Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 1 of 54
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`Edward E. Yates, Esq. SB#135138
`Law Office of Edward E. Yates
`2060 Sutter Street, #403
`San Francisco, CA 94115
`Telephone: (415) 990-4805
`Email: eyates@marinlandlaw.com
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`Adam D. Brumm, Esq. SB#257906
`Eden Environmental Defenders
`1520 E. Covell Blvd, Suite B5-611
`Davis, CA 95616
`Telephone: (800) 545-7215, Extension 906
`Email: adam@edendefenders.org
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`Attorneys for Plaintiff
`CENTRAL VALLEY EDEN ENVIRONMENTAL DEFENDERS
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF CALIFORNIA
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`CENTRAL VALLEY EDEN
`ENVIRONMENTAL DEFENDERS, LLC, a
`California limited liability company,
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`Plaintiff,
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`vs.
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`BUILDING MATERIAL DISTRIBUTORS,
`INC., a California corporation; and DOES 1-
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`Defendants.
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`Case No.:
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`COMPLAINT FOR INJUNCTIVE AND
`DECLARATORY RELIEF, CIVIL
`PENALTIES AND REMEDIATION
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`(Federal Water Pollution Control Act, 33
`U.S.C. §§1251 et seq.)
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`Plaintiff CENTRAL VALLEY EDEN ENVIRONMENTAL DEFENDERS, LLC
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`(“EDEN”) hereby brings this civil action pursuant to the Federal Water Pollution Control Act,
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`also known as the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq.
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`COMPLAINT – Page 1
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 2 of 54
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`INTRODUCTION
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`1.
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`This action is a citizen suit for injunctive relief, declaratory relief, civil
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`penalties, and remediation against Defendant BUILDING MATERIAL DISTRIBUTORS for
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`current and ongoing violations of the National Pollutant Discharge Elimination System
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`(“NPDES”) permit requirements of the CWA.
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`2.
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`On or about September 4, 2021, EDEN provided a Notice of Defendant’s
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`violations of the CWA to the (1) Administrator of the United States Environmental Protection
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`Agency (“EPA”), (2) EPA’s Regional Administrator for Region Nine, (3) Executive Director
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`of the State Water Resources Control Board (“State Board”) and (4) to Defendant, including a
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`copy delivered to the Facility Manager of Defendant Building Material Distributors, by
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`certified mail, at 225 Elm Avenue, Galt, California (“the Facility”), as required by the CWA.
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`33 U.S.C. § 1365(b)(1)(A).
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`3.
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`A copy of EDEN’s Notice of Intent to Sue is attached hereto as Exhibit “A”
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`and incorporated herein by reference.
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`4.
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`More than sixty days have passed since EDEN’s Notice was properly and
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`lawfully served on Defendant, the State Board, and the Regional and National EPA
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`Administrators. EDEN is informed and believes, and thereupon alleges, that neither the
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`National EPA, nor the State of California has commenced or is diligently prosecuting a court
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`action to redress the violations alleged in this complaint. This action’s claim for civil penalties
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`is not barred by any prior administrative penalty under section 309(g) of the CWA, 33 U.S.C.
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`§ 1319(g).
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`COMPLAINT – Page 2
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`JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT
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`5.
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`This Court has subject matter jurisdiction over this action pursuant to 28
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`U.S.C. section 1331 (federal question), and 33 U.S.C. section 1365(a) (CWA citizen suit
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`jurisdiction). The relief requested is authorized pursuant to 28 U.S.C. sections 2201-2202
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`(declaratory relief), 33 U.S.C. sections 1319(b), 1365(a) (injunctive relief), and 33 U.S.C.
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`sections 1319(d), 1365(a) (civil penalties).
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`6.
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`The Permit under which this case arises is a Federally required permit based
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`upon California state substantive law. (Southern California Alliance of Publicly Owned
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`Treatment Works v. U.S. Environmental Protection Agency (9th Cir. 2017), 853 F.3d 1076;
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`Dept. of Finance v. Commission on State Mandates, 1 Cal.5th 749 (2016))
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`7.
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`By its express language, a violation of the State permit constitutes a per se
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`violation of the Federal Clean Water Act. (California’s Industrial General Permit Order 2014-
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`0057 DWQ, NPDES Order No. CAS000001, Section XXI.A)
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`8.
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`Venue is proper because Defendant resides in and the events or omissions
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`giving rise to EDEN’s claims occurred in this District. 28 U.S.C. §1391(b)(1), (2). Venue is
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`also proper because the Facility’s CWA violations have occurred and are occurring within the
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`District. 33 U.S.C. § 1365(c)(1).
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`PARTIES
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`9.
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`Plaintiff CENTRAL VALLEY EDEN ENVIRONMENTAL DEFENDERS,
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`LLC (“EDEN”) is an environmental membership group organized under the laws of the State
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`of California as a limited liability company.
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`10.
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`EDEN’s organizational purpose is the protection, preservation and
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`enhancement of California’s waterways. Its mission is implemented by enforcing the
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`COMPLAINT – Page 3
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`provisions of the Federal Clean Water Act and California’s Industrial General Permit by
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`seeking redress from environmental harms caused by Industrial Dischargers who pollute the
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`Waters of the United States, through community education and citizen suit enforcement when
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`necessary.
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`EDEN’s members donate their time and money resources to protect, enhance,
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`and assist in the preservation and restoration of rivers, creeks, streams, wetlands, vernal pools,
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`and their tributaries located in California.
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`12.
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`EDEN has members throughout Northern California. Some of EDEN’s
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`members reside and work near the Consumnes River, a tributary of the Sacramento-San
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`Joaquin River Delta Waterways (the “Receiving Waters” for Defendant Building Material
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`Distributors’ Facility storm water run-off), and use those waters and their watersheds for
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`surfing, kayaking, camping, cycling, recreation, sports, fishing, swimming, hiking,
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`photography, nature walks and scientific study. Their use and enjoyment of these natural
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`resources have been and continue to be adversely impaired by Defendant’s failure to comply
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`with the procedural and substantive requirements of the California Industrial General Permit
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`and Federal Clean Water Act.
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`13.
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`EDEN has standing as an association to bring this suit against Defendant, as at
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`least one of EDEN’s current members is experiencing ongoing and continuing harm particular
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`to him or her as a specific result of Defendant’s violations of the CWA, and the resulting
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`adverse effects to the environment and the Receiving Waters downstream from the Facility
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`and has experienced such harm since at least the date that EDEN provided to Defendant a 60-
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`day Notice of Intent to Sue.
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`COMPLAINT – Page 4
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`14.
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`Specifically, the individual member(s) who are experiencing harm from
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`Defendant’s violations of the CWA are reluctant to utilize the Receiving Waters downstream
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`from the Facility as specified in Paragraph 12, above, due to the pollution caused by
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`Defendant’s environmental violations that EDEN’s members believe has entered into the
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`Facility’s Receiving Waters; and the aesthetic and recreational interests of these members has
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`been adversely impacted.
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`Defendant’s ongoing violations of the General Permit and the CWA have and
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`will continue to cause irreparable harm to EDEN and certain of its current members. The
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`relief requested will redress the ongoing injury in fact to EDEN and its members. Litigation
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`of the claims asserted and the relief requested in this Complaint will not require the
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`participation in this lawsuit of individual members of EDEN.
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`16.
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`EDEN is informed and believes, and on such information and belief alleges,
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`that Defendant BUILDING MATERIAL DISTRIBUTORS, INC., located at 225 Elm Avenue
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`in Galt, California, was formed on or about July 2, 1984, as a California corporation, and is
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`identified in the Regional Water Board’s records as the Industrial General Permit applicant
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`and operator of the Facility.
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`STATUTORY BACKGROUND
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`17.
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`Congress declared that the Federal Clean Water Act was designed to “restore
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`and maintain the chemical, physical, and biological integrity of the Nation’s waters” through
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`federal and state cooperation to develop and implement “programs for preventing, reducing,
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`or eliminating the pollution of navigable waters and ground waters.” 33 U.S.C. §§ 1251(a),
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`1252(a).
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`COMPLAINT – Page 5
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`18.
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`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any
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`pollutant into waters of the United States, unless such discharge is in compliance with various
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`enumerated sections of the Act. Among other things, Section 301(a) prohibits discharges not
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`authorized by, or in violation of, the terms of an NPDES permit issued pursuant to Section
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`402 of the Act, 33 U.S.C. § 1342.
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`19.
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`Section 402(p) of the Act establishes a framework for regulating municipal and
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`industrial storm water discharges under the NPDES program. 33 U.S.C. § 1342(p). States
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`with approved NPDES permit programs are authorized by Section 402(p) to regulate
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`industrial storm water discharges through individual permits issued to dischargers or through
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`the issuance of a single, statewide general permit applicable to all industrial storm water
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`dischargers. 33 U.S.C. § 1342(p).
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`20.
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`Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of the
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`U.S. EPA has authorized California’s State Board to issue NPDES permits including general
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`NPDES permits in California.
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`General Permit
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`The State Board elected to issue a statewide general permit for industrial storm
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`water discharges. The State Board originally issued the General Permit on November 19,
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`1991, and modified it on September 17, 1992. The State Board reissued the General Permit
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`on April 17, 1997, and again on April 1, 2014 (the “2015 Permit” or “General Permit”),
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`pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p). The 1997 Permit was
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`in effect between 1997 and June 30, 2015. The 2015 Permit went into effect on July 1, 2015.
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`The 2015 Permit maintains or makes more stringent the same requirements as the 1997
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`Permit.
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`COMPLAINT – Page 6
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`22.
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`On November 16, 2018, the State Water Board adopted a revised General
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`Permit (Order No. 2018-XXXX-DWQ, which technically became effective on July 1, 2020.
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`However, the 2018 Revisions have not officially been finalized or certified by the Clerk of the
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`State Water Board as of the date of this Complaint.
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`In order to discharge storm water lawfully in California, industrial dischargers
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`must comply with the terms of the General Permit or have obtained and complied with an
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`individual NPDES permit. 33 U.S.C. § 1311(a).
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`24.
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`The General Permit contains several prohibitions. Effluent Limitation V(A) of
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`the General Permit requires dischargers to reduce or prevent pollutants in their storm water
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`discharges through implementation of the Best Available Technology Economically
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`Achievable (“BAT”) for toxic and nonconventional pollutants and the Best Conventional
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`Pollutant Control Technology (“BCT”) for conventional pollutants. Discharge Prohibition
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`III(C) of the General Permit prohibits storm water discharges and authorized non-storm water
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`discharges that cause or threaten to cause pollution, contamination, or nuisance.
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`Receiving Water Limitation VI(B) of the General Permit prohibits storm water
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`discharges to any surface or ground water that adversely impact human health or the
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`environment. Receiving Water Limitation VI(A) and Discharge Prohibition III(D) of the
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`Permit prohibit storm water discharges that cause or contribute to an exceedance of any
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`applicable water quality standards contained in Statewide Water Quality Control Plan or the
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`applicable Regional Board’s Basin Plan.
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`In addition to absolute prohibitions, the General Permit contains a variety of
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`substantive and procedural requirements that dischargers must meet. Facilities discharging, or
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`having the potential to discharge, storm water associated with industrial activity which have
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`COMPLAINT – Page 7
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`not obtained an individual NPDES permit must apply for coverage under the State’s General
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`Permit by filing a Notice of Intent to Comply (“NOI”). Dischargers have been required to file
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`NOIs since March 30, 1992.
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`Dischargers must develop and implement a Storm Water Pollution Prevention
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`Plan (“SWPPP”). The SWPPP must describe storm water control facilities and measures that
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`comply with the BAT and BCT standards. The objective of the SWPPP requirement is to
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`identify and evaluate sources of pollutants associated with industrial activities that may affect
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`the quality of storm water discharges and authorized non-stormwater discharges from the
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`facility, and to implement best management practices (“BMPs”) to reduce or prevent
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`pollutants 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 compliance with
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`the General Permit’s effluent limitations and receiving water limitations, including the BAT
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`and BCT technology mandates.
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`To ensure compliance with the General Permit, the SWPPP must be evaluated
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`and revised as necessary. General Permit, § X(B).
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`Failure to develop or implement an adequate SWPPP, or to update or revise an
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`existing SWPPP as required, is a violation of the General Permit. General Permit, Fact Sheet
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`§I(1).
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`Sections X(D) – X(I) of General Permit set forth the requirements for a
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`SWPPP. Among other requirements, the SWPPP must include: a pollution prevention team; a
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`site map; a list of significant materials handled and stored at the site; a description of potential
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`pollutant sources; an assessment of potential pollutant sources; and a description of a specific
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`COMPLAINT – Page 8
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`mandatory set of minimum BMPs to be implemented at the facility that will reduce or prevent
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`pollutants in storm water discharges and authorized non-stormwater discharges.
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`31.
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`The General Permit further requires dischargers to implement and maintain, to
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`the extent 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 minimization
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`BMPs, storm water containment and discharge reduction BMPs, treatment control BMPs, and
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`other advanced BMPs. General Permit, § X(H)(2). Failure to implement advanced BMPs as
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`necessary to achieve compliance with either technology or water quality standards is a
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`violation of the General Permit.
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`32.
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`The General Permit also requires that the SWPPP include BMP Descriptions
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`and a BMP Summary Table. General Permit, § X(H)(4), (5).
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`33.
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`The General Permit requires dischargers to develop and implement an
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`adequate written Monitoring and Reporting Program. The primary objective of the
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`Monitoring and Reporting Program is to detect and measure the concentrations of pollutants
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`in a facility’s discharge to ensure compliance with the General Permit’s discharge
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`prohibitions, effluent limitations, and receiving water limitations.
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`As part of their monitoring program, Dischargers must identify all storm water
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`discharge locations that produce a significant storm water discharge, evaluate the
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`effectiveness of BMPs in reducing pollutant loading, and evaluate whether pollution control
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`measures set out in the SWPPP are adequate and properly implemented.
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`35.
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`Section XI(B) of the General Permit requires that Dischargers collect and
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`analyze storm water samples from two qualifying storm events (“QSEs”) during the first half
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`of each reporting year (July 1 to December 31) and two QSEs during the second half of each
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`COMPLAINT – Page 9
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`reporting year (January 1 to June 30), and that the samples be collected from all outfalls
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`identified in the Facility SWPPP.
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`A QSE is a precipitation event that produces a discharge for at least one
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`drainage area and is preceded by 48 hours with no discharge from any drainage area. General
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`Permit §XI(B)(2)
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`Once the storm water samples have been collected, the General Permit requires
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`that the Discharger deliver the samples to a qualified laboratory for analysis within 48 hours
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`of collection (General Permit, Attachment H) and upload into SMARTS the resulting
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`laboratory reports within 30 days from receipt of the report. General Permit § XI(B)(4)
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`38.
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`Facilities are also required to make monthly visual observations of storm water
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`discharges. The visual observations must represent the quality and quantity of the facility’s
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`storm water discharges from the storm event. General Permit, § XI(A)
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`39.
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`The General Permit requires operators to conduct an Annual Comprehensive
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`Facility Compliance Evaluation (“Annual Evaluation”) that evaluates the effectiveness of
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`current BMPs and the need for additional BMPs based on visual observations and sampling
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`and analysis results. General Permit, § XV.
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`40.
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`Under the General Permit, facilities must analyze storm water samples for pH,
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`oil & grease and total suspended solids, as well as additional parameters indicated in the
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`Permit by facility type and those parameters identified by the Discharger on a facility-specific
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`basis that serve as indicators of the presence of all industrial pollutants identified in the
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`pollutant source assessment. General Permit, § XI(B)(6)(c).
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`41.
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`The US 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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`COMPLAINT – Page 10
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`requisite BAT and BCT. These benchmarks represent pollutant concentrations at which a
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`storm water discharge could potentially impair, or contribute to impairing, water quality, or
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`affect human health from ingestion of water or fish.
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`42.
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`The Numeric Action Levels (“NALs”) in the General Permit are derived from
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`these benchmarks. The Permit incorporates annual NALs, which are derived from the 2008
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`MSGP benchmark values, and instantaneous maximum NALs, which are derived from a
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`Water Board dataset.
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`43.
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`The following annual NALs have been established under the General Permit
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`for pollution parameters applicable to the Facility: pH – 6.0 - 9.0 standard units (“S.U.”); total
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`suspended solids (“TSS”) – 100 mg/L; oil & grease (“O&G”) – 15 mg/L; iron – 1.0 mg/L.
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`44.
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`An exceedance of an annual NAL occurs when the average of all samples
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`obtained for an entire facility during a single reporting year is greater than a particular annual
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`NAL. The reporting year runs from July 1 to June 30. An instantaneous maximum NAL
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`exceedance occurs when two or more analytical results from samples taken for any single
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`parameter within a reporting year exceed the instantaneous maximum NAL value (for TSS
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`and O&G) or are outside of the instantaneous maximum NAL range for pH. General Permit
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`§XII(A)
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`45. When a discharger exceeds an applicable NAL, it is elevated to “Level 1
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`Status,” which requires a revision of the SWPPP and additional BMPs. If a discharger
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`exceeds an applicable NAL during Level 1 Status, it is then elevated to “Level 2 Status.”
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`General Permit § XII(C)
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`46.
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`For Level 2 Status, a discharger is required to submit an Action Plan requiring
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`a demonstration of either additional BMPs to prevent exceedances, a determination that the
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`COMPLAINT – Page 11
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 12 of 54
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`exceedance is solely due to non-industrial pollutant sources, or a determination that the
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`exceedance is solely due to the presence of the pollutant in the natural background. General
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`Permit §XII(D)
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`47.
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`Section XVI(A) of the General Permit requires that all Dischargers must
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`certify and submit via SMARTS an Annual Report no later than July 15th following each
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`reporting year using the standardized format and checklists in SMARTS.
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`48.
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`Furthermore, Section XXI(L) of the General Permit provides that all
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`documents submitted to SMARTS, including SWPPPs and Annual Reports, be certified by a
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`legally responsible party or duly authorized representative of the Facility, with the following
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`certification:
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`“I certify under penalty of law that this document and all Attachments were prepared
`under my direction or supervision in accordance with a system designed to assure that
`qualified personnel properly gather and evaluate the information submitted. Based on my
`inquiry of the person or persons who manage the system or those persons directly responsible
`for gathering the information, to the best of my knowledge and belief, the information
`submitted is, true, accurate, and complete. I am aware that there are significant penalties for
`submitting false information, including the possibility of fine and imprisonment for knowing
`violations."
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`49.
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`Section XXI(N) of the General Permit provides that any person who
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`knowingly makes any false material statement, representation, or certification in any record or
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`other document submitted or required to be maintained under the General Permit, including
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`reports of compliance or noncompliance shall upon conviction, be punished by a fine of not
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`more than $10,000, or by imprisonment for not more than two years, or by both. See also
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`Clean Water Act section 309(c)(4)
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`COMPLAINT – Page 12
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`Central Valley Region Basin Plan
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`50.
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`The Regional Board has identified beneficial uses of the Central Valley
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`Region’s waters and established water quality standards for the Sacramento River and its
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`tributaries and the Sacramento-San Joaquin Delta in “The Water Quality Control Plan (Basin
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`Plan) for the California Regional Water Quality Control Board, Central Valley Region – The
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`Sacramento River Basin and The San Joaquin River Basin,” generally referred to as the Basin
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`Plan, and the “Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin
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`Delta Estuary.”
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`51.
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`The beneficial uses of these waters include, among others, domestic and
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`municipal supply, water contact recreation, non-contact water recreation, wildlife habitat,
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`warm and cold freshwater habitat, and fish spawning. The non-contact water recreation use is
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`defined as “uses of water for recreational activities involving proximity to water, but where
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`there is generally no body contact with water, nor any likelihood of ingestion of water. These
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`uses include, but are not limited to, picnicking, sunbathing, hiking, camping, boating, hunting,
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`sightseeing, or aesthetic enjoyment in conjunction with the above activities.”
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`52.
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`The Basin Plan includes a narrative toxicity standard which states that all
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`waters shall be maintained free of toxic substances in concentrations that produce detrimental
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`physiological responses in human, plant, animal, or aquatic life.
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`53.
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`The Basin Plan provides that water shall not contain floating material in
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`amounts that cause nuisance or adversely affect beneficial uses.
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`54.
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`The Basin Plan provides that water shall be free of discoloration that causes
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`nuisance or adversely affects beneficial uses.
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`COMPLAINT – Page 13
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 14 of 54
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`55.
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`The Basin Plan provides that waters shall not contain suspended materials in
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`concentrations that cause nuisance or adversely affect beneficial uses.
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`56.
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`The Basin Plan also prohibits the discharges of oil and grease, stating that
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`waters shall not contain oils, greases, waxes, or other materials in concentrations that cause
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`nuisance, result in a visible film or coating on the surface of the water or on objects in the
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`water, or otherwise adversely affect beneficial uses.
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`57.
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`The Basin Plan provides that at a minimum, water designated for use as
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`domestic or municipal supply (MUN) shall not contain concentrations of chemical
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`constituents in excess of the maximum contaminant levels (MCLs) specified in the following
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`provisions of Title 22 of the California Code of Regulations, which are incorporated by
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`reference into this plan: Tables 64431-A (Inorganic Chemicals) and 64431-B (Fluoride) of
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`Section 64431, Table 64444-A (Organic Chemicals) of Section 64444, and Tables 64449-A
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`(Secondary Maximum Contaminant Levels-Consumer Acceptance Limits) and 64449-B
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`(Secondary Maximum Contaminant Levels-Ranges) of Sec
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`58.
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`The Basin Plan provides that pH shall not be depressed below 6.5 nor raised
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`above 8.5.
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`59.
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`The Basin Plan requires that waters shall be free of changes in turbidity that
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`cause nuisance or adversely affect beneficial uses.”
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`60.
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`Table III-1 of the Basin Plan provides a water quality objective (“WQO”) for
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`iron of 0.3 mg/L.
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`Citizen Suit Provision of the CWA
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`61.
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`Under the CWA, any citizen may commence a civil action against any person
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`who is alleged to be in violation of an effluent standard or limitation under the CWA or an
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`COMPLAINT – Page 14
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 15 of 54
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`Order issued by a State with respect to such a standard or limitation.” 33 U.S.C. §1365(a)(1).
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`No action may be commenced prior to sixty days after the plaintiff has given notice of the
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`alleged violation (i) to the Administrator of the EPA, (ii) to the State in which the alleged
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`violation occurs, and (iii) to any alleged violator of the standard, limitation, or order.” 33
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`U.S.C. § 1365(b)(1)(A). By including a citizen suit provision in the CWA, Congress ensured
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`that the purposes and requirements of the CWA would be enforced, either by the United
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`States government or by concerned citizens.
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`62.
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`In furtherance of the water preservation goals established by the CWA, the
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`citizen suit provision confirms the district court’s jurisdiction to apply any appropriate civil
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`penalties under section 1319(d). 33 U.S.C. § 1365(a). Section 1319(d) declares that any
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`person who violates any permit condition or limitation implementing any of such sections in
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`an NPDES permit shall be subject to a civil penalty not to exceed $56,460.00 per day for each
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`violation. 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4; General Permit XXI.Q.1.
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`63.
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`Violations of provisions of the General Permit, including those detailed below,
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`constitute violations of the CWA and are subject to civil penalties. General Permit § XXI; 33
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`U.S.C. §§ 1319(d), 1342; 40 C.F.R. §§ 19.1-19.4.
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`FACTUAL ALLEGATIONS WHICH GIVE RISE TO CLAIMS
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`64.
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`Defendant Building Material Distributors is a facility which distributes
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`construction building materials and maintains its own trucking fleet. EDEN is informed and
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`believes that the Facility falls under standard industrial classifications (“SIC”) codes 4213
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`(long distance trucking) and 5211 (lumber and other building materials distributors).
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`COMPLAINT – Page 15
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 16 of 54
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`65.
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`EDEN is informed and believes that Building Material Distributors stores
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`industrial materials outdoors that can be exposed to storm water, eroded by wind, and
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`otherwise contaminate the surrounding watershed.
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`66.
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`Based on EDEN’s investigation, including a review of the Facility’s Notice of
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`Intent to Comply with the Terms of the Industrial General Permit (“NOI”), SWPPP, aerial
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`photography, Federal, State and local regulatory agency mapping tools and EDEN’s
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`information and belief, storm water is collected and discharged through numerous storm drain
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`inlets spread throughout four or more distinct drainage areas located within the boundaries of
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`the Facility’s 22-acre site, which currently discharge to multiple separate outfalls.
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`67.
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`The outfalls discharge storm water and pollutants contained in that storm water
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`directly the Lower Consumnes River, a tributary of the Sacramento-San Joaquin Delta, both
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`navigable Waters of the United States.
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`68.
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`Plaintiff is informed and believes, and thereupon alleges that the storm water
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`flows over the surface of the Facility where industrial activities occur and areas where
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`airborne materials associated with the industrial processes at the facility may settle onto the
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`ground. Plaintiff is informed and believes, and thereupon alleges that storm water flowing
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`over these areas collects suspended sediment, dirt, metals, and other pollutants as it flows
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`towards the storm water channels.
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`69.
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`On information and belief, Plaintiff alleges that there are insufficient structural
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`storm water control measures installed at the Facility. Plaintiff is informed and believes, and
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`thereupon alleges, that the best management practices at the Facility are currently inadequate
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`to prevent the sources of contamination described above from causing the discharge of
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`pollutants to waters of the United States.
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`COMPLAINT – Page 16
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`Case 2:22-cv-00509-TLN-JDP Document 1 Filed 03/18/22 Page 17 of 54
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`Deficient SWPPP/Failure to Follow SWPPP
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`70.
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`On information and belief, Plaintiff alleges that since at least March 1, 2017,
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`3
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`Defendant has failed to implement an adequate SWPPP for the Facility.
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`71.
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`Plaintiff is informed and believes, and thereupon alleges, that the SWPPP and
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`incorporated Site Map prepared for the Facility do not comply with the requirements of
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`Sections X(A)(3), X(E), X(F), X(G), X(H) and X(I) of the General Permit, as is more
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`particularly detailed in EDEN’s Notice Letter provided to Building Material Distributors on
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`September 4, 2021, attached hereto as Exhibit “A”.
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`72.
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`In addition, Plaintiff alleges that Defendant has intentionally omitted from its
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`SWPPP and Site Map a 19.5-acre portion of its 22-acre site. Plaintiff is informed