Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 1 of 27
`
`
`
`Richard A. Smith
`Savannah Rose
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
`
`Attorneys for Waste Action Project
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
`
`
`WASTE ACTION PROJECT,
`
` Plaintiff,
`v.
`
`ASSOCIATED PETROLEUM
`PRODUCTS, INC.,
`
` Defendant.
`
`___________________________________
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`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 Waste Action Project seeks a declaratory
`
`judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including
`
`attorneys’ and expert witnesses’ fees, for Defendant Associated Petroleum Products, Inc.’s
`
`(“APP”) repeated and ongoing violations of Sections 301(a) and 402 of the CWA, 33 U.S.C. §§
`
`1311(a) and 1342, and the terms and conditions of its National Pollutant Discharge Elimination
`
`System (“NPDES”) Waste Discharge Permit authorizing discharges of pollutants from APP’s
`
`facility to navigable waters.
`
`COMPLAINT - 1
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`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
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 2 of 27
`
`
`
`
`
`II.
`
`JURISDICTION AND VENUE
`
`2.
`
`The Court has subject matter jurisdiction over Waste Action Project’s claims
`
`under Section 505(a) of the CWA, 33 U.S.C. § 1365(a). The relief requested herein is authorized
`
`by Sections 309(d) and 505(a) and (d) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a) and (d).
`
`
`
`3.
`
`Under Section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), Waste
`
`Action Project notified APP of its violations of the CWA and of Waste Action Project’s intent to
`
`sue under the CWA by letter dated and postmarked September 20, 2021 and delivered to APP on
`
`September 22, 2021 (“Notice Letter”). A copy of the Notice Letter is attached to this Complaint
`
`as Exhibit 1. The allegations in the Notice Letter are incorporated herein by this reference. In
`
`accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. §
`
`135.2(a)(1), Waste Action Project notified 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 of its intent to sue APP by mailing copies
`
`of the Notice Letter to these officials on September 20, 2021.
`
`
`
`4.
`
`At the time of filing 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 are
`
`reasonably likely to recur.
`
`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
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`Notice Letter.
`
`22
`
`
`
`7.
`
`The source of the violations complained of is located in Pierce County within the
`
`Western District of Washington, and venue is therefore appropriate in the Western District of
`
`COMPLAINT - 2
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 3 of 27
`
`
`
`Washington pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), and 28 U.S.C. §
`
`1391(b).
`
`
`
`8.
`
`9.
`
`PARTIES
`
`Waste Action Project is suing on behalf of itself and its members.
`
`III.
`
`Waste Action Project is a non-profit corporation organized under the laws of the
`
`State of Washington. Waste Action Project is dedicated to protecting and preserving the
`
`environment of Washington State, especially the quality of its waters. Waste Action Project is a
`
`membership organization and has at least one member who is injured by APP’s violations.
`
`
`
`10. Waste Action Project has representational standing to bring this action. Waste
`
`Action Project’s members are reasonably concerned about the effects of discharges of pollutants,
`
`including wastewater from APP’s facility, on water quality and aquatic species and wildlife that
`
`Waste Action Project’s members observe, study, and enjoy. Waste Action Project’s members are
`
`further concerned about the effect of discharges from APP’s facility on human health. In
`
`addition, discharges from APP’s facility lessen Waste Action Project’s members’ aesthetic
`
`enjoyment of nearby areas. Waste Action Project’s members’ who live, work, fish, and recreate
`
`around or use the Blair Waterway, Commencement Bay, Puget Sound, and other waters affected
`
`by APP’s discharges. Waste Action Project’s members’ concerns about the effects of APP’s
`
`discharges are aggravated by APP’s failure to record and report information about its discharges,
`
`violations, and pollution controls. The recreational, economic, aesthetic and/or health interests of
`
`Waste Action Project and its members have been, are being, and will be adversely affected by
`
`APP’s violations of the CWA. The relief sought in this lawsuit can redress the injuries to these
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`interests.
`
`COMPLAINT - 3
`
`23
`
`24
`
`25
`
`26
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 4 of 27
`
`
`
`
`
`11. Waste Action Project has organizational standing to bring this action. Waste
`
`Action Project has been actively engaged in a variety of educational and advocacy efforts to
`
`improve water quality and to address sources of water quality degradation in the waters of
`
`Western Washington, including Blair Waterway, Commencement Bay, and Puget Sound. As
`
`detailed herein and in the Notice Letter, APP has failed to comply with numerous requirements
`
`of its NPDES Permit including effluent limits, sampling and monitoring, reporting and record
`
`keeping, operation and maintenance, permit application, spill control plan, Stormwater Pollution
`
`Prevention Plan (“SWPPP”), Best Management Practices (“BMPs”), and General Conditions of
`
`its Waste Discharge Permit. As a result, Waste Action Project is deprived of information
`
`necessary to properly serve its members by providing information and taking appropriate action
`
`to advance its mission. Waste Action Project’s efforts to educate and advocate for greater
`
`environmental protection and to ensure the success of environmental restoration projects
`
`implemented for the benefit of its members are also obstructed. Finally, Waste Action Project
`
`and the public are deprived of information that influences members of the public to become
`
`members of Waste Action Project, thereby reducing Waste Action Project’s membership
`
`numbers. Thus, Waste Action Project’s organizational interests have been adversely affected by
`
`APP’s violations. These injuries are fairly traceable to APP’s violations and are redressable by
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`the Court.
`
`19
`
`20
`
`21
`
`22
`
`12.
`
`APP is a provider of fuels, propane, and lubricants in Tacoma, Washington that
`
`owns and operates a facility that is authorized to conduct operations and discharge pollutants in
`
`the State of Washington.
`
`13.
`
`APP’s facility is located at or about 2320 Milwaukee Way Tacoma, WA 98421
`
`23
`
`(the “facility”).
`
`COMPLAINT - 4
`
`24
`
`25
`
`26
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 5 of 27
`
`
`
`
`
`
`
`IV. LEGAL BACKGROUND
`
`14.
`
`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of
`
`pollutants by any person, unless in compliance with the provisions of the CWA. A discharge of a
`
`pollutant from a point source to waters of the United States without authorization by an NPDES
`
`permit, issued under Section 402 of the CWA, 33 U.S.C. § 1342, constitutes a violation of
`
`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), and an “effluent standard or limitation” under
`
`Section 505(a)(1) and (f) of the CWA, 33 U.S.C. § 1365(a)(1) and (f). Conditions of NPDES
`
`permits are effluent standards or limitations under Section 505(a)(1) and (f) of the CWA, 33
`
`U.S.C. § 1365(a)(1) and (f). Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), authorizes
`
`citizen suits against violators of effluent standards or limitations.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`
`
`15.
`
`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).
`
`16.
`
`Under Section 402(a) of the CWA, 33 U.S.C. § 1342, Ecology has issued APP the
`
`Waste Discharge Permit NPDES number WA0038784 (the “Permit”), on September 22, 2011,
`
`which became effective on November 1, 2011, and expired on its own terms on October 31,
`
`2016 but remains in effect. The Permit authorizes APP to discharge treated
`
`stormwater/wastewater to waters of the state, subject to certain terms and conditions.
`
`17.
`
`The Permit imposes certain terms and conditions on those covered thereby,
`
`including discharge limits, monitoring requirements, reporting and recordkeeping requirements,
`
`operation and maintenance requirements, solid waste handling, permit application requirements,
`
`COMPLAINT - 5
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 6 of 27
`
`
`
`spill control plan requirements, SWPPP requirements, BMPs, and general conditions. The Permit
`
`requires, among other things, that APP properly operate and maintain all systems of treatment
`
`and control at all times.
`
`V.
`
`FACTS
`
`18.
`
`Ecology granted APP coverage for the facility under the NPDES Waste Discharge
`
`Permit number WA0038784.
`
`19.
`
`APP discharges wastewater and pollutants to Blair Waterway which then flows to
`
`Commencement Bay and eventually to Puget Sound.
`
`20.
`
`APP owns and operates a wastewater treatment system that consists of an
`
`oil/water separator, a settling tank, sand filters, and carbon filters that collects and treats
`
`stormwater and wastewater from the facility. APP discharges treated stormwater and wastewater
`
`through an outfall pipe that terminates in an unnamed ditch that leads to a ditch along Lincoln
`
`Ave, and eventually to Blair Waterway.
`
`21.
`
`APP has violated and continues to violate effluent standards or limitations, as
`
`defined by Section 505(f) of the CWA, 33 U.S.C. § 1365(f), and Sections 301(a) and 402 of the
`
`CWA, 33 U.S.C. §§ 1311(a) and 1342, by discharging pollutants in violations of its NDPES
`
`Permit. APP’s violations of the Permit are set forth in sections I through IX of the Notice Letter
`
`attached hereto as Exhibit 1 and are incorporated herein by this reference. In particular, and
`
`among the other violations described in the Notice letter, APP has violated the Permit by
`
`discharging wastewater containing levels of pollutants greater than the effluent limits established
`
`in the Permit, failing to meet sampling and monitoring requirements, failing to meet reporting
`
`and record keeping requirements, failing to comply with operation and maintenance
`
`requirements, failing to comply with permit renewal application requirements, failing to comply
`
`COMPLAINT - 6
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`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
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 7 of 27
`
`
`
`with spill control plan requirements, failing to comply with SWPPP requirements, failing to
`
`comply with BMP requirements, and violating General Conditions the Permit.
`
`
`
`22.
`
`APP discharges wastewater and stormwater from its facility containing levels of
`
`pollutants that exceed the effluent limit established by the Permit, including the days on which
`
`APP collected samples with the results identified in this paragraph below, and is likely to
`
`continue discharging comparably unacceptable wastewater effluent:
`
`Date of Violation
`
`April 26, 2021
`
`June 11, 2021
`
`September 17, 2021
`
`October 29, 2021
`
`
`
`Month of Violation
`
`January 2017
`
`October 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Reported pH Value (Effluent Limit 6.0-9.0 S.U.)
`
`5.73
`
`5.48
`
`5.33
`
`9.44
`
`Reported TSS Value (Effluent Limit 20 mg/L)
`
`26
`
`22.8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`Date of Violation
`
`May 11, 2017
`
`February 28, 2018
`
`September 9, 2019
`
`
`
`Date of Violation
`
`October 4, 2016
`
`21
`
`January 19, 2017
`
`May 11, 2017
`
`February 28, 2018
`
`September 9, 2019
`
`COMPLAINT - 7
`
`
`
`22
`
`23
`
`24
`
`25
`
`26
`
`Reported Copper Value (Effluent Limit 14 μg/L)
`
`15.1
`
`14.3
`
`26.3
`
`Reported Zinc Value (Effluent Limit 117 μg/L)
`
`154
`
`142
`
`122
`
`266
`
`182
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 8 of 27
`
`
`
`June 9, 2020
`
`
`
`September 18, 2020
`
`January 25, 2021
`
`February 18, 2021
`
`March 25, 2021
`
`April 26, 2021
`
`May 7, 2021
`
`
`
`September 17, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`219
`
`783
`
`140
`
`155
`
`281
`
`184
`
`162
`
`316
`
`23.
`
`APP has failed to monitor the specified parameters according to the schedule
`
`established in the Permit. APP has failed to monitor oil and grease monthly in milligrams per
`
`liter during the month of July 2017, August 2017, May 2018, June 2018, July 2018, August
`
`2018, March 2019, June 2019, July 2019, August 2019, April 2020, May 2020, July 2020,
`
`August 2020, July 2021, and August 2021. APP has failed to monitor flow five times per week in
`
`gallons per day in July 2017, August 2017, May 2018, June 2018, July 2018, August 2018,
`
`March 2019, June 2019, August 2019, April 2020, May 2020, July 2020, August 2020, July
`
`2021, and August 2021. APP has failed to monitor pH monthly in standard units in July 2017,
`
`August 2017, May 2018, June 2018, July 2018, August 2018, March 2019, June 2019, August
`
`2019, April 2020, May 2020, July 2020, August 2020, July 2021, and August 2021. APP has
`
`failed to monitor total suspended solids monthly in milligrams per liter in July 2017, August
`
`2017, May 2018, June 2018, July 2018, August 2018, March 2019, June 2019, August 2019,
`
`April 2020, May 2020, July 2020, August 2020, July 2021, and August 2021. APP has failed to
`
`monitor benzene + toluene + ethylbenzene + m.o.p. xylenes (“BTEX”) monthly in micrograms
`
`per liter in July 2017, August 2017, May 2018, June 2018, July 2018, August 2018, March 2019,
`
`June 2019, August 2019, April 2020, May 2020, July 2020, August 2020, July 2021, and August
`
`COMPLAINT - 8
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`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
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 9 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`2021. APP has failed to monitor benzene monthly in micrograms per liter in July 2017, August
`
`2017, May 2018, June 2018, July 2018, August 2018, March 2019, June 2019, August 2019,
`
`April 2020, May 2020, July 2020, August 2020, July 2021, and August 2021. APP has failed to
`
`monitor copper monthly in micrograms per liter in July 2017, August 2017, May 2018, June
`
`2018, July 2018, August 2018, March 2019, June 2019, August 2019, April 2020, May 2020,
`
`July 2020, August 2020, July 2021, August 2021, and October 2021. APP has failed to monitor
`
`zinc monthly in micrograms per liter in July 2017, August 2017, May 2018, June 2018, July
`
`2018, August 2018, March 2019, June 2019, August 2019, April 2020, May 2020, July 2020,
`
`August 2020, July 2021, August 2021, and October 2021. APP has failed to monitor TPH-Gas
`
`and TPH-Diesel quarterly in milligrams per liter in the second quarter of 2018.
`
`24.
`
`APP’s samples and measurements taken do not represent the volume and nature
`
`12
`
`of its discharges.
`
`13
`
`14
`
`15
`
`16
`
`25.
`
`APP is failing to use appropriate flow measurement, field measurement, and
`
`continuous monitoring devices and methods. APP has failed to install a continuous temperature
`
`monitoring device to monitor effluent temperature. APP has also failed to install an influent flow
`
`meter to monitor influent flow.
`
`17
`
`
`
`26.
`
`APP failed to submit complete and accurate DMRs by the prescribed time for
`
`18
`
`September 2018, October 2018, and July 2021.
`
`19
`
`
`
`27.
`
`APP failed to submit a contract laboratory report as an attachment with the
`
`electronic DMRs for July 2017, August 2017, May 2018, June 2018, July 2018, August 2018,
`
`March 2019, June 2019, August 2019, April 2020, May 2020, July 2020, August 2020, March
`
`2021, April 2021, May 2021, June 2021, July 2021, and August 2021.
`
`COMPLAINT - 9
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 10 of 27
`
`
`
`
`
`28.
`
`APP has failed to retain records of all monitoring information for a minimum of
`
`three years including original recordings for continuous monitoring instrumentation, copies of all
`
`reports, records of all data used to complete the application for this Permit, and other
`
`documentation.
`
`
`
`29.
`
`APP has failed to include the individual who performed the analyses; the
`
`analytical techniques or methods used; and the results of all analyses for July 2017, August 2017,
`
`May 2018, June 2018, July 2018, August 2018, March 2019, June 2019, August 2019, April
`
`2020, May 2020, July 2020, August 2020, March 2021, April 2021, May 2021, June 2021, July
`
`2021, August 2021, September 2021, and October 2021 samples.
`
`30.
`
`APP is in violation of the Permit’s requirements to take several actions when APP
`
`violates or is unable to comply with a Permit condition, including each of the violations
`
`identified in this Complaint. APP has not taken adequate action to stop, contain, and cleanup all
`
`unauthorized discharges, including the following events: a 15-gallon diesel spill on January 27,
`
`2020, as documented by the Application for NPDES Permit to Discharge Wastewater Form 2F
`
`received by Ecology on December 18, 2020; a 200-gallon fuel oil spill on January 27, 2020, as
`
`documented by the January 28, 2020 ERTS Report #696006; a 100-gallon diesel spill on
`
`November 30, 2020, as documented by the December 3, 2020 ERTS Report #702255; a 5-gallon
`
`diesel spill on August 21, 2019, as documented by the Application for NPDES Permit to
`
`Discharge Wastewater Form 2F received by Ecology on December 18, 2020; a Diesel spill that
`
`“measured 10 to 20 feet” on February 11, 2019, as documented by the February 14, 2019 ERTS
`
`Report #687330; a 1–2-gallon diesel spill on July 22, 2018, as documented by the August, 10,
`
`2018 ERTS Report #683240; other small spills as documented by the June 12, 2018 and August
`
`COMPLAINT - 10
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`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
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 11 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`24, 2020 Inspection Reports; and as indicated by the discharges in excess of effluent limits
`
`identified above in paragraph 22.
`
`31.
`
`APP has failed and continues to fail to report all significant leaks or spills of toxic
`
`or hazardous pollutants in the last three years, including a 200-gallon fuel oil spill on January 27,
`
`2020; a 100-gallon diesel spill on November 11, 2020; a diesel spill that “measured 10 to 20
`
`feet” on February 11, 2019; and a 1–2-gallon diesel spill on July 22, 2018.
`
`
`
`32.
`
`APP failed to have proper operation and maintenance, which includes keeping a
`
`daily operation logbook, adequate laboratory controls, and appropriate quality assurance
`
`procedures.
`
`10
`
`
`
`33.
`
`APP has failed to review the Operation and Maintenance Manual (“O&M
`
`11
`
`12
`
`13
`
`14
`
`Manual”) at least annually and confirm this review by electronic letter to Ecology by January 1
`
`of each year. APP has failed to submit an O&M Manual by the required deadline of January 1,
`
`2012. Additionally, APP failed and continues to fail to keep the approved O&M Manual at the
`
`permitted facility.
`
`15
`
`
`
`34.
`
`APP failed to submit an application for renewal of the Permit by the deadline of
`
`16
`
`17
`
`January 31, 2015. Additionally, APP failed to submit the application for renewal of the Permit by
`
`an already extended deadline of October 31, 2020.
`
`18
`
`
`
`35.
`
`APP has failed to review the Spill Control Plan annually, update as needed, send
`
`19
`
`changes to Ecology, and follow the Spill Control Plan throughout the term of the permit.
`
`20
`
`
`
`36. APP failed to fail to submit a SWPPP to Ecology by the deadline of January 31,
`
`21
`
`2015.
`
`22
`
`
`
`37.
`
`Until October 27, 2021, APP failed to modify the SWPPP each and every time
`
`during the last five years there have been changes to the design, construction, operation, or
`
`COMPLAINT - 11
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 12 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`maintenance, which causes the SWPPP to be less effective in controlling the pollutants,
`
`description of potential pollutant sources or the pollution prevention measures and controls
`
`identified in the SWPPP are inadequate.
`
`
`
`38.
`
`APP has failed to prepare a SWPPP in accordance with the guidance provided in
`
`the Stormwater Pollution Prevention Planning for Industrial Facilities.
`
`
`
`39.
`
`APP has failed to conduct two inspections per year addressing potential SWPPP
`
`modifications, one during the wet season (October 1 - April 30) and the other during the dry
`
`season (May 1 - September 30) each and every year for the last five years.
`
`
`
`40.
`
`APP has failed to perform evaluations of methods to reduce pollutant loadings
`
`10
`
`identified in the SWPPP and maintain the required records related to these evaluations.
`
`11
`
`
`
`41.
`
`APP has failed to implement the required BMPs and incorporate them into its
`
`12
`
`13
`
`14
`
`SWPPP as required by the Permit. These requirements and APP’s violations thereof are
`
`described in detail in section VII of the Notice Letter, attached as Exhibit 1, and incorporated
`
`herein by this reference.
`
`15
`
`
`
`42.
`
`APP failed to satisfy the signatory requirement of the Permit each time during the
`
`16
`
`17
`
`last five years that it failed to have an authorized individual sign and certify an application,
`
`report, or other information that was submitted to Ecology.
`
`18
`
`
`
`43.
`
`APP failed to notify Ecology when its discharges exceeded the “notification
`
`19
`
`levels” established by Condition G20 of the Permit.
`
`20
`
`
`
`44.
`
`APP failed to submit a report of noncompliance, progress report, or other
`
`requirements to Ecology within 14 days following each schedule date.
`
`COMPLAINT - 12
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 13 of 27
`
`
`
`
`
`45.
`
`APP has failed to control production and/or all discharges upon reduction, loss,
`
`failure, or bypass of the treatment facility until the facility is restored or an alternative method of
`
`treatment is provided in order to maintain compliance.
`
`46.
`
`Each of APP’s violations of the Permit and the CWA are ongoing in that they are
`
`currently occurring or are likely to re-occur at least intermittently in the future.
`
`47.
`
`A significant penalty should be imposed against APP pursuant to the penalty
`
`factors set forth in Section 309(d) of the CWA, 33 U.S.C. § 1319(d).
`
`48.
`
` APP’s violations of the CWA degrade the environment and the water quality of
`
`the receiving water bodies.
`
`49.
`
`APP has benefited economically as a consequence of its CWA violations and its
`
`failure to implement stormwater and wastewater management improvements at the facility.
`
`50.
`
`APP’s violations were avoidable had APP been diligent in overseeing facility
`
`operations and maintenance.
`
`51.
`
`In accordance with Section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and 40
`
`C.F.R. § 135.4, Waste Action Project is mailing a copy of this Complaint to the Administrator of
`
`the EPA, the Regional Administrator for Region 10 of the EPA, and the Attorney General of the
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`United States.
`
`18
`
`19
`
`20
`
`VI. CAUSE OF ACTION
`
`52.
`
`The preceding paragraphs and the allegations in the Notice Letter attached hereto
`
`as Exhibit 1 are incorporated herein.
`
`21
`
`
`
`53.
`
`APP’s violations of the Permit described herein and in the Notice Letter constitute
`
`violations of Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342, and violations of
`
`COMPLAINT - 13
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 14 of 27
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`an “effluent standards or limitations” as defined by Section 505(f) of the CWA, 33 U.S.C. §
`
`1365(f).
`
`54.
`
`No agency has taken an enforcement action constituting diligent prosecution or
`
`otherwise precluding claims under 33 USC 1365(a).
`
`55.
`
`Prior notice of violations and claims was provided to Defendant and others as
`
`required.
`
`56.
`
`These violations committed by APP are ongoing or are reasonably likely to
`
`continue to occur. Any and all additional violations of the Permit and the CWA which occur
`
`after those described in Waste Action Project’s Notice Letter, but before a final decision in this
`
`10
`
`action, should be considered continuing violations subject to this Complaint.
`
`11
`
`
`
`57. Without the imposition of appropriate civil penalties and the issuance of an
`
`12
`
`13
`
`14
`
`injunction, APP is likely to continue to violate the Permit and the CWA to the further injury of
`
`Waste Action Project, its members, and others.
`
`VII. RELIEF REQUESTED
`
`15
`
`
`
`Wherefore, Waste Action Project respectfully requests that this Court grant the following
`
`16
`
`relief:
`
`17
`
`
`
`A.
`
`Issue a declaratory judgment that APP has violated and continues to be in
`
`18
`
`violation of the Permit and Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342;
`
`19
`
`
`
`B.
`
`Enjoin APP from operating its facility in a manner that results in further
`
`20
`
`violations of the Permit or the CWA;
`
`21
`
`
`
`C.
`
`Order APP to allow Waste Action Project to participate in the development and
`
`implementation of a plan to achieve compliance with the Permit and the CWA;
`
`COMPLAINT - 14
`
`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 15 of 27
`
`
`
`
`
`D.
`
`Order APP to provide Waste Action Project, for a period beginning on the date of
`
`the Court’s Order and running for three years after APP achieves compliance with all of the
`
`conditions of the Permit, with copies of all reports and other documents which APP submits to
`
`the EPA or to the Ecology regarding APP’s coverage under the Permit at the time it is submitted
`
`to these authorities;
`
`
`
`E.
`
`Order APP to take specific actions to remediate the environmental harm caused
`
`by its violations;
`
`
`
`F.
`
`Order APP to pay civil penalties of $56,461 per day of violation for each violation
`
`committed by APP pursuant to Sections 309(d) and 505(a) of the CWA, 33 U.S.C. §§ 1319(d)
`
`and 1365(a), and 40 C.F.R. § 19 and 19.4;
`
`G.
`
`Award Waste Action Project its litigation expenses, including reasonable
`
`attorneys’ and expert witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. §
`
`1365(d), and any other applicable authorization; and
`
`H.
`
`Award such other relief as this Court deems appropriate.
`
`RESPECTFULLY SUBMITTED this 10th day of December, 2021.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: By: s/ Richard A. Smith
`
`Richard A. Smith, WSBA #21788
`By: s/ Savannah Rose
`Savannah Rose, WSBA #57062
`Attorneys for Waste Action Project
`Smith & Lowney, PLLC
`2317 E. John St.,
`Seattle, WA 98112
`Telephone: (206) 860-2124
`Fax: (206) 860-4187
`Email: richard@smithandlowney.com,
`savannah@smithandlowney.com
`
`
`
`
`
`
`COMPLAINT - 15
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`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
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 16 of 27
`
`
`
`
`
`
`
`
`
`
`
`Exhibit 1
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 17 of 27
`
`Smith & Lowney, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883, Fax (206) 860-4187
`
`
`
`September 20, 2021
`
`
`Via Certified Mail - Return Receipt Requested
`
`Managing Agent
`Associated Petroleum Products, Inc.
`P.O. Box 1397
`Tacoma, WA 98401
`
`Managing Agent
`Associated Petroleum Products, Inc.
`2320 Milwaukee Way
`Tacoma, WA 98421
`
`Managing Agent
`Associated Petroleum Products, Inc.
`2326 Milwaukee Way
`Tacoma, WA 98421
`
`
`Re: NOTICE OF INTENT TO SUE UNDER THE CLEAN WATER ACT
`
`Dear Managing Agent:
`
`We represent Waste Action Project, P.O. Box 9281, Covington, WA 98042, (206)
`
`849-5927. Any response or correspondence related to this matter should be directed to us at
`the letterhead address. This letter is to provide you with sixty days’ notice of Waste Action
`Project’s intent to file a citizen suit against Associated Petroleum Products, Inc. (“APP”),
`under Section 505 of the Clean Water Act (“CWA”), 33 U.S.C. § 1365, for the violations
`described below.
`
`APP was granted coverage for its facility under the Waste Discharge Permit issued by
`the Washington Department of Ecology (“Ecology”) effective November 1, 2011, under
`NPDES No. WA0038784 (the “Permit”). The Permit expired by its own terms on October
`31, 2016 but remains in effect.
`
`APP has violated and continues to violate effluent standards and limitations under the
`CWA (see 33 U.S.C. §§ 1365(f)(7); 33 U.S.C. § 1311(a) including the terms and conditions
`of the Permit with respect to operations of, and discharges of wastewater and pollutants from
`its property located at or about 2320 Milwaukee Way Tacoma, WA 98421 (the “facility”) as
`described herein, to Blair Waterway via Lincoln Avenue Ditch via unnamed drainage ditch.
`
`Notice of Intent to Sue - 1
`
`

`

`Case 3:21-cv-05895-BHS Document 1 Filed 12/10/21 Page 18 of 27
`
`The facility subject to this notice includes any contiguous or adjacent properties owned or
`operated by APP.
`
`I.
`
`EFFLUENT LIMIT VIOLATIONS
`
`Condition S1.A of the Permit establishes numerical effluent limitations for discharges
`of oil and grease, total suspended solids (TSS), BTEX, NWTPH-Gx, TPH-Dx, Benzene,
`Copper, Zinc, and pH.
`
`
`
`
`
`
`
`
`
`
`Reported pH Value (s.u.)
`5.73
`5.48
`
`Condition S1.A of the Permit establishes daily minimum limitation for pH at
`i.
`6.0 standard units and daily maximum pH at 9.0 standard units. APP has violated this
`limitation:
`
`Month of Violation
`April 2021
`
`June 2021
`
`
`
`Condition S1.A of the Permit establishes the average monthly limitation for
`ii.