Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 1 of 37
`
`
`
`Brian A. Knutsen, WSBA No. 38806
`Emma Bruden, WSBA No. 56280
`KAMPMEIER & KNUTSEN, PLLC
`1300 SE Stark Street, Suite 202
`Portland, Oregon 97214
`Tel.: (503) 841-6515 (Knutsen)
` (503) 719-5641 (Bruden)
`Email: brian@kampmeierknutsen.com
` emma@kampmeierknutsen.com
`
`Simone Anter, WSBA No. 52716
`COLUMBIA RIVERKEEPER
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`Tel.: (541) 399-5312
`Email: simone@columbiariverkeeper.org
`
`Attorneys for Plaintiff Columbia Riverkeeper
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
`
`
`COLUMBIA RIVERKEEPER, a Washington
`non-profit corporation,
`
`
`
`
`
`Plaintiff,
`v.
`
`
`
`
`
`Case No. 3:21-cv-05008
`
`
`COMPLAINT
`
`
`
`THOMPSON METAL FAB, INC., an Oregon
`corporation,
`
`
`
`
`
`
`
`Defendant.
`
`I.
`
`INTRODUCTION
`
`1.
`
`This action is a citizen suit brought under section 505 of the Clean Water Act
`
`(“CWA”), 33 U.S.C. § 1365, as amended. Plaintiff Columbia Riverkeeper (“Riverkeeper”) seeks
`
`declaratory and injunctive relief, the imposition of civil penalties, and the award of costs,
`
`including attorneys’ and expert witness fees for Defendant Thompson Metal Fab, Inc.’s
`
`
`
`COMPLAINT - 1
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`1 2 3 4 5 6 7 8 9
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 2 of 37
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`
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`(“Thompson Metal”) repeated and ongoing violations of the terms and conditions of its National
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`Pollutant Discharge Elimination System (“NPDES”) permit authorizing discharges of pollutants
`
`from Thompson Metal’s facility to waters of the United States.
`
`II.
`
`JURISDICTION AND VENUE
`
`2.
`
`This 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).
`
`Thompson Metal is in violation of an “effluent standard or limitation” as defined by section
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`505(f) of the CWA, 33 U.S.C. § 1365(f). The relief requested herein is authorized by sections
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`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),
`
`Riverkeeper notified Thompson Metal and its registered agent of Thompson Metal’s violations
`
`of its NPDES permits and of Riverkeeper’s intent to sue under the CWA, by letter dated and
`
`postmarked October 27, 2020 (“Notice Letter”). A copy of the Notice Letter is attached to this
`
`complaint as Exhibit 1. The allegations in sections II–IX of the Notice Letter, attached hereto as
`
`Exhibit 1 at 2–15, are hereby incorporated by reference. Riverkeeper also notified the
`
`Administrator of the United States Environmental Protection Agency (“EPA”), the Administrator
`
`of EPA Region 10, and the Director of Washington Department of Ecology (“Ecology”) by
`
`mailing copies to the Notice Letter to those officials on October 27, 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 continuing and/or
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`reasonably likely to recur. Thompson Metal is in violation of its NPDES permit.
`
`
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`COMPLAINT - 2
`No. 3:21-cv-05008
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`
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 3 of 37
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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
`
`Notice Letter.
`
`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.
`
`Riverkeeper is a 501(c)(3) non-profit corporation registered in the State of Washington. The
`
`mission of Riverkeeper is to restore and protect the water quality of the Columbia River and all
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`life connected to it, from the headwaters to the Pacific Ocean. To achieve these objectives,
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`Riverkeeper implements scientific, educational, and legal programs aimed at protecting water
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`quality and habitat in the Columbia River Basin. This lawsuit is part of Riverkeeper’s effort to
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`improve water quality in the Columbia River Basin for purposes including recreation, habitat
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`quality, and subsistence, recreational, and commercial fishing.
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`9.
`
`Riverkeeper has representational standing to bring this action. Riverkeeper has
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`over 16,000 members, many of whom reside in the vicinity of waters affected by Thompson
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`Metal’s discharges of pollutants. Members of Riverkeeper use and enjoy the waters and the
`
`surrounding areas that are adversely affected by Thompson Metal’s discharges. Riverkeeper’s
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`members use these areas for, inter alia, fishing, swimming, hiking, walking, photography,
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`boating, and observing wildlife. Thompson Metal has consistently violated the conditions of its
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`NPDES permits and exceeded the permits’ benchmark pollutant discharge levels. Riverkeeper
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`has serious concerns about the impacts of Thompson Metal’s operations and industrial
`
`stormwater discharges on the Columbia River. Thompson Metal’s operations and stormwater
`
`
`
`COMPLAINT - 3
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 4 of 37
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`discharges degrade water quality in the Columbia River Basin. The environmental, health,
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`aesthetic, and recreational interests of Riverkeeper’s members have been, are being, and will be
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`adversely affected by Thompson Metal’s NPDES permit violations addressed herein and by the
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`members’ reasonable concerns related to the effects of the violations and pollutant discharges.
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`These injuries are fairly traceable to the violations and redressable by this Court.
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`10.
`
`Riverkeeper also has organizational standing to bring this action. Riverkeeper
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`actively engages in a variety of educational and advocacy efforts to improve water quality in the
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`Columbia River and its tributaries. Thompson Metal has failed to fulfill its monitoring,
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`recordkeeping, reporting, public disclosure, and planning requirements, among others, necessary
`
`for compliance with its NPDES permits. As a result, Riverkeeper is deprived of information that
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`supports its ability to serve its members by disseminating information and taking appropriate
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`action. Riverkeeper’s efforts to educate and advocate for greater environmental protection for the
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`benefit of its members is thereby obstructed. Thus, Riverkeeper’s organizational interests have
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`been adversely affected by Thompson Metal’s violations. These injuries are fairly traceable to
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`Thompson Metal’s violations and redressable by this Court.
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`11.
`
`Defendant Thompson Metal is a corporation organized and existing under the
`
`laws of the State of Oregon and is authorized to conduct business in Washington.
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`12.
`
`Thompson Metal owns and operates its industrial facility at or near 3000 SE
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`Hidden Way, Vancouver, Washington 98661 (hereinafter “the Facility”). Thompson Metal’s
`
`Facility is on land and adjacent to the Columbia River. Thompson Metal’s Facility discharges
`
`stormwater associated with industrial activity, and pollutants contained therein, to the Columbia
`
`River.
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`
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`
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`
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`COMPLAINT - 4
`No. 3:21-cv-05008
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`
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 5 of 37
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`IV.
`
`LEGAL BACKGROUND
`
`13.
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`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.
`
`14.
`
`The State of Washington has established a federally approved state NPDES
`
`program 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).
`
`15.
`
`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 most recent of
`
`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”). The previous iteration was issued on
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`December 3, 2014, became effective on January 2, 2015, and expired on December 31, 2019 (the
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`“2015 General Permit”). The General Permit, in its various iterations since its first issuance in
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`1993, all of which contain comparable requirements, authorizes those that obtain coverage
`
`thereunder to discharge stormwater associated with industrial activity, a pollutant under the
`
`CWA, and other pollutants contained in the stormwater to waters of the United States subject to
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`certain terms and conditions.
`
`16.
`
`The 2015 General Permit and the 2020 General Permit (collectively, “General
`
`Permits”) impose terms and conditions, including discharge monitoring and sampling
`
`requirements, reporting and recordkeeping requirements, public disclosure requirements, and
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`restrictions on the quality of stormwater discharges. To reduce and eliminate pollutants in
`
`stormwater discharges, the General Permits require, among other things, that permittees develop
`
`and implement a Stormwater Pollution Prevention Plan (“SWPPP”) that includes appropriate
`
`
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`COMPLAINT - 5
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`1 2 3 4 5 6 7 8 9
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 6 of 37
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`best management practices (“BMPs”) and that applies all known and reasonable methods of
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`pollution prevention, control, and treatment (“AKART”) to discharges. The specific terms and
`
`conditions of the General Permits are described in detail in sections II–IX of the Notice Letter,
`
`attached hereto as Exhibit 1 at 2–15.
`
`V.
`
`FACTS
`
`30.
`
`Thompson Metal was granted coverage for the Facility under the 2015 General
`
`Permit for that permit’s effective date of January 2, 2015 through its expiration on December 31,
`
`2019 under NPDES Permit Number WAR000252. Thompson Metal was granted coverage under
`
`the 2020 General Permit on its effective date of January 1, 2020 and maintains the same NPDES
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`Permit Number WAR000252.
`
`31.
`
`Thompson Metal discharges stormwater associated with industrial activity and
`
`other pollutants into the Columbia River via tributaries and/or stormwater conveyance systems.
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`32.
`
`Thompson Metal has violated the terms and conditions of the General Permits.
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`Thompson Metal’s violations of the General Permits are set forth in sections II through IX of the
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`Notice Letter, attached hereto as Exhibit 1 at 2–15, and are incorporated herein by this reference.
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`In particular, and among the other violations described in the Notice Letter, Thompson Metal has
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`violated the General Permits by failing to monitor discharges, develop and implement a SWPPP
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`with adequate BMPs to control stormwater quality, timely complete adaptive management
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`responses, timely submit complete and accurate reports, and timely provide access to or a copy
`
`of the Facility’s SWPPP upon request by Riverkeeper.
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`33.
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`The General Permits require Thompson Metal to monitor stormwater discharges
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`in a manner that is representative of discharges from the Facility. The stormwater monitoring
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`data described in Table 1, below, are the stormwater monitoring results that Thompson Metal
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`submitted to Ecology on discharge monitoring reports (“DMRs”) under the requirements of the
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`
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`COMPLAINT - 6
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 7 of 37
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`General Permits. Thompson Metal has discharged stormwater containing levels of pollutants that
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`exceed the benchmark values established by the General Permits, including on the days on which
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`Thompson Metal collected samples with the results identified in bold in Table 1, below.
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`Monitoring
`Period
`
`
`1st Quarter 2015
`
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`2nd Quarter
`2015
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`3rd Quarter 2015
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`4th Quarter 2015
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`1st Quarter 2016
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`Table 1: DMR Monitoring Data Reported by Thompson Metal
`Turbidity
`Zinc
`Copper
`(units: NTU)
`(units: µg/L)
`(units: µg/L)
`Benchmark: 25
`Benchmark: 117
`Benchmark: 14
`4.8
`68
`10.55
`1.1
`2.1
`0
`1.4
`21
`2.8
`2.1
`66
`2.1
`4.2
`31
`11
`0.17
`54
`4.3
`0.72
`52
`8.6
`2.5
`32
`10
`2.3
`12
`4.4
`0.54
`1.1
`<0.5
`2.4
`8.3
`0.96
`880
`3.3
`4.3
`2.5
`62
`2.3
`0.64
`0
`0
`10
`18
`3.7
`740
`2.4
`3.3
`23
`BD
`47
`28
`10
`10
`25
`45
`9.3
`48
`18
`49
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`12
`22
`10
`2
`4.0
`3.9
`11
`18
`5.5
`21
`94
`8.9
`5.5
`46
`11
`1.2
`2.4
`0.93
`6.9
`37
`4.6
`
`Discharge
`Point
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`
`
`2nd Quarter
`2016
`
`
`3rd Quarter 2016
`
`
`4th Quarter 2016
`
`
`1st Quarter 2017
`
`
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`COMPLAINT - 7
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 8 of 37
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`2nd Quarter 2017
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`3rd Quarter 2017
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`4th Quarter 2017
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`
`1st Quarter 2018
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`2nd Quarter 2018
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`3rd Quarter 2018
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`4th Quarter 2018
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`1st Quarter 2019
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`2nd Quarter 2019
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`3rd Quarter 2019
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`4th Quarter 2019
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`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`1
`3
`4
`5
`
`2.3
`5.6
`1.2
`11
`0.66
`CA
`1.2
`CA
`4.6
`CA
`0.68
`CA
`2.3
`CA
`0.99
`CA
`35
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`CA
`3.1
`CA
`4.6
`CA
`9.4
`CA
`12
`ND
`ND
`ND
`ND
`M
`2.3
`M
`1.8
`CA
`6.4
`CA
`7.9
`
`59
`17
`1.9
`22
`82
`65
`CA
`CA
`3,000
`43
`CA
`CA
`1,100
`CA
`CA
`CA
`20
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`CA
`CA
`CA
`1,300
`CA
`CA
`CA
`350
`ND
`ND
`ND
`ND
`M
`M
`M
`17
`CA
`CA
`CA
`1,450
`
`3.4
`7.9
`0.76
`6.1
`8.4
`10
`BD
`CA
`6.8
`3.4
`0.54
`CA
`54
`4.1
`0.71
`CA
`2.6
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`ND
`10
`CA
`CA
`280
`15
`CA
`CA
`10
`ND
`ND
`ND
`ND
`1.7
`M
`M
`1.3
`8.7
`CA
`CA
`5.8
`
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`COMPLAINT - 8
`No. 3:21-cv-05008
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`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 9 of 37
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`1st Quarter 2020
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`2nd Quarter 2020
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`
`3rd Quarter 2020
`
`5.6
`CA
`CA
`3.4
`3.8
`CA
`12
`1.8
`7.1
`5.5
`20
`2.8
`
`CA
`CA
`1
`CA
`1.6
`3
`CA
`CA
`4
`565
`4.6
`5
`CA
`2.5
`1
`855
`7.8
`3
`77
`95
`4
`260
`2.2
`5
`5.8
`4.15
`1
`577.5
`8.7
`3
`200
`170
`4
`850
`2.1
`5
`Monitoring results shown in Bold exceed the General Permits’ benchmarks
`“CA”: DMR represented facility was at “consistent attainment”
`“ND”: DMR represented facility had no discharge during monitoring period
`“M”: DMR represented monitoring is conditional
`“BD”: DMR represented that result was below detection level for lab analysis
`
`
`34.
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`Thompson Metal’s exceedances of the benchmark values indicate that Thompson
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`Metal is failing to apply AKART to its discharges and/or is failing to implement an adequate
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`SWPPP and BMPs. Upon information and belief, Thompson Metal is in violation of the General
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`Permits by not developing and/or implementing a SWPPP that includes appropriate BMPs in
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`accordance with the requirements of the General Permits, by not applying AKART to discharges,
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`by not implementing BMPs necessary to prevent discharges from contributing to violations of
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`water quality standards in the receiving waters, and by discharging in a manner that contributes
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`to violations of water quality standards. These requirements, and Thompson Metal’s violations
`
`thereof, are described in detail in sections II and III of the Notice Letter, attached hereto as
`
`Exhibit 1 at 2–9, and are incorporated herein by this reference.
`
`35.
`
`Thompson Metal has violated the monitoring requirements of the General
`
`Permits. For example, as indicated in Table 1, above, Thompson Metal has failed to collect,
`
`analyze, and report discharge samples during each calendar quarter as required by the General
`
`Permits. Thompson Metal failed to collect stormwater samples at any of its discharge points
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`during the following quarterly monitoring periods: the second and third quarters of 2016, the
`
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`KAMPMEIER & KNUTSEN PLLC
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`COMPLAINT - 9
`1300 SE Start Street, Suite 202
`No. 3:21-cv-05008
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 10 of 37
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`second and third quarters of 2018, and the second quarter of 2019. Thompson Metal has also
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`violated and continues to violate these conditions because the Facility discharges from distinct
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`points of discharge that are not monitored and that are not substantially identical to those outfalls
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`that are monitored by Thompson Metal. These requirements of the General Permits, and
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`Thompson Metal’s violations thereof, are described in detail in section IV.A of the Notice Letter,
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`attached hereto as Exhibit 1 at 9, and are incorporated herein by this reference.
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`36.
`
`Thompson Metal has further failed to analyze quarterly samples in the manner
`
`required, including by failing to analyze discharge samples for the parameters as identified in
`
`Table 2 below, which includes instances where Thompson improperly claimed analysis was not
`
`required under the General Permits’ consistent attainment provisions.
`
`Monitoring
`Period
`2nd Quarter 2016
`
`3rd Quarter 2016
`
`
`3rd Quarter 2017
`
`
`
`4th Quarter 2017
`
`
`
`
`1st Quarter 2018
`
`
`
`COMPLAINT - 10
`No. 3:21-cv-05008
`
`Table 2: Pollutant Parameters Not Analyzed
`Discharge
`Point(s)
`1, 3, 4, 5
`
`1, 3, 4, 5
`1
`3
`
`4
`
`5
`1
`3
`
`4
`
`5
`1
`
`3
`
`4
`
`5
`
`Parameters Not Analyzed
`turbidity, pH, oil sheen, total copper, total zinc, total lead,
`and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, oil sheen, total copper, total zinc, total lead,
`and petroleum hydrocarbons (diesel fraction)
`Turbidity
`total zinc, total lead, and petroleum hydrocarbons (diesel
`fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity
`total zinc, total lead, and petroleum hydrocarbons (diesel
`fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total zinc, total lead, and petroleum hydrocarbons (diesel
`fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 11 of 37
`
`2nd Quarter 2018
`
`1, 3, 4, 5
`
`3rd Quarter 2018
`
`
`
`4th Quarter 2018
`
`
`
`
`1st Quarter 2019
`
`2nd Quarter 2019
`
`
`
`3rd Quarter 2019
`
`
`
`
`4th Quarter 2019
`
`
`
`
`1st Quarter 2020
`
`
`2nd Quarter 2020
`
`1, 3, 4, 5
`1
`
`3
`
`4
`
`5
`1
`
`3
`
`4
`
`5
`1, 3, 4, 5
`1
`
`3
`
`4
`
`5
`1
`
`3
`
`4
`
`5
`1
`
`3
`
`4
`
`5
`1
`
`3
`
`turbidity, pH, oil sheen, total copper, total zinc, total lead,
`and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, oil sheen, total copper, total zinc, total lead,
`and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total copper, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total copper, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, oil sheen, total copper, total zinc, total lead,
`and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, oil sheen, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total copper, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total copper, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`turbidity, pH, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`pH, total copper, total zinc, total lead, and petroleum
`hydrocarbons (diesel fraction)
`turbidity, pH, total copper, total zinc, total lead, and
`petroleum hydrocarbons (diesel fraction)
`pH, total lead, and petroleum hydrocarbons (diesel fraction)
`pH, total zinc, total lead, and petroleum hydrocarbons (diesel
`fraction)
`pH and total copper
`
`
`
`
`
`
`
`COMPLAINT - 11
`No. 3:21-cv-05008
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 12 of 37
`
`
`
`These requirements, and Thompson Metal’s violations thereof, are described in section IV.B of
`
`the Notice Letter, attached hereto as Exhibit 1 at 9–11, and are incorporated herein by this
`
`reference.
`
`37.
`
`Thompson Metal has not conducted and/or completed the corrective action
`
`responses as required by the General Permits. These requirements of the General Permits, and
`
`Thompson Metal’s violations thereof, are described in section V of the Notice Letter, attached
`
`hereto as Exhibit 1 at 11–13, and are incorporated herein by this reference.
`
`38.
`
`The General Permits require a permittee to undertake a Level 1 corrective action
`
`whenever contamination in the permittee’s stormwater discharge exceeds a 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 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 implementing the
`
`revised SWPPP as soon as possible, but no later than the discharge monitoring 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.
`
`39.
`
`Thompson Metal triggered a Level 1 corrective action for each benchmark
`
`exceedance identified in Table 1, above. Thompson Metal has violated the requirements of the
`
`General Permits by failing to conduct a Level 1 corrective action in accordance with permit
`
`conditions each time since and including the third quarter of 2015 that Thompson Metal’s
`
`quarterly stormwater sampling results were greater than a benchmark for turbidity, zinc, or
`
`copper, including the benchmark excursions listed in Table 1, above. These corrective action
`
`requirements, and Thompson Metal’s violations thereof, are described in section V.A. of the
`
`
`
`COMPLAINT - 12
`No. 3:21-cv-05008
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 13 of 37
`
`
`
`Notice Letter, attached hereto as Exhibit 1 at 11–12, and are incorporated herein by this
`
`reference.
`
`40.
`
`The General Permits require a permittee to undertake a Level 2 corrective action
`
`whenever its discharges exceed a particular benchmark value for any two quarters during a
`
`calendar year. A Level 2 corrective action comprises reviewing the SWPPP to ensure permit
`
`compliance; revising the SWPPP to include additional structural source control BMPs with the
`
`goal of achieving the benchmark in future discharges; signing and certifying the revised SWPPP;
`
`summarizing the Level 2 corrective action (planned or taken) in the annual report; and fully
`
`implementing the revised SWPPP by August 31 of the following year, including installation of
`
`necessary structural source control BMPs. The 2020 General Permit requires the implementation
`
`of any Level 2 correction actions triggered under the 2015 General Permit.
`
`41.
`
`Thompson Metal triggered Level 2 corrective action requirements for pollutant
`
`parameters as indicated by the benchmark exceedances in Table 1, above. Thompson Metal
`
`violated the requirements of the General Permits described above by failing to conduct Level 2
`
`corrective actions in the manner required each time Thompson Metal’s stormwater sampling
`
`results triggered the requirements of a Level 2 corrective action under the provisions of the
`
`General Permits since and including 2015. These corrective action requirements, and Thompson
`
`Metal’s violations thereof, are described in section V.B of the Notice Letter, attached hereto as
`
`Exhibit 1 at 12–13, and are incorporated herein by this reference.
`
`42.
`
`The General Permits require Thompson Metal to submit an accurate and complete
`
`annual report to Ecology no later than May 15 of each year that includes specific information.
`
`Thompson Metal 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 Thompson Metal’s
`
`
`
`COMPLAINT - 13
`No. 3:21-cv-05008
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 14 of 37
`
`
`
`violations thereof, are described in section VI of the Notice Letter, attached hereto as Exhibit 1 at
`
`13–14, and are incorporated herein by this reference.
`
`43.
`
`Upon information and belief, Thompson Metal has failed to comply with
`
`recording and record keeping requirements of the General Permits. These requirements, and
`
`Thompson Metal’s violations thereof, are described in section VII of the Notice Letter, attached
`
`hereto as Exhibit 1 at 14–15, and are incorporated herein by this reference.
`
`44.
`
`The General Permits require a permittee to take certain reporting and other
`
`responsive actions each time the permittee violates any terms and conditions of the General
`
`Permits in a manner that may endanger human health or the environment. Thompson Metal has
`
`repeatedly violated these requirements, including each and every time during the last five years
`
`and sixty days that Thompson Metal: failed to comply with corrective action requirements,
`
`discharged stormwater with concentrations of pollutants that are likely to cause or contribute to
`
`violations of water quality standards, and failed to collect and/or analyze discharge samples as
`
`required by the General Permits. These requirements, and Thompson Metal’s violations thereof,
`
`are described in section VIII of the Notice Letter, attached hereto as Exhibit 1 at 15, and are
`
`incorporated herein by reference.
`
`45.
`
`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
`
`herein by this reference, Riverkeeper requested a copy of or access to Thompson Metal’s
`
`complete SWPPP in the Notice Letter dated October 27, 2020. Thompson Metal received the
`
`Notice Letter with that request on or before October 30, 2020. As of the filing of this complaint,
`
`Thompson Metal has not provided Riverkeeper a copy of or access to the SWPPP for the
`
`
`
`COMPLAINT - 14
`No. 3:21-cv-05008
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 15 of 37
`
`
`
`Facility. Thompson Metal is therefore in violation of the General Permits by failing to produce a
`
`complete SWPPP for the facility.
`
`46.
`
`The violations alleged herein are ongoing because they are continuing and/or are
`
`reasonably likely to recur. For example, Thompson Metal’s failure to timely and fully complete
`
`corrective actions are continuing violations and their repeated occurrence throughout the
`
`limitations period indicates that such violations are likely to recur. Similarly, Thompson Metal’s
`
`repeated exceedances of benchmarks indicates that Thompson Metal is continuing to fail to
`
`develop and implement an adequate SWPPP, as does Thompson Metal’s refusal to timely
`
`provide a complete copy of its SWPPP to Columbia Riverkeeper upon request. Further,
`
`Thompson Metal has yet to submit complete and accurate annual reports or reports of permit
`
`violations as required under the General Permits, which constitute continuing violations.
`
`47.
`
`Discharges from Thompson Metal’s Facility contribute to the polluted conditions
`
`of the waters of the United States, including the Columbia River. Discharges from Thompson
`
`Metal’s Facility contribute to the ecological impacts that result from the polluted condition of
`
`these waters and to Riverkeeper’s and its members’ injuries resulting therefrom.
`
`48.
`
`The vicinity of the Facility’s discharges are used by the citizens of Washington
`
`and Oregon and visitors, as well as at least one of Riverkeeper’s members, for activities
`
`including swimming, boating, biking, fishing and nature watching. Riverkeeper’s member(s) also
`
`derive(s) aesthetic benefits from the receiving waters. Riverkeeper’s and its members’ enjoyment
`
`of these activities and waters is diminished by the polluted state of the receiving waters and by
`
`Thompson Metal’s contributions to such a polluted state.
`
`49.
`
`A significant penalty should be imposed against Thompson Metal under the
`
`penalty factors set forth in section 309(d) of the CWA, 33 U.S.C. § 1319(d).
`
`
`
`COMPLAINT - 15
`No. 3:21-cv-05008
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 SE Start Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 3:21-cv-05008 Document 1 Filed 01/06/21 Page 16 of 37
`
`
`
`50.
`
`Thompson Metal’s violations were avoidable had Thompson Metal been diligent
`
`in overseeing the Fa