Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 1 of 18
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`ANDREW L. PACKARD (State Bar No. 168690)
`WILLIAM N. CARLON (State Bar No. 305739)
`Law Offices of Andrew L. Packard
`245 Kentucky Street, Suite B3
`Petaluma, CA 94952
`Tel: (707) 782-4060
`Fax: (707) 782-4062
`Email: andrew@packardlawoffices.com
` wncarlon@packardlawoffices.com
`
`WILLIAM VERICK (State Bar No. 140972)
`Klamath Environmental Law Center
`1125 Sixteenth Street, Suite 204
`Arcata, CA 95521
`Tel. (707) 630-5061
`Email: wverick@igc.org
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`DAVID WILLIAMS (State Bar No. 144479)
`Law Offices of David Williams
`1839 Ygnacio Valley Road, Suite 351
`Walnut Creek, CA 94598
`Tel: (510) 847 2356
`Fax: (925) 332-0352
`E-mail: dhwill7@gmail.com
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`Attorneys for Plaintiff
`CALIFORNIANS FOR
`ALTERNATIVES TO TOXICS
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
` Plaintiff,
`vs.
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`CALIFORNIANS FOR ALTERNATIVES
`TO TOXICS,
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`
`
`
`EUREKA READY MIX LLC, doing
`business as EUREKA READY MIX
`CONCRETE COMPANY, INC., ROBERT
`MCLAUGHLIN, and MICHAEL
`MCLAUGHLIN,
`
` Defendants.
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`
`
`Case No.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
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`
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`(Federal Water Pollution Control Act, 33
`U.S.C. §§ 1251–1387)
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`
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`
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 2 of 18
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`CALIFORNIANS FOR ALTERNATIVES TO TOXICS (“CATs”), by and through its
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`counsel, hereby alleges:
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`I.
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`JURISDICTION AND VENUE
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`1.
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`This is a civil suit brought under the citizen suit enforcement provisions of the
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`Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (the “Clean Water Act”, the “CWA”
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`or “the Act”) against Eureka Ready Mix LLC, doing business as Eureka Ready Mix Concrete
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`Company, Inc., Robert McLaughlin, and Michael McLaughlin (“Defendants”). This Court has
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`subject matter jurisdiction over the parties and the subject matter of this action pursuant to Section
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`505(a)(1) of the Act, 33 U.S.C. § 1365(a), and 28 U.S.C. § 1331 (an action arising under the laws of
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`the United States). Specifically, this action arises under Section 505(a)(1)(A) of the Act, 33 U.S.C.
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`§ 1365(a)(1)(A) (citizen suit to enforce effluent standard or limitation). The relief requested is
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`authorized pursuant to 33 U.S.C. § 1365(a) (injunctive relief), 33 U.S.C. §§ 1365(a), 1319(d) (civil
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`penalties), and 28 U.S.C. §§ 2201–2202 (power to issue declaratory relief in case of actual
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`controversy and further necessary relief based on such a declaration).
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`2.
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`On or about June 29, 2020, Plaintiff provided written notice to Defendants, via
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`certified mail, of Defendants’ violations of the Act (“CWA Notice Letter”), and of their intention to
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`file suit against Defendants, as required by the Act. See 33 U.S.C. § 1365(b)(1)(A); 40 C.F.R.
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`§ 135.2(a)(1) (1991). Plaintiff mailed a copy of the CWA Notice Letter to the Administrator of the
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`United States Environmental Protection Agency (“EPA”); the Administrator of EPA Region IX; the
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`Executive Director of the State Water Resources Control Board (“State Board”); and the Executive
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`Officer of the North Coast Regional Water Quality Control Board (“Regional Board”), pursuant to
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`40 C.F.R. § 135.2(a)(1) (1991). A true and correct copy of CATs’ CWA Notice Letter is attached
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`hereto as Exhibit A, and is incorporated by reference.
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`3.
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`More than sixty days have passed since Plaintiff served this CWA Notice Letter on
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`Defendants and the agencies. Plaintiff is informed and believes, and thereupon alleges, that neither
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`the EPA nor the State of California has commenced or is diligently prosecuting a court action to
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`redress the violations alleged in this Complaint. This action’s claims for civil penalties are not
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`barred by any prior administrative penalty under Section 309(g) of the Act, 33 U.S.C. § 1319(g).
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`4.
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`Venue is proper in the Northern District of California pursuant to Section 505(c)(1)
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`of the Act, 33 U.S.C. § 1365(c)(1), because the sources of the violations are located within this
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`District. Venue is also proper under 28 U.S.C. § 1391(b) because Defendants reside in this District
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`and a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this
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`District. Intra-district venue is proper in San Francisco, California, because the sources of the
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`violations are located within Humboldt County, California.
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`II.
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`INTRODUCTION
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`5.
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`This Complaint seeks relief for Defendants’ violations of the CWA at the
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`approximately 24-acre facility owned and/or operated by Defendants (the “Facility”). The Facility is
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`located at 4945 Boyd Road, in Arcata, California. Defendants discharge pollutant-contaminated
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`storm water from the Facility into the Mad River, which flows into the Pacific Ocean. Mad River
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`and the Pacific Ocean are waters of the United States. Defendants are violating both the substantive
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`and procedural requirements of the CWA.
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`6.
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`Defendants’ discharges of pollutant-contaminated storm water from the Facility
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`violate the Act and the State of California’s General Industrial Permit for storm water discharges,
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`State Water Resources Control Board (“State Board”) Water Quality Order No. 91-13-DWQ, as
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`amended by Water Quality Order No. 92-12-DWQ, Water Quality Order No. 97-03-DWQ, and
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`Water Quality Order No. 2014-0057-DWQ, National Pollutant Discharge Elimination System
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`(“NPDES”) General Permit No. CAS000001 (hereinafter “General Permit” or “Permit”).
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`Defendants’ violations of the filing, monitoring, reporting, discharge and management practice
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`requirements, and other procedural and substantive requirements of the General Permit and the Act
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`are ongoing and continuous.
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`7.
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`The failure on the part of industrial facility operators such as Defendants to comply
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`with the General Permit is recognized as a significant cause of the continuing decline in water
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`quality of receiving waters, such as Mad River. The general consensus among regulatory agencies
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`and water quality specialists is that storm water pollution amounts to more than half the total
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`pollution entering the marine environment each year.
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case No.
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 4 of 18
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`III.
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`PARTIES
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`8.
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`CATs is a non-profit public benefit corporation organized under the laws of
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`California, based in Arcata, California. CATs is dedicated to the defense of the environment from
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`the effects of toxic chemicals, and the preservation and protection of the wildlife and natural
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`resources of California waters, including the waters into which Defendants discharge polluted storm
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`water. To further its goals, CATs actively seeks federal and state agency implementation of state
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`and federal water quality laws, including the CWA, and as necessary, directly initiates enforcement
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`actions on behalf of itself and its members.
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`9.
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`Members of CATs, including citizens, taxpayers, property owners, and residents,
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`live, work, travel and recreate on and near Mad River, into which Defendants cause pollutants to be
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`discharged. These CATs members use and enjoy the impacted waters for cultural, recreational,
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`educational, scientific, conservation, aesthetic and spiritual purposes. Defendants’ discharge of
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`storm water containing pollutants impairs each of those uses. Thus, the interests of CATs’ members
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`have been, are being, and will continue to be adversely affected by Defendants’ failure to comply
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`with the Clean Water Act and the General Permit.
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`10.
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`Members of CATs reside in California and use and enjoy California’s numerous
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`rivers for recreation and other activities. Members of CATs use and enjoy the waters of Mad River,
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`into which Defendants have caused, are causing, and will continue to cause, pollutants to be
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`discharged. Members of CATs use these areas to fish, boat, kayak, swim, bird watch, view wildlife,
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`and engage in scientific study, including monitoring activities, among other things. Defendants’
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`discharges of pollutants threaten or impair each of those uses or contribute to such threats and
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`impairments. Thus, the interests of CATs’ members have been, are being, and will continue to be
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`adversely affected by Defendants’ ongoing failure to comply with the Clean Water Act. The relief
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`sought herein will redress the harms to Plaintiff caused by Defendants’ activities.
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`11.
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`Plaintiff is informed and believes, and thereupon alleges that Defendants own
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`and/or operate the Facility, and are subject to the terms of the General Permit.
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`12.
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`Continuing commission of the acts and omissions alleged above will irreparably
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`harm Plaintiff and the citizens of the State of California, for which harm they have no plain, speedy or
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 5 of 18
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`adequate remedy at law.
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`IV.
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`LEGAL BACKGROUND
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`A.
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` Clean Water Act
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`13.
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`Congress enacted the CWA to “restore and maintain the chemical, physical, and
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`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA establishes an “interim
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`goal of water quality which provides for the protection and propagation of fish, shellfish, and
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`wildlife and provides for recreation in and on the water . . . .” 33 U.S.C. § 1251(a)(2). To these
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`ends, Congress developed both a water quality-based and technology-based approach to regulating
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`discharges of pollutants from point sources into waters of the United States.
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`14.
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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 from a point source into waters of the United States, unless such discharge is in compliance
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`with various enumerated sections of the Act. Among other things, Section 301(a) prohibits
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`discharges not authorized by, or in violation of, the terms of an NPDES permit issued pursuant to
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`Section 402 of the Act, 33 U.S.C. § 1342.
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`15.
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`The term “discharge of pollutants” means “any addition of any pollutant to
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`navigable waters from any point source.” 33 U.S.C. § 1362(12). Pollutants are defined to include,
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`among other examples, industrial waste, chemical wastes, biological materials, heat, rock, and sand
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`discharged into water. 33 U.S.C. § 1362(6).
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`16.
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`A “point source” is defined as “any discernible, confined and discrete conveyance,
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`including but not limited to any pipe, ditch, channel, tunnel, [or] conduit . . . from which pollutants
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`are or may be discharged.” 33 U.S.C. § 1362(14).
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`17.
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`“Navigable waters” means “the waters of the United States.” 33 U.S.C. § 1362(7).
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`Waters of the United States includes, among others things, waters that are, were, or are susceptible
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`to use in interstate commerce, and tributaries to such waters. 40 C.F.R. § 230.3 (2015).
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`18.
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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), and, specifically,
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`requires an NPDES permit for storm water discharges associated with industrial activity. Id. §
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`1342(p)(2)(B).
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 6 of 18
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`19.
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`Section 505(a)(1) provides for citizen enforcement actions against any “person,”
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`including individuals, corporations, or partnerships, 33 U.S.C. § 1362(5), for violations of NPDES
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`permit requirements and for unpermitted discharges of pollutants. 33 U.S.C. § 1365(a)(1)
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`(authorizing actions against any person alleged to be in violation of an effluent standard or
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`limitation); id. § 1365(f) (defining “effluent limitation” broadly to include “a permit or condition
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`thereof issued under [section 402] of this title,” and “any unlawful act under subsection (a) of
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`[section 301] of this title”).
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`20.
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`An action for injunctive relief under the Act is authorized by 33 U.S.C. § 1365(a).
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`Violators of the Act are also subject to an assessment of civil penalties of up to $37,500 per day for
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`violations occurring after January 12, 2009, pursuant to Sections 309(d) and 505 of the Act, 33 U.S.C.
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`§§ 1319(d), 1365, and 40 C.F.R. §§ 19.1–19.4 (2008).
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`B.
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`State Regulations
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`21.
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`Mad River is degraded from pollutant loading. This is officially recognized by the
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`EPA, the State Board and the Regional Board, which have placed the river on the CWA section
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`303(d) list of waters that are so polluted that they do not meet applicable water quality standards.
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`The Regional Board's Water Quality Control Plan for the North Coast Basin (hereafter referred to as
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`the “Basin Plan”) is the master policy document setting forth the legal, technical, and programmatic
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`bases of water quality regulation in the Region. Among other things, the Basin Plan includes the
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`water quality objectives needed to protect the designated beneficial water uses. The Basin Plan sets
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`forth narrative water quality objectives for sediment, settleable and suspended materials, as well as
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`narrative objectives for preventing the impairment of water quality with oil sheens, turbidity, or
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`other nuisance conditions. The Basin Plan also includes numeric water quality standards for pH,
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`dissolved oxygen and toxic pollutants as well as site specific objectives for certain pollutants of
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`concern such as lead, copper, zinc and aluminum.
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`22.
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`In addition, a rule promulgated by EPA known as the California Toxics Rule
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`("CTR"), discussed further below, sets Water Quality Standards ("WQS") for 126 toxic priority
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`pollutants in California's rivers, lakes, enclosed bays, and estuaries. The CTR applies to Mad River,
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`and includes limits for several toxic metals, including lead, copper and zinc.
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 7 of 18
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`C.
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`California’s General Industrial Storm Water Permit
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`23.
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`Section 402 authorizes states with approved NPDES permit programs to regulate
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`industrial storm water discharges through individual permits issued to dischargers and/or through the
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`issuance of a single, statewide general permit applicable to all industrial storm water dischargers. 33
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`U.S.C. § 1342(b).
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`24.
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`Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of EPA has
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`authorized California’s State Board to issue NPDES permits including general NPDES permits in
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`California.
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`25.
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`The State Board elected to issue a statewide general permit for industrial
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`discharges. The State Board issued the General Permit on or about November 19, 1991, modified
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`the General Permit on or about September 17, 1992, and reissued the General Permit on April 17,
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`1997 and again on April 1, 2014 (effective July 1, 2015), pursuant to Section 402(p) of the Clean
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`Water Act, 33 U.S.C. § 1342(p).
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`26.
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`Facilities discharging, or having the potential to discharge, storm water associated
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`with industrial activity that have not obtained an individual NPDES permit must apply for coverage
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`under the State’s General Permit by filing a Notice of Intent (“NOI”). The General Permit requires
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`facilities to file their NOIs before the initiation of industrial operations.
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`27.
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`Once regulated by an NPDES permit, facilities must strictly comply with all of the
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`terms and conditions of that permit. A violation of the General Permit is a violation of the Act. See
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`General Permit, Section XXI.A.
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`28.
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`In order to discharge storm water lawfully in California, industrial dischargers must
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`comply with the terms of the General Permit or have obtained and complied with an individual
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`NPDES permit.
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`29.
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`The General Permit contains three primary and interrelated categories of
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`requirements: 1) discharge prohibitions; 2) Storm Water Pollution Prevention Plan (“SWPPP”)
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`requirements; and 3) monitoring and reporting requirements, including the requirement to prepare an
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`annual report.
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`30.
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`Discharge Prohibition III.B of the General Permit prohibits the direct or indirect
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 8 of 18
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`discharge of materials other than storm water (“non-storm water discharges”), which are not
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`otherwise regulated by an NPDES permit, to the waters of the United States. 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 as defined in section
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`13050 of the California Water Code. Receiving Water Limitation VI.A of the General Permit
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`prohibits storm water discharges that cause or contribute to an exceedance of any applicable water
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`quality standards in any affected receiving water. Receiving Water Limitation VI.B of the General
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`Permit prohibits storm water discharges to any surface or ground water that adversely impact human
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`health or the environment.
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`31.
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`Effluent Limitation V.A of the General Permit requires dischargers to reduce or
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`prevent pollutants in their storm water discharges through implementation of the Best Available
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`Technology Economically Achievable (“BAT”) for toxic and nonconventional pollutants and the
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`Best Conventional Pollutant Control Technology (“BCT”) for conventional pollutants.
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`32.
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`EPA has established Benchmark Levels as guidelines for determining whether a
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`facility discharging industrial storm water has implemented the requisite BAT and BCT standards.
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`65 Fed. Reg. 64746, 64767 (Oct. 30, 2000). The following benchmarks have been established for
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`pollutants discharged by Defendants: Total Suspended Solids – 100 mg/L; Oil & Grease – 15 mg/L;
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`Chemical Oxygen Demand – 120 mg/L; Iron – 1.00 mg/L; and Nitrate plus Nitrite Nitrogen – 0.68
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`mg/L.
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`33.
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`The Regional Board has established water quality standards for Mad River in the
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`Basin Plan.
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`34.
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`The Basin Plan includes a toxicity standard which states that “[a]ll waters shall be
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`maintained free of toxic substances in concentrations which are toxic to or which produce
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`detrimental physiological responses in, human, plant, animal, or aquatic life.” III-8.01, Basin Plan.
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`35.
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`The Basin Plan provides that “[w]aters shall not contain concentrations of chemical
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`constituents known to be deleterious to fish or wildlife.” III-3.00 Basin Plan.
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`36.
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`The Basin Plan provides that “[a]t a minimum, water designated for use as domestic
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`or municipal supply (MUN) shall not contain concentrations of chemical constituents in excess of
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`Injunctive Relief and Civil Penalties
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`Case 1:20-cv-06300-RMI Document 1 Filed 09/04/20 Page 9 of 18
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`the maximum contaminant levels (MCLs).” Id.
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`37.
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`EPA issued the CTR in 2000, establishing numeric receiving water limits for
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`certain toxic pollutants in California surface waters. 40 C.F.R. § 131.38 (2013). The CTR
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`establishes the following applicable numeric limit for freshwater surface waters: zinc – 0.12 mg/L
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`(maximum concentration), subject to water hardness.
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`38.
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`The General Permit requires dischargers to develop and implement a site-specific
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`SWPPP. General Permit, Section X.A. The SWPPP must include, among other elements: (1) the
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`facility name and contact information; (2) a site map; (3) a list of industrial materials; (4) a
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`description of potential pollution sources; (5) an assessment of potential pollutant sources; (6)
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`minimum BMPs; (7) advanced BMPs, if applicable; (8) a monitoring implementation plan; (9) an
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`annual comprehensive facility compliance evaluation; and (10) the date that the SWPPP was initially
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`prepared and the date of each SWPPP amendment, if applicable.
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`39.
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`Dischargers must revise their SWPPP whenever necessary and certify and submit
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`via the Regional Board’s Storm Water Multiple Application and Report Tracking System
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`(“SMARTS”) their SWPPP within 30 days whenever the SWPPP contains significant revisions(s);
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`and, certify and submit via SMARTS their SWPPP not more than once every three (3) months in the
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`reporting year for any non-significant revisions. General Permit, Section X.B.
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`40.
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`Dischargers must implement the minimum BMPs identified in Section X.H.1. of
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`the General Permit. In addition to the minimum BMPs identified in Section X.H.1, advanced BMPs
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`must be implemented if necessary to reduce or prevent discharges of pollutants in storm water
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`dischargers in a manner that reflects best industry practice. General Permit, Section X.H.2.
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`41.
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`Special Conditions Section XX.B of the General Permit require a discharger to
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`prepare and submit documentation to the Regional Board upon determination that storm water
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`discharges are in violation of Receiving Water Limitations, Section VI. The documentation must
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`describe changes the discharger will make to its current BMPs in order to prevent or reduce any
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`pollutant in its storm water discharges that is causing or contributing to an exceedance of water
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`quality standards. General Permit, Section XX.B.
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`42.
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`Section XV of the General Permit requires an annual evaluation of storm water
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`controls including the preparation of an evaluation report and implementation of any additional
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`measures in the SWPPP to respond to the monitoring results and other inspection activities within 90
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`days of the annual evaluation.
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`43.
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`The General Permit requires dischargers to eliminate all non-storm water
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`discharges to storm water conveyance systems other than those specifically set forth in Section IV of
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`the General Permit unless authorized by another NPDES permit. General Permit, Section III. B.
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`44.
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`The General Permit requires dischargers to implement a Monitoring
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`Implementation Plan. General Permit, Section X.I. As part of their monitoring plan, dischargers
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`must identify all storm water discharge locations. General Permit, Section X.I.2. Dischargers must
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`then conduct monthly visual observations of each drainage area, as well as visual observations
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`during discharge sampling events. General Permit, Section XI.A.1 and 2. Dischargers must also
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`collect and analyze storm water samples from two (2) storm events within the first half of each
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`reporting year (July 1 to December 31) and two (2) storm events during the second half of each
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`reporting year (January 1 to June 3). General Permit, Section XI.B. Section XI.B requires
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`dischargers to sample and analyze during the wet season for basic parameters such as pH, total
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`suspended solids (“TSS”) and oil and grease (“O&G”), certain industry-specific parameters, and any
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`other pollutants likely to be in the storm water discharged from the facility base on the pollutant
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`source assessment. General Permit, Section XI.B.6.
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`45.
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`Dischargers must submit all sampling and analytical results via SMARTS within
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`thirty (30) days of obtaining all results for each sampling event. Section XI.B.11. Sampling results
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`must be compared to the two types of Numeric Action Level (“NAL”) values set forth at Table 2 of
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`the General Permit. General Permit, Section XII. An annual NAL exceedance occurs when the
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`average of the results for a parameter for all samples taken within a reporting year exceeds the
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`annual NAL value. General Permit, Section XII.A.1. An instantaneous NAL exceedance occurs
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`when two (2) or more results from samples taken for any single parameter within a reporting year
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`exceed the instantaneous maximum NAL value. General Permit, Section XII.A.2. If a discharger
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`has an NAL exceedance during a reporting year, the discharger’s status changes to Level 1 status
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`under the General Permit and the discharger must comply with the requirements set forth for Level 1
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`status operators set forth at Section XII.C. The discharger’s status shall change to Level 2 status if
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`sampling results indicated an NAL exceedance for a parameter while the discharger is in Level 1
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`status. If a discharger becomes Level 2 status it must comply with the obligations set forth at
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`Section XII.D of the General Permit.
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`46.
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`Dischargers must submit an Annual Report no later than July 15th following each
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`reporting year certifying compliance with the Permit and/or an explanation for any non-compliance.
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`General Permit, Section XVI.
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`V.
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`STATEMENT OF FACTS
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`47.
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`Industrial activities occur throughout the Facility. CATs’ investigation into the
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`industrial activities at Defendant’s approximately 24-acre facility indicates that the Facility produces
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`ready mixed concrete; stockpiles, loads and transports aggregate products; uses, maintains and parks
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`heavy equipment; rinses and washes concrete delivery vehicles; transfers bulk fuel; fuels vehicles
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`and heavy equipment; transfers and uses mechanical lubricant products; stockpiles and loads
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`concrete rubble; produces precast concrete products; and stores and uses concrete admixture
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`products.
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`48.
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`Most of these activities occur outside in areas that are exposed to storm water and
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`storm flows due to the lack of overhead coverage, functional berms and other storm water controls.
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`Plaintiff is informed and believes that Defendants’ storm water controls, to the extent any exist, fail
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`to achieve BAT and BCT standards.
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`49.
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`The Facility falls under Standard Industrial Classification (“SIC”) Codes 1442 -
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`(“Construction Sand and Gravel”); 3273 – (“Ready-Mixed Concrete”); and, 3272 – (“Concrete
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`Products, Except Block and Brick”).
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`50.
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`The management practices at the Facility are wholly inadequate to prevent the
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`sources of contamination described above from causing the discharge of pollutants to waters of the
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`United States and fail to meet BAT and BCT standards. The Facility lacks essential structural
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`controls such as grading, berming and roofing to prevent rainfall and storm water flows from coming
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`into contact with these and other sources of contaminants, thereby allowing storm water to flow over
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`and across these materials and become contaminated prior to leaving the Facility. In addition, the
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`Injunctive Relief and Civil Penalties
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`Facility lacks structural controls to prevent the discharge of water once contaminated. The Facility
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`also lacks an adequate filtration system to treat water once it is contaminated.
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`51.
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`During rain events, storm water laden with pollutants discharges from the Facility’s
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`storm water conveyances into the Mad River, which flows to the Pacific Ocean near McKinleyville,
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`California.
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`52.
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`Information available to Plaintiff indicates that as a result of these practices, storm
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`water containing pollutants harmful to fish, plant and bird life, and human health are being
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`discharged from the Facility directly to these waters during significant rain events.
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`53.
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`Information available to Plaintiff indicates that Defendants have not fulfilled the
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`requirements set forth in the General Permit for discharges from the Facility due to the continued
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`discharge of significantly contaminated storm water.
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`54.
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`Plaintiff is informed and believes, and thereupon alleges, that Defendants have failed
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`to develop and implement an adequate Storm Water Pollution Prevention Plan at the Facility.
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`55.
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`Information available to Plaintiff indicates the continued existence of unlawful storm
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`water discharges at the Facility.
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`56.
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`Plaintiff is informed and believes, and thereupon alleges, that Defendants have failed
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`to develop and implement adequate storm water monitoring, reporting and sampling programs at the
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`Facility. Plaintiff is informed and believes, and thereupon alleges, that Defendants have not sampled
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`with adequate frequency, have not conducted visual monitoring, and have not analyzed the storm
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`water samples collected at the Facility for the required pollutant parameters.
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`57.
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`Plaintiff is informed and believes, and thereupon alleges, that all of the violations
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`alleged in this Complaint are ongoing and continuing.
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`VI. CLAIMS FOR RELIEF
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`FIRST CLAIM FOR RELIEF
`Discharges of Contaminated Storm Water From The Facility
`in Violation of Permit Conditions and the Act
`(Violations of 33 U.S.C. §§ 1311(a), 1342)
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`64.
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`Plaintiff incorporates the allegations contained in the above paragraphs as though
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`fully set forth herein.
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`Complaint For Declaratory and
`Injunctive Relief and Civil Penalties
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`65.
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`Receiving Water Limitations VI.A and VI.B of the General Permit require that storm
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`water discharges and authorized non-storm water discharges shall not adversely impact human health
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`or the environment, and shall not cause or contribute to a violation of any water quality standards in
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`any affected receiving water. Discharge Prohibition III.C of the General Permit requires that storm
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`water discharges and authorized non-storm water discharges shall not cause or threaten to cause
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`pollution, contamination, or nuisance.
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`66.
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`Plaintiff is informed and believes, and thereupon alleges, that since at least July 6,
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`20151, Defendants have been discharging polluted storm water from the Facility into the Mad River
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`and ultimately the Pacific Ocean, in violation of the General Permit.
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`67.
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`During every significant rain event, storm water flowing over and through materials
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`at the Facility becomes contaminated with pollutants, flowing untreated from the Facility into the Mad
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`River.
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`68.
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`Plaintiff is informed and believes, and thereupon alleges, that these discharges of
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`contaminated storm water are causing pollution and contamination of waters of the United States in
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`violation of Discharge Prohibition III.C of the General Permit.
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`69.
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`Plaintiff is informed and believes, and thereupon allege, that these discharges of
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`contaminated storm water are adversely affecting human he