`------------------------------------------------------------------------------------------------------------
`
`HACKENSACK RIVERKEEPER, INC. and
`NEW CITY NEIGHBORHOOD ASSOCIATION, INC.,
`
`
`
`Plaintiffs,
`
`
`v.
`
`SENECA MEADOWS, INC.; WASTE CONNECTIONS
`US, INC.; WASTE CONNECTIONS OF NEW YORK,
`INC.; and WEST NYACK TRANSFER STATION,
`
`
`
`Case No. 21-7659
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
`
`(Federal Water Pollution Control
`Act, 33 U.S.C. §§ 1251 to 1387)
`
`
`Case 1:21-cv-07659 Document 1 Filed 09/14/21 Page 1 of 35
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Defendants.
`
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`------------------------------------------------------------------------------------------------------------
`
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`Plaintiffs Hackensack Riverkeeper, Inc. (“Hackensack Riverkeeper”) and New City
`
`Neighborhood Association, Inc. (“New City Neighborhood Association”) (collectively,
`
`“Plaintiffs”) by and through their counsel, hereby allege:
`
`I.
`
`INTRODUCTION
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`1.
`
`This is a civil suit brought under the citizen suit enforcement provisions of the
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`Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (the “Clean Water Act” or “the
`
`Act” or “CWA”) to address and abate the above-named Defendants’ ongoing and continuous
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`violations of the Act. 33 U.S.C. § 1365.
`
`2.
`
`Defendants discharge polluted stormwater runoff from a scrap metal processing
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`and recycling facility (the “Facility”) into the waters of the United States in violation of CWA
`
`Sections 301(a) and 402(p), 33 U.S.C. §§ 1311(a), 1342(p), and the New York State Department
`
`of Environmental Conservation SPDES Multi-Sector General Permit for Stormwater Discharges
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`
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`1
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`Case 1:21-cv-07659 Document 1 Filed 09/14/21 Page 2 of 35
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`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”).
`
`3.
`
`Defendants’ violations of the General Permit and the Clean Water Act include,
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`inter alia: discharges of polluted stormwater and other pollution that are not authorized by the
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`General Permit; inadequate pollution control measures; an inadequate stormwater pollution
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`prevention plan; and the release of pollutants that cause or contribute to violations of water
`
`quality standards in receiving waters.
`
`4.
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`Stormwater runoff is one of the most significant sources of water pollution in the
`
`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 rainwater pour into waters
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`across New York. The State of New York has designated as “impaired” more than 7,000 river
`
`miles; 319,000 acres of larger waterbodies; 940 square miles of harbors, bays, and estuaries; 10
`
`miles of coastal shoreline; and 592 miles of Great Lakes shoreline. Under the Clean Water Act,
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`“impaired” means not meeting water quality standards and/or unable to support beneficial uses,
`
`such as fish habitat and water contact recreation. In many of these waters, state water quality
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`standards for metals, oil and grease, nutrient enrichment and oxygen depletion, inorganic
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`pollutants, pathogens, taste, color, odor, and other parameters are consistently exceeded. For the
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`overwhelming majority of water bodies listed as impaired, stormwater runoff is cited as a
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`primary source of the pollutants causing the impairment.
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`5.
`
`Defendants’ stormwater discharges contribute to this endemic stormwater
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`pollution problem. Defendants engage in industrial activities such as the storage and processing
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`of scrap metal, vehicle maintenance, and vehicle traffic 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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`2
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`conveys those pollutants to nearby surface waters. Contaminated stormwater discharges such as
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`those from Defendants’ scrap metal recycling facility can and must be controlled to the fullest
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`extent required by law in order to allow these water bodies a fighting chance to regain their
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`health.
`
`II.
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`JURISDICTION AND VENUE
`
`6.
`
`This Court has subject matter jurisdiction over the parties and this action pursuant
`
`to 33 U.S.C. § 1365(a)(1), and 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
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`declaratory relief in case of actual controversy and further necessary relief based on such a
`
`declaration); 33 U.S.C. §§ 1319(b), 1365(a) (injunctive relief); and 33 U.S.C. §§ 1319(d),
`
`1365(a) (civil penalties).
`
`7.
`
`On June 16, 2021, Plaintiffs provided notice of Defendants’ violations of the Act
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`and of its intention to file suit against Defendants (“Notice Letter”) to the above-named
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`Defendants, the Administrator of the United States Environmental Protection Agency (“EPA”);
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`the Administrator of EPA Region 2; and the Commissioner of the New York Department of
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`Environmental Conservation (“DEC”), as required by Section 505(b)(1)(A) of the Act, 33 U.S.C.
`
`§ 1365(b)(1)(A), and the corresponding regulations at 40 C.F.R. §§ 135.1 to 135.3. A true and
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`correct copy of Plaintiffs’ Notice Letter is attached as Exhibit A, and is incorporated herein by
`
`reference.
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`8.
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`More than sixty days have passed since the notice letter was served on Defendants
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`and the State and federal agencies. Plaintiffs have complied with the Act’s notice requirements.
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`33 U.S.C. § 1365(b)(1).
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`3
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`9.
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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).
`
`10.
`
`This action is not barred by any prior administrative penalty under CWA
`
`Section 309(g), 33 U.S.C. § 1319(g).
`
`11.
`
`Venue is proper in the United States District Court for the Southern 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) and (d) because at least one of the Defendants resides in the Southern District of New
`
`York and all of the Defendants reside within New York State.
`
` III.
`
`PARTIES
`
`12.
`
`Plaintiff Hackensack Riverkeeper, Inc. (“Hackensack Riverkeeper”) is a non-
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`profit corporation whose mission is to protect, preserve, and restore the ecological integrity and
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`productivity of the Hackensack River and its watershed through enforcement, field work, and
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`community action.
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`13.
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`Plaintiff New City Neighborhood Association, Inc. is a non-profit corporation
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`whose mission is to educate residents of New City, New York on the various issues affecting
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`their neighborhood, and to protect and preserve their quality of life.
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`14.
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`Plaintiffs have members and supporters in the New York and New Jersey region,
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`many of whom use and enjoy the Hackensack River, which is polluted by industrial stormwater
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`runoff from the Defendants’ Facility.
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`15.
`
`16.
`
`
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`One such affected member and supporter lives in New City, New York.
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`This individual is a supporter of Hackensack Riverkeeper and a member of New
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`4
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`City Neighborhood Association.
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`17.
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`This individual is passionate about advocating for cleaner water in and around
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`New City, and believes that the Hackensack River should be protected and remain in a pristine
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`state.
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`18.
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`On one occasion, this individual was too worried about the state of the
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`Hackensack River to fish in it, since the water had an offensive odor, was cloudy, and had no
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`visible life.
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`19.
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`20.
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`This individual has not fished in the Hackensack River since that event.
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`This event led this individual to become greatly concerned about the river’s water
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`quality and ecology.
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`21.
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`If the water downstream of the Facility was cleaner, then this individual would
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`visit, hike, and fish that portion of the Hackensack River.
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`22.
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`This individual is also concerned about the impact of the Facility’s discharges of
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`polluted stormwater on his drinking water, which is sourced from the Hackensack River
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`downstream from the Facility.
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`23.
`
`Defendants’ discharges of stormwater associated with industrial activity
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`containing pollutants therefore specifically impair this individual’s use and enjoyment of the
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`Hackensack River.
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`24.
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`The interests of this individual, as well as many other supporters and members of
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`Plaintiffs Hackensack Riverkeeper and New City Neighborhood Association, Inc., have been, are
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`being, and will continue to be adversely affected by Defendants’ failure to comply with the
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`CWA.
`
`
`
`25.
`
`This individual, and Plaintiffs’ other members harmed by Defendants’ pollution,
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`5
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`will be identified, pursuant to appropriate privacy and/or confidentiality safeguards, if and when
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`an affidavit or testimony from these affected members is necessary.
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`26.
`
`The relief sought herein will redress the harms to Plaintiffs and their members
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`caused by Defendants’ activities. Continuing commission of the acts and omissions alleged
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`herein will irreparably harm Plaintiffs and their members, for which harm they have no plain,
`
`speedy, or adequate remedy at law.
`
`27.
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`Plaintiffs bring this action on behalf of their members, respectively. Plaintiffs’
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`interests in reducing Defendants’ discharges of pollutants into the aforementioned local waters
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`and requiring Defendants to comply with the requirements of the General Permit are germane to
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`Plaintiffs’ purposes.
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`28.
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`Plaintiffs are informed and believe, and thereupon allege, that Defendants Seneca
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`Meadows, Inc., Waste Connections US, Inc., Waste Connections Of New York, Inc., and West
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`Nyack Transfer Station are corporations incorporated under the laws of the State of New York
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`which own and/or operate 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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`29.
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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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`30.
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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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`6
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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.
`
`31.
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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.
`
`§ 123.25(a).
`
`32.
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`In New York, the DEC has been delegated the authority to issue NPDES permits.
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`Such state-issued permits, issued by the DEC pursuant to its delegated authority from EPA under
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`the Clean Water Act, are referred to as “SPDES” permits.
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`Stormwater Permits
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`33.
`
`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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`34.
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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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`35.
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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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`7
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`levels discharged by municipal sewage treatment plants. 55 Fed. Reg. 47990, 47991 (Nov. 16,
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`1990).
`
`36.
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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.”
`
`New York’s General Permit for the Discharge
`of Stormwater Associated with Industrial Activity
`
`37.
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`As a delegated state NPDES permitting agency, the DEC has elected to issue a
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`statewide general permit for industrial stormwater discharges in New York. The prior version of
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`the General Permit (“2012 Permit”) was in effect between October 1, 2012, and September 30,
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`2017. New York State Department of Environmental Conservation SPDES Multi-Sector General
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`Permit for Stormwater Discharges Associated With Industrial Activity, Permit No. GP-0-12-001
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`(“2012 Permit”). The current version of the General Permit, which renewed the 2012 Permit,
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`went into effect on March 1, 2018, and will expire on February 28, 2023. Permit No. GP-0-17-
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`004 (“2018 Permit”). The 2018 Permit maintains or makes more stringent the same
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`requirements as the 2012 Permit. As appropriate, the 2012 Permit and the 2018 Permit are
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`referred to collectively as the “General Permit.”
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`38.
`
`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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`8
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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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`pollution 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
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`include conditions that meet the Act’s technology-based standards).
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`39.
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`Accordingly, the Act requires permittees to use best management practices
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`(“BMPs”) that reflect, and prohibit the discharge of pollutants above, the level commensurate
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`with application of the best available technology economically achievable (“BAT”), for toxic
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`and non-conventional pollutants and best conventional pollutant control technology (“BCT”) for
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`conventional pollutants. 33 U.S.C. at §§ 1314(b)(2), (4).
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`40.
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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
`
`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
`
`standards).
`
`41.
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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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`
`
` 1
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` “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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`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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`42.
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`In order to discharge polluted stormwater lawfully in New York, industrial
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`dischargers must either obtain coverage under the General Permit and comply with its terms or
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`obtain coverage under and comply with an individual SPDES permit. 33 U.S.C. § 1311(a).
`
`The General Permit Framework
`
`43.
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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
`
`of this title[.]”).
`
`44.
`
` 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. 2018 Permit,
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`Part I.D.
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`45.
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`Next, the General Permit also contains a variety of substantive limits that all
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`permittees must meet. These include numeric effluent limitations on the quantity and
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`concentration of pollutants, narrative effluent limitations on pollutants, and narrative effluent
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`limitations that impose compulsory pollution control and minimization practices. See 2018
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`Permit, Part II.
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`46.
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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 2018 Permit, Part VII.
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`47.
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`The General Permit sets forth additional non-numeric technology based effluent
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`limits in the form of required BMPs for all facilities. 2018 Permit, Parts II.A.1-A.12; 2012
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`Permit, Part I.B.2. In addition, the General Permit sets forth additional non-numeric effluent
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`limit requiring particular BMPs based on the type of industrial activities occurring at a particular
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`facility (the “sector”). 2018 Permit, Part VII; 2012 Permit, Part VIII.
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`48.
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`The General Permit implements the federal technology-based (BAT/BCT)
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`standards through a combination of general and sector-specific effluent limitations that require
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`the Facility to “minimize” the discharge of pollutants. See 2018 Permit, Part II; Part VII; 2012
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`Permit, Part I.B; Part VIII. The General Permit defines “minimize” as requiring operators to
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`“reduce and/or eliminate to the extent achievable using control measures [including best
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`management practices (“BMPs”)] … that are technologically available and economically
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`practicable and achievable in light of best industry practice.” 2018 Permit, Part II; 2012 Permit,
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`Part I.B.2. BMPs include changes to industrial practices and activities (for example, annual
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`employee training programs) and structural changes to the property (for example, collection
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`basins that reduce stormwater discharged from a facility).
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`49.
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`As noted above, the General Permit also implements the Clean Water Act’s water
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`quality based protections: it prohibits any discharge that may cause or contribute to a violation of
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`New York’s water quality standards as contained in 6 NYCRR Parts 700-705. 2018 Permit,
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`Water Quality Based Effluent Limitation II.C.1.a; 2012 Permit, Part I.B.2. Water Quality Based
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`Effluent Limitation II.C.1.c of the 2018 Permit holds that “any discharge which contains a
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`visible sheen, foam, or odor, or may cause or contribute to a violation of water quality is
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`prohibited.”
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`50.
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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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`51.
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` A permittee must record the BMPs and control measures used to meet the
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`General Permit’s effluent limits in a “stormwater pollution prevention plan” (“SWPPP”).
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`General Permit, Part III. The owner or operator must develop, implement, and continually
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`update the plan. General Permit, Part III.
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`52.
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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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`53.
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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
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`each pollutant, in order to ensure that permittees are complying with the limits set forth in the
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`General Permit. See General Permit, Part VII (adopting sector-specific benchmarks for each
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`category of permittees).
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`54.
`
` 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.
`
`55.
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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).
`
`Key Conditions of the General Permit
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`56.
`
` Within that framework, the following specific conditions of the General Permit
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`are particularly relevant in this case with respect to the Facility.
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`Effluent Limitations and Requirement for Adequate Control Measures
`
`57.
`
`For facilities in Sector N, the General Permit establishes the following
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`benchmarks: TSS – 100 mg/L, chemical oxygen demand (“COD”) – 120 mg/L, O&G – 15 mg/L,
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`total recoverable aluminum – 750 µg/L, total recoverable cadmium – 1.8 µg/L, total chromium –
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`1.8 mg/L, total recoverable copper – 12 µg/L, total recoverable iron – 1 mg/L, total recoverable
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`lead – 69 µg/L, and total recoverable zinc – 110 µg/L.
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`58.
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`For facilities in Sector P, the General Permit establishes the following
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`benchmarks: O&G – 15 mg/L, COD – 120 mg/L, benzene – 50 µg/L, ethylbenzene – 50 µg/L,
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`toluene – 50 µg/L, and xylene – 50 µg/L.
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`59.
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`For water bodies with a designation of Class A, Table 1 of 6 NYCRR Section
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`703.5 provides the following water quality standards for pollutants that are discharged from the
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`Facility: copper – 13.4 µg/L (A(A)); iron – 300 µg/L (Aesthetic (Water Source)); lead – 97.1
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`µg/L (A(A)); lead – 50 µg/L (Health (Water Source) (“H(WS)”); zinc – 117 µg/L (A(A));
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`cadmium – 3.8 µg/L (A(A)); cadmium – 5 µg/L (H(WS)).2
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`SWPPP Requirements
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`60.
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`The SWPPP must identify potential sources of pollution that may affect the
`
`quality of stormwater discharges associated with industrial activity. Further, the SWPPP must
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`describe and ensure the implementation of practices that minimize the discharge of pollutants in
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`these discharges and that assure compliance with the other terms and conditions of the General
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`Permit, including achievement of effluent limitations. 2018 Permit, Part III.A; 2012 Permit,
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`Part III.A.
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`61.
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`Among other things, the SWPPP must include: information related to a
`
`discharger’s stormwater pollution prevention team; a general site description; a summary of
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`potential pollutant sources; measures related to handling of spills and releases; a general location
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`map and a site map identifying the location of the facility and all receiving waters to which
`
`
`
` 2
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` The A(A) values for copper, lead, zinc, and cadmium are based on hardness and assume a
`hardness of 100 ppm.
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`Case 1:21-cv-07659 Document 1 Filed 09/14/21 Page 15 of 35
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`stormwater discharges; a description of control measures and best management practices;
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`schedules and procedures for implementation of control measures, monitoring and sampling, and
`
`inspections; and documentation of inspections, samples, and corrective actions taken at a facility.
`
`2018 Permit, Part III.A; 2012 Permit, Part III.C.
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`62.
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` The General Permit also includes sector-specific SWPPP requirements. For
`
`facilities in Sector N (including Subsector N3), these requirements include, inter alia, a program
`
`to control materials received for processing; BMPs to minimize contact of particulate matter
`
`stored indoors or under cover from contacting surface runoff; BMPs to minimize contact of
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`stormwater runoff with stockpiled materials, processed materials, and non-recyclable wastes;
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`BMPs to minimize contact of residual liquids and particulate matter from materials stored
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`indoors or under cover from coming in contact with surface runoff; a program to control what is
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`received at the facility; measures necessary to minimize contact of surface runoff with residual
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`cutting fluids; BMPs to minimize surface runoff from coming in contact with scrap processing
`
`equipment; and measures to minimize stormwater contamination at loading/unloading areas.
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`2018 Permit, Part VII.N; 2012 Permit, Part VIII.N.
`
`63.
`
`For facilities in Sector P, these sector-specific requirements include, inter alia,
`
`requirements to include measures that prevent or minimize contamination of the stormwater
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`runoff from fueling areas; measures that prevent or minimize contamination of stormwater runoff
`
`from all areas used for vehicle/equipment cleaning; and measures that prevent or minimize
`
`contamination of the stormwater runoff from all areas used for vehicle/equipment maintenance.
`
`2018 Permit, Part VII.N; 2012 Permit, Part VIII.N.
`
`64.
`
` For facilities discharging to impaired waterbodies for which the cause of the
`
`impairment is a pollutant of concern included in the benchmarks as set forth in Appendix G of
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`Case 1:21-cv-07659 Document 1 Filed 09/14/21 Page 16 of 35
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`the 2018 Permit, a facility must contain the following SWPPP requirements: identification of the
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`impaired waterbody, a list of pollutants of concern that could be discharged causing the
`
`impairment, an identification of each area of the facility that generates stormwater discharges
`
`associated with industrial activity that creates a reasonable potential to discharges the pollutants
`
`of concern, and specific BMPs to minimize the pollutant of concern from being discharged to the
`
`impaired waterbody. 2018 Permit, Part III.D.2.a-d.
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`Monitoring and Reporting
`
`65.
`
` The General Permit requires operators to collect and analyze samples of
`
`industrial stormwater discharges resulting from measurable storm events from every outfall at a
`
`facility. The 2018 Permit requires such sampling and analysis to occur twice per year; the 2012
`
`Permit requires sampling and analysis to occur annually. 2018 Permit, Parts IV and VI; 2012
`
`Permit, Part, IV.
`
`66.
`
`The General Permit requires that facilities discharging stormwater to impaired
`
`waterbodies conduct additional monitoring. Facilities in Sector N3 that are discharging to waters
`
`impaired for biological impacts are required to conduct quarterly monitoring of stormwater
`
`discharges. 2018 Permit, Parts IV.F.1.c, IV.F.2, Appx. G; 2012 Permit, Part IV.B.1.g, Appx. G.
`
`67.
`
`The General Permit requires that facilities that have an exceedance of a numeric
`
`effluent limit, or an exceedance of a benchmark cut-off concentration for a pollutant of concern
`
`to an impaired waterbody (i.e. a pollutant that is associated with the impairment), must report the
`
`results of the exceedance(s) and the corrective action(s) taken on a Corrective Action form along
`
`with the submission of the DMR reporting that exceedance. 2018 Permit, Parts VI.A.2.b, VI.B
`
`(Table VI.1); 2012 Permit, Part IV.B.1.g.(6).
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`Corrective Actions
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`68.
`
`The General Permit requires “corrective actions” to improve BMPs when, inter
`
`alia, “the benchmark or numeric effluent limit [stormwater] sample results indicate exceedances
`
`of the pollutants.” 2018 Permit Part V.A; 2012 Permit Parts IV.B.1.c.(6).(a)-(b),
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`IV.B.1.e.(5).(a)-(b). A discharger must implement additional structural and non-structural BMPs
`
`to prevent a recurrence of those exceedances within 12 weeks. 2018 Permit, Part V.A.1; 2012
`
`Permit, Part III.E.2.b.(1). If the exceedances still continue, the discharger must continue
`
`implementing additional BMPs. 2018 Permit, Part V.A.4; 2012 Permit, Parts
`
`IV.B.1.c.(6).(d).(iii), IV.B.1.e.(5).(e).(iii). Corrective actions are also required if there is
`
`evidence indicating that stormwater discharges “are causing, have the reasonable potential to
`
`cause, or are contributing to a violation of the water quality standards.” 2018 Permit, Part
`
`II.C.1.b; See also 2012 Permit, Part I.B.3. A failure to take the necessary and required corrective
`
`actions is a violation of the permit. 2018 Permit, Parts V, II.C.1.b; 2012 Permit, Parts
`
`IV.B.1.c.(6).(d).(iii), IV.B.1.e.(5).(e).(iii).
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`Beneficial Uses of New York Surface Waters
`
`69.
`
`The DEC has classified the portion of the Hackensack River where the Facility
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`discharges as a Class A water. 6 N.Y.C.R.R. § 865.6.
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`70.
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`Under New York’s Water Quality Standards, a waterbody that is designated Class
`
`A is a source of water supply for drinking, culinary or food processing purposes, primary and
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`secondary contact recreation, and fishing. 6 N.Y.C.R.R. § 701.6(a). Such waters are also meant
`
`to be suitable for fish, shellfish, and wildlife propagation and survival. Id.
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`71.
`
`The New York Water Quality Standards also set numeric and narrative criteria for
`
`different water pollution parameters including dissolved oxygen, oil and grease, suspended and
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`Case 1:21-cv-07659 Document 1 Filed