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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`Case No.
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`____________________________________
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`UNITED STATES OF AMERICA
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`and
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`the STATE OF NEBRASKA
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`Plaintiffs,
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`BIG OX ENERGY - SIOUXLAND, LLC;
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`NLC ENERGY VENTURE 30, LLC.
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`Defendants.
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` ___________________________________ )
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`COMPLAINT
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`Plaintiffs, the United States of America, by authority of the Attorney General of the
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`United States and through the undersigned attorneys, acting at the request of the Administrator of
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`the United States Environmental Protection Agency (“EPA”), and the State of Nebraska, by the
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`authority of the Attorney General of Nebraska, acting at the request of the Nebraska Department
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`of Environment and Energy (“NDEE”), file this Complaint and allege as follows:
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`Case No.
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`____________________________________
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`UNITED STATES OF AMERICA
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`and
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`the STATE OF NEBRASKA
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`Plaintiffs,
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`v.
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`BIG OX ENERGY - SIOUXLAND, LLC;
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`NLC ENERGY VENTURE 30, LLC.
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`Defendants.
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` ___________________________________ )
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`COMPLAINT
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`Plaintiffs, the United States of America, by authority of the Attorney General of the
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`United States and through the undersigned attorneys, acting at the request of the Administrator of
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`the United States Environmental Protection Agency (“EPA”), and the State of Nebraska, by the
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`authority of the Attorney General of Nebraska, acting at the request of the Nebraska Department
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`of Environment and Energy (“NDEE”), file this Complaint and allege as follows:
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 2 of 73 - Page ID # 2
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`NATURE OF ACTION
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`1.
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`This is a civil action for civil penalties against Big Ox Energy - Siouxland, LLC
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`(“Big Ox”) and NLC Energy Venture 30, LLC (“EV 30”) (collectively “Defendants”) for
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`violations of Sections 110 and 112(r)(1) of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7410 and
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`7412(r)(1), and 309(b) and (d) of the Federal Water Pollution Control Act (commonly referred to
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`as the “Clean Water Act” and hereinafter referred to as the “CWA”), 33 U.S.C. § 1319(b), (d),
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`the Nebraska State Implementation Plan (“SIP”), and the Nebraska Environmental Protection
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`Act (“NEPA”), Neb. Rev. Stat. §§ 81-1501 to 81-1532.
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`2.
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`The Complaint alleges that Defendants have violated the following environmental
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`statutes, regulations, and permits applicable to Defendants’ production of biogas and solids at its
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`waste-to-energy facility in Dakota City, Nebraska:
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`(a)
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`the CAA, 42 U.S.C. § 7412(r)(1), commonly known as the General Duty
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`(g)
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`Clause;
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`the CAA, 42 U.S.C. § 7410;
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`the Nebraska SIP, 129 Neb. Admin. Code § 17-001 et seq.;
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`the federally enforceable construction permits issued to Big Ox by NDEE
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`(CP15-008 and CP17-033);
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`the CWA, 33 U.S.C. §§ 1311, 1317, and 1342;
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`NEPA, Neb. Rev. Stat. §§ 81-1506, 81-1508.02;
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`the National Pollutant Discharge Elimination System (“NPDES”)
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`Industrial Storm Water General Permit NER910000; and
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`(h)
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`Sioux City NPDES Permit IA43095.
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`3.
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`During the period of time the Facility was operating, as defined in ¶ 10 below, EV
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`30, a Delaware limited liability company, and RRCK Holding, LLC, a Delaware limited liability
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`company (“RRCK”), were the sole owners of NLC Energy—Big Ox LLC, a Delaware limited
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`liability company (“NEBO”). NEBO, in turn was the ultimate parent company of Big Ox.
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`However, Defendants have provided documentation reflecting that RRCK is no longer involved
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`in the ownership or management of NEBO or Big Ox.
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`4.
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`The Complaint alleges that EV 30 assumed liability for Big Ox’s violations of the
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`environmental statutes, regulations, and permits described in Paragraphs 1 and 2 above.
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`JURISDICTION, VENUE, AND NOTICE
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`5.
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`This Court has subject matter jurisdiction over this action and the parties pursuant
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`to 33 U.S.C. § 1319(b) and 28 U.S.C. §§ 1331, 1345, and 1355. In addition, this Court has
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`supplemental jurisdiction over the claims asserted by Nebraska pursuant to 28 U.S.C. §1367.
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`6.
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`Venue is proper in the District of Nebraska under 33 U.S.C. § 1319(b), 42 U.S.C.
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`§ 7413(b) and 28 U.S.C. §§ 1391(b) and 1395(a) because it is the judicial district in which the
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`the Facility is located and the violations occurred at the Facility and were caused by the
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`Defendants.
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`7.
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`Notice of the commencement of this action has been given to both the State of
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`Nebraska pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), and to the State of Iowa
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`pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
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`DEFENDANTS
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`8.
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`Defendant Big Ox is a limited liability company organized and existing under the
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`laws of the State of Wisconsin and is and/or was doing business in this judicial district at its
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`waste-to-energy facility.
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`9.
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`Defendant EV 30 is a Delaware limited liability company and assumed the
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`liabilities for Big Ox’s violations of the environmental statutes, regulations, and permits
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`described in Paragraphs 1 and 2 above, pursuant to an agreement dated July 31, 2020.
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`10.
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`Defendants own and operate a waste-to-energy facility located at 1616 D Avenue,
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`Dakota City, Nebraska (“Facility”).
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`11.
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`Defendants are “persons” within the meaning of Section 302(e) of the CAA,
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`42 U.S.C. § 7602(e), Section 502 of the CWA, 33 U.S.C. § 1362(5), and NEPA, Neb. Rev. Stat.
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`§ 81-1502(10).
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`STATUTORY AND REGULATORY BACKGROUND
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`Clean Air Act: Accidental Release Prevention and General Duty Clause
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`12.
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`The CAA establishes a regulatory scheme designed to protect and enhance the
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`quality of the nation’s air to promote the public health and welfare and the productive capacity of
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`its populations. 42 U.S.C. § 7401(b)(1).
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`13.
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`In response to growing public concern and awareness of the threats posed by
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`accidental releases of extremely hazardous substances, Congress amended the CAA in 1990 to
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`include the accidental release provisions found in Section 112(r), 42 U.S.C. § 7412(r). The
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`objective of Section 112(r) of the CAA, 42 U.S.C. § 7412(r), is to prevent the accidental release
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`of any listed and/or regulated substance or other extremely hazardous substance and to minimize
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`the consequence of any such release.
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`14.
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`Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), commonly referred to as
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`the General Duty Clause, is designed to impose a general duty on owners and operators to
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`operate a safe facility, free of accidental releases that threaten life or property, by taking all
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`feasible actions that are available to reduce hazards which are known to exist at the facility or
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`which have been identified for similar facilities in the same industrial group. S. Rep. No. 228,
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`101st Cong., 1st Sess. 208 (1989).
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`15.
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`Specifically, Section 112(r)(1) of the CAA, 42 U.S.C. § 7412(r)(1), sets forth that
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`owners and operators of stationary sources producing, processing, handling or storing substances
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`listed pursuant to Section 112(r)(3), 42 U.S.C. § 7412(r)(3), or any other extremely hazardous
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`substance, have a general duty in the same manner and the same extent as the Occupational
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`Safety and Health Act, 29 U.S.C. § 654 et seq., to identify hazards which may result from
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`accidental releases using appropriate hazard assessment techniques, to design and maintain a safe
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`facility, taking such steps as are necessary to prevent releases, and to minimize the consequences
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`of accidental releases which do occur.
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`16.
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`Pursuant to Section 112(r)(3), 42 U.S.C. § 7412(r)(3), EPA promulgated a list of
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`regulated substances codified at 40 C.F.R. § 68.130.
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`17.
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`The term “regulated substance” means a substance listed under Section 112(r)(3).
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`42 U.S.C. § 7412(r)(2)(B).
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`18.
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`An “extremely hazardous substance” as used in Section 112(r)(1), is any chemical
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`which may, as a result of short-term exposures because of releases to the air, cause death, injury,
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`or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity. S. Rep.
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`No. 228, 101st Cong., 1st Sess. 211 (1989). The term “extremely hazardous substance” includes,
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`but is not limited to, regulatory substances listed by EPA at 40 C.F.R. § 68.130 pursuant to
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`42 U.S.C. § 7412(r)(3), and chemicals on the list of extremely hazardous substances published
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`under Section 302 of Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
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`§ 11002, at 40 C.F.R. Part 355, Appendices A and B.
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`19.
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`Section 112(r)(2)(C) of the CAA, 42 U.S.C. § 7412(r)(2)(C), and the regulations
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`at 40 C.F.R. § 68.3, define “stationary source” as any buildings, structures, equipment,
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`installations or substance-emitting stationary activities which belong to the same industrial
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`group, which are located on one or more contiguous properties, which are under the control of
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`the same person (or persons under common control), and from which an accidental release may
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`occur.
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`20.
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`Section 112(r)(2)(A) of the CAA, 42 U.S.C. § 7412(r)(2)(A), defines “accidental
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`release” as an unanticipated emission of a regulated substance or other extremely hazardous
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`substance into the ambient air from a stationary source.
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`Clean Air Act: State Implementation Plan and Construction Permit
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`21.
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`Section 110 of the CAA, 42 U.S.C. § 7410, grants the Administrator of EPA
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`authority to approve a SIP which provides for implementation, maintenance, and enforcement of
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`an air quality standard in each air quality control region within the state.
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`22.
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`Section 110 of the CAA, 42 U.S.C. § 7410, requires each state to adopt and
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`submit to EPA for approval a SIP that provides for the attainment and maintenance of the
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`National Ambient Air Quality Standards (“NAAQS”).
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`23.
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`Section 161 of the CAA, 42 U.S.C. § 7471, requires SIPs to contain emissions
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`limitations and other measures as may be necessary to prevent significant deterioration of air
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`quality in attainment areas. The SIP requirements are set forth in 40 C.F.R. Part 51.
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`24.
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`Section 302(z) of the CAA, 42 U.S.C. § 7602(z), defines “stationary source” as
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`any source of an air pollutant except those emissions resulting directly from an internal
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`combustion engine for transportation purposes or from a nonroad engine or nonroad vehicle as
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`defined in 42 U.S.C. § 7550.
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`Nebraska Administrative Code
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`25.
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`Title 129 of the Nebraska Administrative Code is titled “Nebraska Air Quality
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`Regulations” (Neb. Admin. Code) (Revised June 24, 2019).
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`26.
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`Included in Title 129 of the Nebraska Administrative Code is Chapter 17, titled
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`“Construction Permits – When Required,” which sets forth general construction permit
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`applicability and requirements. 129 Neb. Admin. Code § 17-001 et seq. (Revised April 1, 2012).
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`27.
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`EPA most recent approval of Nebraska’s SIP occurred on August 4, 2014, 129
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`Neb. Admin. Code § 17-001 et seq. Fed. Reg. 45,108 (Aug. 4, 2014).
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`28.
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`129 Neb. Admin. Code § 17-011 states, “Approval, by issuance of a permit for
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`any construction, reconstruction, or modification, does not relieve the owner or operator from the
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`responsibility to comply with the applicable portions of the Implementation Plan control
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`strategy. The permittee must comply with all conditions of the construction permit. Any permit
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`noncompliance shall constitute a violation of the State Act and the Act, and is grounds for
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`enforcement action or permit revocation.”
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`29.
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`Nebraska’s synthetic minor permit program is part of the federally approved SIP.
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`See 129 Neb. Admin. Code § 5-001 et seq.; see also 81 Fed. Reg. 68,752 (Oct. 7, 2016).
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`30.
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`129 Neb. Admin. Code § 4-007 sets forth a limit for total reduced sulfur (“TRS”).
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`The limit is set forth as follows:
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`Total reduced sulfur
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`Level: 10.0 parts per million (10.0 ppm)
`Averaging time: 1 minute
`Form: Maximum average concentration
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`Level: 0.10 parts per million (0.10 ppm)
`Averaging time: 30-minutes
`Form: Maximum rolling average.
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`31.
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`The TRS levels generally apply where human exposure occurs and must be
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`measured in the manner set forth in the Code. 129 Neb. Admin. Code § 4-007 as part of the
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`federally approved SIP. See 81 Fed. Reg. 70,023 (Oct. 11, 2016).
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`32.
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`129 Neb. Admin. Code § 35-001 et seq. requires sources to notify the NDEE of
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`excess emissions due to startup, shutdown, and malfunction. 129 Neb. Admin. Code § 35-005
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`sets forth the reporting requirements for when a source has an event due to startup, shutdown,
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`and/or malfunction.
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`33.
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`129 Neb. Admin. Code § 35-001 et seq. is part of the federally approved SIP. See
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`65 Fed. Reg. 3,130 (Jan. 20, 2000).
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`34.
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`129 Neb. Admin. Code § 32-001 sets forth the following visible emission limit:
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`“No person may cause or permit the handling, transporting or storage of any material in a
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`manner which may allow particulate matter to become airborne in such quantities and
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`concentrations that it remains visible in the ambient air beyond the premises where it originates.”
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`35.
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`129 Neb. Admin. Code § 32-001 et seq. is part of the federally approved SIP. See
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`60 Fed. Reg. 372 (Jan. 4, 1995).
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`36.
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`129 Neb. Admin. Code § 34-008 allows for the use of all credible evidence in
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`enforcement actions. 129 Neb. Admin. Code § 34-008 is part of the federally approved SIP. See
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`81 Fed. Reg. 69,693 (Oct. 7, 2016); see also 62 Fed. Reg. 8,314 (Feb. 24, 1997).
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`Clean Air Act: Enforcement Authorities
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`37.
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`Sections 113(a)(1) and (3) of the CAA, 42 U.S.C. §§ 7413(a)(1) and (3), authorize
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`EPA to bring a civil action against any person who is in violation of any requirement or
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`prohibition of Sections 110 or 112 of the CAA, including any New Source Performance Standard
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`(“NSPS”), National Emissions Standards for Hazardous Air Pollutants (“NESHAP”), federal or
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`state Title V requirements, permits, or other CAA requirements.
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`38.
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`Section 113(b) of the CAA, 42 U.S.C. § 7413(b), authorizes the court to enjoin a
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`violation, to require compliance, to assess and recover a civil penalty, and to award any other
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`appropriate relief for each violation.
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`39.
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`Section 113(b) of the CAA, 42 U.S.C. § 7413(b), authorizes civil penalties of up
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`to $25,000 per day for each violation of the CAA. This statutory maximum civil penalty has
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`been increased to reflect inflation pursuant to the Debt Collection Improvement Act of 1996, 31
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`U.S.C. § 3701, as amended, and the Federal Civil Penalties Inflation Adjustment Act
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`Improvements Act of 2015, 28 U.S.C. § 2461, as amended, to $37,500 per day for each violation
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`occurring after January 12, 2009, through November 2, 2015, and up to $102,638 per day for
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`each violation occurring after November 2, 2015 and assessed after December 23, 2020. See 73
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`Fed. Reg. 75,340-75,346 (Dec. 11, 2008); 78 Fed. Reg. 66,643-66,648 (Nov. 6, 2013); 81 Fed.
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`Reg. 43,091 (July 1, 2016); 82 Fed. Reg. 3,633 (Jan. 12, 2017), 83 Fed. Reg. 1,190-1,194 (Jan.
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`10, 2018); 85 Fed. Reg. 1,751 (Jan. 13, 2020), 85 Fed. Reg. 83,818 (Dec. 23, 2020), all codified
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`at 40 C.F.R. Part 19.
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`Clean Water Act
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`40.
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`The CWA, 33 U.S.C. § 1311(a), and implementing regulations, prohibit the
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`discharge of pollutants into navigable waters of the United States by any person, except as in
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`compliance with other sections of the Act, including Sections 307 and 402, 33 U.S.C. §§ 1317
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`and 1342, which govern activities subject to the Pretreatment Program and the issuance of
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`NPDES permits.
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`41.
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`The CWA defines the term “discharge of a pollutant” to include “any addition of
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`any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).
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`42.
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`“Navigable waters” means the waters of the United States, including the territorial
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`seas.
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`43.
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` “Source” means “any building, structure, facility, or installation from which there
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`is or may be the discharge of pollutants.” 33 U.S.C. § 1316(a)(3).
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`44.
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`“Pollutants” include “chemical wastes, biological materials . . . and industrial . . .
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`waste discharged into water.” 33 U.S.C. § 1362(6).
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`45.
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`“Treatment works” is defined to include “any devices and systems used in the
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`storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a
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`liquid nature.” 33 U.S.C. § 1292(2)(A).
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`46.
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`“Waters of the United States” has been defined to include, inter alia, all waters
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`which are currently used, were used in the past, or may be susceptible to use in interstate or
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`foreign commerce, and tributaries of such waters. 40 C.F.R. § 122.2.
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`47.
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`Section 307 of the CWA establishes a statutory scheme for sources of pollutants
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`that do not directly discharge into waters of the United States, but, rather, introduce pollutants
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`into Publicly Owned Treatment Works (“POTW”), which in turn discharge pollutants into
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`navigable waters. 33 U.S.C. § 1317.
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`48.
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`Section 307(b) of the CWA directs EPA to promulgate pretreatment standards “to
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`prevent the discharge of any pollutant through treatment works . . . which are publicly owned,
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`which pollutant interferes with, passes through, or otherwise is incompatible with such works.”
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`33 U.S.C. § 1317(b).
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`National Pretreatment Standards
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`49.
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`Under Section 307(b) of the CWA, 33 U.S.C. § 1317(b), EPA promulgated the
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`National Pretreatment Standards, codified at 40 C.F.R. Part 403.
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`50.
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`“National Pretreatment Standard,” “Pretreatment Standard,” and “Standard” mean
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`“any regulation containing pollutant discharge limits promulgated by the EPA in accordance
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`with sections 307(b) and (c) of the Act, which applies to Industrial Users.” 40 C.F.R. § 403.3(l).
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`51.
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`The National Pretreatment Standards establish general and specific prohibitions
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`that “apply to each User introducing pollutants into a POTW whether or not the User is subject
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`to other National Pretreatment Standards or any national, State, or local Pretreatment
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`Requirements.” 40 C.F.R. § 403.5(a)-(b).
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`52.
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` “Pretreatment” means “the reduction of the amount of pollutants, the elimination
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`of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in
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`lieu of discharging or otherwise introducing such pollutants into a POTW. The reduction or
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`alteration may be obtained by physical, chemical or biological processes, process changes or by
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`other means….” 40 C.F.R. § 403.3(s).
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`53.
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`“User” and “Industrial User” mean “a source of Indirect Discharge.” 40 C.F.R.
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`§ 403.3(j).
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`54.
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`“Indirect Discharge” and “Discharge” mean “the introduction of pollutants into a
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`POTW from any non-domestic source regulated under section 307(b), (c) or (d) of the Act.”
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`40 C.F.R. § 403.3(i).
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`55.
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` “POTW” means “a treatment works as defined by section 212 of the [CWA],
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`which is owned by a State or municipality….” 40 C.F.R. § 403.3(q).
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`56.
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`Iowa Administrative Code defines a “Publicly Owned Treatment Works” or
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`“POTW” as “any device or system used in the treatment of municipal sewage or industrial
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`wastes of a liquid nature which is owned by a municipal corporation or other public body created
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`by or under Iowa law and having jurisdiction over disposal of sewage, industrial wastes or other
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`wastes, or a designated and approved management agency under Section 208 of the Act.” Iowa
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`Admin. Code Section 567. Ch. 60.2.
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`57.
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`Industrial Users are subject to “local limits” established by a POTW, or by a state
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`with an approved Pretreatment Program, to ensure the POTW’s compliance with the terms of its
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`NPDES permit. 40 C.F.R. §§ 403.5(c), 403.8(a), and 403.10(e).
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`58.
`
`Under the general prohibitions in the National Pretreatment Standards, “a User
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`may not introduce into a POTW any pollutant(s) which causes Pass Through or Interference.”
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`40 C.F.R. § 403.5(a)(1).
`
`59.
`
`“Pass Through” means “a Discharge which exits the POTW into waters of the
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`United States in quantities or concentrations which, alone or in conjunction with a discharge or
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`discharges from other sources, is a cause of a violation of any requirement of the POTW’s
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`NPDES permit (including an increase in the magnitude or duration of a violation).” 40 C.F.R.
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`§ 403.3(p).
`
`60.
`
`“Interference” means “a discharge which, alone or in conjunction with a discharge
`
`or discharges from other sources, both: (1) inhibits or disrupts the POTW, its treatment processes
`
`or operations, or its sludge processes, use or disposal; and (2) therefore is a cause of a violation
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`of any requirement of the POTW’s NPDES permit (including an increase in the magnitude or
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`duration of a violation)….” 40 C.F.R. § 403.3(k).
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 14 of 73 - Page ID # 14
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`
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`61.
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`POTWs are required to develop and enforce specific effluent limits for industrial
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`users in cases where pollutants contributed to the POTW by such users result in recurring
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`interference and/or pass through at the POTW. 40 C.F.R. § 403.5(c)(2).
`
`62.
`
`40 C.F.R. § 403.5(b)(4) states that a User also shall not introduce into a POTW
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`“[a]ny pollutant, including oxygen demanding pollutants (BOD, etc.) released in a Discharge at a
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`flow rate and/or pollutant concentration which will cause Interference with the POTW.”
`
`63.
`
`40 C.F.R. § 403.12(f) requires Industrial Users to notify the POTW immediately
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`of all “discharges that could cause problems to the POTW, including any slug loadings,” as
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`defined by § 403.5(b).
`
`64.
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`Effluent limitations, as defined in 33 U.S.C. § 1362(11), are restrictions on the
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`quantity, rate, and concentration of chemical, physical, biological and other constituents of
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`wastewater discharges into navigable waters of the United States.
`
`65.
`
`Numeric effluent limitations, as well as narrative conditions, are among the
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`conditions and limitations prescribed in NPDES permits issued under 33 U.S.C. § 1342.
`
`66.
`
`Upon receiving authorization and approval under Section 402(b) of the CWA, 33
`
`U.S.C. § 1342(b), a state may establish its own Pretreatment Program and thereby assume
`
`responsibility for implementing the POTW Pretreatment Program requirements set forth in
`
`40 C.F.R. § 403.8(f). 40 C.F.R. § 403.10(e).
`
`- 14 -
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 15 of 73 - Page ID # 15
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`
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`67.
`
`On August 10, 1978, EPA approved the State of Iowa’s NPDES Program
`
`pursuant to a Memorandum of Agreement (“MOA”)1. Iowa’s Pretreatment Program was
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`approved on June 3, 1981. On March 10, 2016, the parties entered into a MOA between the
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`Iowa Department of Natural Resources and the EPA to address the administration of the NPDES
`
`and Pretreatment Program that replaced the original 1978 MOA.
`
`68.
`
`In states authorized to implement their own Pretreatment Programs, EPA retains
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`authority, concurrent with the state, to enforce the state Pretreatment Program permits. 33 U.S.C.
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`§§ 1319, and 1342(i).
`
`69.
`
`Local limits established by a POTW, or by a state with an approved Pretreatment
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`Program, are considered to be “Pretreatment Standards” for the purposes of Section 307(d) of the
`
`CWA. 33 U.S.C. § 1317(d); 40 C.F.R. § 403.5(d).
`
`Clean Water Act: Enforcement Authorities
`
`70.
`
`EPA may commence a civil action for appropriate relief whenever it finds that a
`
`source has discharged pollutants to a POTW in violation of applicable pretreatment standards. 33
`
`U.S.C. § 1319(b).
`
`71.
`
`Under Sections 309(b) and (d) of the CWA, any owner or operator of a source
`
`who operates that source in violation of any effluent standard or prohibition or pretreatment
`
`standard promulgated under Section 307 of the CWA, 33 U.S.C. § 1317, is liable for injunctive
`
`relief and civil penalties, not to exceed $25,000 per day for each violation. 33 U.S.C. § 1319(b),
`
`
`1 https://www.epa.gov/sites/production/files/2013-09/documents/ia-moa-npdes.pdf
`- 15 -
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 16 of 73 - Page ID # 16
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`
`
`(d). This statutory maximum civil penalty has been increased to reflect inflation pursuant to the
`
`Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, as amended, and the Federal Civil
`
`Penalties Inflation Adjustment Act Improvements Act of 2015 (28 U.S.C. § 2461), as amended,
`
`to $37,500 per day for each violation occurring after January 12, 2009, through November 2,
`
`2015, and up to $56,460 per day for each violation occurring after November 2, 2015 and
`
`assessed after December 23, 2020. See 73 Fed. Reg. 75,340-75,346 (Dec. 11, 2008); 78 Fed.
`
`Reg. 66,643-66,648 (Nov. 6, 2013); 81 Fed. Reg. 43,091 (July 1, 2016); 82 Fed. Reg. 3,633 (Jan.
`
`12, 2017), 83 Fed. Reg. 1,190-1194 (Jan. 10, 2018); 85 Fed. Reg. 1.751 (Jan. 13, 2020), 85 Fed.
`
`Reg. 83,818 (Dec. 23, 2020), all codified at 40 C.F.R. Part 19.
`
`Nebraska Environmental Protection Act
`
`72.
`
`Under NEPA, NDEE has been charged with the duty to exercise exclusive general
`
`supervision of the administration of and enforcement of the CAA, CWA, the Integrated Solid
`
`Waste Management Act, Neb. Rev. Stat. §§ 13-2001 et seq., and all permits, rules and
`
`regulations and orders promulgated under the Acts.
`
`73.
`
`As part of its duties under NEPA, NDEE has authority to “issue, continue in
`
`effect, revoke, modify, or deny permits … (a) to prevent, control, or abate pollution, (b) for the
`
`discharge of wastes into the air, land, or waters of the state, and (c) for the installation,
`
`modification, or operation of disposal systems or any parts thereof[.]” Neb. Rev. Stat. § 81-
`
`1504(11).
`
`- 16 -
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`
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 17 of 73 - Page ID # 17
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`
`
`74.
`
`NDEE also has authority, delegated by EPA, to administer the CWA Section 402
`
`NPDES permit program, which includes issuance of permits under that program. See, e.g., Neb.
`
`Rev. Stat. § 81-1505(11).
`
`75.
`
`As set forth in NDEE’s rules and regulations, “[a]ll persons discharging or
`
`proposing to discharge pollutants from a point source into any waters of the state are required to
`
`apply for and have a permit to discharge as required by 40 C.F.R. § 122.21(a)[,]” which includes
`
`discharges of storm water associated with industrial activities. 119 Neb. Admin. Code § 2-002;
`
`see id. § 3-001 (listing some discharges exempt from the NPDES permit requirement).
`
`76.
`
`NEPA makes it unlawful for any person to:
`
`A.
`
`“[V]iolate any … permit or license condition or limitation, any order of
`
`
`
`
`
`
`
`the director, or any monitoring, reporting, or record-keeping requirements
`
`contained in or issued or entered into pursuant to … [NEPA] … or the
`
`rules or regulations adopted and promulgated pursuant to such acts[;]” or
`
`B.
`
`“Discharge any pollutant into waters of the state without obtaining a
`
`permit as required by the [NPDES] created by the [CWA], as amended, 33
`
`U.S.C. 1251 et seq., and by rules and regulations adopted and promulgated
`
`pursuant to section 81-1505[.]” Neb. Rev. Stat. §§ 81-1508.02(1)(1)(b),
`
`81-1506(2)(a).
`
`77. More specifically, NDEE’s rules and regulations provide: “No person shall
`
`discharge storm water containing any pollutant except as authorized by an NPDES permit or this
`
`Chapter.” 119 Neb. Admin. Code § 10-002.
`
`- 17 -
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`
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 18 of 73 - Page ID # 18
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`
`
`78.
`
`“Person” means any “[i]ndividual; partnership; limited liability company;
`
`association; public or private corporation; trustee; receiver; assignee; agent; municipality or other
`
`governmental subdivision; public agency; other legal entity; or any officer or governing or
`
`managing body of any public or private corporation, municipality, governmental subdivision,
`
`public agency, or other legal entity[.]” Neb. Rev. Stat. § 81-1502(10).
`
`79.
`
`“Waters of the state” means “all waters within the jurisdiction of this state,
`
`including all streams, lakes, ponds, impounding reservoirs, marshes, wetlands, watercourses,
`
`waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or
`
`accumulations of water, surface or underground, natural or artificial, public or private, situated
`
`wholly or partly within or bordering upon the state[.]” Neb. Rev. Stat. § 81-1502(21).
`
`80.
`
`“‘Discharge’, when used without qualification, means accidental or intentional
`
`spilling, leaking, pumping, pouring, emitting, emptying, or dumping of pollutants into any waters
`
`of the State or in a place which will likely reach waters of the State.” 119 Neb. Admin. Code § 1-
`
`038.
`
`81.
`
` “Discharge of a pollutant” and “discharge of pollutants” mean “any addition of
`
`any pollutant or combination of pollutants to waters of the state from any point source. This
`
`includes discharge into waters of the state from surface runoff which is collected or channeled by
`
`man; discharges through pipes, sewers, or other conveyances owned by a state, municipality or
`
`other party which do not lead to treatment systems; and discharges through pipes, sewers, or
`
`other conveyances, leading into treatment systems owned in whole or in part by a third party
`
`other than a state or municipality.” 119 Neb. Admin. Code § 1-040.
`
`- 18 -
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 19 of 73 - Page ID # 19
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`
`
`82.
`
`“Pollutant” means “dredged spoil, solid waste, incinerator residue, filter
`
`backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
`
`radioactive materials (except those regulated under the Atomic Energy Act of 1954 as amended,
`
`42 U.S.C. 2011 et seq.), heat, wrecked or discarded equipment, rock, sand, cellar dirt, and
`
`industrial, municipal, and agricultural waste discharged into water.” 119 Neb. Admin. Code § 1-
`
`087.
`
`83.
`
`“Point source” means “any discernible, confined and discrete conveyance,
`
`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
`
`container, rolling stock, concentrated animal feeding operation, landfill leachate collection
`
`system, or vessel or other floating craft, from which pollutants are or may be discharged. This
`
`term does not include return flows from irrigated agriculture or agricultural storm water runoff.”
`
`119 Neb. Admin. Code § 1-086.
`
`84.
`
`“Storm water” means “storm water runoff, snow melt runoff, and surface runoff
`
`and drainage.” 119 Neb. Admin. Code § 1-112; see also id. § 1-113 (defining “storm water
`
`discharge associated with industrial activity”).
`
`85.
`
`Violations of NEPA are subject to civil penalties of $10,000 per day, with each
`
`day of a continuing violation constituting a separate violation. Neb. Rev. Stat. § 81-1508.02(2).
`
`GENERAL ALLEGATIONS
`
`86.
`
`Defendants owned and operated the Facility that processed food waste, high
`
`strength waste, and industrial and residential wastewater in a conventional mesophilic anaerobic
`
`digester system. Starting on or about September 2, 2016, Defendants began accepting waste for
`
`- 19 -
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`4:21-cv-03193-JFB-SMB Doc # 1 Filed: 09/23/21 Page 20 of 73 - Page ID # 20
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`
`
`treatment. The Facility consisted of two rectangular shaped digesters containing five mixers
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`placed equidistant within each digester.
`
`87.
`
`At all times relevant to this Complaint, Defendants were “owners or operators” of
`
`the Facility located at 1616 D Street, Dakota City, Nebraska that is the subject of this action
`
`within the meaning of Section 112(a)(9) of CAA, 42 U.S.C. § 7412(a)(9), and 129 Neb. Admin.
`
`Code § 1-097 (68 Fed. Reg. 40,528 (July 8, 2003)).
`
`88.
`
`At all times relevant to this Complaint, the Facility was a “stationary source” as
`
`defined by Section 112(r)(2)(C) of the CAA, 42 U.S.C. § 7412(r)(2)(C).
`
`89.
`
`At all times relevant to Complaint, the Facility was subject to the General Duty
`
`Clause of Section 112(r)(1) because it was a “stationary source” that produced, processed,
`
`handled, and/or stored one or more regulated substances listed under Section 112(c)(3) of the
`
`CAA, 42 U.S.C. § 7412(r)(3), and/or one or more “extremely hazardous substances” within the
`
`meaning of Section 112(r)(1) of the CAA, 4
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