Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 1 of 41
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`
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`Richard A. Smith
`Savannah Rose
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Attorneys for Puget Soundkeeper Alliance
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`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`PUGET SOUNDKEEPER ALLIANCE,
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` Plaintiff,
`v.
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`PACIFIC PILE & MARINE LP,
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` Defendant.
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`___________________________________
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`I.
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`COMPLAINT
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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 Pacific Pile & Marine LP
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`(“PPM”)’s repeated and ongoing violations of effluent standards and limitations under the CWA,
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`as defined at 33 U.S.C. § 1365(f), particularly the terms and conditions of its National Pollutant
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`Discharge Elimination System (“NPDES”) permit authorizing certain stormwater discharges of
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`pollutants from PPM’s Seattle, Washington facility to navigable waters.
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`COMPLAINT - 1
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 2 of 41
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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 over Puget Soundkeeper Alliance’s
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`claims under Section 505(a) of the CWA, 33 U.S.C. § 1365(a). PPM is in violation of an
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`“effluent standard or limitation” as defined by Section 505(f) of the CWA, 33 U.S.C. § 1365(f)
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`and “an order issued by the Administrator” as defined by Section 505(a)(1)(B) of the CWA, 33
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`U.S.C. § 1365(a)(1)(B). The relief requested herein is authorized by Sections 309(d) and 505(a)
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`and (d) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a) and (d).
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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), Puget
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`Soundkeeper Alliance notified PPM of its violations of the CWA and of Puget Soundkeeper
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`Alliance’s intent to sue under the CWA by letter dated and postmarked March 18, 2022 and
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`delivered to PPM’s registered agent on March 24, 2022 (“Notice Letter”). A copy of the Notice
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`Letter is attached to this Complaint as Exhibit 1. The allegations in the Notice Letter are
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`incorporated herein by this reference. In accordance with section 505(b)(1)(A) of the CWA, 33
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`U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(1), Puget Soundkeeper Alliance notified the
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`Administrator of the United States Environmental Protection Agency (“EPA”), the Administrator
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`of EPA Region 10, and the Director of the Washington Department of Ecology (“Ecology”) of
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`its intent to sue PPM by mailing copies of the Notice Letter to these officials on March 18, 2022.
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`4.
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`At the time of filing this Complaint, more than sixty days have passed since the
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`Notice Letter and copies thereof were served in the manner described in the preceding paragraph.
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`5.
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`The violations complained of in the Notice Letter are continuing or are reasonably
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`likely to recur.
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`COMPLAINT - 2
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 3 of 41
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`6.
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`At the time of the filing of this Complaint, neither the EPA nor Ecology has
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`commenced any action constituting diligent prosecution to redress the violations alleged in the
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`Notice Letter.
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`7.
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`The source of the violations complained of is located in King County within the
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`Western District of Washington, and venue is therefore appropriate in the Western District of
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`Washington pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), and 28 U.S.C. §
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`1391(b).
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`8.
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`9.
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`PARTIES
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`Puget Soundkeeper Alliance is suing on behalf of itself and its members.
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`III.
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`Puget Soundkeeper Alliance is a non-profit corporation organized under the laws
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`of the State of Washington. Puget Soundkeeper Alliance is dedicated to protecting and
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`preserving the environment of Washington State, especially the quality of its waters. Puget
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`Soundkeeper Alliance is a membership organization and has at least one member who is injured
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`by PPM’s violations.
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`10.
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`Puget Soundkeeper Alliance has representational standing to bring this action.
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`Puget Soundkeeper Alliance’s members are reasonably concerned about the effects of discharges
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`of pollutants, including stormwater from PPM’s facility, on water quality and aquatic species and
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`wildlife that Puget Soundkeeper Alliance’s members observe, study, and enjoy. Puget
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`Soundkeeper Alliance’s members are further concerned about the effect of discharges from
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`PPM’s facility on human health. In addition, discharges from PPM’s facility lessen Puget
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`Soundkeeper Alliance’s members’ aesthetic enjoyment of nearby areas. Puget Soundkeeper
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`Alliance’s members’ who live, work, fish, and recreate around or use the Duwamish Waterway
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`and Puget Sound, and other waters affected by PPM’s discharges. Puget Soundkeeper Alliance’s
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`COMPLAINT - 3
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 4 of 41
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`members’ concerns about the effects of PPM’s discharges are aggravated by PPM’s failure to
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`record and report information about its discharges, violations, and pollution controls. The
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`recreational, economic, aesthetic and/or health interests of Puget Soundkeeper Alliance and its
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`members have been, are being, and will be adversely affected by PPM’s violations of the CWA.
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`The relief sought in this lawsuit can redress the injuries to these interests.
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`11.
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`Puget Soundkeeper Alliance has organizational standing to bring this action.
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`Puget Soundkeeper Alliance has been actively engaged in a variety of educational and advocacy
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`efforts to improve water quality and to address sources of water quality degradation in the waters
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`of Western Washington, including the Duwamish Waterway and Puget Sound. As detailed herein
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`and in the Notice Letter, PPM has failed to comply with numerous requirements of its NPDES
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`Permit including benchmark limitations, effluent limits, sampling and monitoring, corrective
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`actions, reporting and record keeping, Stormwater Pollution Prevention Plan (“SWPPP”), illicit
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`and unpermitted discharges, and failed to comply with Administrative Order 16312. As a result,
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`Puget Soundkeeper Alliance is deprived of information necessary to properly serve its members
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`by providing information and taking appropriate action to advance its mission. Puget
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`Soundkeeper Alliance’s efforts to educate and advocate for greater environmental protection and
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`to ensure the success of environmental restoration projects implemented for the benefit of its
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`members are also obstructed. Finally, Puget Soundkeeper Alliance and the public are deprived of
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`information that influences members of the public to become members of Puget Soundkeeper
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`Alliance, thereby reducing Puget Soundkeeper Alliance’s membership numbers. Thus, Puget
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`Soundkeeper Alliance’s organizational interests have been adversely affected by PPM’s
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`violations. These injuries are fairly traceable to PPM’s violations and are redressable by the
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`COMPLAINT - 4
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 5 of 41
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`12.
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`PPM is a partnership doing business under the laws of Washington State. Its
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`property at issue is a storage and transloading facility for marine equipment and materials
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`associated with construction activities located in Seattle, Washington that is authorized to
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`conduct operations and discharge pollutants in the State of Washington.
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`13.
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`PPM’s facility is located at or about 700 S Riverside Dr, Seattle, WA 98108 (the
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`“facility”).
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`IV. LEGAL BACKGROUND
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`14.
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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. A discharge of a
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`pollutant from a point source to waters of the United States without authorization by an NPDES
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`permit, issued under Section 402 of the CWA, 33 U.S.C. § 1342, constitutes a violation of
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), and an “effluent standard or limitation” under
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`Section 505(a)(1) and (f) of the CWA, 33 U.S.C. § 1365(a)(1) and (f). Conditions of NPDES
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`permits are effluent standards or limitations under Section 505(a)(1) and (f) of the CWA, 33
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`U.S.C. § 1365(a)(1) and (f). Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), authorizes
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`citizen suits against violators of effluent standards or limitations.
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`15.
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`Section 505(a)(1)(B) of the CWA, 33 U.S.C. § 1365(a)(1)(B) authorizes citizen
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`suits against violators of orders issued by the Administrator of the NPDES permit.
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`16.
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`The state of Washington has established a federally approved state NPDES
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`program administered by Ecology. Wash. Rev. Code § 90.48.260; Wash. Admin. Code ch. 173-
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`220. This program was approved by the Administrator of the EPA pursuant to Section 402(b) of
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`the CWA, 33 U.S.C. § 1342(b).
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`COMPLAINT - 5
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 6 of 41
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`17.
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`Under Section 402(a) of the CWA, 33 U.S.C. § 1342, Ecology first issued PPM
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`coverage under the Industrial Stormwater General Permit NPDES number WAR301516 (the
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`“Permit”), on January 2, 2014. PPM was granted coverage under the subsequent iteration of the
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`Industrial Stormwater General Permit, under the same permit number WAR301516, on
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`December 3, 2014, which became effective on January 2, 2015 and expired on December 31,
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`2019. PPM was again granted coverage under the subsequent iteration of the Industrial
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`Stormwater General Permit, under the same permit number WAR301516, on November 20,
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`2019, which became effective on January 1, 2020 and expires on December 31, 2024. The
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`Permit authorizes PPM to discharge stormwater to waters of the state, subject to certain terms
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`and conditions.
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`18.
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`The Permit imposes certain terms and conditions on authorized dischargers,
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`including discharge limits, monitoring requirements, corrective action requirements, and
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`reporting and recordkeeping requirements. The Permit requires, among other things, that PPM
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`properly operate and maintain all systems of treatment and control at all times.
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`V.
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`FACTS
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`19.
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`On January 2, 2014, Ecology granted PPM coverage for the facility under the
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`NPDES Industrial Stormwater General Permit number WAR301516.
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`20.
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`PPM discharges stormwater and pollutants to the Duwamish Waterway which
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`then flows to Puget Sound.
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`21.
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`PPM does not own or operate a stormwater treatment system to manage
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`stormwater at its facility. PPM discharges untreated stormwater into the Duwamish River.
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`22.
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`PPM has violated and continues to violate “effluent standards or limitations,” as
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`defined by Section 505(a)(1) and (f) of the CWA, 33 U.S.C. § 1365(a)(1) and (f), including
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`COMPLAINT - 6
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 7 of 41
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`conditions of the Permits. PPM’s violations of the Permit are set forth in sections I through IX of
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`the Notice Letter attached hereto as Exhibit 1 and are incorporated herein by this reference. In
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`particular, and among the other violations described in the Notice letter, PPM has violated the
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`Permit by discharging stormwater containing levels of pollutants greater than the benchmark
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`limitations and effluent limits established in the Permit, failing to meet sampling and monitoring
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`requirements, failing to meet reporting and record keeping requirements, failing to comply with
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`corrective action requirements, failing to comply with SWPPP requirements, failing to comply
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`with Administrative Order 16312, and failure to prevent illicit and unpermitted discharges.
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`23.
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`PPM discharges stormwater from its facility containing levels of pollutants that
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`exceed the benchmark limitations established by the Permit, including the days on which PPM
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`collected samples with the results identified in Tables 1-5 below, and is likely to continue
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`discharging comparably unacceptable stormwater effluent:
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`Table 1: Monitoring Point 001 Benchmark Exceedances
`Quarter in which
`Turbidity
`Copper
`sample was collected
`(Benchmark:
`(Benchmark:
`25 NTU)
`14 µg/L)
`121
`34.8
`First Quarter 2020
`Second Quarter 2020 56.7
`47
`Third Quarter 2020
`50.4
`29.8
`Third Quarter 2021
`71.5
`22.8
`Fourth Quarter 2021
`91.1
`21.6
`First Quarter 2022
`390
`53.1
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`Table 2: Monitoring Point 002 Benchmark Exceedances
`Quarter in which
`Turbidity
`Copper
`sample was collected
`(Benchmark:
`(Benchmark:
`25 NTU)
`14 µg/L)
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`128
`Second Quarter 2017
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`324
`Third Quarter 2017
`30
`170.25
`Fourth Quarter 2017
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`55.2
`First Quarter 2018
`Second Quarter 2018 29
`38
`Fourth Quarter 2018
`62
`245
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`Zinc
`(Benchmark:
`117 µg/L)
`182
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`173
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`Zinc
`(Benchmark:
`117 µg/L)
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`COMPLAINT - 7
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 8 of 41
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`First Quarter 2019
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`Second Quarter 2019
`26.2
`Third Quarter 2019
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`Fourth Quarter 2019
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`First Quarter 2020
`Second Quarter 2020 26.8
`Third Quarter 2020
`366.5
`Fourth Quarter 2020
`52.3
`First Quarter 2021
`96
`Second Quarter 2021 29
`Third Quarter 2021
`126
`Fourth Quarter 2021
`785
`First Quarter 2022
`800
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`37.8
`32.1
`100
`43.1
`19.4
`33.8
`96.55
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`77.9
`14.4
`24.4
`90.1
`230
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`Table 3: Monitoring Point 003 Benchmark Exceedances
`Quarter in which
`Turbidity
`Copper
`sample was collected
`(Benchmark:
`(Benchmark:
`25 NTU)
`14 µg/L)
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`157
`Second Quarter 2017
`52
`19.1
`Third Quarter 2017
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`52.3
`Fourth Quarter 2017
`92
`563
`First Quarter 2018
`Second Quarter 2018 41
`269
`Fourth Quarter 2018
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`30.7
`Fourth Quarter 2019
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`202
`First Quarter 2020
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`154
`Second Quarter 2020
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`299
`Third Quarter 2020
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`217
`Fourth Quarter 2020
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`22.1
`First Quarter 2021
`211
`54.2
`Third Quarter 2021
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`18.2
`Fourth Quarter 2021
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`First Quarter 2022
`27.5
`157
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`Table 4: Monitoring Point 004 Benchmark Exceedances
`Quarter in which
`Turbidity
`Copper
`sample was collected
`(Benchmark:
`(Benchmark:
`25 NTU)
`14 µg/L)
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`15.3
`Fourth Quarter 2017
`39
`238
`First Quarter 2018
`Second Quarter 2018 92
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`Fourth Quarter 2018
`497
`225
`Second Quarter 2019 45
`46.5
`Third Quarter 2019
`439
`32.2
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`166
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`171
`745
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`Zinc
`(Benchmark:
`117 µg/L)
`1240
`319
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`483
`217
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`206
`183
`194
`289
`147
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`149
`150
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`Zinc
`(Benchmark:
`117 µg/L)
`
`161
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`807
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`452
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`COMPLAINT - 8
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 9 of 41
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`544
`Fourth Quarter 2019
`650
`First Quarter 2020
`Second Quarter 2020 86.5
`Third Quarter 2020
`223.15
`Fourth Quarter 2020
`51.4
`Second Quarter 2021 266
`Third Quarter 2021
`45.1
`Fourth Quarter 2021
`759
`First Quarter 2022
`110
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`326
`237
`1270
`35.95
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`61.4
`31.9
`136
`30.8
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`Table 5: Monitoring Point 005 Benchmark Exceedances
`Quarter in which
`Turbidity
`Copper
`sample was collected
`(Benchmark:
`(Benchmark:
`25 NTU)
`14 µg/L)
`34
`15.3
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`Fourth Quarter 2019
`
`
`1240
`674
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`
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`177
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`294
`119
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`24.
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`PPM discharges stormwater from its facility containing levels of pollutants that
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`violate the total suspended solids effluent limitation of 30 mg/L established by the Permit,
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`including the days on which PPM collected samples with the results identified in the paragraph
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`below, and is likely to continue violating this limitation:
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`Date of Violation
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`June 15, 2017
`April 10, 2018
`October 5, 2018
`April 18, 2019
`November 18, 2019
`January 10, 2020
`January 10, 2020
`May 30, 2020
`May 30, 2020
`September 25, 2020
`November 16, 2020
`January 11, 2021
`January 11, 2021
`May 27, 2021
`September 27, 2021
`September 27, 2021
`October 26, 2021
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`COMPLAINT - 9
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`Reported Total Suspended
`Solids Value in mg/L
`(Effluent Limit 30 mg/L)
`166
`138
`1350
`66
`370
`532
`67
`51
`138
`98
`34
`226
`634
`335
`38
`34
`82
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`Monitoring Point
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`003
`004
`004
`004
`004
`004
`001
`001
`004
`002
`004
`002
`003
`004
`002
`004
`002
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 10 of 41
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`October 26, 2021
`February 28, 2022
`February 28, 2022
`February 28, 2022
`May 2, 2022
`May 2, 2022
`May 2, 2022
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`136
`140
`990
`47
`194
`62
`31
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`004
`001
`002
`004
`002
`004
`001
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`25.
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` The stormwater monitoring data provided in in Tables 1-5 and paragraph 23
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`shows benchmark exceedances and effluent limitations included in the stormwater monitoring
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`results that PPM submitted to Ecology.
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`26.
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`Condition S4.B.1.d of the Permits requires PPM’s monitoring to be representative
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`of discharges from the facility. The stormwater monitoring results that PPM routinely submits to
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`Ecology are not representative of the facility’s stormwater discharges.
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`27.
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`PPM’s stormwater discharges are causing or contributing to violations of water
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`quality standards and therefore violate Condition S5 and S6 the Permits. Discharges from PPM’s
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`facility contribute to the polluted conditions of the waters of the state, including the water quality
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`standards of the Duwamish River and Puget Sound. Discharges from PPM’s facility contribute to
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`the ecological impacts that result from the pollution of these waters and to Puget Soundkeeper
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`Alliance and its members’ injuries resulting therefrom. These requirements and PPM’s violations
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`thereof are described in detail in section I.A and II of the Notice Letter, attached hereto as
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`Exhibit 1, and incorporated herein by this reference.
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`
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`28.
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`PPM’s exceedances of the benchmark values and effluent limits indicate that
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`PPM is failing to apply AKART to its discharges and/or is failing to implement an adequate
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`SWPPP and BMPs. PPM violated and continues to violate Condition S3 of the Permits by not
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`developing, modifying, and/or implementing BMPs in accordance with the requirements of the
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`Permits, and/or by not applying AKART to discharges from the facility. These requirements and
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`COMPLAINT - 10
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 11 of 41
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`PPM’s violations thereof are described in detail in section I.B and section III of the Notice
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`Letter, attached as Exhibit 1, and incorporated herein by this reference.
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`
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`29.
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`Condition S4.B.2.c of the 2015 Permit and S4.B.3.a of the 2020 Permit require
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`PPM to collect stormwater samples at each distinct point of discharge offsite except for
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`substantially identical outfalls. PPM has multiple distinct points of discharge where stormwater
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`is leaving the facility that PPM is not sampling and analyzing appropriately. There are other
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`points of stormwater discharge from the facility and PPM is in violation of Condition S4 of the
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`Permits by failing to collect and analyze samples from them during every quarter for the last five
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`years. These violations will continue until PPM commences proper monitoring all distinct points
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`of discharge. PPM failed to collect stormwater samples for all parameters for Monitoring Point
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`002 during the first quarter 2017, and third quarter 2018; Monitoring Point 003 during the first
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`quarter 2017, third quarter 2018, and first quarter 2019; Monitoring Point 004 during first quarter
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`2017, third quarter 2017, third quarter 2018, and first quarter 2019.
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`14
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`30.
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`PPM has violated Condition S9.A of the 2015 Permit and Condition S9.B of the
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`15
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`16
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`17
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`2020 Permit by failing to correctly and timely submit Discharge Monitoring Reports (“DMR”) to
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`Ecology. PPM has violated these conditions by failing to submit a DMR within the time
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`prescribed for the first quarter 2017, first quarter 2018, fourth quarter 2019, and second quarter
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`18
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`2020.
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`19
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`31.
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`PPM has violated Condition S7.A and S7.B of the Permits by failing to conduct
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`monthly visual inspection reports, by qualified personnel, each and every month since PPM was
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`granted coverage under the Permits. Additionally, PPM violated Condition S7.C of the Permits
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`by failing to prepare and maintain the requisite inspection reports or checklists and failed to
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`make the requisite certifications and summaries. These visual monitoring and inspection
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`COMPLAINT - 11
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`
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 12 of 41
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`requirements and PPM’s violations thereof are described in section IV.C of the Notice Letter,
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`attached hereto as Exhibit 1, and incorporated herein by this reference.
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`32.
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`PPM has not conducted or completed the Level One Corrective Action responses
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`as required by the Permits. These requirements of the Permits and PPM’s violations thereof are
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`described in section V.A of the Notice Letter, attached hereto as Exhibit 1, and incorporated
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`herein by this reference.
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`33.
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`Condition S8.B of the Permits require a permittee to undertake a Level One
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`Corrective Action whenever it exceeds a benchmark value identified in Condition S5.A and
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`Table 2 of the Permits. A Level One Corrective Action comprises of conducting an inspection to
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`investigate the cause, review of the SWPPP to ensure permit compliance, revisions to the
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`SWPPP to include additional operational source control BMPs with the goal of achieving the
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`applicable benchmark values in future discharges, signature and certification of the revised
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`SWPPP, summary of the Level One Corrective Action in the Annual Report, and full
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`implementation of the revised SWPPP as soon as possible, but no later than the DMR due date
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`for the quarter the benchmark was exceeded. Condition S8.A of the 2020 Permit requires that the
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`permittee implement any Level One Corrective Action required by the 2015 Permit.
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`17
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`34.
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`PPM triggered Level One Corrective Action requirements for each benchmark
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`exceedance identified in Tables 1-5 above. PPM’s failures to comply with the Level One
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`Corrective Action requirements include the failure to perform the required review, revision, and
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`certification of the SWPPP; perform required implementation of additional BMPs; and complete
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`the required summarization in the Annual Report each and every time since PPM was granted
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`coverage under the Permits, its quarterly stormwater sampling results were greater than a
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`benchmark or outside the benchmark range, including the benchmark exceedances listed in
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`COMPLAINT - 12
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 13 of 41
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`Tables 1-5 above. These corrective action requirements and PPM’s violations thereof are
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`described in section V.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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`35.
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`PPM has not conducted and/or completed the Level Two Corrective Action
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`responses as required by the Permits. These requirements of the Permits and PPM’s violations
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`thereof are described in section V.B of the Notice Letter, attached hereto as Exhibit 1, and
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`incorporated herein by this reference.
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`
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`36.
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`Condition S8.C of the Permits require a permittee to undertake a Level Two
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`Corrective Action whenever it exceeds a benchmark value identified in Condition S5.A and
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`Table 2 of the Permits during any two quarters during a calendar year. A Level Two Corrective
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`Action comprises review of the SWPPP to ensure permit compliance, revisions to the SWPPP to
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`include additional structural source control BMPs with the goal of achieving the applicable
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`benchmark values in future discharges, signature and certification of the revised SWPPP,
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`summary of the Level Two Corrective Action in the Annual Report, and full implementation of
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`the revised SWPPP as soon as possible, but no later than August 31 of the year following the
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`triggering of the Level Two Corrective Action. Condition S8.A of the 2020 Permit requires that
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`the permittee implement any Level Two Corrective Action required by the 2015 Permit.
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`18
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`37.
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`PPM triggered Level Two Corrective Action requirements for each benchmark
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`exceedance identified in Tables 1-5 above that occurred in any two quarters of a calendar year.
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`PPM has violated the requirements of the Permits described above by failing to conduct a Level
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`Two Corrective Action for discharge from its facility in accordance with Permits’ conditions,
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`including the required review, revision and certification of the SWPPP by the August 31
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`deadline; the required implementation of additional BMPs, including additional structural source
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`COMPLAINT - 13
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`
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 14 of 41
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`control BMPs by the August 31 deadline; and the required summarization in the Annual Report
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`each time since PPM was granted coverage under the Permits, quarterly stormwater sampling
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`results from the facility were greater than a benchmark or outside the benchmark range for any
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`two quarters during a calendar year, including the benchmark exceedances listed in Tables 1-5
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`above. These violations include PPM’s failure to perform a Level Two Corrective Action for
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`zinc in third quarter 2017, copper in third quarter 2017, turbidity in fourth quarter 2017, turbidity
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`in second quarter 2018, copper in second quarter 2018, zinc in second quarter 2018, copper in
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`second quarter 2019, turbidity in third quarter 2019, zinc in fourth quarter 2019, turbidity in
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`second quarter 2020, copper in second quarter 2020, zinc in second quarter 2020, turbidity in
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`second quarter 2021, copper in second quarter 2021, and zinc in second quarter 2021, as
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`identified in Tables 1-5. These corrective action requirements and PPM’s violations thereof are
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`described in section V.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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`14
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`38.
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`Condition S8.D of the Permits require a permittee to undertake a Level Three
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`Corrective Action whenever it exceeds a benchmark value identified in Condition S5.A and
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`Table 2 of the Permits during any three quarters during a calendar year. A Level Three
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`Corrective Action comprises review of the SWPPP to ensure permit compliance, revisions to the
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`SWPPP to include additional treatment BMPs and operational and/or structural source control
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`BMPs if necessary, with the goal of achieving the applicable benchmark values in future
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`discharges, signature and certification of the revised SWPPP, summary of the Level Three
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`Corrective Action in the Annual Report, and full implementation of the revised SWPPP as soon
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`as possible, but no later than September 30 of the year following the triggering of the Level
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`Three Corrective Action. Condition S8.D also requires that before implementation of any BMPs
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`COMPLAINT - 14
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`
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 15 of 41
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`
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`that require site-specific design or sizing of structures, equipment, or processes, that the
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`permittee submit an engineering report, plans, and specifications, and an Operation and
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`Maintenance Manual to Ecology for review, which must be submitted no later than May 15 prior
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`to the Level Three Corrective Action deadline. Condition S8.A of the 2020 Permit requires that
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`the permittee implement any Level Three Corrective Action required by the 2015 Permit.
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`
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`39.
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`PPM triggered Level Three Corrective Action requirements for each benchmark
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`exceedance identified in Tables 1-5 above that occurred in any three quarters of a calendar year.
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`PPM has violated the requirements of the Permits described above by failing to conduct a Level
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`Three Corrective Action in accordance with Permit conditions, including the required review,
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`revision, and certification of the SWPPP by the September 30 deadline; the required
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`implementation of additional BMPs by the September 30 deadline; the required submission of an
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`engineering report and Operation and Maintenance Manual by the May 15 deadline; and the
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`required summarization in the Annual Report, each time that its quarterly stormwater sampling
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`results were greater than a benchmark for any three quarters during a calendar year, including the
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`benchmark excursions listed in Tables 1-5 above. These violations include PPM’s failure to
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`perform a Level Three Corrective Action for copper triggered in fourth quarter 2017, turbidity
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`triggered in fourth quarter 2018, copper triggered in fourth quarter 2018, zinc triggered in fourth
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`quarter 2018, copper triggered in third quarter 2019, turbidity triggered in fourth quarter 2019,
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`turbidity triggered in third quarter 2020, copper triggered in third quarter 2020, zinc triggered in
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`third quarter 2020, turbidity triggered in third quarter 2021, and copper triggered in third quarter
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`2021, as indicated by Tables 1-5. These corrective action requirements and PPM’s violations
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`thereof are described in section V.C of the Notice Letter, attached hereto as Exhibit 1, and are
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`incorporated herein by this reference.
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`COMPLAINT - 15
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`
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`Smith & Lowney, PLLC
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 2:22-cv-00848 Document 1 Filed 06/16/22 Page 16 of 41
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`40.
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`PPM failed and continues to fail to comply with recording and record keeping
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`requirements of the Permits outlined in Condition S4.B of the Permits and Condition S9.C of the
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`2015 Permit and S9.D of the 2020 Permit. These requirements and PPM’s violations thereof are
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`described in section VI of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference.
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`41.
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`PPM has failed and continues to fail to comply with Administrative Order 16312
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`issued by Ecology on October 24, 2019 by failing to submit all documentation r