UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`
`Civil Case No.: 8:20-cv-1160
`
`
`
`
`
`
`
`vs.
`
` Plaintiffs,
`
`SUNCOAST WATERKEEPER, TAMPA
`BAY WATERKEEPER, and OUR
`CHILDREN’S EARTH FOUNDATION,
`
`
`
`
`
`
`TRADEMARK METALS RECYCLING
`LLC,
`
` Defendant.
`
`
`Case 8:20-cv-01160-MSS-AEP Document 1 Filed 05/19/20 Page 1 of 40 PageID 1
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`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
`
`SUNCOAST WATERKEEPER (“SCWK”), TAMPA BAY WATERKEEPER
`(“TBWK”), and OUR CHILDREN’S EARTH FOUNDATION (“OCE”) (collectively,
`“Plaintiffs”), by and through their counsel, hereby allege:
`I.
`JURISDICTION AND VENUE
`1.
`This is a civil suit brought under the citizen suit enforcement provisions of the
`Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (the “Clean Water Act” or “the
`Act”). This Court has subject matter jurisdiction over the parties and the subject matter of this
`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 action arising under the laws of the United States). The relief requested is authorized
`pursuant to 28 U.S.C. §§ 2201-02 (power to issue declaratory relief in case of actual controversy
`and further necessary relief based on such a declaration); 33 U.S.C. §§ 1319(b), 1365(a)
`(injunctive relief); and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
`2.
`On March 10, 2020, Plaintiffs provided notice of Defendant’s violations of the
`Act, and of Plaintiffs’ intention to file suit against Defendant (“notice letter”), to the
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`Administrator of the United States Environmental Protection Agency (“EPA”); the Regional
`Administrator of EPA Region 4; the Secretary of the Florida Department of Environmental
`Protection (“DEP”); the Director of the Southwest District of the DEP; and to Defendant, as
`required by the Act, 33 U.S.C. § 1365(b)(1)(A). A true and correct copy of Plaintiffs’ notice
`letter is attached as Exhibit A, and is incorporated by reference.
`3.
`More than sixty days have passed since notice was served on Defendant and the
`State and federal agencies. Plaintiffs are informed and believe, and thereupon allege, that neither
`the EPA nor the State of Florida has commenced or is diligently prosecuting a court action to
`redress the violations alleged in this complaint. This action’s claim for civil penalties is not
`barred by any prior administrative penalty under Section 309(g) of the Act, 33 U.S.C. § 1319(g).
`4.
`Venue is proper in the Middle District of Florida pursuant to Section 505(c)(1) of
`the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this
`judicial district.
`II.
`INTRODUCTION
`5.
`Defendant, a scrap metal recycler, discharges polluted stormwater from six metal
`recycling yards in the Tampa Bay and Sarasota Bay area. These discharges are in violation of
`the Clean Water Act and the State of Florida’s Multi-Sector Generic Permit for Stormwater
`Discharge Associated with Industrial Activity.
`6.
`Florida’s Multi-Sector Generic Permit is a National Pollution Discharge
`Elimination System (“NPDES”) permit required under the Act that is issued by the DEP under
`the authority of Florida Statute Section 403.0885, which authorizes Florida to implement the
`NPDES program pursuant to authority delegated to the State of Florida by the EPA. Pursuant to
`Florida Administrative Code (“F.A.C.”) Rule 62-621.300(5)(a), Florida adopted the EPA’s
`original Multi-Sector General Permit issued on September 29, 1995 (60 Fed. Reg. 50804) and
`subsequent corrections and modifications as amended on February 9, 1996 (61 Fed. Reg. 5248),
`February 20, 1996 (61 Fed. Reg. 6412), August 7, 1998 (63 Fed. Reg. 42534), September 30,
`1998 (63 Fed. Reg. 52430), and January 19, 1999 (64 Fed. Reg. 2898) (hereinafter collectively
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`referred to as the “MSGP”). Defendant’s violations of the substantive and procedural
`requirements of the MSGP and the Act are ongoing and continuous.
`7.
`With every significant rainfall event, millions of gallons of polluted storm water
`originating from industrial operations, such as those conducted by Defendant, pour into storm
`drains and local waterways. In most of the Sarasota Bay and Tampa Bay area, storm water flows
`untreated either directly, or through municipal storm drain systems into Sarasota Bay, Tampa
`Bay, and other receiving waters. Stormwater pollution accounts for the majority of the pollution
`entering the Sarasota Bay and Tampa Bay environment each year. The effects of nonpoint
`source pollutants on specific waters vary and may not always be fully assessed. Stormwater
`pollution poses a health risk to humans, harms marine life, closes beaches, contaminates the
`ocean, and harms the environment. These contaminated storm water discharges can and must be
`controlled for the Sarasota Bay and Tampa Bay ecosystems to regain their health.
`8.
`Tampa and Sarasota Bay area waters are ecologically sensitive estuarine systems
`with special aesthetic, economic and recreational significance for people living in the
`surrounding communities. Included amongst these resources are specially recognized and
`protected Aquatic Preserves and designated Outstanding Florida Waters, pursuant to 62-302.400
`F.A.C., as worthy of special water quality protections because of their natural attributes. Portions
`of the Tampa and Sarasota Bay estuaries, which receive toxic metals and other contaminants in
`storm water discharges from Defendant’s industrial activities are listed on the State of Florida’s
`Clean Water Act Section 303(d) list of impaired water bodies. A water body that is listed as
`impaired cannot support its designated beneficial uses. The beneficial uses of the waters that
`receive pollutants from Defendant’s industrial stormwater discharges include habitat support for
`commercial fishing and sport fishing, estuarine habitat, wildlife habitat, fish migration, fish
`spawning, preservation of rare and endangered species, shellfish propagation and harvesting,
`contact and non-contact water recreation, industrial service and agricultural water supply, and
`navigation. DEP Water Quality Standards 62-302 (2010).
`9.
`Tampa Bay and Sarasota Bay area waters provide essential habitat for dozens of
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`fish and bird species as well as macro-invertebrate and invertebrate species. Storm water
`contaminated with sediment, heavy metals, and other pollutants harm the special aesthetic and
`recreational significance that Tampa Bay and Sarasota Bay area waters have for people in the
`surrounding communities. The public’s use of Tampa Bay and Sarasota Bay area waters for
`recreation, wildlife observation, aesthetic enjoyment, educational study, and spiritual
`contemplation exposes many people to toxic metals and other contaminants in storm water
`discharges and impairs those activities.
`III.
`PARTIES
`10.
`Plaintiff Suncoast Waterkeeper is a non-profit public benefit corporation with
`members throughout Southwest Florida, including Pinellas, Hillsborough, Sarasota, Manatee,
`and Charlotte Counties. SCWK is dedicated to protecting and restoring the Florida Suncoast’s
`waterways on behalf of its members through enforcement, fieldwork, advocacy, and
`environmental education for the benefit of the communities and SCWK’s members that rely
`upon these precious coastal resources. To further its mission, SCWK actively seeks federal and
`state implementation of the Clean Water Act, and, where necessary, directly initiates
`enforcement actions on behalf of itself and its members. SCWK has been registered as a non-
`profit corporation in Florida since 2012 and has maintained its good and current standing in
`Florida since that time. SCWK is a licensed member of Waterkeeper Alliance, Inc., an
`international non-profit environmental organization, made up of over 300 separate Waterkeeper
`programs, such as SCWK. SCWK’s office is located in Sarasota, Florida.
`11.
` Members of SCWK use and enjoy the waters into which Defendant has caused, is
`causing, and will continue to cause, pollutants to be discharged. Members of SCWK use those
`waters for fishing, boating, body contact water sports and other forms of recreation, wildlife
`observation, aesthetic enjoyment, educational study, and spiritual contemplation. Defendant’s
`discharges of pollutants threaten or impair each of those uses or contribute to such threats and
`impairments. Thus, the interests of SCWK’s members have been, are being, and will continue to
`be adversely affected by Defendant’s failure to comply with the Act and the MSGP. The relief
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`sought herein will redress the harms to SCWK caused by Defendant’s activities.
`12.
` Plaintiff Tampa Bay Waterkeeper is a non-profit public benefit corporation
`organized under the laws of the State of Florida with members throughout the Tampa Bay
`watershed. TBWK is dedicated to protecting and improving the Tampa Bay watershed while
`ensuring swimmable, drinkable and fishable water for all. TBWK’s approach combines sound
`science, policy advocacy, grassroots community engagement and education to stand up for clean
`water together as a community, ensuring a clean and vibrant future for the Tampa Bay
`watershed. To further its mission, TBWK actively seeks federal and state implementation of the
`Clean Water Act, and, where necessary, directly initiates enforcement actions on behalf of itself
`and its members. TBWK has been registered as a non-profit corporation in Florida since 2017
`and, like SCWK, is a licensed member of Waterkeeper Alliance, Inc. TBWK’s office is located
`in St. Petersburg, Florida.
`13. Members of TBWK use and enjoy the waters into which Defendant has caused, is
`causing, and will continue to cause, pollutants to be discharged. Members of TBWK use those
`waters for fishing, boating, body contact water sports and other forms of recreation, wildlife
`observation, aesthetic enjoyment, educational study, and spiritual contemplation. Defendant’s
`discharges of pollutants threaten or impair each of those uses or contribute to such threats and
`impairments. Thus, the interests of TBWK’s members have been, are being, and will continue to
`be adversely affected by Defendant’s failure to comply with the Act and the MSGP. The relief
`sought herein will redress the harms to TBWK caused by Defendant’s activities.
`14.
` Plaintiff Our Children’s Earth Foundation is a non-profit environmental
`organization with members living throughout western Florida, including members that live in
`close proximity to Tampa and Sarasota Bays. OCE’s mission is to promote public awareness of
`domestic and international human rights issues and environmental impacts through education,
`art, and private enforcement actions for the benefit of children and other populations who are the
`most vulnerable to pollution. OCE seeks to prevent environmental damage wherever possible
`and ensure that appropriate environmental protection statutes are being followed. Throughout its
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`20-year history, OCE has regularly initiated enforcement actions on behalf of itself and its
`members. OCE is based in Florida and California.
`15. Members of OCE use and enjoy the waters into which Defendant has caused, is
`causing, and will continue to cause, pollutants to be discharged. Members of OCE use those
`waters to regularly participate in water-related activities including swimming, paddling, fishing,
`boating, observing wildlife, surfing and wind-surfing, studying ecosystems, and spiritual
`practices. Defendant’s discharges of pollutants threaten or impair each of those uses or contribute
`to such threats and impairments. Thus, the interests of OCE’s members have been, are being, and
`will continue to be adversely affected by Defendant’s failure to comply with the Act and the
`MSGP. The relief sought herein will redress the harms to OCE caused by Defendant’s activities.
`16.
`Plaintiffs bring this action on behalf of its members, respectively. Plaintiffs’
`interest in reducing Defendant’s discharges of pollutants into Tampa Bay and Sarasota Bay and
`their tributaries and requiring Defendant to comply with the requirements of the MSGP are
`germane to each Plaintiff organization’s purposes. Litigation of the claims asserted and relief
`requested in this Complaint does not require the participation in this lawsuit of individual
`members of any of the Plaintiff organizations.
`17.
`Continuing commission of the acts and omissions alleged above will irreparably
`harm Plaintiffs and one or more of each of their members, for which harm they have no plain,
`speedy or adequate remedy at law.
`18.
`Defendant TRADEMARK METALS RECYCLING LLC (“Trademark Metals”)
`is a corporation that owns and/or operates the industrial facilities located at the following
`addresses: 5220 Dover St. in Tampa, FL 33619 (“Sutton Facility”); 4943 Port Sutton Rd.,
`Tampa, FL 33619 (“Port Sutton Shredder Facility”); 3310 Port Sutton St., Tampa, FL 33619
`(“Export Yard Facility”); 11324 E. US Hwy 92., Seffner, FL 33584 (“Seffner Facility”); 1735
`Myrtle St., Sarasota, FL 34234 (“Sarasota Facility”); and 2032 Gentry St., Clearwater, FL 33765
`(“Clearwater Facility”) (collectively referred to as the “TMR Facilities” or the “Facilities”).
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`IV.
`
`STATUTORY BACKGROUND
`Clean Water Act
`19.
`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any
`pollutant into waters of the United States, unless such discharge is in compliance with various
`enumerated sections of the Act. Among other things, Section 301(a) prohibits discharges not
`authorized by, or in violation of, the terms of an NPDES permit issued pursuant to Section 402
`of the Act, 33 U.S.C. § 1342.
`20.
`Section 402(p) of the Act establishes a framework for regulating municipal and
`industrial storm water discharges under the NPDES program. 33 U.S.C. § 1342(p). It authorizes
`the EPA to issue NPDES permits directly and also to delegate the authority to issue NPDES
`permits to state agencies.
`21.
`States with EPA-approved NPDES permit programs are authorized to regulate
`industrial storm water discharges through individual permits issued to dischargers or through
`general permits that cover a category of dischargers. 33 U.S.C. § 1342(p).
`22.
`Pursuant to Section 402 of the Act, 33 U.S.C. § 1342, the Administrator of the
`U.S. EPA has authorized the DEP to issue NPDES permits including general NPDES permits in
`Florida.
`23.
`Section 505(a)(1) and Section 505(f) of the Act provide for citizen enforcement
`actions against any “person,” including individuals, corporations, or partnerships, for violations
`of NPDES permit requirements. 33 U.S.C. §§ 1365(a)(1) and (f), § 1362(5). An action for
`injunctive relief under the Act is authorized by 33 U.S.C. § 1365(a). Violators of the Act are
`also subject to an assessment of civil penalties of up to $37,500 per day per violation for all
`violations occurring on or before November 2, 2015; $55,800 per day for violations occurring
`thereafter, pursuant to Sections 309(d) and 505 of the Act, 33 U.S.C. §§ 1319(d), 1365. See also
`40 C.F.R. §§ 19.1 - 19.4.
`Florida’s MSGP
`24.
`The DEP elected to issue the MSGP as the statewide general permit for industrial
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`storm water discharges. Thus, Florida has a single, statewide general permit applicable to all
`industrial storm water dischargers.
`25.
`In order to discharge storm water lawfully in Florida, industrial dischargers must
`obtain coverage under and comply with the terms of the MSGP or obtain and comply with an
`individual NPDES permit. 33 U.S.C. § 1311(a).
`26.
` The MSGP contains a variety of substantive and procedural requirements that all
`dischargers must meet.
`27.
`Part XI.N of the MSGP pertains to Sector N facilities. These are facilities that
`possess a Standard Industrial Classification (“SIC”) Code of 5093. Sector N facilities discharge
`storm water associated with industrial activity from scrap recycling and waste recycling
`facilities. In addition to the general requirements that the MSGP imposes on all dischargers, Part
`XI.N of the MSGP imposes certain additional specific terms and conditions on Sector N
`Facilities.
`28.
`The MSGP is built on the expectation that its requirements will predominantly be
`met through a permittee’s use of best management practices (“BMPs”). BMPs can take a wide
`variety of forms, from frequent sweeping to making structural modifications such as roofing or
`installing stormwater filtration and treatment, as necessary.
`29.
`The Clean Water Act requires that any NPDES permit issued by a state must
`apply and insure compliance with, among other things, the Act’s technology-based standards for
`discharges of pollution. See 33 U.S.C. § 1342(b)(1)(A) (requiring compliance with “any
`applicable requirements” of 33 U.S.C. § 1311). In turn, the Act’s technology-based standards
`dictate that, with respect to toxic and non-conventional pollutants (i.e. most pollutants),
`permitted dischargers shall apply “the best available technology economically achievable for
`such category or class [of permitted dischargers], which will result in reasonable further progress
`towards the national goal of eliminating the discharge of all pollutants . . . .” 33 U.S.C. §
`1311(b)(2)(A). The Act also sets a different standard, “application of the best conventional
`pollutant control technology” for a defined set of five “conventional pollutants”. Id. §
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`1311(b)(2)(E).1
`30.
`Accordingly, the MSGP requires permittees to use BMPs that reflect, and
`prohibits the discharge of pollutants above the level commensurate with, application of the best
`available technology economically achievable (“BAT”), for toxic and non-conventional
`pollutants and best conventional pollutant control technology (“BCT”) for conventional
`pollutants. See 60 Fed. Reg. at 50812; see also MSGP § XI.N.3.a.3, 60 Fed Reg. at 51190.
`31.
`The MSGP also requires dischargers to develop and implement a storm water
`pollution prevention plan (“SWPPP”). MSGP § IV. Among other things, the SWPPP records
`the BMPs applied at a particular industrial facility. Sector N Facilities must develop and
`implement a SWPPP that comports with several requirements of Part XI.N of the MSGP.
`Through the SWPPP, requirements in Part XI.N of the MSGP implement its BAT/BCT
`requirements for Sector N facilities by requiring that the pollution prevention plan minimize
`pollution and requiring specific BMPs to effectuate such minimization. See MSGP Fact Sheet §
`VI.B, 60 Fed. Reg. at 50812 (“The pollution prevention or BMP requirements in this permit
`operate as limitations on effluent discharges that reflect the application of BAT/BCT.”)
`32.
`The MSGP provides that: “[T]he plan shall describe and ensure the
`implementation of practices that are to be used to reduce the pollutants in storm water discharges
`associated with industrial activity at the facility and to assure compliance with the terms and
`conditions of this permit. Facilities must implement the provisions of the storm water pollution
`prevention plan required under this part as a condition of this permit.” MSGP § IV, 60 Fed. Reg.
`at 51115.
`33.
`Facilities subject to Sector N must include, inter alia, the following in their
`SWPPPs: (1) identification of all the members of a stormwater pollution prevention team
`responsible for developing and implementing the SWPPP; (2) a description of potential pollutant
`
`
`1 “Conventional pollutants” are defined by statute, 33 USC 1314(a)(4), and by regulation,
`40 CFR 401.16, to include: biochemical oxygen demand, total suspended solids, pH, fecal
`coliform, and oil and grease.
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`sources; (3) a site map including, inter alia, outfall locations, types of discharges in the drainage
`areas, location where significant materials are exposed to precipitation, monitoring locations, and
`flow directions; (4) an inventory of the types of materials at the site that may be exposed to
`precipitation; (5) a list of significant spills and leaks of toxic or hazardous pollutants that
`occurred at areas that are exposed to precipitation; (6) a summary of existing discharge sampling
`data; (7) a narrative description of potential pollutant sources from various activities; (8) a
`description and implementation of appropriate storm water management controls (including
`many specific requirements, detailed below); (9) spill prevention and response measures; (10) a
`quarterly inspection program; (11) an employee training program; and (12) a supplier
`notification program. MSGP §§ XI.N.3.a(1), XI.N.3.a(2)(a)-XI.N.3.a(2)(e), XI.N.3.a(3)(a)(i)-
`XI.N.3.a(3)(a)(xii) (requirements for scrap and waste recycling facilities (nonsource-separated,
`nonliquid recyclable wastes)).
`34.
`Part XI.N.3.a(3)(a) of the MSGP requires that Sector N facilities develop and
`implement appropriate storm water management controls including the following:
`• Measures and controls to “minimize contact of storm water runoff with stockpiled
`materials, process materials, and nonrecyclable wastes,” as well as “measures to
`minimize the extent of storm water contamination from those areas.” The facility
`operator must consider using the following BMPs or their equivalents: diversion of
`runoff, media filtration, silt fencing, and oil/water separators, sumps, and dry adsorbents.
`Part XI.N.3.a(3)(a)(ii).
`
`• “measures necessary to minimize contact of surface runoff with residual cutting fluids.”
`This includes a requirement to consider implementing one of two (or a combination)
`types of measures – either storage of turnings under cover or a dedicated containment
`area for turnings. Part XI.N.3.a(3)(a)(iii).
`
`• “measures and controls to minimize residual liquids and accumulated particulate matter,
`originating from scrap and recyclable waste materials stored indoors or under cover, from
`coming in contact with surface runoff.” This part requires that dischargers consider
`including various housekeeping measures. Part XI.N.3.a(3)(a)(iv).
`
`• address “areas where scrap and waste processing equipment are sited” by adopting
`“measures and controls to minimize surface runoff from coming in contact with scrap
`processing equipment.” Part XI.N.3.a(3)(a)(v).
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`• provide appropriate source control, stabilization measures, nonstructural, structural
`controls or equivalent for areas at the facilities that are associated with industrial activity
`that have a high potential for soil erosion and suspended solids loadings. This requires
`consideration of a variety of erosion and sediment control BMPs. Part
`XI.N.3.a(3)(a)(vii).
`
`• provide for a detention or retention basin or equivalent when BMPs installed pursuant to
`Part XI.N.3.a(3)(a)(vii) do not prove sufficient. Part XI.N.3.a(3)(a)(viii).
`60 Fed. Reg. at 51190–93 (detailing specific requirements for facilities processing non-liquid
`recyclable waste).
`35.
`In addition to requiring that permittees select and install BMPs and develop a
`SWPPP to meet the Clean Water Act’s standards, the MSGP also requires facility operators to
`implement monitoring and reporting requirements that allow facility operators to determine
`whether they have adequately reduced the level of pollutants in storm water runoff through the
`development and proper implementation of the facility’s SWPPP. Permittees with scrap
`recycling and waste recycling facilities must monitor their storm water discharges at least
`quarterly during the second and fourth year of the permit term. They must provide “the date and
`duration (in hours) of the storm event(s) sampled; rainfall measurements or estimates (in inches)
`of the storm event that generated the sampled runoff; the duration between the storm event
`sampled and the end of the previous measurable (greater than 0.1 inch (”) rainfall) storm event;
`and an estimate of the total volume (in gallons) of the discharge sampled.” MSGP § XI.N.5.a.,
`60 Fed. Reg. at 51195. They must collect samples during sampling periods of January to March,
`April to June, July to September, and October to December. Id. at XI.N.5.a(1). Samples must be
`“collected from the discharge resulting from a storm event that is greater than 0.1” in magnitude
`and that occurs at least 72 hours from the previously measurable (greater than 0.1” rainfall)
`storm event.” Id. at XI.N.5.a.(2).
`36.
`In addition to analytic monitoring, dischargers must also take quarterly samples
`and make visual observations of representative discharges. MSGP § XI.N.5.c, 60 Fed. Reg. at
`51196–97. Dischargers must document their observations of color, odor, clarity, floating solids,
`settled solids, suspended solids, foam, oil sheen, and other obvious indicators of storm water
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`pollution at each discharge location. Id. These observations are to be recorded and kept onsite
`with the SWPPP. Id. Based on the results of the analytic and observational monitoring,
`dischargers are required to evaluate the need for additional BMPs and modifications to the
`facility’s SWPPP. 60 Fed. Reg. at 50820–27, 50829–30.
`37.
`Part XI.N.3.a.4 of the MSGP requires Sector N dischargers to conduct
`comprehensive site compliance evaluations at least once per year. 60 Fed. Reg. at 51995. This
`requires a comprehensive review of a facility and its storm water pollution control measures.
`The outcome of this evaluation requires revisions to a facility’s SWPPP. Id.
`38.
`For Sector N facilities, the MSGP establishes the following cut-off concentrations
`for pollutants of concern: chemical oxygen demand (“COD”) – 120 mg/L, total suspended solids
`(“TSS”) – 100 mg/L, total recoverable aluminum – 0.75 mg/L, total recoverable copper – 0.0636
`mg/L, total recoverable iron – 1.0 mg/L, total recoverable lead – 0.0816 mg/L, total recoverable
`zinc – 0.117 mg/L. MSGP, § XI.N.5.a; 61 Fed. Reg. 5248 (February 9, 1996) (amending cut-off
`concentration for zinc). The cut-off concentrations are used “to assess the effectiveness of the
`pollution prevention plan and to help ensure that a reduction of pollutants is realized.” 60 Fed.
`Reg. at 50843 (Monitoring and Reporting Requirements). They “provide a reasonable target for
`controlling storm water contamination by pollution prevention plans.” Id. at 51076.
`39.
`The cut-off concentrations are guidelines for determining whether a facility has
`implemented the requisite BAT/BCT level of control measures. Further, exceedances of cut-off
`concentrations are reason for concern that pollution may have reached a level “at which a storm
`water discharge could potentially impair, or contribute to impairing water quality or affect
`human health from ingestion of water or fish.” 60 Fed. Reg. at 50824–25.
`40.
`The MSGP does not provide for any mixing zones by dischargers. The MSGP
`does not provide for any receiving water dilution credits to be applied by dischargers.
`Beneficial Uses of Florida Surface Waters
`41.
`The State of Florida has identified beneficial uses and designated all surface
`waters of the State of Florida as Class III – Recreation, Propagation and Maintenance of a
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`Healthy, Well-Balanced Population of Fish and Wildlife, except for certain waters which are
`described in subsection 62-302.400(16), F.A.C. Rule 62-302.400(15), F.A.C. “Class I, II, and
`III surface waters share water quality criteria established to protect fish consumption, recreation
`and the propagation and maintenance of a healthy, well-balanced population of fish and
`wildlife.” Rule 62-302.400(4), F.A.C.
`42.
`The State of Florida has provided a number of exceptions to the designation of
`certain waters as Class III, affording certain waters in various counties with a more protective
`designation of Class II – which includes the beneficial uses of Shellfish Propagation or
`Harvesting.
`43.
`Certain Florida waters, including but not limited to the coastal waters of Pinellas
`County and the Sarasota Bay Estuarine System, are afforded special significance and protection
`as an “Outstanding Florida Water,” pursuant to 62-302.400 F.A.C.
`44.
`The Sarasota Bay Estuarine System is additionally designated as a “Special
`Water” having been found to have exceptional recreational or ecological significance and that
`the environmental, social, and economic benefits of the designation outweigh the environmental,
`social, and economic costs (Rule 62- 302.700(5), F.A.C.).
`V.
`STATEMENT OF FACTS
`Metal Recycling Facilities
`45.
` Metal recycling facilities, especially those with outdoor stockpiling, processing
`and segregation of materials, have been identified as a major source of storm water
`contamination. Scrap metal in different stages of corrosion and decay may release a variety of
`harmful substances including but not limited to heavy metals, fuel, oil, lubricants,
`polychlorinated biphenyls, grease, lead acid, lead oxides, chlorinated solvents, asbestos, ethylene
`glycol, paint, and chemical residues. 60 Fed. Reg. 50804, 50953–63 (listing common pollutants
`associated with Sector N—scrap and waste recycling facilities—as of 1995); see also id. at
`51189–97 (outlining special requirements for Sector N); EPA, Industrial Stormwater Fact Sheet
`Series: Sector N, EPA-833-F-06-029, at 2–4 (Dec. 2006), https://www.epa.gov/sites/production/
`
` 13
`
`

`

`Case 8:20-cv-01160-MSS-AEP Document 1 Filed 05/19/20 Page 14 of 40 PageID 14
`
`files/2015-10/documents/sector_n_scraprecycling.pdf [hereinafter Sector N Fact Sheet] (listing
`common pollutants associated with Sector N, as of 2006).
`46.
`In addition to the storage and processing of various sources of scrap metal, such
`facilities also conduct vehicle operation and maintenance and equipment operation and storage.
`Fork lifts, trucks, and other vehicles track debris, particulate matter, and other contaminants to
`areas on and off the premises. Vehicles also expose many other sources of pollution to the
`elements, including gasoline, diesel fuel, anti-freeze, battery fluids, and hydraulic fluids.
`Stormwater Pollution at TMR Facilities
`47.
` TMR has certified that all of the TMR Facilities are classified under SIC Code
`5093, meaning that they are primarily engaged in assembling, breaking up, sorting, and
`wholesale distribution of scrap and waste materials. The Facilities receive a variety of waste
`materials, primarily ferrous and non-ferrous metals, and store, process, crush, compact, and in
`some cases shred these materials. The majority of activity and storage at each facility takes
`place outdoors, where pollutants are exposed to stormwater.
`48.
`Part XI.N of the MSGP is divided into three separate classes of recycling
`facilities. The TMR Facilities all fall under the initial category: “scrap recycling and waste
`recycling facilities (non-liquid recyclable waste).”
`49.
`On information and belief, Plaintiffs allege that each of the TMR Facilities
`releases the following pollutants into the immediate environment: toxic metals such as
`aluminum, copper, iron, lead, zinc, mercury, cadmium; as well as petroleum products including
`oil, gasoline, grease, and diesel fuel, battery fluids, acids and solvents, and total organic carbon,
`suspended solids, and pH-altering substances.
`50.
`On information and belief, Plaintiffs allege that other significant potential
`pollutant sources at the TMR Facilities include heavy metals, fuel, oil, lubricants,
`polychlorinated biphenyls, grease, lead acid, lead oxides, chlorinated solvents, asbestos, ethyl