Case 5:20-cv-08199 Document 1 Filed 11/20/20 Page 1 of 51
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`ANTHONY M. BARNES, SBN 199048
`Email: amb@atalawgroup.com
`JASON R. FLANDERS, SBN 238007
`Email: jrf@atalawgroup.com
`AQUA TERRA AERIS (ATA) LAW GROUP
`4030 Martin Luther King Jr. Way
`Oakland, CA 94609
`Telephone: (917) 371-8293
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`ERIN K. CLANCY, SBN 249197
`Email: erin@cacoastkeeper.org
`CALIFORNIA COASTKEEPER ALLIANCE
`1100 11th Street, 3rd Floor
`Sacramento, CA 95814
`Telephone: (619) 313-3037
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`Attorney for Plaintiffs
`CALIFORNIA COASTKEEPER, INC., dba
`CALIFORNIA COASTKEEPER ALLIANCE, and
`THE OTTER PROJECT, INC., for itself and for
`MONTEREY COASTKEEPER, a program of
`THE OTTER PROJECT, INC.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CALIFORNIA COASTKEEPER, INC., doing
`business as CALIFORNIA COASTKEEPER
`ALLIANCE, a nonprofit corporation, and THE
`OTTER PROJECT, INC., for itself and for
`MONTEREY COASTKEEPER, a program of
`THE OTTER PROJECT, INC., a nonprofit
`corporation,
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` Plaintiffs,
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`vs.
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`Case No.:
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
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`(Federal Water Pollution Control Act, 33
`U.S.C. §§ 1251 et seq.)
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`HILDEBRAND & SONS TRUCKING, INC.,
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` Defendants.
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`CALIFORNIA COASTKEEPER, INC., doing business as CALIFORNIA COASTKEEPER
`ALLIANCE (“CCKA”), THE OTTER PROJECT, INC., for itself and for MONTEREY
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`COMPLAINT
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`COASTKEEPER, a program of THE OTTER PROJECT, INC. (“TOP”) (collectively, “Plaintiffs”),
`by and through their counsel of record, hereby allege as follows:
`JURISDICTION AND VENUE.
`I.
`This is a civil suit brought under the citizen suit enforcement provision of the Federal
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`Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (“Clean Water Act” or “CWA”). (See 33
`U.S.C. § 1365.) This Court has subject matter jurisdiction over the parties and this action pursuant
`to 33 U.S.C. § 1365(a)(1) and 28 U.S.C. §§ 1331 and 2201 (an action for declaratory and injunctive
`relief arising under the Constitution and laws of the United States).
`On August 15, 2020, Plaintiffs issued a 60-day notice letter (“Notice Letter”) to
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`Hildebrand & Sons Trucking, Inc. (“Defendant”), for the industrial facility in Royal Oaks, California,
`under its control. The Notice Letter informed Defendant of its violations of California’s General
`Permit for Discharges of Storm Water Associated with Industrial Activities (National Pollutant
`Discharge Elimination System (NPDES) General Permit No. CAS000001, State Water Resources
`Control Board Water Quality Order No. 97-03-DWQ), as superseded by Order No. 2014-0057-DWQ
`and amended by Order No. 2015-0122–DWQ (hereinafter referred to as the “Storm Water Permit),
`and the Clean Water Act at Defendant’s commercial trucking facility located 6 Lewis Road Royal
`Oaks, CA 95076 (“Facility”). The Notice Letter informed Defendant of Plaintiffs’ intent to file suit
`against Defendant to enforce the Storm Water Permit and the Clean Water Act.
`The Notice Letter was sent to Defendant’s President and registered agent for service
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`of process, Kelvin Hildebrand, as required by 40 C.F.R. § 135.2(a)(2). The Notice Letter was also
`sent to the Administrator of the United States Environmental Protection Agency (“EPA”), the
`Administrator of EPA Region IX, the Executive Director of the State Water Resources Control Board
`(“State Board”), and the Executive Officer of the Central Coast Regional Water Quality Control
`Board (“Regional Board”) as required by Section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A).
`The Notice Letter is attached hereto as Exhibit A and is fully incorporated herein by reference.
`More than sixty (60) days have passed since the Notice Letter was served on the
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`Defendant and the State and Federal agencies. Plaintiffs are informed and believe, and thereon allege,
`that neither the EPA nor the State of California has commenced or is diligently prosecuting an action
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`COMPLAINT
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`to redress the violations alleged in the Notice Letter and in this complaint. (See 33 U.S.C. §
`1365(b)(1)(B).) This action is not barred by any prior administrative penalty under Section 309(g) of
`the CWA, 33 U.S.C. § 1319(g).
`Venue is proper in the Northern District of California pursuant to Section 505(c)(1) of
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`the CWA, 33 U.S.C. § 1365(c)(1), because the sources of the violations are located within this judicial
`district.
`INTRODUCTION.
`II.
`With every rainfall event, hundreds of millions of gallons of polluted rainwater,
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`originating from industrial operations such as the Facility referenced herein, pour into storm drains
`and local waterways. The consensus among regulatory agencies and water quality specialists is that
`storm water pollution accounts for more than half of the total pollution entering marine and river
`environments each year. These surface waters, known as Receiving Waters, are ecologically sensitive
`areas. Although pollution and habitat destruction have drastically diminished once abundant and
`varied fisheries, these waters are still essential habitat for dozens of fish and bird species as well as
`macro-invertebrate and invertebrate species. Storm water and non-storm water contain sediment,
`heavy metals, such as aluminum, iron, chromium, copper, lead, mercury, nickel, and zinc, as well as,
`high concentrations of nitrate and nitrite, and other pollutants. Exposure to polluted storm water harms
`the special aesthetic and recreational significance that the surface waters have for people in the
`surrounding communities. The public’s use of the surface waters exposes many people to toxic metals
`and other contaminants in storm water and non-storm water discharges. Non-contact recreational and
`aesthetic opportunities, such as wildlife observation, are also impaired by polluted discharges to the
`Receiving Waters.
`This Complaint seeks a declaratory judgment, injunctive relief, the imposition of civil
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`penalties, and the award of costs, including attorney and expert witness fees, for Defendant’s
`substantive and procedural violations of the Storm Water Permit and the CWA resulting from
`Defendant’s operations at the Facility.
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`COMPLAINT
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`Plaintiffs specifically allege violations regarding Defendant’s discharge of pollutants
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`from the Facility into waters of the United States; violations of the filing, monitoring and reporting,
`and best management practice requirements; and violations of other procedural and substantive
`requirements of the Storm Water Permit and the Clean Water Act, are ongoing and continuous.
`PARTIES.
`III.
`The Plaintiffs.
`A.
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`California Coastkeeper Alliance is a non-profit public benefit organization dedicated
`to protecting California’s coasts and oceans. The Otter Project, Inc., is a non-profit public benefit
`organization working to protect our watersheds and coastal oceans for the benefit of California’s
`Southern Sea Otters and humans through science-based policy and advocacy. Monterey Coastkeeper
`is a program of the Otter Project, Inc., and a participant in the California Coastkeeper Alliance. These
`three organizations shall collectively be known as “The Plaintiffs.” The members of these
`organizations reside in the communities adjacent to the Pajaro River (the “Receiving Waters”) into
`which the Defendant indirectly discharges polluted storm water. As explained in detail below, the
`Defendant continuously discharges pollutants into the Receiving Waters, in violation of the Clean
`Water Act and the Storm Water Permit. The Plaintiffs’ members picnic, fish, hike, bike, and enjoy
`the wildlife of the Pajaro River and the estuary of the Monterey Bay. Additionally, the members use
`the Receiving Waters to engage in scientific study through pollution and habitat monitoring to
`promote restoration activities. The unlawful discharge of pollutants from the Facility into the
`Receiving Waters impairs the Plaintiffs’ members’ use and enjoyment of these waters. Thus, the
`interests of the members have been, are being, and will continue to be adversely affected by the
`Defendant’s failure to comply with the Clean Water Act and the Storm Water Permit.
`Plaintiffs are dedicated to the preservation, protection, and defense of the environment,
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`and the wildlife and the natural resources of all waters of California. To further these goals, Plaintiffs
`are actively seeking federal and state agency implementation of the Clean Water Act and other laws
`and, where necessary, directly initiating citizen enforcement. As referenced herein, members of
`Plaintiffs use and enjoy the Receiving Waters herein into which Defendant has caused, is causing,
`and will continue to cause, pollutants to be discharged. Defendant’s discharges of pollutants threaten
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`or impair each of those uses or contribute to such threats and impairments. Thus, the interests of
`Plaintiffs’ members have been, are being, and will continue to be adversely affected by Defendant’s
`ongoing failure to comply with the Clean Water Act and/or the Storm Water Permit. The relief sought
`herein will redress the harms to Plaintiffs caused by Defendant’s activities.
`Defendant’s failure to comply with the procedural and substantive requirements of the
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`Storm Water Permit and/or the Clean Water Act, including but not limited to Defendant’s discharge
`of polluted stormwater and non-stormwater from the Facility, negatively impacts and impairs
`Plaintiffs’ members’ use and enjoyment of these waters.
`Continuing commission of the acts and omissions alleged herein will irreparably harm
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`Plaintiffs’ members, for which they have no plain, speedy, or adequate remedy at law.
`The Defendant.
`B.
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`Plaintiffs are informed and believe, and thereon allege, that the Defendant is the owner
`and operator of the Facility located at 6 Lewis Road, Royal Oaks, CA 95076.
`Plaintiffs are informed and believe, and thereon allege, that the Defendant is an active
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`California corporation, registered with the California Secretary of State as File Number C0329309.
`STATUTORY BACKGROUND.
`IV.
`The Clean Water Act.
`A.
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`Section 301(a) of the CWA prohibits the discharge of any pollutant into waters of the
`United States unless the discharge complies with various enumerated sections of the CWA. Among
`other things, Section 301(a) prohibits discharges not authorized by, or in violation of, the terms of a
`National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to Section 402
`of the CWA, 33 U.S.C. §§ 1311(a) and 1342(b).
`Section 402(p) of the CWA 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 NPDES permit programs are authorized by Section 402(p) to regulate industrial storm water
`discharges through individual permits issued to dischargers and/or through the issuance of a single,
`statewide general permit applicable to all industrial storm water dischargers. (33 U.S.C. § 1342.)
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`Section 301(b) of the CWA requires that all point source dischargers, including those
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`discharging polluted storm water, must achieve technology-based effluent limitations by utilizing
`Best Available Technology Economically Achievable (“BAT”) for toxic and nonconventional
`pollutants and the Best Conventional Pollutant Control Technology (“BCT”) for conventional
`pollutants. (See 33 U.S.C. § 1311(b); 40 C.F.R. § 125.3(a)(2)(ii)-(iii).)
`The CWA requires point source discharges of pollutants to navigable waters be
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`regulated by an NPDES permit. (33 U.S.C. § 1311(a); see 40 C.F.R. § 122.26(c)(1).)
`The “discharge of a pollutant” means, among other things, “any addition of any
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`pollutant to navigable waters from any point source.” (33 U.S.C. § 1362(12); see 40 C.F.R. § 122.2.)
`The term “pollutant” includes “dredged spoil, solid waste, incinerator residue, sewage,
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`garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
`wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural
`waste discharged into water.” (33 U.S.C. § 1362(6); see 40 C.F.R. § 122.2.)
`The term “point source” means any “discernible, confined and discrete conveyance,
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`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
`rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which
`pollutants are or may be discharged.” (33 U.S.C. § 1362(14); see 40 C.F.R. § 122.2.)
`“Navigable waters” means “the waters of the United States.” (33 U.S.C. 1362(7).)
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`“Waters of the United States” are defined as “navigable waters,” and “all waters which
`are currently used, were used in the past, or may be susceptible to use in interstate or foreign
`commerce, including waters which are subject to the ebb and flow of the tide.” (33 U.S.C. § 1362(7).)
`The EPA promulgated regulations for the Section 402 NPDES permit program
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`defining “waters of the United States.” (40 C.F.R. § 122.2.) The EPA interprets waters of the United
`States to include not only traditionally navigable waters but also other waters, including waters
`tributary to navigable waters, wetlands adjacent to navigable waters, and other waters including
`intermittent streams that could affect interstate commerce.
`The CWA confers jurisdiction over non-navigable waters that are tributaries to
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`traditionally navigable waters where the non-navigable water at issue has a significant nexus to the
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`navigable water. (See Rapanos v. United States, 547 U.S. 715 (2006); see also N. Cal. River Watch
`v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007).)
`A significant nexus is established if the “[receiving waters], either alone or in
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`combination with similarly situated lands in the region, significantly affect the chemical, physical,
`and biological integrity of other covered waters.” (Id., at 779; N. Cal. River Watch, 496 F.3d at 999-
`1000.)
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`A significant nexus is also established if waters that are tributary to navigable waters
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`have flood control properties, including functions such as the reduction of flow, pollutant trapping,
`and nutrient recycling. (Id., at 782; N. Cal. River Watch, 496 F.3d at 1000-1001.)
`Section 505(a)(1) and Section 505(f) of the CWA provide for citizen enforcement
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`actions against any “person” who is alleged to be in violation of an “effluent standard or limitation .
`. . or an order issued by the Administrator or a State with respect to such a standard or limitation.”
`(See 33 U.S.C. §§ 1365(a)(i) and 1365(f).)
`The Defendant is “person[s]” within the meaning of Section 502(5) of the CWA, 33
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`U.S.C. § 1362(5).
`An action for injunctive relief is authorized under Section 505(a) of the CWA, 33
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`U.S.C. § 1365(a).
`Pursuant to sections 309(d) and 505 of the CWA, each separate violation of the CWA
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`occurring before November 2, 2015 subjects the violator to a penalty of up to $37,500 per day;
`violations occurring after November 2, 2015 and assessed on or after January 15, 2018 subjects the
`violator to a penalty of up to $53,484 per day. (See 33 U.S.C. §§ 1319(d) and 1365(a); 40 C.F.R. §
`19.4)(Adjustment of Civil Monetary Penalties for Inflation).)
`Section 505(d) of the CWA, 33 U.S.C. § 1365(d), permits prevailing or substantially
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`prevailing parties to recover litigation costs, including attorneys’ fees, experts’ fees, and consultants’
`fees.
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`California’s Storm Water Permit.
`B.
`Section 402(b) of the CWA, 33 U.S.C. § 1342(b), allows each state to administer its
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`own EPA-approved NPDES permit program for regulating the discharge of pollutants, including
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`discharges of polluted storm water. States with approved NPDES permit programs are authorized by
`Section 402(b) to regulate industrial storm water discharges through individual NPDES permits
`issued to dischargers and/or through the issuance of a statewide general NPDES permit applicable to
`all industrial storm water dischargers. (Id.)
`Pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, the Administrator of the EPA
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`has authorized California to issue NPDES permits, including general NPDES permits. California has
`designated the State Board and the Regional Water Quality Control Boards to administer its NPDES
`program. (City of Rancho Cucamonga v. Regional Water Quality Control Bd., 135 Cal. App. 4th
`1377, 1380-81 (2006).) In California, the State Board is charged with regulating pollutants to protect
`California’s water resources. (See Cal. Water Code § 13001.)
`The Storm Water Permit is a statewide general NPDES permit issued by the State
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`Board pursuant to Section 402 of the CWA, 33 U.S.C. §§ 1342(b), (p), and 40 C.F.R § 123.25.
`Violations of the Storm Water Permit are also violations of the CWA. (Storm Water Permit, Section
`XXI(A).)
`Section 303 of the CWA, 33 U.S.C. § 1313, requires states to adopt Water Quality
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`Standards, including water quality objectives and beneficial uses for navigable waters of the United
`States. The CWA prohibits discharges from causing or contributing to a violation of such state Water
`Quality Standards. (See 33 U.S.C. § 1313(b)(1)(c); 40 C.F.R. §§ 122.4(a), (d); 40 C.F.R. §§
`122.44(D)(1).)
`Under the applicable EPA regulations all surface and ground waters of the State of
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`California are considered to be suitable, or potentially suitable, for municipal or domestic water
`supply and should be so designated by the Regional Boards unless a strict use attainability analysis is
`performed based upon a structured scientific assessment of the factors affecting the attainment of uses
`specified in Section 101(a)(2) of the CWA (the so called "fishable/swimmable" uses). (40 CFR
`131.10(a) and (g).)
`The State Board elected to issue a statewide general permit for industrial discharges.
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`The State Board issued the Storm Water Permit on or about November 19, 1991, modified the Storm
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`Water Permit on or about September 17, 1992, and reissued the Storm Water Permit on or about April
`17, 1997, pursuant to Section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p).
`On July 1, 2015, the operative Storm Water Permit became effective and was issued
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`as NPDES General Permit No. CAS000001 (the same NPDES permit number as the 1997 Permit).
`Storm Water Permit, Section I(A) (Finding 4). The Storm Water Permit superseded the 1997 Permit
`except for enforcement purposes. (Id., at Section I(A) (Finding 6).) The substantive requirements of
`the Storm Water Permit are the same or more stringent than the requirements of 1997 Permit.
`On November 6, 2018, the State Board issued an amended but not yet adopted Order
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`No. 2015-0122-DWQ, incorporating: 1) Federal Sufficiently Sensitive Test Method Ruling; 2)
`TMDL Implementation Requirements; and 3) Statewide Compliance Options Incentivizing On-Site
`or Regional Storm Water Capture and Use (“2018 Amendment”).
`In order to discharge storm water lawfully in California, industrial dischargers must
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`secure coverage under the Storm Water Permit and comply with its terms or obtain and comply with
`an individual NPDES permit. (Storm Water Permit, Section I(A) (Findings 8, 12).) Prior to beginning
`industrial operations, dischargers are required to apply for coverage under the Storm Water Permit by
`submitting a Notice of Intent to Comply with the Terms of the General Permit to Discharge Storm
`Water Associated with Industrial Activity (“NOI”) to the State Board. (See Storm Water Permit,
`Section I(A) (Finding 17), Section II(B).)
`Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), provides for citizen
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`enforcement actions against any “person” who is alleged to be in violation of an “effluent standard or
`limitation . . . or an order issued by the Administrator or a State with respect to such a standard or
`limitation.” (See 33 U.S.C. §§ 1365(a)(i), 1365(f).)
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`C.
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`The Storm Water Permit’s Discharge Prohibitions, Effluent Limitations, and
`Receiving Water Limitations.
`The Storm Water Permit contains certain absolute prohibitions. The Storm Water
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`Permit prohibits the direct or indirect discharge of materials other than storm water (“non-storm water
`discharges”), which are not otherwise authorized by an NPDES permit, to the waters of the United
`States. (Storm Water Permit, Discharge Prohibition III(B).)
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`Effluent Limitation V(A) of the Storm Water Permit requires dischargers to reduce or
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`prevent pollutants associated with industrial activity in storm water discharges through the
`implementation of Best Available Technology Economically Achievable (“BAT”) for toxic or non-
`conventional pollutants, and Best Conventional Pollutant Control Technology (“BCT”) for
`conventional pollutants. Toxic pollutants are listed at 40 C.F.R. § 401.15 and include copper, lead,
`and zinc, among others. Conventional pollutants are listed at 40 C.F.R. § 401.16 and include
`biological oxygen demand (“BOD”), TSS, oil and grease (“O&G”), pH, and fecal coliform.
`Discharge Prohibition III(C) of the Storm Water Permit prohibits storm water
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`discharges that cause or threaten to cause pollution, contamination, or nuisance.
`Under the CWA and the Storm Water Permit, dischargers must employ Best
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`Management Practices (“BMPs”) that constitute BAT and BCT to reduce or eliminate storm water
`pollution. (33 U.S.C. § 1311(b); Storm Water Permit, Effluent Limitation V(A).) EPA has developed
`benchmark levels (“Benchmarks”) that are objective guidelines to evaluate whether a permittee’s
`BMPs achieve compliance with the BAT/BCT standards. (See Final National Pollutant Discharge
`Elimination System (NPDES) General Permit for Storm Water Discharges From Industrial Activities
`(“Multi-Sector Permit”), 80 Fed. Reg. 34,403, 34,405 (June 16, 2015); Multi-Sector Permit, 73 Fed.
`Reg. 56,572, 56,574 (Sept. 29, 2008; Multi-Sector Permit, 65 Fed. Reg. 64,746, 64,766-67 (Oct. 30,
`2000).)
`The EPA established Parameter Benchmark Values for the following parameters,
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`among many others: total suspended solids (“TSS”) - 100 mg/L; oil & grease (“O&G”) - 15 mg/L;
`total organic carbon (“TOC”) - 110 mg/l; aluminum (“Al”) - 0.75 mg/l; iron (“Fe”) - 1 mg/l; copper
`(“Cu”) - 0.0123 mg/l; zinc (“Zn”) - 0.11 mg/L; pH - 6-9 s.u.; and nitrate & nitrite nitrogen (“N+N”)
`- 0.68 mg/L. The Water Quality Control Plan for the Central Coastal Basin, which covers the region
`in which the Facility is located, requires a narrower pH range of 7.0 – 8.5 for all inland surface waters,
`enclosed bays and estuaries, marine habitat, cold fresh water habitat, and warm fresh water habitat,
`and 6.5 - 8.3 pH units for most beneficial uses including municipal and domestic supply, water contact
`recreation, non-contact water recreation, and agricultural supply. The Storm Water Permit contains
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`Numeric Action Levels (“NALs”) for these same parameters that generally mirror the Benchmark
`Values. (Storm Water Permit, Section I(M) (Finding 62).)
`Receiving Water Limitation VI(B) of the Storm Water Permit prohibits storm water
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`discharges from adversely impacting human health or the environment. Further, discharges with
`pollutant levels that exceed levels known to adversely impact aquatic species and the environment
`are violations of the Storm Water Permit’s Receiving Water Limitation.
`Receiving Water Limitation VI(A) of the Storm Water Permit prohibits storm water
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`discharges that cause or contribute to an exceedance of any “applicable Water Quality Standard in a
`Statewide Water Quality Control Plan or the applicable Regional Board’s Basin Plan.”
`50. Water Quality Standards (“WQS”) are pollutant concentration levels determined by
`the State Board, the various Regional Boards, and the EPA, to be protective of the beneficial uses of
`the waters that receive polluted discharges.
`The State of California regulates water quality through the State Board and the nine
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`Regional Boards. Each Regional Board maintains a separate Water Quality Control Plan which
`contains WQS for water bodies within its geographic area.
`As referenced in ¶47, supra, the State Water Quality Control Board has issued the
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`Water Quality Control Plan for the Central Coastal Basin (“the Basin Plan”) to establish water quality
`objectives, implementation plans for point and non-point source discharges, prohibitions, and to
`further statewide plans and policies. The Basin Plan states that “[a]ll waters shall be maintained free
`of toxic substances in concentrations which are toxic to, or which produce detrimental physiological
`responses in, human, plant, animal, or aquatic life.” (Basin Plan, 3.3.2.1.) The Basin Plan sets forth
`water quality objectives for dissolved metals such as aluminum, arsenic, and mercury. (Basin Plan,
`Tables 3-1 - 3-4.) The Basin Plan decrees that waters shall not contain chemical constituents,
`discoloration, substances, or floating material in concentrations that cause nuisance or adversely
`affect beneficial uses. (Basin Plan, 3.3.2.1.)
`In addition to the de facto beneficial uses of swimming and fishing applicable to the
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`Receiving Waters herein (see 40 CFR 131.10(a) and (g)), the Basin Plan also identifies present and
`potential beneficial uses for various hydrologic units leading to the Pajaro River Basin, with municipal
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`and domestic supply, agricultural supply, industrial process supply, industrial service supply,
`groundwater recharge, fresh water replenishment, navigation, hydropower generation, water contact
`recreation, non-contact water recreation, commercial and sport fishing, aquaculture, warm fresh water
`habitat, cold fresh water habitat, inland saline water habitat, estuarine habitat, marine habitat, wildlife
`habitat, preservation of biological habitats of special significance, rare, threatened or endangered
`species migration of aquatic organisms, spawning, reproduction and/or early development, and
`shellfish harvesting. (Basin Plan, 2.1.)
`Surface waters that cannot support the Beneficial Uses of those waters listed in the
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`Basin Plan – including the Pajaro River Basin - or deemed on a case-by-case basis, would be
`designated as impaired water bodies pursuant to Section 303(d) of the Clean Water Act.
`According to the 2016 303(d) List of Impaired Water Bodies, the Pajaro River is listed
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`for Chlordane, Chloride, Chlorpyrifos, Chromium, DDD (Dichlorodiphenyldichloroethane), DDE
`(Dichlorodiphenyldichloroethylene), DDT (Dichlorodiphenyltrichloroethane), Diazinon, Fecal
`Coliform, Nitrate, Oxygen
`(Dissolved),
`PCBs
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`biphenyls),
`pH,
`Sedimentation/Siltation, Sodium, Toxicity, and Turbidity. Thus, the Receiving Waters for pollution
`from the Facility are impaired, and the Defendant’s illegal discharges of pollutants above the WQS
`contributes to the continued impairment of the beneficial uses in the watershed.
`In addition, EPA has promulgated WQS for toxic priority pollutants in all California
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`water bodies (“California Toxics Rule” or “CTR”), which apply to the Receiving Waters, unless
`expressly superseded by the Basin Plan. (65 Fed. Reg. 31,682 (May 18, 2000); 40 C.F.R. § 131.38.)
`The CTR sets forth lower numeric limits for zinc and other pollutants; CTR criteria
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`can be as low as 0.067 mg/L for zinc in freshwater surface waters with water hardness calculation of
`50 mg/L.1
`The CTR includes further numeric criteria set to protect human health and the
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`environment in the State of California. (See Establishment of Numeric Criteria for Priority Toxic
`Pollutants for the State of California Factsheet, EPA-823-00-008 (April 2000).)
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`1 The CTR numeric limits, or “criteria,” are expressed as dissolved metal concentrations in the CTR, but the Storm Water
`Permit required permittees to report their sample results as total metal concentrations. See Storm Water Permit,
`Attachment H at 18.
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`Discharges with pollutant levels in excess of the CTR criteria, the Basin Plan, and/or
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`other applicable WQS are violations of Section VI(A) of the Storm Water Permit.
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`D.
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`The Storm Water Permit’s Storm Water Pollution Prevention Plan
`Requirements.
`Dischargers must develop and implement a Storm Water Pollution Prevention Plan
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`(“SWPPP”) at the time industrial activities begin. (Storm Water Permit, Sections I(I) (Finding 54),
`X(B).) The SWPPP must identify and evaluate sources of pollutants associated with industrial
`activities that may affect the quality of storm water and authorized non-storm water discharges from
`the facility. (Storm Water Permit, Section X(G).) The SWPPP must identify and evaluate sources of
`pollutants associated with industrial activities that may affect the quality of storm water and
`authorized non-storm water discharges from the facility. (Storm Water Permit, Section X(G).) The
`SWPPP must identify and implement site-specific BMPs to reduce or prevent pollutants associated
`with industrial activities in storm water and authorized non-storm water discharges. (Storm Water
`Permit, Section X(H).) The SWPPP must include BMPs that achieve pollutant discharge reductions
`attainable via BAT and BCT. (Storm Water Permit, Section I(D) (Finding 32), Section X(C).)
`The SWPPP must include: a narrative description and summary of all industrial
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`activity, potential sources of pollutants, and potential pollutants; a site map indicating the storm water
`conveyance system, associated points of discharge, direction of flow, areas of actual and potential
`pollutant contact, including the extent of pollution-generating activities, nearby water bodies, and
`pollutants control measures; a description of storm water management practices; a description of the
`BMPs to be implemented to reduce or prevent pollutants in storm water discharges and authorized
`non-storm water discharges; the identification and elimination of non-storm water discharges; the
`location where significant materials are being shipped, stored, received, and handled, as well as the
`typical quantities of such materials and the frequency wi