Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 1 of 145
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`Richard Smith, WSBA #21788
`Alyssa Englebrecht, WSBA #46773
`SMITH & LOWNEY, PLLC
`2317 E John Street
`Seattle, WA 98112
`(206) 860 2883
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`Simone Anter, WSBA #52716
`COLUMBIA RIVERKEEPER
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`(541) 399-5312
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`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`COMPLAINT
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`COLUMBIA RIVERKEEPER,
`Plaintiff,
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`vs.
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`KALAMA EXPORT COMPANY, LLC,
`Defendant
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`1.
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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, Columbia Riverkeeper, seeks declaratory and
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`injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys’
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`and expert witness’ fees for the defendant Kalama Export Company, LLC’s (“KEC’s”) repeated
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`and ongoing violations of Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342,
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`and the terms and conditions of the National Pollution Discharge Elimination System
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`(“NPDES”) permit authorizing discharges of pollutants from KEC’s facility to navigable waters.
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`COMPLAINT - 1
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 2 of 145
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`II.
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`JURISDICTION AND VENUE
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`2.
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`The Court has subject matter jurisdiction under Section 505(a) of the CWA, 33
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`U.S.C. § 1365(a). KEC is in violation of an “effluent standard or limitation” as defined by
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`Section 505(f) of the CWA, 33 U.S.C. § 1365(f). The relief requested herein is authorized by
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`Sections 309(d) of the CWA, 33 U.S.C. §§ 1319(d) and 1365.
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`3.
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`In accordance with Section 505(b)(1)(A) of the CWA, 33 U.S.C. §1365(b)(1)(A),
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`Columbia Riverkeeper notified KEC of KEC’s violations of the CWA, and of Columbia
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`Riverkeeper’s intent to sue under the CWA, by letter dated and postmarked July 7, 2020
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`(“Notice Letter”). A copy of the Notice Letter is attached to this complaint as Exhibit 1. The
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`allegations in Sections II through IX of the Notice Letter are incorporated herein by this
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`reference. In accordance with 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(1), Columbia
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`Riverkeeper provided copies of the Notice Letter to the Administrator of the United States
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`Environmental Protection Agency (“EPA”), the Administrator of EPA Region 10, the Director of
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`the Washington Department of Ecology (“Ecology”), and KEC’s Registered Agent by mailing
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`copies to these individuals on July 7, 2020.
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`4.
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`At the time of the filing of this Complaint, more than sixty days have passed since
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`the Notice Letter and copies thereof were issued in the manner described in the preceding
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`paragraph.
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`5.
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`The violations complained of in the Notice Letter are continuing and/or are
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`reasonably likely to re-occur.
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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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`COMPLAINT - 2
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 3 of 145
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`7.
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`The source of the violations complained of is located in Cowlitz 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 under Section 505(c)(1) of the CWA, 33 U.S.C. §
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`1365(c)(1).
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`III. PARTIES
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`8.
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`Plaintiff Columbia Riverkeeper is suing on behalf of itself and its members.
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`Columbia Riverkeeper is a 501(c) non-profit corporation registered in the State of Washington.
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`The mission of Columbia Riverkeeper is to restore and protect the water quality of the Columbia
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`River and all life connected to it, from the headwaters to the Pacific Ocean. To achieve these
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`objectives, Columbia Riverkeeper implements scientific, educational, and legal programs aimed
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`at protecting water quality and habitat in the Columbia River Basin. This lawsuit is part of
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`Columbia Riverkeeper’s effort to improve water quality in the Columbia River Basin for
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`purposes including recreation, habitat quality, and subsistence, recreational, and commercial
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`fishing.
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`9.
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`Columbia Riverkeeper has representational standing to bring this action.
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`Columbia Riverkeeper has over 16,000 members, many of whom reside in the vicinity of waters
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`affected by KEC’s discharges of pollutants. Members of Columbia Riverkeeper use and enjoy
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`the waters and surrounding areas that are adversely affected by KEC’s discharges. Columbia
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`Riverkeeper’s members use these areas for, inter alia, fishing, swimming, hiking, walking,
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`photography, boating, and observing wildlife. Columbia Riverkeeper’s members have serious
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`concerns about the impacts of KEC’s operations and polluted industrial stormwater discharges
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`on the Columbia River and its tributaries, including discharges into a protected wetland area and
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`direct discharges of pollutants to the Columbia River. The environmental, health, aesthetic, and
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`COMPLAINT - 3
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 4 of 145
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`recreational interests of Columbia Riverkeeper’s members have been, are being, and will be
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`adversely affected by KEC’s NPDES permit violations addressed herein and by the members’
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`reasonable concerns related to the effects of the violations and pollutant discharges. In addition,
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`discharges from KEC’s facility lessen Columbia Riverkeeper’s members’ aesthetic enjoyment of
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`nearby areas. Columbia Riverkeeper’s members’ concerns about the effects of KEC’s discharges
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`are aggravated by KEC’s failure to record and timely report information about its discharges and
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`pollution controls. These injuries are fairly traceable to KEC’s violations of the CWA and are
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`redressable by the Court.
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`10.
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`Columbia Riverkeeper has organizational standing to bring this action. Columbia
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`Riverkeeper actively engages in a variety of educational and advocacy efforts to improve water
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`quality in the Columbia River and its tributaries. KEC has failed to fulfill its monitoring,
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`recordkeeping, reporting, public disclosure, and planning requirements, among others, necessary
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`for compliance with its NPDES permit and the CWA. As a result, Columbia Riverkeeper is
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`deprived of information that supports its ability to serve its members by disseminating
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`information and taking appropriate action. Columbia Riverkeeper’s efforts to educate and
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`advocate for greater environmental protection for the benefit of its members is thereby
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`obstructed. Finally, Columbia Riverkeeper and the public are deprived of information that
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`influences members of the public to become members of Columbia Riverkeeper, thereby
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`reducing Columbia Riverkeeper’s membership numbers. Thus, Columbia Riverkeeper’s
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`organizational interests have been adversely affected by KEC’s violations. These injuries are
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`fairly traceable to KEC’s violations and are redressable by the Court.
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`11.
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`Defendant Kalama Export Company, LLC is a corporation authorized to conduct
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`business under the laws of the State of Washington.
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`COMPLAINT - 4
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 5 of 145
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`12.
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`KEC owns and operates a grain export facility at or near 2211 Hendrickson Drive,
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`Kalama, Washington, 98625 (referred to herein as the “facility”).
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`IV.
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`LEGAL BACKGROUND
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`13.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
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`pollutants by any person, unless in compliance with the provisions of the CWA. Section 301(a)
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`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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`14.
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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
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`Ch. 173-220. This program was approved by the Administrator of the EPA pursuant to section
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`402(b) of the CWA, 33 U.S.C. § 1342(b).
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`15.
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`Ecology has repeatedly issued the Industrial Stormwater General Permit (“ISGP”)
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`under Section 402(a) of the CWA, 33 U.S.C. § 1342(a), most recently on November 20, 2019,
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`effective January 1, 2020, and set to expire December 31, 2024 (the “2020 Permit”). The
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`previous permit was issued December 3, 2014, became effective January 2, 2015, and expired
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`December 31, 2019 (the “2015 Permit”). The 2015 Permit and 2020 Permit (collectively, “the
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`Permits”), contain substantially similar requirements and authorize those that obtain coverage
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`thereunder to discharge stormwater associated with industrial activity, a pollutant under the
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`CWA, and other pollutants contained in the stormwater to waters of the United States subject to
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`certain terms and conditions.
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`16.
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`The Permits imposes terms and conditions, including discharge monitoring and
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`sampling requirements, reporting and recordkeeping requirements, public disclosure
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`requirements, and restrictions on the quality of stormwater discharges. To reduce and eliminate
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`COMPLAINT - 5
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 6 of 145
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`pollutants in stormwater discharges, the Permits require, among other things, that permittees
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`develop and implement a Stormwater Pollution Prevention Plan (“SWPPP”) that includes
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`appropriate best management practices (“BMPs”) that applies all known and reasonable methods
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`of pollution prevention, control, and treatment (“AKART”) to discharges. The specific terms and
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`conditions of the Permits are described in the detail in the Notice letter. See Exhibit 1.
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`V.
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`FACTS
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`17.
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`Ecology granted KEC coverage for the facility under the 2015 Permit under
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`NPDES Permit No. WAR304190. Ecology granted subsequent coverage under the 2020 ISGP
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`under the same permit number, WAR304190.
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`18.
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`KEC discharges stormwater and pollutants associated with industrial activity via
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`stormwater conveyances into the Columbia River and its tributaries, as well as into protected
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`wetlands directly adjacent to the Columbia River.
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`19.
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`KEC’s facility is engaged in industrial activity and is approximately 117 acres.
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`KEC’s facility has a series of catch basins and stormwater collection pipes, at least seven
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`reported outfalls, as well as numerous unreported outfalls from the facility’s wharf that discharge
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`stormwater and other pollutants to the Columbia River and the adjacent protected wetlands.
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`20.
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`KEC has violated and continues to violate “effluent standards or limitations,” as
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`defined by 33 U.S.C. § 1365(f), including conditions of the NPDES permit. KEC’s violations of
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`the Permits are set forth in sections II through IX of the Notice Letter attached hereto as Exhibit
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`1 and are incorporated herein by this reference. In particular, and among the other violations
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`described in the Notice letter, KEC has violated the Permits by failing to comply with water
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`quality standards, by failing to implement BMP’s to control water quality, by not establishing an
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`adequate stormwater pollution prevention plan, by not collecting quarterly samples, or analyzing
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`COMPLAINT - 6
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 7 of 145
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`quarterly samples once collected, by not complying with visual monitoring requirements, and by
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`failing to submit discharge monitoring reports.
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`21.
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` KEC has discharged stormwater containing levels of pollutants that exceed the
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`benchmark values established by the Permits, including the days on which KEC collected
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`samples with the results identified in Table 1 below, and is likely to continue discharging
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`comparably unacceptable stormwater effluent:
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`Table 1 – Benchmark Exceedances
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`Quarter in which
`sample was
`collected
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`Turbidity
`(Benchmark
`25 NTU)
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`4Q 2016
`1Q 2017
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`31
`37.8
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`Zn
`Concentrations
`(Benchmark
`117 µg/L)
`341
`247
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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 KEC’s facility during the
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`associated calendar quarter. The stormwater monitoring data provided in Table 1 shows
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`benchmark exceedances included in the stormwater monitoring results that KEC submitted to
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`Ecology.
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`23.
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`KEC’s stormwater discharges are causing or contributing to violations of water
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`quality standards and therefore violate the Permits. Discharges from KEC’s facility contribute to
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`the polluted conditions of the waters of the State, including the water quality standards of the
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`Columbia River. Discharges from KEC’s facility contribute to the ecological impacts that result
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`from the pollution of these waters and to Columbia Riverkeeper and its members’ injuries
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`resulting therefrom. These requirements and KEC’s violations thereof are described in detail in
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`COMPLAINT - 7
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 8 of 145
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`section II of the Notice Letter, attached hereto as Exhibit 1, and incorporated herein by this
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`reference.
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`24.
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`KEC’s exceedances of the benchmark values indicate that KEC is failing to apply
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`AKART to its discharges and is failing to implement an adequate SWPPP and BMPs. KEC
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`violated and continues to violate the Permits by not developing, modifying, and/or implementing
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`BMPs in accordance with the requirements of the Permits, and/or by not applying AKART to
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`discharges from the facility. These requirements, and KEC’s violations thereof, are described in
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`detail in sections II and III of the Notice Letter, attached as Exhibit 1, and are incorporated
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`herein by this reference.
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`25.
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`KEC has violated and continues to violate the monitoring requirements of the
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`Permits. For example, the Permit requires KEC export to sample its stormwater discharge once
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`during every calendar quarter, yet KEC failed to collect stormwater samples at any of its
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`discharge points during the third quarter of 2016, the first, second, third, and fourth quarters of
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`calendar years 2018 and 2019, and the first quarter of 2020. The monitoring and inspection
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`requirements, and KEC’s violations thereof, are described in section IV of the Notice Letter,
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`attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`26.
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`KEC is violating the reporting requirements of the ISGP. The Permit requires
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`KEC to summarize, report, and submit sampling data obtained during each reporting period on a
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`Discharge Monitoring Report (DMR). KEC is in violation of the requirements of the Permits
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`every time it has failed to summarize, report, and submit sampling data since Ecology issued
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`ISGP coverage. KEC is also in violation of the Permits every time it has failed to submit DMRs
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`by the deadlines required by the Permits. These violations include, but are not limited to, KEC’s
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`failure to submit DMRs for all parameters in the first, second, third, and fourth quarters of
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`COMPLAINT - 8
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 9 of 145
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`calendar years 2018 and 2019, and the first quarter of 2020. The DMR reporting requirements,
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`and KEC’s violations thereof, are described in section IV.D of the Notice Letter, attached hereto
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`as Exhibit 1 and are incorporated herein by this reference.
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`27.
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`The Permits require a permittee to undertake a Level 1 corrective action whenever
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`it exceeds a benchmark value identified in condition S.5. A Level 1 corrective action comprises
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`reviewing the SWPPP to ensure permit compliance; revising the SWPPP to include additional
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`operational source control BMP’s with the goal of achieving the applicable benchmark values in
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`future discharges; signing and certifying the revised SWPPP; summarizing the Level 1 corrective
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`action in the annual report; and fully implementing the revised SWPPP as soon as possible, but
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`no later than the discharge monitoring report due date for the quarter the benchmark was
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`exceeded.
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`28.
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`KEC triggered a Level 1 corrective action for each benchmark exceedance,
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`including, but not limited to, those exceedances identified in Table 1 above. KEC is violating the
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`requirements of the Permits described above by failing to conduct a Level 1 corrective action in
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`accordance with the conditions of the Permits for these exceedances. The corrective action
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`requirements, and KEC’s violations of the same, are described in more detail in section V of the
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`Notice Letter, attached hereto as Exhibit 1 and incorporated herein by this reference.
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`29.
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`The Permits require KEC to submit an accurate and complete annual report to
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`Ecology no later than May 15 of each year. This report must include specific information, such
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`as corrective action documentation and the status of any outstanding corrective actions. KEC has
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`violated these requirements by failing to submit complete and accurate annual reports as required
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`for each of the calendar years 2016, 2017, 2018, and 2019. These annual report requirements,
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`COMPLAINT - 9
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 10 of 145
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`and KEC’s violations thereof, are described in section VI of the Notice Letter, attached hereto as
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`Exhibit 1 and are incorporated herein by this reference.
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`30.
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`KEC has failed to comply with recording and record keeping requirements of the
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`Permits. These requirements, and KEC’s violations thereof, are described in section VII of the
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`Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`31.
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`Condition S9.E of the Permits requires KEC to take certain actions, including
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`reporting to Ecology, in the event the KEC is unable to comply with any of the terms and
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`conditions of the Permits which may endanger human health or the environment, or exceed any
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`numeric effluent limitation in the Permits. KEC has failed to comply with these requirements of
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`the Permits by failing to report and subsequently correct permit violations including each and
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`every time KEC failed to comply with the corrective action requirements as described in
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`paragraphs 27-28 above, each and every time KEC failed to sample a stormwater discharge as
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`described in paragraph 21 above, and each every time KEC discharged stormwater which
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`exceeded a pollutant benchmark and water quality criteria as described above in paragraphs 21-
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`23. These requirements, and KEC’s violations thereof, are described in section VIII of the Notice
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`Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`32.
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`Condition S5.E of the Permits prohibits illicit discharges by KEC. Condition S5.F
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`of the Permits requires KEC to manage stormwater to prevent the discharge of synthetic, natural
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`or processed oil containing products as identified by an oil sheen, and trash and floating debris.
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`KEC has violated these conditions and the CWA each and every time an illicit discharge has
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`occurred during the last five years. These requirements and the KEC’s violations thereof
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`regarding illicit discharges of grain dust and process wastewater are described in section IX.A of
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`the Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`COMPLAINT - 10
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 11 of 145
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`33.
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` Illicit discharges by KEC are a violation of section 301 of the CWA, 33 U.S.C. §
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`1311, and “effluent standards or limitations” under 33 U.S.C. § 1365(f). The Port has violated
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`section 301 of the CWA, 33 U.S.C. § 1311, each and every time an illicit discharge has occurred
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`during the last five years. These requirements and KEC’s violations thereof regarding
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`unpermitted discharges of grain dust and process wastewater are described in section IX.B of the
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`Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`34.
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`Discharges from KEC’s facility contribute to the polluted conditions of the waters
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`of the United States, including the Columbia River, its tributaries, and adjacent wetlands.
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`Discharges from KEC’s facility contribute to the ecological impacts that result from the polluted
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`condition of these waters and to Columbia Riverkeeper’s and its members’ injuries resulting
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`therefrom.
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`35.
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`The area affected by the facility’s discharges is used by the citizens of
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`Washington and visitors for activities including swimming, boating, biking, fishing and nature
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`watching. Columbia Riverkeeper’s members also derive aesthetic benefits from the waters
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`affected by the facility’s discharges. Columbia Riverkeeper’s and its members’ enjoyment of
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`these activities and waters is diminished by the polluted state of the receiving waters and by
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`KEC’s contributions to such polluted state.
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`36.
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`A significant penalty should be imposed against KEC under the factors set forth
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`in section 309(d) of the CWA, 33 U.S.C. § 1319(d).
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`37.
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`KEC’s violations were avoidable had KEC been diligent in overseeing facility
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`operations and maintenance.
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`38.
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`KEC has benefited economically as a consequence of its violations and its failure
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`to implement improvements at the facility.
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`COMPLAINT - 11
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 12 of 145
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`39.
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`In accordance with Section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and 40
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`C.F.R. § 135.4, Columbia Riverkeeper is mailing a copy of this Complaint to the Administrator
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`of the EPA, the Regional Administrator for Region 10 of the EPA, and the Attorney General of
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`the United States.
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`VI.
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`FIRST CAUSE OF ACTION
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`40.
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`The preceding paragraphs and the allegations in section II through IX of the
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`Notice Letter, attached hereto as Exhibit 1, are incorporated herein.
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`41.
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`KEC’s violations of the NPDES permits described herein and in the Notice Letter
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`constitute violations of Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342, and
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`violations of an “effluent standard or limitation” as defined by Section 505(f) of the CWA, 33
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`U.S.C. § 1365(f).
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`42.
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`These violations committed by KEC are ongoing or are reasonably likely to
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`continue to occur. Any and all violations of the Permits which occur after the date of Columbia
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`Riverkeeper’s Notice Letter, but before a final decision in this action, should be considered
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`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, KEC is likely to continue to violate the Permits to the further injury of Columbia
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`Riverkeeper, its members, and the public.
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`VII. SECOND CAUSE OF ACTION
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`44.
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`The preceding paragraphs and the allegations in sections II through IX of the
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`Notice Letter, attached hereto as Exhibit 1, are incorporated herein.
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`COMPLAINT - 12
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 13 of 145
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`45.
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`KEC’s unpermitted discharges described herein and in Section IX of the Notice
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`Letter constitute violations of Sections 301(a) of the CWA, 33 U.S.C. §§ 1311(a) and “effluent
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`standards or limitations” under 33 U.S.C. § 1365(f).
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`46.
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`These violations committed by KEC are ongoing or are reasonably likely to
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`continue to occur. Any and all additional violations of section 301(a) of the CWA which occur
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`after those described in Columbia Riverkeeper’s Notice Letter but before a final decision in this
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`action should be considered continuing violations subject to this Complaint.
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`47. Without the imposition of appropriate civil penalties and the issuance of an
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`injunction, KEC is likely to continue to violate section 301(a) of the CWA to the further injury of
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`Columbia Riverkeeper, its members, and others.
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`VII. RELIEF REQUESTED
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`Wherefore, Columbia Riverkeeper respectfully requests this Court grant the following
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`relief:
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`A.
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`Issue a declaratory judgment that KEC violated, and continues to be in violation
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`of, the Permits;
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`B.
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`Enjoin KEC from operating the facility in a manner that results in further
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`violations of the Permits;
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`C.
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`Order KEC to immediately implement a SWPPP that complies with the 2020
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`Permit;
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`D.
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`Order KEC to allow Columbia Riverkeeper to participate in the development and
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`implementation of KEC’s SWPPP;
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`E.
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`Order KEC to provide Columbia Riverkeeper, for a period beginning on the date
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`of the Court’s Order and running for one year after KEC achieves compliance with all of the
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`COMPLAINT - 13
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 14 of 145
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`
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`conditions of the 2020 Permit, with copies of all reports and other documents that KEC submits
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`to Ecology regarding KEC’s coverage under the 2020 Permit, at the same time those documents
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`are submitted to Ecology;
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`F.
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`Order KEC to take specific actions to remediate the environmental harm caused
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`by its violations;
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`G.
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`Order KEC to abate unpermitted discharges from its facility until KEC obtains a
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`permit for such discharges or until such discharges are eliminated;
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`H.
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`Grant such other preliminary and/or permanent injunctive relief as Columbia
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`Riverkeeper may from time to time request during the pendency of this case;
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`I.
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`Order KEC to pay civil penalties of $37,500.00 per day of violation for each
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`violation committed by KEC through November 2, 2015 and to pay $55,800 per day of violation
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`for each violation committed by KEC after November 2, 2015 pursuant to Sections 309(d) and
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`505(a) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19 and 19.4;
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`J.
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`Award Columbia Riverkeeper its litigation expenses, including reasonable
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`attorneys’ and expert witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. §
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`1365(d); and
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`K.
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`Award such other relief as this Court deems appropriate.
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`RESPECTFULLY SUBMITTED this 21st day of September, 2020.
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`By: s/Alyssa Englebrecht
` Alyssa Englebrecht, WSBA #46773
`s/Richard Smith
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`Richard Smith, WSBA # 21788
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` 2317 E. John Street, Seattle, WA 98112
` Tel: (206) 860-2883; Fax: (206) 860-4187
`Email: alyssa@smithandlowney.com
`richard@smithandlowney.com
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`COMPLAINT - 14
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 15 of 145
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`s/Simone Anter__________________
`Simone Anter, WSBA #52716
`407 Portway Avenue, Suite 301, Hood River,
`Oregon 97031
`Tel: (541) 399-5312
`Email: simone@columbiariverkeeper.org
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 16 of 145
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`Exhibit 1
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`Exhibit 1
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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 17 of 145
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`July 7, 2020
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`Via CERTIFIED MAIL – Return Receipt Requested
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`Managing Agent
`Kalama Export Company, LLC
`2211 Hendrickson Dr.
`Kalama, Washington 98625
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`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 Columbia Riverkeeper, 407 Portway Ave, Suite 301, Hood River, OR
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`97031. This letter provides you with sixty days’ notice of Columbia Riverkeeper’s intent to file a
`citizen suit against Kalama Export Company, LLC (“Kalama Export”) under Section 505 of the
`Clean Water Act (“CWA”), 33 U.S.C § 1365, for the violations described below. This letter also
`requests a copy of the complete and current stormwater pollution prevention plan (“SWPPP”)
`required by Kalama Export’s National Pollution Discharge Elimination System (“NPDES”)
`permit.
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`
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`Kalama Export was granted coverage under Washington’s Industrial Stormwater General
`Permit (“ISGP”) issued by the Washington Department of Ecology (“Ecology”) on December 3,
`2014, effective January 2, 2015, and expiring December 31, 2019 under NPDES Permit Number
`WAR304190 (the “2015 Permit”). Ecology granted subsequent coverage under the current
`iteration of the ISGP, issued by Ecology on November 20, 2019, effective January 1, 2020, and
`set to expire on December 31, 2024 (the “2020 Permit”) (collectively with the 2015 Permit, the
`“Permits”) under the same permit number, WAR304190.
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`Kalama Export has violated and continues to violate the CWA (see Sections 301 and 402
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`of the CWA, 33 U.S.C. §§ 1311 and 1342) and the terms and conditions of the Permits with
`respect to the operation of, and discharges of stormwater and pollutants from its facility located
`at or near 2211 Hendrickson Drive, Kalama, Washington, 98625 (“the facility”), where it
`operates a grain storage and export terminal. The facility subject to this Notice includes any
`contiguous or adjacent properties owned or operated by Kalama Export.
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`I.
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`COLUMBIA RIVERKEEPER’S COMMITMENT TO PROTECTING A
`FISHABLE AND SWIMMABLE COLUMBIA RIVER.
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`
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`Columbia Riverkeeper’s mission is to restore and protect the water quality of the
`Columbia River and all life connected to it, from the headwaters to the Pacific Ocean. Columbia
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`

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`Case 3:20-cv-05938 Document 1 Filed 09/21/20 Page 18 of 145
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`Riverkeeper is a non-profit organization with members who live, recreate, and work throughout
`the Columbia River basin, including near and downstream of Kalama Export’s facility.
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`Threats facing the Columbia River and its tributaries are severe by any measure. See
`ENVIRONMENTAL PROTECTION AGENCY, COLUMBIA RIVER BASIN: STATE OF THE RIVER REPORT
`FOR TOXICS (Jan. 2009),
`https://www.epa.gov/sites/production/files/documents/columbia_state_of_the_river_report_jan20
`09.pdf. In fact, the vast majority of rivers and streams in Washington State fail to meet basic
`state water quality standards for pollutants such as toxics and temperature. See generally Water
`Quality Assessment & 303(d) List, WASHINGTON STATE DEPARTMENT OF ECOLOGY,
`https://ecology.wa.gov/Water-Shorelines/Water-quality/Water-improvement/Assessment-of-
`state-waters-303d (last visited Feb. 20, 2020) (providing resources on impaired waterbodies in
`Washington State). Water quality standards are designed to protect designated uses, including
`aquatic life, fishing, swimming, and drinking water.
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`Stormwater runoff is “one of the great challenges of water pollution control” and “is a
`principal contributor to water quality impairment of waterbodies nationwide.” NATIONAL
`RESEARCH COUNCIL, URBAN STORM MANAGEMENT IN THE UNITED STATES vii (Oct. 15, 2008),
`http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf. When rain sends runoff across streets,
`construction projects, and industrial facilities, the water picks up contaminants that are drained
`into waterways such as the Columbia River and its tributaries. To address this leading cause of
`water quality impairment, Columbia Riverkeeper invests significant time and resources in
`reducing pollutant loads from industrial, municipal, and construction stormwater sources.
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`This Notice of Intent to Sue Kalama Export is part of Columbia Riverkeeper’s effort to
`improve water quality in the Columbia River Basin for purposes including swimming, habitat
`quality, and subsistence, recreational, and commercial fishing. Columbia Riverkeeper has serious
`concerns about the impacts of Kalama Export’s operations and industrial stor