Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 1 of 91
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`Claire Tonry
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Simone Anter
`Columbia Riverkeeper
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`(541) 399-5312
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`COLUMBIA RIVERKEEPER,
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` Plaintiff,
`v.
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`MERCURY PLASTICS, INC.,
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` Defendant.
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`___________________________________
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`I.
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`COMPLAINT
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`INTRODUCTION
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`1.
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`This action is a citizen suit brought under Section 505 of the Clean Water Act
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`(“CWA”) as amended, 33 U.S.C. § 1365. Plaintiff Columbia Riverkeeper seeks a declaratory
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`judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including
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`attorneys’ and expert witnesses’ fees, for Defendant Mercury Plastics, Inc.’s repeated and
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`ongoing violations of Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342, and
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`the terms and conditions of its National Pollutant Discharge Elimination System (“NPDES”)
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`COMPLAINT - 1
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 2 of 91
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`permit authorizing discharges of pollutants from Defendant’s Vancouver, Washington, facility to
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`navigable waters.
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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). The relief requested herein is authorized by 33 U.S.C. §§ 1319(d) and
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`1365(a).
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`3.
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`Under Section 505 (b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), Plaintiff
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`notified Defendant of Defendant’s violations of the CWA and of Plaintiff’s intent to sue under
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`the CWA by letter dated and postmarked August 13, 2021 and delivered August 16, 2021
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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 the Notice Letter are incorporated herein by this reference. Plaintiff notified
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`Defendant’s Registered Agent, the Administrator of the United States Environmental Protection
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`Agency (“USEPA”), the Administrator of USEPA Region 10, and the Director of the
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`Washington Department of Ecology (“WDOE”) of its intent to sue Defendant by mailing copies
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`of the Notice Letter to these officials on August 13, 2021.
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`4.
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`More than sixty days have passed since the Notice Letter was served and the
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`violations complained of in the Notice Letter are continuing or are reasonably likely to continue
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`to occur. Defendant is in violation of its NPDES permit and the CWA. Neither the USEPA nor
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`the WDOE has commenced any action constituting diligent prosecution to redress these
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`violations.
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`5.
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`The source of the violations complained of is located in Clark County,
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`Washington, within the Western District of Washington, and venue is therefore appropriate in
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`COMPLAINT - 2
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 3 of 91
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`the Western District of Washington pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. §
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`1365(c)(1).
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`III.
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`PARTIES
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`6.
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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 organized under the laws of the State of
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`Washington. The mission of Columbia Riverkeeper is to restore and protect the water quality of
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`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 the 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
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`Basin for purposes including recreation, habitat quality, and subsistence, recreational, and
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`commercial fishing.
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`7.
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`Plaintiff has representational standing to bring this action. Columbia Riverkeeper
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`has over 16,000 members, many of whom reside in the vicinity of waters affected by
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`Defendant’s discharges of pollutants. Members of Columbia Riverkeeper use and enjoy the
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`waters and surrounding areas that are adversely affected by Defendant’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 Defendant’s operations and polluted industrial stormwater
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`discharges on the Columbia River. The environmental, health, aesthetic, and recreational
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`interests of Columbia Riverkeeper’s members have been, are being, and will be adversely
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`affected by Defendant’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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`COMPLAINT - 3
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 4 of 91
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`discharges from Defendant’s facility lessen Columbia Riverkeeper’s members’ aesthetic
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`enjoyment of nearby areas. Columbia Riverkeeper’s members’ concerns about the effects of
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`Defendant’s discharges are aggravated by Defendant’s failure to record and report information
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`about its discharges and pollution controls. These injuries are fairly traceable to the Defendant’s
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`violations of the CWA and are redressable by the Court.
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`8.
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`Plaintiff has organizational standing to bring this action. Plaintiff actively
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`engages in a variety of educational and advocacy efforts to improve water quality and to address
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`sources of water quality degradation in the Columbia River and its tributaries. Defendant has
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`failed to fulfill monitoring, recordkeeping, reporting, public disclosure, and planning
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`requirements, among others, necessary for compliance with its NPDES permit and the CWA. As
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`a result, Plaintiff is deprived of information that supports its ability to advance its mission and
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`serve its members by disseminating information and taking appropriate action. Plaintiff’s efforts
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`to educate and advocate for greater environmental protection for the benefit of its members is
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`thereby obstructed. Finally, Plaintiff and the public are deprived of information that influences
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`members of the public to become members of Columbia Riverkeeper, thereby reducing
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`Columbia Riverkeeper’s membership numbers. Thus, Plaintiff’s organizational interests have
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`been adversely affected by Defendant’s violations. These injuries are fairly traceable to
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`Defendant’s violations and are redressable by the Court.
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`9.
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`Defendant is a corporation authorized to do business in Washington.
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`10.
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`Defendant operates a thermoforming, plastics fabrication, and printing facility,
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`located at or about 3807 SE Hidden Way, Vancouver, Washington, 98661, including contiguous
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`or adjacent properties owned or operated by Defendant (the “facility”).
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`COMPLAINT - 4
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 5 of 91
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`IV. LEGAL BACKGROUND
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`11.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
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`pollutants by any person, unless in compliance with the provisions of the CWA. Section 301(a)
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`prohibits, inter alia, such discharges not authorized by, or in violation of, the terms of a NPDES
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`permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342.
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`12.
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`The State of Washington has established a federally approved state NPDES
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`program administered by the WDOE. WASH. REV. CODE § 90.48.260; WASH. ADMIN.
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`CODE Ch. 173-220. This program was approved by the Administrator of the USEPA pursuant to
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`33 U.S.C. § 1342(b).
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`13.
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`Pursuant to Section 402(a) of the CWA, 33 U.S.C. § 1342(a), the WDOE has
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`repeatedly issued the Industrial Stormwater General Permit (“ISGP” or “General Permit”), most
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`recently on November 20, 2019, effective January 1, 2020, and set to expire on December 3,
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`2024 (the “2020 Permit”). The previous iteration of the permit was issued December 3, 2014,
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`became effective January 2, 2015, and expired December 31, 2019 (the “2015 Permit”). The
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`2015 Permit and 2020 Permit (collectively, “the Permits”), contain substantially similar
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`requirements and authorize those that obtain coverage under the General Permit to discharge
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`stormwater, a pollutant under the CWA, and other pollutants contained in the stormwater to the
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`waters of the State subject to certain terms and conditions.
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`14.
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`The Permits impose certain terms and conditions on those covered thereby,
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`including monitoring and sampling of discharges, reporting and recordkeeping requirements. To
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`reduce and eliminate pollutant concentrations in stormwater discharges, the Permits require,
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`among other things, that permittees develop and implement best management practices
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`(“BMPs”) and a Stormwater Pollution Prevention Plan (“SWPPP”), and apply all known and
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`COMPLAINT - 5
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 6 of 91
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`reasonable methods of prevention, control and treatment (“AKART”) to discharges. When a
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`permittee’s stormwater discharge exceeds benchmark values for concentrations of certain
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`pollutants the Permits require the permittee to complete the applicable Level 1, 2, or 3 corrective
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`action requirements. The specific terms and conditions of the General Permit are described in
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`detail in the Notice Letter, attached hereto as Exhibit 1, and incorporated herein by this
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`reference.
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`V.
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`FACTS
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`15.
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`Pursuant to Condition S2 of the Permits, WDOE granted the Defendant General
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`Permit coverage for the facility under Permit Number WAR003984.
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`16.
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`Defendant’s facility is engaged in industrial activity and discharges stormwater
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`and other pollutants to the Columbia River via pipes, drains, and other discrete stormwater
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`conveyances.
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`17.
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` Discharges from Defendant’s facility contribute to the polluted conditions of the
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`waters of the State, including to the impairment of the Columbia River for temperature, dissolved
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`oxygen, turbidity, copper, zinc and aesthetic values, which has resulted in the inclusion of the
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`Columbia River on the 303(d) list of impaired waters. Discharges from Defendant’s facility
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`contribute to the ecological impacts that result from the polluted state of these waters and to
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`Plaintiff’s and their members’ injuries resulting therefrom.
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`18.
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`The vicinity of the facility and the receiving waters are used by the citizens of
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`Washington and visitors, as well as at least one of Plaintiff’s members, for recreational activities,
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`including boating, biking, fishing and nature watching. Plaintiff’s member(s) also derive(s)
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`aesthetic benefits from the receiving waters. Plaintiff’s and its members’ enjoyment of these
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`COMPLAINT - 6
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 7 of 91
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`activities and waters is diminished by the polluted state of the receiving waters and by
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`Defendant’s contributions to such polluted state.
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`19.
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`Defendant has violated the Permits and Sections 301(a) and 402 of the CWA, 33
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`U.S.C. §§ 1311(a) and 1342, by discharging pollutants in violation of an NPDES Permit.
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`Defendant’s violations of the Permits and the CWA are set forth in full in the Notice Letter,
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`attached hereto as Exhibit 1, and are incorporated herein by this reference. In particular and
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`among the other violations described in the Notice Letter, Defendant has frequently failed to
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`monitor and report the quality of its stormwater discharges; discharged pollution in amounts that
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`cause or contribute to violations of water quality standards; failed to prepare and implement a
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`compliant SWPPP; failed to comply with the Permits’ corrective action requirements; and failed
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`to implement best management practices to control stormwater quality as required by the
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`Permits.
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`20.
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`Defendant has discharged stormwater containing levels of pollutants that exceed
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`the benchmark values established in the Permits, as specified in Table 1 below. Defendant’s
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`stormwater discharges are causing or contributing to violations of water quality standards and
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`therefore violate the Permits, Condition S10.A. Additionally, Defendant’s exceedances of the
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`benchmark values demonstrate that Defendant is failing to apply AKART to its discharges
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`and/or is failing to implement an adequate SWPPP and BMPs. These requirements and
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`violations are described in detail in section II of the Notice Letter, attached hereto as Exhibit 1,
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`and are incorporated herein by this reference.
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`21.
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`Defendant has sampled its stormwater discharges in the calendar quarters
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`identified in Table 1 of this Complaint and determined that such discharges contained pollution
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`in amounts exceeding benchmarks, as shown in Table 1.
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`COMPLAINT - 7
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 8 of 91
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`Table 1: Mercury Plastics Stormwater Discharges that Exceed Benchmark Values from 1st
`Quarter 2016 to 2nd Quarter 2021
`Turbidity
`Zinc
`(Benchmark 25 NTU)
`(Benchmark 117
`µg/L)
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`Quarter in which
`sample was collected
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`1Q 2016
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`43
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`Copper
`(Benchmark 14 µg/L)
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`1
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`2Q 2016
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`1Q 2017
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`2Q 2017
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`3Q 2017
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`2Q 2018
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`4Q 2018
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`1Q 2019
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`1Q 2020
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`3Q 2020
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`4Q 2020
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`2Q 2021
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`66
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`38
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`41.5
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`33
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`27
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`52
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`36
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`27
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`37
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`340
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`200
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`132
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`118
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`1000
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`190
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`140
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`30.8
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`68
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`22.
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`The stormwater samples identified in Table 1 are representative of and accurately
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`characterize the quality of stormwater discharges generated by the facility during the associated
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`calendar quarter.
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`23.
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`Defendant has not developed and/or implemented a SWPPP in accordance with
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`the requirements of the Permits, Condition S3. Defendant’s SWPPP does not specify all of the
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`BMPs that are necessary to provide AKART and to ensure that discharges do not cause or
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`contribute to violations of water quality standards, does not include a compliant site map, does
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`not include an adequate facility assessment, inventory of industrial activities and inventory of
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`materials in sufficient detail, does not include a compliant stormwater sampling plan and does
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`not satisfy other requirements of the Permits, including certain mandatory BMPs. These SWPPP
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`COMPLAINT - 8
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 9 of 91
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`requirements and violations are described in detail in section III of the Notice Letter, attached
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`hereto as Exhibit 1, and are incorporated herein by this reference.
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`24.
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`Defendant has violated and continues to violate the monitoring requirements in
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`the Permits. See 2020 Permit Conditions S3.B.5, S4 and S9.B and E; 2015 Permit Conditions
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`S3.B.5, S4 and S9.A and D. Defendant has failed to collect stormwater samples and/or submit
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`discharge monitoring reports each quarter during the last five years that it failed to collect
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`stormwater samples from all distinct points of discharge, including Outfall 3, which includes all
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`four quarters of 2016, all four quarters of 2017, all four quarters of 2018, all four quarters of
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`2019, all four quarters of 2020, and to date in 2021.
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`25.
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`Defendant failed to collect stormwater samples and/or to submit a DMR within
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`the time prescribed for Monitoring Point 1 for the third quarter of 2016, second quarter of 2018,
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`first quarter of 2020, and for Monitoring Point 003 each and every quarter during the last five
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`years. These monitoring requirements and violations are described in section IV of the Notice
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`Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`26.
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`Defendant has not conducted and/or documented inspections as required by the
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`Permit Condition S7. These inspection requirements and violations are described in detail in
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`section IV.C of the Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by
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`this reference.
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`27.
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`Defendant has not conducted and/or completed the corrective action responses as
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`required by the Permits. Condition S8.B of the Permits require permittee to undertake a Level 1
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`corrective action whenever it exceeds a benchmark value identified in Condition S5. A Level 1
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`corrective action comprises an inspection to investigate the cause of the benchmark exceedance
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`within 14 days of receipt of the corresponding sample results, review of the SWPPP to ensure
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`COMPLAINT - 9
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 10 of 91
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`permit compliance, revisions to the SWPPP to include additional operational source control
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`BMPs with the goal of achieving the applicable benchmark values in future discharges, including
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`signature and certification of the revised SWPPP, summary of the Level 1 corrective action in
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`the annual report, and full implementation of the revised SWPPP as soon as possible, but no later
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`than the DMR due date for the quarter the benchmark was exceeded. Defendant was required to
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`complete a Level 1 corrective action for every benchmark exceedance identified in Table 1
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`above. Defendant has not completed all of these corrective actions as required. These corrective
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`action requirements and violations are described in section V.A of the Notice Letter, attached
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`hereto as Exhibit 1, and are incorporated herein by this reference.
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`28.
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`Condition S8.C of the Permits requires Defendant take specified actions, called
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`Level 2 corrective actions, each time quarterly stormwater sample results exceed any of the
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`benchmark values described in Conditions S5.A and S5.B for any two quarters in a calendar
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`year. a Level 2 corrective action requires that Defendant: (1) review the SWPPP for the facility
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`and ensure that it fully complies with Condition S3 of the Permits and contains the correct BMPs
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`from the applicable Stormwater Management Manual; (2) make appropriate revisions to the
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`SWPPP to include additional structural source control BMPs with the goal of achieving the
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`applicable benchmark values in future discharges and sign and certify the revised SWPPP in
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`accordance with the Permits; and (3) summarize the Level 2 corrective action (planned or taken)
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`in the Annual Report required under Condition S9.B of the Permits. Condition S8.C of the
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`Permits requires that Defendant implement the revised SWPPP as soon as possible, and no later
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`than August 31 of the following year from the quarter the benchmark was exceeded. Defendant
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`triggered and failed to perform Level 2 corrective actions including as follows: for turbidity
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`triggered by its stormwater sampling in calendar year 2016; for turbidity triggered by its
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`COMPLAINT - 10
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 11 of 91
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`stormwater sampling in calendar year 2017; for zinc triggered by its stormwater sampling in
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`calendar year 2018; and for zinc and turbidity triggered by its stormwater sampling in calendar
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`year 2020.
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`29.
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`Condition S8.D. of the Permits require a permittee to undertake a Level 3
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`corrective action whenever it exceeds a benchmark value for any three quarters during a calendar
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`year. A Level 3 corrective action comprises review of the SWPPP to ensure permit compliance,
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`revision of the SWPPP to include additional treatment BMPs with the goal of achieving the
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`applicable benchmark value in future discharges, including signature and certification of the
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`revised SWPPP in accordance with Condition S3.A.5., submit an engineering report with certain
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`elements to Ecology for review for any treatment BMPs that require a site-specific design or
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`sizing, summary of the Level 3 corrective action (planned or taken) in the annual report, and full
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`implementation of the revised SWPPP by September 30 of the following year, including
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`installation of necessary treatment BMPs. Defendant triggered Level 3 response requirements
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`for turbidity and zinc in 2020. Defendant has not completed all of the corrective actions as
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`required. These corrective action requirements and violations are described in section V.C of the
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`Notice Letter, attached hereto as Exhibit 1, and are incorporated herein by this reference.
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`30.
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`Defendant is violating the recordkeeping requirements of the Permits. The
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`recordkeeping requirements are outlined in Condition S9.D of the Permits. The Permits require
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`the retention of the records identified for a minimum of five (5) years. Defendant is in violation
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`of this condition by failing to retain the sampling documentation of Condition S4.B.4, the
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`inspection documentation of S7, equipment calibration records, all BMP maintenance records, all
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`original recordings for continuous sampling instrumentation, copies of all laboratory reports as
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`COMPLAINT - 11
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 12 of 91
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`described in S3.B.5, all DMRs, or copies of any other reports required by the Permit for the
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`specified five-year period.
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`31.
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`Defendant has failed to provide Columbia Riverkeeper with a copy of (or access
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`to) its SWPPP as requested in section IX of the Notice Letter and as required by Condition S9.F
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`of the Permits.
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`32.
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`A significant penalty should be imposed against Defendant pursuant to the
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`penalty factors set forth in 33 U.S.C. § 1319(d).
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`33.
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`Defendant’s violations of the CWA degrade the environment and the water
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`quality of the receiving water bodies.
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`34.
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`Defendant’s violations were avoidable had Defendant been diligent in overseeing
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`facility operations and maintenance.
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`35.
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`Defendant has benefited economically as a consequence of its violations and its
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`failure to implement improvements at the facility.
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`VI. CAUSE OF ACTION
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`36.
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`The preceding paragraphs and the allegations in sections II through IX of the
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`Notice Letter are incorporated herein.
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`37.
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`Defendant's violations of its NPDES permit described herein and in the Notice
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`Letter constitute violations of “effluent standard(s) or limitation(s)” as defined by section 505, 33
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`U.S.C. § 1365.
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`38.
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`The violations committed by Defendant are ongoing or are reasonably likely to
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`continue to occur. Any and all additional violations of the General Permit and the CWA which
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`occur after those described in Plaintiff’s Notice Letter but before a final decision in this action
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`should be considered continuing violations subject to this Complaint.
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`COMPLAINT - 12
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`
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 13 of 91
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`39. Without the imposition of appropriate civil penalties and the issuance of an
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`injunction, Defendant is likely to continue to violate the General Permit and the CWA to the
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`further injury of the Plaintiff, its member(s) and others.
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`40.
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`A copy of this Complaint is being served upon the Attorney General of the United
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`States and the Administrator of the USEPA as required by 33 U.S.C. § 1365(c)(3).
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`VII. RELIEF REQUESTED
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`Wherefore, Plaintiff respectfully requests that this Court grant the following relief:
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`A.
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`Issue a declaratory judgment that Defendant has violated and continues to be in
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`violation of the Permits and Sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§ 1311
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`and 1342;
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`Enjoin Defendant from operating its facility in a manner that results in further
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`violations of the Permits or the Clean Water Act;
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`Order Defendant to immediately implement a SWPPP that complies with the
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`2020 Permit, and to provide Plaintiff with a copy of this Plan;
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`Order Defendant to allow Plaintiff to participate in the development and
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`implementation of Defendant’s SWPPP;
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`Order Defendant to provide Plaintiff, for a period beginning on the date of the
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`Court’s Order and running for one year after Defendant achieves compliance with all of the
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`conditions of the Permits, with copies of all reports and other documents which Defendant
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`submits to the USEPA or to the WDOE regarding Defendant’s coverage under the General
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`Permit at the time it is submitted to these authorities;
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`Order Defendant to take specific actions to remediate the environmental harm
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`caused by its violations;
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`COMPLAINT - 13
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 14 of 91
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`G.
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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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`Order Defendant to pay civil penalties of $55,800.00 per day of violation for each
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`violation committed by Defendant since November 2, 2015 and $37,500.00 per day of violation
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`for each violation committed by Defendant before November 2, 2015 pursuant to Sections
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`309(d) and 505(a) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19;
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`I.
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`Award Plaintiff their litigation expenses, including reasonable attorneys’ and
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`expert witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. § 1365(d); and
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`Award such other relief as this Court deems appropriate.
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`J.
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`RESPECTFULLY SUBMITTED this 21st day of October, 2021.
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`Smith & Lowney, pllc
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`By: s/Claire Tonry
`Claire Tonry, WSBA No. 44497
`Attorneys for Plaintiff
`2317 E. John St.,
`Seattle, WA 98112
`Tel: (206) 860-2124
`Fax: (206) 860-4187
`E-mail: claire@smithandlowney.com
`
`
`COLUMBIA RIVERKEEPER
`
`By: s/Simone Anter
`Simone Anter, WSBA #52716
`Attorney for Plaintiff
`407 Portway Ave., Suite 301
`Hood River, OR 97031
`Tel: (541) 399 -5312
`E-mail: simone@columbiariverkeeper.org
`
`COMPLAINT - 14
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`Smith & Lowney pllc
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 15 of 91
`Case 3:21-cv-05784 Document1 Filed 10/21/21 Page 15 of 91
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`Exhibit 1
`Exhibit 1
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`

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`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 16 of 91
`Case 3:21-cv-05784 Document1 Filed 10/21/21 Page 16 of 91
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`SMITH & LOWNEY, P.L.L.C.
`2317 East JOHN STREET
`SEATTLE, WASHINGTON 98112
`(206) 860-2883, Fax (206) 860-4187
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`August 13, 2021
`
`Via Certified Mail - Return Receipt Requested
`
`Managing Agent
`Mercury Plastics, Inc.
`3807 SE Hidden Way
`Vancouver, WA 98661
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`Re:
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`SUPPLEMENTAL NOTICE OF INTENT TO SUE UNDER THE CLEAN WATER
`ACT
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`Dear Managing Agent:
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`The August 11, 2021 Notice of Intent to Sue was inadvertently mailed to you without the
`precipitation data attached. This Supplemental Notice of Intent to Sue is being sent to you to
`provide you with the precipitation data.
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`Sincerely,
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`Smith & Lowney, PLLC
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`By:
`
`
`Alyssa Koepfgen
`
`Legfyen
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`Michael Regan, Administrator, U.S. EPA
`ce:
`Michelle Pirzadeh, Region 10 Administrator, U.S. EPA
`Laura Watson, Director, Washington Department of Ecology
`Registered Agent, Mercury Plastics, 3807 SE Hidden Way, Vancouver, WA 98661
`
`

`

`Case 3:21-cv-05784 Document 1 Filed 10/21/21 Page 17 of 91
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`
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`Smith & Lowney, p.l.l.c.
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883, Fax (206) 860-4187
`
`August 13, 2021
`
`
`Via CERTIFIED MAIL - Return Receipt Requested
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`Managing Agent
`Mercury Plastics, Inc.
`3807 SE Hidden Way
`Vancouver, WA 98661
`
`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
`97031. This letter provides’ notice of Columbia Riverkeeper’s intent to file a citizen suit against
`Mercury Plastics, Inc. (“Mercury Plastics”) under Section 505 of the Clean Water Act (“CWA”),
`33 U.S.C. § 1365, for violations described below. This letter also requests a copy of the complete
`and current stormwater pollution prevention plan (“SWPPP”) required by Mercury Plastic’s
`National Pollution Discharge Elimination System (“NPDES”) permit.
`
`
`Mercury Plastics was granted coverage under Washington’s Industrial Stormwater
`General Permit (“ISGP”) issued by the Washington Department of Ecology (“Ecology”) which
`became effective on January 2, 2015, and expired on December 31, 2019 under NPDES Permit
`WAR003984 (the “2015 Permit”). Ecology granted subsequent coverage under the current
`iteration of the ISGP, issued by Ecology 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, WAR003984.
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`
`Mercury Plastics has violated and continues to violate effluent standard and limitations
`under the CWA (see 33 U.S.C. § 1365(a) and (f)) including 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 3807 SE Hidden Way, Vancouver, Washington 98661 (the “facility”),
`where it operates a thermoforming, plastic fabrication, and printing services facility. The facility
`subject to this Notice includes any contiguous or adjacent properties owned by Mercury Plastics.
`
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`I. COLUMBIA RIVERKEEPER’S COMMITMENT TO PROTECTING A
`FISHABLE AND SWIMMABLE COLUMBIA RIVER.
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`Columbia Riverkeeper’s mission is to restore and protect the water quality of the
`Co