Case 2:20-cv-01483 Document 1 Filed 10/07/20 Page 1 of 88
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`
`
`Knoll Lowney
`Marc Zemel
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
`Katelyn Kinn
`PUGET SOUNDKEEPER ALLIANCE
`130 Nickerson Street, Suite 107
`Seattle, WA 98109
`(206) 297-7002
`
`Attorneys for Plaintiff
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`PUGET SOUNDKEEPER ALLIANCE,
`
` Plaintiff,
`v.
`
`UNION PACIFIC RAILROAD
`COMPANY,
`
` 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 Puget Soundkeeper Alliance seeks a
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`declaratory judgment, injunctive relief, the imposition of civil penalties, and the award of costs,
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`including attorneys’ and expert witnesses’ fees, for Defendant Union Pacific Railroad
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`Company’s repeated and ongoing violations of Sections 301(a) and 402 of the CWA, 33 U.S.C.
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`§§ 1311(a) and 1342, and the terms and conditions of its National Pollutant Discharge
`COMPLAINT - 1
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-01483 Document 1 Filed 10/07/20 Page 2 of 88
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`Elimination System (“NPDES”) permit authorizing discharges of pollutants from Defendant’s
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`Seattle, Washington, facility to navigable waters.
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`II.
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`JURISDICTION AND VENUE
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`
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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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`
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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 and postmarked July 24, 2020 and delivered July 27, 2020 (“Notice
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`Letter”). A copy of the Notice Letter is attached to this complaint as Exhibit 1. The allegations
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`in the Notice Letter are incorporated herein by this reference. Plaintiff notified Defendant’s
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`Registered Agent, the Administrator of the United States Environmental Protection Agency
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`(“USEPA”), the Administrator of USEPA Region 10, and the Director of the Washington
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`Department of Ecology (“WDOE”) of its intent to sue Defendant by mailing copies of the Notice
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`Letter to these officials on July 24, 2020.
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`
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`4.
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`More than sixty days have passed since the notice was served and the violations
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`complained of in the Notice Letter are continuing or are reasonably likely to continue to occur.
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`Defendant is in violation of its NPDES permit and the CWA. Neither the USEPA nor the
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`WDOE has commenced any action constituting diligent prosecution to redress these violations.
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`5.
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`The source of the violations complained of is located in King County,
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`Washington, within the Western District of Washington, and venue is therefore appropriate in
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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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`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-01483 Document 1 Filed 10/07/20 Page 3 of 88
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`III.
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`PARTIES
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`6.
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`Plaintiff Puget Soundkeeper Alliance (“Soundkeeper”) is suing on behalf of itself
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`and its member(s). Soundkeeper is a non-profit corporation organized under the laws of the
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`State of Washington. Soundkeeper is a membership organization and has at least one member
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`who is injured by Defendant’s violations. Soundkeeper is dedicated to protecting and preserving
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`Puget Sound including all waters flowing into Puget Sound and adjacent lands.
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`7.
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`Plaintiff has representational standing to bring this action. Soundkeeper’s
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`members are reasonably concerned about the effects of discharges of pollutants, including
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`stormwater from Defendant’s facility, on aquatic species and wildlife that Plaintiff’s members
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`observe, study and enjoy. Soundkeeper’s members are further concerned about the effect of
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`discharges from Defendant’s facility on human health. In addition, discharges from Defendant’s
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`facility lessen Soundkeeper’s members’ aesthetic enjoyment of nearby areas. Soundkeeper has
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`members who live, work, fish and recreate around or use the Duwamish River, tributaries
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`thereto, and waters to which the Duwamish River is tributary, Elliott Bay and Puget Sound.
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`These members are affected by Defendant’s discharges and permit violations. Soundkeeper’s
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`members’ concerns about the effects of Defendant’s discharges are aggravated by Defendant’s
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`failure to record and report information about its discharges and pollution controls. The
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`recreational, economic, aesthetic and/or health interests of Soundkeeper and its member(s) have
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`been, are being, and will be adversely affected by Defendant’s violations of the CWA. The relief
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`sought in this lawsuit can redress the injuries to these interests.
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`8.
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`Plaintiff has organizational standing to bring this action. Soundkeeper 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, including the
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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-01483 Document 1 Filed 10/07/20 Page 4 of 88
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`Duwamish River and Puget Sound. Defendant has failed to fulfill monitoring, recordkeeping,
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`reporting and planning requirements, among others, necessary for compliance with its NPDES
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`permit and the CWA. As a result, Plaintiff is deprived of information necessary to properly
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`serve its members by providing information and taking appropriate action to advance its mission.
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`Plaintiff’s efforts to educate and advocate for greater environmental protection for the benefit of
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`its members are also precluded. Finally, Plaintiff and the public are deprived of information that
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`influences members of the public to become members of Soundkeeper, thereby reducing
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`Soundkeeper’s membership numbers. Thus, Plaintiff’s organizational interests have been
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`adversely affected by Defendant’s violations. These injuries are fairly traceable to Defendant’s
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`violations and redressable by the Court.
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`9.
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`Defendant is a corporation authorized to conduct business under the laws of the
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`State of Washington.
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`10.
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`Defendant owns and operates a facility used for railcar storage, switching,
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`maintenance, equipment and material storage and related activities, located at or about 402 S.
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`Dawson St., Seattle, WA, including contiguous or adjacent properties owned or operated by
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`Defendant (the “facility”).
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`IV. LEGAL BACKGROUND
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`
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`11.
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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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`prohibits, inter alia, such discharges not authorized by, or in violation of, the terms of a NPDES
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`permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
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`12.
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`The State of Washington has established a federally approved state NPDES
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`program administered by the WDOE. Wash. Rev. Code § 90.48.260; Wash. Admin. Code ch.
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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-01483 Document 1 Filed 10/07/20 Page 5 of 88
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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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`13.
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`Pursuant to Section 402(a) of the CWA, 33 U.S.C. § 1342(a), the WDOE has
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`repeatedly issued the Industrial Stormwater General Permit, most recently on November 20,
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`2019, (the “General Permit”). The General Permit, in its various iterations since its first issuance
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`in 1993 containing comparable requirements, authorizes those that obtain coverage under the
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`General Permit to discharge stormwater, a pollutant under the CWA, and other pollutants
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`contained in the stormwater to the waters of the State subject to certain terms and conditions.
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`14.
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`The General Permit imposes certain terms and conditions on those covered
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`thereby, including monitoring and sampling of discharges, reporting and recordkeeping
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`requirements. To reduce and eliminate pollutant concentrations in stormwater discharges, the
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`General Permit requires, among other things, that Permittees develop and implement best
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`management practices (“BMPs”) and a Stormwater Pollution Prevention Plan (“SWPPP”), and
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`apply all known and reasonable methods of prevention, control and treatment (“AKART”) to
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`discharges. When a Permittee’s stormwater discharge exceeds benchmark values for
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`concentrations of certain pollutants (and action levels for concentrations of certain pollutants in a
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`previous version of the General Permit), the General Permit requires the Permittee to complete
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`the applicable Level 1, 2, or 3 corrective action requirements. The specific terms and conditions
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`of the General Permit are described in detail in the Notice Letter, attached hereto as Exhibit 1,
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`and incorporated herein by this reference.
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`V.
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`FACTS
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`15.
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`Pursuant to Condition S2 of the General Permit, Defendant filed with the WDOE
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`an Application for General Permit to Discharge Stormwater Associated with Industrial Activity.
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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-01483 Document 1 Filed 10/07/20 Page 6 of 88
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`WDOE granted Defendant coverage under the General Permit for Defendant’s facility under
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`Permit Number WAR001155. WDOE previously granted Defendant coverage under an earlier
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`version of the General Permit for Defendant’s facility under Permit Number SO3001155.
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`16.
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`Defendant’s facility is engaged in industrial activity and discharges stormwater
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`and other pollutants to the Duwamish River via drains, pipes, ditches, runoff, municipal storm
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`sewer system and the ground.
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`17.
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`Discharges from Defendant’s facility contribute to the polluted conditions of the
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`waters of the State, including to the sediment and water quality impairment of the Duwamish
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`River. Discharges from Defendant’s facility contribute to the ecological impacts that result from
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`the polluted state of these waters and to Plaintiff’s and their members’ injuries resulting
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`therefrom. The requirement not to cause or contribute to violations of water quality standards,
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`General Permit Condition S10.A, and Defendant’s violations thereof are described in section I of
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`the Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`Defendant has caused or contributed to violations of water quality standards for turbidity,
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`copper, zinc, oil, designated uses and aesthetics in the Duwamish River, including every day
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`Defendant discharged pollutant concentrations in excess of the General Permit benchmarks or
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`maximum daily limits.
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`18.
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`The vicinity of the facility, the Duwamish River and Elliott Bay are used by the
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`citizens of Washington and visitors, as well as at least one of Plaintiff’s members, for
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`recreational activities, including boating, biking, fishing and nature watching. Plaintiff’s
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`member(s) also derive(s) aesthetic, spiritual and cultural 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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`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-01483 Document 1 Filed 10/07/20 Page 7 of 88
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`19.
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`Defendant has violated the General Permit and Sections 301(a) and 402 of the
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`CWA, 33 U.S.C. §§ 1311(a) and 1342, by discharging pollutants in violation of an NPDES
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`Permit. Defendant’s violations of the General Permit and the CWA are set forth in full in
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`sections I through VIII of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference. In particular and among the other violations described in the Notice
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`Letter, Defendant has failed to collect representative discharge samples, failed to prepare and
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`implement a compliant SWPPP, failed to comply with corrective action requirements, violated
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`daily effluent limits, and failed to implement best management practices to control stormwater
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`quality as required by the General Permit.
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`20.
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`Defendant has discharged stormwater containing levels of pollutants that exceed
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`the benchmark values and numeric effluent limits established in the General Permit, as specified
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`in Tables 1 and 2 below. Defendant’s stormwater discharges are causing or contributing to
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`violations of water quality standards and therefore violate the General Permit, Condition S10.A.
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`Additionally, Defendant’s exceedances of the benchmark values and effluent limits demonstrate
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`that Defendant is failing to apply AKART to its discharges and/or is failing to implement an
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`adequate SWPPP and BMPs. These requirements and violations are described in detail in
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`section I of the Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this
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`reference.
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`21.
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`Defendant has sampled its stormwater discharges in the calendar quarters
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`identified in Table 1 of this Complaint and determined that such discharges contained pollution
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`in amounts exceeding benchmarks, as shown in Table 1.
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`COMPLAINT - 7
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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-01483 Document 1 Filed 10/07/20 Page 8 of 88
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`Quarter in
`which sample
`collected
`(sample location
`no.)
`2Q 2019 (001)
`2Q 2019 (002)
`2Q 2019 (004)
`2Q 2019 (005)
`2Q 2019 (006)
`3Q 2019 (004)
`1Q 2020 (004)
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`Table 1 – Facility Benchmark Exceedances
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`Turbidity
`(Benchmark
`25 NTU)
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`Oil/Grease
`(Benchmark
`no sheen)
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`Copper
`(Benchmark 14
`µg/L)
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`Zinc
`(Benchmark 117
`µg/L)
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`28.3 NTU
`37.2
`166
`100
`103
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`30
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`Yes
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`36.4 µg/L
`22
`22.6
`14.95
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`355 µg/L
`263
`268
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`22.
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`The stormwater samples identified in Table 1 are representative of and accurately
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`characterize the quality of stormwater discharges generated by the facility during the associated
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`calendar quarter.
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`23.
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`Defendant discharges to the Duwamish River, which is 303(d) listed for sediment
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`quality and Defendant has violated the General Permit’s corresponding numeric effluent limit for
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`Total Suspended Solids (TSS), Condition S6.C, Table 6. Defendant has sampled its stormwater
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`discharges on the dates identified in Table 2 of this Complaint and determined that such
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`discharges contain pollution in amounts exceeding maximum daily effluent limits for TSS, as
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`shown in Table 2. These General Permit violations are reasonably likely to recur.
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`Table 2 – Facility Numeric Effluent Limit Violations
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`Quarter in which sample collected
`(outfall number)
`2Q 2019 (004)
`2Q 2019 (005)
`2Q 2019 (006)
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`
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`Total Suspended Solids (TSS) concentration
`(limitation: 30 mg/L)
`95 mg/L
`49 mg/L
`55 mg/L
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`24.
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`Defendant has not developed and/or implemented a SWPPP in accordance with
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`the requirements of the General Permit, Condition S3. Defendant’s SWPPP does not specify all
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`COMPLAINT - 8
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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-01483 Document 1 Filed 10/07/20 Page 9 of 88
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`of the BMPs that are necessary to provide AKART and to ensure that discharges do not cause or
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`contribute to violations of water quality standards, and does not include all of the specific
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`requirements of the General Permit, including certain mandatory BMPs, a compliant facility
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`assessment, a compliant inventory of industrial activities and materials, a compliant site map,
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`compliant maintenance BMPs and a compliant sampling plan, among other deficiencies. These
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`SWPPP requirements and violations are described in detail in section II of the Notice Letter,
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`attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`25.
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`Defendant has violated the monitoring requirements in the General Permit,
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`Conditions S4 and S9.B and E. Defendant has failed to collect representative stormwater
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`samples and/or submit discharge monitoring reports for all distinct discharge points during all
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`quarters as required by the General Permit.
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`26.
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`Defendant failed to collect stormwater samples and/or to submit DMRs for
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`Outfalls 002, 003, 004, 005, and 006 at all between 4th Quarter 2015 and 2nd Quarter 2019.
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`These monitoring requirements and violations are described in section III.A of the Notice Letter,
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`attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`27.
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`Defendant failed to collect stormwater samples and/or to submit DMRs for the
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`following discharge points at all in the last five years: points of discharge from two separate and
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`distinct chassis storage areas, discharges from area MSH-5, discharges from area VM-1,
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`discharges from area VM-8, discharges from area DTL-1, points of discharge from a drainage
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`area south of System B, points of discharge from access roads throughout the facility that do not
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`drain to any of the currently identified sample points, points of discharge from the Packer
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`Staging Area that do not flow to System B, points of discharge from the railyard at the northeast
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`of the facility including discharges that flow to Systems X1 or X2, and other discrete points of
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`COMPLAINT - 9
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`
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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-01483 Document 1 Filed 10/07/20 Page 10 of 88
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`runoff along the perimeter of the facility. These monitoring requirements and violations are
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`described in section III.A of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference.
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`
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`28.
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`Defendant has not reported all sampling results on Defendant’s quarterly DMR as
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`required by the General Permit, Condition S9.E.
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`29.
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`Defendant has not conducted and/or documented inspections as required by the
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`General Permit, Condition S7. These inspection requirements and violations are described in
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`detail in section III.B of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference.
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`30.
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`Defendant has not implemented maintenance of facility stormwater systems as
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`required by the General Permit, Conditions S3.B.4.b.i.2-3 and S7.B.6, including maintenance of
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`System Z.
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`31.
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`Defendant has not conducted and/or completed the corrective action responses as
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`required by the General Permit. Condition S8.B of the General Permit requires a permittee to
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`undertake a Level 1 corrective action whenever it exceeds a benchmark value identified in
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`Condition S5. A Level 1 corrective action comprises an inspection to investigate the cause of the
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`benchmark exceedance within 14 days of receipt of the corresponding sample results, review of
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`the SWPPP to ensure permit compliance, revisions to the SWPPP to include additional
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`operational source control BMPs with the goal of achieving the applicable benchmark values in
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`future discharges, including signature and certification of the revised SWPPP, summary of the
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`Level 1 corrective action in the annual report, and full implementation of the revised, signed and
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`certified SWPPP as soon as possible, but no later than the DMR due date for the quarter the
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`benchmark was exceeded. Defendant was required to complete a Level 1 corrective action for
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`COMPLAINT - 10
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`
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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-01483 Document 1 Filed 10/07/20 Page 11 of 88
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`every benchmark exceedance identified in Table 1 above. Defendant has not completed all of
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`these corrective actions as required. These corrective action requirements and violations are
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`described in section IV.A of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference.
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`32.
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`Condition S8.C. of the General Permit requires a permittee to undertake a Level 2
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`corrective action whenever it exceeds a benchmark value for any two quarters during a calendar
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`year. A Level 2 corrective action comprises review of the SWPPP to ensure permit compliance,
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`revision of the SWPPP to include additional structural source control BMPs with the goal of
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`achieving the benchmark in future discharges, including signature and certification of the revised
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`SWPPP in accordance with Condition S3.A.5, summary of the Level 2 corrective action (planned
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`or taken) in the annual report, and full implementation of the revised SWPPP by August 31st of
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`the following year, including installation of necessary structural source control BMPs.
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`Defendant triggered Level 2 corrective action requirements for copper in 2019. Defendant has
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`not completed all of the corrective actions as required. These corrective action requirements and
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`violations are described in section IV.B of the Notice Letter, attached hereto as Exhibit 1, and are
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`incorporated herein by this reference.
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`33.
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`Defendant has violated the recordkeeping requirements of the General Permit.
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`The recordkeeping requirements are outlined in Conditions S4.B.4-5 and S9.D of the General
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`Permit.1 General Permit Condition S4.B.4 requires recording and retention of specified
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`information for each stormwater sample taken. General Permit Condition S9.D requires the
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`retention of the records identified for a minimum of five (5) years. Defendant is in violation of
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`1 These requirements were outlined in the prior iteration of the General Permit, effective January 2, 2015 and
`expired December 31, 2019 (the “2015 Permit”), at Conditions S4.B.3-4 and S9.C.
`COMPLAINT - 11
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:20-cv-01483 Document 1 Filed 10/07/20 Page 12 of 88
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`these conditions by failing to record and retain the sampling documentation of Condition S4.B.4,
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`the inspection documentation of Condition S7, equipment calibration records, all BMP
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`maintenance records, all original recordings for continuous sampling instrumentation, copies of
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`all laboratory reports as described in S3.B.5, all DMRs, or copies of any other reports required
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`by the Permit for the specified five-year period.
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`34.
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`Defendant has violated the reporting requirements of the General Permit,
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`Condition S9.C and F.1 For example, Defendant submitted annual reports that did not include all
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`the required elements and did not report General Permit violations as required. These reporting
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`requirements and violations are described in section VIII of the Notice Letter, attached hereto as
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`Exhibit 1, and are incorporated herein by this reference.
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`35.
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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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`36.
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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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`37.
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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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`38.
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`Defendant has benefited economically as a consequence of its violations and its
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`failure to implement improvements at the facility.
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`39.
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`Defendant is the principal operating company of Union Pacific Corporation, an
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`extremely profitable publicly traded business enterprise with over $20 billion of operating
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`revenue in 2019, over $60 billion in assets and billions of dollars of annual profit. Given its size
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`1 2015 Permit Conditions S9.B and E.
`COMPLAINT - 12
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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-01483 Document 1 Filed 10/07/20 Page 13 of 88
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`and resources, Defendant can afford to pay a significant penalty. Indeed, such penalty is
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`required to meet the deterrence goals of the Clean Water Act’s penalty factors.
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`VI. CAUSE OF ACTION
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`40.
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`The preceding paragraphs and the allegations in sections I through VIII of the
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`Notice Letter are incorporated herein.
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`41.
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`Defendant's violations of its NPDES permit described herein and in the Notice
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`Letter constitute 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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`42.
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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 General Permit and the CWA which
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`occur after those described in Plaintiff’s Notice Letter but before a final decision in this action
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`should be considered continuing violations subject to this Complaint.
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`43. 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 General Permit and the CWA to the
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`further injury of the Plaintiff, its member(s) and others.
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`44.
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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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`VII. RELIEF REQUESTED
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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 General Permit and Sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§
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`1311 and 1342;
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`COMPLAINT - 13
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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-01483 Document 1 Filed 10/07/20 Page 14 of 88
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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 General Permit or the Clean Water Act;
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`C.
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`Order Defendant to immediately implement a Storm Water Pollution Prevention
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`Plan that is in compliance with the General Permit, and to provide Plaintiff with a copy of this
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`Plan;
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`D.
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`Order Defendant to allow Plaintiff to participate in the development and
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`implementation of Defendant’s Storm Water Pollution Prevention Plan;
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`E.
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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 one year after Defendant achieves compliance with all of the
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`conditions of the General Permit, with copies of all reports and other documents which
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`Defendant submits to the USEPA or to the WDOE regarding Defendant’s coverage under the
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`General Permit at the time it is submitted to these authorities;
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`F.
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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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`G.
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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 since November 2, 2015 and $37,500.00 per day of violation
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`for each violation committed by Defendant before November 2, 2015 pursuant to Sections
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`309(d) and 505(a) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19;
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`H.
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`Award Plaintiff their litigation expenses, including reasonable attorneys’ and
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`expert witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. § 1365(d); and
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`I.
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`Award such other relief as this Court deems appropriate.
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`COMPLAINT - 14
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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-01483 Document 1 Filed 10/07/20 Page 15 of 88
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`RESPECTFULLY SUBMITTED this 7th day of October, 2020.
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`Smith & Lowney, pllc
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`By: s/Knoll Lowney
`Knoll Lowney, WSBA #23457
`By: s/Marc Zemel
`Marc Zemel, WSBA #44325
`Attorneys for Plaintiff
`2317 E. John St.,
`Seattle, WA 98112
`Tel: (206) 860-2124
`Fax: (206) 860-4187
`E-mail: knoll@smithandlowney.com
` marc@smithandlowney.com
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`PUGET SOUNDKEEPER ALLIANCE
`
`By: s/Katelyn Kinn
`Katelyn Kinn, WSBA # 42686
`130 Nickerson Street, Suite 107
`Seattle, WA 98109
`Tel: (206) 297-7002
`Fax: (206) 297-0409
`E-mail: katelyn@pugetsoundkeeper.org
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`COMPLAINT - 15
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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-01483 Document 1 Filed 10/07/20 Page 16 of 88
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`EXHIBIT 1
`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883, Fax (206) 860-4187
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`July 24, 2020
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`
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`Via Certified Mail - Return Receipt Requested
`
`Managing Agent
`Union Pacific Railroad Company
`Argo Yard
`402 South Dawson Street
`Seattle, WA 98108
`
`Managing Agent
`Union Pacific Railroad Company
`1400 Douglas Street
`Omaha, NE 68179-1001
`
`Managing Agent
`Union Pacific Railroad Company
`301 NE 2nd Ave
`Portland, OR 97232-2764
`
`Re: NOTICE OF INTENT TO SUE UNDER THE CLEAN WATER ACT AND
`REQUEST FOR COPY OF STORMWATER POLLUTION PREVENTION
`PLAN
`
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`Dear Managing Agent:
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`We represent Puget Soundkeeper Alliance (“Soundkeeper”), 130 Nickerson St. #107,
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`Seattle, WA 98109, (206) 297-7002. 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 Soundkeeper’s intent to file a citizen suit against Union Pacific Railroad
`Company (“Union Pacific”) 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 (“SWPPP”) required by Union
`Pacific’s National Pollution Discharge Elimination System (“NPDES”) permit.
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`Union Pacific was granted coverage under Washington’s Industrial Stormwater
`General Permit (“ISGP”) issued by the Washington Department of Ecology (“Ecology”)
`effective January 2, 2015 and expired on December 31, 2019 under NPDES No. WAR001155
`(the “2015 Permit”). Ecology granted Union Pacific coverage under the current iteration of
`the ISGP effective January 1, 2020, and set to expire on December 31, 2024 (the “2020
`Permit”) and maintains the same permit number, WAR001155.
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`Notice of Intent to Sue - 1
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`Case 2:20-cv-01483 Document 1 Filed 10/07/20 Page 17 of 88
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`As detailed below, Union Pacific has violated and continues to violate the CWA (se