Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 1 of 40
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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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`vs.
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`WEST COAST METALS, INC., as a
`corporation organized and existing under the
`laws of the State of California, and DOES 1-
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`Defendant.
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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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`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.
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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
`Page 1
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 2 of 40
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`2.
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`On or about February 1, 2022, EDEN provided a Notice of Defendant’s violations to
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`Defendant West Coast Metals, Inc. (“WEST COAST METALS”), by certified mail as required
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`by the CWA. 33 U.S.C. § 1365(b)(1)(A). The Defendant’s base of operations is located at 470
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`Caletti Avenue, Windsor, California (Facility”).
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`3.
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`On or about January 29, 2022, 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 Water Board”).
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`4.
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`A copy of EDEN’s Notice of Intent to Sue is attached hereto as Exhibit “A” and hereby
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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
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`served on Defendant, the State Board, and the Regional and National EPA Administrators.
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`EDEN is informed and believes, and thereupon alleges, that neither the National EPA, nor the
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`State of California has commenced or is diligently prosecuting a court action to redress the
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`violations alleged in this complaint. This action’s claim for civil penalties is not barred by any
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`prior administrative penalty under section 309(g) of the Clean Water Act (“CWA”), 33 U.S.C. §
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`1319(g).
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`JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT
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`6.
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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 3 of 40
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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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`7.
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`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.
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`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.
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`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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`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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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 4 of 40
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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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`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.
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`EDEN has members that reside, work and pursue recreational activities near the
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`affected Receiving Waters. The Facility discharges storm water into a municipal storm drain
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`system which then discharges to the Mark West Creek, a tributary of the Russian River. The
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`Russian River is the “Receiving Waters” for the Facility and is listed for water quality
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`impairment under the Clean Water Act, Section 303(d) - list for dissolved oxygen, mercury,
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`bacteria, temperature and pathogen impairments. Eden members use those waters and their
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`watersheds for surfing, kayaking, camping, cycling, recreation, sports, fishing, swimming,
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`hiking, photography, nature walks and scientific study. Their use and enjoyment of these natural
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`resources have been and continue to be adversely impaired by Defendant’s failure to comply
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`with the procedural and substantive requirements of the California Industrial General Permit and
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`Federal Clean Water Act.
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`14.
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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 5 of 40
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`15.
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`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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`Waters; and the aesthetic and recreational interests of these members has been adversely
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`impacted.
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`16.
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`Defendant’s ongoing violations of the California Industrial General Permit and the
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`CWA have and will continue to cause irreparable harm to EDEN and certain of its current
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`members, for which they have no plain, speedy, or adequate remedy. The relief requested will
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`redress the ongoing injury in fact to EDEN and its members. Litigation of the claims asserted
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`and the relief requested in this Complaint will not require the participation in this lawsuit of
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`individual members of EDEN.
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`17.
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`EDEN is informed and believes, and on such information and belief alleges, that
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`Defendant WEST COAST METALS located at 470 Caletti Avenue, Windsor, California, was
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`formed on or about April 4, 1978, as a corporation organized and existing under the laws of the
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`State of California.
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`EDEN is informed and believes, and on such information and belief alleges, that,
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`Defendant WEST COAST METALS, on or about July 30, 2004, submitted a Notice of Intent
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`(“NOI”) to be authorized to discharge storm water from the Facility. EDEN is further informed
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`and believes, and on such information and belief alleges, that on or about June 9, 2015,
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`Defendant WEST COAST METALS, submitted an NOT to be authorized to discharge storm
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`water from the Facility under the California Industrial General Permit (“General Permit”) and
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 6 of 40
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`was assigned Waste Discharger Identification number (“WDID”) 1 491018939, according to the
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`Regional Water Board’s records.
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`STATUTORY BACKGROUND
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`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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`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.
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`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.
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`Section 402(p) of the Act establishes a framework for regulating municipal and
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`industrial storm water discharges under the NPDES program. 33 U.S.C. § 1342(p). States with
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`approved NPDES permit programs are authorized by Section 402(p) to regulate industrial storm
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`water discharges through individual permits issued to dischargers or through the issuance of a
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`single, 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.
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`Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of the U.S.
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`EPA has authorized California’s State Board to issue NPDES permits including general NPDES
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`permits in California.
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 7 of 40
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`General Permit
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`23.
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`The State Water Board elected to issue a statewide general permit for industrial storm
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`water discharges. The State Water Board originally issued the General Permit on November 19,
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`1991, and modified it on September 17, 1992. The State WATER Board reissued the General
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`Permit on April 17, 1997, and again on April 1, 2014 (the “2015 Permit” or “General Permit”),
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`pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p). The 1997 Permit was in
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`effect between 1997 and June 30, 2015. The 2015 Permit went into effect on July 1, 2015. The
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`2015 Permit 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.
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`The General Permit contains several prohibitions. Effluent Limitation Section V(A) of
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`the 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.
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`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
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`III(D) of the Permit prohibit storm water discharges that cause or contribute to an exceedance of
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 8 of 40
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`any 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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`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.
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`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.
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`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.
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`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
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`(1).
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 9 of 40
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`31.
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`Sections X(D) – X(I) of General Permit set forth the requirements for a SWPPP.
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`Among other requirements, the SWPPP must include a pollution prevention team; a site map; a
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`list of significant materials handled and stored at the site; a description of potential pollutant
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`sources; an assessment of potential pollutant sources; and a description of a specific mandatory
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`set of minimum BMPs to be implemented at the facility that will reduce or prevent pollutants in
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`storm water discharges and authorized non-stormwater discharges.
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`32.
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`The General Permit further requires dischargers to implement and maintain, to the
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`extent 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.
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`The General Permit also requires that the SWPPP include BMP Descriptions and a
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`BMP Summary Table. General Permit, Section X(H)(4), (5).
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`34.
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`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.
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`As part of their monitoring program, Dischargers must identify all storm water
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`discharge locations that produce a significant storm water discharge, evaluate the effectiveness
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 10 of 40
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`of BMPs in reducing pollutant loading, and evaluate whether pollution control measures set out
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`in the SWPPP are adequate and properly implemented.
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`36.
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`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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`37.
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`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.
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`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.
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`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.
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`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.
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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 11 of 40
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`facility type and those parameters identified by the Discharger on a facility-specific basis that
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`2
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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.
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`The United States EPA has established Parameter Benchmark Values as guidelines for
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`5
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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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`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.
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`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.
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`The following annual NALs have been established under the General Permit for
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`pollution parameters applicable to the Facility: pH – 6.0 - 9.0 standard units (“S.U.”); total
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`suspended solids (“TSS”) – 100 mg/L; oil & grease (“O&G”) – 15 mg/L.
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`16
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`45.
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`An exceedance of an annual NAL occurs when the average of all samples obtained for
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`an 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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`25
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`26
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 12 of 40
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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.
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`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.
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`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.
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`Furthermore, Section XXI(L) of the General Permit provides that all documents
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`submitted to SMARTS, including SWPPPs and Annual Reports, be certified by a legally
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`responsible party or duly authorized representative 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.
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`Section XXI(N) of the General Permit provides that any person who knowingly makes
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`any 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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
`Page 12
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 13 of 40
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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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`North Coast Region Basin Water Quality Control Plan
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`51.
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`The Water Quality Control Board for the North Coast Region has adopted the “North
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`Coast Region Basin Water Quality Control Plan” (“Basin Plan”), as initiated by Resolution No.
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`68-16, setting forth a “Statement of Policy With Respect to Maintaining High Quality of Waters
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`in California.” The Basin Plan has subsequently been amended several times (Basin Plan
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`Appendix 1), and delineates the Water Quality Standards (“WQS”) and beneficial uses for the
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`waters of the Russian River and its tributaries, including Mark West Creek.
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`52.
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`The Beneficial Uses for the Russian River and Mark West Creek include, among others,
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`sport fishing, fish migration, navigation, preservation of rare and endangered species, water
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`contact and noncontact recreation, fish spawning, and wildlife habitat. See, Basin Plan Table 2-1:
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`Russian River, 114.10 (lower), 114.20 (middle), 114.30 (upper); Mark West Creek, 114.23.
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`53.
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`The Russian River is home to, among others, the Central California Coho Salmon,
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`California Coastal Chinook Salmon and steelhead trout. The Coho salmon found in the Russian
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`River are listed under both the State and the Federal Endangered Species Acts. Coastal Chinook
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`salmon in the Russian River are listed as Endangered under the Federal Endangered Species Act.
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`Steelhead trout found in the Russian River are listed as Threatened under the Federal Endangered
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`Species Act.
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`54.
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`The Mark West Creek is one of five priority stream systems selected as part of the
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`California Department of Fish and Wildlife water quality study effort. See, Mark West Creek
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`Study (Sonoma County) at https://wildlife.ca.gov/Conservation/Watersheds/Instream-
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`Flow/Studies/Mark-West-Creek-Study.
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`25
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`26
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`Page 13
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 14 of 40
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`The Mark West Creek is located within Sonoma County and its 59 square mile watershed is the
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`second largest sub-watershed in the Russian River basin. The creek supports several fish species
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`including California Coastal Chinook Salmon, Central California Coast Coho Salmon and
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`steelhead trout. Salmonid populations within Mark West Creek and other Russian River
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`5
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`tributaries have declined significantly. Coho Salmon, in particular, neared extinction within the
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`6
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`Russian River basin in the late 1990s, and their recovery is now supplemented by captive brood
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`7
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`stock efforts that include juvenile releases into Mark West Creek. Ibid.
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`55.
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`The confluence of Mark West Creek and the Russian River supplies clean drinking
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`water to nine cities and water districts that serve more than 600,000 residents in portions of
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`Sonoma and Marin counties. See, Sonoma County Water Agency at
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`https://sonomawater.org/quick-facts; and Russian River Coho Water Resources Partnership at
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`https://cohopartnership.org/home/watersheds/mark-west-creek/
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`56.
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`Surface waters that cannot support the Beneficial Uses of those waters listed in the
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`Basin Plans are designated as impaired water bodies pursuant to Section 303(d) of the Clean
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`Water Act, 33 U.S.C. § 1313(d).
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`57.
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`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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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
`Page 14
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 15 of 40
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`58.
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`The Basin Plan sets forth, among other things, narrative WQS for chemical constituents,
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`2
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`floating material, Oil and Grease (“O&G”), pH at 6.5 – 8.5, sediment, settleable material, and
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`3
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`suspended material. See, Basin Plan §§ 3.3.3, 3.3.7, 3.3.9, 3.3.11, 3.3.12, and 3.3.13.
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`4
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`59.
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`The Basin Plan also incorporates by reference California’s maximum contaminant
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`5
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`levels for several inorganic chemicals including aluminum, arsenic, mercury, nickel, nitrate +
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`6
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`nitrite, and zinc. See, Cal. Code of Regs. tit. 22, § 64431, Table 64431-A, Inorganic Chemicals
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`7
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`and § 64449, Table 64449-A, Consumer Acceptance Contaminant Levels.
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`8
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`60.
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`The CTR standards are an applicable WQS under the General Permit. Santa Monica
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`9
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`Baykeeper v. Kramer Metals, Inc. 619 F. Supp. 2d 914, 925-26; see also, Defenders of Wildlife v.
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`10
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`Brower, 191 F. 3d 1159, 1166-67 (9th Cir. 1999) (industrial storm water discharges must strictly
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`11
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`comply with water quality standards). The CTR promulgates numeric criteria to protect human
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`12
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`health and the environment in the State of California. 40 C.F.R. § 131.38.
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`13
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`61. Where more than one water quality objective exists for the same water quality
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`14
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`parameter, the objective protective of the most sensitive beneficial use applies. See, Basin Plan,
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`15
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`Water Quality Objectives, § 3.1.1.
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`16
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`62.
`
`Discharges with pollutant levels in excess of the CTR criteria, the Basin Plan standards,
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`17
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`and/or other applicable WQS are violations of Receiving Water Limitations in Section VI(A) of
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`18
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`the General Permit.
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`19
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`Water Quality Impairment Area
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`20
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`63.
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`The Russian River and Mark West Creek are listed for water quality impairment on the
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`21
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`most recent Section 303(d) - list of the General Permit for sediment and temperature. Portions of
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`22
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`the Russian River watershed are impaired for dissolved oxygen, mercury, bacteria, temperature
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`23
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`and pathogen impairment. Mark West Creek is also impaired for aluminum, dissolved oxygen,
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`24
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`25
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`26
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, CIVIL PENALTIES AND REMEDIATION
`Page 15
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`Case 3:22-cv-02883 Document 1 Filed 05/16/22 Page 16 of 40
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`phosphorous and manganese. See, California Department of Fish and Wildlife, Study Plan:
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`2
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`Habitat and Instream Flow Evaluation for Anadromous Steelhead and Coho Salmond in Upper
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`3
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`Mark West Creek, p. 26.)
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`4
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`5
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`Citizen Suit Provision of the CWA
`
`64.
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`Under the CWA, any citizen may commence a civil action against any person who is
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`6
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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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`7
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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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`8
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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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`9
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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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`10
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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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`11
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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.