Case 3:20-cv-30180 Document 1 Filed 11/18/20 Page 1 of 27
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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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`KANE SCRAP IRON & METAL, INC.,
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`Case No.
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`COMPLAINT
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`Defendant.
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`INTRODUCTION
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`1.
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`Kane Scrap Iron & Metal, Inc. (“Kane”) discharges industrial stormwater
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`contaminated with lead and other pollutants from its scrap metal facility at 184 East Meadow
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`Street, Chicopee, Massachusetts (the “Facility”) into the City of Chicopee’s municipal storm drain
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`system, where it flows untreated to the Chicopee River. Kane’s stormwater contains excessive
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`amounts of lead, zinc, aluminum, iron, copper, chemical oxygen demand (“COD”), and total
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`suspended solids (“TSS”). Kane has not properly monitored its stormwater discharges because it
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`has failed to sample from at least two discharge locations or “outfalls.” But, even its own
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`incomplete sampling results show concentrations of contaminants many times higher than
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`benchmark standards established by the United States Environmental Protection Agency (“EPA”).
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`For example, as recently as the second quarter of 2019 (April -June), Kane’s stormwater
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`discharges from its outfall #1 exceeded the benchmarks for lead by 609% (more than seven times
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`the limit), aluminum by 241% (more than three times the limit), COD by 369% (almost five times
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`the limit), iron by 386% (almost five times the limit), and zinc by 1020% (more than eleven times
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`the limit).
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`2.
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`Kane’s failure to take adequate corrective action to eliminate these excessive
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`pollutant discharges and to otherwise properly control and monitor the quality of its stormwater
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`discharges violate the federal Clean Water Act. 33 U.S.C. § 1251 et seq. (the “Clean Water Act” or
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`“the Act”) and the terms of a stormwater permit issued to Kane by the United States
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`Environmental Protection Agency (“EPA”).
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`3.
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`Kane stores and processes scrap materials outdoors at its Facility. The Facility
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`spans approximately 4-5 acres. Kane moves raw material, final processed material, and waste
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`material (“Industrial Materials”) around and off the Facility with heavy equipment and vehicles.
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`Kane and persons that visit the Kane Facility in the ordinary course of business scatter these
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`Industrial Materials around the Facility, including on its ground surface. As illustrated in the
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`photograph below, much of the surface of the Facility is strewn with Industrial Materials. There are
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`large uncovered piles of Industrial Materials throughout the Facility. See also Exhibit A (photos of
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`the Facility).
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`4.
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`Rain and snow melt (jointly “stormwater”) land on Industrial Material piles,
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`equipment, the ground surface, and Industrial Materials that are present throughout the Facility.
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`Stormwater on the Facility picks up pollutants, including heavy metals, and then flows untreated to
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`the Chicopee River via at least four municipal catch basins on East Meadow Street.
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`5.
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`Excessive heavy metals in runoff pose a long-term threat to aquatic ecosystems, the
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`food chain, and human health. Once introduced into the aquatic environment, lead and other heavy
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`metals such as zinc, aluminum, iron, and copper will mix in the water column, settle into
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`sediments, or be consumed by biota. Heavy metals are readily dissolved in water, making them
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`easily absorbed by aquatic organisms such as fish and invertebrates. Lead is particularly toxic to
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`organisms even at very low concentrations. Excessive levels of heavy metals in the aquatic
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`environment can disturb organisms’ growth, metabolism, and reproduction. The presence of heavy
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`metals in bottom-sediment is a long-term source of aquatic contamination because the metals will
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`be slowly released into the environment over time and will become re-mobilized in times of
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`flooding or other disruptive events. Heavy metals tend to bioaccumulate, posing a threat to species
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`higher up on the food chain, such as humans.
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`6.
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`The Facility’s stormwater is discharged untreated via the municipal storm drain
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`system to the Chicopee River within an area designated “Core Habitat” for state-listed endangered
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`species. The confluence of the Chicopee and Connecticut Rivers, downstream from the Facility,
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`has been designated as estimated and priority habitat for several state-listed endangered species.
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`Endangered species in the area include the Shortnose Sturgeon, the Bald Eagle, the Riverine
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`Clubtail (dragonfly), the Yellow Lampmussel (mussel), and the Arrow Clubtail (dragonfly). These
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`species’ habitats may be impacted by Kane’s unlawful stormwater discharges.
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`7.
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`The Commonwealth of Massachusetts (the “Commonwealth”) brings this civil suit
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`to enforce the requirements of the Act. The Commonwealth seeks injunctive relief, civil penalties,
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`and other relief the Court deems appropriate to redress Kane’s illegal discharges of pollution.
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`JURISDICTION AND VENUE
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`8.
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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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`9.
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`On _______________, the Commonwealth provided notice of Kane’s violations of
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`the Clean Water Act, and of its intention to file suit against Kane (the “Notice Letter”), to the
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`Administrator of EPA; the Administrator of EPA Region 1; the Commissioner of the
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`Massachusetts Department of Environmental Protection (“MassDEP”); and to Kane, as required by
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`the Act, 33 U.S.C. § 1365(b)(1)(A).
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`10. More than sixty days have passed since notice was served.
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`11.
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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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`12.
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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 Kane’s failure to comply with the Clean Water
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`Act, as alleged in this Complaint. The requested relief will redress the harms to the Commonwealth
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`caused by Kane’s activities. Kane’s continuing acts and omissions, as alleged in this Complaint,
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`will irreparably harm the Commonwealth, for which harm it has no plain, speedy, or adequate
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`remedy at law.
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`13.
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`Venue is proper in the District Court of Massachusetts pursuant to Section
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`505(c)(1) of the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within
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`this judicial district.
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`PARTIES
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`14.
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`15.
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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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`16.
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`Defendant Kane, Inc. is a domestic corporation with its principle address listed as
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`148 Croyden Terrace, Springfield, Massachusetts.
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`STATUTORY BACKGROUND
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`Federal Clean Water Act Requirements
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`17.
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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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`18.
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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, organic matter, nutrients, metals and petroleum by-products. Polluted
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`stormwater runoff can be harmful to plants, animals, and people.
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`19.
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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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`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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`20.
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`Companies that acquire, stockpile, and process scrap metals and that discharge
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`industrial stormwater to waters of the United States directly or through separate storm sewer
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`systems are subject to the requirements of this Stormwater Permit. Stormwater Permit, Appendix
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`D-4 (Sector N).
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`21.
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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, Section 5.2.2 (pg. 31);
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`b.
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`submit to EPA a Notice of Intent (“NOI”) to be covered by the Stormwater
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`Permit that lists all stormwater outfalls by a unique 3-digit code and
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`corresponding latitude and longitude coordinates, Stormwater Permit,
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`Section 1.2 (pg. 9), and Appendix G;
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`c.
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`select, design, install, and implement pollutant control measures that
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`minimize pollutants in stormwater discharges, Stormwater Permit, Section
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`2.1 (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, Section 2.1.2.4 (pg. 15);
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`e.
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`minimize contact of stormwater runoff with Industrial Materials, scrap
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`processing equipment, and scrap processing areas, Stormwater Permit,
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`Section 8.N.3.1.2 (pgs. 125-126);
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`f.
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`keep clean all exposed areas that are potential sources of pollutants by
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`storing materials in appropriate containers, properly controlling runoff
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`associated with dumpsters, and keeping exposed areas free of waste,
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`garbage and floatable debris, Stormwater Permit, Section 2.1.2.2 (pgs. 15-
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`16);
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`g.
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`minimize generation of dust and off-site tracking of Industrial Materials in
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`order to minimize pollutant discharges, Stormwater Permit, Section 2.1.2.10
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`(pg. 19);
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`h.
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`collect and analyze stormwater samples for compliance with EPA
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`benchmarks that apply to scrap metal facilities, including for lead, zinc,
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`aluminum, iron, copper, chemical oxygen demand (“COD”), and total
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`suspended solids (“TSS”), Stormwater Permit, Sections 6 and 8.N.6 (pgs.
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`30-44, 129-130);
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`i.
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`j.
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`report all benchmark monitoring data to EPA within mandatory deadlines,
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`Stormwater Permit, Section 7.4 (pgs. 48-49);
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`conduct and document corrective action within mandatory timelines to
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`expeditiously eliminate excessive stormwater pollution whenever the
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`average of four quarterly sampling results exceeds an applicable
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`benchmark, Stormwater Permit, Sections 2.1 and 4.2 (pgs. 14, 27-29); and
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`k.
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`conduct routine facility inspections at least quarterly and quarterly visual
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`assessments to, among other things, sample and assess the quality of the
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`facility’s stormwater discharges, ensure that stormwater control measures
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`required by the permit are functioning correctly and are adequate to
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`minimize pollutant discharge, and to ensure timely corrective actions are
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`taken when they are not, Stormwater Permit, Sections 3.1. and 3.2 (pgs. 22-
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`26).
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`Citizen Suit Provision of the Federal Clean Water Act
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`22.
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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
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`(f), 1362(5).
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`23.
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`The Commonwealth is a “citizen” within the meaning of Section 505(g) of the Act,
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`because it is a “person” having an interest which is or may be adversely affected. See 33 U.S.C.
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`§ 1365(g).
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`24.
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`Under Section 505 of the Act, this Court has authority to enjoin Kane’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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`comply with its Stormwater Permit. The Court also has authority to impose penalties of up to
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`$53,484 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; 83 Fed. Reg. 1190, 1193 (Jan. 10, 2018).1
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`STATEMENT OF FACTS
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`Description of the Kane Facility & Activities
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`Kane operates a scrap iron and metal recycling facility on about five acres of
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`25.
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`impervious surface in the Ferry Lane area of Chicopee, near the junction of Routes 391 and 90.
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`The company receives, stores, and processes scrap metal materials on several acres of impervious
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`surface in Chicopee, adjacent to municipal catch basins that drain into the Chicopee municipal
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`storm drain system. The Chicopee municipal storm drain system empties into the Chicopee River,
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`downstream of the Facility.
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`26.
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`Kane acquires materials composed of ferrous and non-ferrous scrap metal,
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`including appliances, and then processes the materials into saleable product. Kane stockpiles
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`Industrial Materials at the Facility and moves them around the Facility with vehicles and heavy
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`equipment.
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`27.
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`Kane’s stores its Industrial Materials uncovered outside. Kane moves Industrial
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`Material around the Facility, placing it in large piles and in uncovered containers, and dropping it
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`onto the ground surface. Industrial Material that Kane places or drops on the ground mixes with
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`other sediments on the ground.
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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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`28.
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`Precipitation comes into contact with Kane’s Industrial Material and with the
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`sediment on the ground surface of the Facility. Precipitation that lands on the Facility picks up
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`pollutants including heavy metals and runs of the Facility into the nearby municipal catch basins.
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`29.
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`Pollutants at the Facility become mobilized by wind, equipment, and vehicles at the
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`Facility and are tracked around and off the Facility by vehicles.
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`30.
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`Pollutants from the Facility that are tracked onto East Meadow Street by equipment
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`and vehicles are picked up in stormwater and discharged into the catch basins on East Meadow
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`Street and then to the Chicopee River.
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`Potential Water Quality Impacts from Pollutants in Kane’s Stormwater Discharges
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`31.
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`Kane’s stormwater discharges contain a myriad of pollutants, some of which it is
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`required to monitor pursuant to the Stormwater Permit. Among the pollutants present in excessive
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`amounts in Kane’s stormwater discharges are lead, zinc, aluminum, iron, copper, COD, and TSS.
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`32.
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`Lead is commonly used as an additive in the steel making process to improve the
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`machinability of the steel. It may be present in the coatings on scrap metal (paints, hot dips, etc.),
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`or it may be present as pure metal, an alloy, or its oxides. The use of heat in the processing of steel
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`scrap can release substantial amount of lead fume, resulting in the settling of lead dust. Abrasive
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`removal of surface coatings also creates lead dust. Lead on the surfaces of scrap metal and lead
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`dust from the processing of scrap is picked up in stormwater and can adversely impact water
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`quality.2 Adverse effects of lead in water on aquatic species occur at very low concentrations, and
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`include reduced survival, impaired reproduction, and reduced growth. Even at low levels, lead may
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`2 The presence of dust in the air and on the surfaces of scrap metal facilities may also pose a
`significant risk to worker health and safety. Occupational Safety and Health Administration,
`Guidance for the Identification and Control of Safety and Health Hazards in Metal Scrap
`Recycling (2008), pgs. 21-22.
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`cause a range of human health effects, including learning disabilities, kidney problems, and high
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`blood pressure. Children are particularly vulnerable to impacts from lead contamination.
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`33.
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`Zinc is used in metal alloys such as brass, nickel silver, and aluminum solder, and is
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`used in metal galvanizing, a process of applying a coating to steel or iron to slow the rate of
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`corrosion. Adverse effects of excessive dissolved zinc among aquatic species include altered
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`behavior, blood and serum chemistry, impaired reproduction, and reduced growth.
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`34.
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`Aluminum is the most widely-recycled nonferrous metal. Sources of aluminum in a
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`metal scrap yard may include left-over material from industrial processes (e.g., aluminum left over
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`when can lids are punched out of sheets), or aluminum from building siding or fixtures. Elevated
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`levels of aluminum can affect some species’ ability to regulate ions, like salts, and inhibit
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`respiratory functions, like breathing. Aluminum can accumulate on the surface of a fish’s gill,
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`leading to respiratory dysfunction, and possibly death.
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`35.
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`Ferrous scrap is metal that contains iron. Iron and steel (which contains iron) can be
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`processed and re-melted repeatedly to form new objects. Ferrous scrap comes from sources such as
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`mill scrap (from primary processing), used construction beams, plates, pipes, tubes, wiring, and
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`shot, automotive scraps, railroad scrap and railcar scrap, and other miscellaneous scrap metal.
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`Ferrous metals are magnetic and are often collected in scrap yards by a large electromagnet
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`attached to a crane, sweeping across piles of scrap to grab magnetic objects. Excessive
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`concentrations of iron in the aquatic environment can cause oxidation of gill tissue, gill damage,
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`anemia, and secondary bacterial and fungal infections in fish. Iron in the form of solid particulate
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`can settle on the bottom of water bodies and destroy bottom-dwelling invertebrates, plants, or
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`incubating fish eggs. Iron can also cause aesthetically objectionable conditions in water bodies by
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`making the water appear rust colored.
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`36.
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`Copper is used in a variety of applications such as pipes, electrical components, and
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`electric wires. The storage and processing of these components can lead to contamination of
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`stormwater runoff at scrap yard facilities. The melding or grinding of copper metal may increase
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`the presence of copper dust. Copper in at high concentrations has a negative impact on fish and
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`wildlife and may impact predator avoidance behaviors, growth and migration.
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`37.
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`COD is a measurement of organic matter in water. Excessive discharges of organic
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`matter pose a risk of harm to water quality and aquatic life. When high levels of organic matter are
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`discharged to a waterbody, the presence of bacteria, fungi, and other decomposer organisms
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`increases. The presence of decomposer organisms and the decomposition process lowers the
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`available oxygen in the water, impairing other aquatic organisms or, in severe cases, asphyxiating
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`them.
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`38.
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`TSS is an indicator parameter that measures the presence of solids, or sediment,
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`suspended in a water sample. Solids in scrap yard stormwater discharges are likely to include non-
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`dissolved metal particles and contaminated soil. Even uncontaminated sediment destroys habitat,
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`harms aquatic organisms, and can contribute to flooding. Sediment settles to the bottom of a river
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`where it disrupts and smothers bottom feeding organisms. Sediment becomes suspended in water,
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`where it harms and kills fish by clogging their gills, making it harder for them to breathe.
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`Excessive sedimentation harms the entire food chain by destroying habitat and killing the smaller
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`organisms on which larger ones depend. For example, sediment in the water column increases
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`turbidity, reducing light penetration, decreasing the ability of plant communities to
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`photosynthesize, preventing animals from seeing food, and reducing fish populations. In addition,
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`other pollutants, including toxic pollutants such as heavy metals, pesticides, and petroleum by-
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`products, bind to sediment and can significantly impact water quality when carried by stormwater
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`to rivers and other waterbodies.
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`The Chicopee River
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`39.
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`The Chicopee River, a major tributary of the Connecticut River, originates in
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`Palmer, Massachusetts and joins the Connecticut River in downtown Chicopee. The Connecticut
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`and Chicopee Rivers provide the City of Chicopee with 19 miles of riverfront land. Both rivers
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`offer views, habitat, power generation, and recreational opportunities such as boating, fishing, and
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`informal trails along dikes and natural banks.
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`40.
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`The confluence of the Chicopee and Connecticut Rivers downstream of the Facility
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`has been designated by the Commonwealth as “Estimated Habitat of Rare Wildlife” and “Priority
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`Habitat of Rare Species.” This habitat is home to three state listed endangered species: a dragonfly
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`known as the Riverine Clubtail (Stylurus amnicola), a freshwater mussel known as the Yellow
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`Lampmussel (Lampsilis cariosa), and a fish known as the Shortnose Sturgeon (Acipenser
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`brevirostrum). The latter species has also been federally-listed as endangered.
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`41.
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`The area of the Chicopee River into which the facility’s stormwater is discharged
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`via the municipal system is in an area designated by the Commonwealth as “Core Habitat,” critical
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`for the long-term persistence of rare species and other species of conservation concern. According
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`to the Massachusetts Department of Fisheries & Wildlife, protection of Core Habitat “is essential
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`to safeguard the diversity of species and their habitats, intact ecosystems, and resilient natural
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`landscapes across Massachusetts.” This designation of Core Habitat is associated with habitat for
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`four anadromous fish species, including the endangered Shortnose Sturgeon. It is also associated
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`with species of conservation concern, including the following state-listed endangered species: the
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`Bald Eagle (Haliaeetus leucocephalus), a dragonfly known as the Arrow Clubtail (Stylurus
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`spiniceps); and the previously mentioned dragonfly Riverine Clubtail (Stylurus Amnicola).
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`42.
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`The habitat for these endangered species may be impacted by Kane’s stormwater
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`discharges to the Chicopee River via the Chicopee municipal storm drain system.
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`Kane’s Discharge of Pollutants from the Facility
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`Polluted Stormwater Discharges to the Chicopee River
`via Chicopee’s Municipal Stormwater System
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`Industrial Materials, vehicles, and heavy machinery at the Facility are exposed to
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`43.
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`precipitation.
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`44.
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`Stormwater that comes into contact with Industrial Materials, vehicles, and heavy
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`machinery at the Facility picks up pollutants from the Facility.
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`45.
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`Since at least September 1, 2014, Kane has discharged polluted stormwater during
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`rain events into Chicopee’s municipal stormwater system via at least four catch basins on East
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`Meadow Street.
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`46.
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`Pollutants at the Facility adhere to and are tracked off the Facility and on to East
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`Meadow Street by equipment and vehicles (for example, tires and treads). Pollutants from the
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`Facility that are tracked onto East Meadow Street by equipment and vehicles are picked up in
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`stormwater and discharged into municipal catch basins on East Meadow Street, from which they
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`flow untreated to the Chicopee River.
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`Kane’s Failure to Comply
`With the Requirements of the Stormwater Permit
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`47.
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`On or around September 13, 2011 Kane submitted a Notice of Intent to be covered
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`by the Stormwater Permit. On September 24, 2015, Kane submitted a Notice of Intent to be
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`covered by the reissued Stormwater Permit.
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`48.
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`For at least the last five years, Kane has been violating the terms of the Stormwater
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`Permit.
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`49.
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`Kane has failed to prepare a SWPPP that, among other things, identifies the
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`location of all stormwater outfalls. Kane has identified only two outfalls at the Facility, “Outfall
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`001,” located at GPS coordinates +42.160296; -72.612195, and “Outfall 002,” located at GPS
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`coordinates +42.161242, -72.612182. In addition to Outfalls 1 and 2, there are other locations on
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`East Meadow Road where Kane discharges stormwater. These locations include, but may not be
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`limited to, two catch basins whose locations are depicted on an aerial photograph taken from
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`Google Maps and annotated by the Attorney General’s Office that is attached hereto as Exhibit B.
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`50.
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`Kane has not submitted to EPA a complete and accurate NOI because it has not
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`listed the location of all its outfalls.
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`51.
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`Kane has failed to select, design, install, and implement control measures that
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`minimize pollutants in its stormwater. Industrial Material and heavy equipment are uncovered and
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`exposed to precipitation. Industrial Materials are strewn throughout the Facility in locations where
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`pollutants may be readily picked up by runoff. Polluted runoff from the Facility flows untreated
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`into catch basins on East Meadow Road. Kane routinely exceeds, often by orders of magnitude,
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`EPA benchmark limits for lead, zinc, aluminum, iron, copper, COD, and TSS at both of its
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`identified outfalls (see Exhibit C – Table of Benchmark Exceedances).
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`52.
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`Kane has failed to locate materials, equipment, and activities to contain potential
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`spills.
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`53.
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`Kane has failed to minimize contact of stormwater runoff with Industrial Materials,
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`scrap processing equipment, and scrap processing areas.
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`Case 3:20-cv-30180 Document 1 Filed 11/18/20 Page 16 of 27
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`54.
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`Kane has not kept clean all exposed areas that are potential sources of pollutants by
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`storing materials in appropriate containers, properly controlling runoff associated with dumpsters,
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`and keeping exposed areas free of waste, garbage, and floatable debris.
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`55.
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`Kane has not minimized generation of dust and off-site tracking of Industrial
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`Materials in order to minimize pollutant discharges.
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`56.
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`Kane has failed to collect and analyze stormwater samples for compliance with
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`EPA benchmarks that apply to scrap metal facilities, including for lead, zinc, aluminum, iron,
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`copper, COD, and TSS because it has failed to sample from all its stormwater outfalls.
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`57.
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`Kane has failed to report sampling results from identified outfalls to EPA within
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`established deadlines. Kane has also failed to report any sampling results from the unidentified
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`outfalls.
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`58.
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`Kane failed to modify its control measures per the corrective action requirements of
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`the Stormwater Permit after it became clear that its control measures were not achieving their
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`intended effect of minimizing pollutant discharges. Kane has been discharging stormwater that
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`exceeds by significant amounts EPA’s benchmark values for lead, zinc, aluminum, iron, copper,
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`COD, and TSS for at least five years. Exhibit C, which is based on Kane’s discharge monitoring
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`reports, itemizes benchmark exceedances occurring during the last three and a half years.
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`59.
`
`Since before the third quarter of 2014 (July-September 2014), Kane has been
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`repeatedly exceeding all the EPA benchmark values by significant amounts Accordingly,
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`corrective action was required by, at the latest, October 1, 2014. In any event, corrective action was
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`required by, at the latest, March 31, 2016.
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`60.
`
`Kane has failed to appropriately conduct routine and quarterly facility inspections
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`to ensure, among other things, that control measures are functioning correctly and are adequate to
`
`
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`Case 3:20-cv-30180 Document 1 Filed 11/18/20 Page 17 of 27
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`minimize pollutant discharges and to ensure that corrective actions are timely performed when
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`necessary.
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`FIRST CAUSE OF ACTION
`Noncompliance with the 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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`61.
`
`contained in the above paragraphs.
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`62.
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`Kane 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).
`
`63.
`
`The Chicopee River is a “navigable water” within the meaning of Section 502(7) of
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`the Clean Water Act, 33 U.S.C. § 1362(7).
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`64.
`
`Since at the latest, October 1, 2014, Kane has violated the Stormwater Permit by
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`failing to:
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`a. prepare a SWPPP for the Facility that, among other things, includes the location of
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`all stormwater outfalls in the SWPPP (violations of section 5.2.2);
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`b. submit a “complete and accurate NOI” for the Facility that lists all stormwater
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`outfalls by a unique 3-digit code and corresponding latitude and longitude
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`coordinates (violations of section 1.2.1 and Appendix G);
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`c. select, design, install, and implement pollutant control measures that minimize
`
`pollutants in stormwater discharges (violations of section 2.1);
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`d. locate materials, equipment, and activities to contain potential spills (violations of
`
`section 2.1.2.1);
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`e. minimize contact of stormwater runoff with Industrial Materials, scrap processing
`
`equipment, and scrap processing areas (violations of section 8.N.3.1.2);
`
`
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`Case 3:20-cv-30180 Document 1 Filed 11/18/20 Page 18 of 27
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`f. keep clean all exposed areas that are potential sources of pollutants by storing
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`materials in appropriate containers, properly controlling runoff associated with
`
`dumpsters, and keeping exposed areas free of waste, garbage and floatable debris,
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`Stormwater Permit (violations of section 2.1.2.2);
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`g. minimize generation of dust and off-site tracking of Industrial Materials in order to
`
`minimize pollutant discharges, Stormwater Permit (violations of section 2.1.2.10);
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`h. collect and analyze stormwater samples for compliance with EPA benchmarks that
`
`apply to scrap metal facilities, including for lead, zinc, aluminum, iron, copper,
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`chemical oxygen demand (“COD”), and total suspended solids (“TSS”) (violations
`
`of sections 6 and 8.N.6);
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`i.
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`report all benchmark monitoring data to EPA within mandatory deadlines
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`(violations of section 7.4);
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`j. conduct and document corrective action within mandatory timelines to
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`expeditiously eliminate excessive stormwater pollution whenever the average of
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`four quarterly sampling results exceeds an applicable benchmark (violations of
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`sections 2.1 and 4.2); and
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`k. conduct routine facility inspections at least quarterly and quarterly visual
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`assessments to, 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 the
`
`permit are functioning correctly and are adequate to minimize pollutant discharge,
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`and timely perform corrective actions when they are not (violations of sections 3.1.
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`and 3.2.
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`
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`Case 3:20-cv-30180 Document 1 Filed 11/18/20 Page 19 of 27
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`65.
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`Each of Kane’s violations of each 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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`66.
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`These violations establish an ongoing pattern of failure to comply with the
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`Stormwater Permit’s requirements.
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`RELIEF REQUESTED
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`WHEREFORE, the Commonwealth respectfully requests that this Court grant the
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`following relief:
`
`1.
`
`2.
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`Require Kane to comply with EPA’s federal Stormwater Permit;
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`Order Kane to pay civil penalties of up to $37,500 per day for each violation of the
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`Federal Clean Water Act that occurred on or before November 2, 2015, and civil penalties of up to
`