throbber
Case 1:20-cv-02962 Document 1 Filed 07/04/20 Page 1 of 29 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`RARITAN BAYKEEPER, INC.,
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`Plaintiff,
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`v.
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`PRATT PAPER (NY) INC.,
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`Defendant.
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`Case No. 20-2962 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES
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`(Federal Water Pollution Control
`Act, 33 U.S.C. §§ 1251 to 1387)
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`Plaintiff Raritan Baykeeper, Inc. d/b/a NY/NY Baykeeper (“Baykeeper”), by and through
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`its counsel, hereby alleges:
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`I.
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`INTRODUCTION
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`1.
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`This action is brought under the Federal Water Pollution Control Act, 33 U.S.C. §
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`1251, et seq. (the “Clean Water Act” or “the Act”), to address and abate Defendant’s ongoing
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`and continuous violations of the Act.
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`2.
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`Defendant discharges polluted industrial stormwater from a paper recycling and
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`paper product manufacturing facility located at 4435 Victory Boulevard, Staten Island, NY
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`10314 (the “Facility”) into the Arthur Kill in violation of CWA Sections 301(a) and 402(p), 33
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`U.S.C. §§ 1311(a), 1342(p), and the New York State Department of Environmental Conservation
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`SPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial
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`Activity, Permit No. GP-0-17-004 (March 1, 2018), https://www.dec.ny.gov/docs/water_pdf/
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`msgp017004.pdf (“General Permit”).
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`3.
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`Defendant’s violations of the General Permit and the Clean Water Act include:
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`discharges of polluted stormwater and other pollution that are not authorized by the General
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`Permit; inadequate pollution control measures and pollution prevention plans; and the release of
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`pollutants that contribute to violations of water quality standards for dissolved oxygen in the
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`Arthur Kill.
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`4.
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`Stormwater runoff is one of the most significant sources of water pollution in the
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`nation—comparable to, if not greater than, contamination from industrial and sewage sources.
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`With every rainfall event, hundreds of millions of gallons of polluted stormwater pour into the
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`Arthur Kill and other receiving waters in this District. The State of New York has designated as
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`“impaired” more than 7,000 river miles; 319,000 acres of larger waterbodies; 940 square miles of
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`harbors, bays, and estuaries; 10 miles of coastal shoreline; and 592 miles of Great Lakes
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`shoreline. Under the Clean Water Act, “impaired” means not meeting a state’s water quality
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`standards and/or unable to support beneficial uses, such as fish habitat and water contact
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`recreation. In many of these waters, state water quality standards for metals, oil and grease,
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`nutrient enrichment and oxygen depletion, inorganic pollutants, pathogens, taste, color, odor, and
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`other parameters are consistently exceeded. For the overwhelming majority of water bodies
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`listed as impaired, stormwater runoff is cited as a primary source of the pollutants causing the
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`impairment.
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`5.
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`The Arthur Kill is one of these impaired waterbodies. New York State has
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`determined that the Arthur Kill does not meet state water quality standards for a number of
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`pollutants including PCBs, dioxins, and other toxics. Most importantly here, the Arthur Kill does
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`not meet state water quality standards for dissolved oxygen. Dissolved oxygen is essential to all
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`aquatic life – without it, aquatic organisms die and ecosystems collapse.
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`6.
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`Defendant’s stormwater discharges contribute to this endemic stormwater
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`pollution problem. Defendant engages in industrial activities such as paper recycling, paper
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`product manufacturing, vehicle maintenance, waste storage, and movement by barge and truck of
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`enormous volumes of products, raw materials, and wastes in and out of the Facility. As
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`precipitation comes into contact with pollutants generated by these industrial activities, it
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`conveys those pollutants to nearby waters. Contaminated stormwater discharges such as those
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`from the Facility can and must be controlled to the fullest extent required by law in order to
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`allow these water bodies a fighting chance to regain their health.
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`II.
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction over the parties and this action pursuant
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`to CWA Section 505(a)(1) (the citizen suit provision of the CWA), 33 U.S.C. § 1365(a)(1), and
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`28 U.S.C. § 1331 (an action arising under the laws of the United States). The relief requested is
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`authorized pursuant to 28 U.S.C. §§ 2201-02 (power to issue declaratory relief in case of actual
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`controversy and further necessary relief based on such a declaration); 33 U.S.C. §§ 1319(b),
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`1365(a) (injunctive relief); and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties).
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`8.
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`On March 5, 2020, Plaintiff provided notice of Defendant’s violations of the Act
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`and of its intention to file suit against Defendant to Defendant; the Administrator of the United
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`States Environmental Protection Agency (“EPA”); the Administrator of EPA Region II; and the
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`Commissioner of the New York Department of Environmental Conservation (“DEC”), as
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`required by the Act under CWA Section 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A), and the
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`corresponding regulations at 40 C.F.R. §§ 135.1 to 135.3. A true and correct copy of Plaintiff’s
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`notice letter is attached as Exhibit A, and is incorporated herein by reference.
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`9.
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`More than sixty days have passed since the notice letter was served on Defendant
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`and the State and federal agencies. Plaintiff has complied with the Act’s notice requirements
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`under CWA Section 505(b)(1), 33 U.S.C. § 1365(b)(1).
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`10.
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`Neither the EPA nor the State of New York has commenced or is diligently
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`prosecuting a civil or criminal action to redress the violations alleged in this complaint. See
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`CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B).
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`11.
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`This action is not barred by any prior administrative penalty action under CWA
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`Section 309(g), 33 U.S.C. § 1319(g).
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`12.
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`Venue is proper in the United States District Court for the Eastern District of New
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`York pursuant to CWA Section 505(c)(1), 33 U.S.C. § 1365(c)(1), and 28 U.S.C. § 1391(b)(2)
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`because the source of the violations is located within this judicial district.
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` III.
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`PARTIES
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`13.
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`Plaintiff RARITAN BAYKEEPER, INC. (“Baykeeper”), doing business as
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`“NY/NJ Baykeeper,” is a non-profit corporation, whose mission is to protect, preserve, and
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`restore the ecological integrity and productivity of the Hudson-Raritan Estuary through
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`enforcement, field work, and community action. Baykeeper’s mission includes safeguarding the
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`environmental, recreational and commercial integrity of the Hudson River Estuary and its
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`ecosystem, as well as the watersheds of the Raritan Bay and Lower Raritan River. Baykeeper
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`achieves its mission through public education, advocacy for sound public policies and
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`participation in legal and administrative forums. To further its mission, Baykeeper actively
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`seeks federal and state implementation of the Clean Water Act and, where necessary, directly
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`initiates enforcement actions on behalf of itself and its members.
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`14.
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`Baykeeper has approximately 350 members in the New York and New Jersey
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`region, many of whom use and enjoy the waters of the New York Harbor—including Arthur
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`Kill, which is polluted by industrial stormwater runoff from the Defendant’s Facility.
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`15.
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`Plaintiff’s members reside near to, use and enjoy the waters which Defendant has
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`unlawfully polluted and is unlawfully polluting. Plaintiff’s members use those areas to fish,
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`crab, sail, boat, canoe, kayak, swim, birdwatch, photograph, observe wildlife and engage in
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`nature study and scientific study, among other activities. Defendant’s discharges of stormwater
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`associated with industrial activity containing pollutants impair each of those uses. Thus, the
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`interests of Plaintiff’s members have been, are being, and will continue to be adversely affected
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`by Defendant’s failure to comply with the CWA and the General Permit. The relief sought herein
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`will redress the harms to Baykeeper caused by Defendant’s activities.
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`16.
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`The relief sought herein will redress the harms to Plaintiff and its members caused
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`by Defendant’s activities. Continuing commission of the acts and omissions alleged herein will
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`irreparably harm Plaintiff and its members, for which harm they have no plain, speedy, or
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`adequate remedy at law.
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`17.
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`Baykeeper bring this action on behalf of itself and its members. Baykeeper’s
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`interest in reducing Defendant’s discharges of pollutants into Arthur Kill and requiring
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`Defendant to comply with the requirements of the General Permit are germane to Baykeeper’s
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`purposes. Litigation of the claims asserted and relief requested in this Complaint does not
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`require the participation in this lawsuit of individual members of Baykeeper.
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`18.
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`Baykeeper is informed and believes, and thereupon alleges, that Defendant Pratt
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`Paper (NY) Inc. (“Pratt”) is a corporation incorporated under the laws of the State of New York,
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`that owns and/or operates the Facility.
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`IV.
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`STATUTORY AND REGULATORY BACKGROUND
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`The Clean Water Act
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`19.
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`Congress enacted the Clean Water Act in 1972 to “restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C.
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`§ 1251(a). In furtherance of this goal, the Act provides a comprehensive approach for the
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`regulation of pollution discharged into the waters of the United States.
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`20.
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`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any
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`pollutant into waters of the United States, unless such discharge is in compliance with various
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`enumerated sections of the Act. Among other things, Section 301(a) prohibits discharges not
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`authorized by, or in violation of, the terms of a National Pollutant Discharge Elimination System
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`(“NPDES”) permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342. An NPDES
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`permit requires dischargers of pollution to comply with various limitations.
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`21.
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`NPDES permits are issued by the United States Environmental Protection Agency
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`(“EPA”) or by states that have been authorized by EPA to act as NPDES permitting authorities,
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`provided that the state permitting program ensures compliance with the procedural and
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`substantive requirements of the CWA. CWA § 402(b)(1), 33 U.S.C. § 1342(b)(1); 40 C.F.R.
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`§ 123.25(a).
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`22.
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`In New York, DEC has been delegated the authority to issue NPDES permits.
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`Such state-issued permits, issued by DEC pursuant to its delegated authority from EPA under the
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`Clean Water Act, are referred to as “SPDES” permits.
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`Stormwater Permits
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`23.
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`In 1987, to better regulate pollution conveyed by stormwater runoff, Congress
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`enacted Clean Water Act Section 402(p), 33 U.S.C. § 1342(p), entitled “Municipal and Industrial
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`Stormwater Discharges.”
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`24.
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`Pursuant to CWA Section 402(p), 33 U.S.C. § 1342(p), EPA promulgated
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`stormwater discharge regulations at 40 C.F.R. § 122.26.
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`25.
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`In promulgating those regulations, EPA cited abundant data showing the harmful
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`effects of stormwater runoff on rivers, streams, and coastal areas across the nation. In particular,
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`EPA found that runoff from industrial facilities contained elevated pollution levels and that, on
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`an annual basis, pollutant levels in stormwater runoff can exceed by an order of magnitude the
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`levels discharged by municipal sewage treatment plants. 55 Fed. Reg. 47990, 47991 (Nov. 16,
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`1990).
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`26.
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`CWA Section 402(p) and EPA’s implementing regulations at 40 C.F.R. § 122.26
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`require NPDES permits for stormwater discharges “associated with industrial activity.”
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`New York’s General Permit for the Discharge
`of Stormwater Associated with Industrial Activity
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`27.
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`As a delegated state NPDES permitting agency, DEC has elected to issue a
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`statewide general permit for industrial stormwater discharges in New York. SPDES Multi-Sector
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`General Permit For Stormwater Discharges Associated With Industrial Activity, Permit No. GP-
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`0-17-004, N.Y. DEP’T ENVTL. CONSERVATION (Mar. 1, 2018) (“General Permit”). DEC also has
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`the authority to issue SPDES permits for individual applicants.
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`28.
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`Under the General Permit, permittees must comply with federal technology-based
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`standards. The Clean Water Act requires that any NPDES permit issued by a state must apply
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`and ensure compliance with, among other things, the Act’s technology-based standards for
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`discharges of pollution. See 33 U.S.C. § 1342(b)(1)(A) (requiring compliance with “any
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`applicable requirements” of 33 U.S.C. § 1311). In turn, the Act’s technology-based standards
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`dictate that, with respect to toxic and non-conventional pollutants (i.e. most pollutants),
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`permitted dischargers shall apply “the best available technology economically achievable for
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`such category or class [of permitted dischargers], which will result in reasonable further progress
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`towards the national goal of eliminating the discharge of all pollutants . . . .” 33 U.S.C. §
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`1311(b)(2)(A). The Act also sets a different standard, “application of the best conventional
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`pollutant control technology” for a defined set of five “conventional pollutants”. Id. §
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`1311(b)(2)(E).1 See also 40 C.F.R. § 122.44(a) (requiring that each NPDES permit shall include
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`conditions that meet the Act’s technology-based standards).
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`29.
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`Accordingly, as a state-issued, delegated NPDES permit, the General Permit
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`requires permittees to use measures that reflect, and prohibits the discharge of pollutants above
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`the level commensurate with, application of the best available technology economically
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`achievable (“BAT”) standards for toxic and non-conventional pollutants and best conventional
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`pollutant control technology (“BCT”) standards for conventional pollutants. See General Permit
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`Part II (requiring permittees to minimize pollution by adopting measures that are
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`“technologically available and economically practicable and achievable in light of best industry
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`practice.”).
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`30.
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`The General Permit also ensures compliance with state water quality standards.
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`The Clean Water Act requires that any NPDES permit issued by a state contain any further limits
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`necessary to ensure compliance with a state’s water quality standards. See 33 U.S.C. §§
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`1311(b)(2)(c) (requiring achievement of “any more stringent limitation, including those
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`necessary to meet water quality standards”) and 1342(b)(1)(A) (requiring compliance with “any
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`1 “Conventional pollutants” are defined by statute, 33 USC 1314(a)(4), and by regulation, 40
`CFR 401.16, to include: biochemical oxygen demand, total suspended solids, pH, fecal coliform,
`and oil and grease.
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`applicable requirements” of 33 U.S.C. § 1311). See also 40 C.F.R. § 122.44(d) (requiring that
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`each NPDES permit shall include any conditions necessary to achieve a state’s water quality
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`standards).
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`31.
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`Accordingly, as a state-issued, delegated NPDES permit, the General Permit
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`prohibits permittees from causing or contributing to violations of water quality standards. See
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`General Permit Part II.C.1.a (“It shall be a violation of the Environmental Conservation Law
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`(ECL) for any discharge authorized by this general permit to either cause or contribute to a
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`violation of water quality standards as contained in 6 NYCRR Parts 700-705.”); II.C.1.c (“In all
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`cases, any discharge which contains a visible sheen, foam, or odor, or may cause or contribute to
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`a violation of water quality is prohibited.”).
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`The General Permit Framework
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`32.
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`The General Permit ensures compliance with federal technology and water-
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`quality based requirements by imposing a variety of conditions. All of the General Permit’s
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`conditions constitute enforceable “effluent standards or limitations” within the meaning of the
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`Clean Water Act’s citizen suit provision. See 33 U.S.C. § 1365(f) (defining enforceable effluent
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`standards or limitations to include “a permit or condition of a permit issued under section 1342
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`of this title[.]”).
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`33.
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`At the outset, the General Permit establishes eligibility conditions that Permittees
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`must meet in order to obtain coverage. General Permit, Part I. Permittees apply for coverage
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`under the General Permit by submitting an application called a Notice of Intent. General Permit,
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`Part I.D.
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`34.
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`Among other things, when submitting a Notice of Intent the applicant must
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`identify the specific outfalls through which it will discharge industrial stormwater. A permittee
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`may only lawfully discharge stormwater associated with industrial activity from these outfalls.
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`General Permit, Parts I.D.3 and I.F.
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`35.
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`Next, the General Permit also contains a variety of substantive limits that all
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`permittees must meet (see General Permit Part II). These include numeric effluent limitations on
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`the quantity and concentration of pollutants, narrative effluent limitations on pollutants, and
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`narrative effluent limitations that impose compulsory pollution control and minimization
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`practices. See General Permit, Part II.
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`36.
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`In addition, the General Permit contains effluent limitations that apply only to
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`permittees engaged in particular industrial activities. See General Permit, Part VII. Although
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`permittees may have a primary industrial activity occurring at their site, they are required to
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`comply with all conditions of the General Permit pertaining to any other industrial activities
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`occurring at their facility too, referred to as “co-located” activities. Id. (“Stormwater discharges
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`from co-located industrial activities are authorized by this permit, provided that the owner or
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`operator complies with any and all of the requirements applicable to each industrial activity at
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`the facility.”).
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`37.
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`Permittees typically meet the General Permit’s applicable technology and water-
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`quality based effluent limitations (whether those limits are phrased narratively or numerically) by
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`adopting “best management practices” (“BMPs”) and other stormwater control measures. See
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`General Permit Part II. BMPs and control measures include changes to industrial practices and
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`activities (for example, housekeeping schedules and employee training programs) and structural
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`improvements (for example, roofing to minimize exposure of pollutants, or collection basins that
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`reduce the volume of stormwater discharged from the facility). The permittee must select,
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`design, install, and implement control measures, including BMPs, in accordance with good
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`engineering practices, to meet the effluent limits contained in the General Permit. General
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`Permit, Part II, Part III.A.7.
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`38.
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`A permittee must record the BMPs and controls measures used to meet the
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`General Permit’s limits in a “stormwater pollution prevention plan” (“SWPPP”). General
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`Permit, Part III. The owner or operator must develop, implement, and continually update the
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`plan. General Permit, Part III.
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`39.
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`Further, permittees must track, improve upon and report upon their performance
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`under the General Permit. The General Permit requires regular inspections, monitoring and
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`sampling of stormwater discharges, periodic reporting, and corrective action to reduce pollution
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`when necessary. See General Permit Parts IV-VI.
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`40.
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`The General Permit also relies centrally on comparing the pollution found in a
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`permittee’s stormwater to “benchmark monitoring cutoff concentrations” (benchmarks) for each
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`pollutant, in order to ensure that permittees are complying with the limits set forth in the General
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`Permit. See General Permit, Part VII (adopting sector-specific benchmarks for each category of
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`permittees).
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`41.
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`A benchmark is “a guideline for the owner or operator to determine the overall
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`effectiveness of the SWPPP in controlling the discharge of pollutants to receiving waters.”
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`General Permit, Appendix A. As the EPA explained in adopting benchmarks originally, they
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`“provide a reasonable target for controlling storm water contamination by pollution prevention
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`plans.” 60 Fed. Reg. 50804, 51076 (Sept. 29, 1995). Further, benchmark exceedances can
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`indicate that “a storm water discharge could potentially impair, or contribute to impairing water
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`quality or affect human health from ingestion of water or fish.” 60 Fed. Reg. at 50824–25.
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`42.
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`Thus, the benchmarks provide strong evidence of whether a facility has
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`implemented adequate control measures and BMPs to comply with the General Permit and the
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`federal technology and water-quality based standards that it implements. Although compliance
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`with benchmarks under the General Permit is self-reported, self-monitoring reports under the
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`General Permit are deemed “conclusive evidence of an exceedance of a permit limitation.”
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`Sierra Club v. Union Oil, 813 F.2d 1480, 1493 (9th Cir. 1988), vacated on other grounds, 485
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`U.S. 931 (1988).
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`Key Conditions of the General Permit
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`43. Within that framework, the following specific conditions of the General Permit
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`are particularly relevant in this case.
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`44.
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`In order to minimize pollution, the General Permit requires Defendant to keep
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`clean all exposed areas that are potential sources of pollutants. General Permit, Part II.A.2.
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`45.
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`The General Permit requires Defendant to sweep or vacuum exposed areas at
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`regular intervals; store materials in containers; keep dumpsters lidded at all times; and prevent
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`the introduction of floatable debris in surface waters of the state by keeping exposed areas clear
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`of waste and intercepting waste. General Permit, Part II.A.10.
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`46.
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`The General Permit requires Defendant to minimize off-site tracking of materials
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`to prevent pollution. General Permit, Part II.A.11.
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`47.
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` The General Permit prohibits any discharge that may cause or contribute to a
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`violation of New York’s water quality standards. General Permit, Part II.C.1.c.
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`48.
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`Defendant’s SWPPP must identify potential sources of pollution that may affect
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`the quality of stormwater discharges associated with industrial activity. Further, the SWPPP
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`must describe and ensure the implementation of practices that minimize the discharge of
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`pollutants in these discharges and that assure compliance with the other terms and conditions of
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`the General Permit, including achievement of effluent limitations. General Permit, Part III.A.
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`49.
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`Part VII of the General Permit also imposes other requirements on Defendant
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`based on its specific industrial activities, including but not limited to the following: annual
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`training (at a minimum) that covers good housekeeping practices, confining vehicles awaiting
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`maintenance with actual or potential leaks to designated areas, cleaning pavement surface to
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`remove oil and grease, consideration of more frequent sweeping than other industrial facilities;
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`good housekeeping measures to prevent accumulation of particulate matter; consideration of
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`indoor storage of recyclable materials; diversion of runoff; and covering containers and
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`dumpsters. General Permit, Part VII (list drawn from requirements applicable to Sectors B, N,
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`and P).
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`50.
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`Part IV of the General Permit obliges industrial dischargers to conduct an annual
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`comprehensive site inspection of a facility that includes evaluation of areas where industrial
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`materials or activities are exposed to precipitation or where spills and leaks have occurred within
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`the past three years. General Permit, Part IV.A.1. The inspection must ensure that all
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`stormwater discharges are adequately controlled and that all BMPs are functioning as expected.
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`Records of this inspection must be kept for five years. General Permit, Part IV.A.2.
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`51.
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`In addition, qualified facility personnel must carry out routine inspections at least
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`quarterly. General Permit, Part IV.B. During these inspections, personnel must evaluate
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`conditions and maintenance needs of stormwater management devices, detect leaks and ensure
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`the good condition of containers, evaluate the performance of the existing stormwater BMPs
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`described in the SWPPP, and document any deficiencies in the implementation and/or adequacy
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`of the SWPPP. Such deficiencies must then be addressed through corrective actions. General
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`Permit, Part V.
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`52.
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`The General Permit requires industrial dischargers to monitor its facility, sample
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`discharges, and submit complete and accurate reports to DEC. General Permit, Parts IV, VI,
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`Appendices H.8.g, H.9. The required reporting includes an annual report and periodic discharge
`
`monitoring reports. General Permit, Part VI.A.1 and A.2. Additionally, when there is an
`
`exceedance of a numeric effluent limit or of a benchmark that applies to the impairing pollutant
`
`discharged to an impaired waterbody, a discharger must report on the exceedance event and
`
`corrective actions taken in response. General Permit, Part VI.A.2(b).
`
`Beneficial Uses of New York Surface Waters
`
`53.
`
`The DEC has classified the portion of the Arthur Kill where the Facility
`
`discharges as an SD water. 6 N.Y.C.R.R. § 890.6.
`
`54.
`
`Under New York’s water quality standards, a waterbody that is designated SD is
`
`meant to be suitable for fishing and for fish, shellfish, and wildlife survival, as well as for
`
`potential use for primary and secondary contact recreation. 6 N.Y.C.R.R. § 701.14.
`
`55.
`
`New York’s water quality standards also set numeric and narrative criteria for
`
`different water pollution parameters including dissolved oxygen, oil and grease, suspended and
`
`settleable solids, bacteria (pathogens), pH, temperature, nutrients, and hundreds of others. See
`
`generally 6 N.Y.C.R.R. §§ 702, 703 (outlining quantitative and qualitative standards,
`
`respectively). A waterbody must meet these numeric and narrative criteria in order to support
`
`its designated uses. See id. §§ 702.2, 702.9.
`
`56.
`
`DEC has designated the Arthur Kill and its tributaries as impaired pursuant to
`
`CWA Section 303(d) for failure to meet minimum water quality standards for a number of
`
`pollutants, including low dissolved oxygen, dioxin, PCBs, and other toxins such as heavy metals.
`
`Section 303(d) List of Impaired Waters Requiring a TMDL/Other Strategy, N.Y. DEP’T ENVTL.
`
`
`
`14
`
`

`

`Case 1:20-cv-02962 Document 1 Filed 07/04/20 Page 15 of 29 PageID #: 15
`
`CONSERVATION, 8, 21, & 20 n.40 (Nov. 2016).
`
`CWA Citizen Enforcement Suits
`
`57.
`
`Under CWA Section 505(a)(1), 33 U.S.C. § 1365(a)(1), any citizen may
`
`commence a civil action in federal court on his own behalf against any person who is alleged to
`
`be in violation of an “effluent standard or limitation” under the CWA.
`
`58.
`
`Such enforcement action under CWA Section 505(a), 33 U.S.C. § 1365(a),
`
`includes an action seeking remedies for an unpermitted discharge in violation of CWA
`
`Section 301, 33 U.S.C § 1311, as well as for violation of a condition of a permit issued pursuant
`
`to CWA Section 402, 33 U.S.C. § 1342. CWA Section 505(f), 33 U.S.C. § 1365(f).
`
`59.
`
`Declaratory relief in such cases is authorized by 28 U.S.C. § 2201–02 (granting
`
`U.S. courts the authority to issue declaratory relief in case of actual controversy and grant further
`
`necessary relief based on such a declaration).
`
`60.
`
`61.
`
`Injunctive relief is authorized by CWA Section 505(a), 33 U.S.C. § 1365(a).
`
`Violators of the Act are also subject to an assessment of civil penalties of up to
`
`$37,500 per day per violation for violations occurring before November 2, 2015 and up to
`
`$55,800 per day per violation for violations occurring after that date. CWA §§ 309(d), 505(a),
`
`33 U.S.C. §§ 1319(d), 1365(a); 40 C.F.R. §§ 19.1–19.4.
`
`V.
`
`STATEMENT OF FACTS
`
`The Facility and Stormwater
`Defendant owns and/operates the Facility, a paper recycling and paper product
`
`62.
`
`manufacturing facility located in Staten Island, NY.
`
`63.
`
`Industrial activities at the Facility are categorized within Standard Industrial
`
`Classification (“SIC”) Codes 2631 (paper and allied products manufacturing), 5093 (recycling),
`
`
`
`15
`
`

`

`Case 1:20-cv-02962 Document 1 Filed 07/04/20 Page 16 of 29 PageID #: 16
`
`and 4212 (land transportation and warehousing). Activities in these SIC Codes are subject to
`
`The General Permit’s effluent limits for industrial Sectors B, N, and P, respectively.
`
`64.
`
`The Facility covers an area of approximately 49 acres. It is built into and
`
`surrounded by wetlands on the edge of the Arthur Kill.
`
`65.
`
`The Facility includes a docking area for barges, buildings for paper recycling,
`
`paper products manufacturing, and warehousing, many acres of uncovered storage for materials
`
`and wastes, and access roads and ramps. Outside the main buildings there are also fleet and
`
`private parking facilities, vehicle maintenance areas, uncovered waste storage (including
`
`uncovered dumpsters), and utilities (storage tanks, HVAC, electrical equipment).
`
`66. When it rains, the majority of storm water from the Facility comes from, or is
`
`commingled with runoff from, areas at the Facility where industrial processes occur (including
`
`the roofs of Facility buildings).
`
`67.
`
`Stormwater flowing over areas of the Facility that are associated with Defendant’s
`
`industrial activities collects a variety of pollutants, including but not limited to sizeable debris,
`
`sediment, oil and grease, metals, organic substances and chemicals that create chemical oxygen
`
`demand, and others pollutants.
`
`68.
`
`Storm water discharged from the Facility flows directly into the Arthur Kill and
`
`into wetlands and several small ponds that are adjacent to and discharge to the Arthur Kill
`
`(collectively, “Facility Receiving Waters”). The Arthur Kill connects Raritan Bay and Newark
`
`Bay, which in turn are connected to New York Harbor.
`
`69.
`
`The Facility Receiving Waters are waters of the United States.
`
`Defendant’s General Permit Coverage
`
`70.
`
`Defendant has applied for and obtained coverage under the General Permit.
`
`
`
`16
`
`

`

`Case 1:20-cv-02962 Document 1 Filed 07/04/20 Page 17 of 29 PageID #: 17
`
`Pratt’s General Permit identification number is NYR00C124.
`
`71.
`
`Under the General Permit, Defendant is authorized to discharge stormwater into
`
`waters of the United States only through the outfall that Defendant has identified in its NOI and
`
`in its quarterly and annual reports to DEC: the outfall listed by Defendant as outfall 001 in these
`
`documents, which is the outlet for the Facility’s stormwater pond.
`
`72.
`
`On information and belief, Baykeeper alleges that during precipitation events,
`
`Pratt discharges stormwater associated with industrial activity from other, unpermitted outfalls.
`
`Stormwater associated with industrial activity also discharges from the Facility into the Arthur
`
`Kill overland from an area near the truck ramp on the north side of the main building at the
`
`Facility, as well as on the south side of the main building, near the water. There are also material
`
`storage areas in proximity to the shoreline, directly south of the main building, where stormwater
`
`can travel into the Arthur Kill. Pratt’s facility also extends over the Arthur Kill to accommodate
`
`barge transport. Discharges of pollution from the

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