UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`Civil Case No.: 8:21-cv-02168
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`
`
`
`vs.
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` Plaintiff,
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`SUNCOAST WATERKEEPER,
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`
`
`
`
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`ATLANTIC TNG, LLC,
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` Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL
`PENALTIES
`
`SUNCOAST WATERKEEPER (“SCWK” or “Plaintiff”), by and through its counsel,
`hereby alleges:
`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 June 24, 2021, Plaintiff provided notice of Defendant’s violations of the Act,
`and of Plaintiff’s intention to file suit against Defendant (“notice letter”), to the 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”);
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`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 Plaintiff’s 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. Plaintiff is informed and believes, and thereupon alleges, 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 concrete manufacturer, discharges polluted stormwater from its
`manufacturing facility located in Sarasota. 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
`referred to as the “MSGP”). Defendant’s violations of the substantive and procedural
`requirements of the MSGP and the Act are ongoing and continuous.
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`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 area, storm water flows untreated either
`directly, or through municipal storm drain systems into Sarasota Bay and other receiving waters.
`Stormwater pollution accounts for the majority of the pollution entering the Sarasota 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 ecosystem
`to regain its health.
`8.
`High concentrations of total suspended solids (“TSS”) degrade optical water
`quality by reducing water clarity and decreasing light available to support photosynthesis. TSS
`has been shown to alter predator-prey relationships (for example, turbid water may make it
`difficult for fish to hunt prey). Deposited solids alter fish habitat, aquatic plants, and benthic
`organisms. TSS can also be harmful to aquatic life because numerous pollutants, including
`metals and polycyclic aromatic hydrocarbons (“PAHs”), are absorbed onto TSS. Thus, higher
`concentrations of TSS result in higher concentrations of toxins associated with those sediments.
`Inorganic sediments, including settleable matter and suspended solids, have been shown to
`negatively impact species richness, diversity, and total biomass of filter feeding aquatic
`organisms on bottom surfaces.
`9.
`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 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 Whitaker Bayou, 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.
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`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 aquatic life (estuarine and freshwater habitat, fish migration, fish spawning,
`preservation of rare and endangered aquatic species, shellfish propagation,) primary contact and
`recreation, navigation, and fish consumption.
`10.
`Sarasota Bay area waters provide essential habitat for dozens of 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 Sarasota Bay area waters have for people in the surrounding communities. The
`public’s use of 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
`11.
`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 350 separate Waterkeeper
`programs, such as SCWK. SCWK’s office is located in Sarasota, Florida.
`12.
` 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
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`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
`sought herein will redress the harms to SCWK caused by Defendant’s activities.
`13.
`Plaintiff brings this action on behalf of its members, respectively. Plaintiff’s
`interest in reducing Defendant’s discharges of pollutants into Sarasota Bay and its tributaries and
`requiring Defendant to comply with the requirements of the MSGP are germane to SCWK’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 SCWK.
`14.
`Continuing commission of the acts and omissions alleged above will irreparably
`harm Plaintiff and one or more of each of its members, for which harm it has no plain, speedy or
`adequate remedy at law.
`15.
`Defendant ATLANTIC TNG LLC (“Atlantic TNG”) is a limited liability
`corporation that owns and/or operates an industrial facility located at 1701 Myrtle Street,
`Sarasota, FL 34234 (the “Facility”).
`IV.
`STATUTORY BACKGROUND
`Clean Water Act
`16.
`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.
`17.
`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
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`permits to state agencies.
`18.
`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).
`19.
`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.
`20.
`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 $56,460 per day per violation for
`violations occurring after November 2, 2015 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
`21.
`The DEP elected to issue the MSGP as the statewide general permit for industrial
`storm water discharges. Thus, Florida has a single, statewide general permit applicable to all
`industrial storm water dischargers.
`22.
`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).
`23.
` The MSGP contains a variety of substantive and procedural requirements that all
`dischargers must meet.
`24.
`Part XI.E of the MSGP pertains to Sector E facilities. These are facilities that
`possess, inter alia, a Standard Industrial Classification (“SIC”) Code of 3272. Sector E facilities
`discharge storm water associated with industrial activity associated from manufacturing
`concrete, gypsum, and plaster products. In addition to the general requirements that the MSGP
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`imposes on all dischargers, Part XI.E of the MSGP imposes certain additional specific terms and
`conditions on Sector E Facilities.
`25.
`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.
`26.
`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. §
`1311(b)(2)(E).1
`27.
`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.E.3.a.3, 60 Fed Reg. at 51146.
`28.
`The MSGP also requires dischargers to develop and implement a storm water
`pollution prevention plan (“SWPPP”). MSGP § IV. Among other things, the SWPPP records
`
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`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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`the BMPs applied at a particular industrial facility. Sector E Facilities must develop and
`implement a SWPPP that comports with several requirements of Part XI.E of the MSGP.
`Through the SWPPP, requirements in Part XI.E of the MSGP implement its BAT/BCT
`requirements for Sector E 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.”)
`29.
`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.
`30.
`Facilities subject to Sector E 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
`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; and an (11) an employee training program. MSGP §§ XI.E.3.a(1),
`XI.E.3.a(2), XI.E.3.a(3).
`31.
`Part XI.E.3.a(3)(a) of the MSGP requires that Sector E facilities develop and
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`implement appropriate storm water management controls including the following:
`• Measures “to minimize the discharge of spilled cement, aggregate, kiln dust, fly ash, and
`settled dust other significant materials in storm water from paved portions of the site that
`are exposed to storm water.” Part XI.E.3.a(3)(a)(i). This requires sweeping or equivalent
`measures on a weekly basis.
`
`• The prevention of exposure of fine granular solids to storm water. Part XI.E.3.a(3)(a)(ii).
`
`• A preventive maintenance program including, inter alia, routine inspections and
`maintenance of storm water management devices. Part XI.E.3.a(3)(b).
`
`• Procedures to identify and clean up potential spills. Part XI.E.3.a(3)(c).
`
`• At least monthly inspections of equipment designated in the SWPPP with follow-up
`procedures to ensure that appropriate actions are taken in response to the inspections.
`Part XI.E.3.a(3)(d).
`
`• Periodic training of all employees responsible for storm water management or
`implementing activities designated in the SWPPP. Part XI.E.3.a(3)(e).
`
`• Procedures related to the management of non-storm water discharges. Part
`XI.E.3.a(3)(g). This includes a certification that the storm water discharges have been
`tested or evaluated for the presence of non-storm water discharges. For facilities
`producing concrete products, they must “insure that process waste water that results from
`washing of trucks, mixers, transport buckets, forms or other equipment are discharged in
`accordance with NPDES requirements or are recycled.” Part XI.E.3.a(3)(g)(i).
`
`• “Structural, vegetative, and/or stabilization measures used to limit erosion.” Part
`XI.E.3.a(3)(h).
`
`• Appropriate measures, such as swales, reuse of collected water, inlet controls, infiltration
`devices, and detention/retention devices. Part XI.E.3.a(3)(i).
`
`60 Fed. Reg. at 51145–46.
`32.
`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 concrete
`manufacturing 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)
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`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.E.5.a., 60 Fed. Reg. at 51148.
`They must collect samples during sampling periods of January to March, April to June, July to
`September, and October to December. Id. at XI.E.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.E.5.a.(2).
`33.
`In addition to analytic monitoring, dischargers must also take quarterly samples
`and make visual observations of representative discharges. MSGP § XI.E.5.c, 60 Fed. Reg. at
`51149. 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
`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.
`34.
`Part XI.E.3(a)(4) of the MSGP requires Sector E dischargers to conduct
`comprehensive site compliance evaluations at least once per year. 60 Fed. Reg. at 51147. 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.
`35.
`For Sector E facilities, the MSGP establishes the following cut-off concentrations
`(“benchmark values”) for pollutants of concern: total suspended solids (“TSS”) – 100 mg/L and
`total recoverable iron – 1.0 mg/L. MSGP, § XI.E.5.a. Sector E facilities must compare the
`average annual concentrations of these parameters in their storm water discharges to these cut-
`off concentrations and “place special emphasis on methods for reducing the presence of those
`parameters in storm water discharges” whenever there is an exceedance. 60 Fed. Reg. at 50875
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`(Monitoring and Reporting Requirements). They “provide a reasonable target for controlling
`storm water contamination by pollution prevention plans.” Id. at 51076.
`36.
`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.
`37.
`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
`38.
`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
`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.
`39.
`In Sarasota County, the State of Florida provides the following exception to the
`Class III, designating the following waters as Class II – Shellfish Propagation or Harvesting:
`“Sarasota Bay – West of the Intracoastal Waterway Channel centerline.” See 62-
`302.400(17)(b)(58).
`40.
`The Sarasota Bay Estuarine System is also afforded special significance and
`protection as an “Outstanding Florida Water,” pursuant to 62-302.400 F.A.C.
`41.
`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.).
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`V.
`
`STATEMENT OF FACTS
`Concrete Manufacturing Facilities
`42.
`Concrete manufacturing facilities have been identified as a major source of storm
`water contamination. Industrial activities at such facilities include those associated with the
`combination of cement, aggregate, and water to form concrete. Material storage and material
`handling at concrete product manufacturing plants may release a variety of harmful substances
`including but not limited to cement, aggregate, concrete, shale, clay, limestone, slate, slag,
`pumice, fly ash, and admixtures. 60 Fed. Reg. 50804, 50869 (listing common pollutants
`associated with Sector E—concrete product manufacturing facilities—as of 1995); see also id. at
`51145–50 (outlining special requirements for Sector E); EPA, Industrial Stormwater Fact Sheet
`Series: Sector E, EPA-833-F-06-020, at 2–4 (Feb. 2021),
`https://www.epa.gov/sites/production/files/2015-10/documents/sector_e_glass.pdf (listing
`common pollutants associated with Sector E, as of 2021). Activities associated with
`casting/forming concrete products may release substances including but not limited to
`reinforcing steel, latex sealants, and bitumastic coatings. 60 Fed. Reg. 50804, 50869.
`In addition to manufacturing of concrete products, such facilities also engage in
`43.
`vehicle and equipment washing. Forklifts, 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. The types of pollutants that are released into the immediate
`environment by concrete product manufacturing include, among those listed above: toxic metals
`such as iron, lead, zinc; as well as petroleum products including oil, gasoline, grease, and diesel
`fuel; battery fluids, acids and solvents; and suspended solids, pH-altering substances, chemical
`oxygen demand-altering substances, and biochemical oxygen demand-altering substances.
`Stormwater Pollution at the Atlantic TNG Facility
`44.
`Atlantic TNG has certified that the Facility is classified under SIC Code 3272,
`meaning that they are primarily engaged in manufacturing concrete products from a combination
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`of cement and aggregate. The Facility is specifically engaged in the manufacturing of precast in-
`ground concrete structures used in either storm or sanitary applications to convey and manage
`water flows. The majority of activity and storage at the Facility takes place outdoors, where
`pollutants are exposed to storm water.
`45.
` On information and belief, Plaintiff allegs that the Facility releases the following
`pollutants into the immediate environment: toxic metals such as iron, lead, zinc; as well as
`petroleum products including oil, gasoline, grease, and diesel fuel; battery fluids, acids and
`solvents; and suspended solids, pH-altering substances, chemical oxygen demand-altering
`substances, and biochemical oxygen demand-altering substances.
`46.
`The large number of trucks and other vehicles entering and leaving the Facility
`from the driveways track pollutants off-site onto public streets where rainfall washes these
`pollutants into storm drains that discharge into waters of the United States.
`47.
`On information and belief, Plaintiff alleges that storm water flows over the
`surface of the Facility where industrial activities and areas where airborne materials associated
`with the industrial processes at the Facility may settle onto the ground. Plaintiff is informed and
`believes and thereupon alleges that storm water flowing over these areas collects suspended
`sediment, dirt, metals, and other pollutants as it flows towards the Facility’s storm water
`discharge locations.
`48.
`On information and belief, Plaintiff alleges that the majority of storm water
`discharges from the Facility contain storm water that is commingled with runoff from areas at
`the Facility where industrial processes occur.
`Permit Violations at the Facility
`49.
`Defendant owns and/or operates the Facility, a concrete manufacturing facility
`located in Sarasota, FL.
`50.
`Based on Plaintiff’s investigation, including a review of the Facility’s Notice of
`Intent to Use Multi-Sector Generic Permit for Stormwater Discharge Associated With Industrial
`Activity (“NOI”), aerial photography, documents prepared by the DEP, and Plaintiff’s
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`information and belief, storm water is collected and discharged from the Facility via at least four
`outfalls.
`51.
`Storm water discharged from the Facility flows into the Sarasota Municipal
`Separate Storm Sewer System (“MS4”), which empties into Whitaker Bayou and ultimately
`Sarasota Bay (collectively, “Receiving Waters”).
`52.
`The Receiving Waters are waters of the United States.
`53.
`The Facility’s current coverage under the MSGP is active from March 10, 2018,
`through March 9, 2023. This is a continuation from the Facility’s previous coverage under the
`MSGP, which ran from March 7, 2013, through March 6, 2018.
`54. MSGP permittees must limit pollution in industrial storm water to a level
`commensurate with the federal BAT and BCT standards; develop and implement SWPPPs that
`set forth the best management practices that the permittee is using to meet those federal
`standards; conduct routine inspections and monitoring, and report accurately the results of that
`monitoring.
`55.
`On information and belief, Plaintiff alleges that Atlantic TNG has failed to
`develop and/or implement sufficient BMPs at the Facility to limit pollution in industrial storm
`water to a level commensurate with the federal BAT and BCT standards:
`• Atlantic TNG does not prevent storm water flows from coming into contact with
`the sources of contaminants.
`• On information and belief, Plaintiff alleges that the Facility lacks sufficiently
`well-maintained structural controls and practices to minimize exposure of
`pollutants to storm water, to retain all storm water on site; or to prevent
`contaminants from entering into storm water. On information and belief, Plaintiff
`alleges that Atlantic TNG does not sufficiently treat contaminated storm water
`prior to discharge from the Facility.
`56.
`On information and belief, Plaintiff alleges that since at least July 12, 2016,
`Atlantic TNG has failed to develop and/or implement an adequate SWPPP at the Facility in
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`accordance with the requirements of Part XI.E.3 of the MSGP. The SWPPP for the Facility does
`not include, and Atlantic TNG has not implemented, the required minimum and industry specific
`BMPs necessary to reduce pollutant levels in discharges to BAT and BCT levels. This is
`evidenced by sources of storm water contamination at the Facility, contaminant tracking around
`and off the Facility, and the Facility’s disc