throbber
Case 1:21-cv-05265-EK-RML Document 1 Filed 09/22/21 Page 1 of 40 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`------------------------------------------------------------------------------------------------------------
`
`
`
`
`RARITAN BAYKEEPER, INC. (d/b/a NY/NJ
`BAYKEEPER),
`
`
`Plaintiff,
`
`v.
`
`STILLWELL READY MIX & BUILDING MATERIALS,
`LLC; STILLWELL READY MIX, LLC; and GERARD
`GARGANO,
`
`
`
`------------------------------------------------------------------------------------------------------------
`
`Defendants.
`
`
`
`Case No. 21-cv-5265
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
`
`(Federal Water Pollution Control
`Act, 33 U.S.C. §§ 1251 to 1387)
`
`
`Plaintiff RARITAN BAYKEEPER, INC. (“Baykeeper”), doing business as “NY/NJ
`
`Baykeeper,” by and through its counsel, hereby alleges:
`
`I.
`
`INTRODUCTION
`
`1.
`
`This action is brought under the Federal Water Pollution Control Act, 33 U.S.C.
`
`§ 1251, et seq. (the “Clean Water Act” or “the Act”), to address and abate Defendants’ ongoing
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`and continuous violations of the Act.
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`2.
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`Defendants discharge process wastewater and polluted industrial stormwater from
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`a ready-mix concrete facility located at 2608 West 13th Street in Brooklyn, New York (Block
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`7225; Lots 1, 4, 6, 8, 9) (the “Facility”) into Coney Island Creek in violation of CWA Sections
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`301(a) and 402(p), 33 U.S.C. §§ 1311(a), 1342(p), and the New York State Department of
`
`Environmental Conservation (“DEC”) SPDES Multi-Sector General Permit for Stormwater
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`Discharges Associated with Industrial Activity, Permit No. GP-0-17-004 (March 1, 2018),
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`https://www.dec.ny.gov/docs/water_pdf/msgp017004.pdf (“General Permit”).
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`3.
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` Coney Island Creek is an “impaired” waterbody. Under the Clean Water Act,
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`“impaired” means not meeting a state’s water quality standards and/or unable to support
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`beneficial uses, such as fish habitat and water contact recreation. New York State has
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`determined that Coney Island Creek fails to meet state water quality standards for dissolved
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`oxygen, fecal coliform, and garbage/refuse.
`
`4.
`
`Defendants’ stormwater discharges and discharges of process wastewater
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`contribute to the pollution problem in Coney Island Creek. Defendants engage in industrial
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`activities such as manufacturing, loading, and delivering ready-mix concrete. These activities
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`are conducted mostly outdoors, where they generate pollution that is exposed to stormwater.
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`This includes a great deal of dust and cement particles that accumulate outdoors on Defendants’
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`property, blow off Defendants’ property, or are generated through industrial activities that
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`Defendants conduct on city streets, such as unloading cement deliveries from trucks parked in
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`the street. In addition, Defendants engage in truck washing in areas that discharge to New York
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`City’s municipal stormwater drainage system, contributing polluted process wastewater to
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`stormwater flows into Coney Island Creek.
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`5.
`
`The pollutants discharged in stormwater and wastewater from Defendants’
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`industrial activities include solids that suspend or dissolve in water; lead, iron, zinc, and other
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`metals; detergents and other cleaning agents; fuel, fuel additives, lubricants, oil, and grease;
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`oxygen-depleting substances; and pH-altering substances. Contaminated discharges such as
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`those from the Facility can and must be controlled to the fullest extent required by law to allow
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`Coney Island Creek a fighting chance to regain its health.
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`6.
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`Defendants have a long history of violating water pollution laws at the Facility.
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`In 2007, The City of New York’s Environmental Control Board found that operations at the
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`Facility violated prohibitions on discharges of industrial waste materials to public sewers. In
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`2008, a New York State DEC inspection found violations of a stormwater pollution permit that
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`preceded the General Permit and inadequate pollution control measures at the Facility. In 2016,
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`DEC issued a Notice of Violation to Defendants for discharging concrete laden industrial
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`wastewater to Coney Island Creek without a permit. In 2017, DEC denied a request from
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`Defendants to waive the requirement to obtain coverage under a stormwater pollution permit.
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`Defendants did not obtain a permit however, and in 2018 Baykeeper sued defendants in the
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`Eastern District of New York for violating the Clean Water Act by discharging polluted
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`stormwater and wastewater without a permit. In 2019, Baykeeper and Defendants settled that
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`lawsuit based on Defendants’ promises: to obtain coverage under the General Permit; to comply
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`with the General Permit’s terms; to stop discharging wastewater from truck washing operations;
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`and to make certain improvements at the Facility that would reduce stormwater pollution.
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`7.
`
`Throughout this period, city and state officials have received complaints from the
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`Facility’s neighbors about water pollution, significant dust pollution (which becomes water
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`pollution when it rains, snows, or otherwise precipitates), and other nuisances caused by
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`Defendants’ industrial activities at the Facility.
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`8.
`
`Baykeeper is filing suit against Defendants again because, since the last case was
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`settled in 2019, Defendants have returned to their old ways. Defendants are violating the terms
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`of the prior settlement, their permit, and Sections 301 and 402 of the Clean Water Act.
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`9.
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`First, Defendants are violating multiple provisions of the General Permit, i.e., the
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`permit that regulates Defendants’ discharges of industrial stormwater to Coney Island Creek.
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`Defendants’ violations of the General Permit include not using the best available technology to
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`prevent pollution; not developing thorough and accurate pollution prevention plans; and
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`violations of various recordkeeping, monitoring, and corrective action requirements of the
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`General Permit. Each violation of the General Permit is a violation of the Clean Water Act.
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`10.
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`Second, Defendants are discharging industrial stormwater to Coney Island Creek
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`from areas and activities that are not covered under the General Permit. Each discharge of
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`industrial stormwater to Coney Island Creek without coverage under the General Permit is a
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`violation of the Clean Water Act.
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`11.
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`Third, Defendants continue to discharge contaminated wastewater without a
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`permit. Defendants’ coverage under the General Permit allows the discharge of stormwater only;
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`it does not allow them to discharge wastewater from washing concrete trucks or other activities
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`to Coney Island Creek. Each unpermitted discharge of wastewater is also a separate violation of
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`the Clean Water Act.
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`12.
`
`In total, Defendants have accumulated more than 2,000 violations of the Clean
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`Water Act since the prior lawsuit was settled and dismissed in 2019.
`
`II.
`
`JURISDICTION AND VENUE
`
`13.
`
`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
`
`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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`14.
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`Jurisdiction is not barred by the prior settlement between the parties. On
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`November 9, 2018, Baykeeper provided noticed of Defendants’ violations of the Clean Water
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`Act at multiple facilities, including the Facility identified in this lawsuit, and filed a citizen suit
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`on January 14, 2019. See Raritan Baykeeper Inc. v. Stillwell Ready Mix, LLC, No. 19-cv-256
`
`(E.D.N.Y.). On July 30, 2019, the Eastern District of New York entered a Stipulation of
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`Settlement between Stillwell and Baykeeper. Id., Electronic Order (E.D.N.Y. July 30, 2019)
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`(citing ECF 20-1) (“Settlement”). In that Settlement, as relevant here, Stillwell agreed to operate
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`the Facility in accordance with the General Permit, its Stormwater Pollution Prevention Plan
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`(“SWPPP”), and the Clean Water Act. Settlement ¶ 2. Stillwell also specifically agreed to
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`“refrain from discharging process wastewater from the 13th Street facility,” and “refrain from
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`engaging in truck washing at the 13th Street facility.” Settlement ¶ 3 (the location identified as
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`“the 13th Street facility” in the prior litigation is referred to here simply as “the Facility”). In
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`consideration for those terms, Baykeeper agreed to dismiss and release all claims for violations
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`of the Clean Water Act occurring prior to July 30, 2019. Settlement ¶ 5. Baykeeper did not
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`waive or release claims for enforcement of that Settlement, nor did Baykeeper waive the right to
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`bring a future action based on violations of the Clean Water Act on or after July 30, 2019.
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`Settlement ¶¶ 5, 7.
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`15.
`
`On April 30, 2021, Plaintiff provided notice of Defendants’ continued violations
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`of the Clean Water Act and of its intention to again file suit to Defendants; the Administrator of
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`the United States Environmental Protection Agency (“EPA”); the Administrator of EPA Region
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`II; and the Commissioner of the New York Department of Environmental Conservation
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`(“DEC”), as required by the Act under CWA Section 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A),
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`and the corresponding regulations at 40 C.F.R. §§ 135.1 to 135.3. A true and correct copy of
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`Plaintiff’s Notice Letter is attached as Exhibit A and is incorporated herein by reference.
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`16. More than sixty days have passed since the Notice Letter was served on
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`Defendants and the State and federal agencies. Plaintiff has complied with the Act’s notice
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`requirements under CWA Section 505(b)(1), 33 U.S.C. § 1365(b)(1).
`
`17.
`
`Neither the EPA nor the State of New York has commenced or is diligently
`
`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).
`
`18.
`
`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).
`
`19.
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`Venue is proper in the United States District Court for the Eastern District of New
`
`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.
`
`PARTIES
`
`20.
`
`Plaintiff RARITAN BAYKEEPER, INC., d/b/a “NY/NJ BAYKEEPER”
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`(“Baykeeper”), is a non-profit corporation, whose mission is to protect, preserve, and restore the
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`ecological integrity and productivity of the Hudson-Raritan Estuary through enforcement, field
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`work, and community action. Baykeeper’s mission includes safeguarding the environmental,
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`recreational, and commercial integrity of the Raritan Bay, Lower Raritan River, the New York
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`Harbor, Gravesend Bay, Coney Island Creek, and Jamaica Bay. Baykeeper achieves its mission
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`through public education, advocacy for sound public policies, and participation in legal and
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`administrative forums. To further its mission, Baykeeper actively seeks federal and state
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`implementation of the Clean Water Act and, where necessary, directly initiates enforcement
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`actions on behalf of itself and its members.
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`21.
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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 and tributaries of the New York Harbor—
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`including Coney Island Creek and Gravesend Bay, which are polluted by industrial stormwater
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`runoff from the Defendants’ Facility.
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`22.
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`Plaintiff’s members reside near to, use, and enjoy the waters Defendants are
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`polluting. Plaintiff’s members use those areas to fish, crab, sail, boat, canoe, kayak, swim,
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`birdwatch, photograph, observe wildlife, study nature and the sciences, and engage in spiritual
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`and religious practices, among other activities. Defendants’ discharges of stormwater associated
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`with industrial activity containing pollutants impair each of those uses. Thus, the interests of
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`Plaintiff’s members have been, are being, and will continue to be adversely affected by
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`Defendants’ failure to comply with the Clean Water Act and the General Permit.
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`23.
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`For example, one Baykeeper member frequently kayaks on Coney Island Creek,
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`but avoids certain areas upstream of the Cropsey Avenue Bridge because of the pollutants that
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`are in the water and further unknown contaminants from polluted discharges and storm sewer
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`outlets. They are worried by this pollution, and it has hindered their enjoyment of the Creek. If
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`Coney Island Creek were rehabilitated, they could kayak freely throughout the Creek.
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`24.
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`This member also enjoys observing and studying the wildlife of Coney Island
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`Creek, and has participated in tagging and rescuing of horseshoe crabs. They are concerned
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`about the harm pollutants in the Creek cause to wildlife in the natural areas in their community.
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`25.
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`For example, another Baykeeper member, who is an active long-time resident of
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`southern Brooklyn, pays close attention to the concerns of their community—including concerns
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`surrounding Coney Island Creek. They have actively participated in beach clean-ups, protests,
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`and other political activities to bring attention to the pollution in Coney Island Creek and
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`encourage action by municipal, state, and federal leaders to clean up the Creek.
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`26.
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`This member has participated in scuba dives in Coney Island Creek specifically to
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`draw attention to its pollution and to take samples from the sediment in the Creek bed. They
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`were warned by local officials not to dive in the Creek, as the waters may be dangerous to their
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`health and safety due to high levels of pollution. They took certain additional safety measures, at
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`additional cost, to ensure their safety throughout the dive. This member enjoys scuba diving for
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`wildlife and shipwreck viewing, and their enjoyment of Coney Island Creek is hindered and
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`endangered due to the pollution in the Creek.
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`27.
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`Both of these members of Baykeeper have observed people fishing in Coney
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`Island Creek at Calvert Vaux Park and Kaiser Park, and fear for their community’s safety
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`because they know that Coney Island Creek is a polluted waterway and consuming the fish may
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`cause the community harm.
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`28.
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`The relief sought herein will redress the harms to Plaintiff and its members caused
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`by Defendants’ 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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`29.
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`Baykeeper brings this action on behalf of itself and its members. Baykeeper’s
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`interest in reducing Defendants’ discharges of pollutants into Coney Island Creek and requiring
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`Defendants 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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`30.
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`Baykeeper is informed and believes, and thereupon alleges, that Defendant
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`STILLWELL READY MIX & BUILDING MATERIALS, LLC is a corporation incorporated
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`under the laws of the State of New York, that owns and/or operates the Facility.
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`31.
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`Baykeeper is informed and believes, and thereupon alleges, that Defendant
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`STILLWELL READY MIX, LLC is a corporation incorporated under the laws of the State of
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`New York, that owns and/or operates the Facility.
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`32.
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`Baykeeper is informed and believes, and thereupon alleges, that Defendant
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`GERARD GARGANO is and was at all relevant times a citizen of the State of New York who is
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`the corporate officer responsible for CWA compliance at the Facility and a member/manager for
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`Defendants Stillwell Ready Mix & Building Materials, LLC and Stillwell Ready Mix, LLC.
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`IV.
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`STATUTORY AND REGULATORY BACKGROUND
`
`The Clean Water Act
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`33.
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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.
`
`34.
`
`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. A NPDES
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`permit requires dischargers of pollution to comply with various limitations.
`
`35.
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`NPDES permits are issued by the United States Environmental Protection Agency
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`(“EPA”) or by states authorized by EPA to act as NPDES permitting authorities, provided that
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`the state permitting program ensures compliance with the procedural and substantive
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`requirements of the CWA. CWA § 402(b)(1), 33 U.S.C. § 1342(b)(1); 40 C.F.R. § 123.25(a).
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`36.
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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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`37.
`
`The Clean Water Act requires that any NPDES permit issued by a state must
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`apply 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
`
`applicable requirements” of 33 U.S.C. § 1311).
`
`38.
`
`The Act’s technology-based standards dictate that, with respect to toxic and non-
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`conventional pollutants, permitted dischargers shall apply “the best available technology
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`economically achievable for such category or class [of permitted dischargers], which will result
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`in reasonable further progress towards the national goal of eliminating the discharge of all
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`pollutants . . . .” 33 U.S.C. § 1311(b)(2)(A) (i.e., the “BAT” standard). The Act also sets a
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`different standard, “application of the best conventional pollutant control technology” for a
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`defined set of five “conventional pollutants.” Id. § 1311(b)(2)(E)1 (i.e., the “BCT” standard)
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`(together, the “BAT/BCT Standard”). See also 40 C.F.R. § 122.44(a) (requiring that each
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`NPDES permit shall include conditions that meet the Act’s technology-based standards).
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`39.
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`The Clean Water Act further requires any NPDES permit issued by a state to
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`contain any additional limits necessary to ensure compliance with that state’s water quality
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`standards. See 33 U.S.C. §§ 1311(b)(2)(c) (requiring achievement of “any more stringent
`
`
`1 “Conventional pollutants” are defined by statute, 33 U.S.C. § 1314(a)(4), and by regulation, 40
`C.F.R. § 401.16, to include: biochemical oxygen demand, total suspended solids (“TSS”), pH,
`fecal coliform, and oil and grease.
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`limitation, including those necessary to meet water quality standards”), 1342(b)(1)(A) (requiring
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`compliance with “any applicable requirements” of 33 U.S.C. § 1311). See also 40 C.F.R.
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`§ 122.44(d) (requiring that each NPDES permit shall include any conditions necessary to achieve
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`a state’s water quality standards).
`
`40.
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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.”
`
`41.
`
`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. In promulgating those regulations, EPA
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`cited abundant data showing the harmful effects of stormwater runoff on rivers, streams, and
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`coastal areas across the nation. In particular, EPA found that runoff from industrial facilities
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`contained elevated pollution levels and that, on an annual basis, pollutant levels in stormwater
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`runoff can exceed by an order of magnitude the levels discharged by municipal sewage treatment
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`plants. 55 Fed. Reg. 47990, 47991 (Nov. 16, 1990).
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`42.
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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
`
`43.
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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 individualized SPDES permits for such applicants.
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`44.
`
`As a state-issued, delegated NPDES permit, the General Permit requires
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`permittees to use measures that reflect, and prohibits the discharge of pollutants above the level
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`commensurate with, application of the BAT/BCT Standard. See General Permit, Part II
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`(requiring permittees to minimize pollution by adopting measures that are “technologically
`
`available and economically practicable and achievable in light of best industry practice”).
`
`45.
`
`Furthermore, 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.”); Id. Part II.C.1.c
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`(“In all cases, any discharge which contains a visible sheen, foam, or odor, or may cause or
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`contribute to a violation of water quality is prohibited.”).
`
`
`
`The General Permit Framework
`
`46.
`
`The General Permit ensures compliance with federal technology and water-
`
`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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`CWA’s citizen suit provision. 33 U.S.C. § 1365(f) (defining enforceable effluent standards or
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`limitations to include “a permit or condition of a permit issued under section 1342 of this title”).
`
`47.
`
`At the outset, the General Permit establishes eligibility conditions that permittees
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`must meet to obtain coverage. General Permit, Part I. Permittees apply for coverage under the
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`General Permit by submitting an application called a Notice of Intent. General Permit, Part I.D.
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`48.
`
`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, I.F.
`
`49.
`
`Next, the General Permit contains a variety of substantive limits that all
`
`permittees must meet. General Permit, Part II. These include numeric effluent limitations on the
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`quantity and concentration of pollutants, narrative effluent limitations on pollutants, and
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`compulsory pollution control and minimization practices. General Permit, Part II.
`
`50.
`
`In addition, the General Permit contains effluent limitations that apply only to
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`permittees engaged in particular industrial activities. 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 pertaining to any other industrial activities occurring at their facility
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`too, referred to as “co-located” activities. Id. (“Stormwater discharges from co-located
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`industrial activities are authorized by this permit, provided that the owner or operator complies
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`with any and all of the requirements applicable to each industrial activity at the facility.”).
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`51.
`
`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. BMPs
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`and control measures include changes to industrial practices and activities (for example,
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`housekeeping schedules and employee training programs) and structural improvements (for
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`example, roofing to minimize exposure of pollutants, or collection basins that reduce the volume
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`of stormwater discharged from the facility). The permittee must select, design, install, and
`
`implement control measures, including BMPs, in accordance with good engineering practices, to
`
`meet the effluent limits contained in the General Permit. See, e.g., General Permit, Part II
`
`(outlining mandatory BMPs), Part VII (outlining sector-specific BMPs), Part III.A.7 (requiring
`
`documentation of all BMPs installed and implemented at the facility pursuant to Parts II and VII,
`
`13
`
`

`

`Case 1:21-cv-05265-EK-RML Document 1 Filed 09/22/21 Page 14 of 40 PageID #: 14
`
`documentation of all innovative BMPs, and an explanation of any BMPs that have not been
`
`installed due to site-specific conditions).
`
`52.
`
`A permittee must record the BMPs and control measures used to meet the General
`
`Permit’s limits in a “stormwater pollution prevention plan” (“SWPPP”). General Permit, Part
`
`III. The permittee must develop, implement, and continually update this plan to adapt it to
`
`changing conditions at the facility. Id. The SWPPP must address all of the permittee’s industrial
`
`activities and meet all other requirements for such plans set forth in the General Permit. Id.
`
`Further, the SWPPP must be developed and fully implemented before an applicant is eligible to
`
`discharge industrial stormwater under the General Permit—a fully implemented SWPPP is a
`
`precondition of coverage. General Permit, Part I.D.1.a.
`
`53.
`
`To ensure compliance, adequacy, and functioning of the SWPPP and selected
`
`BMPs, permittees must track, improve upon, and report upon their performance under the
`
`General Permit. See General Permit, Parts IV–VII.
`
`54.
`
`The General Permit requires regular inspections by qualified personnel, including
`
`annual comprehensive inspections and quarterly routine inspections, to evaluate the performance
`
`and maintenance needs of BMPs, detect leaks, and document any deficiencies in the
`
`implementation and/or adequacy of the SWPPP, amongst other things. General Permit, Parts
`
`IV.A–C; see also id. Parts II.A.2–3.
`
`55.
`
`The General Permit also requires monitoring of stormwater discharges, including
`
`quarterly visual monitoring and periodic sampling for pollutants associated with the facility’s
`
`industrial sector. General Permit, Parts IV.D–G, VII. The General Permit relies centrally on
`
`comparing the pollution found in a permittee’s stormwater to “benchmark monitoring cutoff
`
`concentrations” (benchmarks) for each pollutant to ensure that permittees are minimizing
`
`14
`
`

`

`Case 1:21-cv-05265-EK-RML Document 1 Filed 09/22/21 Page 15 of 40 PageID #: 15
`
`pollution and complying with the narrative limits set forth in the General Permit. See General
`
`Permit, Part VII (adopting sector-specific benchmarks for each category of permittees).
`
`56.
`
`A benchmark is “a guideline for the owner or operator to determine the overall
`
`effectiveness of the SWPPP in controlling the discharge of pollutants to receiving waters.”
`
`General Permit, Appendix A. As the EPA explained in adopting benchmarks originally, they
`
`“provide a reasonable target for controlling storm water contamination by pollution prevention
`
`plans.” 60 Fed. Reg. 50804, 51076 (Sept. 29, 1995). Further, benchmark exceedances can
`
`indicate that “a storm water discharge could potentially impair, or contribute to impairing water
`
`quality or affect human health from ingestion of water or fish.” 60 Fed. Reg. at 50824–25.
`
`57.
`
`Thus, the benchmarks provide strong evidence of whether a facility has
`
`implemented adequate control measures and BMPs to comply with the General Permit and the
`
`federal technology and water-quality based standards that it implements. Although compliance
`
`with benchmarks under the General Permit is self-reported, self-monitoring reports under the
`
`General Permit are deemed “conclusive evidence of an exceedance of a permit limitation.”
`
`Sierra Club v. Union Oil, 813 F.2d 1480, 1493 (9th Cir. 1988), vacated on other grounds, 485
`
`U.S. 931 (1988).
`
`58.
`
`If an inspection or monitoring sample reveals an exceedance, violation, or other
`
`issues with the BMPs or the SWPPP, the permittee is required to take and document corrective
`
`actions. General Permit, Part V.
`
`59.
`
`The results of a permittee’s inspections and monitoring must be documented and
`
`kept with the SWPPP, and certain reports must be submitted to DEC on a periodic basis.
`
`General Permit, Part VI. This self-reporting is the primary means by which DEC and EPA
`
`ensure a facility complies with the General Permit and the Clean Water Act.
`
`15
`
`

`

`Case 1:21-cv-05265-EK-RML Document 1 Filed 09/22/21 Page 16 of 40 PageID #: 16
`
`Key Conditions of the General Permit
`
`60. Within that framework, the following specific conditions of the General Permit
`
`are particularly relevant in this case.
`
`61.
`
`First, discharges of non-stormwater are not authorized under the General Permit,
`
`with certain specific exceptions (such as fire control). General Permit, Part I.C. The General
`
`Permit only authorizes discharges of stormwater associated with industrial activity; to legally
`
`discharge non-stormwater to the waters of the United States, entities must seek an individual
`
`SPDES permit specifically authorizing such discharge. General Permit, Parts I.B–C. Permittees
`
`are also required to certify in their SWPPP that “all discharges have been tested or evaluated for
`
`the presence of non-stormwater discharges” and to describe the evaluation criteria or testing
`
`method used. General Permit, Part III.A.7.
`
`62.
`
`Furthermore, as part of or in addition to the annual inspection, qualified personnel
`
`must annually conduct a dry-weather inspection of all outfalls to update the facility’s non-
`
`stormwater discharge certification. General Permit, Parts III.A.7.f, IV.C. Ready-mix concrete
`
`facilities, such as the Facility operated by Defendants, are required to specifically describe
`
`measures that ensure that “process wastewater that results from washing of trucks, mixers,
`
`transport buckets, forms or other equipment are discharged in accordance with a separate SPDES
`
`permit or are recycled.” General Permit, Part VII.E, at 61.
`
`63.
`
`Second, as discussed above, the General Permit mandates that all permittees use
`
`certain BMPs to minimize the exposure of potential sources of pollution to stormwater to the
`
`greatest extent possible, so as to meet the federal BAT/BCT Standard. General Permit, Part II.A.
`
`As relevant here, these mandatory BMPs include: (1) minimizing the exposure of industrial areas
`
`to stormwater

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