Case 1:20-cv-11617-FDS Document 1 Filed 08/31/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`Plaintiff,
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`v.
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`COMMONWEALTH OF
`MASSACHUSETTS,
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`UAVE LLC,
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`Defendant.
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`Case No.
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`COMPLAINT
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`
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`INTRODUCTION
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`1.
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`Defendant UAVE LLC (“UAVE”) operates a sand and gravel mining and
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`processing facility at 973 University Ave in Norwood, Massachusetts (the “Facility”). The Facility
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`is operated on approximately 15 acres of mostly deforested land on a steep slope covered by
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`exposed sediment such as sand and gravel.
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`2.
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`UAVE discharges polluted stormwater from its Facility into a wetland system
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`connected to Purgatory Brook (“Purgatory Brook Wetlands”). Purgatory Brook is a tributary of the
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`Neponset River. UAVE never applied for and never received a federal industrial stormwater
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`discharge permit for these discharges, as is required by the federal Clean Water Act. 33 U.S.C. §
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`1251 et seq. (the “Clean Water Act” or “the Act”). UAVE.does not properly monitor or control its
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`stormwater discharges, as is required by the Act.
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`3.
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`Wetlands play an essential role in the ecology and hydrology of watersheds.
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`Among other things, wetlands provide habitat for important species, protect downstream water
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`quality, and prevent flooding. UAVE’s stormwater contains pollutants including sediment, the
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`Case 1:20-cv-11617-FDS Document 1 Filed 08/31/20 Page 2 of 14
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`most significant cause of water quality degradation in the Nation’s waters. Excessive sediment
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`discharged to wetlands destroys habitat, harms aquatic organisms, and can contribute to flooding.
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`4.
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`UAVE’s discharges of stormwater to the Purgatory Brook Wetlands are in violation
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`of the Clean Water Act. The Commonwealth of Massachusetts (the “Commonwealth”) brings this
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`civil suit to enforce the requirements of the Act. The Commonwealth seeks injunctive relief, civil
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`penalties, and other relief the Court deems appropriate to redress UAVE’s illegal discharges of
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`pollution.
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`JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction over the parties and the subject matter of
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`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.
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`§ 1331 (an action arising under the laws of the United States).
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`6.
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`On February 19, 2020, the Commonwealth provided notice of UAVE’s violations
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`of the Clean Water Act, and of its intention to file suit against UAVE (the “Notice Letter”), to the
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`Administrator of the United States Environmental Protection Agency (“EPA”); the Administrator
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`of EPA Region 1; the Commissioner of the Massachusetts Department of Environmental
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`Protection (“MassDEP”); and to UAVE, as required by the Act, 33 U.S.C. § 1365(b)(1)(A).
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`7.
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`8.
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`More than sixty days have passed since notice was served.
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`This action is not barred by any prior state or federal enforcement action addressing
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`the violations alleged in this complaint.
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`9.
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`The Commonwealth has an interest in protecting for its residents the integrity of
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`Massachusetts waters, and the related health, safety, economic, recreational, aesthetic, and
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`environmental benefits those waters provide. The interests of the Commonwealth have been, are
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`being, and will continue to be adversely affected by UAVE’s failure to comply with environmental
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`Case 1:20-cv-11617-FDS Document 1 Filed 08/31/20 Page 3 of 14
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`laws, as alleged in this Complaint. The requested relief will redress the harms to the
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`Commonwealth caused by UAVE’s activities. UAVE’s continuing commission of the acts and
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`omissions alleged in this Complaint will irreparably harm the Commonwealth, for which harm it
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`has no plain, speedy, or adequate remedy at law.
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`10.
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`Venue is proper in this Court pursuant to Section 505(c)(1) of the Act, 33 U.S.C.
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`§ 1365(c)(1), because the source of the violations is located within this judicial district.
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`PARTIES
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`11.
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`12.
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`Plaintiff is the Commonwealth, appearing by and through the Attorney General.
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`The Attorney General is the chief law officer of the Commonwealth, with offices at
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`One Ashburton Place, Boston, Massachusetts. She is authorized to bring this action and to seek the
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`requested relief under G.L. c. 12, §§ 3 and 11D.
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`13.
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`Defendant UAVE is a domestic limited liability corporation that operates a mineral
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`mining and dressing facility at 973 University Ave, Norwood, Massachusetts and lists its location
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`where records are maintained as 1039 East Street, Dedham, Massachusetts.
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`STATUTORY BACKGROUND
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`Federal Clean Water Act Requirements
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`Prohibition on Unauthorized Discharges of Pollutants
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`14.
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` The Clean Water Act makes the discharge of pollution into waters of the United
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`States unlawful unless the discharge is in compliance with certain statutory requirements, including
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`the requirement that the discharge be permitted by EPA under the National Pollutant Discharge
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`Elimination System (“NPDES”). See Sections 301(a), 402(a) and 402(p) of the Act, 33 U.S.C.
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`§§ 1311(a), 1342(a), 1342(p).
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`15.
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`Industrial stormwater is runoff from precipitation (rain or snow) that lands on
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`industrial sites such as mineral mining and dressing facilities. This runoff is often polluted by
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`materials that are handled or stored at such sites.
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`16.
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`Stormwater is the leading cause of water quality impairment in Massachusetts.
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`During every rain or snowmelt event, runoff flows over the land surface, picking up potential
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`pollutants such as sediment, nutrients, metals and petroleum by-products. Polluted stormwater
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`runoff can be harmful to plants, animals, and people. Excess sediment clouds the water, makes it
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`difficult or impossible for aquatic plants to grow, and destroys aquatic habitats. Excess nutrients
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`cause algae blooms that reduce dissolved oxygen in the water column, harming fish and other
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`aquatic organisms. Bacteria and other pathogens can wash into swimming areas and create health
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`hazards. Toxic pollutants can poison aquatic life. Land animals and people can become sick from
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`eating diseased fish or ingesting polluted water.
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`17.
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`Impacts from stormwater pollution, including sediment and other pollutants, pose
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`particular risks to wetlands. Wetlands are among the most productive ecosystems in the world,
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`comparable to rain forests and coral reefs. Wetlands play an integral role in the ecology and
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`hydrology of the watershed. The combination of shallow water, high levels of nutrients, and high
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`primary productivity is ideal for the growth of organisms that form the base of the food web and
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`feed many species of fish, amphibians, shellfish, and insects. Many species of birds and mammals
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`rely on wetlands for food, water, and shelter, especially during migration and breeding. The
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`holding capacity of wetlands also prevents floods and erosion. Wetlands function as natural
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`sponges that trap and slowly release surface water, rain, snowmelt, groundwater, and flood waters.
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`Trees, root mats, and other wetland vegetation also slow the speed of flood waters and distribute
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`them more slowly over the floodplain. Wetlands store carbon within their plant communities and
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`soil instead of releasing it to the atmosphere as carbon dioxide. Thus, wetlands help to moderate
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`global climate conditions. Stormwater contaminated with sediment can harm wetlands by, among
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`other things, suffocating the native species and allowing noxious and invasive species to come in
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`and dominate the area. Sedimentation can also decrease wetland volume, decrease the duration that
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`wetlands retain water, and change plant community structure. This can severely harm vegetation,
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`soils, and downstream water quality and significantly increase the risk of flooding.
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`18.
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`To minimize polluted stormwater discharges from industrial facilities, EPA has
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`issued a general industrial stormwater permit (“Stormwater Permit”) under the NPDES program.
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`EPA first issued the Stormwater Permit in 1995 and reissued the permit in 2000, 2008, and 2015.
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`See 60 Fed. Reg. 50804 (Sept. 29, 1995); 65 Fed. Reg. 64746 (Oct. 30, 2000); 73 Fed. Reg. 56572
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`(Sept. 29, 2008); 80 Fed. Reg. 34403 (June 4, 2015).
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`19. Mineral mining and dressing facilities are subject to the requirements of the
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`Stormwater Permit. Stormwater Permit, Appendix D, pg. D-3. Therefore, mineral mining and
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`dressing facilities must obtain coverage under the Stormwater Permit and stormwater discharges
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`without such permit coverage are unlawful. See Sections 301(a), 402(a) and 402(p) of the Act, 33
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`U.S.C. §§ 1311(a), 1342(a), 1342(p).
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`20.
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`The Stormwater Permit requires these facilities to, among other things:
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`a.
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`prepare a stormwater pollution prevention plan (“SWPPP”) that, among
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`other things, describes the facility and identifies all stormwater outfalls,
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`Stormwater Permit, pg. 31;
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`b.
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`submit to EPA a “Notice of Intent” to be covered by the Stormwater Permit
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`that lists all stormwater outfalls by a unique 3-digit code and corresponding
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`latitude and longitude coordinates, Stormwater Permit, Appendix G;
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`c.
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`ensure that pollutant control measures minimize pollutants in stormwater
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`discharges, Stormwater Permit, pg. 14;
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`d.
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`locate materials, equipment, and activities to contain potential spills,
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`Stormwater Permit, pg. 15;
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`e.
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`minimize erosion by stabilizing exposed soils at the facility and use
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`structural and non-structural control measures to minimize the discharge of
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`sediment, Stormwater Permit, pg. 17;
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`f.
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`evaluate for and eliminate unauthorized non-stormwater discharges,
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`Stormwater Permit, pg. 19;
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`g.
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`ensure that stormwater discharges do not cause or have the reasonable
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`potential to cause or contribute to a violation of water quality standards,
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`Stormwater Permit, pg. 20;
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`h.
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`implement specific best management practices applicable to mineral mining
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`and dressing facilities, Stormwater Permit, pgs. 105-109;
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`i.
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`monitor stormwater discharges from all outfalls for compliance with
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`benchmarks applicable to mineral mining and dressing facilities,
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`Stormwater Permit, pg. 113;
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`j.
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`report all monitoring results for all facility outfalls to EPA by specified
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`deadlines, Stormwater Permit, pgs. 48-49;
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`k.
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`conduct corrective action to expeditiously eliminate excessive stormwater
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`pollution and unauthorized non-stormwater discharges, Stormwater Permit,
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`pgs. 27-29;
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`l.
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`conduct routine facility inspections at least quarterly (Stormwater Permit,
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`pg. 22) and quarterly visual assessments (Stormwater Permit, pg. 24) to,
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`among other things, sample and assess the quality of the facility’s
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`stormwater discharges, ensure that stormwater control measures required by
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`the permit are functioning correctly and are adequate to minimize pollutant
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`discharge, and timely perform corrective actions when they are not,
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`Stormwater Permit, pgs. 22-26;
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`m.
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`timely prepare and submit to EPA annual reports that include findings from
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`the facility inspections and visual assessments and the documentation of
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`corrective actions, Stormwater Permit, pgs. 49-50; and
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`n.
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`comply with any additional Massachusetts requirements, including but not
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`limited to the requirements of the Massachusetts Clean Waters Act its
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`implementing regulations. Stormwater Permit, pg. 170.
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`Citizen Suit Provision of the Federal Clean Water Act
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`21.
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`Section 505(a)(1) of the Act authorizes citizen enforcement actions against any
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`“person,” including individuals, corporations, or partnerships, for violations of NPDES permit
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`requirements and for unpermitted discharges of pollutants. 33 U.S.C. §§ 1365(a)(1) and (f),
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`§ 1362(5).
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`22.
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`The Commonwealth is a “citizen” within the meaning of Section 505 of the Act,
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`because it is a “person” having an interest which is or may be adversely affected. See Section
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`505(g); 33 U.S.C. § 1365(g).
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`23.
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`Under Section 505 of the Act, this Court has authority to enjoin UAVE’s violations
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`of the Act’s prohibition on unauthorized discharges of pollutants and to require the company to
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`Case 1:20-cv-11617-FDS Document 1 Filed 08/31/20 Page 8 of 14
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`comply with its Stormwater Permit. The Court also has authority to impose penalties of up to
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`$54,833 per day for each of the company’s prior violations. See 33 U.S.C. §§ 1365(a); 1319(d); 40
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`C.F.R. § 19.4; 84 Fed. Reg. 2058 (Feb. 5, 2019).1
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`STATEMENT OF FACTS
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`Description of the UAVE Facility & Activities
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`24.
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`UAVE mines and processes sand and gravel on approximately 15 acres of mostly
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`deforested land covered by exposed sediment such as silt, sand, and gravel (“Surface Sediment”) at
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`the Facility. As such, UAVE is a mineral mining and dressing facility, as specified under Sector J
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`in Table D-1 of Appendix D of the Stormwater Permit.
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`25.
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`UAVE stores raw material and finished material (“Industrial Material”) in outdoor
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`piles located at various locations at the Facility.
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`26.
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`UAVE moves Industrial Material around the Facility using trucks, tractors, and
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`other heavy equipment (“Equipment”).
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`27.
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`28.
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`UAVE’s Industrial Material is sediment-laden.
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`Surface Sediment, Industrial Material, and pollutants that are present in or adhere to
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`Surface Sediment and Industrial Material (collectively, “Pollutants”) become mobilized by
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`Equipment at the Facility and are tracked around and off the Facility by Equipment.
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`1 The statutory maximum civil penalty for violations that occurred on or before November 2,
`2015 is $37,500 per day, per violation. 40 CFR § 19.4, Table 1.
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`UAVE’s Discharge of Pollutants from the Facility
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`Polluted Industrial Stormwater Discharges to
`the Purgatory Brook Wetlands
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`29.
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`Industrial Material and Surface Sediment at the Facility are exposed to
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`precipitation.
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`30.
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`31.
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`Pollutants become mobilized by stormwater.
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`The Facility slopes steeply to the southwest, dropping more than 100 feet in
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`elevation from its northeastern edge to the bottom of its driveway on University Avenue.
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`32.
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`The following screenshot taken from Google Maps Street View (image captured
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`November 2017) and annotated by the Attorney General’s Office shows the direction of flow of
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`UAVE’s polluted stormwater as it enters catch basins near University Avenue (“Driveway Catch
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`Basins”).
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`33.
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`The Driveway Catch Basins are linked to a drainage channel that leads to the
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`
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`Purgatory Brook Wetlands.
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`34.
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`UAVE discharges stormwater containing Pollutants from the Facility and into the
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`Driveway Catch Basins.
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`35.
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`Stormwater from the Facility that is discharged to the Driveway Catch Basins flows
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`to the Purgatory Brook Wetlands.
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`36.
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`Pollutants that are tracked off of the Facility onto University Avenue by Equipment
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`are picked up in stormwater and discharged into the Purgatory Brook wetlands via catch basins on
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`University Avenue.
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`37.
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`The Purgatory Brook Wetlands flow to Purgatory Brook. The Commonwealth has
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`designated Purgatory Brook as a Coldwater Fish Resource due to the presence of Brown Trout in
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`the brook. The area of the Neponset River downstream of its confluence with Purgatory Brook is
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`designated Estimated Habitat and Priority Habitat for the Blanding’s Turtle and the Ringed
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`Boghaunter (dragonfly), both of which are state-listed threatened species. The same area is
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`designated Priority Habitat for Long’s Bittercress, a state-listed endangered plant species, and
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`Long’s Bulrush, a state-listed threatened plant species. The floodplain of the Neponset River in this
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`area is Priority Habitat for Britton’s Violet and Pale Green Orchis, both of which are state-listed
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`threatened plant species. The Commonwealth has designated the area in and around the Neponset
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`River at this location to be “Core Habitat” critical for the long-term persistence of these and other
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`species of conservation concern. According to the Massachusetts Department of Fish & Game,
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`protection of Core Habitat “is essential to safeguard the diversity of species and their habitats,
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`intact ecosystems, and resilient natural landscapes across Massachusetts.”2
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`
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`2 Massachusetts Department of Fish & Game, Division of Fisheries & Wildlife and The Nature Conservancy,
`BioMap2: Conserving the Biodiversity of Massachusetts in a Changing World (2010).
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`UAVE’s Failure to Obtain a Stormwater Permit and
`Non-Compliance with the Terms of the Stormwater Permit
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`UAVE never applied for and never obtained a Stormwater Permit.
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`38.
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`39.
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`UAVE never:
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`a.
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`prepared a SWPPP for the Facility that, among other things, includes the
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`location of all stormwater outfalls in the SWPPP (section 5.2);
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`b.
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`c.
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`submitted a “complete and accurate NOI” for the Facility (section 1.2.1);
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`ensured that pollutant control measures minimize pollutants in its
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`stormwater discharges (section 2.1);
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`d.
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`located materials, equipment, and activities to contain potential spills
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`(section 2.1.2.1);
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`e.
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`minimized erosion by stabilizing exposed soils at the Facilities and used
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`structural and non-structural control measures to minimize the discharge
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`of sediment (section 2.1.2.5);
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`f.
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`evaluated for the presence of and eliminated all non-stormwater
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`discharges at each Facility (section 2.1.2.9);
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`g.
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`ensured that stormwater discharges do not cause or contribute to a
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`violation of water quality standards (section 2.2.1);
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`h.
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`implemented specific best management practices applicable to mineral
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`mining and dressing facilities (section 8.J.8);
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`i.
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`monitored stormwater discharges from all outfalls for compliance with
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`EPA’s benchmark limits (section 6.1.1);
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`j.
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`reported to EPA monitoring results for all outfalls (section 7.4);
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`k.
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`taken corrective action to eliminate non-stormwater discharges and
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`addressed excessive pollutant discharges (section 4.1);
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`l.
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`conducted routine and quarterly facility inspections to ensure, among other
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`things, that control measures are functioning correctly and are adequate to
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`minimize pollutant discharges (sections 3.1 and 3.2);
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`m.
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`timely prepared and submitted to EPA annual reports that include findings
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`from the facility inspections and visual assessments and the
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`documentation of corrective actions (section 7.5); and
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`n.
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`complied with additional state requirements incorporated by reference into
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`the Permit, including the Massachusetts Clean Waters Act and the
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`Massachusetts Wetlands Protection Act (section 9.1.2.1).
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`FIRST CAUSE OF ACTION
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`Discharges of Industrial Stormwater Without a Federal Stormwater Permit:
`Violations of Section 301(a) of the Federal Clean Water Act, 33 U.S.C. § 1311(a)
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`The Commonwealth realleges and incorporates by reference the allegations
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`40.
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`contained in the above paragraphs.
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`41.
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`UAVE is a “person” within the meaning of Section 502(5) of the Clean Water Act,
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`33 U.S.C. § 1362(5).
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`42.
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`The Purgatory Brook Wetlands are “navigable waters” within the meaning of
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`Section 502(7) of the Clean Water Act, 33 U.S.C. § 1362(7).
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`43.
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`By discharging industrial stormwater from the Facility to the Purgatory Brook
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`Wetlands without a Stormwater Permit, UAVE violated and continues to violate Section 301(a) of
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`the Act, 33 U.S.C. § 1311(a).
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`44.
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`Each day that UAVE discharged industrial stormwater from the Facility to the
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`Purgatory Brook Wetlands without a Stormwater Permit is a separate and distinct violation of
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`Section 301(a) of the Act, 33 U.S.C. § 1311(a), for each day on which the violation occurred
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`and/or continued. See also Sections 505(a)(1) and (f), 33 U.S.C. §§ 1365(a)(1) and (f).
`
`45.
`
`These violations establish an ongoing pattern of failure to comply with the Act’s
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`requirements.
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`SECOND CAUSE OF ACTION
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`Noncompliance with the Federal Stormwater Permit:
`Violations of Section 301(a) of the Federal Clean Water Act, 33 U.S.C. § 1311(a)
`
`46.
`
`The Commonwealth realleges and incorporates by reference the allegations
`
`contained in the above paragraphs.
`
`
`47.
`
`By failing to perform the actions set forth in paragraph 20, above, UAVE has
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`violated and continues to violate Section 301(a) of the Act, 33 U.S.C. § 1311(a).
`
`48.
`
`Each of UAVE’s violations of the requirement of the Stormwater Permit is a
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`separate and distinct violation of Section 301(a) of the Act, 33 U.S.C. § 1311(a), for each day on
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`which the violation occurred and/or continued. See also Section 505(a)(1) and (f), 33 U.S.C.
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`§§ 1365(a)(1) and (f).
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`49.
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`These violations establish an ongoing pattern of failure to comply with the Act’s
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`requirements.
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`RELIEF REQUESTED
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`Wherefore, the Commonwealth respectfully requests that this Court grant the following
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`relief:
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`1.
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`Require UAVE to comply with EPA’s federal Stormwater Permit;
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`2.
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`Order UAVE to pay civil penalties of up to: $54,833 per day for each of the
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`company’s prior violations. See 33 U.S.C. §§ 1365(a); 1319(d); 40 C.F.R. § 19.4; 84 Fed.
`
`Reg. 2058 (Feb. 5, 2019).
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`3.
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`Order UAVE to take appropriate actions to restore the quality of protected resource
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`areas and waterways impaired by its activities;
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`4.
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`Award the Commonwealth’s costs (including reasonable investigative, attorney,
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`witness, and consultant fees) as authorized by the Act, 33 U.S.C. § 1365(d); and
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`5.
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`Award any such other and further relief as this Court may deem appropriate.
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`Dated: August 31, 2020
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`Respectfully submitted,
`
`COMMONWEALTH OF MASSACHUSETTS
`
`By its attorneys,
`
`MAURA HEALEY
`ATTORNEY GENERAL
`
`Nora J. Chorover (Bar No. 547352)
`Emily K. Mitchell (Bar No. 703726)
`Special Assistant Attorney General
`Environmental Protection Division
`Office of the Attorney General
`One Ashburton Place, 18th Floor
`Boston, Massachusetts 02108
`Tel: (617) 727-2200, ext. 2436
`Nora.Chorover@state.ma.us
`Emily.Mitchell@state.ma.us
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