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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
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`__________________________________________
`THE UNITED STATES OF AMERICA,
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`and
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`THE STATE OF NEBRASKA,
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`)
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`)
`)
`)
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`Defendant.
`__________________________________________)
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`Plaintiffs,
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`Civil Action No.
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`8:20-cv-269
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`v.
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`HENNINGSEN FOODS, INC.,
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`COMPLAINT
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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, acting at the request of the Administrator of the
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`United States Environmental Protection Agency (“EPA”), and the Attorney General of Nebraska,
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`acting at the request of the Nebraska Department of Environment and Energy (“NDEE”), file this
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`Complaint and allege as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action against Defendant Henningsen Foods, Inc. (“HFI”) under
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`Sections 309(b) and (d) of the Federal Water Pollution Control Act (commonly referred to as the
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`“Clean Water Act” and hereinafter referred to as the “CWA”), 33 U.S.C. § 1319(b), (d).
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`Plaintiffs seek civil penalties and injunctive relief against Defendant for violating Section 307 of
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`the CWA, 33 U.S.C. § 1317, and the Nebraska Environmental Protection Act, Neb. Rev. Stat.
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`§ 81-1501 to 81-1532, by causing or contributing to David City’s violations of its National
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`Pollution Discharge Elimination System (“NPDES”) permit, violating the National Pretreatment
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`Standards at 40 C.F.R. Part 403, and violating the requirements of Defendant’s Nebraska
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`Pretreatment Program (“NPP”) permit.
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`2.
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`Defendant owns and operates an egg-processing plant located at 325 Third Street,
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`David City, Nebraska (the “Facility”). The violations alleged in the complaint occur when
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`Defendant’s Facility discharges wastewater into the David City publicly owned treatment works
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`(“POTW”).
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`JURISDICTION AND VENUE
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`3.
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`This Court has subject-matter jurisdiction over this action under 33 U.S.C.
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`§ 1319(b) and 28 U.S.C. §§ 1331, 1345, and 1355.
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`4.
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`Venue is proper in the District of Nebraska under 33 U.S.C. § 1319(b) and 28
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`U.S.C. §§ 1391(b) and 1395(a) because it is the judicial district in which the alleged violations
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`occurred and where HFI conducts business.
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`5.
`
`Authority to bring this action is vested in the United States Department of Justice
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`under 33 U.S.C. §§ 1319(b) and 1366 and 28 U.S.C. §§ 516 and 519.
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`6.
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`The United States provided notice of the commencement of this action to the
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`State of Nebraska under 33 U.S.C. § 1319(b).
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`7.
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`The State of Nebraska has the authority to bring this action at the request of
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`NDEE under the Nebraska Environmental Protection Act, Neb. Rev. Stat § 81-1501 to 81-1532.
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`PARTIES
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`8.
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`Plaintiff the United States of America is acting at the request of the EPA
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`Administrator. Plaintiff the State of Nebraska is acting at the request of NDEE. The Nebraska
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`Environmental Protection Act gives NDEE the power and duty to act as the state water pollution
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`control agency for all purposes of the CWA. Neb. Rev. Stat. § 81-1504(4). Before July 1, 2019,
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`NDEE was named the Nebraska Department of Environmental Quality (“NDEQ”). Under 2019
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`Neb. Laws LB 302, NDEQ was renamed NDEE effective July 1, 2019.
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`9.
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`Defendant HFI is a New York corporation formed in 1962 with a principal office
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`address at 14334 Industrial Road, Omaha, Nebraska, 68144.
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`10.
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`HFI is a “person” as defined by 33 U.S.C. § 1362(5) and Neb. Rev. Stat. § 81-
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`1502(10).
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`STATUTORY AND REGULATORY BACKGROUND
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`11.
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`The objective of the CWA is to “restore and maintain the chemical, physical, and
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`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`12.
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`The CWA prohibits the owner or operator of any source that introduces pollutants
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`into a POTW from operating that source in violation of any effluent standard or prohibition or
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`pretreatment standard promulgated under Section 307 of the Act. 33 U.S.C § 1317(b) & (d).
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`13.
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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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`14.
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`“Water pollution” is “the manmade or man-induced alteration of the chemical,
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`physical, biological, or radiological integrity of water.” Neb. Rev. Stat. § 81-1502(20).
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`15.
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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 to navigable waters, but, rather, introduce pollutants into POTWs,
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`which in turn may discharge pollutants to navigable waters. 33 U.S.C. § 1317.
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`16.
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`Section 502(7) of the CWA defines “navigable waters” as “the waters of the
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`United States.” 33 U.S.C. § 1362(7). In turn, "waters of the United States" has been defined to
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`include, inter alia, all waters which are currently used, were used in the past, or may be
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`susceptible to use in interstate or foreign commerce; and tributaries to such waters. 40 C.F.R. §
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`122.2 (1993) and 85 Fed. Reg. 22250, 22338 (The Navigable Waters Protection Rule: Definition
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`of “Waters of the United States,” April 21, 2020).
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`17.
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`The Nebraska Environmental Protection Action defines “waters of the state” as
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`“all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding
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`reservoirs, marshes, wetlands, watercourses, waterways, wells, springs, irrigation systems,
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`drainage systems, and all other bodies or accumulations of water, surface or underground, natural
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`or artificial, public or private, situated wholly or partly within or bordering upon the state.” Neb.
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`Rev. Stat. § 81-1502(21).
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`18.
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`Section 307(b) of the CWA directs EPA, among other things, to promulgate
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`pretreatment standards “to prevent the discharge of any pollutant through treatment works . . .
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`which are publicly owned, which pollutant interferes with, passes through, or otherwise is
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`incompatible with such works.” 33 U.S.C. § 1317(b).
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`19.
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`Under Section 307(b) of the CWA, 33 U.S.C. § 1317(b), EPA promulgated
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`National Pretreatment Standards, codified at 40 C.F.R. Part 403. Neb. Admin. Code Tit. 119,
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`Ch. 26 § 010 adopts and incorporates by reference the requirements of 40 C.F.R Part 403.
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`20.
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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 section 307(b) and (c) of the Act, which applies to Industrial Users.” 40 C.F.R. § 403.3(l);
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`Neb. Admin. Code Tit. 119, Ch. 1 § 072.
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`21.
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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); Neb. Admin. Code Tit. 119, Ch. 1 § 089.
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`22.
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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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`23.
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`Neb. Admin. Code Tit. 119, Ch. 26 § 003 likewise establishes general and
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`specific State prohibitions that “apply to each user introducing pollutants into a POTW whether
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`or not the user is subject to other national pretreatment standards.”
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`24.
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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); Neb. Admin. Code Tit. 119, Ch. 1 § 054.
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`25.
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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.” 40
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`C.F.R. § 403.3(i).
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`26.
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`“Indirect discharger” means “a non-domestic discharger introducing pollutants to
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`a publicly owned treatment works.” Neb. Admin. Code Tit. 119, Ch. 1 § 053.
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`27.
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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 a municipality . . . .” 40 C.F.R. § 403.3(q); Neb. Admin. Code Tit.
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`119, Ch. 1 § 093.
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`28.
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`Section 212(2)(A) of the CWA, 33 U.S.C. § 1292(2)(A), defines “treatment
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`works,” to include “any devices and systems used in the storage, treatment, recycling, and
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`reclamation of municipal sewage or industrial wastes of a liquid nature.”
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`29.
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`Neb. Admin. Code Tit. 119, Ch. 1 § 094 defines “a “Publicly Owned Treatment
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`Works (POTW) Treatment Plant” as “that portion of the POTW which is designed to provide
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`treatment (including recycling and reclamation) of municipal sewage and industrial waste.”
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`30.
`
`Under the general prohibitions in the National Pretreatment Standards and Neb.
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`Admin. Code Tit. 119, Ch. 26 § 003, “a User may not introduce into a POTW any pollutant(s)
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`which cause Pass Through or Interference.” 40 C.F.R. § 403.5(a)(1); Neb. Admin. Code Tit.
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`119, Ch. 26 § 003.01.
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`31.
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`“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); see also Neb. Admin. Code Tit. 119, Ch. 1 § 082 (defining “Pass Through” in the
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`same way with respect to “waters of the state”).
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`32.
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` “Interference” means “a Discharge which, alone or in conjunction with a
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`discharge or discharges from other sources, both: (1) Inhibits or disrupts the POTW, its treatment
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`processes or operations, or its sludge processes, use or disposal; and (2) Therefore is a cause of a
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`violation of any requirement of the POTW’s NPDES permit (including an increase in the
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`magnitude or duration of a violation) . . . .” 40 C.F.R. § 403.3(k); Neb. Admin. Code Tit. 119,
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`Ch. 1 § 056.
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`33.
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`Under the specific prohibitions in the National Pretreatment Standards and Neb.
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`Admin. Code Tit. 119, Ch. 26 § 003, a User shall not introduce into a POTW “[p]ollutants which
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`will cause corrosive structural damage to a POTW, but in no case Discharges with a pH lower
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`than 5.0, unless the works is specifically designed to accommodate such Discharges.” 40 C.F.R.
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`§ 403.5(b)(2); Neb. Admin. Code Tit. 119, Ch. 26 § 003.02B.
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`34.
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`Under the specific prohibitions in the National Pretreatment Standards and Neb.
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`Admin. Code Tit. 119, Ch. 26 § 003, a User also shall not introduce into a POTW “[a]ny
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`pollutant, including oxygen demanding pollutants (BOD, etc.) released in a Discharge at a flow
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`rate and/or pollutant concentration which will cause Interference with the POTW.” 40 C.F.R.
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`§ 403.5(b)(4); Neb. Admin. Code Tit. 119, Ch. 26 § 003.02D.
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`35.
`
`The National Pretreatment Standards, 40 C.F.R. § 403.12(f), and Neb. Admin.
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`Code Tit. 119, Ch. 26 § 004.06B, require Industrial Users to notify the POTW and NDEE
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`immediately of all “discharges that could cause problems to the POTW, including any slug
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`loadings,” as defined by § 403.5(b).
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`36.
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`In addition to the general and specific prohibitions in the National Pretreatment
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`Standards at 40 C.F.R. § 403.5(a)-(b) and in Neb. Admin. Code Tit. 119, Ch. 26 § 003, Industrial
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`Users are subject to “local limits” established by a POTW, or by a state with an approved
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`Pretreatment Program, to ensure the POTW’s compliance with the terms of its NPDES permit.
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`See 40 C.F.R. §§ 403.5(c), 403.8(a), 403.10(e).
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`37.
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`Upon receiving authorization and approval under Section 402(b) of the CWA, 33
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`U.S.C. § 1342(b), a state may establish its own Pretreatment Program and thereby assume
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`responsibility for implementing the POTW Pretreatment Program requirements set forth in 40
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`C.F.R. § 403.8(f). See 40 C.F.R. § 403.10(e).
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`38.
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`In September 1984, EPA approved the State of Nebraska’s Pretreatment Program.
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`Modification to the National Pollutant Discharge Elimination System Memorandum of
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`Agreement Between the State of Nebraska and EPA, Region VII (Sept. 7, 1984).
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`39.
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`Section 307(d) of the CWA makes it unlawful to operate a source in violation of
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`any pretreatment standards promulgated under Section 307: “After the effective date of any
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`effluent standard or prohibition or pretreatment standard promulgated under this section, it shall
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`be unlawful for any owner or operator of any source to operate any source in violation of any
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`such effluent standard or prohibition or pretreatment standard.” 33 U.S.C. § 1317(d).
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`40.
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`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
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`CWA, 33 U.S.C. § 1317(d). 40 C.F.R. § 403.5(d).
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`41.
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`The Nebraska Environmental Protection Act makes it unlawful for any person to
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`violate any water quality or effluent standards or limitations; any permit or license condition or
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`limitation; or any monitoring, reporting, or record-keeping requirements contained in, issued, or
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`entered into under the Act or the rules or regulations adopted and promulgated under the Act.
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`Neb. Rev. Stat. § 81-1508.02(1)(b).
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`42.
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`The Nebraska Environmental Protection Act prohibits “any false statement,
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`representation or certification . . . in any document required to be filed” by the Act or the rules or
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`regulations adopted and promulgated under the Act. Neb. Rev. Stat. § 81-1508.02(1)(c).
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`43.
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`The Nebraska Environmental Protection Act also makes it unlawful to “[i]ncrease
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`in volume or strength any waste in excess of permitted discharges specified under any existing
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`permit.” Neb. Rev. Stat. § 81-1506(2)(c).
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`44.
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`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
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`U.S.C. §§ 1319, 1342(i).
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`45.
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`EPA may commence a civil action for appropriate relief whenever it finds that a
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`source has discharged pollutants to a POTW in violation of applicable pretreatment standards.
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`33 U.S.C. § 1319(b).
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`46.
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`Under Sections 309(b) and (d) of the CWA, any owner or operator of a source
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`who operates that source in violation of any effluent standard or prohibition or pretreatment
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`standard promulgated under Section 307 of the CWA, 33 U.S.C. § 1317, is liable for injunctive
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`relief and civil penalties, not to exceed $25,000 per day for each violation. 33 U.S.C. § 1319(b),
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`(d). Under 40 C.F.R. Part 19, Adjustment of Civil Monetary Penalties for Inflation, as amended,
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`the civil penalty amount was raised to a maximum of $37,500 per day for each violation
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`occurring between December 6, 2013 and November 2, 2015, and to a maximum of $55,800 per
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`day for each violation occurring after November 2, 2015, where penalties are assessed on or after
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`January 13, 2020.
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`47.
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`Violations of the Nebraska Environmental Protection Act are subject to civil
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`penalties of $10,000 per violation, with each day of a continuing violation constituting a separate
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`violation. Neb. Rev. Stat. § 81-1508.02(2).
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`GENERAL ALLEGATIONS
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`48.
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`At all times relevant to this action, the David City POTW received and treated
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`wastewater from domestic and industrial sources, including Defendant’s Facility.
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`49.
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`At all times relevant to this action, the David City POTW included a wastewater
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`treatment plant, which consisted of a sewage collection system, a two-cell sequencing batch
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`reactor, and a five-cell controlled discharge lagoon system, within the meaning of 40 C.F.R.
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`§ 403.3(r) and Neb. Admin. Code Tit. 119, Ch. 1 § 094.
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`50.
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`At all times relevant to this action, the David City POTW was a “POTW” within
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`the meaning of 40 C.F.R. § 403.3(q) and Neb. Admin. Code Tit. 119, Ch. 1 § 093, and a
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`“treatment works” within the meaning of Section 212 of the CWA, 33 U.S.C. § 1292(2)(A).
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`51.
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`At all times relevant to this action, the David City POTW was not specifically
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`designed to accommodate discharges with a pH less than 5.0 standard units.
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`52.
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`At all times relevant to this action, the David City POTW discharged wastewater
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`into Keysor Creek through an outfall at the POTW.
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`53.
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`Keysor Creek is a tributary, within the meaning of the Act, to the North Fork Big
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`Blue River.
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`54.
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`Keysor Creek has continuous flow at least nine months of the year, including
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`months in each season of the calendar year, that are not in direct response to precipitation, and is
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`therefore intermittent or perennial within the meaning of the Act.
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`55.
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`56.
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`Keysor Creek has a bed, bank, and ordinary high water mark.
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`The North Fork Big Blue River is a perennial stream with a bed, bank, and
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`ordinary high water mark that contributes continuous flow to the Big Blue River, and is a
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`tributary within the meaning of the Act.
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`57.
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`The Big Blue River is used commercially and recreationally for boating, among
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`other uses, and is used in, or susceptible for use in, interstate commerce.
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`58.
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`Keysor Creek, the North Fork of the Blue River, and the Big Blue River are each
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`waters of the United States within the meaning of the Act..
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`59.
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`At all times relevant to this action, the wastewater that the David City POTW
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`discharged to Keysor Creek contained “pollutants,” as defined by Section 502(6) of the CWA, 33
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`U.S.C. § 1362(6), including biochemical oxygen demand (“BOD”), total suspended solids
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`(“TSS”), and/or ammonia, among other pollutants.
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`60.
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`At all times relevant to this action, the David City POTW “discharged pollutants”
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`through a “point source” to “navigable waters” as those terms are defined by Sections 502(12),
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`(14), and (7) of the CWA, 33 U.S.C. § 1362(12), (14), and (7), and discharged pollutants through
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`a “point source” to “waters of the state” as defined in Neb. Rev. Stat. § 81-1502(21)-(22).
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`61.
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`On or about July 1, 2010, NDEE issued NPDES permit number NE0021199 to
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`the David City POTW, which authorizes the discharge of pollutants from an outfall at the David
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`City POTW to Keysor Creek, subject to the conditions and effluent limitations set forth in the
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`permit. NDEE administratively extended this permit in September 2015.
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`62.
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`On or about April 1, 2016, NDEE issued a new NPDES permit to the David City
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`POTW with the same permit number. On or about October 24, 2017, NDEE modified David
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`City’s NPDES permit, which remains in effect.
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`63.
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`At all times relevant to this action, the David City NPDES permit contained
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`discharge limits and monitoring requirements, including effluent limitations on BOD, TSS, and
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`ammonia, among other pollutants.
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`64.
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`At all times relevant to this action, the David City NPDES permit required the
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`City to submit Discharge Monitoring Reports (“DMRs”) to NDEE setting forth monitoring
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`results obtained from discharge sampling at the POTW during each quarterly reporting period.
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`65.
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`At all times relevant to this action, Defendant’s Facility introduced wastewater
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`from two outfalls at its Facility into the David City POTW.
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`66.
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`At all times relevant to this action, the Facility’s wastewater contained
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`“pollutants,” as defined by Section 502(6) of the CWA, 33 U.S.C. § 1362(6), including, but not
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`limited to, BOD, TSS, Total Kjeldahl Nitrogen (“TKN”), variable pH, and oil and grease.
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`67.
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`At all times relevant to this action, Defendant “discharged” pollutants into the
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`David City POTW within the meaning of 40 C.F.R. § 403.3(i).
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`68.
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`At all times relevant to this action, Defendant was an “indirect discharger” within
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`the meaning of Neb. Admin. Code Tit. 119, Ch.1 § 053.
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`69.
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`At all times relevant to this action, Defendant was an “Industrial User” of the
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`David City POTW within the meaning of 40 C.F.R. § 403.3(j) and Neb. Admin. Code Tit. 119,
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`Ch. 1 § 054.
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`70.
`
`At all times relevant to this action, Defendant was subject to the CWA, the
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`Nebraska Environmental Protection Act, the general and specific prohibitions in the National
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`Pretreatment Standards, and the general and specific State prohibitions in Neb. Admin. Code Tit.
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`119, Ch. 26 § 003. See 40 C.F.R. § 403.1.
`
`71.
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`On or about October 1, 2013, NDEE issued Defendant NPP permit number
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`NE0133108, which authorizes the discharge of pollutants from Defendant’s Facility to the David
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`City POTW, subject to the conditions and effluent standards set forth in the permit.
`
`72.
`
`73.
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` On or about January 1, 2018, NDEE modified Defendant’s NPP permit.
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`On or about January 1, 2020, NDEE modified Defendant’s NPP permit, which
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`remains in effect.
`
`74.
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`At all times relevant to this action, Defendant’s NPP permit contained discharge
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`limits and monitoring requirements for the Facility, including effluent limits for BOD, TSS, and
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`pH.
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`75.
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`At all times relevant to this action, Defendant’s NPP permit prohibited the
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`introduction of pollutants into the POTW that will pass through the treatment works or otherwise
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`be incompatible with such works.
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`76.
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`At all times relevant to this action, Defendant’s NPP permit prohibited the
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`introduction of pollutants into the POTW, which will interfere with the operation of the POTW,
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`including interference with its use or disposal of municipal sludge.
`
`77.
`
`At all times relevant to this action, Defendant’s NPP permit required Defendant to
`
`submit DMRs to NDEE setting forth monitoring results from discharge sampling at the Facility’s
`
`two outfalls during each quarterly reporting period.
`
`78.
`
`On October 31 through November 3, 2016, EPA performed a Compliance
`
`Sampling Inspection at the David City POTW and Defendant’s Facility (the “2016 EPA
`
`Inspection”). As part of the 2016 EPA Inspection, EPA reviewed documents, including copies
`
`of David City’s and Defendant’s DMRs and other monitoring data collected for the time period
`
`from January 2014 to December 2016; observed the David City POTW, Defendant’s Facility,
`
`and sampling stations; and collected effluent samples.
`
`79.
`
`On or about April 7, 2017, EPA issued requests for information from David City
`
`and Defendant under Section 308 of the CWA, 33 U.S.C. § 1318, requiring the submittal of
`
`information regarding, among other things, DMRs, monitoring data, communications between
`
`David City and Defendant, and plans to address compliance with David City’s NPDES permit
`
`and Defendant’s NPP permit.
`
`80.
`
`On or about April 27, 2017, David City submitted its response to the information
`
`request letter.
`

`
`13
`
`

`

`8:20-cv-00269-BCB-SMB Doc # 1 Filed: 07/07/20 Page 14 of 22 - Page ID # 14
`
`81.
`
`On or about May 5, 2017, Defendant submitted its response to the information
`
`request letter.
`
`82.
`
`On or about April 5, 2018, EPA issued a second request for information from
`
`David City under Section 308 of the CWA, 33 U.S.C. § 1318, requesting additional monitoring
`
`data for the wastewater discharged from Defendant’s Facility to the David City POTW, collected
`
`by either David City or Defendant.
`
`83.
`
`On or about April 6, 2018, David City submitted its response to the second
`
`information request letter.
`
`84.
`
`EPA and NDEE have reviewed information from the 2016 EPA Inspection, David
`
`City’s responses to the two information request letters that it received, Defendant’s response to
`
`the information request letter that it received, information that David City and Defendant
`
`submitted to NDEE pursuant to their respective permits, correspondence between NDEE and
`
`David City regarding the City’s compliance with its NPDES permit, and correspondence
`
`between NDEE and Defendant regarding Defendant’s compliance with its NPP permit
`
`(collectively the “Compliance Records”).
`
`85.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that the David
`
`City POTW violated its NPDES permit limits on numerous occasions between January 2014 and
`
`the present, and that corresponding discharges from Defendant’s Facility to the POTW caused or
`
`contributed to many of the City’s violations.
`
`86.
`
`Upon information and belief, subject to a reasonable opportunity for further
`
`investigation and discovery, on numerous occasions between January 2014 and the present,
`
`Defendant discharged BOD into the David City POTW, which exited the POTW into waters of
`

`
`14
`
`

`

`8:20-cv-00269-BCB-SMB Doc # 1 Filed: 07/07/20 Page 15 of 22 - Page ID # 15
`
`the United States in quantities or concentrations, which, caused or contributed to David City’s
`
`violation of the effluent limitation for BOD in the City’s NPDES permit.
`
`87.
`
`On numerous occasions between January 2014 and the present, Defendant
`
`discharged BOD, TSS, TKN, variable pH, and/or oil and grease into the David City POTW,
`
`which inhibited and/or disrupted the POTW, its treatment processes or operations, or its sludge
`
`processes, use or disposal, and therefore, caused or contributed to David City’s recurring
`
`violations of the effluent limitations for ammonia and TSS in the City’s NPDES permit.
`
`88.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that Defendant’s
`
`Facility discharged wastewater into the David City POTW with oxygen demanding pollutants at
`
`a flow rate and/or pollutant concentration that caused Interference with the David City POTW on
`
`numerous occasions between January 2014 and the present.
`
`89.
`
`Each such incident alleged in paragraphs 86 through 88 constitutes Pass Through
`
`or Interference caused or contributed to by the Facility’s discharge of pollutants to the POTW.
`
`See 40 C.F.R. § 403.3(k), (p); Neb. Admin. Code Tit. 119, Ch. 1 §§ 056, 082.
`
`90.
`
`From October 1, 2013 to December 31, 2017, Defendant’s NPP permit
`
`established a combined daily maximum discharge limit for BOD of 2,781 kg/day and a
`
`combined daily maximum discharge limit for TSS of 609 kg/day from the two outfalls at the
`
`Facility.
`
`91.
`
`On or about January 1, 2018, NDEE modified Defendant’s NPP permit by
`
`changing the units of the combined daily maximum discharge limits for BOD and TSS from
`
`kg/day to lbs/day.
`
`92.
`
`From January 1, 2018 until December 31, 2019, Defendant’s NPP permit
`
`established a combined daily maximum discharge limit for BOD of 2,781 lbs/day and a
`

`
`15
`
`

`

`8:20-cv-00269-BCB-SMB Doc # 1 Filed: 07/07/20 Page 16 of 22 - Page ID # 16
`
`combined daily maximum discharge limit for TSS of 609 lbs/day from the two outfalls at the
`
`Facility.
`
`93.
`
`From January 1, 2020 to the present, Defendant’s NPP permit established a
`
`maximum monthly average discharge limit for BOD of 2,804 lbs/day and a maximum monthly
`
`discharge limit for TSS of 700 lbs/day from the combined single outfall at the Facility.
`
`94.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that the
`
`discharge of wastewater from Defendant’s Facility to the David City POTW exceeded the daily
`
`maximum discharge limit for BOD in Defendant’s NPP permit on numerous occasions between
`
`January 2014 and the present.
`
`95.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that the
`
`discharge of wastewater from Defendant’s Facility to the David City POTW exceeded the daily
`
`maximum discharge limit for TSS in Defendant’s NPP permit on numerous occasions between
`
`January 2014 and the present.
`
`96.
`
`At all times relevant to this action, Defendant’s NPP permit established a lower
`
`discharge limit for pH of 5.0 standard units for the Facility’s discharge at each outfall.
`
`97.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that Defendant’s
`
`Facility introduced wastewater with a pH of less than 5.0 standard units into the David City
`
`POTW on several occasions between January 2014 and the present.
`
`98.
`
`At all times relevant to this action, 40 C.F.R. § 122.22; Neb. Admin. Code Tit.
`
`119, Ch. 13 § 005; and Defendant’s NPP permit required Defendant to certify that all
`
`information submitted to NDEE through its DMRs was “true, accurate, and complete.”
`

`
`16
`
`

`

`8:20-cv-00269-BCB-SMB Doc # 1 Filed: 07/07/20 Page 17 of 22 - Page ID # 17
`
`99.
`
`EPA’s and NDEE’s review of the Compliance Records revealed that Defendant
`
`submitted inaccurate and/or incomplete information to NDEE in its certified DMRs on numerous
`
`occasions between January 2014 and the present.
`
`100. At all times relevant to this action, Defendant’s NPP permit required Defendant to
`
`submit DMRs to NDEE on a quarterly basis.
`
`101. EPA’s and NDEE’s review of the Compliance Records revealed that Defendant
`
`repeatedly failed to timely submit DMRs to NDEE between January 2014 and the present, only
`
`submitting them after Defendant received a Notice of Violation from NDEE.
`
`102. At all times relevant to this action, Defendant’s NPP permit required Defendant to
`
`notify the David City POTW of slug loadings immediately.
`
`103. EPA’s and NDEE’s review of the Compliance Records revealed that Defendant
`
`failed to notify the David City POTW of slug loadings immediately on at least one occasion
`
`between January 2014 and the present.
`
`
`
`FIRST CLAIM FOR RELIEF
`(Pass Through and Interference Violations)
`
`104. The allegations of the foregoing paragraphs are incorporated herein by reference.
`
`105. Upon information and belief, subject to a reasonable opportunity for further
`
`investigation and discovery, on numerous occasions between January 2014 and the present,
`
`Defendant violated 40 C.F.R. § 403.5(a)(1); Neb. Admin. Code Tit. 119, Ch. 26 § 003.01; its
`
`NPP permit; Section 307(d) of the CWA, 33 U.S.C. § 1317(d); and Neb. Rev. Stat. § 81-
`
`1508.02(1), by discharging pollutants to the David City POTW in quantities or concentrations
`
`which, alone or in conjunction with a discharge or discharges from other sources, caused Pass
`
`Through at the David City POTW.
`

`
`17
`
`

`

`8:20-cv-00269-BCB-SMB Doc # 1 Filed: 07/07/20 Page 18 of 22 - Page ID # 18
`
`106. On numerous occasions between January 2014 and the present, Defendant
`
`violated 40 C.F.R. § 403.5(a)(1); Neb. Admin. Code Tit. 119, Ch. 26 § 003.01; its NPP permit;
`
`Section 307(d) of the CWA, 33 U.S.C. § 1317(d); and Neb. Rev. Stat. § 81-1508.02(1), by
`
`discharging pollutants to the David City POTW in quantities or concentrations which, alone or in
`
`conjunction with a discharge or discharges from other sources, caused Interference at the David
`
`City POTW.
`
`107. On numerous occasions between January 2014 and the present, Defendant
`
`violated 40 C.F.R. § 403.5(b)(4); Neb. Admin. Code Tit. 119, Ch. 26 § 003.02D; Section 307(d)
`
`of the CWA, 33 U.S.C. § 1317(d); and Neb. Rev. Stat. § 81-1508.02(1), by discharging
`
`wastewater with oxygen demanding pollutants at a flow rate and/or pollutant concentration that
`
`caused Interference with the David City POTW.
`
`108. Under 33 U.S.C. § 1319(b) and (d), Defendant is liable for injunctive relief and
`
`civil penalties of up to $37,500 per day for each violation occurring between December 6, 2013
`
`and November 2, 2015, and up to $55,800 per day for each violation occurring thereafter.
`
`109. Under the Nebraska Environmental Protection Act, Defendant is liable for civil
`
`penalties of $10,000 per day for each day of violation. Neb. Rev. Stat. § 81-1508.02(2).
`
`110. Unless enjoined, Defendant’s violations will continue or recur.
`
`SECOND CLAIM FOR RELIEF
`(Pretreatment Effluent Limit Violations)
`
`111. The allegation

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