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`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 1 of 34
`
`
`
`Brian A. Knutsen, WSBA No. 38806
`Kampmeier & Knutsen, PLLC
`1300 SE Stark Street, Suite 202
`Portland, Oregon 97214
`Phone: (503) 841-6515
`
`Simone Anter, WSBA No. 52716
`Columbia Riverkeeper
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`Phone: (541) 399-5312
`
`Attorneys for Plaintiff Columbia Riverkeeper
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
`
`
`
`COLUMBIA RIVERKEEPER,
`
` Plaintiff,
`
` v.
`
`KEMIRA CHEMICALS, INC.,
`
` Defendant.
`
`___________________________________
`
`
`)
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`
`
`
`Case No. 3:20-cv-06257
`
`
`COMPLAINT
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`
`
`1.
`
`This action is a citizen suit brought under section 505 of the Clean Water Act
`
`(“CWA”) as amended, 33 U.S.C. § 1365. Plaintiff, Columbia Riverkeeper, seeks declaratory and
`
`injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys’
`
`and expert witness’ fees, for defendant Kemira Chemicals, Inc.’s (hereinafter, “Kemira”)
`
`repeated and ongoing violations of the terms and conditions of its National Pollutant Discharge
`
`COMPLAINT - 1
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 2 of 34
`
`
`
`Elimination System (“NPDES”) permit authorizing discharges of pollutants from Kemira’s
`
`facility to waters of the United States.
`
`II.
`
`JURISDICTION AND VENUE
`
`
`
`2.
`
`The Court has subject matter jurisdiction under section 505(a) of the CWA,
`
`33 U.S.C. § 1365(a) (CWA citizen suit provision), and 28 U.S.C. § 1331 (federal question).
`
`Kemira is in violation of an “effluent standard or limitation” as defined by section 505(f) of the
`
`CWA, 33 U.S.C. § 1365(f). The relief requested herein is authorized by sections 309(d) and 505
`
`of the CWA, 33 U.S.C. §§ 1319(d) and 1365, and 28 U.S.C. §§ 2201 and 2202.
`
`
`
`3.
`
`In accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A),
`
`Columbia Riverkeeper notified Kemira of the violations of the NPDES permit and of Columbia
`
`Riverkeeper’s intent to sue under the CWA by letter dated and postmarked October 14, 2020
`
`(“Notice Letter”). A copy of the Notice Letter is attached to this complaint as Exhibit 1. In
`
`accordance with 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(1), Columbia Riverkeeper
`
`provided copies of the Notice Letter to the Administrator of the United States Environmental
`
`Protection Agency (“EPA”), the Administrator of EPA Region 10, the Director of the
`
`Washington Department of Ecology (“Ecology”), and Kemira’s Registered Agent by mailing
`
`copies to these individuals on October 14, 2020.
`
`
`
`4.
`
`At the time of the filing of this complaint, more than sixty days have passed since
`
`the Notice Letter and copies thereof were issued in the manner described in the preceding
`
`paragraph.
`
`5.
`
`The violations complained of in the Notice Letter are ongoing because they are
`
`continuing and/or are reasonably likely to re-occur. Kemira is in violation of its NPDES permit.
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`COMPLAINT - 2
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 3 of 34
`
`
`
`6.
`
`At the time of the filing of this complaint, neither the EPA nor Ecology has
`
`commenced any action constituting diligent prosecution to redress the violations alleged in the
`
`Notice Letter and this complaint.
`
`
`
`7.
`
`The source of the violations complained of is located in Clark County,
`
`Washington, within the Western District of Washington, and venue is therefore appropriate in
`
`the Western District of Washington under section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1).
`
`III.
`
`PARTIES
`
`
`
`8.
`
`Plaintiff Columbia Riverkeeper is suing on behalf of itself and its members.
`
`Columbia Riverkeeper is a 501(c)(3) non-profit corporation registered in the State of
`
`Washington. The mission of Columbia Riverkeeper 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. To
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`achieve these objectives, Columbia Riverkeeper implements scientific, educational, and legal
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`programs aimed at protecting water quality and habitat in the Columbia River Basin. This
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`lawsuit is part of Columbia Riverkeeper’s effort to improve water quality in the Columbia River
`
`Basin for purposes including recreation, habitat quality, and subsistence, recreational, and
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`commercial fishing.
`
`
`
`9.
`
`Columbia Riverkeeper has representational standing to bring this action.
`
`Columbia Riverkeeper has over 16,000 members, many of whom reside in the vicinity of waters
`
`affected by Kemira’s discharges of pollutants. Members of Columbia Riverkeeper use and enjoy
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`the waters and the surrounding areas that are adversely affected by Kemira’s discharges.
`
`Columbia Riverkeeper’s members use these areas for, inter alia, fishing, swimming, hiking,
`
`walking, photography, boating, and observing wildlife. Kemira has repeatedly violated the
`
`conditions of its NPDES permits and exceeded the permits’ benchmark pollutant discharge
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`COMPLAINT - 3
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 4 of 34
`
`
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`levels. Columbia Riverkeeper has serious concerns about the impacts of Kemira’s operations and
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`industrial stormwater discharges on the Columbia River and its tributaries, including Gibbons
`
`Creek. Kemira’s operations and stormwater discharges degrade water quality in the Columbia
`
`River Basin. The environmental, health, aesthetic, and recreational interests of Columbia
`
`Riverkeeper’s members have been, are being, and will be adversely affected by Kemira’s
`
`NPDES permit violations addressed herein and by the members’ reasonable concerns related to
`
`the effects of the violations and pollutant discharges. These injuries are fairly traceable to the
`
`violations and redressable by the Court.
`
`
`
`10.
`
`Defendant Kemira is a corporation authorized to conduct business under the laws
`
`of the State of Washington.
`
`11.
`
`Kemira owns and operates a chemical manufacturing facility at or near 1150 S.
`
`35th Street, Washougal, Washington 98671 (referred to herein as the “facility”).
`
`IV. LEGAL BACKGROUND
`
`
`
`12.
`
`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
`
`pollutants by any person unless authorized under certain provisions of the CWA, including an
`
`NPDES permit issued pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
`
`
`
`13.
`
`The State of Washington has established a federally-approved state NPDES
`
`program that is administered by Ecology. Wash. Rev. Code § 90.48.260; Wash. Admin. Code ch.
`
`173-220. This program was approved by the Administrator of the EPA pursuant to section
`
`402(b) of the CWA, 33 U.S.C. § 1342(b).
`
`14.
`
`Ecology has issued several iterations of the Industrial Stormwater General Permit
`
`(“General Permit”) under section 402(a) of the CWA, 33 U.S.C. § 1342(a). The General Permit,
`
`in its various iterations since its first issuance in 1993, all of which contain comparable
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`COMPLAINT - 4
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

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`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 5 of 34
`
`
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`requirements, authorizes those that obtain coverage thereunder to discharge stormwater
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`associated with industrial activity, a pollutant under the CWA, and other pollutants contained in
`
`the stormwater to waters of the United States subject to certain terms and conditions.
`
`15.
`
`The General Permit imposes terms and conditions, including discharge
`
`monitoring and sampling requirements, reporting and recordkeeping requirements, public
`
`disclosure requirements, and restrictions on the quality of stormwater discharges. To reduce and
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`eliminate pollutants in stormwater discharges, the General Permit requires, among other things,
`
`that permittees develop and implement a Stormwater Pollution Prevention Plan (“SWPPP”) that
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`includes appropriate best management practices (“BMPs”) and that applies all known and
`
`reasonable methods of pollution prevention, control, and treatment (“AKART”) to discharges.
`
`The specific terms and conditions of the General Permit are described in detail in the Notice
`
`Letter. See Exhibit 1 at 2–15.
`
`V.
`
`FACTS
`
`16.
`
`Kemira was granted coverage for the facility under the previous iteration of the
`
`General Permit that was issued by Ecology on December 3, 2014, became effective on January 2,
`
`2015, and expired on December 31, 2019, under NPDES Permit No. WAR001125 (the “2015
`
`General Permit”). Kemira has been granted coverage under the current iteration of the General
`
`Permit with the same permit number WAR001125, which was issued on November 20, 2019,
`
`became effective on January 1, 2020, and is set to expire on December 31, 2024 (the “2020
`
`General Permit”).
`
`17.
`
`Kemira discharges stormwater associated with industrial activity and other
`
`pollutants into the Columbia River and/or Gibbons Creek via tributaries and/or stormwater
`
`conveyance systems.
`
`COMPLAINT - 5
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 6 of 34
`
`
`
`18.
`
`Kemira has violated the terms and conditions of the 2015 General Permit and the
`
`2020 General Permit (collectively, “General Permits”). These include violations of the
`
`requirements to develop and implement a SWPPP that includes BMPs that meet the AKART
`
`standard, to timely complete adaptive management, to timely submit complete and accurate
`
`reports, and to timely provide access to or a copy of the facility’s SWPPP upon request from
`
`Columbia Riverkeeper.
`
`
`
`19.
`
`The General Permits require Kemira to monitor stormwater discharges in a
`
`manner that is representative of discharges from the facility. The stormwater monitoring data
`
`described in Table 1, below, are stormwater monitoring results that Kemira submitted to Ecology
`
`under the requirements of the General Permits. Kemira has discharged stormwater containing
`
`levels of pollutants that exceed the benchmark values established by the General Permits,
`
`including on the days on which Kemira collected samples with the results identified in bold in
`
`Table 1, below.
`
`Table 1: DMR Monitoring Data Reported by Kemira
`Zinc
`Turbidity
`Copper
`(units: µg/L)
`(units: NTU)
`(units: µg/L)
`Benchmark: 117
`Benchmark: 25
`Benchmark: 14
`83
`A
`A
`148
`A
`A
`126
`A
`A
`177
`A
`A
`80
`A
`A
`160
`A
`A
`63.4
`3.0
`2.02
`60.9
`3.0
`<2.0
`199
`8.8
`<2.0
`63
`4.3
`<2.0
`ND
`ND
`ND
`79
`4.0
`4.75
`58.2
`4.5
`2.0
`130
`14.6
`14.1
`45
`111
`5.33
`
`Monitoring
`Period
`1st Quarter 2015
`2nd Quarter 2015
`3rd Quarter 2015
`4th Quarter 2015
`1st Quarter 2016
`2nd Quarter 2016
`3rd Quarter 2016
`4th Quarter 2016
`1st Quarter 2017
`2nd Quarter 2017
`3rd Quarter 2017
`4th Quarter 2017
`1st Quarter 2018
`2nd Quarter 2018
`3rd Quarter 2018
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`COMPLAINT - 6
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

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`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 7 of 34
`
`
`
`3.08
`14.7
`79
`4th Quarter 2018
`182
`4.35
`9.64
`1st Quarter 2019
`250
`4.42
`9.99
`2nd Quarter 2019
`64.5
`613
`11.3
`3rd Quarter 2019
`145
`4.02
`12.9
`4th Quarter 2019
`36.2
`225
`4.46
`1st Quarter 2020
`221
`4.74
`4.56
`2nd Quarter 2020
`222.667
`5.21
`15.75
`3rd Quarter 2020
` Amounts exceeding the General Permit’s Benchmark limits are in bold.
` “A”: DMR represented facility was at consistent attainment.
` “ND”: DMR represented that there was no discharge from the facility.
`
`
`20.
`
`Kemira’s exceedances of the benchmark values indicate that Kemira is failing to
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`apply AKART to its discharges and/or is failing to implement an adequate SWPPP and BMPs.
`
`Upon information and belief, Kemira is in violation of the General Permits by not developing
`
`and/or implementing a SWPPP that includes appropriate BMPs in accordance with the
`
`requirements of the General Permit, by not applying AKART to discharges, by not implementing
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`BMPs necessary to prevent discharges from contributing to violations of water quality standards
`
`in the receiving waters, and by discharging in a manner that contributes to violations of water
`
`quality standards. These requirements, and Kemira’s violations thereof, are described in detail in
`
`sections II and III of the Notice Letter, attached hereto as Exhibit 1 at 2–7, and are incorporated
`
`herein by this reference.
`
`21.
`
`Condition S4.B of the General Permits requires Kemira to sample its stormwater
`
`discharges once during every calendar quarter, Condition S5.A of the General Permits requires
`
`that the discharge samples be analyzed for specific parameters, and Condition S9.B of the
`
`General Permits requires that Kemira submit the sampling results to Ecology within 45 days of
`
`each calendar quarter. Conditions S3.B.5.b and S4.B.2.c of the 2015 General Permit and
`
`Conditions S3.B.5.b and S4.B.3 of the 2020 General Permit require Kemira to collect stormwater
`
`samples at each distinct point of discharge offsite, except for substantially identical outfalls, in
`
`COMPLAINT - 7
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 8 of 34
`
`
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`which case only one of the substantially identical outfalls must be sampled. These conditions set
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`forth sample collection criteria, but require the collection of a sample even if the criteria cannot
`
`be met.
`
`22.
`
`The facility has two or more distinct points of discharge offsite that are not
`
`substantially identical, but Kemira has monitored discharges from only a single discharge point.
`
`Kemira has thereby violated the requirements to collect, analyze, and report discharge samples
`
`described above by failing to monitor distinct points of discharge that are not substantially
`
`identical to the discharge point monitored by Kemira. These violations have occurred each and
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`every calendar quarter during the last five years and sixty days.
`
`23.
`
`The General Permits require a permittee to undertake a Level 1 corrective action
`
`whenever contamination in the permittee’s stormwater discharge exceeds an applicable
`
`benchmark level. A Level 1 corrective action comprises reviewing the SWPPP to ensure permit
`
`compliance; revising the SWPPP to include additional operational source control BMPs with the
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`goal of achieving the applicable benchmark values in future discharges; signing and certifying
`
`the revised SWPPP; summarizing the Level 1 corrective action in the annual report; and fully
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`implementing the revised SWPPP as soon as possible, but no later than the discharge monitoring
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`report due date for the quarter the benchmark was exceeded. The 2020 General Permit requires
`
`the implementation of any Level 1 corrective actions triggered under the 2015 General Permit.
`
`24.
`
`Kemira triggered a Level 1 corrective action for each benchmark exceedance
`
`identified in Table 1, above. Kemira has violated the requirements of the General Permits
`
`described above by failing to timely conduct a Level 1 corrective action in accordance with
`
`permit conditions each time since and including the fourth quarter of 2015, that Kemira’s
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`COMPLAINT - 8
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 9 of 34
`
`
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`quarterly stormwater sampling results were greater than a benchmark for turbidity, zinc, and
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`copper, including the benchmark excursions listed in Table 1, above.
`
`25.
`
`The General Permits require a permittee to undertake a Level 3 corrective action
`
`whenever the permittee’s discharges exceed a benchmark value for any three quarters during a
`
`calendar year. This is the most comprehensive adaptive management provision under the General
`
`Permits. A Level 3 corrective action requires, inter alia, that the permittee: review the SWPPP to
`
`ensure it fully complies with Condition S3 of the General Permits; make appropriate revisions to
`
`the SWPPP to include additional treatment BMPs with the goal of achieving the applicable
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`benchmark value(s) in future discharges and additional operational and/or structural source
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`control BMPs if necessary for proper performance and maintenance of treatment BMPs; and
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`summarize the Level 3 corrective action (planned or taken) in the annual report. A Qualified
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`Industrial Stormwater Professional must review the revised SWPPP, sign the SWPPP
`
`Certification Form, and certify that it is reasonably expected to meet the Genera Permits’
`
`benchmarks upon implementation. The revised SWPPP must be signed and certified by the
`
`permittee and fully implemented as soon as possible, but no later than September 30 of the
`
`following year.
`
`26.
`
`Condition S8.D.5.b of the General Permits provides that Ecology may, upon
`
`request, waive the requirement to implement stormwater treatment as part of the Level 3
`
`corrective action if installation of treatment is not feasible or not necessary to prevent discharges
`
`that may cause or contribute to violations of water quality standards by approving a modification
`
`of permit coverage. To request such a waiver, the permittee must submit a detailed explanation
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`for why it is making the request (technical basis) and a Modification of Coverage form to
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`Ecology by May 15 prior to the Level 3 corrective action deadline. Ecology’s Modification of
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`COMPLAINT - 9
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 10 of 34
`
`
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`Coverage form provides that, if the request is based on an assertion that treatment BMPs are not
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`feasible, the permittee should provide detailed information to support the request. If the waiver
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`request is based on an assertion that treatment is not necessary to prevent violations of water
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`quality standards, Ecology recommends including an engineering report and sampling
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`information to support the claim. Condition S8.D.5.c of the General Permits provides that
`
`Ecology will approve or deny the request within 60 days of receipt of the complete Modification
`
`of Coverage request.
`
`27.
`
`As indicated in Table 1 above, Kemira triggered a Level 3 corrective action for
`
`zinc with its sampling results for 2019. Kemira submitted a Modification of Coverage request to
`
`Ecology dated May 5, 2020, requesting that Ecology waive the requirement to implement
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`treatment measures as part of the Level 3 corrective action and proposing that structural source
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`control measures be implemented instead. The request did not demonstrate that stormwater
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`treatment is not feasible at the facility or otherwise provide detailed information to support such
`
`an assertion. The request also did not demonstrate that stormwater treatment is not necessary to
`
`prevent violations of water quality standards, nor did it include an engineering report or sampling
`
`information to support such a claim.
`
`28.
`
`Ecology did not act on Kemira’s Modification of Coverage request within sixty
`
`days of receipt of the May 5, 2020 form, nor did Ecology act by the September 30, 2020 deadline
`
`for Kemira to implement the Level 3 corrective action. Upon information and belief, Kemira did
`
`not implement a Level 3 corrective action by the September 30, 2020 deadline.
`
`
`
`29.
`
`Ecology issued an administrative order dated November 30, 2020 purporting to
`
`waive the requirement for Kemira to implement stormwater treatment BMPs as part of the Level
`
`3 corrective action triggered by the facility’s 2019 monitoring results for zinc. Ecology’s
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`COMPLAINT - 10
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 11 of 34
`
`
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`administrative order explains that Kemira is instead implementing a structural source control
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`measure and it provides that Kemira must submit documentation to Ecology of completion of
`
`that project by December 31, 2020. The administrative order does not purport to waive any other
`
`requirements of the Level 3 corrective action, but instead provides that “Kemira must continue to
`
`fully implement the [General Permits].”
`
`30.
`
`Ecology’s administrative order is invalid and ineffective for several reasons,
`
`including: Kemira failed to timely submit a complete application that demonstrates treatment is
`
`not feasible or not necessary to prevent violations of water quality standards; there has not been
`
`any demonstration or finding that treatment is not feasible or not necessary to prevent violations
`
`of water quality standards; and the administrative order was not issued within 60 days of
`
`Kemira’s request for modification as required by the General Permits or before the Level 3
`
`corrective action deadline of September 30, 2020. Columbia Riverkeeper has appealed Ecology’s
`
`administrative order to the Washington State Pollution Control Hearings Board.
`
`31.
`
`Kemira violated the General Permits by failing to timely complete a Level 3
`
`corrective action in accordance with the requirements of Condition S8.D in response to the
`
`facility’s 2019 monitoring results for zinc, including the requirement to implement stormwater
`
`treatment measures. To the extent Ecology’s administrative order is deemed to effectively waive
`
`the requirement to implement treatment measures, Kemira is nonetheless in violation of the
`
`General Permits by failing to timely and fully implement other components of the Level 3
`
`corrective action. For example, upon information and belief, Kemira is implementing additional
`
`structural source control BMPs for its Level 3 corrective action only in areas that affect the
`
`discharge point that Kemira has monitored—SD1—and not other areas affecting discharge
`
`points that are not monitored; i.e., discharge points Kemira deemed to be “substantially
`
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`COMPLAINT - 11
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 12 of 34
`
`
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`identical” to SD1. Such efforts are not a complete Level 3 corrective action and violate the
`
`General Permits. Other requirements of a Level 3 corrective action that Kemira has not timely
`
`and fully completed include, but are not limited to, the requirements to: review the SWPPP to
`
`ensure it fully complies with Condition S3 of the General Permits; have a qualified industrial
`
`stormwater professional review the revised SWPPP, sign the certification form, and certify that it
`
`is reasonably expected to meet benchmarks upon implementation; and have Kemira sign and
`
`certify the revised SWPPP as soon as practicable but no later than September 30, 2020.
`
`
`
`32.
`
`The General Permits require Kemira to submit an accurate and complete annual
`
`report to Ecology no later than May 15 of each year that includes specific information. Kemira
`
`has violated these requirements by failing to timely submit annual reports that include all of the
`
`required information for each year since and including 2015 (which annual report was due May
`
`15, 2016). These annual report requirements, and Kemira’s violations thereof, are described in
`
`section VI of the Notice Letter, attached hereto as Exhibit 1 at 12-13, and are incorporated herein
`
`by this reference.
`
`
`
`33.
`
`Upon information and belief, Kemira has failed to comply with recording and
`
`record keeping requirements of the General Permits. These requirements, and Kemira’s
`
`violations thereof, are described in section VII of the Notice Letter, attached hereto as Exhibit 1
`
`at 14, and are incorporated herein by this reference.
`
`
`
`34.
`
`The General Permits require that Kemira take certain reporting and other
`
`responsive actions each time it violates any of the terms and conditions of the General Permits in
`
`a manner that may endanger human health or the environment. Kemira has repeatedly violated
`
`these requirements, as described by section VIII of the Notice Letter, attached hereto as Exhibit 1
`
`at 14, and incorporated herein by this reference.
`
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`COMPLAINT - 12
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 13 of 34
`
`
`
`
`
`35.
`
`The General Permits provide that, upon request from the public, permittees must
`
`produce a copy of or access to the permittee’s SWPPP within fourteen days of the request. As
`
`described in section IX of the Notice Letter, attached hereto as Exhibit 1 at 15 and incorporated
`
`by this reference, Columbia Riverkeeper requested a copy of or access to Kemira’s complete
`
`SWPPP on October 14, 2020. Kemira received that request on October 19, 2020. Kemira
`
`violated this requirement by failing to timely provide Columbia Riverkeeper a copy of or access
`
`to the SWPPP for the facility within fourteen of the request; i.e., by November 2, 2020. Instead,
`
`Kemira provided a SWPPP document on December 11, 2020 that was dated as being completed
`
`that same day—53 days after Kemira received Columbia Riverkeeper’s request. Further, upon
`
`information and belief, Kemira has yet to provide a copy of or access to the complete SWPPP for
`
`the facility, as the SWPPP provide is incomplete.
`
`
`
`36.
`
`The violations alleged herein are ongoing because they are continuing and/or are
`
`reasonably likely to recur. For example, Kemira’s failure to timely and fully complete corrective
`
`actions are continuing violations and their repeated occurrence throughout the limitations period
`
`and beyond indicates they are likely to recur. Similarly, Kemira’s repeated exceedances of
`
`benchmarks indicates that Kemira is continuing to fail to develop and implement an adequate
`
`SWPPP, as does Kemira’s refusal to timely provide a complete copy of its SWPPP to Columbia
`
`Riverkeeper upon request. Further, Kemira has yet to submit complete and accurate annual
`
`reports or reports of permit violations as required under the General Permits, which constitute
`
`continuing violations.
`
`
`
`37.
`
`Discharges from Kemira’s facility contribute to the polluted conditions of the
`
`waters of the United States, including the Columbia River and its tributaries, such as Gibbons
`
`Creek. Discharges from Kemira’s facility contribute to the ecological impacts that result from the
`
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`
`COMPLAINT - 13
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 14 of 34
`
`
`
`polluted condition of these waters and to Columbia Riverkeeper’s and its members’ injuries
`
`resulting therefrom.
`
`
`
`38.
`
`The vicinity of the facility’s discharges are used by the citizens of Washington
`
`and visitors, as well as at least one of Columbia Riverkeeper’s members, for activities including
`
`swimming, boating, biking, fishing and nature watching. Columbia Riverkeeper’s member(s)
`
`also derive(s) aesthetic benefits from the receiving waters. Columbia Riverkeeper’s and its
`
`members’ enjoyment of these activities and waters is diminished by the polluted state of the
`
`receiving waters and by Kemira’s contributions to such polluted state.
`
`39.
`
`A significant penalty should be imposed against Kemira under the penalty factors
`
`set forth in section 309(d) of the CWA, 33 U.S.C. § 1319(d).
`
`40.
`
`Kemira’s violations were avoidable had Kemira been diligent in overseeing
`
`facility operations and maintenance.
`
`41.
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`Kemira has benefited economically as a consequence of its violations and its
`
`failure to implement improvements at the facility.
`
`42.
`
`In accordance with section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and
`
`40 C.F.R. § 135.4, Columbia Riverkeeper will mail either a filed, date-stamped copy of this
`
`complaint or a conformed copy of this complaint after it is filed to the Administrator of the EPA,
`
`the Regional Administrator for Region 10 of the EPA, and the Attorney General of the United
`
`States.
`
`VI. CAUSE OF ACTION
`
`
`
`43.
`
`The preceding paragraphs are incorporated herein.
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`
`COMPLAINT - 14
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 15 of 34
`
`
`
`
`
`44.
`
`Kemira’s violations of the General Permits described herein constitute violations
`
`of an “effluent standard or limitation” as defined by section 505(f) of the CWA, 33 U.S.C. §
`
`1365(f).
`
`
`
`45.
`
`Upon information and belief, these violations committed by Kemira are ongoing
`
`because they are continuing or are reasonably likely to continue to occur. Any and all additional
`
`violations of the General Permits which occur after the date of Columbia Riverkeeper’s Notice
`
`Letter, but before a final decision in this action, should be considered continuing violations
`
`subject to this complaint.
`
`
`
`46. Without the imposition of appropriate civil penalties and the issuance of an
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`injunction, Kemira is likely to continue to violate the General Permits to the further injury of
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`Columbia Riverkeeper, its member(s), and the public.
`
`
`
`VII. RELIEF REQUESTED
`
`
`
`Wherefore, Columbia Riverkeeper respectfully requests that this Court grant the
`
`following relief:
`
`
`
`A.
`
`Issue a declaratory judgment that Kemira violated, and continues to be in
`
`violation of, the General Permits;
`
`
`
`B.
`
`Enjoin Kemira from operating the facility in a manner that results in further
`
`violations of the General Permits;
`
`
`
`C.
`
`Order Kemira to immediately implement a SWPPP that complies with the
`
`General Permits;
`
`
`
`D.
`
`Order Kemira to provide Columbia Riverkeeper, for a period beginning on the
`
`date of the Court’s Order and running for one year after Kemira achieves compliance with all
`
`conditions of the General Permits, copies of all reports and other documents that Kemira submits
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`
`COMPLAINT - 15
`
`
`No. 3:20-cv-06257
`
`
`
`KAMPMEIER & KNUTSEN PLLC
` 1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`
`

`

`Case 3:20-cv-06257 Document 1 Filed 12/31/20 Page 16 of 34
`
`
`
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