throbber
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`Eric J. Buescher (Bar No. 271323)
`eric@baykeeper.org
`M. Benjamin Eisenberg (Bar No. 270893)
`ben@baykeeper.org
`SAN FRANCISCO BAYKEEPER
`1736 Franklin Street, Suite 800, Oakland, CA
`Phone: (510) 735-9700
`
`Robert S. Perlmutter (Bar No. 183333)
`perlmutter@smwlaw.com
`SHUTE, MIHALY & WEINBERGER LLP
`396 Hayes Street, San Francisco, CA 94102
`Phone: (415) 552-7272
`
`Attorneys for Plaintiff
`SAN FRANCISCO BAYKEEPER
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`Civil Case No.:
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
`
`1. Clean Water Act – Illegal Discharge of
`Pollutants
`2. Clean Water Act -- Failure to apply for
`NPDES Permit
`3. Clean Water Act – Failure to comply with
`NPDES Permit
`4. Clean Water Act – Illegal Storm Water
`Discharge
`5. Clean Water Act – Storm Water
`Discharges without Complying with
`Technology Based Effluent Limitations
`6. Clean Water Act – Discharges of Storm Wa
`in Violation of Receiving Water Limitations
`7. Clean Water Act – Failure to Have a Valid
`Storm Water Pollution Prevention Plan
`8. Clean Water Act – Failure to Conduct
`Monitoring and Reporting
`9. Clean Water Act – Failure to Perform
`Annual Comprehensive Review of Storm
`Water Discharges
`10. Unfair Competition Law – Unlawful
`Conduct under Bus. & Prof. Code § 17200
`
`
`SAN FRANCISCO BAYKEEPER, a
`California non-profit corporation,
`
`
`
`
`
`AMPORTS, INC., a Delaware Corporation;
`APS WEST COAST, INC., a Delaware
`Corporation; BENICIA PORT TERMINAL
`COMPANY, a Delaware Corporation; and
`VALERO REFINING COMPANY –
`CALIFORNIA, a Delaware Corporation
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
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`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION .............................................................................................................................. 5
`
`II.
`
`JURISDICTION AND VENUE ......................................................................................................... 7
`
`III. PARTIES ............................................................................................................................................ 8
`
`A. Plaintiff San Francisco Baykeeper .................................................................................................. 8
`
`B. Defendants .................................................................................................................................... 10
`1. The Amports Entities ................................................................................................................ 10
`2. Valero ............................................................................................................................................ 12
`
`IV. LEGAL AND REGULATORY BACKGROUND .......................................................................... 12
`
`A. California Law Prohibits the Deposition and Potential Deposition of Any Petroleum Substance to
`California’s Waters ............................................................................................................................... 12
`
`B. The Clean Water Act Prohibits Discharges of Pollutants like Petcoke without a Valid Permit ... 13
`
`C. Storm Water Pollution Causes Significant Harm ......................................................................... 15
`
`D. California’s General Permit .......................................................................................................... 15
`1. Technology-Based Effluent Limitations ..................................................................................... 17
`2. Receiving Water Limitations ..................................................................................................... 19
`3. The Storm Water Pollution Prevention Plan .............................................................................. 21
`4. The Monitoring Implementation Plan ........................................................................................ 22
`5. The Annual Comprehensive Facility Compliance Evaluation ................................................... 24
`
`V. FACTUAL ALLEGATIONS ........................................................................................................... 24
`
`A. The Facility ................................................................................................................................... 24
`
`B. The Petcoke Operation at the Facility Causes Direct Discharges of Pollutants into the Carquinez
`Strait ...................................................................................................................................................... 25
`
`C. Defendants Discharge Petcoke Laden Stormwater Associated with Industrial Activities ........... 27
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`D. Amports Does Not Have any Valid NPDES Permit for its Direct and Indirect Discharges, is not
`Covered by the General Permit, and Does not Comply with the General Permit’s Requirements ...... 30
`
`E. Valero’s NPDES Permit for its Refinery Operations Does Not Allow the Discharge of Petcoke
`into the Water ........................................................................................................................................ 30
`
`VI. CLAIMS FOR RELIEF .................................................................................................................... 31
`
`FIRST CAUSE OF ACTION Discharges of Pollutants to Waters of the United States without
`NPDES Permit Coverage in Violation of the Clean Water Act, 33 U.S.C. §§ 1311(a), 1365(a),
`and 1365(f) .................................................................................................................................... 31
`
`SECOND CAUSE OF ACTION Failure to Apply for NPDES Permit Coverage (Violations of
`CWA Sections 301(a) and 402, 33 U.S.C. §§ 1311 and 1342) .................................................... 32
`
`THIRD CAUSE OF ACTION Failure to Comply with the Terms of an NPDES Permit
`(Violations of CWA Sections 301(a) and 402, 33 U.S.C. §§ 1311 and 1342) ............................. 33
`
`FOURTH CAUSE OF ACTION Discharges of Storm Water from Industrial Activity to Waters
`of the United States without Complying with the General Permit in Violation of the Clean Water
`Act, 33 U.S.C. §§ 1311(a), 1342, 1365(a), and 1365(f) ............................................................... 35
`
`FIFTH CAUSE OF ACTION Discharges of Contaminated Storm Water to Waters of the United
`States without Complying with Technology Based Effluent Limitations in Violation of the
`General Permit and the Clean Water Act, 33 U.S.C. §§ 1311(a), 1342, 1365(a), and 1365(f) .... 36
`
`SIXTH CAUSE OF ACTION Discharges of Contaminated Storm Water in Violation of the
`General Permit’s Receiving Water Limitations and the Clean Water Act, 33 U.S.C. §§ 1311(a),
`1342, 1365(a), and 1365(f) ........................................................................................................... 37
`
`SEVENTH CAUSE OF ACTION Failure to Adequately Develop, Implement, and/or Revise a
`Storm Water Pollution Prevention Plan in Violation of the General Permit and Clean Water Act,
`33 U.S.C. §§ 1311(a), 1342, 1365(a), and 1365(f) ....................................................................... 38
`
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`EIGHTH CAUSE OF ACTION Failure to Adequately Develop, Implement, and/or Revise a
`Monitoring Implementation Program in Violation of the General Permit and the Clean Water
`Act, 33 U.S.C. §§ 1311(a), 1342, 1365(a), and 1365(f) ............................................................... 39
`
`NINTH CAUSE OF ACTION Failure to Complete Annual Compliance Evaluations as Required
`by the General Permit in Violation of the General Permit and the Clean Water Act, 33 U.S.C. §§
`1311(a), 1342, 1365(a), and 1365(f) ............................................................................................. 40
`
`TENTH CAUSE OF ACTION Violation of Unfair Competition Law, Cal. Bus. & Prof. Code §
`17200............................................................................................................................................. 41
`
`VII. PRAYER FOR RELIEF ................................................................................................................... 42
`
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`I.
`
`INTRODUCTION
`1.
`Federal law prohibits the discharge of pollutants into waters of the United States without
`a valid permit, and California law prohibits the discharge of petroleum into its jurisdictional waters.
`Defendants Amports, Inc., APS West Coast, Inc., and Benicia Port Terminal Company (collectively,
`“Amports”), and Defendant Valero Refining Company (“Valero,” and with Amports, “Defendants”)
`directly discharge petroleum coke into the Carquinez Strait at the Port of Benicia. Defendants do so
`without a valid permit under the Clean Water Act and in violation of California law. San Francisco
`Baykeeper brings this lawsuit to put an end to Defendants’ ongoing illegal conduct.
`2.
`Petroleum coke, or petcoke, is a byproduct of petroleum refining. Petcoke dust is small
`particulate matter that is visible in the air, on the ground or other surfaces, and when it enters the water
`appears as an oil-like sheen stretching across the surface. Petcoke is harmful and deleterious to aquatic
`ecosystems, animal and plant species in and around waters, and poses risks to human health.
`3.
`Amports leases the Port of Benicia, including adjacent submerged tidelands, from the
`City of Benicia (the “Port” or “Facility”). Among the activities at the Port is petcoke storage and ship
`loading. When a ship is in the Port to be loaded with petcoke, Amports transports the petcoke from
`storage silos, up a conveyor, into a crane, and then out of a nozzle into the cargo hold of the ship. During
`that process, in addition to entering the ship’s cargo hold, petcoke is discharged: directly into the
`Carquinez Strait as overspray; onto the deck of the ship and the nearby wharf as overspray; indirectly
`into the Carquinez Strait, onto the ship, and onto the wharf from plumes of petcoke that escape from the
`ship’s cargo hold due to remobilization; into the Carquinez Strait nearby the Facility, onto the ship, and
`onto the wharf after travelling in plumes through the air; and onto the Facility and eventually into storm
`water systems and the Bay during rain events. In addition, once full (requiring several iterations of the
`loading process), the ship is hosed down and the petcoke on the ship is washed directly into the
`Carquinez Strait. The Amports Defendants pay the employees who do the loading work, both at the Port
`and on the ship.
`4.
`The discharge of petcoke into the Carquinez Strait causes harm to Baykeeper and its
`members. Baykeeper’s members live near, recreate near, and use the waters of the Carquinez Strait and
`nearby connected San Pablo Bay and Suisun Bay.
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`5.
`At the Port, Amports’ activities specifically generate discharge of pollutants. These
`include, but are not limited to: (1) loading of ships at the Facility during standard operating processes;
`(2) direct spray from the conveyance system when the crane boom is being disengaged and raised while
`petcoke and pollutants continue to be discharged causing overspray onto the water, wharf, and ship
`deck; (3) the washing of petcoke and pollutants off the deck of the ship and other loading-related
`equipment, directly into the Bay; (4) direct aerial deposition of particulate matter into the water from
`Amports’ conveyance system and operations; (5) offloading of train cars at the Facility; (6) moving
`petcoke around the Facility; (7) equipment and vehicle cleaning, maintenance, and repair at the Facility,
`and (8) by deposition of particulate matter that travels from the loading Facility, equipment, and
`machinery, through the air, into jurisdictional waters, including petcoke that initially enters the ship’s
`cargo hold, but is reanimated and escapes into the air and eventually water.
`6.
`The petcoke that does not directly enter and remain in the cargo hold, but instead enters
`the Carquinez Strait, constitutes the illegal discharge of pollutants under both state and federal law.
`Baykeeper has documented on video numerous discharges of petcoke into the Carquinez Strait. During
`loading, petcoke enters the water, accumulates, and drifts away from the Port in the tide.
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`7.
`Defendants’ conduct is ongoing. When a ship is loaded, illegal pollution enters San
`Francisco Bay. Absent declaratory and injunctive relief, Defendants will keep polluting the Carquinez
`Strait with petcoke, Baykeeper and its members will continue to be harmed, and the obvious and visible
`pollution the petcoke loading operation causes will remain.
`8.
`Defendants’ conduct violates state and federal law, and this Court can and should enjoin
`its illegal deposit and discharge of pollutants into the Bay Area’s waters.
`9.
`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.
`II.
`JURISDICTION AND VENUE
`10.
`This is a civil suit brought under the citizen suit enforcement provision of the Federal
`Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act” or “Act”). See 33 U.S.C. §
`1365. This Court has subject matter jurisdiction over the parties and this action pursuant to 33 U.S.C.
`section 1365(a)(1) and 28 U.S.C. sections 1331 and 2201 (an action for declaratory and injunctive relief
`arising under the Constitution and laws of the United States).
`11.
`Baykeeper also brings claims under California Business and Professions Code section
`17200 to enjoin Amports’ conduct which is unlawful and in violation of California Fish and Game Code
`section 5650. This Court has supplemental jurisdiction over this claim under 28 U.S.C. section 1367.
`12. On October 4, 2021, Baykeeper sent a 60-day notice letter (“Notice Letter”) to Amports.
`The Notice Letter informed Amports of their violations of the Clean Water Act at the Port and of
`Baykeeper’s intention to file suit. A copy of the Notice Letter is attached as Exhibit A and is
`incorporated herein by reference. On December 20, 2021, Baykeeper sent a second 60-day notice letter
`(“Second Notice Letter”). The Second Notice Letter was sent to Amports and to Valero. The Second
`Notice Letter informed all Defendants of the ongoing violations of the Clean Water Act at the Port and
`of Baykeeper’s intention to file suit. A copy of the Second Notice Letter is attached as Exhibit B and is
`incorporated herein by reference.
`13.
`The Notice Letter was sent to the registered agent for Amports, Inc. as well as to
`Amports, Inc.’s Benicia, California and Jacksonville, Florida offices. The Second Notice Letter was sent
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`to all three Amports entities, to their registered agents, to both the Benicia and Jacksonville offices of
`the Amports entities, and to the registered agent of Valero Refining Company – California, to the San
`Antonio headquarters of Valero, and to the refinery’s Director of Health, Safety, Environmental and
`Regulatory Affairs in Benicia.
`14.
`In addition, a copy of both the Notice Letter and Second Notice Letter were sent to the
`U.S. Department of Justice, the Administrator of the U.S. Environmental Protection Agency (“EPA”),
`the Regional Administrator of the EPA for Region 9, the State Water Resources Control Board, and the
`San Francisco Bay Regional Water Quality Control Board (together, the “State and Federal Agencies”),
`as required by the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A).
`15. More than sixty (60) days have passed since the Notice Letter and Second Notice Letter
`were served on Amports, Valero, and the State and Federal agencies.
`16.
`Baykeeper is informed and believes, and thereon alleges, that neither the EPA nor the
`State of California has commenced or is diligently prosecuting an action to redress the violations alleged
`in the Notice Letter and in this complaint. No claim in this action is barred by any prior administrative
`action under section 309(g) of the Act, 33 U.S.C. § 1319(g).
`17. Venue is proper in the Northern District of California pursuant to section 505(c)(1) of the
`Clean Water Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this
`judicial district.
`18.
`Intradistrict assignment of this matter to the San Francisco Division or the 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 Solano County, which is under the jurisdiction of the San
`Francisco or Oakland Divisions of the Northern District of California.
`III.
`PARTIES
`A.
`Plaintiff San Francisco Baykeeper
`19.
`Baykeeper, d/b/a/ San Francisco Baykeeper is a non-profit public benefit corporation
`organized under the laws of the State of California with its office located at 1736 Franklin Street, Suite
`800, Oakland, California, 94612. Baykeeper acts on behalf of its approximately 3,500 members who live
`and/or recreate in and around the San Francisco Bay Area. Baykeeper’s mission is to defend San
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`Francisco Bay from the biggest threats and hold polluters and government agencies accountable to
`create healthier communities and help wildlife thrive. Its team of scientists and lawyers investigate
`pollution via aerial and on-the-water patrols, strengthen regulations through science and policy
`advocacy, and enforce environmental laws on behalf of the public. To further its mission, Baykeeper
`actively seeks federal and state agency implementation of the Clean Water Act, and, where necessary,
`directly initiates enforcement actions on behalf of itself and its members.
`20. Members of Baykeeper reside in Benicia, California, as well as in many of the
`surrounding communities. Members of Baykeeper, including citizens, taxpayers, property owners, and
`residents live, work, and travel near San Francisco Bay and its tributaries, into which Amports
`discharges pollutants. Baykeeper’s members and supporters use and enjoy San Francisco Bay and other
`waters for various recreational, educational, and spiritual purposes. Baykeeper’s members’ use and
`enjoyment of these waters are negatively affected by the pollution caused by the Facility’s operations.
`21.
`Specifically, Baykeeper members use the area around the Facility in the Carquinez Strait
`and nearby San Francisco Bay to bird watch, view wildlife, fish, kayak, sail, boat, stand up paddleboard,
`wade and swim, hike, bike, walk, run, and sightsee, as well as for aesthetic enjoyment. Additionally,
`Baykeeper and its members use local waters to engage in educational and scientific study through
`pollution and habitat monitoring and restoration activities.
`22.
`The Facility’s historic and ongoing discharge of pollutants into the Carquinez Strait in
`violation of the Clean Water Act have, are, and continue to adversely affect the interests of Baykeeper
`and its members.
`23.
`The interests of Baykeeper’s members have been, are being, and will continue to be
`adversely affected by Defendants’ failure to comply with the Clean Water Act and California law. The
`relief sought herein will redress the harms to Plaintiff caused by Defendants’ activities.
`24.
`Baykeeper has one or more members who use, explore, and recreate in areas impacted by
`the pollution herein at issue and could sue in their own right.
`25.
`Baykeeper brings this action on behalf of itself and its members. None of the claims
`brought by Baykeeper nor the relief Baykeeper requests requires the participation of individual
`members.
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`26.
`Baykeeper’s injuries-in-fact are fairly traceable to Defendants’ conduct and would be
`redressed by the requested relief.
`27.
`Baykeeper’s work includes a long-term campaign to rid the San Francisco Bay of fossil
`fuel pollution, including working specifically on petcoke related issues for over a decade. Baykeeper’s
`mission includes not only litigation, but also investigative work. Baykeeper investigates reports of
`pollution from the public to document problems, identify sources of pollution, and determine how best
`to address them. Baykeeper takes actions on these matters, including referral to regulatory agencies,
`coordination with other non-profit groups, and sometimes litigation. Baykeeper also conducts advocacy
`work related to petcoke, including in Richmond and elsewhere.
`28. Defendants’ petcoke pollution frustrates Baykeeper’s mission. Baykeeper has diverted its
`limited resources to investigate, research, gather documents from regulatory agencies, and consult with
`experts in order to understand the causes and consequences of Defendants’ ongoing pollution from the
`Port into and around the Carquinez Strait. Baykeeper has dedicated substantial resources and time into
`its work and investigation regarding Amports, Valero, and petcoke pollution at the Port. At the time
`Baykeeper undertook its investigation into the Port, the resources spent were not related to any
`litigation. Baykeeper would have used its limited resources on other matters had it not been for
`Defendants’ conduct.
`29.
`Continuing commission of the acts and omissions alleged herein will cause irreparable
`harm to Baykeeper and its members, for which there is no adequate remedy at law.
`B.
`Defendants
`1.
`The Amports Entities
`30. Defendant Amports, Inc. is a Delaware corporation headquartered in Jacksonville,
`Florida. Amports, Inc. is registered to do business in California. Amports, Inc. is a holding company that
`owns Defendants APS West Coast, Inc. and Benicia Port Terminal Company. Amports, Inc.’s main
`office is located at 10060 Skinner Lake Drive, Jacksonville, Florida, 32246. Its California office is
`located at 1997 Elm Road, Benicia, California, 94510. Amports, Inc.’s CEO is Stephen Taylor, its
`Secretary and CFO is Jacob Brown, and its Controller is Kimberly Dymond.
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`31. Defendant APS West Coast, Inc. is a Delaware corporation headquartered in
`Jacksonville, Florida. APS West Coast, Inc. is registered to do business in California. APS West Coast
`Inc. has offices in both Jacksonville, FL and Benicia, CA at the same locations as Amports, Inc. APS
`West Coast, Inc. has the same CEO, CFO, Secretary, and Controller as Amports. Upon information and
`belief, APS West Coast, Inc. does business as “Amports.”
`32. Defendant Benicia Port Terminal Company is a Delaware corporation, headquartered in
`Jacksonville, Florida, and registered to do business in California. Amports, Inc. is the owner of the
`Benicia Port Terminal Company. Upon information and belief, Benicia Port Terminal Company
`operates the Port, including hiring and paying the longshoreman who work on the ships. Benicia Port
`Terminal Company has offices in both Jacksonville, FL and Benicia, CA at the same location as
`Amports, Inc. and APS West Coast, Inc. Benicia Port Terminal Company has the same CEO, CFO,
`Secretary, and Controller as Amports, Inc. and APS West Coast, Inc.
`33. Upon information and belief, Amports operates the Port of Benicia Terminal as a private
`port. APS West Coast, Inc. leases the Port from the City of Benicia. The lease of the Port includes dry
`lands as well as the tidal and submerged lands. The lease is currently set to continue until after 2030.
`Upon information and belief, Valero has a sublease from APS West Coast, Inc. for a portion of the site,
`which includes the petcoke storage silos and petcoke loading equipment.
`34. Generally, operations at the Port consist of unloading of imported vehicles, parking of
`those vehicles, transferring shipments of petcoke from the Valero refinery via railcar into storage silos,
`and a conveyor and crane to load petcoke into cargo ships.
`35.
`The Facility is located along the Carquinez Strait, just west of the Benicia-Martinez
`Bridge on Interstate Highway 680. There are two addresses commonly used for the Facility, 1997 Elm
`Road and 1270 Bayshore Road, both in Benicia, California, 94510.
`36.
`The Facility is a roughly 400-acre site which includes marine cargo loading equipment,
`the petcoke loading equipment and conveyor system, parking for cars, docking area and equipment for
`ships, silos to store petcoke, train car petcoke offloading area and equipment, vehicle maintenance,
`equipment cleaning, ship cleaning, ship maintenance, and other facilities. According to Amports’ 2015
`Notice of Intent to comply with the General Permit under the Clean Water Act, at least eight acres at the
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`Facility consisted of areas that were exposed to storm water. The 2015 Notice of Intent to comply was
`terminated by Amports in 2017. Upon information and belief, more than eight of the 400-acres at the
`Facility are exposed to storm water.
`2. Valero
`37. Defendant Valero Refining Company – California is a Delaware Corporation,
`headquartered in San Antonio, Texas, and registered to do business in California. Valero is the owner
`and operator of the Valero Refinery, located at 3400 East Second Street, Benicia, California, 94510. The
`petcoke being discharged at the Port is manufactured by Valero at the Valero Refinery. Rail cars
`transport the petcoke from the Valero Refinery to the Port of Benicia Terminal where the petcoke is
`transferred to silos for storage prior to loading.
`38. When, in this complaint, reference is made to any act of the Defendants, such allegations
`shall be deemed to mean that the officers, directors, agents, employees, or representatives of said
`defendants did, or authorized such acts, or failed to adequately or properly supervise, control, or direct
`their employees and agents while engaged in the management, direction, operation, or control of the
`affairs of said business organization, and did so while acting in the scope of their employment or
`agency.
`IV.
`
`LEGAL AND REGULATORY BACKGROUND
`A.
`California Law Prohibits the Deposition and Potential Deposition of Any Petroleum
`Substance to California’s Waters
`39.
`The illegal discharge of petroleum or petroleum products is harmful and deleterious to
`water, wildlife, and people. In regulating or legislating around waters of the state of California, the state
`has broad authority to protect fishery resources and water quality, and the legislature has used the
`broadest possible language to effectuate the purpose of the law to protect wildlife resources from
`petroleum pollution.
`40.
`For all petroleum and residuary products of petroleum, California Fish and Game Code
`section 5650 makes it unlawful to (1) deposit in, (2) permit to pass into, or (3) place where such
`products can pass into the waters of the state of California. See Fish & Game Code § 5650(a)(1).
`Petroleum and its byproducts may only be discharged if it is expressly authorized by and in compliance
`Complaint for Declaratory and Injunctive Relief 12
`and Civil Penalties
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`Case 3:22-cv-01294 Document 1 Filed 03/01/22 Page 13 of 43
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`with a waste discharge requirement, a waiver of a permit, a valid permit under the Clean Water Act or
`state law, or a water quality certification. See id. § 5650(b). Section 5650 is a strict liability statute
`designed to protect the waters of California from the deleterious and harmful effects of petroleum and
`other pollution.
`41.
`California’s Unfair Competition Law, California Business and Professions Code section
`17200, bars any business activity that is (1) unlawful, (2) unfair, or (3) fraudulent. A business activity is
`“unlawful” under the statute if the conduct violates any other state law. A violation of Fish and Game
`Code section 5650(a) is unlawful conduct under Business and Professions Code section 17200. An
`injured plaintiff, like Baykeeper, may obtain an injunction under section 17200 to stop ongoing unlawful
`conduct.
`B.
`
`The Clean Water Act Prohibits Discharges of Pollutants like Petcoke without a
`Valid Permit
`42.
`The Clean Water Act is the primary federal statute protecting surface waters in the United
`States. 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).
`43.
`In order to accomplish that goal, section 301(a), 33 U.S.C. § 1311(a), 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.
`44.
`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).
`45.
`The “discharge of a pollutant” means, among other things, the addition of a pollutant to
`“waters of the United States” from any “point source.” 40 C.F.R. § 122.2.
`46.
`The term “pollutant” includes “dredged spoil, solid waste, incinerator residue, sewage,
`garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
`wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
`discharged into water.” 33 U.S.C. § 1362(6); 40 C.F.R. § 122.2.
`Complaint for Declaratory and Injunctive Relief 13
`and Civil Penalties
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`Case 3:22-cv-01294 Document 1 Filed 03/01/22 Page 14 of 43
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`47.
`The term “point source” means any “discernible, confined and discrete conveyance,
`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
`rolling stock, concentrated animal feeding operation, or vessel or other float

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