Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 1 of 30
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`Michael R. Lozeau (State Bar No. 142893)
`Victoria A. Yundt (State Bar No. 326186)
`LOZEAU DRURY LLP
`1939 Harrison Street, Suite 150
`Oakland, CA 94612
`Tel: (510) 836-4200
`Fax: (510) 836-4205
`E-mail: michael@lozeaudrury.com
`victoria@lozeaudrury.com
`
`Attorneys for Plaintiff
`CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`THE CALIFORNIA SPORTFISHING
`PROTECTION ALLIANCE, a non-profit
`corporation,
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`Plaintiff,
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`v.
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`Civil No.
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
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`CLOVER FLAT LAND FILL INC., a California
`corporation
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` (Federal Water Pollution Control Act, 33
` U.S.C. § 1251 et seq.)
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`Defendant.
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`Plaintiff THE CALIFORNIA SPORTFISHING PROTECTION ALLIANCE (“CSPA”), by and
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`through its counsel, alleges as follows:
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`INTRODUCTION
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`1.
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`This is a civil suit brought under the citizen suit enforcement provision of the Federal
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`Water Pollution Control Act (the “Clean Water Act” or “the Act”), 33 U.S.C. § 1365(a)(1), to address
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`COMPLAINT
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 2 of 30
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`
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`violations of the Act by Defendant Clover Flat Land Fill Inc. (“Defendant”) arising out of discharges of
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`polluted storm water from Defendant’s Clover Flat Resource Recovery Park and Landfill industrial
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`facility located at 4380 Silverado Trail in Calistoga, California (“Facility”). Since January 1, 2021,
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`Defendant has violated the Act and the General Industrial Stormwater Permit issued by the State of
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`California, National Pollutant Discharge Elimination System (“NPDES”) General Permit No.
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`CAS000001, State Water Resources Control Board Water Quality Order No. 97-03-DWQ, as renewed by
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`Order No. 2014-0057-DWQ, as amended by Order No. 2015-0122-DWQ on August 4, 2015, and further
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`amended on November 6, 2018 (collectively, the “General Permit”). Defendant’s violations of the
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`discharge, treatment technology, monitoring requirements, and other procedural and substantive
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`requirements of the Permit and the Act are ongoing and continuous. CSPA seeks declaratory relief,
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`injunctive relief, civil penalties, and the award of costs, including attorney and expert witness fees, for
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`Defendant’s repeated and ongoing violations of the Act.
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`JURISDICTION AND VENUE
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`2.
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`This Court has subject matter jurisdiction over the parties and the subject matter of this
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`action pursuant to Section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A), and 28 U.S.C. § 1331 (an
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`action arising under the laws of the United States). The relief requested is authorized pursuant to 28
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`U.S.C. §§ 2201-02 (power to issue declaratory relief in case of actual controversy and further necessary
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`relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive relief); and 33 U.S.C. §§
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`1319(d), 1365(a) (civil penalties).
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`3.
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`On February 18, 2022, Plaintiff provided notice of Defendant’s violations of the Act,
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`and of Plaintiff’s intention to file suit against Defendant, to the U.S. Attorney General; Administrator of
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`the United States Environmental Protection Agency (“EPA”); the Administrator of EPA Region IX; the
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`Executive Director of the State Water Resources Control Board (“State Board”); the Interim Executive
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`Officer of the California Regional Water Quality Control Board, San Francisco Bay Region (“Regional
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 3 of 30
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`Board”); and to Defendant, as required by the Act, 33 U.S.C. § 1365(b)(1)(A). A true and correct copy of
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`CSPA’s notice letter is attached as Exhibit A, and is incorporated by reference.
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`4.
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`More than sixty (60) days have passed since notice was served on Defendant and the
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`State and federal agencies. Plaintiff is informed and believes, and thereupon alleges, that neither the EPA
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`nor the 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 prior
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`administrative penalty under Section 309(g) of the Act, 33 U.S.C. § 1319(g).
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`5.
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`Venue is proper in the Northern District of California pursuant to section 505(c)(1) of
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`the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this judicial
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`district.
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`INTRADISTRICT ASSIGNMENT
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`6.
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`Intradistrict assignment of this matter to the San Francisco Division of the Court is
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`appropriate pursuant to Civil Local Rule 3-2(d). The events or omissions which give rise to CSPA’s
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`claims occurred in Napa County, which is under the jurisdiction of the San Francisco Division of the
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`Northern District of California.
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`PARTIES
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`7.
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`Plaintiff CSPA is a non-profit public benefit corporation organized under the laws of the
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`State of California with its main office in Stockton, California. CSPA’s members live and/or recreate in
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`and around waters of the San Francisco Bay, including the Napa River and its tributary downstream from
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`the Facility, also referred to as the unnamed creek. CSPA is dedicated to the preservation, protection, and
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`defense of the environment, the wildlife, and the natural resources of all waters of California. To further
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`these goals, CSPA actively seeks federal and state agency implementation of the Act, and, where
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`necessary, directly initiates enforcement actions on behalf of itself and its members.
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`8.
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`Members of CSPA, including citizens, taxpayers, property owners, and residents, live,
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`COMPLAINT
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 4 of 30
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`work, and travel near, and recreate in the Napa River and the unnamed creek which flows to the Napa
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`River, into which Defendant discharges pollutants. CSPA members use and enjoy San Francisco Bay and
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`its tributaries, including the Napa River, for recreational, educational, scientific, conservation, aesthetic,
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`spiritual, and other purposes. For example, CSPA members use those areas to fish, boat, kayak, bird
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`watch, view wildlife, and engage in scientific study including monitoring activities, among other things.
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`Defendant’s discharges of storm water containing pollutants threaten or impair each of these uses or
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`contribute to such threats and impairments. Thus, the interests of CSPA’s members have been, are being,
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`and will continue to be adversely affected by Defendant’s failure to comply with the Act and the General
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`Permit. The relief sought herein will redress the harms to Plaintiff caused by Defendant’s activities.
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`9.
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`Continuing commission of the acts and omissions alleged below will irreparably harm
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`Plaintiff and one or more of its members, for which harm they have no plain, speedy, or adequate remedy
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`at law.
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`10.
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`Defendant CLOVER FLAT LAND FILL INC. (“Clover Flat”) is a California
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`corporation that owns and/or operates the Facility that is at issue in this action.
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`REGULATORY BACKGROUND
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`The Problem of Storm Water Pollution
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`11.
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`Storm water runoff is one of the most significant sources of water pollution in the nation
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`and has been recognized as a leading cause of significant and cumulative harmful impacts to the water
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`quality of San Francisco Bay and its tributaries. With every rainfall event, hundreds of millions of gallons
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`of polluted rainwater flow from local industrial facilities, such as the Facility, and pour into storm drains,
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`local tributaries, and San Francisco Bay. The Regional Board has stated that storm water pollution is the
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`major source of pollution entering San Francisco Bay and Bay area surface waters each year.
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`12.
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`Storm water runoff from industrial sites such as the Facility causes harm to humans and
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`aquatic life. In particular, storm water can contain heavy metal pollutants such as aluminum and iron, as
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 5 of 30
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`well as high concentrations of suspended solids and nitrate and nitrite. Exposure and ingestion of heavy
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`metals can cause health problems in people and aquatic animals, including neurological, physiological,
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`and reproductive effects. Heavy metals have been shown to alter activity in the tissue and blood of fish.
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`13.
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`High concentrations of total suspended solids (“TSS”) degrade optical water quality by
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`reducing water clarity and decreasing light available to support photosynthesis. TSS have been shown to
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`alter predator-prey relationships (for example, turbid water might make it difficult for fish to see their
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`prey). Deposited solids alter habitat for fish, aquatic plants, and benthic organisms. TSS can also be
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`harmful to aquatic life because numerous pollutants, including metals and polycyclic aromatic
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`hydrocarbons (“PAHs”), are adsorbed onto TSS. Thus, higher concentrations of TSS mean higher
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`concentrations of toxins associated with those sediments. Inorganic sediments, including settleable matter
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`and suspended solids, have been shown to negatively impact species richness, diversity, and total
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`biomass of filter feeding aquatic organisms on bottom surfaces.
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`14.
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`Per- and polyfluoroalkyl substances (“PFAS”), a large group of human-made substances
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`that do not occur naturally in the environment and are resistant to heat, water, and oil, including
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`perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”), have been found to enter
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`surface and groundwater, and subsequently drinking water, through contaminated storm water runoff
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`from industrial sites and landfills. PFAS are persistent in the environment, can accumulate within the
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`human body over time, and are toxic at relatively low concentrations. The State Board lists industrial
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`sites and landfills as two of the four major sources of PFAS. PFAS can get into drinking water when
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`storm water discharge from industrial sites and landfills containing PFAS flows into rivers and lakes used
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`for drinking water or seeps into groundwater. Once in groundwater, PFAS are easily transported large
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`distances and can contaminate drinking wells. Exposure to unsafe levels of PFAS, including
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`PFOA/PFOS, has been shown to cause adverse health effects, including developmental effects to fetuses
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`during pregnancy, immune effects, thyroid effects, and other effects, such as changes in cholesterol.
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`COMPLAINT
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 6 of 30
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`The Clean Water Act
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`15.
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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 complies with various enumerated sections of the
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`Act. Among other things, Section 301(a) prohibits discharges not authorized by, or in violation of, the
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`terms of an NPDES permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.
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`16.
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`Section 402(b) of the Act, 33 U.S.C. § 1342(b), allows each state to administer its own
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`EPA-approved permit program for discharges. In California, the EPA has approved the State Board and
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`its nine Regional Boards to administer an NPDES permit program for the State. The State Board and
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`Regional Boards issue individual and general NPDES permits regulating water pollutant discharges from
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`various categories of dischargers.
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`17.
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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 approved
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`NPDES permit programs are authorized by Section 402(p) to regulate industrial storm water discharges
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`through individual permits issued to dischargers or through the issuance of a single, statewide general
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`permit applicable to all industrial storm water dischargers. 33 U.S.C. § 1342(p).
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`18.
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`The EPA promulgated regulations for the Section 402 NPDES permit program defining
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`waters of the United States. See 40 C.F.R. § 122.2. The EPA interprets waters of the United States to
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`include not only traditionally navigable waters but also other waters, including waters tributary to
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`navigable waters, wetlands adjacent to navigable waters, and other waters including intermittent streams
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`that could affect interstate commerce. The Act requires any person who discharges or proposes to
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`discharge pollutants into waters of the United States to submit an NPDES permit application. 40 C.F.R. §
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`122.21.
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`19.
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`Section 301(b) of the Act requires that, by March 31, 1989, all point source dischargers,
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`including those discharging polluted storm water, must achieve technology-based effluent limitations by
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 7 of 30
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`utilizing the Best Available Technology Economically Achievable (“BAT”) for toxic and
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`nonconventional pollutants and the Best Conventional Pollutant Control Technology (“BCT”) for
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`conventional pollutants. See 33 U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(2)(ii)-(iii).
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`20.
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`Section 505(a)(1) and Section 505(f) of the Act provide for citizen enforcement actions
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`against any “person,” including individuals, corporations, or partnerships, for violations of NPDES
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`permit requirements. 33 U.S.C. §§ 1365(a)(1), 1365(f), 1362(5). An action for injunctive relief under the
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`Act is authorized by 33 U.S.C. § 1365(a). Violators of the Act are also subject to an assessment of civil
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`penalties of up to $59,973 for violations occurring after November 2, 2015, where penalties are assessed
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`on or after January 12, 2022, pursuant to Sections 309(d) and 505 of the Act, 33 U.S.C. §§ 1319(d), 1365.
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`See also 40 C.F.R. §§ 19.1-19.4.
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`The General Permit
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`21.
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`The State Board elected to issue a statewide general permit for industrial storm water
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`discharges pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p). The current version
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`of the General Permit went into effect on July 1, 2015, and was further amended on August 4, 2015 and
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`November 6, 2018.
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`22.
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`In order to discharge storm water lawfully in California, industrial facilities must
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`comply with the terms of the General Permit or have obtained and complied with an individual NPDES
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`permit. 33 U.S.C. § 1311(a).
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`23.
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`The General Permit contains several prohibitions. Effluent Limitation V(A) prohibits
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`discharges unless pollutants have been reduced or prevented through implementation of BAT and BCT.
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`Discharge Prohibition III(C) prohibits storm water discharges and authorized non-storm water discharges
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`that cause or threaten to cause pollution, contamination, or nuisance. Receiving Water Limitation VI(B)
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`prohibits storm water discharges to any surface or ground water that adversely impact human health or
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`the environment. Receiving Water Limitation VI(A) and Discharge Prohibition III(D) prohibit storm
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`COMPLAINT
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`Case 3:22-cv-04704-LB Document 1 Filed 08/16/22 Page 8 of 30
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`water discharges that cause or contribute to an exceedance of any applicable water quality standards
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`contained in the Statewide Water Quality Control Plan or the applicable Regional Board’s Basin Plan.
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`24.
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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 potential to
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`discharge, storm water associated with industrial activity that have not obtained an individual NPDES
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`permit must apply for coverage under the State’s General Permit by filing a Notice of Intent to Comply
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`(“NOI”). Dischargers have been required to file NOIs since March 30, 1992.
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`25.
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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 with the
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`BAT and BCT standards. For dischargers beginning industrial activities before October 1, 1992, the
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`General Permit requires that an initial SWPPP has been developed and implemented before October 1,
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`1992. The objective of the SWPPP requirement is to identify and evaluate sources of pollutants
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`associated with industrial activities that may affect the quality of storm water discharges and authorized
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`non-storm water discharges from the facility, and to implement best management practices (“BMPs”) to
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`reduce or prevent pollutants associated with industrial activities in storm water discharges and authorized
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`non-storm water discharges. General Permit, § X(C). These BMPs must achieve compliance with the
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`General Permit’s effluent limitations and receiving water limitations, including the BAT and BCT
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`technology mandates. To ensure compliance with the General Permit, the SWPPP must be evaluated and
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`revised as necessary. Id., § X(B). Failure to develop or implement an adequate SWPPP, or update or
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`revise an existing SWPPP as required, is a violation of the General Permit. Id., Fact Sheet § I(1).
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`26.
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`Section X of the General Permit sets forth the requirements for a SWPPP. Among other
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`requirements, the SWPPP must include: a pollution prevention team; a site map; a list of significant
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`materials handled and stored at the site; a description of potential pollutant sources; an assessment of
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`potential pollutant sources; and a description of the BMPs to be implemented at the facility that will
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`COMPLAINT
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`reduce or prevent pollutants in storm water discharges and authorized non-storm water discharges,
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`including structural BMPs where non-structural BMPs are not effective. Dischargers must develop and
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`implement a set of minimum BMPs, as well as any advanced BMPs as necessary to achieve BAT/BCT,
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`which serve as the basis for compliance with the General Permit’s technology-based effluent limitations
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`and receiving water limitations.
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`27.
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`The General Permit requires dischargers to implement and maintain, to the extent
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`feasible, all of the following minimum BMPs in order to reduce or prevent pollutants in industrial storm
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`water discharges: good housekeeping, preventive maintenance, spill and leak prevention and response,
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`material handling and waste management, erosion and sediment controls, an employee training program,
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`and quality assurance and record keeping. Id., § X(H)(1). Failure to implement these minimum BMPs is a
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`violation of the General Permit. Id., Fact Sheet § I(2)(o). The General Permit further requires dischargers
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`to implement and maintain, to the extent feasible, any one or more of the following advanced BMPs
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`necessary to reduce or prevent discharges of pollutants in industrial storm water discharges: exposure
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`minimization BMPs, storm water containment and discharge reduction BMPs, treatment control BMPs,
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`and other advanced BMPs. Id., § X(H)(2). Failure to implement advanced BMPs as necessary to achieve
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`compliance with either technology or water quality standards is a violation of the General Permit. Id. The
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`General Permit also requires that the SWPPP include BMP descriptions and a BMP Summary Table. Id.,
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`§ X(H)(4), (5).
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`28.
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`The General Permit requires dischargers to develop and implement an adequate written
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`Monitoring Implementation Program (“MIP”). See General Permit, §§ X(I), XI. The primary objective of
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`such monitoring is to both observe and to detect and measure the concentrations of pollutants in a
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`facility’s discharge to ensure compliance with the General Permit’s discharge prohibitions, effluent
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`limitations, and receiving water limitations. Adequate monitoring and reporting ensure that BMPs are
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`effectively reducing and/or eliminating pollutants at a facility, and are evaluated and revised whenever
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`appropriate to ensure compliance with the General Permit. As part of their monitoring program,
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`dischargers must identify all storm water discharge locations that produce a significant storm water
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`discharge, evaluate the effectiveness of BMPs in reducing pollutant loading, and evaluate whether
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`pollution control measures set out in the SWPPP are adequate and properly implemented. The General
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`Permit mandates that facility operators sample four storm water discharges from all storm water
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`discharge locations at a facility over the course of the reporting year. Id., §§ XI(B)(2), (3).
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`29.
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`Under the General Permit, facilities must analyze storm water samples for TSS, oil and
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`grease (“O&G”), pH, “[a]dditional parameters identified by the Discharger on a facility-specific basis
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`that serve as indicators of the presence of all industrial pollutants identified in the pollutant source
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`assessment, ” “[a]dditional applicable industrial parameters related to receiving waters with 303(d) listed
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`impairments or approved TMDLs [“Total Maximum Daily Loads”] based on the assessment in Section
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`X.G.2.a.ix,” and additional parameters applicable based on a facility’s Standard Industrial Classification
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`(“SIC”) code. General Permit, § XI(B)(6).
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`30.
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`Facilities are required to make monthly visual observations of storm water discharges.
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`The visual observations must represent the quality and quantity of the facility’s storm water discharges
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`from the storm event. General Permit, § XI(A).
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`31.
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`Section XI(B)(2) of the General Permit requires that dischargers collect and analyze
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`storm 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 (January 1 to
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`June 30). Storm water discharges trigger the sampling requirement under the General Permit when they
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`occur during facility operating hours and are preceded by 48-hours without storm water discharge.
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`General Permit, § XI(B). A sample must be collected from each discharge point at the facility within four
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`hours of the start of the discharge or the start of facility operations if the discharge occurs within the
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`previous 12-hour period. General Permit, § XI(B)(5).
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`COMPLAINT
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`32.
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`The General Permit’s sampling reduction provision allows a reduction in the number of
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`sampling locations within a drainage: “The Discharger may reduce the number of locations to be sampled
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`in each drainage area (e.g., roofs with multiple downspouts, loading/unloading areas with multiple storm
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`drains) if the industrial activities, BMPs, and physical characteristics (grade, surface materials, etc.) of
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`the drainage area for each location to be sampled are substantially similar to one another.” General
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`Permit, § XI(C)(4)(a); id. § XI(B)(4) (“Except as provided in Section XI.C.4 (Representative Sampling
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`Reduction), samples shall be collected from each drainage area at all discharge locations”). However, the
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`sampling reduction authorized by the General Permit does not allow a discharger to eliminate all
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`sampling from any drainage at the facility.
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`33.
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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 and the
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`need for additional BMPs based on visual observations and sampling and analysis results. General
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`Permit, § XV. Per Section XV(F) of the General Permit, a facility’s Annual Evaluation must include “[a]
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`review and effectiveness assessment of all BMPs for each area of industrial activity and associated
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`potential pollutant sources to determine if the BMPs are properly designed, implemented, and are
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`effective in reducing and preventing pollutants in industrial storm water discharges and authorized [non-
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`storm water discharges].” Id., § XV(F). After conducting the Annual Evaluation, “[t]he Discharger shall
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`revise the SWPPP, as appropriate, and implement the revisions within 90 days of the Annual
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`Evaluation.” Id., § XV. The General Permit then requires that a Discharger submit an Annual Report
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`which includes the date of the Annual Evaluation as well as “[a]n identification, including page numbers
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`and/or sections, of all revisions made to the SWPPP within the reporting year.” General Permit, § XVI.
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`34.
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`The General Permit does not provide for any mixing zones by dischargers. The General
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`Permit does not provide for any receiving water dilution credits to be applied by dischargers.
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`35.
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`The General Permit establishes annual Numeric Action Levels (“NALs”) and
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`COMPLAINT
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`instantaneous maximum NALs. The following annual NALs have been established under the General
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`Permit: TSS – 100 mg/L; iron – 1.0 mg/L; aluminum – 0.75 mg/L; and nitrate + nitrite – 0.68 mg/L. The
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`General Permit also establishes the following instantaneous maximum NALs: TSS – 400 mg/L; and pH –
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`6.0-9.0 s.u.
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`36.
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`EPA has established Parameter Benchmark Values as guidelines for determining
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`whether a facility discharging industrial storm water has implemented the requisite BAT and BCT. These
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`benchmarks represent pollutant concentrations at which a storm water discharge could potentially impair,
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`or contribute to impairing, water quality, or affect human health from ingestion of water or fish. The
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`following EPA benchmarks have been established for pollution parameters applicable to the Facility: pH
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`– 6.0 - 9.0 standard units (“s.u.”); total suspended solids (“TSS”) – 100 mg/L; aluminum – 0.75 mg/L;
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`and iron – 1.0 mg/L.
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`37.
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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 reporting
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`year runs from July 1 to June 30. An instantaneous maximum NAL exceedance occurs when two or more
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`analytical results from samples taken for any single parameter within a reporting year exceed the
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`instantaneous maximum NAL value for TSS or are outside of the instantaneous maximum NAL range for
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`pH.
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`38.
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`The General Permit requires that a Discharger compare the results of its storm water
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`discharge samples to the adopted annual NALs and instantaneous maximum NALs. General Permit §
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`XII(A). If sampling results for a given parameter indicate an NAL exceedance for that same parameter,
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`the Discharger attains “Level 1 status,” which commences on July 1 following the reporting year during
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`which the exceedance occurred. General Permit, § XII(C).
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`39.
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`By October 1 following commencement of Level 1 status, the Discharger must complete
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`a Level 1 Exceedance Response Action (“ERA”) Evaluation. General Permit, § XII(C)(1). As part of the
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`COMPLAINT
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`Level 1 ERA Evaluation, the Discharger must “[i]dentify in the evaluation the corresponding BMPs in
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`the SWPPP and any additional BMPs and SWPPP revisions necessary to prevent future
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`NAL…exceedances.” Id. No later than January 1 following commencement of Level 1 status, the
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`Discharger must submit via the State Board’s Stormwater Multiple Application and Report Tracking
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`System (“SMARTS”) a Level 1 ERA Report. General Permit, § XII(C)(2). The Level 1 ERA report must
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`be prepared by a Qualified Industrial Stormwater Practitioner (“QISP”) and must contain “[a] summary
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`of the Level 1 ERA Evaluation” and “[a] detailed description of the SWPPP revisions and any additional
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`BMPs for each parameter that exceeded an NAL….” Id. A Discharger can move back to Baseline status
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`from Level 1 status only when: (1) a Level 1 ERA report has been completed; (2) all identified additional
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`BMPs have been implemented; and (3) results from four consecutive QSEs sampled after “BMP
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`implementation indicate no additional NAL…exceedances for that parameter.” Id.
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`40.
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`If sampling results for a given parameter indicate an NAL exceedance while the
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`Discharger is in Level 1 status for that same parameter, the Discharger attains “Level 2 status,” which
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`commences on July 1 following the reporting year during which the exceedance occurred. General
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`Permit, § XII(D).
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`41.
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`By January 1 following the commencement of Level 2 status, the Dischargers must
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`submit via SMARTS a Level 2 ERA Action Plan prepared by a QISP that addresses each new Level 2
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`NAL exceedance. General Permit § XII(D)(1)(a). The Level 2 ERA Action Plan must identify which
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`demonstrations (Industrial Activity BMPs Demonstration, Non-Industrial Pollutant Source
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`Demonstration, and/or Natural Background Pollutant Source Demonstration) the Discharger has selected
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`to perform. Id. The Level 2 ERA Action Plan must include a schedule and a detailed description of the
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`tasks required to complete the Discharger’s selected demonstration(s). General Permit, § XII(D)(1)(e)
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`42.
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`By January 1 of the reporting year following the submittal of the Level 2 ERA Action
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`Plan, a Discharger with Level 2 status must submit via SMARTS a Level 2 ERA Technical Report
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`COMPLAINT
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`prepared by a QISP. General Permit § XII(D)(2). The Level 2 ERA Technical Report must include an
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`Industrial Activity BMPs Demonstration, a Non-Industrial Pollutant Source Demonstration, and/or a
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`Natural Background Pollutant Source Demonstration. Id. Dischargers who submit an Industrial Activity
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`BMPs Demonstration in accordance with sections XII(D)(2)(a)(i) through XII(D)(2)(a)(iii) of the General
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`Permit and who have implemented BMPs to prevent future NAL exceedance(s) return to baseline status
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`if the results from four consecutive QSEs indicate no NAL exceedance(s) for the parameter(s) for which
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`the Discharger has obtained Level 2 status. General Permit, § XII(D)(4)(a).
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`43.
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`EPA has also published numeric effluent limitations for discharges of wastewater from
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`landfills. 40 C.F.R. Part 445, Subpart B; 40 C.F.R. § 445.20. The General Permit requires facilities
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`falling within the non-hazardous waste landfill category to ensure any discharges of stormwater comply
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`with all numeric effluent limitations established by EPA at 40 C.F.R. Part 445, Subpart B. Section V(B)
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`of the General Permit states: “Industrial storm water discharges from facilities subject to storm water
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`ELGs in Subchapter N shall not exceed those storm water ELGs. The ELGs for industrial storm water
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`discharges subject to Subchapter N are in Attachment F of this General Permit.” General Permit, § V(B);
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`40 C.F.R. § 445.21.
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`44.
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`The ELGs apply to any drainage area within the Facility where storm water comes into
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`contact with any truck or equipment washing activities, any solid waste at the Facility, or any leach