms, or obtain and comply with an individual NPDES permit. Storm
`Water Permit, Finding #12. Prior to beginning industrial operations, dischargers are
`required to apply for coverage under the Storm Water Permit by submitting a Notice of
`Intent to Comply with the Terms of the General Permit to Discharge Storm Water
`Associated with Industrial Activity (“NOI”) to the State Board. See Storm Water Permit,
`Finding 17.
`41. Violations of the Storm Water Permit are violations of the Clean Water Act.
`See Storm Water Permit, § XXI(A) (Duty to Comply).
`Complaint
`9
`
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 10 of 72 Page ID #:10
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`42. The Storm Water Permit contains certain absolute prohibitions. The Storm
`Water Permit prohibits the direct or indirect discharge of materials other than storm water
`(“non-storm water discharges”), which are not otherwise authorized by an NPDES permit,
`to the waters of the United States. See Storm Water Permit, Discharge Prohibition III(B).
`43.
`35. The Storm Water Permit does not provide for any mixing zones by
`dischargers. The Storm Water Permit does not provide for any receiving water dilution
`credits to be applied by dischargers.
`
`C. The Storm Water Permit’s Requirement for BMPs that Achieve BAT
`and BCT.
`
`44. The Storm Water Permit Effluent Limitations require dischargers covered by
`the Storm Water Permit to reduce or prevent pollutants associated with industrial activity
`in storm water discharges through the implementation of Best Available Technology
`Economically Achievable (“BAT”) for toxic or non-conventional pollutants, and Best
`Conventional Pollutant Control Technology (“BCT”) for conventional pollutants. Storm
`Water Permit, Effluent Limitation V(A). Toxic pollutants are listed at 40 C.F.R. § 401.15
`and include copper, lead, and zinc, among others. Conventional pollutants are listed at 40
`C.F.R. § 401.16 and include biochemical oxygen demand (“BOD”), total suspended solids
`(“TSS”), oil and grease (“O&G”), pH, and fecal coliform.
`45. Pursuant to the CWA and the Storm Water Permit, dischargers must employ
`Best Management Practices (“BMPs”) that constitute BAT and BCT to reduce or
`eliminate storm water pollution. 33 U.S.C. § 1311(b); Storm Water Permit, Effluent
`Limitation V(A).
`46. EPA’s NPDES Storm Water Multi-Sector General Permit for Industrial
`Activities (“MSGP”) includes numeric benchmarks for pollutant concentrations in storm
`
`Complaint
`
`
`10
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 11 of 72 Page ID #:11
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`water discharges (“EPA Benchmarks”), which are, in part, incorporated into the Storm
`Water Permit via the Numeric Action Levels (“NALs”) set forth in Table 2. See Storm
`Water Permit, § XI(B) (Monitoring, Sampling and Analysis).
`47. The EPA Benchmarks provide an objective standard to determine whether a
`facility’s BMPs are successfully developed and/or implemented and achieve compliance
`with BAT and BCT standards. Storm Water Permit, Effluent Limitation V(A); See EPA’s
`NPDES MSGP, Fact Sheet at 106; see also, 65 Federal Register 64839 (2000).
`48. The EPA Benchmarks for the following parameters are as follows: pH – 6.0
`– 9.0 standard units; TSS – 100 mg/L; copper – 0.0332 mg/L; zinc – 0.26 mg/L; nickel –
`1.02 mg/L; iron – 1.0 mg/L; nitrate plus nitrate as nitrogen (“N+N”) – 0.68 mg/L; O&G –
`15 mg/L; and aluminum – 0.75 mg/L. Additional EPA Benchmarks for heavy metals,
`which depend on the hardness of the receiving water, also apply to storm water discharges
`from the Facility.
`49. The General Permit establishes annual NALs and instantaneous maximum
`NALs. The following annual NALs have been established under the General Permit: TSS
`– 100 mg/L; copper – 0.0332 mg/L; zinc – 0.26 mg/L; nickel – 1.02 mg/L; iron – 1.0
`mg/L; N+N – 0.68 mg/L; O&G – 15 mg/L; and aluminum – 0.75 mg/L. An exceedance
`of an annual NAL occurs when the average of all samples obtained for an entire facility
`during a single reporting year is greater than a particular annual NAL. The reporting year
`runs from July 1 to June 30. The General Permit also establishes the following
`instantaneous maximum NALs: pH – 6.0-9.0 s.u.; TSS – 400 mg/L; and O&G – 25 mg/L.
`50. Discharges from an industrial facility containing pollutant concentrations
`that exceed EPA Benchmarks or NALs indicate that BMPs that meet BAT for toxic
`pollutants and/or BCT for conventional pollutants have not been developed and/or
`Complaint
`11
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 12 of 72 Page ID #:12
`
`
`
`
`implemented at the Facility. Id.
`
`D. The Storm Water Permit’s Numeric Effluent Limitations and Water
`Quality-Based Corrective Actions.
`
`51. Effective July 1, 2020, the Storm Water Permit establishes numeric
`effluent limitations (“NELs”) for facilities that discharge storm water associated with
`industrial activities into water bodies that have approved TMDLs set forth in Storm Water
`Permit, Attachment E.
`52. An instantaneous maximum NEL exceedance occurs when two (2) or
`more analytical results from samples taken for any single parameter within a reporting
`year exceeds the instantaneous maximum NEL value. Storm Water Permit, Section
`V(C)(1).
`53. An exceedance of an NEL is a violation of the Storm Water Permit
`and the Clean Water Act. Id.
`54. The Facility is subject to the San Gabriel River TMDL requirements
`for metals and selenium, which include the following Total Instantaneous Maximum
`NELs: copper – 0.027 mg/L, and zinc – 0.158 mg/L. Id., Attachment E.
`55.
` Section XX(B)(1) of the General Permit requires discharges to perform
`certain actions when they determine that their industrial storm water discharges are in
`violation of Receiving Water Limitations or when its discharges exceed an NEL in
`Attachment E. They are required to perform the following actions:
`(i)
`Conduct a facility evaluation to identify pollutant source(s) within the facility
`that are associated with industrial activity and whether the BMPs described
`in the SWPPP have been properly implemented;
`(ii) Assess the facility’s SWPPP and its implementation to determine whether
`
`Complaint
`
`
`12
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 13 of 72 Page ID #:13
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`additional BMPs or SWPPP implementation measures are necessary to
`reduce or prevent pollutants in industrial storm water discharges to meet the
`Receiving Water Limitations (Section VI); and
`(iii) Certify and submit via SMARTS documentation based upon the above
`facility evaluation and assessment that: additional BMPs and/or SWPPP
`implementation measures have been identified and included in the SWPPP
`to meet the Receiving Water Limitations (Section VI) or applicable NELs
`(Attachment E); or no additional BMPs or SWPPP implementation measures
`are required to reduce or prevent pollutants in industrial storm water
`discharges to meet the Receiving Water Limitations (Section VI) or
`applicable NELs (Attachment E). Id., § XX(B)(1).
`E. The Storm Water Permit’s Receiving Water Limitations.
`56. The Receiving Waters are ecologically sensitive areas, which provide an
`essential habitat for dozens of fish and bird species as well as macro-invertebrate and
`invertebrate species, including rare and/or threatened aquatic species. Storm water and
`non-storm water contaminated with sediment, heavy metals, and other pollutants harm the
`special biological significance of the Receiving Waters. Exposure to polluted storm water
`harms the special aesthetic and recreational significance that the surface waters have for
`people in the surrounding communities. The public’s use of the surface waters exposes
`people to toxic metals and other contaminants in storm water and non-storm water
`discharges. Non-contact recreational and aesthetic opportunities, such as wildlife
`observation, are also impaired by polluted discharges to surface waters such as the
`Receiving Waters.
`57. The CWA and the Storm Water Permit’s Receiving Water Limitations
`Complaint
`13
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 14 of 72 Page ID #:14
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`prohibit storm water discharges and authorized non-storm water discharges that cause or
`contribute to an exceedance of any applicable Water Quality Standards (“WQS”). 33
`U.S.C. § 1311(b)(1)(C); 40 C.F.R. §§122.4(d), 122.4(i), 122.44(d); Storm Water Permit,
`Receiving Water Limitation VI(A).
`58. WQS establish the water quality goals for a water body. 40 C.F.R. §131.2.
`59. WQS are pollutant concentration levels determined by the State Board, the
`various regional boards, and the EPA to be protective of the beneficial uses of the waters
`that receive polluted discharges.
`60. Discharges above or below WQS cause and/or contribute to impairment of
`the beneficial uses of the waters that receive polluted discharges.
`61. The State of California regulates water quality through the State Board and
`the nine Regional Boards. Each Regional Board maintains a separate Water Quality
`Control Plan, called a basin plan, which contains WQS for water bodies within its
`geographical area.
`62. The Santa Ana Regional Board adopted the Basin Plan for the Santa Ana
`Region (the “Santa Ana Basin Plan” or the “Basin Plan”). The Santa Ana Basin Plan
`identifies the “Beneficial Uses” of water bodies in the Santa Ana Regional Board’s region,
`which includes the San Gabriel River drainages. The beneficial uses of the Receiving
`Waters include, among others, municipal and domestic supply, water contact recreation,
`non-contact water recreation, wildlife habitat, warm freshwater habitat, and rare,
`threatened or endangered species.
`63. Surface waters that cannot support the Beneficial Uses of those waters listed
`in the Basin Plans are designated as impaired water bodies pursuant to Section 303(d) of
`the Clean Water Act, 33 U.S.C. § 1313(d).
`Complaint
`14
`
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 15 of 72 Page ID #:15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`64. According to the 2018 303(d) List of Impaired Water Bodies, the Receiving
`Waters are listed for the following water quality impairments: pH, temperature, copper,
`and zinc. Polluted discharges from industrial sites, such as the Facility, contribute to the
`degradation of these already-impaired surface waters and aquatic-dependent wildlife that
`depend on these waters. These contaminated discharges can and must be controlled for
`the ecosystem to regain its health.
`65. Discharges of polluted storm water to the Receiving Waters pose threats to
`the public, dramatically affect the use and enjoyment of the surrounding environment, and
`adversely affect the aquatic environment.
`66. Discharges of pollutants at levels above WQS, like those from the Facility,
`cause or contribute to the impairment of the beneficial uses of the Receiving Waters.
`67. WQS may be either numeric or narrative objectives. Applicable WQS
`include, among others, the water quality objectives in the Basin Plan, and the
`“Establishment of Numeric Criteria for Priority Toxic Pollutants in the State of California”
`(“CTR”), 40 C.F.R. § 131.38.
`68. The Santa Ana Basin Plan provides that “[t]he pH of inland surface waters
`shall not be raised above 8.5 or depressed below 6.5 as a result of controllable water
`quality factors.” See Santa Ana Basin Plan, 4-18.
`69. The Santa Ana Basin Plan also includes a narrative WQS that establishes a
`toxicity standard which states that “[t]he concentrations of toxic substances in the water
`column, sediments or biota shall not adversely affect beneficial uses.” See Santa Ana
`Basin Plan, 4-20.
`70. Further, the Santa Ana Basin Plan states that “[t]oxic substances shall not be
`discharged at levels that will bioaccumulate in aquatic resources to levels which are
`Complaint
`15
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 16 of 72 Page ID #:16
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`harmful to human health.” See Santa Ana Basin Plan 4-20.
`71. The Santa Ana Basin Plan also states that “[a]ll waters shall be maintained
`free of toxic substances in concentrations that produce detrimental physiological
`responses in human, plant, animal, or aquatic life.” Santa Ana Basin Plan 4-26.
`72. The CTR establishes numeric WQS to protect human health and the
`environment in the State of California. Water Quality Standards; Establishment of
`Numeric Criteria for Priority Toxic Pollutants for the State of California Factsheet, EPA-
`823-00-008
`(April
`2000),
`available
`at:
`http://water.epa.gov/lawsregs/rulesregs/ctr/factsheet.cfm.
`73. The numeric WQS established in the CTR for freshwater for zinc is 0.12
`mg/L (Criteria Maximum Concentration – “CMC”), chromium is 0.016 mg/L (CMC), and
`for copper is 0.013 mg/L (CMC), assuming a water hardness calculation of 100 mg/L for
`all three parameters.
`74. The CTR numeric limits are expressed as dissolved metal concentrations.
`75. Discharges with pollutant levels that cause or contribute to an exceedance of
`the CTR criteria, the Basin Plan standards, and/or other applicable WQS in the Receiving
`Waters are violations of Receiving Water Limitation Section VI(A) of the Storm Water
`Permit.
`76. The Storm Water Permit’s Receiving Water Limitations prohibit storm water
`discharges from adversely impacting human health or the environment. See Storm Water
`Permit, Section VI(B).
`77. Storm water discharges with pollutant levels that exceed levels known to
`adversely impact aquatic species and the environment are violations of Receiving Water
`Limitation Section VI(B) of the Storm Water Permit.
`Complaint
`16
`
`
`
`
`
`
`Case 8:22-cv-01072 Document 1 Filed 05/27/22 Page 17 of 72 Page ID #:17
`
`
`
`
`F.
`
`The Storm Water Permit’s Storm Water Pollution Prevention Plan
`Requirements.
`78. Dischargers must develop and implement a Storm Water Pollution
`Prevention Plan (“SWPPP”) prior to conducting, and in order to continue, industrial
`activities. Id., § X(B). The SWPPP must meet all of the requirements of the Storm Water
`Permit. Id., §§ X(A)-(H); See also id., Appendix 1. The SWPPP must identify and evaluate
`sources of pollutants associated with industrial activities that may affect the quality of
`storm water and authorized non-storm water discharges from the facility. Id., § X(G).
`79. The SWPPP must identify and implement site-specific BMPs to reduce or
`prevent pollutants associated with industrial activities in storm water and authorized non-
`storm water discharges. Id., Section X(H). The SWPPP must include BMPs that achieve
`pollutant discharge reductions attainable via BAT and BCT. Id., § X(C).
`80. The SWPPP must include: a narrative description and summary of all
`industrial activity; pot