`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`--------------------------------------------------------------------------------------
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`Case No. 22-4621
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`RIVERKEEPER, INC.
`COMPLAINT FOR DECLARATORY AND
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`
`Plaintiff,
`INJUNCTIVE RELIEF AND CIVIL
`
`PENALTIES
`v.
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`
`R.B. SCRAP IRON & METAL, INC.
`(Federal Water Pollution Control Act, 33
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`
`Defendant.
`U.S.C. §§ 1251 to 1387)
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`--------------------------------------------------------------------------------------
`
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`Plaintiff Riverkeeper, Inc., by and through its counsel, hereby alleges:
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`I.
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`INTRODUCTION
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`1.
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`This is a civil suit brought under the Federal Water Pollution Control Act, 33
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`U.S.C. §§ 1251–1387, commonly known as the Clean Water Act (“CWA” or “the Act”), to
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`address and abate Defendant’s ongoing and continuous violations of the Act pursuant to the
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`Act’s citizen suit enforcement provisions at CWA Section 505, 33 U.S.C. § 1365.
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`2.
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`Defendant discharges polluted stormwater runoff from its scrap metal recycling
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`facility located at 730 Saw Mill River Rd., Yonkers, New York, 10710 (the “Facility”) into the
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`waters of the United States without authorization, in violation of CWA Sections 301(a) and
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`402(p), 33 U.S.C. §§ 1311(a), 1342(p), and has failed to obtain coverage under and comply with
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`the conditions of an individual State Pollutant Discharge Elimination System (“SPDES”) permit
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`or the 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-0-17-004
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`(March 1, 2018), https://www.dec.ny.gov/docs/water_pdf/msgp017004.pdf (“General Permit”),
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`in violation of CWA Sections 402(p)(3)(A), and 402(p)(4)(A), 33 U.S.C. §§ 1342(p)(3)(A) and
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`(p)(4)(A), and 40 C.F.R. §§ 122.26(c)(1) and (e)(1).
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`3.
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`Stormwater runoff is one of the most significant sources of water pollution in the
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`nation—comparable to, if not greater than, contamination from industrial and sewage sources.
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`With every rainfall event, hundreds of millions of gallons of polluted rainwater pour into the
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`New York Harbor, Long Island Sound, and other receiving waters in this District. The State of
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`New York has designated as “impaired” more than 7,000 river miles; 319,000 acres of larger
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`waterbodies; 940 square miles of harbors, bays, and estuaries; 10 miles of coastal shoreline; and
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`592 miles of Great Lakes shoreline. Under the Clean Water Act, “impaired” means not meeting
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`water quality standards and/or unable to support beneficial uses, such as fish habitat and water
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`contact recreation. In many of these waters, state water quality standards for metals, oil and
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`grease, nutrient enrichment and oxygen depletion, inorganic pollutants, pathogens, taste, color,
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`odor, and other parameters are consistently exceeded. For the overwhelming majority of water
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`bodies listed as impaired, stormwater runoff is cited as a primary source of the pollutants causing
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`the impairment.
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`4.
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`Defendant’s stormwater discharges contribute to this endemic stormwater
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`pollution problem. Defendant engages in industrial activities such as the storage and processing
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`of scrap metal. As precipitation comes into contact with pollutants generated by these industrial
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`activities, it conveys those pollutants to nearby surface waters. Contaminated stormwater
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`discharges such as those from the Facility can and must be controlled to the fullest extent
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`required by law in order to allow these water bodies a fighting chance to regain their health.
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`II.
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`JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction over the parties and this action pursuant
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`to CWA Section 505(a)(1) (the citizen suit provision of the CWA), 33 U.S.C. § 1365(a)(1), and
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`28 U.S.C. § 1331 (an action arising under the laws of the United States).
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`6.
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`On March 31, 2022 Plaintiff provided notice of Defendant’s violations of the Act
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`and of its intention to file suit against Defendant to Defendant; the Administrator of the United
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`States Environmental Protection Agency (“EPA”); the Administrator of EPA Region II; and the
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`Commissioner of the New York Department of Environmental Conservation (“DEC”), as
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`required by the Act under CWA Section 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A), and the
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`corresponding regulations at 40 C.F.R. §§ 135.1 to 135.3. A true and correct copy of Plaintiff’s
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`notice letter is attached as Exhibit A, and is incorporated herein by reference.
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`7.
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`More than sixty days have passed since the notice letter was served on Defendant
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`and the state and federal agencies. Plaintiff has complied with the Act’s notice requirements
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`under CWA Section 505(b)(1), 33 U.S.C. § 1365(b)(1).
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`8.
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`Neither the EPA nor the State of New York has commenced or is diligently
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`prosecuting a civil or criminal action to redress the violations alleged in this complaint. See
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`CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B).
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`9.
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`This action is not barred by any prior administrative penalty under CWA
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`Section 309(g), 33 U.S.C. § 1319(g).
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`10.
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`Venue is proper in the United States District Court for the Southern District of
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`New York pursuant to CWA Section 505(c)(1), 33 U.S.C. § 1365(c)(1), and 28 U.S.C. §
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`1391(b)(2) because the source of the violations complained of is located, and the acts and
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`omissions giving rise to the claims occurred, within this judicial district.
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`III.
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`PARTIES
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`11.
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`Plaintiff Riverkeeper, Inc. (“Riverkeeper”) is a non-profit corporation whose
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`mission is to protect and restore the Hudson River from source to sea and safeguard drinking
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`water supplies, through advocacy rooted in community partnerships, science and law.
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`Riverkeeper has approximately 3,100 members in the New York and New Jersey region, many
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`of whom use and enjoy the Saw Mill River.
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`12.
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`Plaintiff’s members use and enjoy the waters which Defendant has unlawfully
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`polluted and is unlawfully polluting. Plaintiff’s members use those areas to fish, sail, boat,
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`kayak, swim, birdwatch, photograph, engage in spiritual meditation, view wildlife, and engage in
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`nature study and scientific study, among other activities. Defendant’s discharges of stormwater
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`associated with industrial activity containing pollutants impair each of those uses. Thus, the
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`interests of Plaintiff’s members have been, are being, and will continue to be adversely affected
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`by Defendant’s failure to comply with the CWA.
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`13.
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`For example, one Riverkeeper member lives on the Hudson River, approximately
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`four blocks from day lighted sections of the Saw Mill River. This member takes daily walks
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`along both waterbodies and is an active kayaker. This member is participates in community
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`science projects to monitor the Hudson River’s water quality near the Saw Mill River outlet.
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`14.
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`Another Riverkeeper member residing less than a mile from the Saw Mill River
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`regularly bikes and walks around the Saw Mill River, bird watches, and occasionally kayaks in
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`the area. This member is an active advocate for the protection of park land in Yonkers, and
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`founded a community group dedicated to this purpose.
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`15.
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`The relief sought herein will redress the harms to Plaintiff and its members caused
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`by Defendant’s activities. Continuing commission of the acts and omissions alleged herein will
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`irreparably harm Plaintiff and its members, for which harm they have no plain, speedy, or
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`adequate remedy at law.
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`16.
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`Plaintiff is informed and believes, and thereupon alleges, that Defendant R.B.
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`Scrap Iron & Metal, Inc. (“R.B. Scrap”) is a corporation incorporated under the laws of the State
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`of New York, which owns and operates a scrap metal recycling facility at 730 Saw Mill River
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`Rd., Yonkers, New York, 10710.
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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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`17.
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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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`18.
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`Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any
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`pollutant into waters of the United States, unless such discharge is in compliance with various
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`enumerated sections of the Act. Among other things, Section 301(a) prohibits discharges not
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`authorized by, or in violation of, the terms of a National Pollutant Discharge Elimination System
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`(“NPDES”) permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342. A NPDES
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`permit requires dischargers of pollution to comply with various limitations.
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`19.
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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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`20.
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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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`21.
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`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
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`applicable requirements” of 33 U.S.C. § 1311).
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`22.
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`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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`23.
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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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`1 “Conventional pollutants” are defined by statute, 33 USC 1314(a)(4), and by regulation, 40
`CFR 401.16, to include: biochemical oxygen demand, total suspended solids, pH, fecal coliform,
`and oil and grease.
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`standards. See 33 U.S.C. §§ 1311(b)(2)(c) (requiring achievement of “any more stringent
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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).
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`24.
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`In 1987, to better regulate pollution conveyed by stormwater runoff, Congress
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`enacted Clean Water Act Section 402(p), 33 U.S.C. § 1342(p), entitled “Municipal and Industrial
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`Stormwater Discharges.”
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`25.
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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. 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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`26.
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`CWA Section 402(p) and EPA’s implementing regulations at 40 C.F.R. § 122.26
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`require NPDES permits for stormwater discharges “associated with industrial activity.”
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`Stormwater Permits
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`27.
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`In 1987, to better regulate pollution conveyed by stormwater runoff, Congress
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`enacted Clean Water Act Section 402(p), 33 U.S.C. § 1342(p), entitled “Municipal and Industrial
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`Stormwater Discharges.”
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`28.
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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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`29.
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`In promulgating those regulations, EPA cited abundant data showing the harmful
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`effects of stormwater runoff on rivers, streams, and coastal areas across the nation. In particular,
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`EPA found that runoff from industrial facilities contained elevated pollution levels and that, on
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`an annual basis, pollutant levels in stormwater runoff can exceed by an order of magnitude the
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`levels discharged by municipal sewage treatment plants. 55 Fed. Reg. 47990, 47991 (Nov. 16,
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`1990).
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`30.
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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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`31.
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`40 C.F.R. § 122.26(c)(1) provides that dischargers of stormwater associated with
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`industrial activity must apply for an individual permit, apply for a permit through a group
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`application, or seek coverage under a general permit.
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`32.
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`40 C.F.R, § 122.26(b)(13) defines “storm water” to include stormwater runoff,
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`snow melt runoff, and surface runoff and drainage.
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`33.
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`40 C.F.R. § 122.26(b)(14) specifies that “storm water discharge associated with
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`industrial activity” includes stormwater discharge from facilities classified under Standard
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`Industrial Classification (“SIC”) code 5093. This SIC code describes “[e]stablishments primarily
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`engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste
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`materials.” Facilities engaged in these industrial activities must obtain NPDES permit coverage
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`for their stormwater discharges.
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`New York’s General Permit for the Discharge
`of Stormwater Associated with Industrial Activity
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`As a delegated state NPDES permitting agency, DEC has elected to issue a
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`34.
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`statewide general permit for industrial stormwater discharges in New York. SPDES Multi-Sector
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`General Permit For Stormwater Discharges Associated With Industrial Activity, Permit No. GP-
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`0-17-004, N.Y. DEP’T ENVTL. CONSERVATION (Mar. 1, 2018) (“General Permit”). DEC also has
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`the authority to issue SPDES permits for individual applicants.
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`35.
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`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
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`available and economically practicable and achievable in light of best industry practice”).
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`The General Permit Framework
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`36.
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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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`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”).
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`37.
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`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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`38.
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`Among other things, when submitting a Notice of Intent, the applicant must
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`identify the specific outfalls through which it will discharge industrial stormwater. A permittee
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`may only lawfully discharge stormwater associated with industrial activity from these outfalls.
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`General Permit, Parts I.D.3, I.F.
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`39.
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`Next, the General Permit contains a variety of substantive limits that all
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`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.
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`40.
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`In addition, the General Permit contains effluent limitations that apply only to
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`permittees engaged in particular industrial activities. See General Permit, Part VII.
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`41.
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`The General Permit implements the BAT/BCT standard through a combination of
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`general and sector-specific effluent limitations that require the Facility to “minimize” the
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`discharge of pollutants. See General Permit, Part II; Part VII. The General Permit defines
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`“minimize” as requiring operators to “reduce and/or eliminate to the extent achievable using
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`control measures [including best management practices (“BMPs”)] … that are technologically
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`available and economically practicable and achievable in light of best industry practice.”
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`General Permit, Part II. BMPs include changes to industrial practices and activities (for
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`example, annual employee training programs) and structural changes to the property (for
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`example, collection basins that reduce stormwater discharged from a facility).
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`42.
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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. 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).
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`43.
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`The permittee must select, design, install, and implement control measures,
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`including BMPs, in accordance with good engineering practices, to meet the effluent limits
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`contained in the General Permit. See, e.g., General Permit, Part II (outlining mandatory BMPs),
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`Part VII (outlining sector-specific BMPs), Part III.A.7 (requiring documentation of all BMPs
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`installed and implemented at the facility pursuant to Parts II and VII, documentation of all
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`innovative BMPs, and an explanation of any BMPs that have not been installed due to site-
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`specific conditions).
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`44.
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`The General Permit sets forth additional non-numeric effluent limits requiring
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`particular BMPs based on the type of industrial activities occurring at a particular facility (the
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`“sector”). See General Permit, Part VII.
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`45.
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`A permittee must record the BMPs and control measures used to meet the General
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`Permit’s limits in a “stormwater pollution prevention plan” (“SWPPP”). General Permit, Part
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`III. The permittee must develop, implement, and continually update this plan to adapt it to
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`changing conditions at the facility. Id. The SWPPP must address all of the permittee’s industrial
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`activities and meet all other requirements for such plans set forth in the General Permit. Id.
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`Further the SWPPP must be developed and fully implemented before an applicant is eligible to
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`discharge industrial stormwater under the General Permit—a fully implemented SWPPP is a
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`precondition of coverage. General Permit, Part I.D.1.a.
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`46.
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`To ensure compliance, adequacy, and functioning of the SWPPP and selected
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`BMPs, permittees must track, improve upon, and report upon their performance under the
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`General Permit. See General Permit, Parts IV–VII.
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`47.
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`The General Permit requires regular inspections by qualified personnel, including
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`annual comprehensive inspections and quarterly routine inspections, to evaluate the performance
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`and maintenance needs of BMPs, detect leaks, and document any deficiencies in the
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`implementation and/or adequacy of the SWPPP, amongst other things. General Permit, Parts
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`IV.A–C; see also id. Parts II.A.2–3.
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`48.
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`The General Permit also requires monitoring of stormwater discharges, including
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`quarterly visual monitoring and periodic sampling for pollutants associated with the facility’s
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`industrial sector. General Permit, Parts IV.D–G, VII. The General Permit relies centrally on
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`comparing the pollution found in a permittee’s stormwater to “benchmark monitoring cutoff
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`concentrations” (benchmarks) for each pollutant to ensure that permittees are minimizing
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`pollution and complying with the narrative limits set forth in the General Permit. See General
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`Permit, Part VII (adopting sector-specific benchmarks for each category of permittees).
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`49.
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`A benchmark is “a guideline for the owner or operator to determine the overall
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`effectiveness of the SWPPP in controlling the discharge of pollutants to receiving waters.”
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`General Permit, Appendix A. As the EPA explained in adopting benchmarks originally, they
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`“provide a reasonable target for controlling storm water contamination by pollution prevention
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`plans.” 60 Fed. Reg. 50804, 51076 (Sept. 29, 1995). Further, benchmark exceedances can
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`indicate that “a storm water discharge could potentially impair, or contribute to impairing water
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`quality or affect human health from ingestion of water or fish.” 60 Fed. Reg. at 50824–25.
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`50.
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`Thus, the benchmarks provide strong evidence of whether a facility has
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`implemented adequate control measures and BMPs to comply with the General Permit and the
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`federal technology and water-quality based standards that it implements. Although compliance
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`with benchmarks under the General Permit is self-reported, self-monitoring reports under the
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`General Permit are deemed “conclusive evidence of an exceedance of a permit limitation.”
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`Sierra Club v. Union Oil, 813 F.2d 1480, 1493 (9th Cir. 1988), vacated on other grounds, 485
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`U.S. 931 (1988).
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`51.
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`If an inspection or monitoring sample reveals an exceedance, violation, or other
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`issues with the BMPs or the SWPPP, the permittee is required to take and document corrective
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`actions. General Permit, Part V.
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`52.
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`The results of a permittee’s inspections and monitoring must be documented and
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`kept with the SWPPP, and certain reports must be submitted to DEC on a periodic basis.
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`General Permit, Part VI. This self-reporting is the primary means by which DEC and EPA
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`ensure a facility complies with the General Permit and the Clean Water Act.
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`Key Conditions of the General Permit
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`53. Within that framework, the following specific conditions of the General Permit
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`are particularly relevant in this case.
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`SWPPP Requirements
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`54.
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`Defendant’s SWPPP must identify potential sources of pollution that may affect
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`the quality of stormwater discharges associated with industrial activity. Further, the SWPPP
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`must describe and ensure the implementation of practices that minimize the discharge of
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`pollutants in these discharges and that assure compliance with the other terms and conditions of
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`the General Permit, including achievement of effluent limitations. General Permit, Part III.A.
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`55.
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`The General Permit provides detailed instructions to ensure the SWPPP
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`“documents the practices and procedures [necessary] to ensure compliance with the conditions of
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`th[e General Permit], including the selection, design, installation and maintenance of control
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`measures selected to meet effluent limitations in Parts II and VII.” General Permit, Part III.
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`56.
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`Among other things, the SWPPP must include: information related to a
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`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
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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
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`inspections; and documentation of inspections, samples, and corrective actions taken at a facility.
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`57.
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`The General Permit also includes sector-specific SWPPP requirements. For
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`facilities in Sector N (including Subsector N3), these requirements include, inter alia, a program
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`to control materials received for processing; BMPs to minimize contact of particulate matter
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`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
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`equipment; and measures to minimize stormwater contamination at loading/unloading areas.
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`General Permit, Part VII.N.
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`58.
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`For facilities discharging to impaired waterbodies for which the cause of the
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`impairment is a pollutant of concern included in the benchmarks as set forth in Appendix G of
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`the General Permit, a facility must contain the following SWPPP requirements: identification of
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`the impaired waterbody, a list of pollutants of concern that could be discharged causing the
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`impairment, an identification of each area of the facility that generates stormwater discharges
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`associated with industrial activity that creates a reasonable potential to discharges the pollutants
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`of concern, and specific BMPs to minimize the pollutant of concern from being discharged to the
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`impaired waterbody. General Permit, Part III.D.2.a-d.
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`Monitoring and Reporting
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`59.
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`The General Permit requires operators to collect and analyze samples of industrial
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`Case 1:22-cv-04621 Document 1 Filed 06/03/22 Page 15 of 31
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`stormwater discharges resulting from measurable storm events from every outfall at a facility.
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`The General Permit requires such sampling and analysis to occur twice per year. General
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`Permit, Parts IV and VI.
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`60.
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`The General Permit requires that facilities discharging stormwater to impaired
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`waterbodies conduct additional monitoring. Facilities in Sector N3 that are discharging to waters
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`impaired for low dissolved oxygen are required to conduct quarterly monitoring of stormwater
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`discharges. General Permit, Parts IV.F.1.c, IV.F.2, Appx. G.
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`61.
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`The General Permit requires that facilities that have an exceedance of a numeric
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`effluent limit, or an exceedance of a benchmark cut-off concentration for a pollutant of concern
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`to an impaired waterbody (i.e. a pollutant that is associated with the impairment), must report the
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`results of the exceedance(s) and the corrective action(s) taken on a Corrective Action form along
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`with the submission of the DMR reporting that exceedance. General Permit, Parts VI.A.2.b,
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`VI.B (Table VI.1).
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`62.
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`The General Permit also requires permittees to conduct regular inspections of the
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`facility and monitoring of stormwater discharges to ensure the BMPs and SWPPP are effectively
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`minimizing the discharge of pollution through stormwater. General Permit, Part IV. If
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`deficiencies are identified, corrective actions must be taken and documented. General Permit,
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`Part V. Reports of these procedures must be kept with the SWPPP, and certain reports must be
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`submitted to DEC. General Permit, Part VI.
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`Corrective Actions
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`63.
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`The General Permit requires “corrective actions” to improve BMPs when, inter
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`alia, “the benchmark or numeric effluent limit [stormwater] sample results indicate exceedances
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`of the pollutants.” General Permit Part V.A. A discharger must implement additional structural
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`and non-structural BMPs to prevent a recurrence of those exceedances within 12 weeks. General
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`Permit, Part V.A.1. If the exceedances still continue, the discharger must continue implementing
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`additional BMPs. General Permit, Part V.A.4. Corrective actions are also required if there is
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`evidence indicating that stormwater discharges “are causing, have the reasonable potential to
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`cause, or are contributing to a violation of the water quality standards.” General Permit, Part
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`II.C.1.b. A failure to take the necessary and required corrective actions is a violation of the
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`permit. General Permit, Parts V, II.C.1.b.
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`CWA Citizen Enforcement Suits
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`64.
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`Under CWA Section 505(a)(1), 33 U.S.C. § 1365(a)(1), any citizen may
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`commence a civil action in federal court on his own behalf against any person who is alleged to
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`be in violation of an “effluent standard or limitation” under the CWA.
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`65.
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`Such enforcement action under CWA Section 505(a), 33 U.S.C. § 1365(a),
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`includes an action seeking remedies for an unpermitted discharge in violation of CWA
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`Section 301, 33 U.S.C § 1311, as well as for violation of a condition of a permit issued pursuant
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`to CWA Section 402, 33 U.S.C. § 1342. CWA Section 505(f), 33 U.S.C. § 1365(f).
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`66.
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`Declaratory relief in such cases is authorized by 28 U.S.C. § 2201–02 (granting
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`U.S. courts the authority to issue declaratory relief in case of actual controversy and grant further
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`necessary relief based on such a declaration).
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`67.
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`68.
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`Injunctive relief is authorized by CWA Section 505(a), 33 U.S.C. § 1365(a).
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`Violators of the Clean Water Act are also subject to an assessment of civil
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`penalties of up to $59,973 per day per violation. CWA §§ 309(d), 505(a), 33 U.S.C. §§ 1319(d),
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`1365(a); 40 C.F.R. §§ 19.1–19.4.
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`V.
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`STATEMENT OF FACTS
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`Defendant Controls the Industrial Activities at the Facility
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`69.
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`On information and belief, the Defendant was incorporated in 1983 and, since
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`then, has operated a scrap metal yard at 730 Saw Mill River Rd., Yonkers, New York, 10710.
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`70.
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`Because the Defendant controls the industrial activities that take place at the
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`Facility, the Defendant is responsible for managing stormwater associated with those activities at
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`the Facility in compliance with the CWA.
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`71.
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`The Defendant is the person, as defined by CWA Section 502(5), 33 U.S.C.
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`§ 1362(5), responsible for the violations alleged in this Complaint.
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`Defendant’s Industrial Activities Expose Pollutants to Stormwater
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`72.
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`Defendant’s activities at the Facility include but are not limited to the purchase,
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`collection, processing, storage, reshipment, and resale of scrap metal outdoors and the operation
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`and storage of industrial equipment.
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`73.
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`In carrying out these activities at the Facility, Defendant stores and handles
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`materials in a manner that exposes them to precipitation and snowmelt. In particular,
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`Defendant’s crushing, processing, recycling, and storing of scrap metal, iron, and other
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`recyclable wastes, storing waste materials outdoors, and maintaining and storing machinery and
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