`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MICHIGAN
`
`
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
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`WALNUTDALE FAMILY FARMS, LLC,
`
`and
`
`KEVIN LETTINGA,
`
`
`Defendants.
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`
`
`
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`Civil Action No. ________________
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`COMPLAINT
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`
`
`
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`The United States of America, by the authority of the Attorney General of the United
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`States and through the undersigned attorneys, and at the request of the United States
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`Environmental Protection Agency (“EPA”), files this Complaint and alleges as follows:
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`NATURE OF ACTION
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`1.
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`This is a civil action brought by the United States (“Plaintiff”) seeking injunctive
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`relief and civil penalties under Section 309(b) and (d) of the Clean Water Act (“CWA”),
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`33 U.S.C. § 1319(b) and (d), against Walnutdale Family Farms, LLC (“Walnutdale”) and Kevin
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`Lettinga (“Defendants”) for failure to comply with the conditions of two National Pollutant
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`Discharge Elimination System (“NPDES”) permits issued pursuant to Section 402 of the CWA,
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`33 U.S.C. § 1342.
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`1
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`JURISDICTION, AUTHORITY, VENUE AND NOTICE
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`2.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`Section 309(b) of the CWA, 33 U.S.C. § 1319(b), and under 28 U.S.C. §§ 1331, 1345, and 1355.
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`3.
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`Authority to bring this action is vested in the United States Department of Justice,
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`on behalf of the EPA, pursuant to Section 506 of the CWA, 33 U.S.C. § 1366, and under
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`28 U.S.C. §§ 516 and 519.
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`4.
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`Venue is proper in the Western District of Michigan pursuant to Section 309(b) of
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`the CWA, 33 U.S.C. § 1319(b), as this is the judicial district within which the Defendants are
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`located or reside, and are doing business.
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`5.
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`Notice of the commencement of this action has been given to the State of
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`Michigan pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
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`DEFENDANTS
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`6.
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`Defendant Walnutdale Family Farms, LLC is a limited liability company
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`organized and existing under the laws of Michigan. Its place of business is located at 4309 14th
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`Street in Wayland, Michigan.
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`7.
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`Defendant Walnutdale Family Farms, LLC is a “person” within the meaning of
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`Section 502(5) of the CWA, 33 U.S.C. § 1362(5).
`
`8.
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`Defendant Kevin Lettinga is an owner and the operator of Walnutdale Family
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`Farms, LLC, and owns and operates, and otherwise exercises control over, the Walnutdale
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`Family Farms, LLC dairy farm located at 4309 14th Street in Wayland, Michigan (the
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`“Walnutdale Facility” or the “Facility”).
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`9.
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`Kevin Lettinga is a “person” within the meaning of Section 502(5) of the CWA,
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`33 U.S.C. § 1362(5).
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`2
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`RELEVANT LEGAL AUTHORITIES
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`
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`The Clean Water Act
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`10.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of any
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`pollutant by a person from a point source to waters of the United States except as authorized by,
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`and in compliance with, certain enumerated Sections of the CWA, including permits issued
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`pursuant to Section 402(a) of the CWA, 33 U.S.C. § 1342(a).
`
`11.
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`Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines the term “discharge
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`of a pollutant” as, inter alia, “any addition of any pollutant to navigable waters from any point
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`source.”
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`12.
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`Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines the term “point
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`source” as “any discernible, confined and discrete conveyance, including but not limited to any .
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`. . concentrated animal feeding operation . . . from which pollutants are or may be discharged.”
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`13.
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`Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines the term “pollutant” as,
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`inter alia, “biological materials . . . and agricultural waste discharged into water.”
`
`14.
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`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines the term “navigable
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`waters” as “waters of the United States, including the territorial seas.” “Waters of the United
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`States” have been further defined to include, inter alia, waters which are currently used, were
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`used in the past, or may be susceptible to use in interstate or foreign commerce (hereinafter
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`“Traditional Navigable Waters”) and tributaries of such waters. 40 C.F.R. § 122.2 (1993).
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`15.
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`Section 402 of the CWA, 33 U.S.C. § 1342, established the National Pollutant
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`Discharge Elimination System permit program under which EPA, or states authorized by EPA,
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`issue permits specifying the conditions under which discharges of pollutants may occur in
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`compliance with Section 301(a) of the CWA. Under the regulations promulgated pursuant to
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`3
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`Section 402, EPA or authorized states may issue individual NPDES permits to each discharger or
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`may issue a general NPDES permit for a specific category of discharge within a geographic area.
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`See 40 C.F.R. § 122.28.
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`16.
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`In 2003, EPA promulgated revised rules regulating the discharge of pollutants
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`from Concentrated Animal Feeding Operations (“CAFOs”). See 68 Fed. Reg. 7176 (Feb. 12,
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`2003). Under the rules, a CAFO is defined as an animal feeding operation (“AFO”) that can be
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`classified as either “large” or “medium” based on the number and type of animals confined. 40
`
`C.F.R. § 122.23(b)(2).
`
`17.
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`40 C.F.R. § 122.23(b)(1) defines an AFO as a lot or facility (other than an aquatic
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`animal production facility) where: (1) animals (other than aquatic animals) have been, are, or
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`will be stabled or confined and fed or maintained for a total of 45 days or more in any 12–month
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`period; and (2) crops, vegetation, forage growth, or post-harvest residues are not sustained in the
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`normal growing season over any portion of the lot or facility.
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`18.
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` An AFO will be classified as a “Large CAFO” if it stables or confines more than
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`700 mature dairy cows, whether milked or dry. 40 C.F.R. § 122.23(b)(4).
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`19.
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` 40 C.F.R. § 122.23(b)(7) defines process wastewater as “water directly or
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`indirectly used in the operation of the AFO for any or all of the following: spillage or overflow
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`from animal or poultry watering systems; washing, cleaning, or flushing pens, barns, manure
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`pits, or other AFO facilities; direct contact swimming, washing, or spray cooling of animals; or
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`dust control. Process wastewater also includes any water which comes into contact with any raw
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`materials, products, or byproducts including manure, litter, feed, milk, eggs or bedding.”
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`20.
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`The State of Michigan has been authorized by EPA to administer its NPDES
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`program since October 17, 1973. See M.C.L.A. Ch. 324, Art. II, Ch. 1, Pt. 31. The Michigan
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`4
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`Department of Natural Resources and Environment (“MDNR”) and the Michigan Department of
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`Environmental Quality (“MDEQ”) administered the NPDES permitting program in Michigan at
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`the times relevant to this Complaint. Michigan issues a general permit for CAFOs and requires
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`individual entities to obtain a Certificate of Coverage, by which they are covered by the general
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`permit.
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`21. When a state is authorized to administer a NPDES permit program pursuant to
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`Section 402(b) of the CWA, 33 U.S.C. § 1342(b), EPA retains the authority, concurrent with the
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`authorized state, to enforce state-issued NPDES permits and to take enforcement action under
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`Section 309 of the CWA, 33 U.S.C. § 1319. 33 U.S.C. § 1342(i).
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`22.
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`Section 309(a) of the CWA, 33 U.S.C. § 1319(a), authorizes EPA to issue a
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`compliance order or bring a civil action when EPA finds that any person is in violation of any
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`permit condition or limitation of a permit issued under Section 402 of the CWA, 33 U.S.C. §
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`1342.
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`23.
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`Section 309(b) of the CWA, 33 U.S.C. § 1319(b) authorizes EPA to commence a
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`civil action for appropriate relief, including a permanent or temporary injunction, for any
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`violation for which EPA is authorized to issue a compliance order under Section 309(a).
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`24.
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`Pursuant to Section 309(d) of the Clean Water Act, 33 U.S.C. § 1319(d), and 40
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`C.F.R. § 19.4, Defendants are liable for civil penalties not to exceed $37,500 per day for each
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`violation that occurred after January 12, 2009 through November 2, 2015; and $55,800 per day
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`for each violation that occurred after November 2, 2015.
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`
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`Applicable Walnutdale NPDES Permits
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`25.
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`On March 30, 2010, the Michigan Department of Natural Resources and
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`Environment issued general CAFO NPDES Permit No. MIG019000 (the “2010 Permit”). The
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`2010 Permit expired on April 1, 2015.
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`26. MDEQ issued Certificate of Coverage MIG010063 to Walnutdale on June 7,
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`2012.
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`27.
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`On April 30, 2015, MDEQ issued general CAFO NPDES Permit No. MIG010000
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`(the “2015 Permit”).
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`28. MDEQ reissued Certificate of Coverage MIG010063 to Walnutdale on December
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`23, 2016.
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`29.
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`The 2010 and 2015 Permits provide conditions applicable to the Facility’s
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`production area and land application areas.
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`30.
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`The 2015 Permit defines the production area to include “all areas used for animal
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`product production activities. This includes, but is not limited to: the animal confinement area,
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`the manure storage area, the raw materials storage area, and the waste containment area.” 2015
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`Permit, Part II.A. See also 40 C.F.R. § 122.23(b)(8).
`
`31.
`
`The 2015 Permit defines the land application area to include “land under the
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`control of an AFO owner or operator . . . to which CAFO waste is or may be applied.” 2015
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`Permit, Part II.A. See also 40 C.F.R. § 122.23(b)(3).
`
`32.
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`The 2010 and 2015 Permits impose various requirements on the production area
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`and land application areas of the Facility, including but not limited to prohibitions on discharges,
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`requirements for proper operation and maintenance of waste storage devices, land application
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`restrictions, and Comprehensive Nutrient Management Plan (“CNMP”) requirements.
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`6
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`33.
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`Among the requirements imposed by the Permits are design and operation
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`requirements for CAFO waste storage structures. The CAFO waste storage structures must be
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`designed and operated at all times to contain the total volume of all of the following:
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`a. Operational volume: Sufficient volume to contain all CAFO waste
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`generated by the CAFO in a six-month or greater time period, including normal precipitation and
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`runoff.
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`b.
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`Emergency volume: Sufficient volume to contain large rainfall events,
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`specifically, all production area waste generated from the 25-year, 24-hour rainfall event, as
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`specified in the Certificate of Coverage.
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`c.
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`Freeboard volume: An additional 12 inches of capacity, for storage
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`structures that are subject to runoff caused by precipitation. 2010 Permit, Part I.A.4.a.1); 2015
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`Permit, Part I.B.1.a.
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`34. Walnutdale’s Certificate of Coverage for each of its permits states that the
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`magnitude of the 25-year, 24-hour storm is 4.45 inches of rain.
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`
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`The Consent Decree
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`35.
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`The United States filed a complaint against Walnutdale Farms, Inc. and Ralph
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`Lettinga and Kevin Lettinga concerning the Facility in 2002.
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`36.
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`Kevin and Ralph Lettinga previously operated the Facility through and under the
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`name of Walnutdale Farms, Inc., which was dissolved on July 15, 2006 by the State of Michigan.
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`37.
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`That case was consolidated with a case brought by the Sierra Club and its
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`Michigan Chapter, proceeded into fact discovery, and was resolved through a Consent Decree
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`entered by the Court in 2004 (W.D. Mich. Civ. No. 4:00-cv-193, Dkt. 66) (the “Consent
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`Decree”).
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`38.
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`The Consent Decree has not been terminated and is still in effect.
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`39.
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`Paragraph 79 of the Consent Decree states that the Consent Decree “shall not be
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`construed to prevent or limit the rights of the United States or Sierra Club to obtain penalties or
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`injunctive relief under the Act or implementing regulations, or under other federal or state laws,
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`regulations, or permit conditions, except as expressly specified herein.”
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`GENERAL ALLEGATIONS
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`
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`The Walnutdale Facility
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`40.
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`The Walnutdale Facility consists of, inter alia, eight free stall barns, a milking
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`parlor, silage and feed bunkers, several manure storage structures, a slurry store, office space and
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`machine sheds, and gravel roadways that connect these buildings and structures within the
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`Facility.
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`41.
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`Subject to a reasonable opportunity for further investigation or discovery, at all
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`times relevant to this Complaint, the Facility has had an approximate average of 1460 dry and
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`milking cows.
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`42.
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`The Facility includes several lined ponds which are used to store waste generated
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`by the operation of the CAFO, including manure and process wastewater. These ponds are called
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`“waste storage structures” or “waste storage devices.”
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`43.
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`The Facility owns or otherwise has available to it over 1100 acres of land
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`application area.
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`44.
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`At all times relevant to this Complaint, the Walnutdale Facility was a “CAFO” as
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`that term is defined in Section 502(14) of the CWA, 33 U.S.C. § 1362(14), and 40 C.F.R.
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`§ 122.23(b)(2).
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`
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`Role of Kevin Lettinga
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`45.
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`46.
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`Kevin Lettinga works on-site managing the day-to-day operations at the Facility.
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`Kevin Lettinga’s initials appear on the Facility’s daily/weekly CAFO inspection
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`records as the inspector of the facility’s waste storage structures.
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`47.
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`Kevin Lettinga exerts control over the contractors that land apply the manure
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`generated at the Facility onto the Facility’s land application areas.
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`
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`April 8, 2013 Inspection
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`48.
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` On April 8, 2013, EPA conducted an inspection of the Facility. MDEQ also
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`participated in this inspection. The inspectors conducted a walk-through of the Facility.
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`49.
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`During the inspection, EPA observed a number of violations of the 2010 Permit
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`conditions. Violations included a discharge of process wastewater from the Facility to Red Run
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`Drain; inadequate depth gauges; and several violations of requirements related to the Catch
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`Basin Waste Storage Device.
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`50.
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`EPA also conducted sampling of the discharges to determine the presence of
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`pollutants that could impact downstream waters. The sampling results showed elevated levels of
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`biochemical oxygen demand, nitrogen, and phosphorus.
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`51.
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`The Facility’s land application area is located within the Buck Creek watershed,
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`which is covered by a Total Maximum Daily Load for E. coli due to the presence of elevated E.
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`coli levels in the watershed. The Facility is also located in the Rabbit River watershed, which is
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`covered by a Watershed Management Plan and where pollutants of concern include nutrients.
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`
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`April 18, 2013 Discharge
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`52.
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`On April 18, 2013, MDEQ received a citizen complaint of a discharge from the
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`Facility.
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`53. MDEQ staff inspected the Facility the same day and observed a discharge of
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`production area waste from the farm’s Catch Basin Waste Storage Structure to the Red Run
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`Drain.
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`54. MDEQ issued Violation Notice VN-005611 to Kevin Lettinga on July 16, 2013
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`for the discharge and other violations observed at the Facility during the April 8 and April 18
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`inspections. MDEQ’s Violation Notice states:
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`The storage structure was overflowing its banks and waste was flowing to the northwest
`into the Red Run Drain. The farm did not notify WRD [(“Water Resources Division”)]
`staff of the overflow, nor that the manure level in the structure was in its emergency
`volume, both violations of your permit. As a result of this discharge, the receiving water
`contained E. coli numbers that exceeded water quality standards, which is a violation of
`PART I, Section A, 1. of your permit.
`
`55.
`
`Kevin Lettinga submitted a discharge report on August 29, 2013 to MDEQ.
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`According to the discharge report, an estimated 120,000 gallons were discharged on April 18,
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`2013.
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` March 8, 2017 Inspection
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`56.
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`EPA attempted to conduct an inspection of the Walnutdale Facility on March 8,
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`2017. Although not required by statute, as a courtesy, the Department of Justice provided
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`advance notice of the inspection to Defendants’ attorney.
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`57. When EPA personnel arrived at the Facility, they were refused access by Aubrey
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`VanLaan, Kevin Lettinga’s daughter.
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`
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`April 4, 2017 Inspection
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`58.
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`EPA, accompanied by an attorney from the Department of Justice and
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`Defendants’ counsel, conducted an inspection of the Walnutdale Facility on April 4, 2017.
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`59.
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`During this inspection, EPA conducted a walk-through of the Facility, reviewed
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`records on-site, and requested additional records for later review.
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`60.
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`During the inspection, EPA observed a number of violations of the 2015 Permit
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`conditions, including inadequate depth gauge markers on waste storage devices and numerous
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`violations related to the integrity of the Facility’s waste storage devices.
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`61.
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`After the inspection, EPA continued its review of the Facility’s records. This
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`records review revealed a number of recordkeeping deficiencies, including but not limited to
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`failing to retain a Land Application Log for 2015 and failing to have a nutrient analysis of its
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`CAFO waste for 2016. The records review also indicated that the nutrient analysis for 2015 was
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`not used to calculate the nutrient rates land applied in 2015 or 2016 and that Defendants land
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`applied in excess of the maximum application rates, as described in greater detail in the Counts
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`below.
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`
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`The 2004 Consent Decree
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`62. Many of the permit violations observed during the 2013 and 2017 inspections are
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`also violations of the 2004 Consent Decree.
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`FAILURE TO MEET PERMIT REQUIREMENTS FOR AUTHORIZED
`DISCHARGE OF POLLUTANTS
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`COUNT ONE
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`
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`63.
`
`Paragraphs 1 through 62 are re-alleged and incorporated by reference.
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`64.
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`The 2010 Permit defines discharge as “the addition of any waste, waste effluent,
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`wastewater, pollutant, or any combination thereof to any surface water of the state.” 2010 Permit
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`Part II.A.
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`65. Mich. Comp. Laws. § 324.3101(aa) defines waters of the state as “groundwaters,
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`lakes, rivers, and streams and all other watercourses and waters, including the Great Lakes,
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`within the jurisdiction of this state.”
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`66.
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`The 2010 Permit authorizes a discharge only where certain conditions are met and
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`where the discharge does not cause or contribute to an exceedance of Michigan’s Water Quality
`
`Standards. The allowed discharges are:
`
`a.
`
`b.
`
`2)
`
`CAFO waste in the overflow from the storage structures for cattle .
`. . when all of the following conditions are met:
`1)
`These structures are properly designed, constructed,
`operated, and maintained.
`Precipitation events cause an overflow of the storage
`structures to occur.
`The production area is operated in accordance with the
`requirements of this permit.
`Precipitation caused runoff from land application areas and areas
`listed in Part I.A.4.b.8 [related to Non-Production Area Storm
`Water Management] that are managed in accordance with the
`NMP.
`
`3)
`
`
`
`2010 Permit, Part I.A.1.
`
`67.
`
`The 2010 Permit defines “CAFO Waste” as CAFO process wastewater, manure,
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`production area waste, effluents from the property and successfully operated treatment system or
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`any combination thereof. 2010 Permit Part II.A.
`
`68.
`
`The 2010 Permit defines “CAFO Process Wastewater” as “water directly or
`
`indirectly used in the operation of a CAFO for” (1) “[s]pillage or overflow from animal or
`
`poultry watering systems” (2) “[w]ashing, cleaning or flushing pens, barns, manure pits or other
`
`AFO facilities” (3) “[d]irect contact swimming, washing, or spray cooling of animals” (4)
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`“[d]ust control” and (5) “[a]ny water which comes into contact with, or is a constituent of any
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`raw materials, products, or byproducts, including manure, litter, feed, milk, eggs or bedding.”
`
`69.
`
`On April 8, 2013, Defendants discharged CAFO Process Wastewater from the
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`Feed Storage Area of the Facility. The process wastewater bypassed the designed wastewater
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`collection system and flowed to Red Run Drain, a surface water of the state of Michigan.
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`12
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`70.
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`On April 18, 2013, Defendants discharged an estimated 120,000 gallons of
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`production area manure and CAFO Process Wastewater from the Catch Basin Waste Storage
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`Structure at the Facility to Red Run Drain.
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`71.
`
`The April 8, 2013 discharge was a discharge of CAFO Waste and was not
`
`authorized by the NPDES Permit, in violation of Part I.A.1 and Part I.A.3 of the 2010 Permit.
`
`72.
`
`The April 18, 2013 discharge was a discharge of CAFO Waste and was not
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`authorized under Part I.A.1. of the 2010 Permit because Defendants failed to properly design,
`
`construct, operate, and/or maintain the Catch Basin Waste Storage Structure, in violation of Part
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`I.A.1.a.1 and Part I.A.3. of the 2010 Permit.
`
`73.
`
`The April 8, 2013 discharge violated Part I.A.3 of the 2010 Permit, which
`
`prohibits discharges not authorized by the permit.
`
`74.
`
`The April 18, 2013 discharge violated Part I.A.3 of the 2010 Permit, which
`
`prohibits discharges not authorized by the permit.
`
`75.
`
`Subject to a reasonable opportunity for further investigation or discovery, unless
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`restrained by this Court, Defendants will continue to violate the terms of its NPDES permit in the
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`manner described in this Count.
`
`76.
`
`As a result of the above-listed violations, pursuant to Section 309(b) and (d) of the
`
`CWA, 33 U.S.C. § 1319(b), (d), Defendants are liable for injunctive relief and the assessment of
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`civil penalties up to the statutory maximum set forth in Paragraph 24.
`
`COUNT TWO
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`FAILURE TO REPORT DISCHARGE
`
`
`
`77.
`
`Paragraphs 1 through 62 are re-alleged and incorporated by reference.
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`13
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`78.
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`The 2010 Permit requires that “[a]ll instances of discharge or noncompliance shall
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`be reported as follows:
`
`a.
`
`
`b.
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`6-hour reporting – Any discharge shall be reported, verbally, as
`soon as practicable but no later than 6 hours from the time the
`permittee becomes aware of the discharge. A written report shall
`also be provided within five (5) days.
`
`other reporting – The permittee shall report, in writing, all other
`instances of noncompliance not described in a. above at the time
`monitoring reports are submitted; or, in the case of retained self-
`monitoring or inspection results or records, within five (5) days
`from the time the permittee becomes aware of the noncompliance.”
`
`2010 Permit, Part II.C.6.
`
`79.
`
`On April 18, 2013, Defendants discharged an estimated 120,000 gallons of
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`manure and process wastewater in violation of Part I.A.1 the 2010 Permit.
`
`80.
`
`Defendants did not report this discharge to MDEQ within six hours of becoming
`
`aware of the discharge, in violation of Part II, Section C(6) of the 2010 Permit.
`
`81.
`
`Only after a citizen complaint, an investigation by MDEQ, and a violation notice
`
`issued by MDEQ, did Kevin Lettinga report the discharge, on August 29, 2013.
`
`82.
`
`Subject to a reasonable opportunity for further investigation or discovery, unless
`
`restrained by this Court, Defendants will continue to violate the terms of its NPDES permit in the
`
`manner described in this Count.
`
`83.
`
`As a result of the above-listed violations, pursuant to Section 309(b) and (d) of the
`
`CWA, 33 U.S.C. § 1319(b), (d), Defendants are liable for injunctive relief and the assessment of
`
`civil penalties up to the statutory maximum set forth in Paragraph 24.
`
`
`
`
`
`
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`14
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`FAILURES TO REPORT EMERGENCY VOLUME LEVEL IN WASTE STORAGE
`DEVICE
`
`COUNT THREE
`
`
`
`84.
`
`Paragraphs 1 through 62 are re-alleged and incorporated by reference.
`
`85.
`
`The 2010 Permit requires: “In the event that the level of CAFO waste in the
`
`storage structure rises above the maximum operational volume level and enters the emergency
`
`volume level, [MDEQ] shall be notified.” 2010 Permit, Part I.A.4.a.4)a).
`
`86.
`
`On April 8, 2013, EPA observed that the level of waste in the Catch Basin Waste
`
`Storage Structure had entered the freeboard volume level.
`
`87.
`
`Defendants did not notify MDEQ that the level of CAFO waste in the structure
`
`had risen above the maximum operational volume level and had entered, and in fact exceeded,
`
`the structure’s emergency volume level, in violation of Part I.A.4.a.4)a) of the 2010 Permit.
`
`88.
`
`On April 8, 2013, EPA observed that the level of waste in the temporary manure
`
`storage pit adjacent to hoop barn B7 had entered the freeboard volume level.
`
`89.
`
`Defendants did not notify MDEQ that the level of CAFO waste in the structure
`
`had risen above the maximum operational volume level, and had entered and even exceeded the
`
`structure’s emergency volume level, in violation of Part I.A.4.a.4)a) of the 2010 Permit.
`
`90.
`
`On April 18, 2013, MDEQ visited the Facility in response to a discharge from the
`
`Catch Basin Waste Storage Structure.
`
`91.
`
`Defendants had not notified MDEQ that the level of CAFO waste in the structure
`
`had again risen above the maximum operational volume level and entered the emergency volume
`
`level, in violation of Part I.A.4.a.4)a) of the 2010 Permit.
`
`
`
`15
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`92.
`
`A combination of EPA and MDEQ inspections and reports by the Facility indicate
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`that at numerous points between March 31, 2013 and April 29, 2013, the Catch Basin Waste
`
`Storage Structure at the Facility had less than 12 inches of capacity remaining.
`
`93.
`
`Having less than 12 inches of capacity remaining in the Catch Basin Waste
`
`Storage Structure means that the level of waste in the structure had risen above the maximum
`
`operational volume level, and had entered and even exceeded the emergency volume level.
`
`94.
`
`Defendants failed to notify MDEQ, in violation of Part I.A.4.a.4)a) of the 2010
`
`Permit.
`
`95.
`
`Subject to a reasonable opportunity for further investigation or discovery, unless
`
`restrained by this Court, Defendants will continue to violate the terms of its NPDES permit in the
`
`manner described in this Count.
`
`96.
`
`As a result of the above-listed violations, pursuant to Section 309(b) and (d) of the
`
`CWA, 33 U.S.C. § 1319(b), (d), Defendants are liable for injunctive relief and the assessment of
`
`civil penalties up to the statutory maximum set forth in Paragraph 24.
`
`COUNT FOUR
`
`FAILURE TO MAINTAIN DEPTH GAUGES
`
`
`
`97.
`
`Paragraphs 1 through 62 are re-alleged and incorporated by reference.
`
`98.
`
`The 2010 Permit requires that “CAFO waste storage structures shall include an
`
`easily visible, clearly marked depth gauge. Clear, major divisions shall be marked to delineate
`
`each of the three volumes specified above in Part I.A.4.a.1) . . . Any depth gauges that are
`
`destroyed or missing must be replaced immediately.” 2010 Permit, Part I.A.4.a.2)a).
`
`99.
`
`The 2015 Permit requires that “CAFO waste storage structures shall include an
`
`easily visible, clearly marked depth gauge. Clear, major divisions shall be marked to delineate
`
`
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`16
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`the operational, emergency, and freeboard volumes as specified above in Part I.B.1.a . . . Any
`
`depth gauges that are destroyed or missing must be replaced immediately.” Part I.B.1.b.1).
`
`100. On April 8, 2013, EPA observed that the Facility’s Catch Basin Waste Storage
`
`Structure did not contain a depth gauge, in violation of Part I.B.1.b.1) of the 2015 Permit and
`
`Part I.A.4.a.2)a) of the 2010 Permit.
`
`101. On April 8, 2013, EPA also observed that the depth gauge at the East Manure
`
`Storage Facility did not have the levels clearly marked for the operational, emergency, and
`
`freeboard volume, in violation of Part I.B.1.b.1) of the 2015 Permit and Part I.A.4.a.2)a) of the
`
`2010 Permit.
`
`102. On April 4, 2017, EPA observed that the Catch Basin Waste Storage Structure
`
`still did not contain an adequate depth gauge. The depth gauge that was present marked only the
`
`freeboard level, and did not mark the operational or emergency level, in violation of Part
`
`I.B.1.b.1) of the 2015 Permit.
`
`103. On April 4, 2017, EPA observed that the East Manure Storage Facility (identified
`
`as Pit 8 in the 2017 inspection report) also still did not contain an adequate depth gauge. A
`
`marker was present, but Facility personnel did not know what level the marker represented. No
`
`other marker was present that would reflect the remaining unused capacity of the storage
`
`device—i.e., the operational, emergency, and freeboard volume—in violation of Part I.B.1.b.1)
`
`of the 2015 Permit.
`
`104. Subject to a reasonable opportunity for further investigation or discovery, unless
`
`restrained by this Court, Defendants will continue to violate the terms of its NPDES permit in the
`
`manner described in this Count.
`
`
`
`17
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`105. As a result of the above-listed violations, pursuant to Section 309(b) and (d) of the
`
`CWA, 33 U.S.C. § 1319(b), (d), Defendants are liable for injunctive relief and the assessment of
`
`civil penalties up to the statutory maximum set forth in Paragraph 22.
`
`FAILURE TO MAINTAIN INTEGRITY OF WASTE STORAGE STRUCTURES
`
`COUNT FIVE
`
`
`
`106. Paragraphs 1 through 62 are re-alleged and incorporated by reference.
`
`107. The 2010 Permit requires: “The integrity of the CAFO waste storage structure
`
`liner shall be protected. Liner damages shall be corrected immediately and steps taken to prevent
`
`future occurrences.” 2010 Permit, Part I.A.4.a.4)e).
`
`108. The 2015 Permit, Part I.B.1.d.5), contains identical language.
`
`109. The 2015 Permit also requires that “[w]oody vegetation shall be removed
`
`promptly from waste storage berms and other areas where roots may penetrate or disturb waste
`
`storage facility liners or waste treatment facilities.” 2015 Permit, Part I.B.1.d.3).
`
`110. The 2010 Permit requires that “[v]egetation shall be maintained at a height that
`
`stabilizes earthen CAFO waste storage structures, provides for adequate visual inspection of the
`
`storage structures, and protects the integrity of the storage structure liners. The vegetation shall
`
`have sufficient density to prevent erosion.” 2010 Permit, Part I.A.4.a.4)c). The 2015 Permit, Part
`
`I.B.1.d.3), contains identical language.
`
`111. The 2015 Permit requires that “[d]ike damage caused by erosion, slumping, or
`
`animal burrowing shall be corrected immediately and steps taken to prevent occurrences in the
`
`future.” 2015 Permit, Part I.B.1.d.4).
`
`112. On April 8, 2013, EPA observed large bubbles in the liner of the Catch Basin
`
`Waste Storage Structure, in violation of Part I.A.4.a.4)e) of the 2010 Permit.
`
`
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`18
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`113. The liner bubbles, which are caused by gas becoming trapped under the liner,
`
`significantly decrease the amount of available space in the structure.
`
`114. On April 8, 2013, EPA observed that there were non-vegetated animal walkways
`
`on the berms of the Catch Basin Waste Storage Structure, in violation of the requirements in
`
`Part I.A.4.a.4)c) of the 2010 Permit to maintain vegetation around earthen waste storage
`
`structures.
`
`115. On April 4, 2017, EPA observed woody vegetation that had punctured the liner of
`
`the East Manure Storage Facility (Pit 8), in violation of Parts I.B.1.d.5) and I.B.1.d.3) of the
`
`2015 Permit.
`
`116. On April 4, 2017, EPA observed that the liner of the East Manure Storage Facility
`
`(Pit 8) was not present in some sections, in violation of Part I.B.1.d.5) of the 2015 Permit.
`
`117. On April 4, 2017, EPA observed that the Catch Basin Waste Storage Structure
`
`lacked established vegetation along portions of the west embankment,