`
`FILED
`U.S. DISTRICT COURT
`DlSTPJCr Or WYOHiNG'
`
`ZOi.1 pLb 10 Ar'ih 15
`^
`
`*
`
`Ci (I- I fc. I «i ^
`
`MARK C. ELMER {pro hac vice pending)
`United States Department of Justice
`Environmental Enforcement Section
`999 18^"^ Street, South Terrace, Suite 370
`Denver, Colorado 80202
`Telephone: (303) 844-1352
`mark.elmer@,usdoi.gov
`
`L. ROBERT MURRAY
`Acting United States Attorney
`NICHOLAS VASSALLO (WY Bar #5-2443)
`Assistant United States Attorney
`District of Wyoming
`P.O. Box 668
`Cheyenne, Wyoming 82003-0668
`Telephone: (307) 772-2124
`nick.vassallo@usdoi.gov
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF WYOMING
`
`Civil Action No
`
`.2\caj1-o -S
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`V.
`
`FLEUR DE LIS ENERGY, LLC, and,
`FDL OPERATING , LLC,
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`Defendants.
`
`COMPLAINT
`
`The United States of America, by the authority of the Attorney General, and at the
`
`request of the United States Environmental Protection Agency ("EPA"), files this Complaint and
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`alleges as follows:
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`
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 2 of 16
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`NATURE OF ACTION
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`1.
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`This is a civil action against Fleur de Lis Energy, LLC and FDL Operating, LLC
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`(collectively "FDL" or "Defendants"), seeking civil penalties for violations of the Clean Water
`
`Act ("CWA"), 33 U.S.C. §§ 1251-1387. The violations include the unauthorized discharge of oil
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`into waters of the United States or adjoining shorelines and the failure to comply with
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`regulations issued under Section 311 (j), 33 U.S.C. § 1321 (j), of the CWA at oil and natural gas
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`production facilities in Wyoming.
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`JURISDICTION AND VENUE
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`2.
`
`This Court has jurisdiction over the subject matter of this action and Defendants
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`under Sections 309(d) and 311(b)(7)(E) of the CWA, 33 U.S.C. §§ 1319(d) and 1321(b)(7)(E),
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`and 28 U.S.C. §§ 1331, 1345, and 1355.
`
`3.
`
`Venue is proper in this District pursuant to Section 311(b)(7)(E) of the CWA, 33
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`U.S.C. § 1321(b)(7)(E), and 28 U.S.C. §§ 1391(b) and 1395(a), because a substantial part of the
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`events or omissions giving rise to the violations occurred in this District and because Defendants
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`are doing business in this District.
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`DEFENDANTS
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`4.
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`Defendants are limited liability companies organized under the laws of the State
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`of Texas. At all relevant times. Defendants have conducted business in the State of Wyoming.
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`5.
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`Defendants own or operate oil and natural gas production facilities in the Salt
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`Creek and Linch Complex fields in Wyoming.
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 3 of 16
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`STATUTORY AND REGULATORY BACKGROUND
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`CWA's Prohibition of Discharges of Oil
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`6.
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`Section 311 (b)(3) of the CWA, 33 U.S.C. § 1321 (b)(3), prohibits the unauthorized
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`discharge of oil in "such quantities as may be harmful as determined by the President" into or
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`upon the navigable waters or adjoining shorelines.
`
`7.
`
`The President has delegated to EPA the authority for determining quantities of oil
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`the discharge of which may be harmful. Executive Order No. 12777, dated October 18,1991,
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`Section 8(a), 56 Fed. Reg. 54757, 54768 (October 22, 1991), superseding Executive Order No.
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`11735, dated August 3, 1973, Section 1(1), 38 Fed. Reg. 21243 (August 7, 1973).
`
`8.
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`EPA has determined, for purposes of Section 311(b)(4) of the CWA, 33 U.S.C.
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`§ 1321(b)(4), that discharges of oil in such quantities that violate applicable water quality
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`standards, or cause a film or sheen upon or discoloration of the surface of the water or adjoining
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`shorelines, or cause a sludge or emulsion to be deposited beneath the surface of the water or
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`upon adjoining shorelines may be harmful to the public health or welfare or the environment of
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`the United States. 40 C.F.R. § 110.3.
`
`9.
`
`For purposes of Section 311 of the CWA, 33 U.S.C. § 1321, the term "discharge"
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`is defined to include "any spilling, leaking, pumping, pouring, emitting, emptying or dumping,"
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`subject to certain specified exceptions not applicable here. Section 311(a)(2) of the CWA, 33
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`U.S.C. § 1321(a)(2).
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`Spill Prevention Control and Countermeasure Regulations
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`10.
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`Section 31 l(j)(l)(C) of the CWA requires the President to promulgate regulations
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`that establish procedures for preventing and containing discharges of oil from onshore facilities
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`into navigable waters. This authority was delegated to EPA.
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`-3-
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 4 of 16
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`11.
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`In 1973, EPA promulgated regulations for preventing discharges of oil from
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`non-transportation-related onshore facilities. 38 Fed. Reg. 34164 (December 11, 1973). Those
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`regulations have been codified at 40 C.F.R. Part 112, Subparts A through C, and are referred to
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`herein as the "Spill Prevention Control and Countermeasure Regulations" or simply "SPCC
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`Regulations."
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`12.
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`The SPCC Regulations apply to owners and operators of non-transportation-
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`related onshore and offshore facilities engaged in drilling, producing, gathering, storing,
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`processing, refining, transferring, distributing or consuming oil and oil products, which, due to
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`their location or nature of operations, could reasonably be expected to discharge oil in quantities
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`that may be harmful into or upon the navigable waters of the United States or adjoining
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`shorelines. 40 C.F.R. § 112.1.
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`13.
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`As noted earlier, EPA has promulgated a regulation, set forth at 40 C.F.R. §
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`110.3, specifying what quantities of oil may be harmful to the public health or welfare or the
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`environment. Such quantities include discharges that: (a) violate applicable water quality
`
`standards, (b) cause a film or sheen upon or discoloration of the surface of the water or adjoining
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`shorelines, or (c) cause a sludge or emulsion to be deposited beneath the surface of the water or
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`upon the adjoining shorelines. 40 C.F.R. § 110.3.
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`14.
`
`Pursuant to 40 C.F.R. § 112.3(a), owners and operators of regulated facilities are
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`required to prepare and implement written SPCC Plans in accordance with 40 C.F.R. Part 112.
`
`Facility Response Plan Regulations
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`15.
`
`In 1990, Congress amended Section 311 of the CWA by enacting the Oil
`
`Pollution Act of 1990 ("CPA"). Section 311 (j)(5)(A) directed the President to issue regulations
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`applicable to facilities that because of their location or nature of operations "could reasonably be
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`expected to cause substantial harm to the environment" by discharging oil into or on the
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`-4_
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 5 of 16
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`navigable waters of the United States or adjoining shorelines (so-called "substantial harm
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`facilities"). 33 U.S.C. § 1321 (j)(5)(A). Section 311 G)(5)(A) further provided that these
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`regulations require the owners or operators of substantial harm facilities to submit "a plan for
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`responding, to the maximum extent practicable, to a worst case discharge, and to a substantial
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`threat of such a discharge, of oil or a hazardous substance." 33 U.S.C. § 1321G)(5)(A).
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`16.
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`In 1991, the President delegated to EPA the authority to promulgate such
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`regulations for non-transportation-related onshore facilities.
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`17.
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`In 1994, EPA amended 40 C.F.R. Part 112 by promulgating Facility Response
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`Regulations, which are published at 40 C.F.R. §§ 112.20 and 112.21. The Facility Response
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`Regulations require owners and operators of non-transportation-related onshore oil storage and
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`distribution facilities to determine, under the criteria established by EPA in 40 C.F.R. §
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`112.20(f)(1), whether their facilities could reasonably be expected to cause substantial harm to
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`the environment by discharging oil into or on navigable waters or adjoining shorelines.
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`18.
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`If a facility is determined to be a substantial harm facility under these criteria, the
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`Facility Response Regulations require the owner or operator of the facility to prepare and submit
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`to EPA a Facility Response Plan ("FRP"), which details the facility's emergency plans for a
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`worst case oil spill. 40 C.F.R. § 112.20(a).
`
`19.
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`The FRP must be consistent with the National Oil and Hazardous Substance
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`Contingency Plan, 40 C.F.R. Part 300, and any applicable area contingency plans. 40 C.F.R.
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`§ 112.20(g). in addition, the FRP must either follow the format contained in 40 C.F.R. Part 112,
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`Appendix F, or contain the elements described in 40 C.F.R. § 112.20(h)(l)-(l 1). The facility
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`must also conduct response training and drill and exercise programs that either follow the
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 6 of 16
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`National Preparedness for Response Exercise Program ("PREP") Guidelines or are approved by
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`EPA. 40C.F.R. § 112.21.
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`Remedies for Clean Water Act Violations
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`20. Any owner, operator, or person in charge of an onshore facility from which oil is
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`discharged in violation of Section 311(b)(3) of the CWA, 33 U.S.C. § 1321(b)(3), is subject to a
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`civil penalty of up to $25,000 per day of violation or up to $1,000 per barrel of oil discharged.
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`Section 311 (b)(7)(A) of the CWA, 33 U.S.C. § 1321 (b)(7)(A). This amount was increased to
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`$48,762 per day or $1,951 per barrel of oil discharged for violations occurring after November 2,
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`2015 pursuant to the Civil Monetary Penalty Inflation Adjustment Rule, promulgated at 40
`
`C.F.R. Part 19.
`
`21.
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`Any person who fails or refuses to comply with any regulation issued under
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`Section 311 (j) of the CWA, 33 U.S.C. § 1321(j), is subject to a civil penalty of up to $25,000 per
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`day of violation. Section 311(b)(7)(C) of the CWA, 33 U.S.C. § 1321(b)(7)(C). This amount was
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`increased to $48,762 per day for violations occurring after November 2, 2015 pursuant to the
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`Civil Monetary Penalty Inflation Adjustment Rule, promulgated at 40 C.F.R. Part 19.
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`GENERAL ALLEGATIONS
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`22.
`
`Each Defendant is a "person" as defined in Sections 311 (a)(7) and 502(5) of the
`
`CWA, 33 U.S.C. §§ 1321(a)(7) and 1362(5), and 40 C.F.R. §§ 112.2 and 122.2.
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`23.
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`At all times relevant to this Complaint, Defendants were the "owners or
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`operators" as defined in Section 311(a)(6) of the CWA, 33 U.S.C. § 1321(a)(6), of the oil
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`production facilities referenced herein.
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`24.
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`At all times relevant to this Complaint, each oil production facility referenced
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`herein was an "onshore facility" within the meaning of Section 31 l(a)(10) of the CWA, 33
`
`U.S.C. § 1321(a)(10).
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 7 of 16
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`Discharges of Oil
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`National Response Center ("NRC") Spill No. 1160839
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`25. On or about October 5, 2016, approximately 4,746 gallons of oil and produced
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`water was discharged from well 02WC2SE3 in Natrona County, Wyoming owned or operated by
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`Defendants. At least some of the oil and produced water entered a tributary to Salt Creek known
`
`as the LACT 11 drainage.
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`26.
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`The discharged oil and produced water caused a sheen on the LACT 11 drainage
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`and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may be
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`harmful" pursuant to 40 C.F.R. § 110.3.
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`27.
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`Salt Creek is a tributary to the Powder River.
`
`28.
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`The LACT 11 drainage is a "navigable water" within the meaning of Section
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`502(7) oftheCWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`29.
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`Salt Creek is a "navigable water" within the meaning of Section 502(7) of the
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`CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`30.
`
`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 3U(a)(l) of the CWA, 33 U.S.C. § 1321(a)(1).
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`NRC Spill No. 1162697
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`31. On or about October 27, 2016, approximately 509 gallons of oil and produced
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`water was discharged from well 13WC1SE26 in Natrona County, Wyoming owned and/or
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`operated by Defendants. At least some of the oil and produced water entered the LACT 11
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`drainage.
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`32.
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`The discharged oil and produced water caused a sheen on the LACT 11 drainage
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`and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may be
`
`harmful" pursuant to 40 C.F.R. § 110.3.
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`-7-
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 8 of 16
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`33.
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`The LACT 11 drainage is a "navigable water" within the meaning of Section
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`502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
`
`34.
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`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 3II (a)(1) of the CWA, 33 U.S.C. § 1321(a)(1).
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`NRC Spill No. 1187112
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`35. On or about August 12, 2017, approximately 23,478 gallons of oil and produced
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`water was discharged from an injection pipeline in Johnson County, Wyoming owned and/or
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`operated by Defendants. At least some of the oil and produced water entered a tributary to Salt
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`Creek known as Indian Draw.
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`36.
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`The discharged oil and produced water caused a sheen on the tributary to Indian
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`Draw and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may
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`be harmful" pursuant to 40 C.F.R. § 110.3.
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`37.
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`Indian Draw and its tributaries are "navigable waters" within the meaning of
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`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`38.
`
`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 311(a)(1) of the CWA, 33 U.S.C. § 1321(a)(1).
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`NRC Spill No. 1201019
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`39. On or about January 3, 2018, approximately 383 gallons of oil and produced
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`water was discharged from a pipeline in Natrona County, Wyoming owned and/or operated by
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`Defendants. At least some of the oil and produced water entered the LACT 11 drainage.
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`40.
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`The discharged oil and produced water caused a sheen on the LACT 11 drainage
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`and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may be
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`harmful" pursuant to 40 C.F.R. § 110.3.
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`-8-
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 9 of 16
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`41.
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`The LACT 11 drainage is a "navigable water" within the meaning of Section
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`502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`42.
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`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 3II (a)(1) of the CWA, 33 U.S.C. § 1321(a)(1).
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`NRC Spill No. 1212849
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`43. On or about May 21, 2018, approximately 250 gallons of oil and produced water
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`was discharged from a well in Natrona County, Wyoming owned and/or operated by Defendants.
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`At least some of the oil and produced water entered the LACT 11 drainage.
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`44.
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`The discharged oil and produced water caused a sheep on the LACT 11 drainage
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`and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may be
`
`harmful" pursuant to 40 C.F.R. § 110.3.
`
`45.
`
`The LACT 11 drainage is a "navigable water" within the meaning of Section
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`502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
`
`46.
`
`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 311(a)(1) of the CWA, 33 U.S.C. § 1321(a)(1).
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`NRC Spill No, 1213600
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`47. On or about May 29, 2018, approximately 306,907 gallons of oil and produced
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`water was discharged from a flow line connected to Well 26TPSW26 in Natrona County,
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`Wyoming owned and/or operated by Defendants. At least some of the oil and produced water
`
`entered the LACT 11 drainage.
`
`48.
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`The discharged oil and produced water caused a sheen on the LACT 11 drainage
`
`and/or discoloration to the adjoining shoreline and was, therefore, in a quantity that "may be
`
`harmful" pursuant to 40 C.F.R. § 110.3.
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`-9-
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 10 of 16
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`49.
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`The LACT 11 drainage is a "navigable water" within the meaning of Section
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`502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`50.
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`The discharged oil and produced water are types of "oil" within the meaning of
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`Section 311(a)(1) of the CWA, 33 U.S.C. § 1321(a)(1).
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`Spin Prevention Control and Countermeasure Plans
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`Lease Automatic Custody Transfer ("LACT") Units 4, 5,10,11, and 20
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`51.
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`Defendants own and/or operate oil production facilities in the Salt Creek field in
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`Natrona County, Wyoming, known as LACT Units 4, 5, 10, 11, and 20.
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`52.
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`At all times relevant to this Complaint, LACT Units 4, 5, 10, 11, and 20 each had
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`a total oil storage capacity of at least 743,694 gallons. The largest tank at each facility, which
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`store crude oil or produced water, has a capacity that ranges from 210,000 gallons (at LACT
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`Units 4 and 11) to 300,720 gallons (at LACT Unit 20). If not properly contained, a spill from
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`these tanks would flow to an unnamed tributary to Salt Creek and then to Salt Creek, where it
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`could reasonably be expected to cause a violation of water quality standards and/or a sheen.
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`Uncontained spills or leaks from other tanks at LACT Units 4, 5, 10, 11, and 20 could result in
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`similar impacts.
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`53.
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`Salt Creek and its tributaries are "navigable waters" within the meaning of
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`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`54. LACT Units 4, 5, 10, 11, and 20 are "non-transportation-related facilities" subject
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`to the SPCC Regulations.
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`55.
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`Defendants' SPCC Plans for LACT Units 4, 5, 10, 11, and 20 failed to comply
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`with the SPCC Regulations. Deficiencies included:
`
`(a)
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`Failure to include piping and transfer structures in facility diagrams, in
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`violation of 40 CFR 112.7(a)(3);
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 11 of 16
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`(b)
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`Failure to include facility-specific discussion of secondary containment for
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`truck transfer areas, in violation of 40 CFR 112.7(a)(1) and (c);
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`(c)
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`Failure to include facility-specific discussion from the containment
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`identified in Part B, in violation of 40 CFR 112.9(b)(1);
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`(d)
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`Failure to identify which flow-through process vessels do not have
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`secondary containment and to discuss measures required by 40 CFR
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`112.9(c)(5)(i)-(iv); and
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`(e)
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`Failure to discuss or include pipeline maintenance program, as required by
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`40 CFR 112.9(d).
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`West Sussex B-1 Battery
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`56.
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`Defendants own and/or operate an oil production facility in the Linch Field in
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`Johnson County, Wyoming, known as West Sussex B-1 Battery ("West Sussex Battery").
`
`57.
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`The West Sussex Battery has a total oil storage capacity of more than 115,000
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`gallons. Its largest tanks, which are used to store crude oil and produced water, have a capacity
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`of 16,800 gallons. If not properly contained, a spill from these tanks would flow to Indian Draw
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`and then to Salt Creek, where it could reasonably be expected to cause a violation of water
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`quality standards and/or a sheen. Uncontained spills or leaks from other tanks at the West Sussex
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`Battery could result in similar impacts.
`
`58.
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`Indian Draw and Salt Creek are "navigable waters" within the meaning of Section
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`502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 120.2.
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`59.
`
`The West Sussex Battery is a "non-transportation-related facility" subject to the
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`SPCC Regulations.
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 12 of 16
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`60.
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`Defendants' SPCC Plan for the West Sussex Battery failed to comply with the
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`SPCC Regulations. Deficiencies included:
`
`(a)
`
`Failure to include piping and transfer structures in facility diagrams, in
`
`violation of 40 CFR I i2.7(a)(3);
`
`(b)
`
`Failure to include facility-specific discussion of secondary containment for
`
`truck transfer areas, in violation of 40 CFR 112.7(a)(1) and (c);
`
`(c)
`
`Failure to include facility-specific discussion from the containment
`
`identified in Part B, in violation of 40 CFR 112.9(b)(1);
`
`(d)
`
`Failure to identify which flow-through process vessels do not have
`
`secondary containment and to discuss measures required by 40 CFR
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`112.9(c)(5)(i)-(iv);and
`
`(e)
`
`Failure to discuss or include pipeline maintenance program, as required by
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`40 CFR 112.9(d).
`
`Facility Response Plans
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`LACT Units 4, 5, and 11
`
`61.
`
`At all times relevant to this Complaint, LACT Units 4, 5, and 11 each had a total
`
`oil or produced water storage capacity of at least 1,000,000 gallons.
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`62. LACT Units 4, 5, and 11 are each located near Salt Creek, which flows to the
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`Powder River.
`
`63.
`
`Salt Creek and the Powder River are "navigable waters" within the meaning of
`
`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), and40C.F.R. § 120.2.
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`64. A discharge of oil from LACT Units 4, 5, and 11 into Salt Creek could reasonably
`
`be expected to cause substantial harm to the environment.
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 13 of 16
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`65. LACT Units 4, 5, and 11 are "non-transportation-related facilities" subject to the
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`FRP Regulations.
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`66. On June 16,2016, EPA attempted to conduct a government-initiated unannounced
`
`exercise ("GIUE") at LACT Units 4, 5, 11 to determine whether these facilities were prepared to
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`respond adequately to a hypothetical spill. The GIUE was not conducted as planned because
`
`Defendants on June 16, 2016 incorrectly asserted that LACT Units 4, 5, and 11 were not required
`
`to have an FRP.
`
`67. FDL subsequently submitted an FRP for LACT Units 4, 5, and 11 to EPA.
`
`68.
`
`In 2017, EPA reviewed Defendants' March 2017 FRP for LACT Units 4, 5, and
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`11 and found various inadequacies identified in a September 20, 2017 letter from EPA to
`
`Defendants.
`
`LACT Unit 10
`
`69. LACT Unit 10 has a total oil storage capacity of 1,323,105 gallons.
`
`70. LACT Unit 10 is located near Salt Creek, which flows to the Powder River.
`
`71.
`
`Salt Creek and the Powder River are "navigable waters" within the meaning of
`
`Section 502(7) of the CWA, 33 U.S.C. § 1362(7) and 40 C.F.R. § 120.2.
`
`72. A discharge of oil from LACT Unit 10 into Salt Creek could reasonably be
`
`expected to cause substantial harm to the environment.
`
`73. LACT Unit 10 is a "non-transportation-related facility" subject to the FRP
`
`Regulations.
`
`74.
`
`In 2017, EPA reviewed Defendants' FRP for LACT Unit 10 dated of October 25,
`
`2017 and found various inadequacies identified in a November 2017 e-mail from EPA to
`
`Defendants.
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`- 13 -
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 14 of 16
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`FIRST CLAIM FOR RELIEF
`(Illegal Discharges)
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`75.
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`Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.
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`76.
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`Each discharge of oil and produced water described in paragraphs 25, 31, 35, 39,
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`43, and 47 was in such a quantity that may be harmful to the public health or welfare pursuant to
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`40 C.F.R. § 110.3 and therefore was in violation of Section 311 (b) of the CWA, 33 U.S.C.
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`§ 1321(b).
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`77.
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`Defendants are liable for civil penalties not to exceed the statutory maximum per
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`day for each violation or per barrel of oil discharged, pursuant to Section 311(b)(7)(A) of the
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`CWA, 33 U.S.C. § 1321(b)(7)(A), and 40 C.F.R. Part 19.
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`SECOND CLAIM FOR RELIEF
`(SPCC Violations)
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`78.
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`Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.
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`79.
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`Defendants are required to have SPCC Plans for LACT Units 4, 5, 10, 11, and 20
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`and the West Sussex Battery.
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`80.
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`Defendants' SPCC Plans for LACT Units 4, 5, 10, 11, 20, and the West Sussex
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`Battery did not meet the requirements of the SPCC Regulations.
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`81.
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`Each deficiency in the SPCC Plans for LACT Units 4, 5, 10, 11, 20 and the West
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`Sussex Battery is a violation of the requirements of the SPCC Regulations.
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`82.
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`Pursuant to Section 311(b)(7)(C) of the CWA, 33 U.S.C. §1321(b)(7)(C), and
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`40 C.F.R. Part 19, Defendants are liable for civil penalties not to exceed the statutory maximum
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`per day for each violation.
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`THIRD CLAIM FOR RELIEF
`(FRP Violations)
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`83.
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`Paragraphs 1 through 74 are re-alleged and incorporated herein by reference.
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 15 of 16
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`84.
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`Defendants are required to have an FRP for LACT Units 4, 5, 10, and 11.
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`85.
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`Defendants' FRP for LACT Units 4, 5, and 11, dated March 2017, did not meet
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`the requirements of the FRP Regulations.
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`86.
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`Defendants failed to timely prepare an FRP for LACT Unit 10.
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`87.
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`Defendants submitted an FRP for LACT 10 dated October 25, 2017.
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`88.
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`Defendants' failure to timely or accurately prepare an FRP for LACT Unit 10, and
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`each deficiency in the March 2017 FRP for LACT Units 4, 5, and 11, is a violation of 40 C.F.R.
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`§ 112.20.
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`89.
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`In addition, Defendants were not prepared to implement a facility response plan
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`training program or a facility drill/exercise program at LACT Units 4, 5, and 11, as described in
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`paragraph 66, in violation of 40 C.F.R. § 112.20 and 40 C.F.R. Part 112, Appendix E, Section
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`3.3.1.
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`90.
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`Pursuant to Section 311(b)(7)(C) of the CWA, 33 U.S.C. §1321(b)(7)(C), and
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`40 C.F.R. Part 19, Defendants are liable for civil penalties not to exceed the statutory maximum
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`per day for each violation.
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`PRAYER FOR RELIEF
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`WHEREFORE, the United States requests that this Court:
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`A.
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`Assess civil penalties against Defendants for each violation of the applicable
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`provisions of the Act and regulations, as permitted by law;
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`B.
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`Award Plaintiff its costs of this action; and
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`C.
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`Grant such other and further relief as the Court deems just and proper.
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`Case 0:21-cv-00020-SWS Document 1 Filed 02/10/21 Page 16 of 16
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`Respectfully submitted,
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`NATHANIEL DOUGLAS
`Deputy Chief, Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
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`/s/ Mark C. Elmer
`MARK C. ELMER (pro hac vice pending
`Senior Counsel
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`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`999 18^'' Street, South Terrace, Suite 370
`Denver, Colorado 80202
`Telephone: (303) 844-1352
`Fax: (303) 844-1350
`Email: mark.elmer@.usdoi.gov
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`L. ROBERT MURRAY
`Acting United States Attoi
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`assallo
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`/s/Nicholas
`NICHOLAS VASSALLO
`Assistant United States Attorney
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`OF COUNSEL:
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`MARC WEINER
`Senior Assistant Regional Counsel
`U.S. Environmental Protection Agency, Region 8
`1595 Wynkoop Street
`Denver, Colorado 80202
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`Attorneysfor the United States of America
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`- 16-
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