Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 1 of 27
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`Richard Smith
`Savannah Rose
`SMITH & LOWNEY, PLLC
`2317 East John Street
`Seattle, Washington 98112
`(206) 860-2883
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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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`TWIN HARBORS WATERKEEPER,
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` Plaintiff,
`v.
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`BWC TERMINALS LLC,
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` Defendant.
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`___________________________________
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`COMPLAINT
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`INTRODUCTION
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`I.
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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, Twin Harbors Waterkeeper (“Twin
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`Harbors”), seeks a declaratory judgment, injunctive relief, the imposition of civil penalties, and
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`the award of costs, including attorneys’ and expert witnesses’ fees, for Defendant BWC
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`Terminals LLC’s (“BWC”) repeated and ongoing violations of Sections 301(a) and 402 of the
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`CWA, 33 U.S.C. §§ 1311(a) and 1342, and the terms and conditions of its National Pollutant
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`Discharge Elimination System (“NPDES”) permit authorizing certain stormwater discharges of
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`pollutants from BWC’s Hoquiam, Washington facility to navigable waters.
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`COMPLAINT - 1
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 2 of 27
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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 over Twin Harbors’ claims under
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`Section 505(a) of the CWA, 33 U.S.C. § 1365(a). Sections 309(d) and 505(a) and (d) of the
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`CWA, 33 U.S.C. §§ 1319(d) and 1365(a) and (d), authorize the relief Twin Harbors requests.
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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), Twin
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`Harbors notified BWC of Defendant’s violations of the CWA and of Twin Harbors’ intent to sue
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`under the CWA by letter dated and postmarked January 18, 2022 (“Notice Letter”). A copy of
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`the Notice Letter is attached to this complaint as Exhibit 1. The allegations in the Notice Letter
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`are incorporated herein by this reference. In accordance with section 505(b)(1)(A) of the CWA,
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`33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(1), Twin Harbors notified the Administrator
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`of the United States Environmental Protection Agency (“EPA”), the Administrator of EPA
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`Region 10, the Director of the Washington Department of Ecology (“Ecology”), and BWC’s
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`registered agent of its intent to sue BWC by mailing copies of the Notice Letter to these
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`individuals on January 18, 2022.
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`4.
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`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.
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`The violations complained of in the Notice Letter are continuing and/or are
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`reasonably likely to re-occur.
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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.
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`7.
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`The source of the violations complained of is in Grays Harbor 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
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 3 of 27
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`the Western District of Washington under Section 505(c)(1) of the CWA, 33 U.S.C. §
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`1365(c)(1), and 28 U.S.C. § 1391(b).
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`III.
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`PARTIES
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`Twin Harbors is suing on behalf of itself and its members.
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`Twin Harbors is a non-profit corporation organized under the laws of the state of
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`Washington. Twin Harbors is dedicated to protecting and preserving the environment of
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`Washington State, especially the quality of its waters. Twin Harbors is a membership
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`organization and has at least one member who is injured by BWC’s violations.
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`10.
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`Twin Harbors has representational standing to bring this action. Twin Harbors’
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`members are reasonably concerned about the effects of discharges of pollutants, including
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`stormwater from BWC’s facility, on water quality and aquatic species and wildlife that Twin
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`Harbors’ members observe, study, use, and enjoy. Twin Harbors’ members are further concerned
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`about the effects of discharges from BWC’s facility on human health. In addition, discharges
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`from BWC’s facility lessen Twin Harbors’ members’ aesthetic enjoyment of nearby areas. Twin
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`Harbors has members who live, work, fish, and recreate around or use Grays Harbor which is
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`affected by BWC’s discharges. Twin Harbors’ members’ concerns about the effects of BWC’s
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`discharges are aggravated by BWC’s failure to record and timely report information about its
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`discharges and pollution controls in a timely manner. The recreational, scientific, economic,
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`aesthetic, and/or health interest of Twin Harbors and its members have been, are being, and will
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`be adversely affected by BWC’s violations of the CWA. The relief sought in this lawsuit can
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`redress the injuries to these interests.
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`11.
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`Twin Harbors has organizational standing to bring this action. Twin Harbors has
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`been actively engaged in a variety of educational and advocacy efforts to improve water quality
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`and to address sources of water quality degradation in the waters of Western Washington,
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`COMPLAINT - 3
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 4 of 27
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`including Grays Harbor. As detailed herein and in the Notice Letter, BWC has failed to comply
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`with numerous requirements of its NPDES permit including completing corrective actions,
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`compliance with water quality standards, monitoring, recordkeeping, and reporting requirements.
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`As a result, Twin Harbors is deprived of information necessary to properly serve its members by
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`providing information and taking appropriate action to advance its mission. Twin Harbors’
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`efforts to educate and advocate for greater environmental protection, and to ensure the success of
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`environmental restoration projects implemented for the benefit of its members are also
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`obstructed. Finally, Twin Harbors and the public are deprived of information that influences
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`members of the public to become members of Twin Harbors, thereby reducing Twin Harbors’
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`membership numbers. Thus, Twin Harbors’ organizational interests have been adversely affected
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`by BWC’s violations. These injuries are fairly traceable to BWC’s violations and are redressable
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`12.
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`BWC is a corporation authorized to conduct business under the laws of the state
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`of Washington.
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`13.
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`BWC owns and operates a bulk liquid storage terminal located at or about 3128
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`Port Industrial Rd, Hoquiam, WA 98550-4211 (referred to herein as the “facility”).
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`IV. LEGAL BACKGROUND
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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. A discharge of a
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`pollutant from a point source to waters of the United States without authorization by a NPDES
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`permit, issued under Section 402 of the CWA, 33 U.S.C. § 1342, is prohibited.
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`15.
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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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`COMPLAINT - 4
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 5 of 27
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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).
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`16.
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`Under Section 402 of the CWA, 33 U.S.C. § 1342, Ecology has repeatedly issued
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`Industrial Stormwater General Permits, most recently on November 20, 2019, effective January
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`1, 2020, and set to expire December 31, 2024 (the “2020 Permit”). The previous permit was
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`issued December 3, 2014, became effective January 2, 2015, and expired December 31, 2019
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`(the “2015 Permit”). The 2015 Permit and 2020 Permit (collectively, “the Permits”), contain
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`substantially similar requirements and authorize those that obtain coverage thereunder to
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`discharge stormwater associated with industrial activity, a pollutant under the CWA, and other
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`pollutants contained in the stormwater to waters of the United States subject to certain terms and
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`conditions.
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`The Permits impose certain terms and conditions on those covered thereby,
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`including requirements for monitoring and sampling of discharges, reporting and recordkeeping
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`requirements, and restrictions on the quality of stormwater discharges. To reduce and eliminate
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`pollutants in stormwater discharges, the Permits require, among other things, that permittees
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`develop and implement best management practices (“BMPs”) and a Stormwater Pollution
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`Prevention Plan (“SWPPP”), and apply all known and reasonable methods of prevention,
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`control, and treatment (“AKART”) to discharges. The specific terms and conditions of the
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`Permits are described in detail in the Notice Letter, attached hereto as Exhibit 1 and incorporated
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`herein by this reference.
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`V.
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`FACTS
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`Ecology granted BWC coverage for the facility under the 2015 Permit under
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`Permit Number WAR306512. Ecology granted subsequent coverage under the 2020 Permit
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`under the same permit number, WAR306512.
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`COMPLAINT - 5
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 6 of 27
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`19.
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`BWC discharges stormwater and pollutants associated with industrial activity to
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`Grays Harbor.
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`BWC’s facility is engaged in industrial activities including the transportation and
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`storage of bulk liquids such as methanol, magnesium oxide, among others and is approximately
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`16 acres. BWC’s facility has multiple distinct points of discharge where stormwater and other
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`pollutants leave the facility and eventually enter Grays Harbor.
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`21.
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`BWC has violated and continues to violate the Permits and Sections 301(a) and
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`402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342, by discharging pollutants in violation of an
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`NPDES Permit. BWC’s violations of the Permits are set forth in sections I through VI of the
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`Notice Letter attached hereto as Exhibit 1 and are incorporated herein by this reference. In
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`particular, and among the other violations described in the Notice letter, BWC has violated the
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`Permits by failing to comply with water quality standards, failing to comply with AKART
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`standards, failing to implement BMPs to control water quality, failing to implement corrective
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`actions, failing to establishing an adequate SWPPP, failing to collect or analyze quarterly
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`samples, failing to submit correct sample data on DMRs, failing to correctly and timely submit
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`Discharge Monitoring Reports (DMRs), failing to correctly and timely submit Annual Reports,
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`failing comply with visual monitoring requirements, failing to record information, failing to
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`retain records, and failing to report permit violations.
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`BWC discharges stormwater from the facility containing levels of pollutants that
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`exceed the benchmark values established by the Permits, including the days on which BWC
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`collected samples with the results identified in Table 1, and is likely to continue discharging
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`comparably unacceptable levels of pollutants in its stormwater:
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`COMPLAINT - 6
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 7 of 27
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`Table 1: Monitoring Point 002 Benchmark Exceedances
`Quarter in which
`pH (Benchmark: 5.0 -
`Copper
`sample was
`9.0 Standard Units)
`(Benchmark: 14 µg/L)
`collected
`Third Quarter 2018
`Third Quarter 2019
`Fourth Quarter 2019
`First Quarter 2020
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`32.9
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`43.8
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`Third Quarter 2020
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`4.6
`4.9
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`Zinc
`(Benchmark: 117 µg/L)
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`774.2
`167
`464.9
`196.05
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`140
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` The stormwater monitoring data provided in Table 1 shows benchmark
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`exceedances included in the stormwater monitoring results that BWC submitted to Ecology.
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`The Permits requires BWC’s monitoring to be representative of discharges from
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`the facility. The stormwater monitoring results that BWC routinely submits to Ecology are not
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`representative of the facility’s stormwater discharges, as described in detail in section III.A in the
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`Notice Letter attached hereto as Exhibit 1.
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`BWC’s stormwater discharges are causing or contributing to violations of water
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`quality standards and therefore violate the Permits. Discharges from BWC’s facility contribute to
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`the polluted conditions of the waters of the state, including the water quality standards of Grays
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`Harbor. Discharges from BWC’s facility contribute to the ecological impacts that result from the
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`pollution of these waters and to Twin Harbors and its members’ injuries resulting therefrom.
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`These requirements and BWC’s violations thereof are described in detail in section I of the
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`Notice Letter, attached hereto as Exhibit 1, and incorporated herein by this reference.
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`BWC’s exceedances of the benchmark values indicate that BWC is failing to
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`apply AKART to its discharges and/or is failing to implement an adequate SWPPP and BMPs.
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`BWC violated and continues to violate the Permits by not developing, modifying, and/or
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`implementing BMPs in accordance with the requirements of the Permits, and/or by not applying
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`COMPLAINT - 7
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 8 of 27
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`AKART to discharges from the facility. These requirements and BWC’s violations thereof are
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`described in detail in section I.B and section II of the Notice Letter, attached as Exhibit 1, and
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`incorporated herein by this reference.
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`27.
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`BWC has violated and continues to violate the monitoring requirements of the
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`Permits. For example, the Permits require BWC to sample its stormwater discharges once during
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`every calendar quarter at each distinct point of discharge offsite except for substantially identical
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`outfalls. However, BWC has failed and is failing to monitor discharges from the multiple distinct
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`points of discharge. Instead, BWC is collecting samples from at least five different monitoring
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`locations and mixing them, despite being told not to multiples times by Ecology as described in
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`section III.A of the Notice Letter. BWC also failed to submit correct sample data on its DMRs as
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`required by Condition G20 of the Permits by submitting sample data from all discharge points as
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`discharge from Monitoring Point 002 in its DMR despite being aware that this practice is
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`incorrect; BWC failed to comply with sample timing and frequency prescribed by the Permits by
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`failing to sample from all discharge points as described in section III.A of the Notice Letter;
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`BWC failed to collect and analyze stormwater samples for all parameters at Monitoring Point
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`002 during the first quarter 2019 and second quarter 2019; BWC failed to submit timely DMRs
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`for the third quarter 2018, fourth quarter 2019, and second quarter 2020; BWC failed to submit
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`timely Annual Reports for 2019, and 2020; BWC failed to submit a complete and accurate
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`Annual Report in 2019 and 2020; and BWC failed to comply with visual monitoring
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`requirements by failing to conduct Industrial Stormwater Monthly Inspection Reports by
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`qualified personnel, including each and every month since May 3, 2018. The monitoring and
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`inspection requirements and BWC’s violations thereof are described in section III of the Notice
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`Letter, attached hereto as Exhibit 1, and incorporated herein by this reference.
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`COMPLAINT - 8
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`28. BWC has not conducted and/or completed the Level One Corrective Action
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`responses as required by the Permits. These requirements of the Permits and BWC’s violations
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`thereof are described in section IV.A of the Notice Letter, attached hereto as Exhibit 1, and
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`incorporated herein by this reference.
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`29.
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`Condition S8.B of the Permits require a permittee to undertake a Level One
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`Corrective Action whenever it exceeds a benchmark value identified in Condition S5.A, Table 2
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`of the Permits and Condition S5.B.2, Table 3 of the 2015 Permit. A Level One Corrective Action
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`comprises of conducting an inspection to investigate the cause, review of the SWPPP to ensure
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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, signature
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`and certification of the revised SWPPP, summary of the Level One Corrective Action in the
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`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. Condition S8.A of the 2020
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`Permit requires that the permittee implement any Level One Corrective Action required by the
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`2015 Permit.
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`BWC triggered Level One Corrective Action requirements for each benchmark
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`range exceedance identified in Table 1 above. BWC has violated the requirements of the Permits
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`described above by failing to conduct a Level One Corrective Action in accordance with the
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`Permits’ conditions, including the required inspection to investigate the cause; review, revision,
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`and certification of the SWPPP; the required implementation of additional BMPs; and the
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`required summarization in the Annual Report, each time during the past five years that its
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`quarterly stormwater sampling results were greater than a benchmark, including the benchmark
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`exceedances listed in Table 1 above. These corrective action requirements and BWC’s violations
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`COMPLAINT - 9
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 10 of 27
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`thereof are described in section IV.A of the Notice Letter, attached hereto as Exhibit 1, and are
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`incorporated herein by this reference.
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`31.
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`Condition S8.C of the Permits require a permittee to undertake a Level Two
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`Corrective Action whenever it exceeds a benchmark value identified in Condition S5.A, Table 2
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`of the Permits and Condition S5.B.2, Table 3 of the 2015 Permit during any two quarters during
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`a calendar year. A Level Two Corrective Action comprises review of the SWPPP to ensure
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`permit compliance, revisions to the SWPPP to include additional structural source control BMPs
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`with the goal of achieving the applicable benchmark values in future discharges, signature and
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`certification of the revised SWPPP, summary of the Level Two Corrective Action in the Annual
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`Report, and full implementation of the revised SWPPP as soon as possible, but no later than
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`August 31st of the year following the triggering of the Level Two Corrective Action. Condition
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`S8.A of the 2020 Permit requires that the permittee implement any Level Two Corrective Action
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`required by the 2015 Permit.
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`14
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`32.
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`BWC triggered Level Two Corrective Action requirements for each benchmark
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`exceedance identified in Table 1 above that occurred in any two quarters of a calendar year.
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`BWC has violated the requirements of the Permits described above by failing to conduct a Level
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`Two Corrective Action in accordance with Permit conditions, including the required review,
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`revision, and certification of the SWPPP, the required implementation of additional structural
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`source control BMPs, and the required summarization in the Annual Report, each time during the
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`past five years that its quarterly stormwater sampling results were greater than a benchmark, for
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`any two quarters during a calendar year, including the benchmark exceedances listed in Table 1
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`above. These violations include BWC’s failure to fulfill these obligations for zinc triggered by its
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`stormwater sampling during calendar year 2019 and 2020. These corrective action requirements
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`COMPLAINT - 10
`
`Smith & Lowney, pllc
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`26
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`
`
`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 11 of 27
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`and BWC’s violations thereof are described in section IV.B of the Notice Letter, attached hereto
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`as Exhibit 1, and are incorporated herein by this reference.
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`33.
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`BWC has failed and continues to fail to comply with recording and record
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`keeping requirements of the Permits. These requirements and BWC’s violations thereof are
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`described in section V of the Notice Letter, attached hereto as Exhibit 1, and are incorporated
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`herein by this reference.
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`34.
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`Condition S9.E of the Permits requires BWC to take certain actions, including
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`reporting to Ecology, in the event BWC is unable to comply with any terms and conditions of the
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`Permits which may endanger human health or the environment. BWC has failed to comply with
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`these requirements of the Permits by failing to report and subsequently correct permit violations,
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`including each and every time BWC failed to comply with corrective action requirements as
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`described above in paragraphs 28-32, each and every time BWC failed to sample a stormwater
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`discharge as described above in paragraph 27, and each and every time BWC discharged
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`stormwater with amounts of pollutants in excess of the Permit benchmarks as described in
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`paragraphs 22-23 above. These requirements and BWC’s violations thereof are described in
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`section VI of the Notice Letter, attached hereto as Exhibit 1, and incorporated herein by this
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`17
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`reference.
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`35.
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`Each of BWC’s violations of the Permits and the CWA are ongoing in that they
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`are currently occurring or are likely to re-occur at least intermittently in the future.
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`36.
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`A significant penalty should be imposed against BWC pursuant to the penalty
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`factors set forth in 33 U.S.C. § 1319(d).
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`37.
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`BWC’s violations were avoidable had BWC been diligent in overseeing facility
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`operations and maintenance.
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`COMPLAINT - 11
`
`Smith & Lowney, pllc
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`26
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`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 12 of 27
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`
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`38.
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`BWC has benefited economically as a consequence of its violations and its
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`failure to implement stormwater management improvements at the facility.
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`39.
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`In accordance with Section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and 40
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`C.F.R. § 135.4, Twin Harbors is mailing a copy of this Complaint to the Administrator of the
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`EPA, the Regional Administrator for Region 10 of the EPA, and the Attorney General of the
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`United States.
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`VI. CAUSE OF ACTION
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`40.
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`The preceding paragraphs and the allegations in the Notice Letter attached hereto
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`as Exhibit 1 are incorporated herein.
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`41.
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`BWC’s violations of the Permits described herein and in the Notice Letter
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`constitute violations of violations of “effluent standards or limitations” under the CWA per 33
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`U.S.C. § 1365(f)(7).
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`42.
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`No agency has taken an enforcement action constitution diligent prosecution or
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`otherwise precluding claims under 33 U.S.C. §§ 1319 or 1365(a).
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`43.
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`Prior notice of violations and claims was provided to Defendant and others as
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`required.
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`42.
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`These violations committed by BWC are ongoing or are reasonably likely to
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`continue to occur. Any and all additional violations of the Permits and the CWA which occur
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`after those described in Twin Harbors’ Notice Letter, but before a final decision in this action,
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`should be considered ongoing violations subject to this Complaint.
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`43. Without the imposition of appropriate civil penalties and the issuance of an
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`injunction, BWC is likely to continue to violate the Permits and the CWA to the further injury of
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`Twin Harbors, its members, and others.
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`COMPLAINT - 12
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`Smith & Lowney, pllc
`
`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
`
`26
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`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 13 of 27
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`
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`
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`VII. RELIEF REQUESTED
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`Wherefore, Twin Harbors respectfully requests that this Court grant the following relief:
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`A.
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`Issue a declaratory judgment that BWC has violated and continues to be in
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`violation of the Permits and Sections 301 and 402 of the CWA, 33 U.S.C. §§ 1311 and 1342;
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`
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`B.
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`Enjoin BWC from operating the facility in a manner that results in further
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`violations of the Permits and the CWA;
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`C.
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`Order BWC to immediately implement a SWPPP that complies with the 2020
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`Permit;
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`D.
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`Order BWC to allow Twin Harbors to participate in the development and
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`implementation of BWC’s SWPPP;
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`E.
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`Order BWC to provide Twin Harbors, for a period beginning on the date of the
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`Court’s Order and running for three years after BWC achieves compliance with all of the
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`conditions of the Permits, with copies of all reports and other documents which BWC submits to
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`Ecology regarding BWC’s coverage under the Permits at the facility at the time these documents
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`are submitted to Ecology;
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`16
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`F.
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`Order BWC to take specific actions to remediate the environmental harm caused
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`17
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`by its violations;
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`18
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`G.
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`Order BWC to pay civil penalties of $59,973 per day of violation for each
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`violation committed by BWC, pursuant to Sections 309(d) and 505(a) of the CWA, 33 U.S.C. §§
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`1319(d) and 1365(a), and 40 C.F.R. § 19 and 19.4;
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`H.
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`Award Twin Harbors its 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 any
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`other applicable authorization; and
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`COMPLAINT - 13
`
`Smith & Lowney, pllc
`
`2317 East John Street
`
`Seattle, Washington 98112
`(206) 860-2883
`
`26
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`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 14 of 27
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`Award such other relief as this Court deems appropriate.
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`I.
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`
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`RESPECTFULLY SUBMITTED this 8th day of April, 2022
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`Smith & Lowney, PLLC
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`By: By: s/Richard A. Smith
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`Richard A. Smith, WSBA #21788
`By: s/Savannah Rose
`Savannah Rose, WSBA #57062
`Attorneys for Plaintiff
`2317 E. John St.,
`Seattle, WA 98112
`Tel: (206) 860-2124
`Fax: (206) 860-4187
`E-mail: richard@smithandlowney.com,
`savannah@smithandlowney.com
`
`
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`COMPLAINT - 14
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`Smith & Lowney, pllc
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`2317 East John Street
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`Seattle, Washington 98112
`(206) 860-2883
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`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 15 of 27
`Case 3:22-cv-05233 Document1 Filed 04/08/22 Page 15 of 27
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`Exhibit 1
`Exhibit 1
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`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 16 of 27
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`
`
`Smith & Lowney, PLLC
`
`2317 East John Street
`
`Seattle, Washington 98112
`
`(206) 860-2883, Fax (206) 860-4187
`
`January 18, 2022
`
`
`Via Certified Mail - Return Receipt Requested
`
`Managing Agent
`BWC Terminals LLC
`3128 Port Industrial Rd
`Hoquiam, WA 98550-4211
`
`Managing Agent
`BWC Terminals LLC
`1111 Bagby St STE 1800
`Houston, TX 77002-2586
`
`Re: NOTICE OF INTENT TO SUE UNDER THE CLEAN WATER ACT AND
`REQUEST FOR COPY OF STORMWATER POLLUTION PREVENTION
`PLAN
`
`
`Dear Managing Agent:
`
`We represent Twin Harbors Waterkeeper, P.O. Box 751, Cosmopolis, WA 98537,
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`(206) 293-0574. 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 Twin
`Harbors Waterkeeper’s intent to file a citizen suit against BWC Terminals LLC formerly
`Contanda Terminals LLC (“BWC”), under section 505 of the Clean Water Act (“CWA”), 33
`U.S.C. § 1365, for the violations described below. This letter is also a request for a copy of
`the complete and current stormwater pollution prevention plan (“SWPPP”) required by
`BWC’s National Pollution Discharge Elimination System (“NPDES”) permit.
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`BWC was granted coverage under the Industrial Stormwater General Permit (“ISGP”)
`issued by the Washington Department of Ecology (“Ecology”) effective May 3, 2018 and
`expired on December 31, 2019, under NPDES No. WAR306512 (the “2015 Permit”).
`Ecology granted BWC coverage under the current iteration of the ISGP effective January 1,
`2020, set to expire on December 31, 2024 (the “2020 Permit”), which maintains the same
`permit number: WAR306512.
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`BWC has violated and continues to violate the CWA (see Sections 301 and 402 of the
`CWA, 33 U.S.C. §§ 1311 and 1342) and the terms and conditions of the 2015 Permit and
`2020 Permit (collectively, the “Permits”) with respect to operations of, and discharges of
`stormwater and pollutants from its facility, located at or about 3128 Port Industrial Rd,
`Hoquiam, WA 98550-4211 (the “facility”) as described herein, to the Chehalis River and
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`Notice of Intent to Sue - 1
`
`

`

`Case 3:22-cv-05233 Document 1 Filed 04/08/22 Page 17 of 27
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`eventually Grays Harbor. The facility subject to this notice includes any contiguous or
`adjacent properties owned or operated by BWC.
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`I.
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`COMPLIANCE WITH APPLICABLE STANDARDS
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`A. Compliance with Water Quality Standards
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`Condition S10.A of the Permits prohibits discharges that cause or contribute to
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`violations of water quality standards. Water quality standards are the foundation of the CWA
`and Washington’s efforts to protect clean water. In particular, water quality standards
`represent the U.S. Environmental Protection Agency (“EPA”) and Ecology’s determination,
`based on scientific studies, of the thresholds at which pollution starts to cause significant
`adverse effects on fish or other beneficial uses. For each water body in Washington, Ecology
`designates the “beneficial uses” that must be protected through the adoption of water quality
`standards.
`
`
`A discharger must comply with both narrative and numeric criteria water quality
`standards. WAC 173-201A-010; WAC 173-201A-510 (“No waste discharge permit can be
`issued that causes or contributes to a violation of water quality criteria, except as provided for
`in this chapter.”). Narrative water quality standards provide legal mandates that supplement
`the numeric criteria. Furthermore, the narrative water quality standard applies with equal
`force even if Ecology has established a numeric water quality standard. Specifically,
`Condition S10.A of the Permits requires that BWC’s discharges not cause or contribute to an
`excursion of Washington State water quality standards.
`
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`BWC discharges to the Chehalis River via storm drain and then to Grays Harbor.
`BWC discharges s