throbber
Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 1 of 56
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`
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`Brian A. Knutsen, WSBA No. 38806
`Jessica Durney, WSBA No. 57923
`KAMPMEIER & KNUTSEN, PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`Tel.: (503) 841-6515 (Knutsen)
` (206) 739-5184 (Durney)
`Email: brian@kampmeierknutsen.com
` jessica@kampmeierknutsen.com
`
`Simone Anter, WSBA No. 52716
`COLUMBIA RIVERKEEPER
`1125 S.E. Madison Street, Suite 103A
`Portland, Oregon 97214
`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,
`
`
`
`
`
`Plaintiff,
`v.
`
`
`
`
`Case No. 3:22-cv-05123
`
`
`COMPLAINT
`
`
`
`NORTH PACIFIC PAPER COMPANY, LLC,
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`
`
`
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`
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`Defendant.
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`I.
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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”), 33 U.S.C. § 1365, as amended. Plaintiff Columbia Riverkeeper (“Riverkeeper”) seeks
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`declaratory and injunctive relief, the imposition of civil penalties, and the award of costs,
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`including attorneys’ and expert witness fees for Defendant North Pacific Paper Company, LLC’s
`
`(“NORPAC”) repeated and ongoing violations of the terms and conditions of its National
`
`
`
`COMPLAINT - 1
`Case No. 3:22-cv-05123
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`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 2 of 56
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`
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`Pollutant Discharge Elimination System (“NPDES”) permit authorizing discharges of pollutants
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`from NORPAC’s facility to waters of the United States, and of the requirements of the
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`Washington Department of Ecology (“Ecology”) Administrative Order No. 18227 issued to
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`NORPAC on August 7, 2020 (“Ecology Order”).
`
`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).
`
`NORPAC is in violation of an “effluent standard or limitation” as defined by section 505(f) of
`
`the CWA, 33 U.S.C. § 1365(f), and “an order issued by . . . a State with respect to such a
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`standard or limitation,” 33 U.S.C. § 1365(a)(1). The relief requested herein is authorized by
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`sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d) and 1365, and 28 U.S.C. §§ 2201
`
`and 2202.
`
`3.
`
`In accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A),
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`Riverkeeper notified NORPAC of its violations of the NPDES permit and the Ecology Order and
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`of Riverkeeper’s intent to sue under the CWA by letter dated and postmarked December 21,
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`2021 (“Notice Letter”). A copy of the Notice Letter is attached to this complaint as Exhibit 1.
`
`Riverkeeper also notified the Administrator of the United States Environmental Protection
`
`Agency (“EPA”), the Administrator of EPA Region 10, and the Director of Ecology by mailing
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`copies of the Notice Letter to those officials on December 21, 2021.
`
`4.
`
`At the time of the filing of this complaint, more than sixty days have passed since
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`the Notice Letter and copies thereof were issued in the manner described in the preceding
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`paragraph.
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`5.
`
`The violations complained of in the Notice Letter are continuing and/or
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`reasonably likely to recur. NORPAC is in violation of its NPDES permit and the Ecology Order.
`
`
`
`COMPLAINT - 2
`Case No. 3:22-cv-05123
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 3 of 56
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`6.
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`At the time of the filing of this complaint, neither the EPA nor Ecology has
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`commenced any action constituting diligent prosecution to redress the violations alleged in the
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`Notice Letter.
`
`7.
`
`The source of the violations complained of is located in Cowlitz County,
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`Washington, within the Western District of Washington, and venue is therefore appropriate in
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`the Western District of Washington under section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1).
`
`III.
`
`PARTIES.
`
`8.
`
`Plaintiff Columbia Riverkeeper is suing on behalf of itself and its members.
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`Riverkeeper is a 501(c)(3) non-profit corporation registered in the State of Washington.
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`Riverkeeper’s mission 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.
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`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 NORPAC’s
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`discharges of pollutants. Members of Riverkeeper use and enjoy the waters and the surrounding
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`areas that are adversely affected by NORPAC’s discharges. Riverkeeper’s members use these
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`areas for, inter alia, fishing, swimming, hiking, walking, photography, boating, and observing
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`wildlife. NORPAC has consistently violated the conditions of its NPDES permit, exceeded the
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`permit’s benchmark pollutant discharge levels, and violated the conditions of the Ecology Order
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`aimed at ameliorating the NPDES permit violations. Riverkeeper has serious concerns about the
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`impacts of NORPAC’s operations and pollution discharges on the Columbia River because the
`
`
`
`COMPLAINT - 3
`Case No. 3:22-cv-05123
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 4 of 56
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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 NORPAC’s violations of the NPDES permit and Ecology Order addressed
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`herein and by the members’ reasonable concerns related to the effects of the violations and
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`pollutant discharges. These injuries are fairly traceable to the violations and redressable by this
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`Court.
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`10.
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`Defendant NORPAC is a corporation organized and existing under the laws of the
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`State of Delaware, authorized to conduct business in Washington, and has a principal place of
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`business at 3001 Industrial Way, Longview, Washington, 98632-1057.
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`11.
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`NORPAC owns and operates its industrial facility at or near 3001 Industrial Way,
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`Longview, Washington, 98632-1057 (hereinafter “the Facility”).
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`IV.
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`LEGAL BACKGROUND.
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`12.
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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 authorized under certain provisions of the CWA, including an
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`NPDES permit issued pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
`
`13.
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`The State of Washington has established a federally approved state NPDES
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`program administered by Ecology. Wash. Rev. Code § 90.48.260; Wash. Admin. Code ch. 173-
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`220. This program was approved by the Administrator of the EPA pursuant to section 402(b) of
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`the CWA, 33 U.S.C. § 1342(b).
`
`14.
`
`Section 505(a) of the CWA, 33 U.S.C § 1365(a), provides that any citizen may
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`commence a civil action against any person alleged to be in violation of an effluent standard or
`
`limitation, or an order issued by a State with respect to such a standard or limitation. Section
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`505(f), 33 U.S.C. § 1365(f), defines “effluent standard or limitation” to include an NPDES
`
`permit or condition of an NPDES permit. See 33 U.S.C. § 1341.
`
`
`
`COMPLAINT - 4
`Case No. 3:22-cv-05123
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
`
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 5 of 56
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`V.
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`FACTS.
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`15.
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`On July 17, 2019, Ecology issued to NORPAC an NPDES permit, no.
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`WA0991016 (“the Permit”), which became effective on August 1, 2019. The Permit imposes
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`terms and conditions, including numeric effluent limits on discharges of process wastewater,
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`discharge benchmarks and adaptive management requirements for discharges of stormwater
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`associated with industrial activities, monitoring and sampling requirements, reporting and
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`recordkeeping requirements, and prohibitions on certain discharges. The Permit also requires that
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`NORPAC develop and implement a Stormwater Pollution Prevention Plan (“SWPPP”) that
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`includes appropriate best management practices (“BMPs”) and that applies all known and
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`reasonable methods of pollution prevention, control, and treatment (“AKART”) to discharges of
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`stormwater associated with industrial activity.
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`16.
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`NORPAC discharges process wastewater to a wastewater treatment plant owned
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`and operated by Nippon Dynawave Packing Company, which discharges to the Columbia River.
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`17.
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`NORPAC discharges stormwater associated with industrial activity and other
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`pollutants to the Columbia River and/or to Ditch No. 3 of the Consolidated Diking Improvement
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`District No. 1, which discharges to the Columbia River, via stormwater conveyance systems.
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`18.
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`NORPAC has violated the terms and conditions of its Permit. NORPAC’s
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`violations of the Permit are set forth in section II of the Notice Letter, attached hereto as Exhibit
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`1 at 2–20, and are incorporated herein by this reference. In particular, and among the other
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`violations described in the Notice Letter, NORPAC has violated the Permit by exceeding the
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`Permit’s numeric effluent limitations, failing to complete the required corrective actions after
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`triggering specific benchmark exceedances, discharging process wastewater, failing to properly
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`monitor and report discharges, failing to develop and implement a SWPPP with adequate BMPs
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`to control stormwater quality, and failing to timely submit complete and accurate reports.
`
`
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`COMPLAINT - 5
`Case No. 3:22-cv-05123
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 6 of 56
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`19.
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`The Ecology Order was issued on August 7, 2020 in an effort to require that
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`NORPAC comply with the conditions of the Permit and to otherwise comply with applicable
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`CWA standards and limitations. The Ecology Order required, inter alia, that NORPAC develop
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`and implement a plan to evaluate and characterize stormwater discharges and prepare and submit
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`an updated application for an NPDES permit.
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`20.
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`NORPAC has violated the requirements of the Ecology Order. NORPAC’s
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`violations of the Ecology Order are set forth in section III of the Notice Letter, attached hereto as
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`Exhibit 1 at 20–21, and are incorporated herein by this reference. In particular, and among the
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`other violations described in the Notice Letter, NORPAC failed to timely develop and implement
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`a plan to evaluate and characterize stormwater discharges that met the requirements of the
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`Ecology Order.
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`A.
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`NORPAC’S Violations of the Permit.
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`Violations of the Permit’s Numeric Effluent Limitations.
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`21.
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`The Permit requires that NORPAC’s discharges at Outfall 001A (to the Nippon
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`Dynawave Packing Company’s wastewater treatment plan) comply with specific numeric
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`effluent limitations. Specifically, the discharges must meet average monthly and maximum daily
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`limits for Biochemical Oxygen Demand (“BOD”) and Total Suspended Solids (“TSS”), and
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`discharges must comply with minimum and maximum limits on pH.
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`22.
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`NORPAC has repeatedly violated these effluent limitations, and continues to do
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`so, as detailed in section II.A of the Notice Letter, attached hereto as Exhibit 1 at 2–5, which is
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`incorporated herein by reference. Further, attached hereto as Exhibit 2 is a table summarizing
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`these violations.
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`
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`COMPLAINT - 6
`Case No. 3:22-cv-05123
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`
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`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 7 of 56
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`Violations of the Permit’s Corrective Action Requirements.
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`23.
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`The Permit requires that NORPAC implement specified corrective actions when
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`its discharges of stormwater associated with industrial activity exceed applicable benchmarks.
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`The Permit requires that NORPAC include the corrective action in the discharge monitoring
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`report (“DMR”) that includes the benchmark exceedance.
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`24.
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`NORPAC’s discharges from the facility have repeatedly exceeded the applicable
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`effluent benchmark values as detailed in section II.B of the Notice Letter, attached hereto as
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`Exhibit 1 at 6–11. Further, attached hereto as Exhibit 3 is a table summarizing these benchmark
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`exceedances.
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`25.
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`The Permit requires NORPAC to complete a Level 1 Corrective Action each time
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`it exceeds one of the applicable benchmarks identified above at Outfall 002A or Outfall 003A.
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`For a Level 1 Corrective Action, the Permit requires NORPAC to (1) conduct an inspection to
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`investigate the cause of the benchmark exceedance; (2) review the SWPPP for the facility to
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`ensure that it fully complies with Special Condition S12 of the Permit—the requirements for an
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`adequate SWPPP—and contains the correct BMPs; and (3) make appropriate revisions to the
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`SWPPP to include additional Operational Source Control BMPs with the goal of achieving the
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`applicable benchmark value in future discharges. Additionally, the Permit provides that
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`corrective actions must be included in the DMR that includes that benchmark exceedance(s) and
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`that the annual stormwater report required by the Permit must summarize the corrective actions.
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`26.
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`NORPAC has triggered the Level 1 Corrective Action requirements for each
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`benchmark exceedance as summarized in section II.B of the Notice Letter, attached hereto as
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`Exhibit 1 at 6–11, and in the table attached hereto as Exhibit 3. NORPAC has violated the Level
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`1 Corrective Action requirements of the Permit described above by failing to timely conduct a
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`Level 1 Corrective Action in accordance with Permit conditions, including the required
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`
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`COMPLAINT - 7
`Case No. 3:22-cv-05123
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`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 8 of 56
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`investigation; the required review of the SWPPP; the required revision of the SWPPP to include
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`additional Operational Source Control BMPs; and the required summarization of the corrective
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`action in the DMR and in the annual report each time since August 1, 2019 that discharges at
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`Outfall 002A and Outfall 003A exceeded an applicable benchmark value, including each of the
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`benchmark exceedances identified in section II.B of the Notice Letter, attached hereto as Exhibit
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`1 at 6–11, and in the table attached hereto as Exhibit 3. These corrective action requirements, and
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`NORPAC’s violations thereof, are described in section II.B.1 of the Notice Letter, attached
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`hereto as Exhibit 1 at 11–12, and are incorporated herein by this reference.
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`27.
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`The Permit requires NORPAC to complete a Level 2 Corrective Action each time
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`it exceeds one of the applicable benchmarks identified above at Outfall 002A and Outfall 003A
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`in any three months during a calendar year. For a Level 2 Corrective Action, the Permit requires
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`NORPAC to (1) review the SWPPP and ensure it complies with Special Condition S12 of the
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`Permit; (2) revise the SWPPP to include additional Structural Source Control BMPs with the
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`goal of achieving the benchmark value in future discharges; and (3) install the Structural Source
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`Control BMPs as soon as possible, but no later than August 31 of the following year.
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`Additionally, the Permit provides that the annual stormwater report required by the Permit must
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`summarize the corrective actions.
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`28.
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`NORPAC has triggered the Level 2 Corrective Action requirements under the
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`Permit for its benchmark exceedances as summarized in section II.B of the Notice Letter,
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`attached hereto as Exhibit 1 at 6–11, and in the table attached hereto as Exhibit 3. NORPAC
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`violated the requirements of the Permit described above by failing to timely conduct a Level 2
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`Corrective Action in accordance with Permit conditions—including the required review of the
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`SWPPP; revision of the SWPPP to include additional Structural Source Control BMPs;
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`implementation of additional Structural Source Control BMPs; and summarization of the
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`COMPLAINT - 8
`Case No. 3:22-cv-05123
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`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 9 of 56
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`corrective action in the annual report—each time since and including August 2019 that its
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`discharges from Outfall 002A and Outfall 003A exceeded an applicable benchmark in any three
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`months during a calendar year. These corrective action requirements, and NORPAC’s violations
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`thereof, are described in section II.B.2 of the Notice Letter, attached hereto as Exhibit 1 at 12–
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`13, incorporated herein by this reference.
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`Violations of the Prohibition Against Discharging Process Wastewater.
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`29.
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`The Permit authorizes NORPAC to discharge stormwater to the neighboring
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`company’s, Weyerhaeuser NR Company, stormwater system. However, the Permit prohibits the
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`discharge of process wastewater, including stormwater that is comingled with process
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`wastewater, to Weyerhaeuser NR Company’s stormwater system.
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`30.
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`NORPAC violated these requirements by discharging overflow from a solid waste
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`pad to Weyerhaeuser NR Company’s stormwater system from December 1 to 3, 2019. Available
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`reports indicate that around 750 to 1,500 gallons of prohibited process wastewater were
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`discharged.
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`Violations of the Monitoring and Reporting Requirements.
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`31.
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`The Permit establishes monitoring requirements for discharges from NORPAC’s
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`various outfalls. The Permit requires NORPAC report the results of discharge monitoring to
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`Ecology on DMRs.
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`32.
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`NORPAC has violated these conditions each and every time it has failed to collect
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`and analyze discharge samples and report the results to Ecology in compliance with the
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`requirements of the Permit. These Permit requirements, and NORPAC’s violations thereof, are
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`described in section II.D of the Notice Letter, attached hereto as Exhibit 1 at 13, incorporated
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`herein by this reference. Further, attached hereto as Exhibit 4 is a table summarizing NORPAC’s
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`violations of the Permit’s discharge monitoring requirements.
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`COMPLAINT - 9
`Case No. 3:22-cv-05123
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`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Case 3:22-cv-05123 Document 1 Filed 02/28/22 Page 10 of 56
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`33.
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`The Permit requires NORPAC to submit monthly DMRs by the 15th day of the
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`following month. NORPAC violated the Permit each instance that it failed to timely submit its
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`monthly DMRs, including but not limited to the April 2021 DMR.
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`34.
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`The Permit requires NORPAC to submit quarterly DMRs by the 15th day of the
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`month following the monitoring period. NORPAC violated the Permit each instance that it failed
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`to timely submit its quarterly DMRs, including but not limited to the Fourth Quarter of 2020 and
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`the First Quarter of 2021.
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`35.
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`The Permit requires NORPAC to report a spill of oil or hazardous materials in
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`accordance with RCW 90.56.280 and WAC 173-303-145, which requires immediate notification
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`to multiple parties, immediate mitigation and control, and clean-up efforts. See WAC 173-303-
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`145(1) through (3). NORPAC had hazardous spill incidents on April 22, 2020, February 15,
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`2021, March 16, 2021, and May 21, 2021. NORPAC violated the requirements discussed above
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`for each of these spill incidents, including the requirements to immediately notify Ecology and
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`complete the necessary mitigation, control, and clean up.
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`Violations of the Operations and Maintenance Manual Requirements.
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`36.
`
`The Permit requires NORPAC to prepare an Operations and Maintenance
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`(“O&M”) Manual intended to ensure compliance with the Permit that meets specific
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`requirements. NORPAC must submit the O&M Manual to Ecology by February 1, 2020, review
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`the O&M Manual annually and provide confirmation of review yearly by February 1 to Ecology,
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`submit to Ecology for review and approval any substantial changes or updates to the O&M
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`Manual, keep the O&M Manual at the facility, and follow the O&M Manual at all times.
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`37.
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`NORPAC has violated the Permit by failing to timely develop and/or implement
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`an O&M Manual that meets the Permit’s requirements. These Permit conditions and NORPAC’s
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`
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`COMPLAINT - 10
`Case No. 3:22-cv-05123
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`
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`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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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`violations thereof are described in section II.E of the Notice Letter, attached hereto as Exhibit 1
`
`at 14, and are incorporated herein by this reference.
`
`38.
`
`The Permit requires NORPAC to prepare and implement a Slug Discharge
`
`Control Plan the meets specific requirements to help minimize the potential of a slug discharge
`
`from the Facility. NORPAC must submit the Slug Discharge Control Plan to Ecology by August
`
`1, 2020 and review the plan and update it as needed. NORPAC has violated the Permit by failing
`
`to timely develop and/or implement a Slug Discharge Control Plan that meets the Permit’s
`
`requirements. These Permit conditions and NORPAC’s violations thereof are described in
`
`section II.E of the Notice Letter, attached hereto as Exhibit 1 at 14–15, and are incorporated
`
`herein by this reference.
`
`39.
`
`The Permit requires NORPAC to prepare and implement a wastewater treatment
`
`plan impact study that meets specific requirements. NORPAC has violated the Permit by failing
`
`to timely develop and/or implement a wastewater treatment plan impact study that meets the
`
`Permit’s requirements. These Permit conditions and NORPAC’s violations thereof are described
`
`in section II.E of the Notice Letter, attached hereto as Exhibit 1 at 15, and are incorporated
`
`herein by this reference.
`
`Violations of the SWPPP Requirements.
`
`40.
`
`NORPAC’s extensive violations of the Permit and its repeated exceedances of the
`
`Permit’s benchmarks indicate that NORPAC is failing to develop and implement a SWPPP that
`
`fully complies with the Permit and that NORPAC is otherwise failing to apply AKART to its
`
`discharges.
`
`41.
`
`Upon information and belief, NORPAC is in violation of the Permit by not
`
`developing and/or implementing a SWPPP that fully complies with the Permit and by not
`
`
`
`COMPLAINT - 11
`Case No. 3:22-cv-05123
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 12 of 56
`
`
`
`applying AKART to discharges. These violations include NORPAC’s failure to conduct and
`
`document visual inspections as required by the Permit.
`
`42.
`
`The Permit’s SWPPP requirements, and NORPAC’s violations thereof, are
`
`described in section II.F of the Notice Letter, attached hereto as Exhibit 1 at 15–18, and are
`
`incorporated herein by this reference.
`
`Violations of the Annual Report Requirements.
`
`43.
`
`The Permit requires NORPAC to submit an annual stormwater report to Ecology
`
`no later than May 15 of each year that contains a summary of the corrective actions taken during
`
`the year. The Permit specifies that annual reports must, inter alia, (1) identify the condition
`
`triggering the need for corrective action review; (2) describe the problem(s) and identify the
`
`dates they were discovered; (3) summarize any corrective actions completed during the previous
`
`calendar year and include the dates of completion; and (4) describe the status of any corrective
`
`actions triggered during the previous calendar year and identify the date of expected completion.
`
`44.
`
`NORPAC has violated the Permit’s requirements by failing to timely submit
`
`annul reports that include complete and accurate information required by the Permit. The Permit
`
`requirements and NORPAC’s violations thereof are described in section II.G of the Notice
`
`Letter, attached hereto as Exhibit 1 at 18–19, and are incorporated herein by this reference.
`
`Violations of Requirements to Report Violations.
`
`45.
`
`The Permit requires NORPAC to take certain reporting and other responsive
`
`actions each time it is unable to comply with conditions of the Permit. NORPAC has repeatedly
`
`violated these requirements by failing to timely notify Ecology of the noncompliance, failing to
`
`timely submit complete reports for the noncompliance, and failing to take the required
`
`responsive actions. These Permit requirements, and NORPAC’s violations thereof, are described
`
`
`
`COMPLAINT - 12
`Case No. 3:22-cv-05123
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 13 of 56
`
`
`
`in section II.H of the Notice Letter, attached hereto as Exhibit 1 at 19–20, which are incorporated
`
`herein by this reference.
`
`B.
`
`NORPAC’S Violations of the Ecology Order.
`
`46.
`
`The Ecology Order required that NORPAC prepare a Stormwater System
`
`Evaluation that meets specified requirements and submit the document to Ecology for review
`
`and approval by November 1, 2020. NORPAC violated these requirements by failing to timely
`
`prepare and submit to Ecology a Stormwater System Evaluation that meets the requirements of
`
`the Ecology Order. These requirements, and NORPAC’s violations thereof, are described in
`
`section III of the Notice Letter, attached hereto as Exhibit 1 at 20, incorporated herein with this
`
`reference.
`
`47.
`
`The Ecology Order required that NORPAC develop a Stormwater
`
`Characterization Study Sampling Plan that meets specified requirements, submit the plan to
`
`Ecology for review and approval by November 1, 2020, and complete the Stormwater
`
`Characterization Study by March 15, 2021 in accordance with an Ecology-approved plan.
`
`NORPAC violated these requirements by failing to timely develop a Stormwater
`
`Characterization Study Sampling Plan that meets the requirements of the Ecology Order, by
`
`failing to timely implement an Ecology-approved Stormwater Characterization Study Sampling
`
`Plan, and by failing to timely prepare a Stormwater Characterization Study the meets the
`
`requirements of the Ecology Order. These requirements of the Ecology Order, and NORPAC’s
`
`violations thereof, are described in section III of the Notice Letter, attached hereto as Exhibit 1 at
`
`20–21, incorporated herein with this reference.
`
`48.
`
`The Ecology Order required that NORPAC submit to Ecology for review and
`
`approval an updated NPDES permit application that includes specified information and that
`
`meets certain requirements by May 15, 2021. NORPAC violated these requirements by failing to
`
`
`
`COMPLAINT - 13
`Case No. 3:22-cv-05123
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 14 of 56
`
`
`
`timely submit an updated NPDES permit application that complies with the requirements of the
`
`Ecology Order. These requirements of the Ecology Order, and NORPAC’s violations thereof, are
`
`described in section III of the Notice Letter, attached hereto as Exhibit 1 at 21, incorporated
`
`herein with this reference.
`
`49.
`
`The violations of the Permit and Ecology Order alleged herein are ongoing
`
`because they are continuing and/or are reasonably likely to recur. For example, NORPAC’s
`
`frequent exceedances of effluent limits and benchmarks are continuing and NORPAC is not
`
`implementing required corrective actions to remedy its exceedances.
`
`50.
`
`Discharges from NORPAC’s Facility contribute to the polluted conditions of the
`
`waters of the United States, including the Columbia River. Discharges from NORPAC’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.
`
`51.
`
`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 members also
`
`derive 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
`
`NORPAC’s contributions to such a polluted state.
`
`52.
`
`A significant penalty should be imposed against NORPAC under the penalty
`
`factors set forth in section 309(d) of the CWA, 33 U.S.C. § 1319(d).
`
`53.
`
`NORPAC’s violations were avoidable had NORPAC been diligent in overseeing
`
`the Facility’s operations and maintenance.
`
`54.
`
`NORPAC has benefited economically as a consequence of its violations and its
`
`failure to implement improvements at the facility.
`
`
`COMPLAINT - 14
`Case No. 3:22-cv-05123
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark 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 3:22-cv-05123 Document 1 Filed 02/28/22 Page 15 of 56
`
`
`
`55.
`
`In accordance with section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and 40
`
`C.F.R. § 135.4, Riverkeeper will mail either a filed, date-stamped copy of this complaint or a
`
`conformed copy of this complaint after it is filed to the Administrator of the EPA, the Regional
`
`Administrator for Region 10 of the EPA, and the Attorney General of the United States.
`
`VI. CAUSE OF ACTION.
`
`56.
`
`The preceding paragraphs and the allegations in sections II and III of the Notice
`
`Letter, attached hereto as Exhibit 1 at 2–21, are incorporated herein by this reference.
`
`57.
`
`NORPAC’s violations of the Permit and the Ecology Order described herein and
`
`in the Notice Letter constitute violations of an “effluent standard or limitation” as defined by
`
`section 505(f) of the CWA, 33 U.S.C. § 1365(f), and an “order issued by . . . a State with respect
`
`to such a standard or limitation,” 33 U.S.C. § 1365(a)(1).
`
`58.
`
`Upon information and belief, NORPAC’s violations are continuing or are
`
`reasonably likely to continue to recur. Any and all additional violations of the Permit and the
`
`Ecology Order that occur after the date of Riverkeeper’s Notice Letter, but before a final
`
`decision in this action, should be considered continuing violations subject to this complaint.
`
`59. Without the imposition of appropriate civil penalties and the issuance of an
`
`injunction, NORPAC is likely to continue to violate the Permit and Ecology Order to the further
`
`injury of Riverkeeper, its members, and the public.
`
`VII. RELIEF REQUESTED.
`
`
`
`Wherefore, Riverkeeper respectfully requests that this Court grant the following relief:
`
`A.
`
`Issue a declaratory judgment that NORPAC violated, and continues to be in
`
`violation of, the Permit and the Ecology Order;
`
`B.
`
`Enjoin NORPAC from operating the Facility in a manner that results in further
`
`violations of the Permi

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