Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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`UNITED STATES OF AMERICA, and the
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`PENNSYLVANIA DEPARTMENT OF
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`ENVIRONMENTAL PROTECTION
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`Plaintiffs,
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`v.
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`LIBERTAS COPPER, LLC, d/b/a
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`HUSSEY COPPER,
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`Defendant.
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`__________________________________________)
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`COMPLAINT
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`Civil Action No.
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`The United States of America (“United States”), by authority of the Attorney General of
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`the United States and on behalf of the U.S. Environmental Protection Agency (“EPA”), and the
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`Commonwealth of Pennsylvania, Department of Environmental Protection (“PADEP” or the
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`“Department”), (collectively, “Plaintiffs”) file this Complaint and allege as follows:
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`INTRODUCTION
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`1.
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`This is a civil action brought pursuant to Sections 309(b) and (d) of the Federal
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`Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. § 1319(b) and (d), and
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`Sections 601 and 605 of the Pennsylvania Clean Streams Law (“PCSL”), 35 Pa. Cons. Stat. §§
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`691.601 and 691.605. Defendant Libertas Copper, LLC, d/b/a Hussey Copper (“Libertas
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`Copper” or “Defendant”) has violated the CWA and the PCSL by discharging pollutants to the
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`Ohio River without a permit, in violation of Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
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`and Sections 301 and 307 of the PCSL, 35 Pa. Cons. Stat. §§ 691.301 and 691.307, and by
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`violating the conditions and limitations of National Pollutant Discharge Elimination System
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`1
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`2:21-cv-1016
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 2 of 18
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`(“NPDES”) permit PA0000566 issued to Defendant by PADEP pursuant to Section 402(b) of the
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`CWA, 33 U.S.C. § 1342(b), and Section 307 of the PCSL, 35 Pa. Cons. Stat.. § 691.307.
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`2.
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`Plaintiffs seek permanent injunctive relief and the assessment of civil penalties
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`against Defendant to address its illegal discharges of pollutants, as authorized by Sections 309(b)
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`and (d) of the CWA, 33 U.S.C. § 1319(b) and (d), and Sections 601 and 605 of the PCSL, 35 Pa.
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`Cons. Stat. §§ 691.601 and 691.605.
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`JURISDICTION AND VENUE
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`3.
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`This Court has jurisdiction over the subject matter of this action under Section
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`309(b) of the Clean Water Act, 33 U.S.C. § 1319(b), and under 28 U.S.C. §§ 1331, 1345, 1355,
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`and 1367.
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`4.
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`This Court has supplemental jurisdiction over the PADEP state law claims alleged
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`herein pursuant to 28 U.S.C. § 1367(a) because the state claims are so related to the federal
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`claims as to form part of the same case or controversy.
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`5.
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`Venue is proper in the Western District of Pennsylvania pursuant to 28 U.S.C. §§
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`1391(b) and (c) and 1395(a), as well as Section 309(b) of the Clean Water Act, 33 U.S.C.
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`§ 1319(b), because it is the judicial district in which Defendant is doing business and in which
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`the violations alleged in the Complaint occurred.
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`6.
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`As signatory of this Complaint, PADEP has actual notice of commencement of
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`this action as required by Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
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`DEFENDANT
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`7.
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`Libertas Copper is a Delaware Limited Liability Company that owns and operates
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`a copper smelting facility (“Facility”) with its principal place of business at 100 Washington
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`Street, Leetsdale, Pennsylvania 15056.
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`STATUTORY AND REGULATORY BACKGROUND
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`Clean Water Act
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`8.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the “discharge of any
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`pollutant by any person,” to waters of the United States, except, inter alia, in compliance with an
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`NPDES permit issued by EPA or an authorized state pursuant to Section 402 of the CWA, 33
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`U.S.C. § 1342.
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`9.
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`Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines “discharge of a
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`pollutant” to include “any addition of any pollutant to navigable waters from any point source.”
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`10.
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`Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines “pollutant” to include,
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`inter alia, chemical and industrial waste.
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`11.
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`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines “navigable waters” to
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`mean “the waters of the United States, including the territorial seas.”
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`12.
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`“Waters of the United States” has been defined to include, inter alia, “[a]ll waters
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`which are currently used, were used in the past, or may be susceptible to use in interstate or
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`foreign commerce . . . .” See, e.g., 40 C.F.R. § 122.2 (1993); 40 C.F.R. § 120.2 (2020).
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`13.
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`Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines “point source” as
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`“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,
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`channel, tunnel, [or] conduit . . . from which pollutants are or may be discharged.”
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`14.
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`Section 402 of the CWA, 33 U.S.C. § 1342, provides that the permit-issuing
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`authority may issue an NPDES permit that authorizes the discharge of any pollutant to waters of
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`the United States, upon the condition that such discharge will meet all applicable requirements of
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`the CWA and such other conditions as the permitting authority determines necessary to carry out
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`the provisions of the CWA.
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`15.
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`At all relevant times, PADEP has been authorized by EPA pursuant to Section
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`402(b) of the CWA, 33 U.S.C. § 1342(b), to administer an NPDES permit program for regulating
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`the discharges of pollutants to navigable waters within the jurisdiction of the Commonwealth.
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`16.
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`Section 402(a)(2) of the CWA, 33 U.S.C. § 1342(a)(2), directs the Administrator
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`to prescribe conditions and limitations, including effluent limitations, for NPDES permits to
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`assure compliance with the requirements of the CWA. 33 U.S.C. § 1342(a)(2); see also 33
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`U.S.C. § 1311. Effluent limitations, as defined in Section 502(11) of the CWA, 33 U.S.C. §
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`1362(11), are restrictions on quantity, rate, and concentration of chemical, physical, biological,
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`and other constituents that are discharged from point sources. Pursuant to Section 402(a)(2), the
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`regulatory authority may prescribe such conditions and limitations.
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`17.
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`Section 301(b) of the CWA, 33 U.S.C. § 1311(b), directs the Administrator to set
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`effluent limitations for categories and classes of point sources based on the best practicable
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`control technology or the best available technology economically achievable for such category or
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`class. In 1983, EPA set effluent limitations guidelines (“ELGs”) for discharges from copper-
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`forming point sources. 48 Fed. Reg. 36,942 (Aug. 15, 1983). EPA amended the regulation in
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`1986. See 40 C.F.R. Part 468; 51 Fed. Reg. 7,568 (Mar. 5, 1986). In 1985, EPA set ELGs for the
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`metal molding and casting industry. See 40 C.F.R. Part 464; 50 Fed. Reg. 45,212 (Oct. 30, 1985).
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`The ELGs prescribe “maximum for any 1 day” and “maximum for monthly average” numeric
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`effluent limitations for copper, chromium, nickel, oil and grease, lead, total suspended solids
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`(“TSS”), pH, and zinc. Discharges with a pH above or below the range set forth in the applicable
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`ELGs (within the range of 7.5 to 10.0 at all times) are violations of the daily maximum or daily
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`minimum limitations in Defendant’s NPDES permit. Pursuant to Section 301(b), the regulatory
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`authority may set such effluent limitations.
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`18.
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`Section 309(b) of the CWA, 33 U.S.C. § 1319(b), authorizes civil actions for
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`appropriate relief, including a permanent or temporary injunction, against any person who
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`violates Section 301 of the CWA, 33 U.S.C. § 1311, or violates any permit condition or
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`limitation in a permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
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`19.
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`Section 309(d) of the CWA, 33 U.S.C. § 1319(d), provides that any person who
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`violates any permit condition or limitation in a permit issued pursuant to Section 402 of the
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`CWA, 33 U.S.C. § 1342, shall be subject to a civil penalty payable to the United States of up to
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`$25,000 per day for each violation.
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`20.
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`Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990,
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`28 U.S.C. § 2461 note (as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C.
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`§ 3701 note); the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,
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`28 U.S.C. § 2461 note; and 40 C.F.R. § 19.4 (Feb. 6, 2019), EPA may seek civil penalties of up
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`to $37,500 per day for each violation that occurred between January 12, 2009, and November 2,
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`2015, and up to $54,833 per day for each violation that occurred after November 2, 2015.
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`21.
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`The U.S. Attorney General and the Department of Justice have authority to bring
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`this action on behalf of EPA pursuant to Section 506 of the CWA, 33 U.S.C. § 1366.
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`Pennsylvania Clean Streams Law and Regulations
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`22.
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`Sections 301 and 307 of the PCSL, 35 Pa. Cons. Stat. §§ 691.301 and 691.307,
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`prohibit the discharge by any person of any industrial wastes into waters of the Commonwealth
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`of Pennsylvania, except, inter alia, in compliance with a permit issued by PADEP pursuant to
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`Section 307 of the PCSL, 35 Pa. Cons. Stat. § 691.307, and PADEP’s implementing regulations
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`adopted by the Pennsylvania Environmental Quality Board (“EQB”). See 25 Pa. Code Chapters
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`91, 92a, 93, 95, and 96.
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`23.
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`Section 92a.9 of the regulations adopted by the Pennsylvania EQB, 25 Pa. Code §
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`92a.9, provides that an NPDES Permit satisfies the permit requirement of Section 307 of the
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`PCSL, 35 Pa. Cons. Stat. § 691.307.
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`24.
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`Section 95.2(2)(i) of the regulations adopted by the Pennsylvania EQB provides
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`that “[a]t no time [may oil-bearing wastewaters] cause a film or sheen upon or discoloration of
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`the waters of this Commonwealth or adjoining shoreline.” 25 Pa. Code § 95.2(2)(i).
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`25.
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`Under Section 307(c) of the PCSL, a discharge of industrial wastes without a
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`permit or contrary to the terms and conditions of a permit or contrary to PADEP’s regulations
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`constitutes a statutory nuisance. 35 Pa. Cons. Stat. § 691.307(c).
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`26.
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`Under Section 3 of the PCSL, a discharge of industrial wastes or any substance
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`into the waters of the Commonwealth, which constitutes or contributes to pollution or creates a
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`danger of pollution is a public nuisance. 35 Pa. Cons. Stat. § 691.3.
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`27.
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`Under Section 1 of the PCSL, “pollution” means the contamination of any waters
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`of the Commonwealth that is likely to render such waters harmful, detrimental or injurious to
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`public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural,
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`recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other
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`aquatic life, including, but not limited to such contamination by the discharge of any substances
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`into such waters. 35 Pa. Cons. Stat. § 691.1.
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`28.
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`Section 601 of the PCSL, 35 Pa. Cons. Stat. § 691.601, provides in pertinent part:
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`“Any activity or condition declared by this act to be a nuisance or which is otherwise in violation
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`of this act, shall be abatable in the manner provided by law or equity for the abatement of public
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`nuisances.”
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`29.
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`Section 611 of the PCSL, 35 Pa. Cons. Stat. § 691.611, provides in pertinent part:
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`It shall be unlawful to fail to comply with any rule or regulation of the department
`or to fail to comply with any order or permit or license of the department, to violate
`any of the provisions of this act or rules and regulations adopted hereunder, or any
`order or permit or license of the department, [or] to cause air or water pollution . .
`. . Any person or municipality engaging in such conduct shall be subject to the
`provisions of Sections 601, 602 and 605.
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`30.
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`Section 605 of the PCSL, 35 Pa. Cons. Stat. § 691.605, provides in pertinent part:
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`In addition to proceeding under any other remedy available at law or in equity for
`a violation of a provision of this act, rule, regulation, order of the department, or a
`condition of any permit issued pursuant to this act, the department, after hearing,
`may assess a civil penalty upon a person or municipality for such violation. Such a
`penalty may be assessed whether or not the violation was willful. The civil penalty
`so assessed shall not exceed ten thousand dollars ($10,000) per day for each
`violation.
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`GENERAL ALLEGATIONS
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`Defendant’s Operations and the Facility
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`31.
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`Defendant owns and operates its Facility at 100 Washington Street, Leetsdale,
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`Pennsylvania, where it engages in copper melting, casting, and rolling.
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`32.
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`Defendant was formed in November 2011 when Patriarch Partners, LLC, a
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`private equity firm, acquired substantially all assets of Hussey Copper, Ltd. (“Hussey Copper”),
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`including the Facility, out of bankruptcy. Defendant’s acquisition of Hussey Copper closed on
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`December 15, 2011. Following the acquisition, Hussey Copper continued to operate under the
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`name HCL Liquidation Ltd. until on or about August 1, 2016, when a Certificate of Cancellation
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`of Limited Partnership was filed with the Commonwealth of Pennsylvania’s Bureau of
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`Corporations.
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`33.
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`34.
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`Defendant has owned and operated the Facility since acquiring Hussey Copper.
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`Outfall 001 is a 30-inch-diameter concrete pipe from which wastewater and
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`runoff is discharged to the Ohio River. Outfall 001 receives storm water from the northern side
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`of the Facility, non-contact cooling water, and treated process water from Internal Monitoring
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`Point 101. Outfall 001 is a point source within the meaning of Section 502(14) of the CWA, 33
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`U.S.C. § 1362(14), and Section 92a.2 of PADEP’s regulations, 25 Pa. Code § 92a.2.
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`35.
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`Internal Monitoring Point 101 discharges treated process wastewater from
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`Defendant’s copper production lines, including its direct chill casters, annealing furnaces,
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`cleaning lines, and hot rolling mill, after the wastewater has been treated at Defendant’s onsite
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`waste treatment plant. As provided for in 40 C.F.R. § 122.45(h), to ensure compliance with the
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`applicable ELGs, effluent limitations have been imposed on this internal waste stream because it
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`is impractical or infeasible to impose these effluent limitations at the point of discharge (i.e.,
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`Outfall 001), where this stream is mixed with other waste streams and cooling water streams,
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`thereby diluting the wastewater. Certain pollutants, such as copper, are monitored at both
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`Internal Monitoring Point 101 and Outfall 001 because they occur in multiple waste streams that
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`are commingled at Outfall 001.
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`36.
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`At all times relevant to this Complaint, Defendant discharged wastewater and
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`storm water that contained various “pollutants,” as that term is defined in Section 502(6) of the
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`CWA, 33 U.S.C. § 1362(6), and 40 C.F.R. § 122.2, and Section 92a.2 of PADEP’s regulations,
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`25 Pa. Code § 92a.2, to the Ohio River. These pollutants include copper, chromium, nickel, oil
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`and grease, lead, pH, TSS, and zinc. See Appendix A.
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`37.
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`At all times relevant to this Complaint, Defendant discharged wastewater, oil-
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`bearing wastewater, and storm water associated with industrial activity, all of which constitute
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`“industrial waste” as that term is defined by Section 1 of the PCSL, 35 Pa. Cons. Stat. § 691.1, to
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`the Ohio River.
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`38.
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`The Ohio River is a “navigable water” as that term is defined in CWA Section
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`502(7), 33 U.S.C. § 1362(7), and a “water of the Commonwealth” as that term is defined in
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`Section 1 of the PCSL, 35 Pa. Cons. Stat. § 691.1.
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`39.
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`Defendant is a “person” as defined in CWA Section 502(5), 33 U.S.C. § 1362(5),
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`and Section 1 of the PCSL, 35 Pa. Cons. Stat. § 691.1.
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`40.
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`At all times relevant to this Complaint, Defendant has done business in the
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`Western District of Pennsylvania.
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`Permitting Background
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`41.
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`From November 1, 2016, to the present, Defendant’s discharges have occurred
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`under NPDES Permit No. PA0000566.
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`42.
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`Defendant’s acquisition of Hussey Copper occurred on December 15, 2011. On
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`December 16, 2011, Defendant submitted an NPDES permit transfer application to the
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`Department. The Department was unable to transfer the permit application because the 2001
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`Permit was administratively extended. Therefore, from December 15, 2001, through October 31,
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`2016, Defendant operated the Facility without an NPDES permit issued under its name, although
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`Defendant operated the Facility as though the 2001 Permit were still in effect.
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`43.
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`From December 15, 2011, through October 31, 2016, Defendant submitted
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`Discharge Monitoring Reports (“DMRs”) to PADEP and EPA. Hussey Copper’s prior permit
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`had required these submissions on a monthly basis, based on weekly sampling of discharges, for
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`evaluation of Hussey Copper’s compliance with its effluent limitations.
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`Hussey Copper’s Permit Status Before Defendant’s Acquisition
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`44.
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`On May 25, 2001, PADEP issued NPDES Permit No. PA0000566 to Hussey
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`Copper, effective June 1, 2001 (the “2001 Permit”). The 2001 Permit expired on May 25, 2006.
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`45.
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`Hussey Copper submitted a timely NPDES permit renewal application on
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`November 23, 2005, and submitted supplements to the application on February 28, 2006, and
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`March 26, 2007 (“Permit Renewal Application”).
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`46.
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`DMRs submitted by Hussey Copper showed that it failed to comply with its
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`effluent limitations for, inter alia, copper, TSS, and pH at Outfall 001 and Internal Monitoring
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`Point 101 on multiple occasions beginning in August 2005.
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`47.
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`Due to technical deficiencies in the Permit Renewal Application and Hussey
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`Copper’s continuing non-compliance with the terms of the 2001 Permit, PADEP did not renew
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`the 2001 Permit upon submission of the Permit Renewal Application. Section 609 of the PCSL,
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`35 Pa. Cons. Stat. § 691.609, provides that PADEP shall not issue, renew, or amend an NPDES
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`permit if it finds that a permit applicant has failed and continues to fail to comply with, inter alia,
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`the terms of an existing NPDES permit.
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`48.
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`Instead, PADEP attempted to negotiate a Consent Order and Agreement (“COA”)
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`with Hussey Copper to address alleged violations of the 2001 Permit and the PCSL and ensure
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`future compliance with permit terms.
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`49. While negotiations were ongoing, PADEP administratively extended the 2001
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`Permit so that its terms and conditions would remain in effect until an agreement was reached
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`and the permit was renewed.
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`50.
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`On May 5, 2010, PADEP sent a draft COA to Hussey Copper with a draft NPDES
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`permit attached. PADEP and Hussey Copper did not reach agreement on the terms of the COA,
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`and the permit was never renewed prior to Hussey Copper’s bankruptcy and acquisition.
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`Post-Acquisition Permitting Status
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`51.
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`In conjunction with its acquisition of Hussey Copper, Defendant requested that
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`PADEP transfer the 2001 Permit to Defendant.
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`52.
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`PADEP informed Defendant that it could not transfer an administratively
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`extended NPDES permit to a new owner.
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`53.
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`PADEP continued to try to negotiate the COA with Defendant to address past
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`violations at the facility and ensure future compliance with permit terms, but PADEP and
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`Defendant were not able to reach agreement on the terms of the COA.
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`54.
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`From the time of its acquisition of Hussey Copper on December 15, 2011, until a
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`permit was issued to Defendant on November 1, 2016, Defendant continued to operate the
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`Facility and submit DMRs to PADEP under the terms required by the 2001 Permit.
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`55.
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`From December 15, 2011, through October 31, 2016, Defendant discharged
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`wastewater and storm water that contained various “pollutants” as that term is defined in Section
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`502(6) of the CWA, 33 U.S.C. § 1362(6), and 40 C.F.R. § 122.2, and Section 92a.2 of PADEP’s
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`regulations, 25 Pa. Code § 92a.2, into the Ohio River. These pollutants include copper,
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`chromium, nickel, oil and grease, lead, pH, TSS, and zinc.
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`56.
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`From December 15, 2011, through October 31, 2016, Defendant discharged
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`wastewater, oil-bearing wastewater, and storm water associated with industrial activity, all of
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`which constitute “industrial waste” as that term is defined by Section 1 of the PCSL, 35 Pa.
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`Cons. Stat. § 691.1, to the Ohio River.
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`57.
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`Even if the terms of the 2001 Permit had been in place during the period from
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`December 15, 2011, through October 31, 2016, Defendant discharged “pollutants,” as defined in
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`Section 502(6) of the CWA, 33 U.S.C. § 1362(6), and 40 C.F.R. § 122.2, and Section 92a.2 of
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`PADEP’s regulations, 25 Pa. Code § 92a.2, and “industrial waste” as that term is defined by
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`Section 1 of the PCSL, 35 Pa. Cons. Stat. § 691.1, to the Ohio River during that time in excess of
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`the limitations established in the 2001 Permit. These pollutants include copper, chromium,
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`nickel, oil and grease, lead, pH, TSS, and zinc. See Appendix A.
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`Violations of 2016 Permit
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`58.
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`On October 21, 2016, PADEP issued Defendant NPDES Permit No. PA0000566,
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`which became effective November 1, 2016, and expires on October 31, 2021 (the “2016
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`Permit”). The 2016 Permit authorizes certain discharges of pollutants to the Ohio River subject
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`to the conditions and limitations set forth therein.
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`59.
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`The 2016 Permit includes effluent limitations prohibiting discharges of specified
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`pollutants at Outfall 001 and Internal Monitoring Point 101 in excess of numeric monthly
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`average, daily maximum, and/or daily minimum limits.
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`60.
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`Since the November 1, 2016, effective date of the 2016 Permit, Defendant has
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`discharged pollutants in excess of the limitations established in the 2016 Permit. These pollutants
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`include copper, pH, and TSS. See Appendix A.
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`61.
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`Defendant reported these violations to PADEP and EPA in monthly DMRs, and it
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`certified the accuracy of its data on each DMR.
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`FIRST FEDERAL CLAIM FOR RELIEF
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`Unlawful Discharges of Pollutants Without a Permit
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`62.
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`63.
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`Paragraphs 1–61 are realleged and incorporated herein by reference.
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`From December 2011 to October 2016, Defendant discharged pollutants to the
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`Ohio River from a point source without obtaining an NPDES permit pursuant to Section 402 of
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`the CWA, 33 U.S.C. § 1342.
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`64.
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`Each discharge of pollutants without an NPDES permit (i.e., every discharge that
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`occurred at the Facility between December 2011 and the effective date of the 2016 Permit on
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`November 1, 2016) constitutes a violation of Section 301 of the CWA, 33 U.S.C. § 1311.
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 13 of 18
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`65.
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`Even if the terms of the 2001 Permit had been in place during the period from
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`November 5, 2013, through October 31, 2016, Defendant exceeded effluent limitations at Outfall
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`001 on more than 50 occasions and effluent limitations at Internal Monitoring Point 101 on more
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`than 120 occasions. See Appendix A1.
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`66.
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`Even if the terms of the 2001 Permit had been in place during the period from
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`November 5, 2013, through October 31, 2016, Defendant violated the narrative standard
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`prohibiting discharges of oil in harmful quantities on more than 150 occasions. See Appendix
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`A2.
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`67.
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`Pursuant to Section 309(d) of the CWA, 33 U.S.C. § 1319(d), and 40 C.F.R. §
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`19.4, Defendant is liable for civil penalties of up to $37,500 per day for each violation that
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`occurred between November 5, 2013, and November 2, 2015, inclusive, and up to $54,833 per
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`day for each violation that occurred between November 3, 2015, and October 31, 2016,
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`inclusive.
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`FIRST COMMONWEALTH CLAIM FOR RELIEF
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`Unlawful Discharges of Pollutants Without a Permit
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`68.
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`69.
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`Paragraphs 1–67 are realleged and incorporated herein by reference.
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`On numerous occasions since 2014, Defendant discharged pollutants, which
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`constitute “industrial waste” as that term is defined by Section 1 of the PCSL, 35 Pa. Cons. Stat.
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`§ 691.1, to the Ohio River without obtaining an NPDES Permit for these discharges, in violation
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`of Sections 301 and 307 of the PCSL, 35 Pa. Cons. Stat. §§ 691.301 and 691.307.
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`70.
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`The violations committed by the Defendant constitute statutory nuisances under
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`Sections 3 and 307(c) of the PCSL, 35 Pa. Cons. Stat. §§ 691.3 and 691.307(c), public nuisances,
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`and unlawful conduct under Section 611 of the PCSL, 35 Pa. Cons. Stat. § 691.611.
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 14 of 18
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`71.
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`Pursuant to Section 605 of the PCSL, 35 Pa. Cons. Stat. § 691.605, Defendant is
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`liable for civil penalties of up to $10,000 per day for each such violation.
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`SECOND FEDERAL CLAIM FOR RELIEF
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`Violations of NPDES Permit – November 2016 to Present
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`Paragraphs 1–71 are realleged and incorporated herein by reference.
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`From November 1, 2016, to the present, Defendant’s operation of the Facility has
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`72.
`
`73.
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`been subject to the requirements of the 2016 Permit.
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`74.
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`The 2016 Permit contains effluent limitations for multiple pollutants, including
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`copper, oil and grease, pH, and TSS.
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`75.
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`From November 1, 2016, to the present, Defendant has exceeded the effluent
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`limitations at Internal Monitoring Point 101 on more than 30 occasions. Defendant has exceeded
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`the effluent limitations at Outfall 001 on more than 20 occasions. See Appendix B1.
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`76.
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`Part A, Additional Requirements #2 of the 2016 Permit prohibits discharges of oil
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`and grease in amounts that cause a film or sheen upon or discoloration of the receiving waters.
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`77.
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`From November 1, 2016, to the present, Defendant has discharged oil from
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`Outfalls 001 and 002 in an amount that created a sheen upon the receiving water on more than
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`120 occasions. See Appendix B2.
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`78.
`
`79.
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`Unless enjoined, Defendant’s violations will continue.
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`Pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b), Defendant is liable
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`for permanent injunctive relief.
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`80.
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`Pursuant to Section 309(d) of the CWA, 33 U.S.C. § 1319(d), and 40 C.F.R. §
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`19.4, Defendant is liable for civil penalties of up to $54,833 per day for each violation that
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`occurred on or after November 1, 2016.
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 15 of 18
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`SECOND COMMONWEALTH CLAIM FOR RELIEF
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`Violation of NPDES Permit – November 2016 to Present
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`81.
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`82.
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`Paragraphs 1–80 are realleged and incorporated herein by reference.
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`On numerous occasions beginning in November 2016, Defendant discharged
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`pollutants and industrial waste in excess of and in violation of the effluent limitations set for
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`Outfall 001 and Internal Monitoring Point 101 in the 2016 Permit.
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`83.
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`On numerous occasions beginning in November 2016, Defendant discharged oil
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`in violation of the prohibition on oil discharges that cause a sheen upon receiving waters in the
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`2016 Permit.
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`84.
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`The violations committed by the Defendant constitute statutory nuisances under
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`Sections 3 and 307(c) of the PCSL, 35 Pa. Cons. Stat. §§ 691.3 and 691.307(c), public nuisances,
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`and unlawful conduct under Section 611 of the PCSL, 35 Pa. Cons. Stat. § 691.611.
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`85.
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`Defendant will continue to violate its 2016 Permit and will therefore continue to
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`violate Section 307 of the PCSL, 35 Pa. Cons. Stat. § 691.307, in this manner, unless enjoined by
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`the Court.
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`86.
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`Pursuant to Section 601 of the PCSL, 35 Pa. Cons. Stat. § 691.601, Defendant is
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`liable for permanent injunctive relief.
`
`87.
`
`Pursuant to Section 605 of the PCSL, 35 Pa. Cons. Stat. § 691.605, Defendant is
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`liable for civil penalties of up to $10,000 per day for each such violation.
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`THIRD COMMONWEALTH CLAIM FOR RELIEF
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`Violations of PCSL and PADEP Regulations – Oil Sheens
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`88.
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`Paragraphs 1–87 are realleged and incorporated herein by reference.
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 16 of 18
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`89.
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`On numerous occasions since 2014, Defendant discharged oil-bearing
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`wastewaters from Outfalls 001 and 002 that caused a sheen in the Ohio River on more than 270
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`occasions. See Appendices A2, B2.
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`90.
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`On numerous occasions as listed in Appendices A2 and B2, since 2014,
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`Defendant discharged oil that caused a sheen upon receiving waters in violation of Section
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`95.2(2)(i) of PADEP’s regulations, 25 Pa. Code § 95.2(2)(i).
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`91.
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`The violations committed by the Defendant constitute pollution or create a danger
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`of pollution, constitute statutory nuisances under Sections 3 and 401 of the PCSL, 35 Pa. Cons.
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`Stat. §§ 691.3 and 691.401, constitute public nuisances, and constitute unlawful conduct under
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`Section 611 of the PCSL, 35 Pa. Cons. Stat. § 691.611.
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`92.
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`Defendant will continue to violate Section 95.2(2)(i) of PADEP’s regulations, 25
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`Pa. Code § 95.2(2)(i), and will therefore continue to violate Section 611 of the PCSL, 35 Pa.
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`Cons. Stat. § 691.611, in this manner, unless enjoined by the Court.
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`93.
`
`Pursuant to Section 601 of the PCSL, 35 Pa. Cons. Stat. § 691.601, Defendant is
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`liable for permanent injunctive relief.
`
`94.
`
`Pursuant to Section 605 of the PCSL, 35 Pa. Cons. Stat. § 691.605, Defendant is
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`liable for civil penalties of up to $10,000 per day for each such violation.
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`PRAYER FOR RELIEF
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`WHEREFORE, the United States of America and PADEP respectfully request that this
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`Court:
`
`A.
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`Permanently enjoin Defendant from discharging pollutants except as expressly
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`authorized by the CWA, the PCSL, and the limitations and conditions of its NPDES permit;
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`B.
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`Order Defendant to take all necessary steps to comply with the CWA, the PCSL,
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`PADEP’s regulations, and the limitations and conditions of Defendant’s 2016 Permit;
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 17 of 18
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`C.
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`Assess civil penalties against Defendant of up to $37,500 per day for each
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`violation of the CWA that occurred between November 5, 2013, and November 2, 2015, and up
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`to $54,833 per day for each violation of the CWA that occurred after November 2, 2015;
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`D.
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`Assess civil penalties against Defendant of up to $10,000 per day for each
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`violation of the PCSL and the 2016 Permit.
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`E.
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`F.
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`
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`Award the Commonwealth of Pennsylvania its costs and fees of this action, and
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`Grant such other relief as the Court may deem appropriate.
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`Respectfully submitted,
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`FOR THE UNITED STATES
`
`NATHANIEL DOUGLAS
`Deputy Section Chief
`Environmental Enforcement Section
`Environment and Natural Resources Division
`U.S. Department of Justice
`
`/s/ Vanessa M. Moore__________
`VANESSA M. MOORE
`DC Bar No. 1617837
`Trial Attorney
`Environmental Enforcement Section
`U.S. Department of Justice
`P.O. Box 7611
`Washington, D.C. 20044-7611
`Telephone: (202) 514-3900
`Email: vanessa.moore@usdoj.gov
`
`STEPHEN R. KAUFMAN
`Acting United States Attorney
`Western District of Pennsylvania
`
`/s/ Paul E. Skirtich
`PAUL E. SKIRTICH
`Assistant U.S. Attorney
`Western District of Pennsylvania
`Joseph F. Weis, Jr. U.S. Courthouse
`700 Grant Street, Suite 4000
`Pittsburgh, PA 15219
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`17
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`Case 2:21-cv-01016-WSS Document 1 Filed 07/30/21 Page 18 of 18
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`(412) 894-7418
`PA ID No. 30440
`
`FOR THE PENNSYLVANIA DEPARTMENT OF
`ENVIRONMENTAL PROTECTION
`
`/s/ Melanie B. Seigel __________
`MELANIE B. SEIGEL
`Assistant Counsel
`Office of Chief Counsel, Southwest Region
`400 Waterfront Drive
`Pittsburgh, PA 15222
`Phone: 412.442.4262
`Fax: 412.442.4274
`Email: mseigel@pa.gov
`PA ID No. 315847
`
`18
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`