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`Case 3:22-cv-01975-DMR Document 1 Filed 03/28/22 Page 1 of 31
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`ANDREW L. PACKARD (State Bar No. 168690)
`WILLIAM N. CARLON (State Bar No. 305739)
`LAW OFFICES OF ANDREW L. PACKARD
`245 Kentucky Street, Suite B3
`Petaluma, CA 94952
`Tel: (707) 782-4060
`Fax: (707) 782-4061
`andrew@packardlawoffices.com
`wncarlon@packardlawoffices.com
`
`Attorneys for Plaintiff
`CALIFORNIA SPORTFISHING
`PROTECTION ALLIANCE
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`
`
`CALIFORNIA SPORTFISHING
`PROTECTION ALLIANCE,
`
`Plaintiff,
`
`v.
`
`
`DenBeste Yard & Garden, Inc.,
`
`
`Defendant.
`
`Case No.
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
`
`(Federal Water Pollution Control Act, 33
`U.S.C. §§ 1251-1387)
`
`
`
`
`
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`I.
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`CALIFORNIA SPORTFISHING PROTECTION ALLIANCE (“CSPA”), by and through
`its counsel, hereby alleges:
`
`JURISDICTION AND VENUE
`1.
`This is a civil suit brought under the citizen suit enforcement provision of the
`Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (the “Clean Water Act,” “CWA”
`or “Act”) against DenBeste Yard & Garden, Inc. (“Defendant”). This Court has subject matter
`jurisdiction over the parties and the subject matter of this action pursuant to Section 505(a)(1) of
`the Act, 33 U.S.C. § 1365(a), and 28 U.S.C. § 1331 (an action arising under the laws of the
`United States). Specifically, this action arises under Section 505(a)(1)(A) of the Act, 33 U.S.C.
`§ 1365(a)(1)(A) (citizen suit to enforce effluent standard or limitation). The relief requested is
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`authorized pursuant to 33 U.S.C. §1365(a) (injunctive relief), 1319(d) (civil penalties), and 28
`U.S.C. §§ 2201–2202 (power to issue declaratory relief in case of actual controversy and further
`necessary relief based on such a declaration).
`2.
`On January 26, 2022, Plaintiff provided written notice to Defendant, via certified
`mail, of Defendant’s violation of the Act (“Notice Letter”), and of Plaintiff’s intention to file suit
`against Defendant, as required by the Act. See 33 U.S.C. § 1365(b)(1)(A); 40 C.F.R.
`§ 135.2(a)(1). Plaintiff mailed a copy of the Notice Letter to the Administrator of the United
`States Environmental Protection Agency (“EPA”); the Administrator of EPA Region IX; the
`Executive Director of the State Water Resources Control Board (“State Board”); and the
`Executive Officer of the Regional Water Quality Control Board, San Francisco Bay Region
`(“Regional Board”), pursuant to 40 C.F.R. § 135.2(a)(1). A true and correct copy of the Notice
`Letter is attached hereto as Exhibit A and is incorporated by reference.
`3.
`More than sixty days have passed since Plaintiff served the Notice Letter on
`Defendant and the agencies. Plaintiff is informed and believes, and thereupon alleges, that
`neither the EPA nor the State of California has commenced nor is diligently prosecuting a court
`action to redress the violations alleged in this Complaint. This action’s claims for civil penalties
`are not barred by any prior administrative penalty under Section 309(g) of the Act, 33 U.S.C. §
`1319(g).
`4.
`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 sources of the violations are located
`within this District. Venue is also proper under 28 U.S.C. § 1391(b) because a substantial part of
`the events or omissions giving rise to Plaintiff’s claims occurred in this District. Intra-district
`venue is proper in either San Francisco or Oakland, California, because the sources of the
`violations are located within Sonoma County.
`II.
`INTRODUCTION
`5.
`This Complaint seeks relief for Defendant’s violations of the CWA at
`Defendant’s facility located at 26916 Asti Road, in Cloverdale, California (“Facility”).
`Defendant discharges pollutant-contaminated storm water from the Facility into the Russian
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`River, which discharges to the Pacific Ocean. The Russian River and the Pacific Ocean (the
`“Impacted Waters”) are waters of the United States within the meaning of the Clean Water Act.
`Defendant is in violation of both the substantive and procedural requirements of the CWA.
`6.
`Defendant’s unpermitted discharges of polluted storm water from the Facility
`violate Section 301(a) of the Act, 33 U.S.C. § 1311(a), which prohibits the discharge of storm
`water associated with industrial activities to waters of the United States except in compliance
`with the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued
`pursuant to Section 402 of the Act, 33 U.S.C. § 1342. These violations are ongoing and
`continuous.
`7.
`Defendant’s failure to obtain coverage under the State of California’s General
`Industrial Permit for storm water discharges, State Board Water Quality Order No. 91-13-DWQ,
`amended by Nos. 92-12-DWQ, 97-03-DWQ, 14-0057-DWQ, NPDES General Permit No.
`CAS000001 (hereinafter “General Permit” or “Permit”) is a violation of Section 301(a) of the
`Act.
`
`8.
`The failure on the part of industrial facility operators, such as Defendant, to apply
`for and comply with the General Permit is recognized as a significant cause of the continuing
`decline in water quality of receiving waters. The general consensus among regulatory agencies
`and water quality specialists is that storm water pollution amounts to more than half the total
`pollution entering the aquatic environment each year. With every rainfall event, hundreds of
`thousands of gallons of polluted storm water originating from industrial facilities discharge to the
`Impacted Waters.
`III.
`PARTIES
`9.
`Defendant DenBeste Yard & Garden, Inc. is a California corporation.
`10.
`The Agent for Service of Process for Defendant DenBeste Yard & Garden, Inc. is
`PAUL RAY DENBESTE.
`11.
`Defendant DenBeste Yard & Garden, Inc. owns the Facility.
`12.
`Defendant DenBeste Yard & Garden, Inc. operates the Facility.
`13.
`Plaintiff California Sportfishing Protection Alliance (“CSPA”) is a non-profit
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`public benefit corporation organized under the laws of California, with its main offices in
`Stockton, California. CSPA is dedicated to the preservation, protection, and defense of the
`environment, wildlife, and natural resources of California waters, including the waters into
`which Defendants discharge polluted storm water. To further its goals, CSPA actively seeks
`federal and state agency implementation of state and federal water quality laws, including the
`CWA, and directly initiates enforcement actions on behalf of itself and its members as necessary.
`14.
` Members of CSPA—including citizens, taxpayers, property owners, and
`residents—live, work, travel, and recreate on and near the Impacted Waters, into which
`Defendant causes pollutants to be discharged. These members of CSPA use and enjoy the
`Impacted Waters for recreational, educational, scientific, conservation, aesthetic, and spiritual
`purposes. Defendant’s discharges of storm water containing pollutants impairs each of those
`uses. Thus, the interests of CSPA’s members have been, are being, and will continue to be
`adversely affected by Defendant’s failure to comply with the CWA and the General Permit.
`15. Members of CSPA reside in California and use and enjoy California’s numerous
`rivers for recreation and other activities. Members of CSPA use and enjoy the Impacted Waters,
`into which Defendant has caused, are causing, and will continue to cause, pollutants to be
`discharged. Members of CSPA use these areas to hike, fish, boat, kayak, swim, bird watch, view
`wildlife, and engage in scientific study, including monitoring activities, among other things.
`Defendant’s discharges of pollutants threaten or impair each of those uses or contribute to such
`threats and impairments. Thus, the interests of CSPA’s members have been, are being, and will
`continue to be adversely affected by Defendant’s ongoing failure to comply with the CWA. The
`relief sought herein will redress the harms to Plaintiff caused by Defendant’s activities because that
`relief will significantly reduce pollution discharged from Defendant’s Facility into the Impacted
`Waters.
`16.
`Continuing commission of the acts and omissions alleged above will irreparably
`harm Plaintiff and the citizens of the State of California, for which harm they have no plain, speedy
`or adequate remedy at law.
`IV.
`LEGAL BACKGROUND
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`Clean Water Act
`A.
`17.
`Congress enacted the CWA to “restore and maintain the chemical, physical, and
`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA establishes an
`“interim goal of water quality which provides for the protection and propagation of fish,
`shellfish, and wildlife and provides for recreation in and on the water . . . .” 33 U.S.C. §
`1251(a)(2). To these ends, Congress developed both a water quality-based and a technology-
`based approach to regulating discharges of pollutants from point sources into waters of the
`United States.
`18.
`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any
`pollutant from a point source into waters of the United States, unless such discharge complies
`with various enumerated sections of the Act. Among other things, Section 301(a) prohibits
`discharges not in conformance with a NPDES permit, such as discharges without a NPDES
`permit or discharges that violate the terms of an NPDES permit issued pursuant to Section 402 of
`the Act (33 U.S.C. §1342).
`19.
`The term “discharge of pollutants” means “any addition of any pollutant to
`navigable waters from any point source.” 33 U.S.C. § 1362(12). Pollutants are defined to
`include, among other examples, industrial waste, chemical wastes, biological materials, heat,
`rock, and sand discharged into water. 33 U.S.C. § 1362(6).
`20.
`A “point source” is defined as “any discernible, confined and discrete
`conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit . . . from
`which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
`21.
`“Navigable waters” means “the waters of the United States.” 33 U.S.C. §
`1362(7). Waters of the United States includes, among other things, waters that are, were, or are
`susceptible to use in interstate commerce and tributaries to such waters. 40 C.F.R. § 230.3
`(2015).
`22.
`Section 402 of the Act, 33 U.S.C. § 1342, establishes the NPDES program—a
`permitting program that regulates the discharge of pollutants into waters of the United States.
`Section 402(p) establishes a framework for regulating municipal and industrial storm water
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`discharges under the NPDES program, 33 U.S.C. § 1342(p), and, specifically, requires a NPDES
`permit for storm water discharges associated with industrial activity. 33 U.S.C. § 1342(p)(2)(B).
`Section 402 authorizes states with approved NPDES permit programs to regulate industrial storm
`water discharges, through individual permits issued to dischargers and/or through the issuance of
`a single, statewide general permit applicable to all industrial storm water dischargers. 33 U.S.C.
`§ 1342(b).
`23.
`Section 505(a)(1) provides for citizen enforcement actions against any “person,”
`including individuals, corporations, or partnerships, 33 U.S.C. § 1362(5), for violations of
`NPDES permit requirements and for unpermitted discharges of pollutants. 33 U.S.C.
`§1365(a)(1) (authorizing actions against any person alleged to be in violation of an effluent
`standard or limitation); 33 U.S.C. § 1365(f) (defining “effluent limitation” broadly to include “a
`permit or condition thereof issued under [Section 402] of this title,” and “any unlawful act under
`subsection (a) of [Section 301] of this title”).
`24.
`An action for injunctive relief under the Act is authorized by 33 U.S.C. § 1365(a).
`Violators of the Act are also subject to an assessment of civil penalties of up to $59,973 per day
`per violation for all violations occurring after November 2, 2015, pursuant to Sections 309(d) and
`505 of the Act. 33 U.S.C. §§ 1319(d), 1365; 40 C.F.R. §§ 19.1–19.4.
`
`B.
`California Industrial Storm Water General Permit
`25.
`Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of EPA
`has authorized the State Board to issue NPDES permits in California, including general permits.
`26.
`On November 16, 1990, the EPA promulgated Phase I storm water regulation in
`compliance with section 402(p) of the Act. 55 Fed. Reg. 47990, codified at 40 C.F.R. § 122.26.
`These regulations require operators of facilities subject to storm water permitting that discharge
`storm water associated with industrial activity to obtain an NPDES permit. Id.
`27.
`The State Board elected to issue a statewide general permit for industrial
`discharges. The State Board issued the General Permit on or about November 19, 1991,
`modified the General Permit on or about September 17, 1992, and reissued the General Permit
`on April 17, 1997 and again on April 1, 2014 (effective July 1, 2015), pursuant to Section 402(p)
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`of the Clean Water Act, 33 U.S.C. § 1342(p).
`28.
`To discharge storm water associated with industrial activities lawfully in
`California, industrial dischargers must obtain General Permit coverage and comply with the
`terms of the General Permit, or obtain and comply with an individual NPDES permit. 33 U.S.C.
`§§ 1311(a), 1342(p)
`29.
`The industrial activities covered under the General Permit are described in
`Attachment A to the General Permit.
`30.
`Facilities discharging, or having the potential to discharge, storm water associated
`with industrial activity that have not obtained an individual NPDES permit must apply for
`coverage under the State’s General Permit by filing a Notice of Intent (“NOI”). The General
`Permit requires new dischargers to register for NOI coverage at least seven days prior to the
`commencement of industrial operations. General Permit, Section II.B.5. Dischargers with active
`NOI coverage under Order No. 97-03-DWQ were required to register for NOI coverage under
`Order No. 2014-0057-DWQ by July 1, 2015. General Permit, Section II.B.4.b.
`31.
`Dischargers registering for NOI coverage under the General Permit must certify
`and submit Permit Registration Documents (“PRD”) via the Storm Water Multiple Application
`and Report Tracking System (“SMARTS”) website. General Permit, Section II.B.
`32.
`PRDs consist of a completed NOI and signed certification statement, a copy of a
`current site map from the Storm Water Pollution Prevention Plan (“SWPPP”), and a SWPPP.
`General Permit, Section II.B.1.b.
`33.
`Dischargers registering for NOI coverage under the General Permit must also pay
`the appropriate annual fee in accordance with 23 C.C.R. § 2200 et seq. General Permit, Section
`II.B.1.c.
`34. When PRDs are certified and submitted and the annual fee is received, the State
`Water Board will assign the discharger a Waste Discharger Identification (“WDID”) number.
`35.
`Once regulated by a NPDES permit, facilities must strictly comply with all of the
`terms and conditions of that permit. A violation of the General Permit is a violation of the Act.
`See General Permit, Section XXI.A.
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`V.
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`STATEMENT OF FACTS
`a. The Facility.
`36.
`Defendant owns and operates the Facility, a yard and garden supply company
`located in Sonoma County, California.
`37.
`Defendant has operated the Facility for approximately 30 years.
`38.
`Defendant’s primary industrial activities at the Facility include mixing potting soil
`and compost.
`39.
`Defendant sources and mixes materials to create soil amendments. These
`materials include soil, wood, and compost.
`40.
`Defendant conducts industrial activities and store industrial materials outside in
`areas exposed to storm water. For example, Defendant stockpiles materials before they are
`mixed into resaleable products, and stockpiles the final materials for sale.
`41.
`Defendant operates heavy equipment, including trucks and a conveyor belt,
`associated with the production and management of its industrial materials.
`42.
`The industrial activities at the Facility fall under Standard Industrial Classification
`(“SIC”) Code 2875 (“Fertilizers, Mixing Only”).
`43.
`The Facility collects and discharges storm water associated with industrial activity
`from the Facility into the Russian River, which discharges to the Pacific Ocean.
`44.
`The Russian River and the Pacific Ocean are waters of the United States within
`the meaning of the Clean Water Act. 40 C.F.R. § 120.2(3).
`b. The Regional Board’s Efforts to Bring Defendant’s into Compliance.
`45.
`Defendant registered the Facility for General Permit compliance under Order No.
`97-03-DWQ.
`46.
`On or about October 30, 2015, and again on or about December 11, 2015, the
`Regional Board informed Defendant by letter that Defendant was required to renew its General
`Permit coverage for the Facility under the 2015 General Permit.
`47.
`Defendant submitted a NOI application (No. 474937) to obtain coverage under
`the General Permit for the Facility on or about July 6, 2016.
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`48.
`The Regional Board returned the application, stating that it was incomplete and
`included instructions for how to complete it.
`49.
`On or about September 17, 2020, the North Coast Regional Water Quality Control
`Board (“Regional Board”) issued Defendant a “Notice of Non-Compliance with the General
`Permit for Storm Water Discharges Associated with Industrial Activities, Order Number 2014-
`0057-DWQ, NPDES Permit Number CAS000001” (“1st NNC”), a true and correct copy of
`which is included as Attachment A to Exhibit A.
`50.
`The 1st NNC explained that the Act prohibits certain discharges of storm water
`containing pollutants except where such discharges occur in compliance with a NPDES permit.
`51.
`The 1st NNC letter informed Defendant that its Facility requires permit coverage
`under the California Industrial General Permit, Order No. 2014-0057-DWQ, NPDES Permit No.
`CAS000001.
`52.
`On or about September 24, 2020, Paul DenBeste responded to the Regional Board
`with a letter, a true and correct copy of which is included as Attachment B to Exhibit A, stating
`that pursuant to court order in case number 4:16-cv-03914-KAW, filed in the Northern District
`of California, “all purported claims in your attached September 17, 2020 letter against Den Beste
`Yard and Garden Inc., and or against Paul Den Beste, and or against Melody Den Beste, are the
`court ordered responsibility of, and therefore must be directed to, Patrick Bulmer, California
`Receivership Services, P.O. Box 5128, Oroville, CA 95966.”
`53.
`However, no such order exists, and case number 4:16-cv-03914-KAW was
`dismissed without prejudice, and the Facility remained out of compliance with the Act because
`the Facility was not covered any NPDES permit.
`54.
`The Regional Board subsequently informed Defendant, by email to Paul
`DenBeste dated October 1, 2020, a true and correct copy of which is included as Attachment C
`to Exhibit A, that the Secretary of State indicates that Paul and Melody DenBeste are the
`responsible corporate owners and/or officers of the Facility.
`55.
`On or about October 28, 2020, the Regional Board issued a second notice of non-
`compliance (“2nd NNC”), a true and correct copy of which is included as Attachment D to
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`Exhibit A.
`56.
`The 2nd NNC reiterates Defendant’s obligation to obtain permit coverage under
`the General Permit, and provides Defendant with notice of its noncompliance with the Act.
`c. Defendant’s Failure to Register for NOI General Permit Coverage.
`65.
`Defendant’s NOI coverage under the General Permit (Order No. 97-03-DWQ)
`was administratively terminated on or about February 25, 2016.
`66.
`Defendant has been operating its Facility without any General Permit coverage
`continuously since February 25, 2016.
`67.
`During significant rain events Defendant continues to discharge storm water
`associated with industrial activities from the Facility.
`68.
`Defendant has not certified and submitted to SMARTS a completed NOI and
`signed certification statement.
`69.
`Defendant has not certified and submitted to SMARTS a copy of a current site
`map from the SWPPP.
`70.
`Defendant has not certified and submitted to SMARTS a SWPPP.
`71.
`Defendant has not paid the appropriate annual fee in accordance to General
`Permit Section II.B.2.c and 23 C.C.R. § 2200 et seq.
`72.
`The State Water Board has not assigned Defendant a WDID for the Facility.
`VI. CLAIMS FOR RELIEF
`
`
`FIRST CLAIM FOR RELIEF
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`Discharge of Pollutants from the Facility in Violation of the Act
`(Violations of 33 U.S.C. §§ 1311(a), 1342)
`
`115. Plaintiff incorporates the allegations contained in the above paragraphs as though
`fully set forth herein.
`116. Plaintiff is informed and believes, and thereupon alleges, that on numerous
`occasions between at least March 28, 2017 and the date of the filing of this Complaint, Defendant
`violated section 301(a) of the CWA, 33 U.S.C. § 1311(a), by discharging storm water associated
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`with industrial activities generated at its Facility into the Russian River without a NPDES permit
`issued pursuant to 33 U.S.C. § 1342.
`117. Each and every day Defendant discharges, and continues to discharge, pollutants to
`waters of the United States from the Facility without a NPDES permit issued pursuant to 33 U.S.C.
`§ 1342 is a separate and distinct violation of Section 301(a) of the Act. 33 U.S.C. § 1311(a).
`118. Defendant is subject to civil penalties for each and every violation of the Act since
`March 28, 2017. See 33 U.S.C. §§ 1319(d), 1365; 40 C.F.R. § 19.4.
`119. Theses violations are ongoing and continuous so long as Defendant operates its
`Facility without a permit as required by 33 U.S.C. §§ 1311, 1342.
`120. Continuing commission of the acts and omissions alleged herein irreparable harms
`the waters of the United States, Plaintiff, and its members, for which harm Plaintiff has no plain
`speedy or adequate remedy at law.
`VII. RELIEF REQUESTED
`Wherefore, CSPA respectfully requests that this Court grant the following relief:
`a.
`Declare Defendant to have violated and to be in violation of CWA section
`301(a), 33 U.S.C. § 1311(a), for discharging pollutants from the Facility not in compliance with
`a permit issued pursuant to CWA Section 402, 33 U.S.C. § 1342;
`b.
`Enjoin Defendant from discharging pollutants from the Facility and to the
`surface waters surrounding and downstream from the Facility in violation of the General Permit
`and the Clean Water Act;
`c.
`Enjoin Defendant from further violating the substantive and procedural
`requirements of the General Permit and the Clean Water Act;
`d.
`Order Defendant to pay civil penalties of $59,973 per day per violation for
`all violations occurring after November 2, 2015, pursuant to Sections 309(d) and 505(a) of the
`Clean Water Act, 33 U.S.C. §§ 1319(d), 1365(a), and 40 C.F.R. §§ 19.1–19.4;
`e.
`Order Defendant to take appropriate actions to restore the quality of
`navigable waters impaired by its activities;
`f.
`Award Plaintiff’s costs and fees (including reasonable attorney, witness, and
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`consultant fees) as authorized by the Act, 33 U.S.C. § 1365(d); and,
`g.
`Award any such other and further relief as this Court may deem appropriate.
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`Dated: March 28, 2022
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`Respectfully Submitted,
`LAW OFFICES OF ANDREW L. PACKARD
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`By: /s/ William N. Carlon
`William N. Carlon
`Attorney for Plaintiff
`CALIFORNIA SPORTFISHING
`PROTECTION ALLIANCE
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`Case 3:22-cv-01975-DMR Document 1 Filed 03/28/22 Page 13 of 31
`Case 3:22-cv-01975-DMR Document1 Filed 03/28/22 Page 13 of 31
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`(cid:38)(cid:57)(cid:41)(cid:42)(cid:35)(cid:42)(cid:53)(cid:1)A
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`EXHIBIT A
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`Case 3:22-cv-01975-DMR Document 1 Filed 03/28/22 Page 14 of 31
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`VIA CERTIFIED MAIL
`Paul DenBeste
`DenBeste Yard & Garden, Inc.
`30357 River Road
`Cloverdale, CA 95425
`
`Patrick Bulmer
`California Receivership Services
`P.O. Box 5128
`Oroville, CA 95966
`
`January 26, 2022
`
`Melody DenBeste
`DenBeste Yard & Garden, Inc.
`26916 Asti Road
`Cloverdale, CA 95425
`
`Paul DenBeste
`DenBeste Yard & Garden, Inc.
`P.O. Box 186
`Cloverdale, CA 95425
`
`Re:
`
`NOTICE OF VIOLATIONS AND INTENT TO FILE SUIT UNDER THE
`FEDERAL WATER POLLUTION CONTROL ACT (“CLEAN WATER ACT”)
`(33 U.S.C. §§ 1251 et seq.)
`
`Dear Paul and Melody DenBeste, and Patrick Bulmer:
`
`California Sportfishing Protection (“CSPA”) provides this notice of violations of the
`Clean Water Act (“the Act”) occurring at DenBeste’s Cloverdale facility located at 26916 and
`26912 Asti Road, in Cloverdale, California (the “Facility”). This letter is being sent to you as the
`responsible owners, officers and/or operators of the Facility. Unless otherwise noted, DenBeste
`Yard & Garden, Inc., Paul DenBeste, Melody DenBeste, and Patrick Bulmer shall hereinafter be
`collectively referred to as “DenBeste.” CSPA is a non-profit association dedicated to the
`preservation, protection and defense of the environment, wildlife and natural resources of
`California waters, including the waters into which DenBeste discharges polluted storm water.
`
`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 violation of the Act subjects
`DenBeste to a penalty of up to $59,973 per day per violation for all violations occurring between
`January 26, 2017 and the present. In addition to civil penalties, CSPA will seek injunctive relief
`preventing further violations of the Act pursuant to Sections 505(a) and (d) (33 U.S.C. §1365(a)
`and (d)) and such other relief as permitted by law. Lastly, Section 505(d) of the Act (33 U.S.C. §
`1365(d)) permits prevailing parties to recover costs and fees, including attorneys’ fees.
`
`The Clean Water Act requires that sixty (60) days prior to the initiation of a citizen-
`enforcement action under Section 505(a) of the Act (33 U.S.C. § 1365(a)), a citizen enforcer
`must give notice of its intent to file suit. Notice must be given to the alleged violator, the U.S.
`Environmental Protection Agency, and the Chief Administrative Officer of the water pollution
`control agency for the State in which the violations occur. See 40 C.F.R. § 135.2. As required by
`the Act, this letter provides statutory notice of the violations that have occurred, and continue to
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`

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`Case 3:22-cv-01975-DMR Document 1 Filed 03/28/22 Page 15 of 31
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`Notice of Violation and Intent To File Suit
`January 26, 2022
`Page 2
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`occur, at the Facility. 40 C.F.R. § 135.3(a). At the expiration of sixty (60) days from the date of
`this letter, CSPA intends to file suit under Section 505(a) of the Act in federal court against
`DenBeste for violations of the Clean Water Act and the Permit.
`
`
`Background.
`
`I.
`
`
`A.
`
`The Clean Water Act.
`
`
`
`Congress enacted the CWA in 1972 in order to “restore and maintain the chemical,
`physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. The Act prohibits
`the discharge of pollutants into United States waters except as authorized by the statute. 33
`U.S.C. § 1311; San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1156 (9th Cir.
`2002). The Act is administered largely through the NPDES permit program. 33 U.S.C. § 1342.
`In 1987, the Act was amended to establish a framework for regulating storm water discharges
`through the NPDES system. Water Quality Act of 1987, Pub. L. 100-4, § 405, 101 Stat. 7, 69
`(1987) (codified at 33 U.S.C. § 1342(p)); see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832,
`840-41 (9th Cir. 2003) (describing the problem of storm water runoff and summarizing the Clean
`Water Act’s permitting scheme). The discharge of pollutants without an NPDES permit, or in
`violation of a permit, is illegal. Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d 1141,
`1145 (9th Cir. 2000).
`
`Much of the responsibility for administering the NPDES permitting system has been
`delegated to the states. See 33 U.S.C. § 1342(b); see also Cal. Water Code § 13370 (expressing
`California’s intent to implement its own NPDES permit program). The CWA authorizes states
`with approved NPDES permit programs to regulate industrial storm water discharges through
`individual permits issued to dischargers and/or through the issuance of a single, statewide
`general permit applicable to all industrial storm water dischargers. 33 U.S.C. § 1342(b).
`Pursuant to Section 402 of the Act, the Administrator of EPA has authorized California’s State
`Board to issue individual and general NPDES permits in California. 33 U.S.C. § 1342.
`
`B.
`
`California’s General Permit for Storm Water Discharges Associated with
`Industrial Activities
`On July 1, 2015, pursuant to Order No. 2015-0057-DWQ the General Permit was
`reissued, including many of the same fundamental terms as the prior permit. Facilities
`discharging, or having the potential to discharge, storm water associated with industrial activities
`that have not obtained an individual NPDES permit must apply for coverage under the General
`Permit by filing a Notice of Intent to Comply (“NOI”). General Permit, Standard Condition
`XXI.A. Facilities must file their NOIs before the initiation of industrial operations. Id.
`Facilities must strictly comply with all of the terms and conditions of the General Permit. A
`violation of the General Permit is a violation of the CWA.
`
`C.
`
`
`DenBeste’s Cloverdale Facility
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`Case 3:22-cv-01975-DMR Document 1 Filed 03/28/22 Page 16 of 31
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`Notice of Violation and Intent To File Suit
`January 26, 2022
`Page 3
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`DenBeste is a yard and garden supply company that operates a yard in Sonoma County
`where it conducts various industrial activities, including fertilizer mixing. The industrial
`activities at the Facility fall under Standard Industrial Classification (“SIC”) Code 2875
`(Fertilizers, Mixing Only).
`
`
`DenBeste collects and discharges storm water associated with industrial activities at the
`Facility into the Russian River, which ultimately flows into the Pacific Ocean. The Russian
`River and the Pacific Ocean are waters of the United States within the meaning of the Clean
`Water Act.
`
`On September 17, 2020, the North Coast Regional Water Quality Control Board
`(“Regional Board”) issued DenBeste a “Notice of Non-Compliance with the General Permit