Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 1 of 20
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`COMMONWEALTH OF
`MASSACHUSETTS,
`
`Plaintiff,
`
`Case No. 3:22-cv-30047
`
`v.
`
`COMPLAINT
`
`JOSEPH FREEDMAN CO., INC.,
`
`Defendant.
`
`INTRODUCTION
`
`1. Defendant Joseph Freedman Co., Inc. (“Freedman”) operates a scrap metal
`
`processing facility at 115 Stevens Street, Springfield, Massachusetts (the “Facility”). Freedman
`
`discharges polluted industrial stormwater from the Facility through the City of Springfield’s
`
`municipal separate storm sewer system (“Springfield MS4”) into Poor Brook, a tributary of the
`
`Chicopee River. The Facility and Poor Brook are located in areas that have been designated by
`
`the Commonwealth of Massachusetts (“Commonwealth”) as environmental justice
`
`communities. The Facility’s stormwater contains excessive amounts of lead, zinc, aluminum,
`
`iron, copper, chemical oxygen demand (“COD”), and total suspended solids (“TSS”).
`
`Excessive heavy metals in runoff pose a long-term threat to aquatic ecosystems, the food chain,
`
`and human health. Freedman has not properly controlled and monitored pollution in its
`
`stormwater discharges, as is required by the federal Clean Water Act. 33 U.S.C. § 1251 et seq.
`
`(the “Clean Water Act” or “the Act”) and the terms of a stormwater permit (“Stormwater
`
`Permit”) issued to Freedman by the United States Environmental Protection Agency (“EPA”).
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 2 of 20
`
`2. Freedman’s own sampling results show that for many years it has been discharging
`
`stormwater with levels of pollutants, including heavy metals, many times higher than
`
`benchmark standards established by EPA.
`
`3. Freedman’s failure to take adequate corrective action to eliminate these excessive
`
`pollutant discharges and to otherwise properly control and monitor the quality of its stormwater
`
`discharges violates the Clean Water Act and the Stormwater Permit.
`
`4. Freedman has not consistently monitored stormwater discharges. Freedman’s
`
`failure to monitor violates the Clean Water Act and the Stormwater Permit.
`
`5. The Commonwealth brings this civil suit to enforce the requirements of the Act.
`
`The Commonwealth seeks injunctive relief, civil penalties, and other relief the Court deems
`
`appropriate to redress Freedman’s illegal discharges of pollution.
`
`JURISDICTION AND VENUE
`
`6. This Court has subject matter jurisdiction over the parties and the subject matter of
`
`this action pursuant to Section 505(a)(1)(A) of the Act, 33 U.S.C. § 1365(a)(1)(A), and 28
`
`U.S.C. § 1331 (an action arising under the laws of the United States).
`
`7. On February 16, 2022, the Commonwealth provided notice of Freedman’s
`
`violations of the Clean Water Act, and of its intention to file suit against Freedman (the “Notice
`
`Letter”), to the Administrator of EPA; the Administrator of EPA Region 1; the Commissioner
`
`of the Massachusetts Department of Environmental Protection (“MassDEP”); and to Joseph
`
`Freedman Co., Inc. as required by the Act, 33 U.S.C. § 1365(b)(1)(A).
`
`8. More than sixty days have passed since notice was served.
`
`9. This action is not barred by any prior state or federal enforcement action addressing
`
`the violations alleged in this Complaint.
`
`
`
`2
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 3 of 20
`
`10. The Commonwealth has an interest in protecting for its residents the integrity of
`
`Massachusetts waters, and the related health, safety, economic, recreational, aesthetic, and
`
`environmental benefits those waters provide. The interests of the Commonwealth have been,
`
`are being, and will continue to be adversely affected by Freedman’s failure to comply with the
`
`Clean Water Act, as alleged in this Complaint. The requested relief will redress the harms to
`
`the Commonwealth caused by Freedman’s activities. Freedman’s continuing acts and
`
`omissions, as alleged in this Complaint, will irreparably harm the Commonwealth, for which
`
`harm it has no plain, speedy, or adequate remedy at law.
`
`11. Venue is proper in the District Court of Massachusetts pursuant to Section
`
`505(c)(1) of the Act, 33 U.S.C. § 1365(c)(1), because the source of the violations is located
`
`within this judicial district.
`
`PARTIES
`
`12. Plaintiff is the Commonwealth, appearing by and through the Attorney General.
`
`13. The Attorney General is the chief law officer of the Commonwealth, with offices at
`
`One Ashburton Place, Boston, Massachusetts. She is authorized to bring this action and to seek
`
`the requested relief under G.L. c. 12, §§ 3 and 11D.
`
`14. Defendant Joseph Freedman Co., Inc. is a domestic corporation with its principal
`
`address listed as 115 Stevens Street, Springfield, MA 01104.
`
`STATUTORY BACKGROUND
`
`Federal Clean Water Act Requirements
`
`15. The Clean Water Act makes the discharge of pollution into waters of the United
`
`States unlawful unless the discharge is in compliance with certain statutory requirements,
`
`including the requirement that the discharge be permitted by EPA under the National Pollutant
`
`
`
`3
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 4 of 20
`
`Discharge Elimination System (“NPDES”). See Sections 301(a), 402(a) and 402(p) of the Act,
`
`33 U.S.C. §§ 1311(a), 1342(a), 1342(p).
`
`16. Stormwater is the leading cause of water quality impairment in Massachusetts.
`
`During every rain or snowmelt event, runoff flows over the land surface, picking up potential
`
`pollutants such as sediment, organic matter, nutrients, metals and petroleum by-products.
`
`Polluted stormwater runoff can be harmful to plants, animals, and people.
`
`17. To minimize polluted stormwater discharges from industrial facilities, EPA has
`
`issued a general industrial stormwater permit (“Stormwater Permit”) under the NPDES
`
`program. EPA first issued the Stormwater Permit in 1995 and reissued the permit in 2000,
`
`2008, 2015, and 2021. See 60 Fed. Reg. 50804 (Sept. 29, 1995); 65 Fed. Reg. 64746 (Oct. 30,
`
`2000); 73 Fed. Reg. 56572 (Sept. 29, 2008); 86 Fed. Reg. 10269 (Feb. 19, 2021).1
`
`18. Companies that acquire, stockpile, and process scrap metals and that discharge
`
`industrial stormwater to waters of the United States directly or through separate storm sewer
`
`systems are subject to the requirements of this Stormwater Permit. Stormwater Permit,
`
`Appendix D-4 (Sector N).
`
`19. The Stormwater Permit requires these facilities to, among other things:
`
`a.
`
`select, design, install, and implement pollutant control measures that
`
`minimize pollutants in stormwater discharges in accordance with the
`
`requirements of Section 2 of the Stormwater Permit and any additional
`
`
`1 The February 2021 revision of the Stormwater Permit (“2021 Stormwater Permit”) is
`substantially similar to the 2015 version (“2015 Stormwater Permit”). Where there is a difference
`in citations due to numbering, this Complaint provides citations to each of the revisions. Where
`there is no difference in Section numbering, this Complaint refers to the two versions jointly as
`“Stormwater Permit.”
`
`
`
`4
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 5 of 20
`
`pollutant control requirements applicable to scrap recycling facilities,
`
`Stormwater Permit, Section 8.N.3;
`
`b.
`
`locate materials, equipment, and activities to contain potential spills,
`
`Stormwater Permit, Section 2.1.2.4;
`
`c.
`
`minimize contact of stormwater runoff with Industrial Materials, scrap
`
`processing equipment, and scrap processing areas, Stormwater Permit,
`
`Section 8.N.3.1.2;
`
`d.
`
`keep clean all exposed areas that are potential sources of pollutants by
`
`storing materials in appropriate containers, properly controlling runoff
`
`associated with dumpsters, and keeping exposed areas free of waste,
`
`garbage and floatable debris, Stormwater Permit, Section 2.1.2;
`
`e.
`
`minimize generation of dust and off-site tracking of Industrial Materials in
`
`order to minimize pollutant discharges, Stormwater Permit, Section
`
`2.1.2.10;
`
`f.
`
`collect and analyze stormwater samples for compliance with EPA
`
`benchmarks that apply to scrap metal facilities, including for lead, zinc,
`
`aluminum, iron,2 copper, chemical oxygen demand (“COD”), and total
`
`suspended solids (“TSS”), Stormwater Permit, Sections 6 and 8.N.7;
`
`g.
`
`conduct routine facility inspections at least quarterly and quarterly visual
`
`assessments to, among other things, sample and assess the quality of the
`
`facility’s stormwater discharges, ensure that stormwater control measures
`
`required by the permit are functioning correctly and are adequate to
`
`
`2 The 2021 Stormwater Permit does not include a benchmark limit for iron for scrap recyclers.
`
`
`
`5
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 6 of 20
`
`minimize pollutant discharge, and to ensure timely corrective actions are
`
`taken when they are not, Stormwater Permit, Sections 3.1. and 3.2 (pgs. 22-
`
`26);
`
`h.
`
`report all benchmark monitoring data to EPA within mandatory deadlines,
`
`Stormwater Permit, Section 7.4 (pgs. 48-49);
`
`i.
`
`conduct and document corrective actions and additional implementation
`
`measures within mandatory timelines to expeditiously eliminate excessive
`
`stormwater pollution whenever required by the permit, 2015 Stormwater
`
`Permit, Section 4.0; 2021 Stormwater Permit, Section 5.0; and
`
`j.
`
`timely prepare and submit to EPA annual reports that include findings from
`
`the Facility inspections and visual assessments and the documentation of
`
`corrective actions, 2015 Stormwater Permit, Section 7.5; 2021 Stormwater
`
`Permit, Section 7.4.
`
`Citizen Suit Provision of the Federal Clean Water Act
`
`20. Section 505(a)(1) of the Act authorizes citizen enforcement actions against any
`
`“person,” including individuals, corporations, or partnerships, for violations of NPDES permit
`
`requirements and for unpermitted discharges of pollutants. 33 U.S.C. §§ 1365(a)(1) and
`
`(f), 1362(5).
`
`21. The Commonwealth is authorized to bring suit under Section 505 of the Act,
`
`because it is a “person” having an interest which is or may be adversely affected. See 33 U.S.C.
`
`§ 1365(g).
`
`22. Under Section 505 of the Act, this Court has authority to enjoin Freedman’s
`
`violations of the Act’s prohibition on unauthorized discharges of pollutants and to require the
`
`
`
`6
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 7 of 20
`
`company to comply with its Stormwater Permit. The Court also has authority to impose
`
`penalties of up to $59,973 per day for each of the company’s prior violations. See 33 U.S.C. §§
`
`1365(a); 1319(d); 40 C.F.R. § 19.4; 87 Fed. Reg. 1678 (Jan. 12, 2022).
`
`STATEMENT OF FACTS
`
`Description of the Freedman Facility
`
`23. Freedman, founded in 1891, is the oldest and largest privately owned scrap metal
`
`processor in New England and operates across two facilities on over twenty (20) acres in
`
`Springfield. In addition to the Facility on Stevens Street, the company runs a scrap metal
`
`chopping operation located at 40 Albany Street, Springfield.
`
`24. The Facility is a scrap iron and metal processing facility.
`
`25. The Facility is located in the neighborhood of East Springfield across the street
`
`from residential properties.
`
`26. One hundred percent of census blocks in the neighborhood of East Springfield have
`
`been designated by the Commonwealth locations with environmental justice concerns because
`
`the residents of that community have the potential to be disproportionately impacted by
`
`environmental harms and risks.
`
`Description of Activities at the Freedman Facility
`
`27. Freedman receives, stores, and processes scrap metal materials on approximately
`
`six (6) acres of impervious surface at the Facility.
`
`28. Freedman acquires materials composed of ferrous and non-ferrous scrap metal,
`
`including appliances, and then processes these materials into saleable products. During its
`
`processes, Freedman stockpiles unprocessed metal, final products, and waste materials
`
`
`
`7
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 8 of 20
`
`(“Industrial Materials”) at the Facility and moves these materials around the Facility with
`
`vehicles and heavy equipment (“Equipment”).
`
`29. Freedman stores its Industrial Materials uncovered outside. Freedman moves
`
`Industrial Material around the Facility, placing it in large piles and in uncovered containers and
`
`dropping it onto the ground surface. Industrial Material that Freedman places or drops on the
`
`ground mixes with other sediments on the ground.
`
`Defendant’s Discharge of Pollutants from the Facility
`
`Polluted Industrial Stormwater Discharges to Poor Brook via the Springfield MS4
`
`30. During every rain or snowmelt event, runoff flows over Equipment and the ground
`
`surface at the Facility.
`
`31. Pollutants from activities at the Facility are picked up in stormwater and discharge
`
`into the Springfield MS4 via catch basins.
`
`32. Stormwater from the Facility flows via the Springfield MS4 into Poor Brook, a
`
`tributary of the Chicopee River.
`
`33. Before its confluence with the Chicopee River, Poor Brook flows through the Delta
`
`Hills Conservation Area. This 27-acre natural area is the largest open public space in the
`
`neighborhood of East Springfield.
`
`34. The tributary creeks and wetlands within the Chicopee River watershed are
`
`important in protecting aquatic resources by acting as a natural filtering system for water
`
`quality, by preventing downstream flooding, and by providing natural habitats to native
`
`species.
`
`
`
`8
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 9 of 20
`
`35. Since at least May 1, 2017, during the rain events listed on Attachment A,
`
`Freedman has discharged polluted stormwater off the Facility and into Poor Brook via the
`
`Springfield MS4.
`
`Potential Impacts from Pollutants in Freedman’s Stormwater Discharges
`
`36. Freedman’s stormwater discharges contain a myriad of pollutants including lead,
`
`zinc, aluminum, iron, copper, COD, and TSS.
`
`37. Lead is commonly used as an additive in the steel making process to improve the
`
`machinability of the steel. It may be present in the coatings on scrap metal (paints, hot dips,
`
`etc.) or it may be present as pure metal, an alloy, or its oxides. The use of heat in the processing
`
`of steel scrap can release substantial amount of lead fume, resulting in the settling of lead dust.
`
`Abrasive removal of surface coatings also creates lead dust. Lead on the surfaces of scrap
`
`metal and lead dust from the processing of scrap is picked up in stormwater and can adversely
`
`impact water quality. Lead dust also poses a significant threat to human health and safety.
`
`Adverse effects of lead in water on aquatic species occur at very low concentrations, and
`
`include reduced survival, impaired reproduction, and reduced growth. Even at low levels, lead
`
`may cause a range of human health effects, including learning disabilities, kidney problems,
`
`and high blood pressure. Children are particularly vulnerable to impacts from lead
`
`contamination.
`
`38. Zinc is used in metal alloys such as brass, nickel silver, and aluminum solder, and is
`
`used in metal galvanizing, a process of applying a coating to steel or iron to slow the rate of
`
`corrosion. Adverse effects of excessive dissolved zinc among aquatic species include altered
`
`behavior, blood and serum chemistry, impaired reproduction, and reduced growth.
`
`
`
`9
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 10 of 20
`
`39. Aluminum is the most widely recycled nonferrous metal. Sources of aluminum in a
`
`metal scrap yard may include left-over material from industrial processes (e.g., aluminum left
`
`over when can lids are punched out of sheets), or aluminum from building siding or fixtures.
`
`Elevated levels of aluminum can affect some species’ ability to regulate ions, like salts, and
`
`inhibit respiratory functions, like breathing. Aluminum can accumulate on the surface of a
`
`fish’s gill, leading to respiratory dysfunction, and possibly death.
`
`40. Ferrous scrap is metal that contains iron. Iron and steel (which contains iron) can be
`
`processed and re-melted repeatedly to form new objects. Ferrous scrap comes from sources
`
`such as mill scrap (from primary processing), used construction beams, plates, pipes, tubes,
`
`wiring, and shot, automotive scraps, railroad scrap and railcar scrap, and other miscellaneous
`
`scrap metal. Ferrous metals are magnetic and are often collected in scrap yards by a large
`
`electromagnet attached to a crane, sweeping across piles of scrap to grab magnetic objects.
`
`Excessive concentrations of iron in the aquatic environment can cause oxidation of gill tissue,
`
`gill damage, anemia, and secondary bacterial and fungal infections in fish. Iron in the form of
`
`solid particulate can settle on the bottom of water bodies and destroy bottom-dwelling
`
`invertebrates, plants, or incubating fish eggs. Iron can also cause aesthetically objectionable
`
`conditions in water bodies by making the water appear rust colored.
`
`41. Copper is used in a variety of applications such as pipes, electrical components, and
`
`electric wires. The storage and processing of these components can lead to contamination of
`
`stormwater runoff at scrap yard facilities. The melding or grinding of copper metal may
`
`increase the presence of copper dust. Copper in at high concentrations has a negative impact on
`
`fish and wildlife and may impact predator avoidance behaviors, growth, and migration.
`
`
`
`10
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 11 of 20
`
`42. COD is a measurement of organic matter in water. Excessive discharges of organic
`
`matter pose a risk of harm to water quality and aquatic life. When high levels of organic matter
`
`are discharged to a waterbody, the presence of bacteria, fungi, and other decomposer organisms
`
`increases. The presence of decomposer organisms and the decomposition process lowers the
`
`available oxygen in the water, impairing other aquatic organisms or, in severe cases,
`
`asphyxiating them.
`
`43. TSS is an indicator parameter that measures the presence of solids, or sediment,
`
`suspended in a water sample. Solids in scrap yard stormwater discharges are likely to include
`
`non-dissolved metal particles and contaminated soil. Even uncontaminated sediment destroys
`
`habitat, harms aquatic organisms, and can contribute to flooding. Sediment settles to the
`
`bottom of a river where it disrupts and smothers bottom feeding organisms. Sediment becomes
`
`suspended in water, where it harms and kills fish by clogging their gills, making it harder for
`
`them to breathe. Excessive sedimentation harms the entire food chain by destroying habitat and
`
`killing the smaller organisms on which larger ones depend. For example, sediment in the water
`
`column increases turbidity, reducing light penetration, decreasing the ability of plant
`
`communities to photosynthesize, preventing animals from seeing food, and reducing fish
`
`populations. In addition, other pollutants, including toxic pollutants such as heavy metals,
`
`pesticides, and petroleum by-products, bind to sediment and can significantly impact water
`
`quality when carried by stormwater to rivers and other waterbodies.
`
`Freedman’s Inadequate Implementation of EPA’s Stormwater Requirements
`
`44. On or around September 15, 2015 Freedman submitted a Notice of Intent to be
`
`covered by the Stormwater Permit.
`
`45. Freedman’s NOI designates two outfalls, Outfall 001 and Outfall 002.
`
`
`
`11
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 12 of 20
`
`Failure to Minimize Pollutant Discharges
`
`46. Freedman’s monitoring reports show that the presence of pollutants in its
`
`stormwater discharges from Outfall 001 routinely exceed by large orders of magnitude EPA
`
`benchmark limits for lead, zinc, aluminum, iron, copper, COD, and TSS. See Table 1:
`
`Benchmark Exceedances Since 2016.
`
`Table 1: Benchmark Exceedances Since 2016
`
`Quarter End
`Date
`
`Parameter
`
`EPA Benchmark
`Value
`
`Amount in
`Sample
`
`6/30/2018 Lead
` Aluminum
`Iron
`
` Copper
` Zinc
`3/31/2019 Lead
` Aluminum
` COD
`Iron
`
` TSS
` Copper
` Zinc
`6/30/2019 Lead
` Aluminum
` COD
`Iron
`
` Copper
` Zinc
`9/30/2019 Lead
` Aluminum
` COD
`Iron
`
` TSS
` Copper
` Zinc
`12/31/2019 Lead
` Aluminum
` COD
`Iron
`
` TSS
` Zinc
`6/30/2020 Lead
` Aluminum
`
`.014 mg/l
`.75 mg/l
`1 mg/l
`3.8 μg/l
`.04 mg/l
`0.014 mg/l
`.75 mg/l
`120 mg/l
`1 mg/l
`100 mg/l
`3.8 μg/l
`.04 mg/l
`0.014 mg/l
`.75 mg/l
`120 mg/l
`1 mg/l
`3.8 μg/l
`.04 mg/l
`0.014 mg/l
`.75 mg/l
`120 mg/l
`1 mg/l
`100 mg/l
`3.8 μg/l
`.04 mg/l
`0.014 mg/l
`.75 mg/l
`120 mg/l
`1 mg/l
`100 mg/l
`.04 mg/l
`0.014 mg/l
`.75 mg/l
`
`.089 mg/l
`1.7 mg/l
`3.7 mg/l
`130 μg/l
`0.35 mg/l
`0.87 mg/l
`24 mg/l
`510 mg/l
`43 mg/l
`580 mg/l
`900 μg/l
`2.8mg/l
`0.064 mg/l
`1.2mg/l
`160 mg/l
`1.9 mg/l
`120 μg/l
`.3 mg/l
`0.43 mg/l
`11 mg/l
`340 mg/l
`26 mg/l
`270 mg/l
`580 μg/l
`2.2 mg/l
`0.87 mg/l
`22 mg/l
`680 mg/l
`41 mg/l
`560 mg/l
`3.5 mg/l
`0.98 mg/l
`19 mg/l
`
`Percentage
`Above
`Benchmark
`635.71%
`226.67 %
`370 %
`3421.05%
`875 %
`6214.29 %
`3200 %
`425 %
`4300 %
`580 %
`23684.21 %
`7000 %
`457.14 %
`160 %
`133.33 %
`190 %
`3157.89 %
`750 %
`3071.43 %
`1466.67 %
`283.33 %
`2600 %
`270 %
`15263.15 %
`5500 %
`6214.29 %
`2933.33 %
`566.67 %
`4100 %
`560 %
`8750 %
`7000 %
`2533.33 %
`
`
`
`12
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 13 of 20
`
`Quarter End
`Date
`
`Parameter
`
`EPA Benchmark
`Value
`
`Amount in
`Sample
`
`
`
`120 mg/l
`COD
`1 mg/l
`Iron
`
`100 mg/l
` TSS
`.04 mg/l
` Zinc
`0.014 mg/l
`9/30/2020 Lead
`.75 mg/l
` Aluminum
`120 mg/l
` COD
`1 mg/l
`Iron
`
`100 mg/l
` TSS
`3.8 μg/l
` Copper
`.04 mg/l
` Zinc
`0.014 mg/l
`12/31/2020 Lead
`100 mg/l
` TSS
`3.8 μg/l
` Copper
`.04 mg/l
` Zinc
`0.014 mg/l
`3/31/2021 Lead
`.75 mg/l
` Aluminum
`120 mg/l
` COD
`1 mg/l
`Iron
`
`100 mg/l
` TSS
`3.8 μg/l
` Copper
`.04 mg/l
` Zinc
`0.014 mg/l
` Lead
`.75 mg/l
`6/30/2021 Aluminum
`1 mg/l
`
`Iron
`100 mg/l
` TSS
`3.8 μg/l
` Copper
`.04 mg/l
` Zinc
`.014 mg/l
` Lead
`12/31/2021 Aluminum 1100 ug/l
` COD
`120 mg/l
` TSS
`100 mg/l
` Copper
`5.19 μg/l
` Zinc
`107 ug/l
` Lead
`69 μg/l
`
`720 mg/l
`50 mg/l
`1000 mg/l
`4.4 mg/l
`1.5 mg/l
`34 mg/l
`210 mg/l
`63 mg/l
`560 mg/l
`1400 μg/l
`5.7 ug/l
`.021 mg/l
`140 mg/l
`39 μg/l
`.14 mg/l
`.47 mg/l
`8.6 mg/l
`420 mg/l
`23 mg/l
`340 mg/l
`470 μg/l
`2.2 mg/l
`1.3 mg/l
`17 mg/l
`41 mg/l
`3300 mg/l
`1200 μg/l
`5.5 mg/l
`1.3 mg/l
`21000 ug/l
`490 mg/l
`520 mg/l
`1200 μg/l
`3500 μg/l
`580 μg/l
`
`Percentage
`Above
`Benchmark
`600 %
`5000 %
`1000 %
`11000 %
`10714.29 %
`4533.33 %
`175 %
`6300 %
`560 %
`36842.11 %
`14250 %
`150 %
`140 %
`1026.32 %
`350 %
`3357.14 %
`1146.67 %
`350 %
`2300 %
`340 %
`12368.42 %
`5500 %
`9285.71 %
`2266.67 %
`4100 %
`3300 %
`31578.95 %
`13750 %
`9285.71%
`1909.09 %
`408.33 %
`520 %
`23121.39 %
`3271.03 %
`840.58 %
`
`
`
`
`
`47. Freedman has repeatedly exceeded each and every EPA benchmark limit by a large
`
`order of magnitude. As shown in Table 1, Freedman has failed to minimize pollutants in its
`
`stormwater discharge. Freedman failed to modify its control measures per the corrective action
`
`13
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 14 of 20
`
`requirements of the Stormwater Permit after it became clear that its control measures were not
`
`achieving their intended effect of minimizing pollutant discharges.
`
`48. Accordingly, the Permit required corrective action to address exceedances by, at the
`
`latest, May 16, 2016.
`
`49. Freedman has failed to locate materials, equipment, and activities to contain
`
`potential spills.
`
`50. Freedman has failed to minimize contact of stormwater runoff with Industrial
`
`Materials, scrap processing equipment, and scrap processing areas.
`
`51. Freedman has not kept clean all exposed areas that are potential sources of
`
`pollutants by storing materials in appropriate containers, properly controlling runoff associated
`
`with dumpsters, and keeping exposed areas free of waste, garbage, and floatable debris.
`
`52. Freedman has not minimized generation of dust and off-site tracking of Industrial
`
`Materials in order to minimize pollutant discharges.
`
`53. Freedman has failed to appropriately conduct routine and quarterly facility
`
`inspections to ensure, among other things, that control measures are functioning correctly and
`
`are adequate to minimize pollutant discharges and to ensure that corrective actions are timely
`
`performed when necessary.
`
`Inadequate Monitoring and Reporting
`
`54. Freedman has failed to consistently perform and submit to EPA benchmark
`
`monitoring reports on the quantity of pollutants in stormwater that it discharges through Outfall
`
`001. Specifically, Freedman failed to monitor and report on its compliance with benchmark
`
`limits at Outfall 001 during several calendar quarters as described below:
`
`14
`
`
`
`
`
`
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 15 of 20
`
`Table 2: Quarters for which Freedman Failed to Submit Benchmark Monitoring Data
`
`
`
`Quarter End Date
`
`3/31/2017
`6/30/2017
`9/30/2017
`12/31/2017
`3/31/2018
`9/30/2020
`
`Benchmark Monitoring
`Date Due
`4/30/2017
`7/30/2017
`10/30/2017
`1/30/2018
`4/30/2018
`10/30/2020
`
`
`
`
`
`55. Freedman has not collected or analyzed stormwater samples from Outfall 002 at
`
`any time during the last five years.
`
`Failure to Submit an Annual Report to EPA
`
`56. Freedman failed to submit to EPA annual reports for the years of 2019 and 2020.
`
`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)
`
`
`57. The Commonwealth realleges and incorporates by reference the allegations
`
`contained in the above paragraphs.
`
`58. Joseph Freedman Co., Inc. is a “person” within the meaning of Section 502(5) of
`
`the Clean Water Act, 33 U.S.C. § 1362(5).
`
`59. Poor Brook is a “navigable water” within the meaning of Section 502(7) of the
`
`Clean Water Act, 33 U.S.C. § 1362(7).
`
`60. Freedman has violated the Stormwater Permit since at least May 1, 2017, by failing
`
`to:
`
`a. select, design, install, and implement pollutant control measures that minimize
`
`pollutants in stormwater discharges (violations of sections 2.1 and 8.N.3);
`
`15
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 16 of 20
`
`b. locate materials, equipment, and activities to contain potential spills (violations of
`
`section 2.1.2.4);
`
`c. minimize contact of stormwater runoff with Industrial Materials, scrap processing
`
`equipment, and scrap processing areas (violations of section 8.N.3.1.2);
`
`d. keep clean all exposed areas that are potential sources of pollutants by storing
`
`materials in appropriate containers, properly controlling runoff associated with
`
`dumpsters, and keeping exposed areas free of waste, garbage and floatable debris,
`
`Stormwater Permit (violations of section 2.1.2);
`
`e. 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);
`
`f. conduct and document corrective action within mandatory timelines to
`
`expeditiously eliminate excessive stormwater pollution whenever the average of
`
`four quarterly sampling results exceeds an applicable benchmark (violations of
`
`sections 2.1 and 4.2); and
`
`g. conduct routine facility inspections at least quarterly and quarterly visual
`
`assessments to, among other things, sample and assess the quality of the facility’s
`
`stormwater discharges, ensure that stormwater control measures required by the
`
`permit are functioning correctly and are adequate to minimize pollutant discharge,
`
`and timely perform corrective actions when they are not (violations of sections 3.1.
`
`and 3.2).
`
`61. Freedman has violated the Stormwater Permit since at least April 30, 2017, by
`
`failing to:
`
`
`
`16
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 17 of 20
`
`a. collect and analyze stormwater samples for compliance with EPA benchmarks that
`
`apply to scrap metal facilities, including for lead, zinc, aluminum, iron, copper,
`
`chemical oxygen demand (“COD”), and total suspended solids (“TSS”) (violations
`
`of sections 6 and 8.N.6); and
`
`b. report all benchmark monitoring data to EPA within mandatory deadlines
`
`(violations of section 7.4).
`
`62. Freedman violated the Stormwater Permit since at least January 30, 2020 by failing
`
`to submit annual reports for the years 2019 and 2020 with findings from the facility inspections
`
`and visual assessments and the documentation of corrective actions (section 7.5).
`
`63. Each of Freedman’s violations of each of the requirements of the Stormwater
`
`Permit is a separate and distinct violation of Section 301(a) of the Act, 33 U.S.C. § 1311(a), for
`
`each day on which the violation occurred and/or continued. See also Section 505(a)(1) and (f),
`
`33 U.S.C. §§ 1365(a)(1) and (f).
`
`64. These violations establish an ongoing pattern of failure to comply with the
`
`Stormwater Permit’s requirements.
`
`RELIEF REQUESTED
`
`WHEREFORE, the Commonwealth respectfully requests that this Court grant the
`
`following relief:
`
`1. Require Freedman to comply with EPA’s federal Stormwater Permit;
`
`2. Order Freedman to pay civil penalties of up to $59,973 per day for each of the
`
`company’s prior violations. See 33 U.S.C. §§ 1365(a); 1319(d); 40 C.F.R. § 19.4; 87 Fed. Reg.
`
`1678 (Jan. 12, 2022);
`
`
`
`17
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 18 of 20
`
`3. Order Freedman to take appropriate actions to restore the quality of protected areas
`
`impaired by its activities;
`
`4. Award the Commonwealth’s costs (including reasonable investigative, attorney,
`
`witness, and consultant fees) as authorized by the Act, 33 U.S.C. § 1365(d); and
`
`5. Award any such other and further relief as this Court may deem appropriate.
`
`Dated: April 19, 2022
`
`Respectfully submitted,
`
`COMMONWEALTH OF MASSACHUSETTS
`
`By its attorneys,
`
`MAURA HEALEY
`ATTORNEY GENERAL
`
`Emily K. Mitchell (Bar No. 703726)
`Nora J. Chorover (Bar No. 547352)
`Assistant Attorneys General
`Environmental Protection Division
`Office of the Attorney General
`One Ashburton Place, 18th Floor
`Boston, Massachusetts 02108
`Tel: (617) 963-2207
`Emily.Mitchell@mass.gov
`
`18
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 19 of 20
`
`EXHIBIT A
`
`DAYS BETWEEN MAY 1, 2017 AND APRIL 9, 2022
`ON WHICH STORMWATER FROM FACILITY
`DISCHARGED INTO WATERS OF THE UNITED STATES
`
`
`Year
`
`Month
`
`Date
`
`2017 May
`
`2017 June
`
`2017 July
`
`2017 August
`
`2017 September
`
`5, 6, 13, 25, 26, 31
`
`5, 6, 19
`
`7, 18 24
`
`5, 22
`
`3, 6
`
`2017 October
`
`8, 9, 24, 25, 26, 29
`
`2017 November
`
`
`
`2017 December
`
`5, 12, 23
`
`2018 January
`
`12, 13, 23
`
`2018 February
`
`4, 7, 10, 11, 23, 25
`
`2018 March
`
`2018 April
`
`2018 May
`
`2018 June
`
`2018 July
`
`2
`
`3, 25
`
`15, 19, 27
`
`4, 18, 24, 27, 28
`
`17, 22, 23, 25, 26
`
`2018 August
`
`1, 3, 17, 18, 22
`
`2018 September
`
`10,12,18, 25, 26, 28
`
`2018 October
`
`2018 November
`
`2, 11, 27, 29
`2, 3, 5, 6, 9, 13, 15, 16, 19,
`26, 27
`
`2018 December
`
`2, 16, 21, 28, 31
`
`2019 January
`
`2019 February
`
`2019 March
`
`2019 April
`
`2019 May
`
`2019 June
`
`2019 July
`
`5, 20, 24
`
`6, 12, 24
`
`10, 22
`
`8, 13, 15, 20, 22, 26
`
`12, 13, 23, 28
`
`10, 11, 16, 25
`
`11, 22, 23, 31
`
`2019 August
`
`7, 21, 28
`
`2019 September
`
`2, 12
`
`2019 October
`
`16, 17, 22, 27, 31
`
`2019 November
`
`19, 24
`
`2019 December
`
`1, 9, 13, 14, 29, 30
`
`Exhibit A Page 1
`
`
`

`

`Case 3:22-cv-30047 Document 1 Filed 04/19/22 Page 20 of 20
`
`2020 January
`
`18
`
`2020 February
`
`6, 7, 13, 27
`
`2020 March
`
`13, 19, 23, 28, 29
`
`2020 April
`
`9, 13, 18, 21, 30
`
`2020 May
`
`2020 June
`
`2020 July
`
`1, 15
`
`11, 27, 29
`
`3, 22
`
`2020 August
`
`2, 9, 17, 27, 29
`
`2020 September
`
`2, 3, 29, 30
`
`2020 October
`
`13, 16, 17, 28, 29, 30
`
`2020 November
`
`1, 15, 23, 26, 30
`
`2020 December
`
`2021 January
`
`2021 February
`
`2021 March
`
`2021 April
`
`2021 May
`
`2021 June
`
`2021 July
`
`5, 25
`
`2, 16
`
`16
`
`18, 28
`
`15, 21, 29
`
`3, 4, 5, 10, 26, 28, 29, 30
`
`8, 14
`1, 2, 6, 8, 9, 11, 12, 14, 16,
`17, 18, 27, 29
`
`2021 August
`
`12, 19, 22, 23
`
`2021 September
`
`1, 2, 24
`
`2021 October
`
`3, 4, 16, 25, 26, 30
`
`2021 November
`
`2021 December
`
`2022 January
`
`12, 13
`
`11, 18
`
`17
`
`2022 February
`
`3, 4, 22, 25
`
`2022 March
`
`2022 April
`
`7, 24
`
`7, 8
`
`
`
`Exhibit A Page 2
`
`
`