throbber
Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 1 of 49
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`Daniel Cooper (SBN 153576)
`daniel@sycamore.law
`Jesse Swanhuyser (SBN 282186)
`jesse@sycamore.law
`SYCAMORE LAW, INC.
`1004 O’Reilly Avenue, Ste. 100
`San Francisco, California 94129
`Tel: (415) 360-2962
`
`Nicole C. Sasaki (SBN 298736)
`nicole@baykeeper.org
`SAN FRANCISCO BAYKEEPER
`1736 Franklin Street, Ste. 800
`Oakland, California 94612
`Tel: 510-735-9700
`Fax: 510-735-9160
`
`Attorneys for Plaintiff
`SAN FRANCISCO BAYKEEPER
`
`
` Plaintiff,
`
`vs.
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO BAYKEEPER, a
`Case No. _____________________
`public benefit non-profit corporation,
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`
`
`COMPLAINT FOR DECLARATORY
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`AND INJUNCTIVE RELIEF AND
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`CIVIL PENALTIES
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`GLOBAL PLATING, INC., a
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`California corporation,
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`Federal Water Pollution Control Act,
` Defendant.
`33 U.S.C. §§ 1251 to 1387
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 2 of 49
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`Plaintiff San Francisco Baykeeper (“Baykeeper” or “Plaintiff”), by and
`through its counsel, alleges as follows:
`I.
`INTRODUCTION
`1.
`This is a third-party enforcement action, brought pursuant to section
`505(a)(1) of the Federal Water Pollution Control Act (the “Clean Water Act” or
`“Act”), 33 U.S.C. § 1365(a)(1), to address violations of the Act by Defendant Global
`Plating, Inc. (“Global Plating” or “Defendant”) arising out of Defendant’s industrial
`metal plating operations at 44620 South Grimmer Boulevard in Fremont, California
`(94538) (“Facility”).
`2.
`Since on or before May 7, 2016, Defendant has been discharging and
`continues to discharge polluted storm water from the Facility to Coyote Creek and
`South San Francisco Bay (hereinafter “Receiving Waters”), in violation of the express
`terms and conditions of Sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§
`1311, 1342.
`3.
`Since on or before May 7, 2016, Defendant has also violated the General
`Industrial Storm Water Permit issued by the State of California, NPDES General
`Permit No. CAS000001 [State Water Resources Control Board] Water Quality Order
`No. 92-12-DWQ, as amended by Order No. 97-03-DWQ and Order No. 2014-0057-
`DWQ; as amended on November 6, 2018 (“General Permit”).
`4.
`Defendant’s ongoing and continuous failures to comply with the General
`Permit’s technology-based and water quality-based standards, planning and
`monitoring requirements, and other procedural and substantive requirements create
`liability under the Act. 33 U.S.C. §§ 1342, 1365.
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`COMPLAINT
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`5.
`The Clean Water Act is a strict liability statute. Defendant’s failure to
`properly enroll in the General Permit, as well as each violation of any term or
`condition in the General Permit, are independent violations of the Act. 33 U.S.C. §§
`1342, 1365.
`6.
`Global Plating is liable for ongoing and continuous violations of the Act
`and General Permit at the Facility since May 7, 2016. 33 U.S.C. §§ 1311(a), 1319(d);
`40 C.F.R. § 19.4.
`7.
`Baykeeper seeks a declaratory judgment, injunctive relief, the imposition
`of civil penalties, and the award of costs, including attorney and expert witness fees,
`for Defendant’s repeated and ongoing violations of the Act and General Permit.
`II.
`JURISDICTION AND VENUE
`8.
`This Court has subject matter jurisdiction over Plaintiff and Defendant
`(collectively the “Parties”) and over the subject matter of this action pursuant to
`section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A), 28 U.S.C. § 1331 (an
`action arising under the laws of the United States) and 28 U.S.C. § 2201 (declaratory
`relief).
`9.
`The relief requested is authorized pursuant to 28 U.S.C. §§ 2201–02
`(power to issue declaratory relief in case of actual controversy and further necessary
`relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive relief
`and civil penalties); and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
`10. Prospective citizen plaintiffs must, as a jurisdictional pre-requisite to
`enforcing the Act in Federal District Court, prepare a Notice of Violation and Intent to
`File Suit letter (“Notice Letter”) containing sufficient information to allow the
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`COMPLAINT
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`recipient to identify the standard, limitation or order alleged to be violated, and the
`activity alleged to constitute a violation. 33 U.S.C. § 1365(a); 40 C.F.R. § 135.3(a).
`11. The Notice Letter must be sent via certified mail at least sixty (60) days
`prior to filing a complaint (“Notice Period”) to the owner of the facility alleged to be
`in violation of the Act, and where the alleged violator is a corporation, to the
`corporation’s registered agent for service of process by first class mail. 33 U.S.C. §
`1365(b); 40 C.F.R. § 135.2(a)(1).
`12. A copy of the Notice Letter must be mailed to the Administrator of the
`U.S. Environmental Protection Agency (“U.S. EPA”), the Regional Administrator of
`the U.S. EPA for the region in which a violation is alleged to have occurred, and the
`chief administrative officer for the water pollution control agency for the State in
`which the violation is alleged to have occurred. 33 U.S.C. § 1365(b); 40 C.F.R. §
`135.2(b)(1)(A).
`13. On May 7, 2021, Plaintiff sent a Notice Letter describing ongoing
`violations of the Act and General Permit at the Facility, and provided notice of
`Plaintiff’s intention to file suit against Defendant at the expiration of the Notice
`Period.
`14. The Notice Letter was sent by certified mail to: (a) Douglas Brother,
`CEO and Agent for Service of Process (certified mail no. 7020 1290 0000 2043
`3841); (b) Bobbi Burns, the Facility’s General Manager (certified mail no. 7020 1290
`0000 2043 3858); (c) Michael Regan, Administrator of the U.S. EPA (certified mail
`no. 7020 1290 0000 2043 3865); (d) Merrick Garland, U.S. Attorney General/U.S.
`Department of Justice (certified mail no. 7020 1290 0000 2043 4466); (d) Eileen
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`Sobeck, Executive Director at State Water Resources Control Board (certified mail
`no. 7020 1290 0000 2043 4480); (e) Deborah Jordan, Acting Regional Administrator
`at the U.S. EPA Region IX office (certified mail no. 7020 1290 0000 2043 3834); and
`(f) Michael Montgomery, Executive Director at the San Francisco Bay Regional
`Water Quality Control Board (certified mail no. 7020 1290 0000 2043 3827).
`15. More than sixty (60) days have passed since the Notice Letter was served
`on Global Plating, and the State and Federal agencies.
`16. Plaintiff is informed and believes, and thereon alleges, that neither the
`U.S. EPA nor the State of California has commenced or is diligently prosecuting a
`court action to redress violations alleged in the Notice Letter and this complaint.
`17. This action’s claim for civil penalties is not barred by any prior
`administrative penalty under section 309(g) of the Act. 33 U.S.C. § 1319(g).
`18. Venue is proper in the Northern District of California pursuant to section
`505(c)(1) of the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is
`located within this judicial district.
`III.
`INTRADISTRICT ASSIGNMENT
`19.
`Intradistrict assignment of this matter to the San Francisco or Oakland
`Division of the Court is appropriate pursuant to Civil Local Rule 3-2(d). The events
`or omissions which give rise to Baykeeper’s claims occurred in Alameda County,
`which is under the jurisdiction of the San Francisco or Oakland Division of the
`Northern District of California.
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`COMPLAINT
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`IV. THE PARTIES
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`A.
`San Francisco Baykeeper
`20. Baykeeper is a non-profit public benefit corporation organized under the
`laws of California with its main office at 1736 Franklin Street, Suite 800 in Oakland,
`California (94612).
`21. Baykeeper’s mission is to defend San Francisco Bay from the biggest
`threats, and hold polluters accountable to create healthier communities and help
`wildlife thrive.
`22. Baykeeper is dedicated to protecting the water quality of San Francisco
`Bay for the benefit of its ecosystems and communities.
`23. To further these goals, Baykeeper actively seeks federal and state agency
`implementation of the Act, and, where necessary, directly initiates enforcement
`actions on behalf of itself and its members
`24. Baykeeper has approximately 3,500 members who use and enjoy San
`Francisco Bay and connected surface waters for various recreational, educational, and
`spiritual purposes.
`25. Baykeeper has members who reside in Alameda County, and near the
`Receiving Waters.
`26. The Facility’s unlawful discharge of pollutants into the Receiving Waters
`impairs the interests of Baykeeper’s members who use and enjoy the Receiving
`Waters by degrading water quality, and by posing risks to human health and aquatic
`life.
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`COMPLAINT
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`27. The interests of Baykeeper and its members, therefore, have been, are
`being, and will continue to be adversely affected by the Facility’s failure to comply
`with the Act and General Permit.
`28. Baykeeper brings this action on behalf of its members, many of whom
`regularly enjoy San Francisco Bay and/or seek to protect its waters and the wildlife
`inhabiting San Francisco Bay and adjacent areas.
`29. Defendant’s continuing commission of the acts and omissions alleged
`herein will irreparably harm Plaintiff and its members, for which harm they have no
`plain, speedy, or adequate remedy at law.
`30. Neither the claims brought by Plaintiff nor the relief Plaintiff requests
`requires the participation of individual members.
`31. The relief sought herein will redress the harms to Plaintiff caused by
`Defendant’s activities.
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`B. Global Plating, Inc.
`32. Global Plating first filed articles of incorporation with California’s
`Secretary of State on July 10, 1981.
`33. Douglas Brothers is the Facility owner.
`34. Bobbi Burns is the Facility operator.
`35. The Facility is an electroplating operation.
`36. Global Plating is engaged in manufacturing activity classified under
`Standard Industrial Classification (“SIC”) code 3471 (Electroplating, Plating,
`Polishing, Anodizing, and Coloring).
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`COMPLAINT
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`37. Global Plating’s primary services are cleaning, polishing, anodizing and
`electroplating metal parts.
`38. The Facility conducts, among others, the following industrial activities:
`masking, barrel plating, electropolishing, bright nickel electroplating, copper
`electroplating, chrome electroplating, chemical stripping, chemical cleaning, and
`passivation.
`39. Pollutant sources at the Facility include all industrial activities that take
`place wholly or partially outdoors (e.g., operating industrial machinery,
`shipping/receiving industrial products), as well as the emission of particulate matter
`resulting from industrial processes.
`40.
`Industrial pollutants with the potential to impact the quality of storm water
`discharged from the Facility include, but are not limited to, agents affecting pH, total
`suspended solids, specific conductance-altering agents, total organic carbon, aluminum,
`chromium, copper, nickel, silver, and zinc.
`V.
`REGULATORY BACKGROUND
`A. The Problem of Storm Water Pollution
`41. With every significant rainfall event, millions of gallons of polluted
`storm water originating from industrial operations, like those conducted by Defendant,
`flow into the San Francisco Bay Area’s storm drains, local waterways, wetlands and
`estuaries, San Francisco Bay, and the Pacific Ocean.
`42. The consensus among agencies and water quality specialists is that storm
`water pollution accounts for more than half of the total pollution entering local creeks,
`rivers, and coastal waters each year.
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`COMPLAINT
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`43. The San Francisco Bay and connected surface waters are ecologically
`sensitive areas, and are essential habitat for numerous cetacean, pinniped, fish, bird,
`macro-invertebrate and invertebrate species.
`44. The San Francisco Bay and connected surface waters provide numerous
`recreational activities, including swimming, fishing, surfing, SCUBA diving, and
`kayaking.
`45. The San Francisco Bay and connected surface waters also provide non-
`contact recreational and aesthetic opportunities, such as biking and wildlife
`observation, as well as opportunities for education and research.
`46.
`Industrial facilities, like Defendant’s, that discharge storm water
`contaminated with sediment, heavy metals, and other pollutants contribute to the
`impairment of downstream waters and aquatic dependent wildlife, expose people to
`toxins, and harm the special social and economic benefits San Francisco Bay Area
`waters have for locals and visitors alike.
`47. Controlling polluted storm water and non-storm water discharges is
`essential to protecting northern California’s surface and coastal waters.
`48. As the Act requires, discharges of contaminated storm water can and
`must be controlled for local ecosystems to regain their health, and to protect public
`health.
`B.
`The Clean Water Act
`49. The Act is the primary Federal statute protecting surface waters in the
`United States.
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`COMPLAINT
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`50. The Act aims to prevent, reduce, and eliminate pollution in order to
`“restore and maintain the chemical, physical, and biological integrity of the Nation's
`waters.” 33 U.S.C. § 1251(a).
`51.
`In order to accomplish that goal, Section 301(a), 33 U.S.C. § 1311,
`prohibits the discharge of any pollutant into waters of the United States unless the
`discharger complies with other enumerated sections of the Act, including the
`prohibition on discharges not authorized by, or in violation of, the terms of a National
`Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to section
`402, 33 U.S.C. § 1342(b). See also 40 C.F.R. § 122.26(c)(1) and General Permit, §
`I.A.12.
`52. The Act requires all point source discharges of pollutants to waters of the
`United States be regulated by an NPDES permit. 33 U.S.C. § 1311(a); see 40 C.F.R. §
`122.26(c)(1).
`53. Section 402(p) of the Act establishes the framework regulating industrial
`storm water discharges under federal, and authorized state, NPDES permit programs.
`33 U.S.C. § 1342(p).
`54. Section 402(b) of the Act allows each state to administer an NPDES
`permit program for regulating the discharge of pollutants, including discharges of
`polluted storm water, approved by the U.S. EPA. 33 U.S.C. § 1342(b).
`55. States with approved NPDES permit programs are authorized by section
`402(b) to regulate industrial storm water discharges through the issuance of a
`statewide general NPDES permit applicable to all industrial dischargers, and/or
`through individual NPDES permits issued to specific dischargers. See Id.
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`COMPLAINT
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`56. Section 505(a)(1) of the Act provides for citizen enforcement against any
`“person” who is alleged to be in violation of an “effluent standard or limitation . . . or
`an order issued by the Administrator or a State with respect to such a standard or
`limitation.” 33 U.S.C. §§ 1365(a)(1), 1365(f).
`57. A “person” under the Act includes individuals, corporations,
`partnerships, associations, States, municipalities, commissions, and political
`subdivisions of a State, or any interstate body. 33 U.S.C. § 1362(5).
`58.
`“Effluent standard or limitation” is defined to include: (a) the prohibition
`in section 301(a) against unpermitted discharges; and (b) any condition of an NPDES
`permit such as the General Permit. 33 U.S.C. § 1365(f); Citizens for a Better Env't v.
`Union Oil Co., 83 F.3d 1111, 1114 (9th Cir. 1996) (“Private citizens may bring suit
`pursuant to 33 U.S.C. § 1365 to enforce effluent standards or limitations, which are
`defined as including violations of 33 U.S.C. § 1311(a). 33 U.S.C. § 1365(f)(1).”).
`59. Pursuant to Section 309(d) of the Act, 33 U.S.C. § 1319(d), and the
`Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4, each separate
`statutory violation subjects the violator to penalties of up to $56,460 per day per
`violation for violations occurring after November 2, 2015, where penalties are
`assessed on or after December 23, 2020.
`60. Section 505(d) of the Act allows a prevailing or substantially prevailing
`party to recover litigation costs, including fees for attorneys, experts, and consultants
`where it finds that such an award is appropriate. 33 U.S.C. § 1365(d).
`/ / /
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`C. General Permit Enrollment and Compliance
`61. The State Water Resources Control Board (“State Board”) is charged
`with regulating pollutants to protect California’s water resources. See Cal. Water
`Code § 13001.
`62. California is authorized by U.S. EPA to issue NPDES permits for storm
`water discharges associated with industrial activities.
`63. The relevant NPDES permit in this action is the General Permit, which is
`issued by the State Board, and is implemented and enforced by Regional Water
`Quality Control Boards, including the San Francisco Bay Regional Water Quality
`Control Board (“Regional Board”). See 33 U.S.C. §§ 1311(a), 1342, 1362(6), 1362(7),
`1362(12).
`64.
`In order to lawfully discharge pollutants to waters of the United States in
`California, all persons who discharge storm water associated with industrial activity
`must enroll in, and comply with all applicable terms and conditions of, the General
`Permit. See 33 U.S.C. §§ 1311(a), 1342; 40 C.F.R. § 122.26(c)(1).
`65. SIC Code 3471 facilities must enroll in and obtain coverage under the
`General Permit in order to lawfully discharge storm water to waters of the United
`States. See General Permit, Attachment A, ¶ 2.
`66. The General Permit provides for at least two types of enrollment status—
`“NOI status” and “NEC status.”
`67. To secure “NOI status,” a discharger must file a Notice of Intent to
`Comply (“NOI”) with the State Board prior to discharge.
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`COMPLAINT
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`68. The NOI serves as certification to the State of California that the
`industrial facility owner(s) and agent(s) have read the General Permit and will comply
`with all applicable terms and conditions. See 40 C.F.R. § 122.26(A)(1)(ii); General
`Permit, § I.A.12.
`69. Generally, the General Permit requires permittees with NOI status to
`consistently engage in four independent, but mutual-reinforcing actions: 1) executive
`planning and facility-specific pollution control design; 2) on-the-ground
`implementation of pollution control technologies; 3) monitoring storm water
`discharges for evidence of pollution; and 4) annual evaluation of the effectiveness of
`pollution control strategies, including corrective action where necessary. Collectively,
`these steps constitute an iterative, self-evaluation process.
`70. Specifically, facilities with NOI coverage are required to comply with
`each of the requirements contained in the General Permit described below at sections
`C (Effluent Limitations), D (Receiving Water Limitations), E (Storm Water Pollution
`Prevention Plan requirements) and F (Monitoring and Reporting requirements).
`71. As an alternative to enrolling in the General Permit under NOI status,
`owners/operators can file for no exposure certification, “NEC status.”
`72. To obtain NEC status, owners/operators certify (and re-certify annually)
`that there is no exposure of industrial activities to storm water at their facility. General
`Permit § XVII.A.1.
`73. Facilities with NEC status nominally participate in the General Permit
`program, but are not required to demonstrate compliance with technology-based
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`pollution controls or water quality-based pollution limits; or engage in the iterative
`permit compliance process described in paragraph 69.
`74. NEC enrollment is intended to reduce the regulatory burden on the small
`subset of facilities where industrial activities are entirely indoors, and the only items
`exposed to precipitation are roofs, parking lots, vegetated areas, and other non-
`industrial areas or activities, i.e., the facility poses “very low risk or [] no risk [of]
`storm water contamination.” 64 Fed. Reg. 68782 (Dec. 8, 1999).
`75. Compliance with the General Permit constitutes compliance with the Act
`for purposes of storm water discharges. 33 U.S.C. §§ 1311(b)(2)(A), 1311(b)(2)(E).
`Conversely, “[General] Permit noncompliance constitutes a violation of the Clean
`Water Act and the [California] Water Code.” General Permit, § XXI.A.
`76. Discharges of storm water containing pollutants to waters of the United
`States, therefore, are violations of the Act where they are: (a) unpermitted; or (b)
`completed without complying with applicable terms and conditions of a valid NPDES
`permit. See General Permit, § I.8 (“This General Permit authorizes discharges of
`industrial storm water to waters of the United States, so long as those discharges
`comply with all requirements, provisions, limitations, and prohibitions in this General
`Permit.”)
`D. The General Permit’s Technology-Based Standards (a.k.a. Effluent
`Limitations)
`
`77. The Act and General Permit require dischargers with NOI status to
`comply with statutorily established technology-based standards. 33 U.S.C. § 1311(b);
`General Permit, § V.
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 15 of 49
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`78. The General Permit incorporates statutorily defined technology-based
`pollution standards as “Effluent Limitations.”
`79. The General Permit’s technology-based Effluent Limitations set the floor
`for pollution reduction, i.e., the minimum level of pollution reductions, which must be
`achieved by all permittees regardless of the quality of water receiving storm water
`discharges.
`80. The General Permit’s technology-based Effluent Limitations require
`permittee facilities to reduce or prevent pollutants in storm water discharges through
`the implementation of Best Conventional Pollutant Control Technology (“BCT”) for
`conventional pollutants, and Best Available Technology Economically Achievable
`(“BAT”) for toxic or non-conventional pollutants (collectively “BAT/BCT”). 40
`C.F.R. §§ 401.15-401.16; General Permit, § V.A.
`81. Conventional pollutants are listed at 40 C.F.R. § 401.16 and include
`biochemical oxygen demand, total suspended solids (“TSS”), oil and grease (“O&G”),
`and pH, among others.
`82. Toxic pollutants are listed at 40 C.F.R. § 401.15 and include, among
`others, chromium, copper, nickel, and zinc.
`83. Compliance with the BAT/BCT standard requires permittee facilities to
`design and implement effective, site-specific pollution control strategies called Best
`Management Practices (“BMPs”) that prevent or reduce storm water discharges in a
`manner that reflects best industry practice. General Permit, § V.A.
`84. BMPs are schedules of activities, prohibitions of practices, maintenance
`procedures, and other management practices to prevent or reduce the pollution of
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 16 of 49
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`waters of the United States. BMPs include treatment systems, operation procedures,
`and practices to control and abate the discharge of pollutants from the Facility. See id.
`85. Permittees must design BMPs that meet the BAT/BCT standard for all
`sources of toxic pollutants; and thereafter implement and maintain, as well as evaluate
`and improve, such BMPs to ensure pollutant concentrations in any storm water
`discharge are controlled consistent with the BAT/BCT standard. See id.
`86. The 2015 and 2021 versions of U.S. EPA’s NPDES Storm Water Multi-
`Sector General Permit for Industrial Activities include numeric benchmark standards
`for pollutant concentrations in storm water discharges (“EPA Benchmarks”). See
`United States Environmental Protection Agency NPDES Multi-Sector General Permit
`for Storm Water Discharges Associated with Industrial Activity, effective June 4,
`2015, reissued and modified effective March 1, 2021 (“Multi-Sector General
`Permit”).
`87. EPA Benchmarks are objective numeric targets for evaluating whether
`the BMPs designed and implemented at a facility achieve the statutory BAT/BCT
`standard. Santa Monica Baykeeper v. Kramer Metals, Inc. (“Kramer”), 619 F. Supp.
`2nd 914, 921 (C.D. Cal. 2009); see also 86 Fed. Reg. 10269 (Feb. 19, 2021); 80 Fed.
`Reg. 34403 (June 16, 2015); 73 Fed. Reg. 56572, 56574 (Sept. 29, 2008); 65 Fed.
`Reg. 64746, 64766-67 (Oct. 30, 2000).
`88. The General Permit’s Numeric Action Levels (“NALs”), which are
`derived from EPA Benchmark values published in the 2008 Multi-Sector General
`Permit, are objective numeric standards relevant to evaluating whether BMPs
`designed and implemented at a facility achieve the statutory BAT/BCT standard.
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 17 of 49
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`89. The discharge of storm water containing pollutant concentrations
`exceeding EPA Benchmark targets and/or NALs evidence a failure to develop and
`implement pollution control strategies that achieve pollutant reductions consistent
`with the BAT/BCT standard. Kramer, 619 F. Supp. 2nd at 921-25; see also 80 Fed.
`Reg. 34403, 34405 (June 16, 2015).
`90. TABLE 1 and TABLE 2 contain EPA Benchmark standards relevant to
`assessing the Facility’s compliance with the BAT/BCT standard.
`TABLE 1
`2015 U.S. EPA BENCHMARKS APPLICABLE TO THE FACILITY’S DISCHARGES
`Pollutant
`Freshwater Benchmark
`Saltwater Benchmark
`aluminum
`0.75 mg/L*
`0.75 mg/L
`copper
`0.0332 mg/L
`0.0048 mg/L
`iron
`1.0 mg/L
`1.0 mg/L
`zinc
`0.26 mg/L
`0.09 mg/L
`* mg/L = milligrams per liter
`
`TABLE 2
`2021 U.S. EPA BENCHMARKS APPLICABLE TO THE FACILITY’S DISCHARGES
`Pollutant
`Freshwater Benchmark
`Saltwater Benchmark
`aluminum
`1.1 mg/L
`1.1 mg/L
`copper
`0.00519 mg/L
`0.0048 mg/L
`nickel
`0.47 mg/L
`0.074 mg/L
`zinc
`0.120 mg/L
`0.09 mg/L
`
`
`
`91. TABLE 3 contains NALs relevant to assessing the Facility’s compliance
`with the BAT/BCT standards.
`
`TABLE 3
`NALs APPLICABLE TO THE FACILITY’S DISCHARGES
`Pollutant
`NAL
`aluminum
`0.75 mg/L
`copper
`0.0332 mg/L
`iron
`1.0 mg/L
`zinc
`0.26 mg/L
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 18 of 49
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`92. Facility owners/operators must perform visual observations (and
`maintain records) pursuant to the General Permit, which are relevant to assessing a
`permittee’s compliance with the BAT/BCT standards.
`93. Objective assessments of whether BMPs described in a SWPPP and/or
`implemented at a facility are consistent with industry best practices are relevant to
`assessing a permittee’s compliance with the BAT/BCT standards.
`E.
`The General Permit’s Receiving Water Limitations
`
`94.
`In addition to the technology-based Effluent Limitations, the General
`Permit requires that permittees with NOI status meet “any more stringent [water
`quality-based limitations] necessary for receiving waters to meet applicable water
`quality standards.” General Permit, § I.D.31.
`95. The General Permit contains water quality-based standards titled
`Receiving Water Limitations.
`96. The General Permit’s first Receiving Water Limitation prohibits
`discharges that cause or contribute to an exceedance of any applicable water quality
`standard. General Permit, § VI.A.
`97. The General Permit’s second Receiving Water Limitation prohibits
`discharges that adversely affect human health or the environment. General Permit, §
`VI.B.
`
`98. The General Permit’s third Receiving Water Limitation prohibits
`discharges that contain pollutants in quantities that threaten to cause pollution or a
`public nuisance. General Permit, § VI.C.
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 19 of 49
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`99. Receiving Water Limitations are typically more stringent than the
`technology-based standards where a facility’s receiving waters are impaired by one or
`more pollutant. 33 U.S.C. § 1311(b)(1)(C).
`100. The General Permit’s Receiving Water Limitations are intended to
`protect the beneficial uses of surface waters to which a facility’s storm water is
`discharged. General Permit, § VI.A.
`101. The San Francisco Bay Basin (Region 2) Water Quality Control Plan
`(“Basin Plan”) designates Beneficial Uses for the Receiving Waters—Coyote Creek
`and South San Francisco Bay.
`102. The Basin Plan identifies potential and existing Beneficial Uses of the
`Receiving Waters, which include, but are not limited to: commercial and sport fishing,
`estuarine habitat, fish migration, navigation, preservation of rare and endangered
`species, water contact and non-contact recreation, shellfish harvesting, fish spawning,
`and wildlife habitat.
`103. The Receiving Waters are important community resources. Although
`pollution and habitat destruction have drastically altered the natural ecosystem, the
`Receiving Waters continue to serve vital social, environmental, and economic
`functions.
`104. Coyote Creek is the predominant drainage in the eastern portions of San
`Jose and Fremont, and is an important ecological resource in the South Bay.
`105. Historically, Coyote Creek supported numerous fish populations,
`including steelhead, Coho salmon, and Chinook salmon.
`
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`COMPLAINT
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`Case 3:21-cv-05412-SK Document 1 Filed 07/14/21 Page 20 of 49
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`106. Steelhead and Chinook salmon still use Coyote Creek for spawning and
`early development life stages.
`107. Coyote Creek is also important habitat for numerous aquatic and riparian
`plants and animals in the region.
`108. From Coyote Creek, storm water and comingled pollutants from the
`Facility enter South San Francisco Bay
`109. According to the Basin Plan, “South San Francisco Bay south of the
`Dumbarton Bridge is a unique, water-quality-limited, hydrodynamic and biological
`environment that merits continued special attention by the Water Board. Controlling
`urban and upland runoff sources is critical to the success of maintaining water quality
`in this portion of the Bay.

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