Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 1 of 41
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`Craig A. Brandt (SBN 133905)
`LAW OFFICE OF CRAIG A. BRANDT
`5354 James Avenue
`Oakland, CA 94618
`Telephone: (510) 601-1309
`Email: craigabrandt@att.net
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`Attorney for Plaintiff
`EDEN ENVIRONMENTAL CITIZEN’S GROUP, LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EDEN ENVIRONMENTAL CITIZEN’S
`GROUP, LLC, a California limited liability
`company,
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`Plaintiff,
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`Case No: _____________________
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`COMPLAINT FOR INJUNCTIVE AND
`DECLARATORY RELIEF, CIVIL
`PENALTIES AND REMEDIATION
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`(Federal Water Pollution Control Act, 33
`U.S.C. §§1251 et seq.)
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`vs.
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`MANTREX INC., dba WIT SALES &
`REFINING, a California corporation, and
`DOES 1-10, inclusive,
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`Defendant.
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`Plaintiff EDEN ENVIRONMENTAL CITIZEN’S GROUP, LLC (“EDEN”) hereby
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`brings this civil action pursuant to the Federal Water Pollution Control Act, also known as the
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`Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq.
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`INTRODUCTION
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`1. This action is a citizen suit for injunctive relief, declaratory relief, civil penalties, and
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`remediation against Defendant for current and ongoing violations of the National Pollutant
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`Discharge Elimination System (“NPDES”) permit requirements of the CWA.
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`2. On or about December 14, 2021, EDEN provided a Notice of Defendant’s violations to
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`Defendant Mantrex Inc., dba WIT Sales & Refining (“WIT SALES”), by certified mail, at 538
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
`Page 1
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 2 of 41
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`Phelan Avenue, San Jose, California, (“the Facility”), as required by the CWA. 33 U.S.C. §
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`1365(b)(1)(A).
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`3. On or about December 14, 2021, EDEN provided a Notice of Defendant’s violations of
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`the CWA to the (1) Administrator of the United States Environmental Protection Agency
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`(“EPA”), (2) EPA’s Regional Administrator for Region Nine, and (3) Executive Director of the
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`State Water Resources Control Board (“State Board”).
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`4. A copy of EDEN’s Notice of Intent to Sue is attached hereto as Exhibit A and
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`incorporated herein by reference. (Exhibit A, “60-Day Notice of Violations and Intent to File
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`Suit Under the Federal Water Pollution Control Act (“Clean Water Act”).”)
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`5. More than sixty days have passed since EDEN’s Notice was properly and lawfully served
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`on Defendant, the State Water Resources Control Board (“State Board”), and the Regional and
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`National EPA Administrators. EDEN is informed and believes, and thereupon alleges, that
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`neither the National EPA, nor the State of California has commenced or is diligently prosecuting
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`a court action to redress the violations alleged in this complaint. This action’s claim for civil
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`penalties is not barred by any prior administrative penalty under section 309(g) of the Clean
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`Water Act (“CWA”), 33 U.S.C. § 1319(g).
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`JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT
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`6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. section
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`1331 (federal question), and 33 U.S.C. section 1365(a) (CWA citizen suit jurisdiction). The relief
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`requested is authorized pursuant to 28 U.S.C. sections 2201-2202 (declaratory relief), 33 U.S.C.
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`sections 1319(b), 1365(a) (injunctive relief), and 33 U.S.C. sections 1319(d), 1365(a) (civil
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`penalties).
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 3 of 41
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`7. The Permit under which this case arises is a Federally required permit based upon
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`California state substantive law. (Southern California Alliance of Publicly Owned Treatment
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`Works v. U.S. Environmental Protection Agency (9th Cir. 2017), 853 F.3d 1076; Dept. of
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`Finance v. Commission on State Mandates, 1 Cal.5th 749 (2016).)
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`8. By its express language, a violation of the State permit constitutes a per se violation of
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`the Federal Clean Water Act. (California’s Industrial General Permit Order 2014-0057 DWQ,
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`NPDES Order No. CAS000001, Section XXI.A)
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`9. Venue is proper because Defendant reside in and the events or omissions giving rise to
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`EDEN’s claims occurred in this District. 28 U.S.C. §1391(b)(1), (2). Venue is also proper
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`because the Facility’s CWA violations have occurred and are occurring within the District. 33
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`U.S.C. § 1365(c)(1).
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`PARTIES
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`10. Plaintiff EDEN ENVIRONMENTAL CITIZEN’S GROUP, LLC (“EDEN”) is an
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`environmental membership group organized under the laws of the State of California as a limited
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`liability company on June 1, 2018. EDEN previously existed as an unincorporated
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`environmental citizen’s association, with members who remain associated with EDEN as of the
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`date of the filing of this Complaint.
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`11. EDEN’s organizational purpose is the protection, preservation and enhancement of
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`California’s waterways. Its mission is implemented by enforcing the provisions of the Federal
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`Clean Water Act and California’s Industrial General Permit by seeking redress from
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`environmental harms caused by Industrial Dischargers who pollute the Waters of the United
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`States, through community education and citizen suit enforcement when necessary.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 4 of 41
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`12. EDEN’s members donate their time and money resources to protect, enhance, and assist
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`in the preservation and restoration of rivers, creeks, streams, wetlands, vernal pools, and their
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`tributaries located in California.
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`13. EDEN has members that reside, work and pursue recreational activities near the affected
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`Receiving Waters. Defendant WIT SALES discharges storm water into a municipal storm drain
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`system then to the Guadalupe River-Front San Francisco Bay Estuaries, a tributary of the San
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`Francisco Bay which is the “Receiving Waters” for the Facility. Eden members use those waters
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`and their watersheds for surfing, kayaking, camping, cycling, recreation, sports, fishing,
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`swimming, hiking, photography, nature walks and scientific study. Their use and enjoyment of
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`these natural resources have been and continue to be adversely impaired by Defendant’s failure
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`to comply with the procedural and substantive requirements of the California Industrial General
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`Permit and Federal Clean Water Act.
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`14. EDEN has standing as an association to bring this suit against Defendant, as at least one
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`of EDEN’s current members is experiencing ongoing and continuing harm particular to him or
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`her as a specific result of Defendant’s violations of the CWA, and the resulting adverse effects to
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`the environment and the Receiving Waters downstream from the Facility, and has experienced
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`such harm since at least the date that EDEN provided to Defendant a 60-day Notice of Intent to
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`Sue.
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`15. Specifically, the individual member(s) who are experiencing harm from Defendant’s
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`violations of the CWA are reluctant to utilize the Receiving Waters downstream from the
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`Facility as specified in Paragraph 13, above, due to the pollution caused by Defendant’s
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`environmental violations that EDEN’s members believe has entered into the Facility’s Receiving
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 5 of 41
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`Waters; and the aesthetic and recreational interests of these members has been adversely
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`impacted.
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`16. Defendant’s ongoing violations of the California Industrial General Permit and the CWA
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`have and will continue to cause irreparable harm to EDEN and certain of its current members,
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`for which they have no plain, speedy, or adequate remedy. The relief requested will redress the
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`ongoing injury in fact to EDEN and its members. Litigation of the claims asserted and the relief
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`requested in this Complaint will not require the participation in this lawsuit of individual
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`members of EDEN.
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`17. EDEN is informed and believes, and on such information and belief alleges, that
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`Defendant WIT SALES located at 538 Phelan Avenue, San Jose, California, was formed on or
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`about January 1, 1999, as a California corporation.
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`18. EDEN is informed and believes, and on such information and belief alleges, that,
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`Defendant WIT SALES, on or about October 21, 1996, submitted a Notice of Intent (“NOI”) to
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`be authorized to discharge storm water from the Facility. EDEN is further informed and believes,
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`and on such information and belief alleges, that on or about December 22, 2015 Defendant WIT
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`SALES, submitted an NOT to be authorized to discharge storm water from the Facility under the
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`California Industrial General Permit (“General Permit”) and was assigned Waste Discharger
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`Identification number (“WDID”) 2 431012622, according to the Regional Water Board’s
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`records.
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`STATUTORY BACKGROUND
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`19. Congress declared that the Federal Clean Water Act was designed to “restore and
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`maintain the chemical, physical, and biological integrity of the Nation’s waters” through federal
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 6 of 41
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`and state cooperation to develop and implement “programs for preventing, reducing, or
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`eliminating the pollution of navigable waters and ground waters.” 33 U.S.C. §§ 1251(a), 1252(a).
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`20. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant
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`into waters of the United States, unless such discharge is in compliance with various enumerated
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`sections of the Act. Among other things, Section 301(a) prohibits discharges not authorized by,
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`or in violation of, the terms of an NPDES permit issued pursuant to Section 402 of the Act, 33
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`U.S.C. § 1342.
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`21. Section 402(p) of the Act establishes a framework for regulating municipal and industrial
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`storm water discharges under the NPDES program. 33 U.S.C. § 1342(p). States with approved
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`NPDES permit programs are authorized by Section 402(p) to regulate industrial storm water
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`discharges through individual permits issued to dischargers or through the issuance of a single,
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`statewide general permit applicable to all industrial storm water dischargers. 33 U.S.C. §
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`1342(p).
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`22. Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of the U.S. EPA
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`has authorized California’s State Board to issue NPDES permits including general NPDES
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`permits in California.
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`General Permit
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`23. The State Board elected to issue a statewide general permit for industrial storm water
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`discharges. The State Board originally issued the General Permit on November 19, 1991, and
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`modified it on September 17, 1992. The State Board reissued the General Permit on April 17,
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`1997, and again on April 1, 2014 (the “2015 Permit” or “General Permit”), pursuant to Section
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`402(p) of the Clean Water Act, 33 U.S.C. § 1342(p). The 1997 Permit was in effect between
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 7 of 41
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`1997 and June 30, 2015. The 2015 Permit went into effect on July 1, 2015. The 2015 Permit
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`maintains or makes more stringent the same requirements as the 1997 Permit.
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`24.
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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. 33 U.S.C. § 1311(a).
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`25. The General Permit contains several prohibitions. Effluent Limitation Section V.A of the
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`General Permit requires dischargers to reduce or prevent pollutants in their storm water
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`discharges through implementation of the Best Available Technology Economically Achievable
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`(“BAT”) for toxic and nonconventional pollutants and the Best Conventional Pollutant Control
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`Technology (“BCT”) for conventional pollutants. Discharge Prohibition Section III.C of the
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`General Permit prohibits storm water discharges and authorized non-storm water discharges that
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`cause or threaten to cause pollution, contamination, or nuisance.
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`26. Receiving Water Limitation Section VI.B of the General Permit prohibits storm water
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`discharges to any surface or ground water that adversely impact human health or the
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`environment. Receiving Water Limitation Section VI.A and Discharge Prohibition Section III.D
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`of the Permit prohibit storm water discharges that cause or contribute to an exceedance of any
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`applicable water quality standards contained in Statewide Water Quality Control Plan or the
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`applicable Regional Board’s Basin Plan.
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`27.
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`In addition to absolute prohibitions, the General Permit contains a variety of substantive
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`and procedural requirements that dischargers must meet. Facilities discharging, or having the
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`potential to discharge, storm water associated with industrial activity which have not obtained an
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`individual NPDES permit must apply for coverage under the State’s General Permit by filing a
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 8 of 41
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`Notice of Intent to Comply (“NOI”). Dischargers have been required to file NOIs since March
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`30, 1992.
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`28. Dischargers must develop and implement a Storm Water Pollution Prevention Plan
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`(“SWPPP”). The SWPPP must describe storm water control facilities and measures that comply
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`with the BAT and BCT standards. The objective of the SWPPP requirement is to identify and
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`evaluate sources of pollutants associated with industrial activities that may affect the quality of
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`storm water discharges and authorized non-stormwater discharges from the facility, and to
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`implement best management practices (“BMPs”) to reduce or prevent pollutants associated with
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`industrial activities in storm water discharges and authorized non-storm water discharges.
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`General Permit, Section X.C. These BMPs must achieve compliance with the General Permit’s
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`effluent limitations and receiving water limitations, including the BAT and BCT technology
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`mandates.
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`29. To ensure compliance with the General Permit, the SWPPP must be evaluated and
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`revised as necessary. General Permit, Section X.B.
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`30. Failure to develop or implement an adequate SWPPP, or to update or revise an existing
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`SWPPP as required, is a violation of the General Permit. General Permit, Fact Sheet Section I .1.
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`31. Sections X.D – X.I of General Permit set forth the requirements for a SWPPP. Among
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`other requirements, the SWPPP must include a pollution prevention team; a site map; a list of
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`significant materials handled and stored at the site; a description of potential pollutant sources;
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`an assessment of potential pollutant sources; and a description of a specific mandatory set of
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`minimum BMPs to be implemented at the facility that will reduce or prevent pollutants in storm
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`water discharges and authorized non-stormwater discharges.
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 9 of 41
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`32. The General Permit further requires dischargers to implement and maintain, to the extent
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`feasible, any one or more of the following advanced BMPs necessary to reduce or prevent
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`discharges of pollutants in industrial storm water discharges: exposure minimization BMPs,
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`storm water containment and discharge reduction BMPs, treatment control BMPs, and other
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`advanced BMPs. General Permit, Section X.H.2. Failure to implement advanced BMPs as
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`necessary to achieve compliance with either technology or water quality standards is a violation
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`of the General Permit.
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`33. The General Permit also requires that the SWPPP include BMP Descriptions and a BMP
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`Summary Table. General Permit, Section X.H.4, 5.
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`34. The General Permit requires dischargers to develop and implement an adequate written
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`Monitoring and Reporting Program. The primary objective of the Monitoring and Reporting
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`Program is to detect and measure the concentrations of pollutants in a facility’s discharge to
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`ensure compliance with the General Permit’s discharge prohibitions, effluent limitations, and
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`receiving water limitations.
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`35. As part of their monitoring program, Dischargers must identify all storm water discharge
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`locations that produce a significant storm water discharge, evaluate the effectiveness of BMPs in
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`reducing pollutant loading, and evaluate whether pollution control measures set out in the
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`SWPPP are adequate and properly implemented.
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`36. Section XI.B of the General Permit requires that Dischargers collect and analyze storm
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`water samples from two qualifying storm events (“QSEs”) during the first half of each reporting
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`year (July 1 to December 31) and two QSEs during the second half of each reporting year
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`(January 1 to June 30), and that the samples be collected from all outfalls identified in the
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`Facility SWPPP.
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 10 of 41
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`37. A QSE is a precipitation event that produces a discharge for at least one drainage area
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`and is preceded by 48 hours with no discharge from any drainage area. General Permit Section
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`XI.B.2.
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`38. Once the storm water samples have been collected, the General Permit requires that the
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`Discharger deliver the samples to a qualified laboratory for analysis within 48 hours of collection
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`(General Permit, Attachment H) and upload into SMARTS the resulting laboratory reports
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`within 30 days from receipt of the report. General Permit Section XI.B.4.
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`39. Facilities are also required to make monthly visual observations of storm water
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`discharges. The visual observations must represent the quality and quantity of the facility’s storm
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`water discharges from the storm event. General Permit, Section XI.A.
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`40. The General Permit requires operators to conduct an Annual Comprehensive Facility
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`Compliance Evaluation (“Annual Evaluation”) that evaluates the effectiveness of current BMPs
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`and the need for additional BMPs based on visual observations and sampling and analysis
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`results. General Permit, Section XV.
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`41. Under the General Permit, facilities must analyze storm water samples for pH, oil &
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`grease and total suspended solids, as well as additional parameters indicated in the Permit by
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`facility type and those parameters identified by the Discharger on a facility-specific basis that
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`serve as indicators of the presence of all industrial pollutants identified in the pollutant source
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`assessment. General Permit, Section XI.B.6.c.
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`42. The United States EPA has established Parameter Benchmark Values as guidelines for
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`determining whether a facility discharging industrial storm water has implemented the requisite
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`BAT and BCT. These benchmarks represent pollutant concentrations at which a storm water
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 11 of 41
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`discharge could potentially impair, or contribute to impairing, water quality, or affect human
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`health from ingestion of water or fish.
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`43. The Numeric Action Levels (“NALs”) in the General Permit are derived from these
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`benchmarks. The Permit incorporates annual NALs, which are derived from the 2008 MSGP
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`benchmark values, and instantaneous maximum NALs, which are derived from a Water Board
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`dataset.
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`44. The following annual NALs have been established under the General Permit for pollution
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`parameters applicable to the Facility: pH – 6.0 - 9.0 standard units (“S.U.”); total suspended
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`solids (“TSS”) – 100 mg/L; oil & grease (“O&G”) – 15 mg/L.
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`45. An exceedance of an annual NAL occurs when the average of all samples obtained for an
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`entire facility during a single reporting year is greater than a particular annual NAL. The
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`reporting year runs from July 1 to June 30. An instantaneous maximum NAL exceedance occurs
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`when two or more analytical results from samples taken for any single parameter within a
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`reporting year exceed the instantaneous maximum NAL value (for TSS and O&G) or are outside
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`of the instantaneous maximum NAL range for pH. General Permit Section XII.A.
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`46. When a discharger exceeds an applicable NAL, it is elevated to “Level 1 Status,” which
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`requires a revision of the SWPPP and additional BMPs. If a discharger exceeds an applicable
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`NAL during Level 1 Status, it is then elevated to “Level 2 Status.” General Permit Section
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`XII.C.
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`47. For Level 2 Status, a discharger is required to submit an Action Plan requiring a
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`demonstration of either additional BMPs to prevent exceedances, a determination that the
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`exceedance is solely due to non-industrial pollutant sources, or a determination that the
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`exceedance is solely due to the presence of the pollutant in the natural background. General
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`Permit Section XII.D.
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`48. Section XVI.A. of the General Permit requires that all Dischargers must certify and
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`submit via SMARTS an Annual Report no later than July 15th following each reporting year
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`using the standardized format and checklists in SMARTS.
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`49. Furthermore, Section XXI.L of the General Permit provides that all documents submitted
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`to SMARTS, including SWPPPs and Annual Reports, be certified by a Legally Responsible
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`Person (“LRP”) or Duly Authorized Representative (“DAR”) of the Facility, with the following
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`certification:
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`“I certify under penalty of law that this document and all Attachments were prepared
`under my direction or supervision in accordance with a system designed to assure that qualified
`personnel properly gather and evaluate the information submitted. Based on my inquiry of the
`person or persons who manage the system or those persons directly responsible for gathering the
`information, to the best of my knowledge and belief, the information submitted is, true, accurate,
`and complete. I am aware that there are significant penalties for submitting false information,
`including the possibility of fine and imprisonment for knowing violations."
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`50. Section XXI.N of the General Permit provides that any person who knowingly makes any
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`false material statement, representation, or certification in any record or other document
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`submitted or required to be maintained under the General Permit, including reports of
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`compliance or noncompliance shall upon conviction, be punished by a fine of not more than
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`$10,000, or by imprisonment for not more than two years, or by both. See also Clean Water Act
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`section 309(c)(4)
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`San Francisco Bay Regional Basin Plan
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`51. The Water Quality Control Board, San Francisco Bay Region has adopted the “San
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`Francisco Bay Basin (Region 2) Water Quality Control Plan” (“Basin Plan”), as amended by
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`Resolution No. R2-2010-0100, setting forth the Water Quality Standards (“WQS”) and
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`beneficial uses for San Francisco Bay and its tributaries.
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`52. The Beneficial Uses for San Francisco Bay are industrial service supply, shellfish
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`harvesting, fish migration, preservation of rare and endangered species, fish spawning,
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`commercial and sportfishing, estuarine habitat, wildlife habitat, recreational activities involving
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`contact with water, recreational activities involving proximity to water, and navigation. See
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`Basin Plan, Table 2-1.
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`53. Surface waters that cannot support the Beneficial Uses of those waters listed in the Basin
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`Plans are designated as impaired water bodies pursuant to Section 303(d) of the Clean Water
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`Act, 33 U.S.C. § 1313(d).
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`54. Polluted discharges from industrial sites, such as the Facility, contribute to the
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`degradation of these already impaired surface waters and aquatic-dependent wildlife. Discharges
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`of pollutants at levels above WQS contribute to the impairment of the Beneficial Uses of the
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`waters receiving the discharges. WQS applicable to dischargers covered by the Storm Water
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`Permit include, but are not limited to, those set out in the Basin Plan and in the Criteria for
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`Priority Toxic Pollutants for the State of California (“CTR”), 40 C.F.R. § 131.38.
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`55. The Basin Plan sets forth, among other things, narrative WQS for floating material, Oil &
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`Grease, sediment, settleable matter, and suspended materials, and sets forth numeric WQS for
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`pH, arsenic, cadmium, chromium VI, copper, cyanide, lead, mercury, nickel, selenium, silver,
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`tributyltin, zinc, and hydrocarbons (“PAHs”). See Basin Plan §§ 3.3.6, 3.3.7, 3.3.9, 3.3.12-
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`3.3.14, 3.3.21, and Table 3-3.
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`56. The Basin Plan also includes site specific objectives (“SSOs”), which are WQS for
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`specific sites, for certain pollutants of concern, including copper and nickel. See Basin Plan,
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 14 of 41
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`Table 3-3A. The CTR includes numeric criteria set to protect human health and the environment
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`in the State of California.
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`57. Discharges with pollutant levels in excess of the CTR criteria, the Basin Plan standards,
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`and/or other applicable WQS are violations of Receiving Water Limitations in Section VI.A of
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`the General Permit.
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`Water Quality Impairment Area
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`58. The San Francisco Bay is listed for water quality impairment on the most recent Section
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`303(d) - list of the General Permit for the following: chlordane; dichlorodiphenyltrichloroethane
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`(DDT); dieldrin; dioxin compounds (including 2,3,7,8- tetrachlorodibenzo-pdioxin); furan
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`compounds; invasive species; mercury; polychlorinated biphenyls (PCBs); PCBs (dioxin-like);
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`selenium, and trash.
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`Citizen Suit Provision of the CWA
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`59. Under the CWA, any citizen may commence a civil action against any person who is
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`alleged to be in violation of an effluent standard or limitation under the CWA or an Order issued
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`by a State with respect to such a standard or limitation. 33 U.S.C. §1365(a)(1). No action may be
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`commenced “prior to sixty days after the plaintiff has given notice of the alleged violation (i) to
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`the [EPA] Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any
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`alleged violator of the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(A). By including a
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`citizen suit provision in the CWA, Congress ensured that the purposes and requirements of the
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`CWA would be enforced, either by the United States government or by concerned citizens.
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`60.
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`In furtherance of the water preservation goals established by the CWA, the citizen suit
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`provision confirms the district court’s jurisdiction to apply any appropriate civil penalties under
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`section 1319(d). 33 U.S.C. § 1365(a). Section 1319(d) declares that any person who violates any
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 15 of 41
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`permit condition or limitation implementing any of such sections in an NPDES permit shall be
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`subject to a civil penalty not to exceed $46,192 per day for each violation occurring before
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`November 2, 2015, and $51,570.00 per day per violation for violations occurring after November
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`2, 2015. 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4; General Permit XXI.Q.1.
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`61. Violations of provisions of the General Permit, including those detailed below, constitute
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`violations of the CWA and are subject to civil penalties. General Permit § XXI; 33 U.S.C. §§
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`1319(d), 1342; 40 C.F.R. §§ 19.1-19.4.
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`FACTUAL ALLEGATIONS WHICH GIVE RISE TO CLAIMS
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`62. Defendant WIT SALES is part of the industry that is primarily engaged in recovering
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`nonferrous metals and alloys from new and used scrap, including printed circuit boards and their
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`components, as well as, engaged in both the recovery and alloying of precious metals through
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`secondary smelting and refining and by use of chemical processes.
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`63. EDEN is informed and believes that the Facility falls primarily within the standard
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`industrial classification (“SIC”) Code 5093 - Scrap and Waste Materials which includes
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`establishments primarily engaged in assembling, breaking up, sorting, and wholesale distribution
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`of scrap and waste materials, including nonferrous metals scrap-wholesale. The General Permit
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`requires establishments designated under SIC Code 5093 to test for the following analytical
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`parameters: Iron (Fe), Lead (Pb), Aluminum (Al), Zinc (Zn), and Chemical Oxygen Demand
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`(COD). See, Table 2, of the General Permit.
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`64. EDEN is informed and believes that the Facility falls secondarily within SIC Code
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`3471 - Electroplating, Plating, Polishing, Anodizing, and Coloring which includes
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`establishments primarily engaged in all types of electroplating, plating, anodizing, coloring,
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`and finishing of metals and formed products for the trade. The General Permit requires
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`Case 3:22-cv-01414 Document 1 Filed 03/04/22 Page 16 of 41
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`establishments designated under SIC Code 3471 to test for the following analytical
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`parameters: Zinc (Zn), Nitrate + Nitrite Nitrogen (N+N), Iron (Fe), and Aluminum (Al). See,
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`Table 2, of the General Permit.
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`65. According to the EPA’s Stormwater Discharge Mapping Tools the Facility discharges
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`stormwater into a municipal storm drain system then to the Guadalupe River-Front San
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`Francisco Bay Estuaries, a tributary of the San Francisco Bay. See, EPA’s Stormwater Discharge
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`Mapping Tools, available at https://www.epa.gov/npdes/epas-stormwater-discharge-mapping-
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`tools. However, it is also possible that after the stormwater discharges from the Facility they
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`enter the municipal storm drain system and flows to nearby Coyote Creek which then empties
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`into the San Francisco Bay. See, Google Maps, available at https://www.google.com/maps/
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`place/ Coyote+Creek. Nevertheless, both discharge paths empty into the South San Francisco
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`Bay which is the “Receiving Waters” fo