Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 1 of 18
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`
`
`Marc Zemel
`Knoll D. Lowney
`Claire E. Tonry
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Attorneys for Plaintiff
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`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`
`WASTE ACTION PROJECT,
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` Plaintiff,
`v.
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`PERDUE FOODS LLC dba DRAPER
`VALLEY FARMS,
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` Defendant.
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`___________________________________
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`COMPLAINT
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`I.
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`INTRODUCTION
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`1.
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`This action is a citizen suit brought under Section 505 of the Clean Water Act
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`(“CWA”) as amended, 33 U.S.C. § 1365. Plaintiff Waste Action Project seeks a declaratory
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`judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including
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`attorneys’ and expert witnesses’ fees, for Defendant Perdue Foods LLC dba Draper Valley
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`Farms’ repeated and ongoing violations of Sections 301(a) and 307 of the CWA, 33 U.S.C. §§
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`1311(a) and 1317, and the terms and conditions of its CWA pretreatment permit authorizing
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`COMPLAINT - 1
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 2 of 18
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`discharges of pollutants from Defendant’s Mount Vernon, Washington, facility to navigable
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`waters via the City of Mount Vernon sewage treatment plant.
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`II.
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`JURISDICTION AND VENUE
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`2.
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`The Court has subject matter jurisdiction under Section 505(a) of the CWA, 33
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`U.S.C. § 1365(a). The relief requested herein is authorized by 33 U.S.C. §§ 1319(d) and
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`1365(a).
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`3.
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`Under Section 505 (b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), Plaintiff
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`notified Defendant of Defendant’s violations of the CWA and of Plaintiff’s intent to sue under
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`the CWA by letter dated March 18, 2020 and delivered March 23, 2020 (“Notice Letter”). A
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`copy of the Notice Letter is attached to this complaint as Exhibit 1. The allegations in the Notice
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`Letter are incorporated herein by this reference. Plaintiff notified the Defendant’s Registered
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`Agent, the Administrator of the United States Environmental Protection Agency (“USEPA”), the
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`Administrator of USEPA Region 10, and the Director of the Washington Department of Ecology
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`(“WDOE”) of its intent to sue Defendant by mailing copies of the Notice Letter to these officials
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`on March 18, 2020.
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`4.
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`More than sixty days have passed since the notice letter was served and the
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`violations complained of in the notice letter, identified infra, are continuing or are reasonably
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`likely to continue to occur. Defendant is in violation of its pretreatment permit and the CWA.
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`Neither the USEPA nor the WDOE has commenced any action constituting diligent prosecution
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`to redress these violations.
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`5.
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`The source of the violations complained of is located in Skagit County,
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`Washington, within the Western District of Washington, and venue is therefore appropriate in
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`COMPLAINT - 2
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 3 of 18
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`the Western District of Washington pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. §
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`1365(c)(1).
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`6.
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`PARTIES
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`Plaintiff, Waste Action Project, is suing on behalf of itself and its member(s).
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`III.
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`Waste Action Project is a non-profit corporation registered in the State of Washington. Waste
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`Action Project is a membership organization and has at least one member who is injured by
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`Defendant’s violations. Waste Action Project is dedicated to protecting and preserving the
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`environment of Washington State, especially the quality of its waters, and ensuring corporations
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`follow the letter and spirit of environmental laws.
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`7.
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`Plaintiff has representational standing to bring this action. Waste Action Project’s
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`members are reasonably concerned about the effects of excess discharges of oxygen demanding
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`substances and other pollutants from Defendant’s facility on aquatic species and wildlife that
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`Plaintiff’s members observe and enjoy. Waste Action Project’s members are further concerned
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`about the effects of discharges from Defendant’s facility on the City of Mount Vernon sewage
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`treatment plant’s ability to collect, contain and treat combined sewage and other waste. In
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`addition, excess of oxygen demanding substances from Defendant’s facility lessen Waste Action
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`Project’s members’ aesthetic enjoyment of nearby areas. As a result, Waste Action Project’s
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`members use the Skagit River and the areas near the City of Mount Vernon sewage treatment
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`plant less than they otherwise would.
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`8.
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`At least one of Plaintiff’s members pays taxes and utility and sewer fees which
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`fund the City of Mount Vernon sewer treatment plant. Defendant’s discharges impede efficient
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`and affordable operation of the City of Mount Vernon sewer treatment plant, including disposal
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`of sewage sludge, and require additional infrastructure at the plant than would otherwise be
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`COMPLAINT - 3
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 4 of 18
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`necessary, thereby wasting Plaintiff’s members’ money and diverting funds from other pollution
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`reduction efforts at the sewage treatment plant.
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`9.
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`The recreational, economic, aesthetic and/or health interests of Waste Action
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`Project and its member(s) have been, are being, and will be adversely affected by Defendant’s
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`violations of the CWA. The relief sought in this lawsuit can redress the injuries to these
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`interests.
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`10.
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`Plaintiff has organizational standing to bring this action. Plaintiff has been
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`actively engaged in a variety of educational and advocacy efforts to improve water quality and to
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`address sources of water quality degradation in the waters of western Washington. Defendant
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`has failed to fulfill recordkeeping, reporting, maintenance and planning requirements, among
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`others, necessary for compliance with its pretreatment permit and the CWA. As a result,
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`Plaintiff is deprived of information necessary to properly serve its members by providing
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`information and taking appropriate action, and Plaintiff’s efforts to educate and advocate for
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`greater environmental protection for the benefit of its members are precluded. Thus, Plaintiff’s
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`organizational interests have been adversely affected by Defendant’s violations. These injuries
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`are fairly traceable to Defendant’s violations and redressable by the Court.
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`11.
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`Defendant is a limited liability company authorized to conduct business in the
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`State of Washington.
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`12.
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`Defendant owns and operates a poultry slaughterhouse facility, located at or about
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`1000 Jason Lane, Mount Vernon, Washington 98273 (the “slaughterhouse” or “facility”).
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`IV. LEGAL & FACTUAL BACKGROUND
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`13.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
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`pollutants by any person, unless in compliance with the provisions of the CWA. Section 301(a)
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`COMPLAINT - 4
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 5 of 18
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`prohibits, inter alia, such discharges not authorized by, or in violation of a pretreatment standard
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`promulgated pursuant to Section 307(b) of the CWA, 33 U.S.C. § 1317(b).
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`14.
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`The State of Washington has established a federally approved pretreatment
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`program administered by the WDOE. Wash. Rev. Code § 90.48.260; Wash. Admin. Code ch.
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`173-220. This program was approved by the Administrator of the USEPA pursuant to 33 U.S.C.
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`§ 1342(b).
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`15.
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`Pursuant to Section 307(b) of the CWA, 33 U.S.C. § 1317(b), the WDOE has
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`repeatedly issued Defendant the pretreatment permit number ST0003861 (the “Permit”), most
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`recently on August 17, 2016, which became effective on September 1, 2016, and expires on
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`August 31, 2021. The Permit authorizes defendant to discharge process wastewater, stormwater,
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`and other pollutants to the City of Mount Vernon sewage treatment plant subject to certain terms
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`and conditions. The previous iteration of the Permit, effective October 1, 2010 and expired on
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`September 30, 2015, contained substantially similar terms and conditions.
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`16.
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`The Permit’s terms and conditions including numeric effluent limitations,
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`monitoring and sampling of discharges, and reporting and recordkeeping requirements. The
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`Permit requires, among other things, that Defendant properly operate and maintain all systems of
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`treatment and control at all times. The Permit prohibits Defendant from introducing pollutants
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`into the Mount Vernon sewage treatment plant that cause pollutants to pass-through the sewage
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`treatment plant or interfere with the sewage treatment plant operation.
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`17.
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`Plaintiff filed a complaint on October 23, 2012 against Draper Valley Holdings
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`LLC, then a subsidiary of Defendant, for violations of the Permit at the Facility. See W.D.
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`Wash. Case no. 2:12-cv-01870. The Court entered a Consent Decree in that matter on July 24,
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`2014, which required injunctive relief and a payment for a supplemental environmental benefit
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`COMPLAINT - 5
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 6 of 18
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`project (SEP), among other relief. That Consent Decree terminated on or about January 24,
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`2016. Defendant is once again violating the Permit’s pretreatment standards.
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`18.
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`Discharges from Defendant’s slaughterhouse contribute to the polluted conditions
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`of the waters of the State. The Skagit River is listed on WDOE’s 303(d) list of impaired
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`waterbodies for several pollutant parameters, including, pH, and PCBs. Discharges from
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`Defendant’s facility, including discharges of oxygen-demanding substances, contribute to the
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`ecological impacts that result from the polluted state of these waters, and to Plaintiff’s and its
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`members’ injuries resulting there from.
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`19.
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`The vicinity of the City of Mount Vernon sewage treatment plant and the
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`receiving waters are used by the citizens of Washington and visitors, as well as at least one of
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`Plaintiff’s members, for recreational activities, including boating, biking, fishing and nature
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`watching. Plaintiff’ member(s) also derive(s) aesthetic benefits from the receiving waters.
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`Plaintiff’s and its members’ enjoyment of these activities and waters is diminished by the
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`polluted state of the receiving waters and by Defendant’s contributions to such polluted state.
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`20.
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`Defendant discharged in excess of the Permit’s five-day biological oxygen
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`demand (BOD5) limit of 1430 pounds per day during the monitoring periods identified in
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`Table 1:
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`[Space Intentionally Blank]
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`COMPLAINT - 6
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 7 of 18
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`Dates of Violation
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`Table 1: BOD5 Discharge Violations
`BOD5 consecutive three-
`day average, pounds per
`day
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`(Limit = 1,430 pounds
`per day, maximum
`consecutive three-day
`average)
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`COMPLAINT - 7
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`3/18/20 – 3/20/20
`3/17/20 – 3/19/20
`3/10/20 – 3/12/20
`3/4/20 – 3/6/20
`2/27/20 – 2/29/20
`2/26/20 – 2/28/20
`2/19/20 – 2/21/20
`2/18/20 – 2/20/20
`2/11/20 – 2/13/20
`2/4/20 – 2/6/20
`1/28/20 – 1/30/20
`1/7/20 – 1/9/20
`1/3/20 – 1/5/20
`1/1/20 – 1/3/20
`12/19/19 – 12/21/19
`12/18/19 – 12/20/19
`12/17/19 – 12/19/19
`12/11/19 – 12/13/19
`12/10/19 – 12/12/19
`12/5/19 – 12/7/19
`12/4/19 – 12/6/19
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`1,575.33 lbs/day
`1,597
`1,436.33
`1,444.33
`1,455.67
`1,469.33
`1,497.67
`1,501
`1,467,667
`1,451.67
`1,456.67
`1,551.33
`1,533.67
`1,456.33
`1,439.67
`1,682.33
`1,509.67
`1,451.67
`1,716
`1,591.67
`1,950.33
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 8 of 18
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`COMPLAINT - 8
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`12/3/19 – 12/5/19
`12/2/19 – 12/4/19
`11/26/19 – 11/28/19
`11/25/19 – 11/27/19
`11/20/19 – 11/22/19
`11/19/19 – 11/21/19
`11/14/19 – 11/15/19
`11/13/19 – 11/15/19
`11/12/19 – 11/14/19
`10/30/19 – 11/1/19
`9/19/19 – 9/21/19
`9/18/19 – 9/20/19
`9/17/19 – 9/19/19
`9/12/19 – 9/14/19
`9/11/19 – 9/13/19
`9/4/19 – 9/6/19
`8/27/19 – 8/29/19
`8/22/19 – 8/24/19
`8/21/19 – 8/23/19
`8/20/19 – 8/22/19
`8/15/19 – 8/17/19
`8/14/19 – 8/16/19
`8/13/19 – 8/15/19
`8/6/19 – 8/8/19
`7/31/19 – 8/2/19
`7/30/19 - 8/1/19
`7/10/19 – 7/12/19
`6/27/19 – 6/29/19
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`2,162.67
`1,599.67
`1,786.33
`1,435
`1,735.33
`1,664.33
`1,488.33
`1,545.67
`1,479.33
`1,459.67
`1,444.67
`1,608
`1,448
`1,480
`1,467.67
`1,564.67
`1,498.67
`1,565,67
`1,686.67
`1,638.33
`1,434
`1,563.67
`1,490
`1,605
`1,454.33
`1,458.33
`1,479.33
`1,847,67
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
`

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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 9 of 18
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`50
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`56
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`6/26/19 – 6/28/19
`6/25/19 – 6/27/19
`6/12/19 – 6/14/19
`6/11/19 – 6/13/19
`5/21/19 – 5/23/19
`4/17/19 - 4/19/19
`4/16/19 – 4/18/19
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`2,051.67
`2,015.33
`1,514
`1,515.33
`1,449.33
`1,480
`1,707.33
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`21.
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`Defendant is in violation of the Permit’s requirements to take several actions
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`when Defendant violates or is unable to comply with a Permit condition, including each of the
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`violations identified in Table 1. Defendant has not taken adequate action to stop, contain, and
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`cleanup unauthorized discharges, including and as indicated by the discharges in excess of
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`effluent limits identified in Table 1.
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`22.
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`Defendant has failed to contact the Department of Ecology by telephone within 24
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`hours and failed to submit a written report within five days of becoming aware of each violation
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`identified in Table 1, as required by the Permit.
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`23.
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`Defendant has failed to properly operate its facilities to achieve compliance with
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`the Permit’s discharge limits, as required by the Permit.
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`24.
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`Defendant has failed to properly train its wastewater treatment system operators,
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`failed to properly maintain its wastewater treatment system chemical dosing equipment and
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`pumps, as required by the Permit, and has repeatedly connected slaughterhouse equipment into
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`its wastewater system in a manner that interferes with proper functioning of the treatment
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`system, in violation of the Permit.
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`COMPLAINT - 9
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 10 of 18
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`25.
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`Defendant has discharged pollutants at concentrations that cause interference with
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`the POTW.
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`26.
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`Defendant has violated the Permit and Sections 301(a) and 307 of the CWA, 33
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`U.S.C. §§ 1311(a) and 1317, by discharging pollutants in violation of pretreatment standards.
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`27.
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`A significant penalty should be imposed against Defendant pursuant to the
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`penalty factors set forth in 33 U.S.C. § 1319(d).
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`28.
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` Defendant’s violations of the CWA degrade the environment and the water
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`quality of the receiving water bodies.
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`29.
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`Defendant has benefited economically as a consequence of its CWA violations at
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`the slaughterhouse.
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`30.
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`Defendant has a history of significant violations similar to those alleged herein,
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`including discharges of excessively polluted wastewater and stormwater, failure to collect and/or
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`submit monitoring information, failure to maintain water pollution control plans, and failure to
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`take timely corrective actions in response to polluted discharges.
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`31.
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`Defendant’s violations were avoidable had Defendant been diligent in overseeing
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`facility operations and maintenance.
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`32.
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`33.
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`Defendant is a profitable business enterprise.
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`Given its size and resources, Defendant can afford to pay a significant penalty and
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`such penalty is required to meet the deterrence goals of the CWA’s penalty factors.
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`CAUSE OF ACTION
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`The preceding paragraphs are incorporated herein.
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`V.
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`Defendant has violated its CWA pretreatment permit.
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`34.
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`35.
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`COMPLAINT - 10
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 11 of 18
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`36.
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`Defendant's violations of its Permit described herein and in the Notice Letter
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`constitute violations of sections 301 and 307 of the Clean Water Act, 33 U.S.C. §§ 1311 and
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`1317, and violations of "effluent standard(s) or limitation(s)" as defined by section 505, 33
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`U.S.C. § 1365.
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`37.
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`The violations committed by Defendant are ongoing or are reasonably likely to
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`continue to occur. Any and all additional violations of the Permit and the CWA which occur
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`after those described in Plaintiff’s Notice Letter but before a final decision in this action should
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`be considered continuing violations subject to this Complaint.
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`38. Without the imposition of appropriate civil penalties and the issuance of an
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`injunction, Defendant is likely to continue to violate the Permit and the CWA to the further
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`injury of Plaintiff, its member(s) and others.
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`39.
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`A copy of this Complaint was served upon the Attorney General of the United
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`States and the Administrator of the USEPA as required by 33 U.S.C. § 1365(c)(3).
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`VI. RELIEF REQUESTED
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`
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`Wherefore, Plaintiff respectfully requests that this Court grant the following relief:
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`A.
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`Issue a declaratory judgment that Defendant has violated and continues to be in
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`violation of the Permit and Sections 301 and 307 of the Clean Water Act, 33 U.S.C. §§ 1311 and
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`1317;
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`
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`B.
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`Enjoin Defendant from operating its facility in a manner that results in further
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`violations of the Permit or the Clean Water Act;
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`
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`C.
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`Order Defendant to allow Plaintiff to participate in the development and
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`implementation of a plan to achieve compliance with the Permit and the Clean Water Act;
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`COMPLAINT - 11
`
`
`
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
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`32
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`

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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 12 of 18
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`D.
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`Order Defendant to provide Plaintiff, for a period beginning on the date of the
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`Court’s Order and running for three years after Defendant achieves compliance with all of the
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`conditions of the Permit, with copies of all reports and other documents which Defendant
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`submits to the USEPA or to the WDOE regarding Defendant’s coverage under the Permit at the
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`time it is submitted to these authorities;
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`
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`E.
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`Order Defendant to take specific actions to remediate the environmental harm
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`caused by its violations;
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`
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`F.
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`Order Defendant to pay civil penalties of $55,800.00 per day of violation for each
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`violation committed by Defendant pursuant to Sections 309(d) and 505(a) of the CWA, 33
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`U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19;
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`G.
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`Award Plaintiff its litigation expenses, including reasonable attorneys’ and expert
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`witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. § 1365(d); and
`
`H.
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`Award such other relief as this Court deems appropriate.
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`RESPECTFULLY SUBMITTED this 2nd day of June, 2020.
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`
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`Smith & Lowney, pllc
`
`By: /s/ Marc Zemel
` Marc Zemel, WSBA No. 44325
`By: /s/ Knoll D. Lowney
`
` Knoll D. Lowney, WSBA No. 23457
`By: /s/ Claire E. Tonry
` Claire E. Tonry, WSBA No. 44497
`Attorneys for Plaintiff
`2317 E. John St.
`Seattle, WA 98112
`Tel: (206) 860-2883
`Fax: (206) 860-4187
`E-mail: marc@smithandlowney.com, knoll@smithandlowney.com,
`claire@smithandlowney.com
`
`COMPLAINT - 12
`
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
`1
`2
`3
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`

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`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 13 of 18
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883, Fax (206) 860-4187
`
`March 18, 2020
`
`
`
`
`Via Certified Mail - Return Receipt Requested
`Managing Agent
`Perdue Foods LLC dba Draper Valley Farms
`1000 Jason Lane
`Mount Vernon, WA 98273
`
`Via Certified Mail - Return Receipt Requested
`Managing Agent
`Perdue Foods LLC dba Draper Valley Farms
`31149 Old Ocean City Rd.
`Salisbury, MD 21804
`
`Re: NOTICE OF INTENT TO SUE UNDER THE CLEAN WATER ACT AND
`REQUEST FOR STORMWATER POLLUTION PREVENTION PLAN
`
`
`Dear Managing Agent:
`
`We represent Waste Action Project, P.O. Box 9281, Covington, WA 98042, (206)
`
`849-5927. Any response or correspondence related to this matter should be directed to us at
`the letterhead address. This letter is to provide you with sixty days notice of Waste Action
`Project’s intent to file a citizen suit against Perdue Foods, LLC under section 505 of the Clean
`Water Act (“CWA”), 33 U.S.C. § 1365, for the violations described below. This letter is also
`a request for a copy of the complete and current stormwater pollution prevention plan
`required by Draper Valley’s industrial stormwater general permit for its Mount Vernon
`facility.
`
`Draper Valley Farms, Inc. (“Draper Valley”) has violated and continues to violate the
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`CWA (see sections 301 and 307, 33 USC §§ 1311 and 1317) and its CWA permit number
`ST0003861 (the “Permit”) with respect to operations of, and discharges of wastewater and
`pollutants to the City of Mt. Vernon sewage treatment plant, and, thereby, to waters of the
`state, from its slaughterhouse facility located at 1000 Jason Lane, Mount Vernon, Washington
`98273 (the “slaughterhouse” or “facility”) as described herein. The Permit was issued by the
`Washington Department of Ecology on August 17, 2016, became effective on September 1,
`2016, and expires on August 31, 2021.
`
`
`Draper Valley has previously been authorized to discharge wastewater to the Mt.
`Vernon sewage treatment plant under permits dating back to 1977. The previous iteration of
`permit ST0003861 became effective on October 1, 2010, and expired on September 30, 2015.
`This previous permit included the same or substantially identical requirements as the current
`permit, so Draper Valley’s violations of its previous permit are ongoing.
`
`Notice of Intent to Sue 1
`
`

`

`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 14 of 18
`
`
`
`
`
`I.
`
`Background
`
`
`
`The CWA prohibits the discharge of pollutants to navigable waters unless in
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`compliance with the CWA. 33 USC § 1311. The CWA regulates three categories of point
`sources: those that discharge pollutants directly to waters, publicly owned treatment works
`(“POTW”) that treat municipal sewage or industrial wastewater before discharging to
`navigable waters, and indirect discharges that discharge to a POTW. Indirect dischargers are
`regulated under section 307 of the Clean Water Act and are prohibited from discharging
`pollutants in violation of any effluent standard or prohibition or pretreatment standard. 33
`U.S.C. §§ 1317(d), 1311(a). Where a POTW develops prohibitions or limits on pollutants
`pursuant to 40 C.F.R. § 403.5(c), such limits are pretreatment standards for the purposes of
`section 307(d) of the Act.
`
`The Permit authorizes Draper Valley to discharge wastewater to the City of Mount
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`Vernon Publically Owned Treatment Works, which in turn discharges to the Skagit River.
`The Skagit River is on the Washington Department of Ecology’s list of impaired waters
`because it is water quality limited by fecal coliform, pH, temperature, and PCBs.
`
`Effluent Limitations
`
`II.
`
`
`Condition S1 of the Permit requires that all discharges must comply with the terms
`
`and conditions of the Permit and makes it unlawful for Draper Valley to discharge pollutants
`more frequently than, or at a concentration in excess of, the discharge limits established in the
`Permit.
`
`
`A. Five-day Biological Oxygen Demand
`
`
`Condition S1 of the Permit prohibits discharges of five-day biological oxygen demand
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`(BOD5) in excess of 1430 pounds per day (measured by the maximum consecutive three day
`average). The previous iteration of the permit established the same effluent limitation.
`Draper Valley has violated this effluent limitation by repeatedly discharging levels of BOD5
`in excess of the limit, as identified in the table below, violations which are likely to recur:
`
`
`Table 1: BOD5 Discharge Violations
`
`BOD5 consecutive
`
`three-day average,
`
`pounds per day
`Dates of Violation
`
`(Limit = 1,430
`pounds per day,
`maximum
`consecutive three-
`day average)
`
`1,456.67 lbs/day
`
`1/28/20 – 1/30/20
`
`
`
`1
`
`Notice of Intent to Sue 2
`
`

`

`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 15 of 18
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`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`29
`30
`31
`32
`33
`34
`35
`36
`37
`38
`39
`40
`41
`42
`43
`44
`45
`46
`
`1/7/20 – 1/9/20
`1/3/20 – 1/5/20
`1/1/20 – 1/3/20
`12/19/19 – 12/21/19
`12/18/19 – 12/20/19
`12/17/19 – 12/19/19
`12/11/19 – 12/13/19
`12/10/19 – 12/12/19
`12/5/19 – 12/7/19
`12/4/19 – 12/6/19
`12/3/19 – 12/5/19
`12/2/19 – 12/4/19
`11/26/19 – 11/28/19
`11/25/19 – 11/27/19
`11/20/19 – 11/22/19
`11/19/19 – 11/21/19
`11/14/19 – 11/15/19
`11/13/19 – 11/15/19
`11/12/19 – 11/14/19
`10/30/19 – 11/1/19
`9/19/19 – 9/21/19
`9/18/19 – 9/20/19
`9/17/19 – 9/19/19
`9/12/19 – 9/14/19
`9/11/19 – 9/13/19
`9/4/19 – 9/6/19
`8/27/19 – 8/29/19
`8/22/19 – 8/24/19
`8/21/19 – 8/23/19
`8/20/19 – 8/22/19
`8/15/19 – 8/17/19
`8/14/19 – 8/16/19
`8/13/19 – 8/15/19
`8/6/19 – 8/8/19
`7/31/19 – 8/2/19
`7/30/19 - 8/1/19
`7/10/19 – 7/12/19
`6/27/19 – 6/29/19
`6/26/19 – 6/28/19
`6/25/19 – 6/27/19
`6/12/19 – 6/14/19
`6/11/19 – 6/13/19
`5/21/19 – 5/23/19
`4/17/19 - 4/19/19
`4/16/19 – 4/18/19
`
`1,551.33
`1,533.67
`1,456.33
`1,439.67
`1,682.33
`1,509.67
`1,451.67
`1,716
`1,591.67
`1,950.33
`2,162.67
`1,599.67
`1,786.33
`1,435
`1,735.33
`1,664.33
`1,488.33
`1,545.67
`1,479.33
`1,459.67
`1,444.67
`1,608
`1,448
`1,480
`1,467.67
`1,564.67
`1,498.67
`1,565,67
`1,686.67
`1,638.33
`1,434
`1,563.67
`1,490
`1,605
`1,454.33
`1,458.33
`1,479.33
`1,847,67
`2,051.67
`2,015.33
`1,514
`1,515.33
`1,449.33
`1,480
`1,707.33
`
`Notice of Intent to Sue 3
`
`

`

`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 16 of 18
`
`
`Draper Valley has a long history of BOD5 discharge violations at the Facility, going
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`back to at least 2008, for which Waste Action Project previously sued Draper Valley in 2012.
`That prior citizen suit concluded with a Consent Decree in W.D. Wash. case no. 2:12-cv-
`01870-RSL, which terminated on or about January 20, 2015. It is inexcusable that Draper
`Valley is again violating the Permit with persistent BOD5 discharge violations. Draper Valley
`has been aware of these more recent BOD5 discharge violations (set forth in Table 1) since at
`least April 2019, and Draper Valley purported to be working on a solution to mitigate its
`pollution and comply with the Permit for nearly a year. Yet these violations have continued
`each and every month since that time and continue to occur.
`
`
`Reporting Requirements
`
`III.
`
`Condition S3.E of the Permit requires Draper Valley to take several actions
`A.
`when it violates or is unable to comply with any Permit condition, including immediately
`taking action to stop, contain, and cleanup unauthorized discharges or otherwise stop the
`noncompliance and correct the problem. Draper Valley is in violation of Condition S3.E
`because Draper Valley has not taken adequate action to stop, contain, and cleanup
`unauthorized discharges, including and as indicated by the discharges in excess of effluent
`limits identified in Table 1 of this Notice of Intent to Sue Letter.
`
`
`Pursuant to condition S3.E.2.b.4 of the Permit, when Draper Valley violates a
`B.
`Permit discharge limit, it must report the violation by telephone to Ecology within 24 hours
`from the time that Draper Valley becomes aware of the violation. Condition S3.E.2.c requires
`Draper Valley to provide a written submission within five days of becoming aware of any
`occurrence of noncompliance specified in condition S3.E.2, including violations of the
`maximum discharge limits for BOD5. Draper Valley is in violation of Condition S3.E.2.b and
`c because Draper Valley has not contacted Ecology by telephone within 24 hours or submitted
`a written report within five days of becoming aware of each violation identified in Table 1 of
`this Notice of Intent to Sue letter.
`
`
`IV. Operation and Maintenance
`
`Condition S4 of the Permit requires Draper Valley, at all times, to properly operate
`
`and maintain all facilities or systems of treatment and control which are installed to achieve
`compliance with the terms and conditions of the Permit. Draper Valley is in violation of
`condition S4 of the Permit because Draper Valley has not properly operated its facilities to
`achieve compliance with the discharge limits, as demonstrated by exceedances identified in
`Table 1 of this Notice of Intent to Sue Letter. In addition, and as part of these failures, Draper
`Valley has not properly trained its wastewater treatment system operators, failed to properly
`maintain its wastewater treatment system chemical dosing equipment and pumps, and
`repeatedly connected slaughterhouse equipment into its wastewater system in a manner that
`interferes with proper functioning of the treatment system. These violations have occurred
`during each month identified in Table 1 of this Notice of Intent to Sue Letter, and any
`preceding period during which Draper Valley should have maintained its facilities and/or
`trained its employees but failed to do so.
`
`Notice of Intent to Sue 4
`
`

`

`Case 2:20-cv-00836 Document 1 Filed 06/02/20 Page 17 of 18
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`
`
`
`V.
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`Prohibited discharges
`
`
`Condition S5.B.3 prohibits Draper Valley from discharging any pollutant, including
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`oxygen-demanding pollutants such as BOD5, at a concentration that will cause interference
`with the POTW. Draper Valley violated this condition on each of the days identified in Table
`1 of this Notice of Intent to Sue Letter. In addition to those 3-day averages identified in Table
`1, Draper Valley discharged over 2,000 lbs of BOD5 on each of the following days, which are
`concentrations that cause interference with the POTW: 4/16/19, 4/18/19, 6/26/19. 6/27/19,
`8/6/19, 11/26/19, 12/3/19, 12/10/19, 12/20/19, 1/3/20.
`
`
`Request for Stormwater Pollution Prevention Plan
`
`VI.
`
`
`In addition to the indirect discharge Permit, Draper Valley’s discharges of industrial
`stormwater to Kulshan Creek are governed by industrial stormwater general permit number
`WAR000552 (“General Permit”). Pursuant to Condition S9.F. of the General Permit, Waste
`Action Project hereby requests that Draper Valley provide a copy of, or access to, its
`stormwater pollution prev