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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Civil Action No.
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`____________________________________
`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`AUSTIN POWDER COMPANY,
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`Defendant.
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`COMPLAINT
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`The United States of America, by the authority of the Attorney General and through the
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`undersigned attorneys, acting at the request and on behalf of the Administrator of the United
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`States Environmental Protection Agency (U.S. EPA), files this Complaint against Austin Powder
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`Company (“Austin Powder” or “Defendant”) and alleges as follows:
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`1.
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`NATURE OF ACTION
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`This is a civil action for injunctive relief and penalties brought against Austin
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`Powder for violations of the Clean Water Act (CWA or “Act”), 33 U.S.C. §§ 1251-1388, at its
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`Red Diamond Plant located in McArthur, Ohio (“the Facility”). The United States seeks:
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`(1) injunctive relief to stop Defendant’s ongoing violations of the CWA, including discharges of
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`pollutants in violation of the terms and conditions of Defendant’s National Pollutant Discharge
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`Elimination System (NPDES) permit, and (2) civil penalties for Defendant’s past and ongoing
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`violations of the CWA at the Facility.
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`Case: 2:22-cv-01645-JLG-EPD Doc #: 1 Filed: 03/16/22 Page: 2 of 18 PAGEID #: 2
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. §§ 1331, 1345, and 1355 and CWA Section 309(b), 33 U.S.C. § 1319(b). Venue is
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`proper in this District pursuant to 28 U.S.C. §§ 1391 and 1395, and CWA Section 309(b), 33
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`U.S.C. § 1319(b), because Defendant resides within this District and because the violations that
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`constitute the basis of this Complaint occurred and are occurring at Defendant’s Facility located
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`in the District.
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`3.
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`NOTICE
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`The United States has provided notice of the commencement of this action to the
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`State of Ohio as required by CWA Section 309(b), 33 U.S.C. § 1319(b).
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`4.
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`AUTHORITY
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`The United States Department of Justice has authority to bring this action on
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`behalf of the Administrator of U.S. EPA pursuant to 28 U.S.C. §§ 516 and 519 and CWA
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`Section 506, 33 U.S.C. § 1366.
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`5.
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`of Ohio.
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`DEFENDANT
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`Defendant Austin Powder is an Ohio corporation with its headquarters in the State
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`6.
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`Defendant owns and operates a manufacturing facility located at 430 Powder
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`Plant Road in McArthur, Ohio.
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`7.
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`Defendant is a “person” within the meaning of CWA Sections 311(a)(7) and
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`502(5), 33 U.S.C. §§ 1321(a)(7) and 1362(5), and 40 C.F.R. § 122.2.
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`CLEAN WATER ACT
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`Congress enacted the CWA to “restore and maintain the chemical, physical, and
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`8.
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`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`National Pollutant Discharge Elimination System
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`9.
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`To accomplish this goal, CWA Section 301(a), 33 U.S.C. § 1311(a), prohibits the
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`discharge of any pollutant from a point source to the waters of the United States except as
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`authorized by, and in compliance with, certain enumerated Sections of the CWA, including
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`CWA Section 402, 33 U.S.C. § 1342.
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`10.
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`In order to achieve its objective, the CWA includes, inter alia, the NPDES
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`provisions, which allow pollutants to be discharged to navigable waters only in compliance with
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`an NPDES permit issued by U.S. EPA or an authorized state pursuant to CWA Section 402. 33
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`U.S.C. § 1342.
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`11.
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`CWA Section 502(5), 33 U.S.C. § 1362(5), defines “person” to include an
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`“individual, corporation, partnership, [or] association.”
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`12.
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`CWA Section 502(12), 33 U.S.C. § 1362(12), defines “discharge of a pollutant”
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`to include “any addition of any pollutant to navigable waters from any point source.”
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`13.
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`CWA Section 502(6), 33 U.S.C. § 1362(6), defines “pollutant” as “spoil, solid
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`waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
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`biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
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`cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
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`14.
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`CWA Section 502(7), 33 U.S.C. § 1362(7), defines “navigable waters” as “waters
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`of the United States, including territorial seas.”
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`15.
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`CWA Section 502(14), 33 U.S.C. § 1362(14), defines “point source” as “any
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`discernible, confined and discrete conveyance, including, but not limited to any pipe, ditch,
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`channel, tunnel, conduit, well [or] discrete fissure . . . from which pollutants are or may be
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`discharged.”
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`16.
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`CWA Section 402(a), 33 U.S.C. § 1342(a), provides that the permit-issuing
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`authority may issue a NPDES permit that authorizes the discharge of any pollutant into navigable
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`waters of the United States, upon the condition that such discharge will meet certain specific
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`requirements of the CWA or such other conditions as U.S. EPA determines necessary to carry
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`out the provisions of the CWA. In addition, U.S. EPA may prescribe conditions pertaining to
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`test procedures, data and information collection, reporting, and such other requirements as
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`deemed appropriate by U.S. EPA.
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`17.
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`NPDES permits establish “effluent limitations,” which are defined as “any
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`restriction established by a State or the Administrator on quantities, rates, and concentrations of
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`chemical, physical, biological, and other constituents which are discharged from the point
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`sources into navigable waters.” 33 U.S.C. § 1362(11).
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`18.
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`Effluent limitations can be numeric effluent limitations, which prohibit a facility
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`from exceeding concentration or mass-based limits on pollutants in a discharge into receiving
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`waterbodies.
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`19.
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`Pollutants are subject to different types of numeric effluent limitations, such as
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`maximum, minimum, daily maximum, 7-day average, and monthly average. A pollutant may be
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`subject to multiple limits, such as a daily and a 7-day or monthly average limit.
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`20.
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`Effluent limitations can also be narrative standards, which prohibit a facility from
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`causing unacceptable impacts onto and into receiving waterbodies.
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`21.
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`CWA Section 402(b), 33 U.S.C. § 1342(b), provides that a state may establish and
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`administer its own permit program, and, after U.S. EPA authorizes the state’s program, it may
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`also issue NPDES permits. The State of Ohio requested approval from U.S. EPA to administer
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`its own permit program for discharges into navigable waters within Ohio, and such approval was
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`granted by U.S. EPA on March 11, 1974, 39 Fed. Reg. 26,061 (July 16, 1974).
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`Issuance of Administrative Orders Under the Clean Water Act
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`22.
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`CWA Section 309(a)(3), 33 U.S.C. § 13l9(a)(3), provides that whenever the
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`Administrator finds a person in violation of CWA Section 301(a), 33 U.S.C. § 131l(a), he/she may
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`issue an order requiring that person to comply with the provisions of the CWA. Violation of an order
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`issued under CWA Section 309(a)(3), 33 U.S.C. § 13l9(a)(3), constitutes a violation of CWA
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`Section 301(a), 33 U.S.C. §§ 131l(a)
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`CWA Enforcement Authority
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`23.
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`CWA Section 309(b), 33 U.S.C. § 1319(b), provides that U.S. EPA is authorized
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`to commence a civil action for appropriate relief, including a permanent or temporary injunction
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`for any violation actionable under CWA Section 309(a), 33 U.S.C. § 13l9(a), including violation of
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`any term or condition of an NPDES permit.
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`24.
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`CWA Section 309(d), 33 U.S.C. § 1319(d), as amended by the Federal Civil
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`Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, the Federal Debt Collection
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`Improvement Act of 1996, 31 U.S.C. § 3701, and 40 C.F.R. § 19.4, provides that any person who
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`violates CWA Section 301, 33 U.S.C. § 13l1, is subject to a civil penalty of up to $37,500 per day
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`for each violation occurring between January 12, 2009 and November 2, 2015, and up to $59,973
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`per day for each violation occurring on or after November 3, 2015.
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`FACTUAL BACKGROUND
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`The Red Diamond Plant
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`25.
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`Austin Powder owns and operates the Facility, at which it produces, inter alia,
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`bulk and packaged emulsion explosives, pentaerythritol tetranitrate (PETN), cast boosters, and
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`detonation cords for mining operations. Defendant uses many explosive materials in
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`manufacturing its products, including PETN, cyclotrimethylenetrinitramine (RDX), 2,4,6-
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`trinitrotoluene (TNT), Octahydro-1,3,5,7-tetranitro-1,3,5,7-tetrazocine (HMX), and ammonium
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`nitrate/fuel oil mixtures (ANFO).
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`26.
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`Defendant owns and operates five on-site wastewater treatment plants (WWTPs)
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`that treat sanitary wastewater and/or process wastewater associated with explosives production.
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`27.
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`The wastewaters from the Facility contain “pollutants” as defined by 33 U.S.C.
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`§ 1362(6), including, but not limited to, total suspended solids (TSS), oil and grease, E. coli,
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`five-day Carbonaceous Biochemical Oxygen Demand (CBOD5), chemical oxygen demand
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`(COD), and Ammonia Nitrogen (NH3).
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`28.
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`During times relevant to this Complaint, Austin Powder discharged wastewaters
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`containing “pollutants,” within the meaning of 33 U.S.C. §1362, from its WWTP outfalls and
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`into unnamed tributaries of Raccoon Creek and Elk Fork.
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`29.
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`The outfalls that discharge from the Facility into the unnamed tributaries of
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`Raccoon Creek and Elk Fork are “point sources” within the meaning of the CWA. 33 U.S.C.
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`§ 1362(14).
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`30.
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`The discharges described in Paragraph 28 are “discharges of [] pollutant[s],”
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`within the meaning of CWA Section 502(12), 33 U.S.C. § 1362(12). The unnamed tributaries of
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`Raccoon Creek and Elk Fork Creek are “navigable waters” within the meaning of CWA
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`Section 502, 33 U.S.C. § 1362.
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`NPDES Permit
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`31.
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`On October 29, 2014, Ohio EPA issued NPDES permit No. OH0006173 (the
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`“NPDES Permit”) relating to the Facility, pursuant to CWA Section 402, 33 U.S.C. § 1342. The
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`NPDES Permit became effective on December 1, 2014 and remained in effect until March 1,
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`2020, when an updated NPDES Permit became effective.
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`32.
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`The NPDES Permit authorizes Austin Powder’s Red Diamond Plant to discharge
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`pollutants via eight outfalls (Outfalls 001, 003, 004, 005, 006, 007, 010, and 011), one internal
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`outfall (Outfall 601), and via a sludge monitoring outfall if sludge is applied to land (Outfall
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`581). The NPDES Permit also requires the Facility to monitor within an unnamed tributary of
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`Elk Fork, upstream of Outfall 011, beyond any influence of the discharge from Outfall 011,
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`twice a year (Outfall 801).
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`33.
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`At times relevant to this Complaint, Defendant was authorized to discharge
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`pollutants from the Facility only in compliance with the specific terms and conditions of the
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`NPDES Permit. See NPDES Permit Part III, Para. 15.
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`34.
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`The NPDES Permit includes Monitoring Requirements that require Austin
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`Powder to sample and test its effluent and monitor its compliance with the NPDES Permit’s
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`conditions and applicable regulations, according to specific procedures. Id. at Part I. The
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`NPDES Permit also requires Defendant to file with Ohio EPA a certified Discharge Monitoring
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`Report (DMR) of the results of monitoring and Noncompliance Reports, as appropriate. Id. at
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`Para. 12.
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`35.
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`From January 2013 to the present, Defendant submitted certified DMRs to Ohio
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`EPA that reported hundreds of discharges of pollutants from the Facility that exceeded its
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`permitted effluent limitations for the following pollutants: COD, TSS, oil and grease, E. coli, and
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`CBOD5.
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`36.
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`NPDES Permit Part 3, Para. 5 requires all samples and measurements of the
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`discharge to be representative of the volume and nature of the discharge, and that such samples
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`be analyzed using approved test procedures under 40 C.F.R. Part 136.
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`Stormwater Permits
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`37.
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`Ohio EPA also issued Austin Powder a general permit to discharge stormwater
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`associated with industrial activities from the Facility (General Permit OHR000005), which was
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`replaced with a new general permit on June 1, 2017 (General Permit OHR000006) (collectively,
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`the “Stormwater Permits”).
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`38.
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`In accordance with the Stormwater Permits, Austin Powder developed a
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`Stormwater Pollution Prevention Plan (SWPPP). In the SWPPP, the Facility identified four
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`stormwater outfalls on its property that only discharge stormwater (Outfalls 5001, 5002, 5003
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`and 5004).
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`Environmental Harm
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`39.
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`Elk Fork and certain unnamed tributaries receive discharges from Outfalls 003,
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`006, 007, 010, 011, and stormwater outfalls 5002, 5003, and 5004. The Ohio Environmental
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`Protection Agency’s (“Ohio EPA”) Watershed Assessment Unit has determined that Elk Fork is
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`impaired for coarse sediment, combined biota/habit bioassessments, total dissolved solids, total
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`ammonia, and bacteria.
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`40.
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`Raccoon Creek and certain unnamed tributaries receive discharges from Outfall
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`001 and stormwater outfall 5001. Ohio EPA’s Watershed Assessment Unit has determined that
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`Raccoon Creek is impaired for coarse sediment, combined biota/habit bioassessments, and
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`bacteria.
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`Enforcement History
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`41.
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`Ohio EPA conducted a CWA inspection of the Facility on December 11, 2015.
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`Ohio EPA issued Notices of Violation (NOV) to Defendant on July 15, 2015 and March 23,
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`2016 regarding deficiencies and/or permit violations observed during the inspection or self-
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`reported by Austin Powder.
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`42.
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`U.S. EPA conducted a CWA inspection of the facility from October 24 to
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`October 27, 2016. U.S. EPA issued an inspection report to Defendant on August 28, 2017,
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`identifying regarding deficiencies and/or permit violations observed during the inspection or
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`self-reported by Austin Powder.
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`43.
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`Ohio EPA conducted a reconnaissance of the Facility on March 23, 2017. Ohio
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`EPA issued NOVs to Defendant on April 21, 2017 and November 14, 2017 regarding
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`deficiencies and/or permit violations observed during the reconnaissance or self-reported by
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`Austin Powder.
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`44.
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`U.S. EPA determined that Defendant was in significant non-compliance with its
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`NPDES Permit and Stormwater Permits due to effluent limit exceedances, the presence of
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`multiple discharge outfalls at two of the Facility’s WWTPs, the lack of proper compliance
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`sampling at multiple outfalls, laboratory/sampling deficiencies, and SWPPP deficiencies.
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`45.
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`U.S. EPA finalized an Administrative Order on Consent (AOC) with Austin
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`Powder on April 27, 2018, requiring Austin Powder to come into compliance with its permits
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`and the CWA. The Order enumerated a number of steps Austin Powder was required to comply
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`with to resolve the alleged non-compliance. The AOC required that Austin Powder develop and
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`submit various plans to U.S. EPA for approval to address and correct its noncompliance with its
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`permits and the CWA. The AOC was issued pursuant to CWA Section 309(a), 33 U.S.C.
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`§ 13l9(a)(3).
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`46.
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`Austin Powder completed many of its obligations under the AOC, but failed to
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`comply with other requirements. In particular, Austin Powder failed to submit an acceptable
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`WWTP Compliance Plan.
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`FIRST CLAIM FOR RELIEF
`(Discharges of Pollutants in Violation of the NPDES Permit)
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`47.
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`Plaintiff realleges and incorporates by reference Paragraphs 1 through 46, as if
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`fully set forth herein.
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`48.
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`The NPDES Permit contains effluent limitations for certain enumerated pollutants
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`consisting of concentration limits, loading limits, or both.
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`49.
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`From January 2013 through the present, Austin Powder submitted certified
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`discharge monitoring reports to Ohio EPA identifying hundreds of discharges from its outfalls of
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`the following pollutants in excess of its NPDES Permit effluent limitations: COD, TSS, pH,
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`NH3, total oil and grease, E. coli, and CBOD5.
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`50.
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`Pursuant to the NPDES Permits and CWA Sections 301(a) and 309(a), 33 U.S.C.
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`§§ 1311(a) and 1319(a), each exceedance of an NPDES Permit effluent limitation is a violation
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`of the NPDES Permit and CWA Sections 301(a) and 309(a), 33 U.S.C. §§ 1311(a) and 1319(a).
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`51.
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`Unless restrained by an order of this Court, the violations of the CWA alleged in
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`this First Claim for Relief will continue.
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`52.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`SECOND CLAIM FOR RELIEF
`(Failure to Comply with Laboratory and Sampling Requirements of NPDES Permits)
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`Plaintiff realleges and incorporates by reference Paragraphs 1 through 46, as if
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`53.
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`fully set forth herein.
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`54.
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`The NPDES Permit requires composite sampling to be conducted at Outfall 001
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`for certain enumerated pollutants. NPDES Permit Part I.A. The NPDES Permit states that
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`“Composite Sampling shall be comprised of a series of grab samples collected over a 24-hour
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`period and proportionate in volume to the wastewater flow rate at the time of sampling.”
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`NPDES Permit Part II.E.
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`55.
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`During U.S. EPA’s October 2016 inspection of the Facility, U.S. EPA observed
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`that Austin Powder was using a composite sampler that would obtain a constant sample volume
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`every 20 minutes over a 24-hour timeframe, regardless of wastewater flow (“time composite
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`sampler”). The Facility’s NPDES permit specifies that composite sampling must be
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`proportionate in volume to flow rate. A simple time composite sample is not proportionate in
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`volume to flow.
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`56.
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`The NPDES Permit requires quarterly grab sampling for COD to be conducted at
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`Internal Monitoring Station 601. NPDES Permit Part I,A.8. (pg. 13).
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`57.
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`From at least the 3rd Quarter of 2013 through the 4th Quarter of 2016, Austin
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`Powder did not report quarterly grab sampling for COD at Internal Monitoring Station 601.
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`58.
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`The NPDES Permit requires that test procedures for the analysis of pollutants
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`shall conform to regulation 40 C.F.R. Part 136. NPDES Permit Part III.5.
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`59.
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`Table II of 40 C.F.R. Part 136 requires that samples tested for COD, NH3, Nitrate
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`plus Nitrite, and CBOD5 be preserved prior to sample analysis to less than 6º Celsius and
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`samples tested for E. coli be preserved prior to sample analysis to less than 10º Celsius.
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`60.
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`During U.S. EPA’s October 2016 inspection of the Facility, U.S. EPA observed
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`that the Outfall 001 composite sampler did not have a refrigerated sample container, but instead
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`Austin Powder simply kept samples in a cooler with ice manually added by Facility employees.
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`Austin Powder did not have a thermometer in the sample cooler to ensure that the sample was
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`kept at the corresponding temperature requirements for all of the sampled pollutant parameters.
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`61.
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`Table II of 40 C.F.R. Part 136 provides that oil/grease samples shall be collected
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`in glass containers.
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`62.
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`From at least May 2013 through August 2018, Austin Powder used plastic
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`containers for oil/grease sampling.
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`63.
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`Each failure by Austin Powder to collect samples at the frequency and/or in the
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`method required by the NPDES Permit is a violation of the NPDES Permit and CWA Sections
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`301(a) and 309(a), 33 U.S.C. §§ 1311(a) and 1319(a).
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`64.
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`Unless restrained by an order of this Court, the violations of the CWA alleged in
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`this Second Claim for Relief will continue.
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`65.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`12
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`THIRD CLAIM FOR RELIEF
`(Failure to Maintain and Operate the WWTPs in
`Good Working Order and as Efficiently as Possible)
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`Plaintiff realleges and incorporates by reference Paragraphs 1 to 46, as if fully set
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`66.
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`forth herein.
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`67.
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`The NPDES Permit requires that the “permittee shall maintain in good working
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`order and operate as efficiently as possible all treatment or control facilities or systems
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`installed or used by the permittee necessary to achieve compliance with the terms and
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`conditions of this permit.” NPDES Permit Part III.3.A.
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`68.
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`During U.S. EPA’s October 2016 inspection of the Facility, U.S. EPA learned
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`that Austin Powder was removing waste-activated sludge from its WWTPs on an annual basis.
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`Removal of waste activated sludge annually is insufficiently frequent and may contribute to
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`effluent limit exceedances.
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`69.
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`Defendant’s removal of waste activated sludge from its WWTPs on an annual
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`basis constitutes a violation of the NPDES Permits requirement that the Facility operate all
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`treatment or control facilities or systems as efficiently as possible. NPDES Permit
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`Part III.3.A.
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`70.
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`Austin Powder’s removal of waste activated sludge from its WWTPs on only an
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`annual basis is a violation of the NPDES Permit and CWA Sections 301(a) and 309(a), 33 U.S.C.
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`§§ 1311(a) and 1319(a).
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`13
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`71.
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`Unless restrained by an order of this Court, the violations of the CWA alleged in
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`this Third Claim for Relief will continue.
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`72.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`FOURTH CLAIM FOR RELIEF
`(Failure to Develop, Maintain, and Implement a Stormwater Pollution Prevention Plan)
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`73.
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`Plaintiff realleges and incorporates by reference Paragraphs 1 through 46, as if
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`fully set forth herein.
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`74.
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`Section 5 of Defendant’s Stormwater Permits requires preparation of a SWPPP
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`and enumerates certain mandatory elements for the SWPPP. Stormwater Permits Section 5.
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`75.
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`Defendant failed to develop, maintain, and implement an adequate SWPPP for the
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`Facility, in violation of its Stormwater Permits and CWA Sections 301(a) and 309(a), 33 U.S.C.
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`§§ 1311(a) and 1319(a), including by:
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`a. failing to identify locations of SWPPP outfalls, impaired waters, and industrial
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`areas (Stormwater Permits ¶ 5.1.3);
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`b. failing to identify SWPPP team members (Stormwater Permits ¶ 5.1.1); and
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`c. failing to include a complete description of erosion and sediment controls
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`(Stormwater Permits ¶ 5.1.4).
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`76.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`FIFTH CLAIM FOR RELIEF
`(Failure to Comply With Administrative Order on Consent)
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`77.
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`Plaintiff realleges and incorporates by reference Paragraphs 1 to 46, as if fully set
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`forth herein.
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`78.
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`On April 27, 2018, U.S. EPA issued Administrative Order on Consent No.
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`OH0006173 (the “AOC”) to Austin Powder to address alleged noncompliance with the NPDES
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`Permit, the Stormwater Permits, and the CWA at the Facility.
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`79.
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`The AOC was issued under CWA Section 309(a), 33 U.S.C. § 1319(a)(3). CWA
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`Section 309(a)(3) states that whenever the Administrator finds a person in violation of CWA
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`Section 301(a), 33 U.S.C. § 131l(a), he/she may issue an order requiring that person to comply
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`with the provisions of the CWA.
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`80.
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`The AOC required, inter alia, that Austin Powder submit WWTP Compliance
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`Plans for U.S. EPA approval to address noncompliance with the NPDES Permit and the CWA,
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`including noncompliance specified in the AOC, related to the Outfall 010 WWTP and Outfall
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`011 WWTP at the Facility. See AOC ¶¶ 80.g and 80.h.
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`81.
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`The AOC required that the WWTP Compliance Plans describe the actions Austin
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`Powder would undertake to address and correct alleged noncompliance at each WWTP. See id.
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`at ¶ 80.
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`82.
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`The AOC required that the WWTP Compliance Plans include an implementation
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`schedule for each component of the plan, with a final completion date of no later than May 31,
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`2021. See id. at ¶ 81.
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`83.
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`Austin Powder failed to comply with AOC Paragraphs 80-81, by failing to submit
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`an adequate WWTP Compliance Plan detailing how it would come into compliance with its
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`NDPES Permit at Outfall 010 WWTP and Outfall 011 WWTP, despite several attempts to do so.
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`84.
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`Defendant’s failure to comply with the AOC constitutes a violation of CWA
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`Section 301(a), 33 U.S.C. §§ 131l(a). See also AOC ¶ 110.
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`85.
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`Unless restrained by an order of this Court, the violations of the CWA alleged in
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`this Fifth Claim for Relief will continue.
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`86.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`SIXTH CLAIM FOR RELIEF
`(Discharges from Unpermitted Point Sources)
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`87.
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`Plaintiff realleges and incorporates by reference Paragraphs 1 to 46, as if fully set
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`forth herein.
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`88.
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`CWA Section 301(a), 33 U.S.C. § 1311(a), prohibits the discharge of pollutants,
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`except in compliance with, inter alia, the NPDES permitting provisions of 33 U.S.C. § 1342.
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`89.
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`Austin Powder’s Outfall 003 WWTP discharges pollutants through two effluent
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`discharge pipes. Austin Powder’s NPDES Permit provided only a single permitted point source
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`for Outfall 003 WWTP until July 2018.
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`90.
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`Austin Powder’s Outfall 005 WWTP discharges pollutants through two effluent
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`discharge pipes. Austin Powder’s NPDES Permit provided only a single permitted point source
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`for Outfall 005 WWTP until June 2019.
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`91.
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`Both Outfall 003 WWTP and Outfall 005 WWTP discharged pollutants through
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`an unpermitted point source in violation of CWA Section 301(a), 33 U.S.C. § 1311(a).
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`92.
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`As provided in CWA Section 309(d), 33 U.S.C. § 1319(d), and pursuant to the
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`Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. § 3701, and 40 C.F.R.
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`§ 19.4, each of the violations alleged in this claim subjects Defendant to civil penalties of up to
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`$37,500 for each violation occurring on or after January 19, 2009 through November 2, 2015,
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`and $59,973 for each violation occurring after November 2, 2015.
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`
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`PRAYER FOR RELIEF
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`
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`Wherefore, based on the allegations set forth above, the United States requests that this
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`Court:
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`1.
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`Permanently enjoin Austin Powder from operating the Facility except in
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`accordance with the requirements of CWA Section 301, 33 U.S.C. § 1311, and Defendant’s
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`NPDES Permit and Stormwater Permits;
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`2.
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`Order Austin Powder to take all steps necessary or appropriate to ensure
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`compliance with the foregoing laws, regulations and permits and to remedy, mitigate, and offset
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`the harm to public health and the environment caused by the violations of the CWA alleged
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`herein;
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`3.
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`Assess a civil penalty against Austin Powder in an amount up to $37,500 per day
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`for each violation of the CWA occurring between January 13, 2009 and November 2, 2015, and
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`up to $59,973 per day for each violation occurring on or after November 3, 2015, with each
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`violation on each day in which a violation occurs constituting a separate violation;
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`4.
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`5.
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`Award the United States its costs in this action; and
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`Grant such other relief as the Court deems just and proper.
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`Respectfully submitted,
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`FOR THE UNITED STATES OF AMERICA
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`TODD KIM
`Assistant Attorney General
`Environment and Natural Resources Division
`U.S. Department of Justice
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`
` , Trial Attorney
`JEFFREY A. SPECTOR
`Senior Attorney
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, DC 20044-7611
`(202) 514-4432
`
`KENNETH L. PARKER
`United States Attorney
`Southern District of Ohio
`MATTHEW HORWITZ
`Civil Chief
`Southern District of Ohio
`221 E. Fourth Street, Suite 400
`Cincinnati, OH 45202
`(513) 684-6823
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`OF COUNSEL:
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`SUSAN PROUT
`Associate Regional Counsel
`EPA Region 5
`77 West Jackson Blvd.
`Chicago, IL 60604-3590
`(312) 353-1029
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`GRACIELA GARCIA PENDLETON
`Attorney-Advisor
`U.S. Environmental Protection Agency
`OECA – OCE – Water Enforcement Division
`1200 Pennsylvania Avenue, N.W.
`Washington, DC 20460
`(202) 564-2588
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