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CWA+Iron+Gate+SAC

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Unformatted text preview: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel Cooper (State Bar. No. 153576) Layne Friedrich (State Bar No. 195431) Michael J. Chappell (State Bar No. 238138) LAWYERS FOR CLEAN WATER, INC. 1004 A O’Reilly Avenue San Francisco, California 94129 Telephone: (415) 440-6520 Facsimile: (415) 440-4155 Email: [email protected] Andrew L. Packard (State Bar No. 168690) Michael P. Lynes (State Bar No. 230462) LAW OFFICES OF ANDREW L. PACKARD 319 Pleasant Street Petaluma, California 94952 Telephone: (707) 763-7227 Facsimile: (707) 763-9227 Email: [email protected]fices.com Counsel for Plaintiff KLAMATH RIVERKEEPER UNITED STATED DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KLAMATH RIVERKEEPER, a project of the Klamath Forest Alliance, a non-profit public benefit corporation organized under the laws of the State of California, Plaintiff, VS. L. RYAN BRODDRICK, in his official capacity as DIRECTOR of CALIFORNIA DEPARTMENT OF FISH AND GAME, a state agency; and PACIFICORP, INC; Defendants. Case No. 2:07-cv-00593—FCD-GGH SECOND” AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND CIVIL PENALTIES (Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.) SECOND AMENDED COMPLAINT CASE NO. 2:07-cv-00593-FCD-GGH 1 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Klamath Riverkeeper (hereinafter “‘Riverkeeper”), by and through its counsel, hereby alleges: I. JURISDICTION AND VENUE 1. This is a civil action brought under the citizen suit enforcement provisions of the Federal Water Pollution Control Act (“Clean Water Act” or “‘Act”), 33 U.S.C. § 1365. This Court has jurisdiction over the subject matter of this action pursuant to Section 505(a) of the Act, 33 U.S.C. § 1365(a) (citizen suits authorized by the Clean Water Act), and 28 U.S.C. § 1331 (Federal Courts have jurisdiction over actions arising under the laws of the United States). There is a real and present controversy between the parties. Riverkeeper seeks declaratory and injunctive relief against L. Ryan Broddrick, if his official capacity as Director of the California Department of Fish and Game (“CDFG”), a state agency, and PacifiCorp, Inc. (“PacifiCorp,” collectively “Defendants”). 28 U.S.C. §§ 2201 and 2202 (declaratory judgment action). 2. Venue is appropriate in this District and Court pursuant to 28 U.S.C. § 1391(b), because the events and omissions giving rise to these claims occurred in Siskiyou County, California. 3. On January 17, 2007, Riverkeeper provided written notice to Defendants of its violations of the Clean Water Act and of Riverkeeper’s intention to file suit for such violations (“First Notice Letter”). The First Notice Letter alleges, inter alia, violations of the Effluent Limits, as well as the Monitoring and Reporting Requirements, of Order No. R1—2000-17, NPDES No. CA000668 8, ID. No. 1A80052OSIS, “Waste Discharge Requirements General Order for State of California Department of Fish & Game and Pacificorp Iron Gate Hatchery” (“the Permit”). Notice was also provided to the Administrator of the United States Environmental Protection Agency (“EPA”), the Regional Administrator of EPA Region IX, the Executive Director of the California State Water Resources Control Board (“State Board”), the Executive Officer of the Regional Water Quality Control Board, North Coast Region (“Regional Board”), and the US. Department of Justice as required by the Clean 3 Water Act, 33 U.S.C. § 1365(b)(1)(A). A true and correct copy of the First Notice Letter is attached hereto as Exhibit A. 4. On or about March 20, 2007, Riverkeeper provided a second written notice to Defendants of additional violations of the Clean Water Act and of Riverkeeper’s intention to file suit for such violations (“Second Notice Letter”). The Second Notice Letter alleges, inter alia, that CDFG SECOND AMENDED COMPLAINT 2 CASE NO. 2:07—cv-00593-FCD-GGH \10\ 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and PacifiCorp discharge effluent containing detectable levels of chemicals used for the treatment and control of disease and for discharging waste resulting from cleaning activities at the Hatchery to the Klamath River in violation of Discharge Prohibitions A(2) and A(3) of the Permit. The Second Notice was also provided to the Administrator of the United States Environmental Protection Agency (“EPA”), the Regional Administrator of EPA Region‘IX, the Executive Director of the California State Water Resources Control Board (“State Board”), the Executive Officer of the Regional Water Quality Control Board, North Coast Region (“Regional Board”), and the US. Department of Justice as required by the Clean Water Act, 33 U.S.C. § 1365(b)(l)(A). A true and correct copy of the Second Notice Letter is attached hereto as Exhibit B. 5. On March 27, 2007, after more than the requisite 60 days had passed since the First Notice Letter was issued to Defendants and pursuant to the Act, Riverkeeper initiated this action and filed a complaint to allege the claims and violations set forth in the Notice Letter. See 33 U.S.C. § 1365(b). To allow settlement discussion to proceed, Riverkeeper did not serve the original Complaint. 6. More than the requisite 60 days has passed since the Second Notice Letter was issued to Defendants and pursuant to the Act. Riverkeeper herein amends the complaint to include allegations of the claims and violations set forth in the Second Notice Letter. ‘See 33 U.S.C. § 1365(b). 7. Riverkeeper is informed, believes, and alleges that no State or Federal Agency, including but not limited to, the EPA, the State Board or the Regional Board, has commenced or is diligently prosecuting a Court action to redress the violations alleged in this Amended Complaint. This action is not barred by any prior administrative penalty under Section 309(g) of the Act. 33 U.S.C. § 13 19(g). II. PARTIES A. Klamath Riverkeeper 8. Klamath Riverkeeper is a project of the Klamath Forest Alliance, a non-profit public benefit corporation organized under the laws of the State of California, and maintains its main office in Orleans, California and a mailing address of PO. Box 21, Orleans, California 95556. Riverkeeper has approximately forty members who live and/or recreate in and around the Klamath River. 9. Riverkeeper’s mission is to preserve, protect, and defend the environment, wildlife and SECOND AMENDED COMPLAINT 3 CASE NO. 2:07-cv-00593—FCD-GGH 1o 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 26 27 28 natural resources of the Klamath River. To further these goals, Riverkeeper actively seeks Federal and State agency implementation of the Clean Water Act and, where necessary, directly initiates enforcement actions on behalf of itself and its members. 10. Members of Riverkeeper reside near the Klamath River; they use and enjoy the waters into which polluted water, sediment, and other pollutants from Defendants” ongoing illegal activities are discharged. Members of Riverkeeper use these area waterways to fish, sail, boat, kayak, swim, birdwatch, view wildlife, and engage in scientific study including monitoring activities. Defendants’ illegal discharges of pollutants impair these uses. Thus, the interests of Riverkeeper’s members have been, are being, and will continue to be adversely affected and irreparably harmed by Defendants’ failure to comply with the requirements of the Clean Water Act, harms for which Riverkeeper members have no plain, speedy, and adequate remedy at law. Riverkeeper members will continue to be harmed until Defendants bring their activities into compliance with the law. The relief sought herein will redress the harm to Riverkeeper’s members caused by Defendants” activities. B. Defendants 11. L. Ryan Broddrick is the Director of CDFG, a state agency organized under the laws of the State of California. CDFG operates the Iron Gate Salmon and Steelhead Hatchery (“the Hatchery”) located at 8636 Lakeview Road in Hornbrook, California. Naming Mr. Broddrick in his official capacity is proper as ongoing violations of the Clean Water Act are alleged and injunctive relief is sought. The Eleventh Amendment states “The Judicial power . . . shall not . . . extend to any suit in law or equity . . . against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” US. Const, Amend. X]. This has been interpreted by the Supreme Court to prohibit suit against states in federal court. Seminole Tribe of Florida v. Florida, 517 US. 44, 54 (1996). However, suits to enjoin state officials from continuing to enforce unconstitutional state laws are not considered against that state, and therefore are not barred by sovereign immunity under the Eleventh Amendment Ex Parte Young, 209 US. 123, 166-167 (1908), including where there is an ongoing violation of federal law and the relief requested is prospective. Idaho v. Coueur d ’Alene Tribe of Idaho, 521 US. 261, 281 (1997). Therefore Klamath Riverkeeper names L. Ryan Broddrick, in his official capacity as Director of California Department of Fish and Game, as a defendant in this action. SECOND AMENDED COMPLAINT 4 CASE NO. 2:07-cv—00593-FCD—GGH OO\lO\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. PacifiCorp, Inc. is a corporation organized under the laws of the State of Oregon. Plaintiff is informed and believes that PacifiCorp owns the Hatchery and funds approximately 80% of the Hatchery’s operation and maintenance. 13. This Complaint seeks relief from Defendants’ violations of the Act at the Hatchery. III. STATUTORY BACKGROUND A. The Clean Water Act 14. Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits the discharge of any pollutant into waters of the United States unless the discharge is in compliance with various sections of the Act. The Act requires any person who discharges or proposes to discharge pollutants into waters of the United States to submit a National Pollution Discharge Elimination System (“NPDES”) permit application. 33 U.S.C. §§ 1342(a). Section 301(a) prohibits discharges not authorized by, or in violation of, the terms of an NPDES permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342. 15. Waters of the United States are defined as those surface waters which are or may be currently used in interstate or foreign commerce, which are used for (among other purposes) the harvesting of fish and shellfish sold in interstate commerce (33 C.F.R. § 328.3(a)(1)(i)) as well as waters with a significant nexus to waters of the United State. See Rapanos v. United States, 126 S. Ct. 2208, 2226—2227. 16. Citizen enforcement is expressly allowed under Section 505(a)(1) and Section 505(1) of the Act against any “person,” including individuals, corporations, or partnerships, for violations of NPDES permit requirements, unpermitted discharges of pollutants, and discharges resulting from dredging or filling activities not authorized by or in violation of a Clean Water Act Section 404 program permit. 33 U.S.C. §§ 1365(a)(1) and (f), § 1362(5). An action for injunctive relief under the Act is authorized by 33 U.S.C. § 1365 (a). Violators of the Act are also subject to an assessment of civil penalties of $32,500 per day per violation of the Act, pursuant to Section 309(d), 33 U.S.C. § 1319(d), and 40 CPR. §§ 19.1 - 19.4 (pp. 200—202). Lastly, Section 505(d) ofthe Act, 33 U.S.C. § 1365(d), permits prevailing parties to recover legal fees and costs expended in citizen enforcement of the Act. SECOND AMENDED COMPLAINT 5 CASE NO. 2:07—CV-00593-FCD—GGH OO\lO\ \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Regional Board Order No. R1-2000-17, NPDES No. CA0006688, ID. No. 1A800520SIS, “Waste Discharge Reguirements General Order for State of California Department of Fish & Game and Pacificorp Iron Gate Hatchery” 17. On February 24, 2000, the Regional Board issued Order No. Rl-2000-17, NPDES No. CA0006688, ID. No. 1A80052OSIS, “Waste Discharge Requirements General Order for State of California Department of Fish & Game and Pacificorp Iron Gate Hatchery” (“the Permit”) to govern discharges from the Hatchery. The Permit refers to PacifiCorp and the CDFG jointly as the “discharger.” The Permit automatically expired on February 24, 2005. However, the Permit remains in effect until the Regional Board issues a new Order to cover the discharges from the Hatchery. The CDF G and Pacificorp submitted their application for coverage under a new Permit on July 15, 2004. 18. The Permit states that the beneficial uses of the Klamath River include: municipal, domestic, industrial, and agricultural water supply; groundwater recharge; freshwater replenishment; water contact recreation; warm freshwater habitat; cold freshwater habitat; wildlife habitat; preservation of rare and endangered species; migration of aquatic organisms; spawning, reproduction, and/or early development of aquatic-dependent species. 1. Effluent Limits & Receiving Water Limitations 19. The Permit states that effluent limitations and other standards imposed by Sections 208(b), 301, 302, 303(d), 304, 306, and 307 of the Clean Water Act are applicable to discharges from the Hatchery. Section A of the Permit sets forth several discharge prohibitions. The Permit prohibits the discharge of effluent containing detectable levels of chemicals used for the treatment or control of disease, other than salt (NaCl) to the Klamath River or its tributaries. Section A(2). The Permit also prohibits the discharge of any wastes resulting from cleaning activities. Section A(3). Defendants are prohibited from bypassing the pond cleaning waste around the pollution-control pond. Section A(4). Finally, the Permit prohibits the “[c]reation of a pollution, contamination, or nuisance, as defined by Section 13050 of the California Water Code.” Section A(6). 20. Section B of the Permit establishes effluent limitations for discharges by Defendants from the Hatchery. For discharges from Discharge Point 005, the Permit prohibits discharges of suspended solids in concentrations in excess of 15 mg/L (or 8 mg/L as a 30—day average) and discharges of suspended solids exceeding a daily maximum of 1,939 lbs (or 1,034 lb/day as a 30—day SECOND AMENDED COMPLAINT 6 CASE NO. 2:07-cv-00593-FCD—GGH , 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 average). For Discharge Point 005, discharges of settleable solids must be below 0.1 mg/L (30—day average) and 0.2 ml/L (Daily Maximum); pH must be between 6.5 — 8.5. The Permit also states that the daily maximum flow rate from Discharge Point 005 is 15.5 million gallons per day (“mgd”). For discharges from Discharge Point 006, the Permit prohibits discharges of suspended solids in concentrations in excess of 15 mg/L (or 8 mg/L as a'30—day average) and discharges of suspended solids exceeding a daily maximum of 688 lbs. (or 367 1b/day as a 30-day average). Discharges of settleable solids must be below 0.1 mg/L (3 0-day average) and 0.2 ml/L (Daily Maximum); pH must be between 6.5—8.5, and the maximum daily flow rate is 5.5 mgd. 21. Section C of the Permit sets forth the Receiving Water Limitations for discharges from the Hatchery. Section C states that waste discharge must not cause the concentration of dissolved oxygen in the receiving waters to drop below 7.0 mg/L. Discharges may not decrease the pH of the receiving water below 6.5 units or increase it above 8.5 units. Section C(2). Discharges may not alter the natural turbidity of the receiving water by more than 20%. Section C(3). Discharges may not cause the receiving waters to be discolored, or contain materials, such as biostimulants, oils, solids, liquids, foams, scum, or toxics in concentrations that cause nuisance or adversely affect beneficial uses. Section C(8) '— (14). Discharges may not cause concentrations of toxic pollutants in the water column, sediments, or biota that adversely affect beneficial uses. Section C(13)-(15). Finally, discharges may not cause a violation of any applicable water quality standard for receiving waters adopted by the Regional Board or the State Board. 2. Monitoring & Reporting Requirements 22. The Monitoring and Reporting Program (“MRP”) for the Hatchery is attached to the Permit and sets forth the schedule and procedure for Defendants’ monitoring of influent into and effluent discharged from the hatchery. The MRP requires Defendants sample discharges from Discharge Point 005 during the months of February, March, April, May and September. The MRP also requires Defendants sample influent and discharges from Discharge Point 006 quarterly (January, April, July, and October). 23. Section E(10) of the Permit sets forth additional reporting requirements for discharges from the Hatchery. The Permit requires that samples and measurements taken for purposes of SECOND AMENDED COMPLAINT 7 CASE NO. 2:07-cv-00593-FCD—GGH 10 ll. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 monitoring be representative of activities at the Hatchery. Section E(10)(a). Records of monitoring data must include the date, exact place, and time of the sample or measurements; the identity of the individuals who performed the sampling or measurements; the dates of analysis; a description of the techniques used; the method detection limits (“MDL”); and the practical quantitation level (“PQL”) or the limit of quantitation (“LOQ”). Section E(10)(d)l. 24. Section E(l l)(a) requires that all applications, reports or information submitted to the Regional Board be signed by a principal executive officer or a ranking elected official. Reports submitted under the Permit must also be signed by an authorized person. Section E(l l)(b). Any person signing an application, report or information submitted to the Regional Board certifies under penalty of law that the submissions are true, accurate and complete. Section E(l l)(c). 25. Section E(12)(d)(i) defines “Daily Discharge” as the “discharge of a pollutant measured during a calendar day of any 24-hour period that reasonable represents the calendar day for purposes of sampling.” Section E(12)(d)(ii) defines “Daily Average” discharge limitations as “the highest allowable average of “daily discharges’ over a calendar month, calculated as the sum of all ‘daily discharges’ measured during a calendar month divided by the number of ‘daily discharges’ measured during that month.” 26. Section E(12)(e) requires Defendants submit an annual report (“the Annual Report”) to the Regional Board by January 30th of each year. The Annual Report must include tabular and graphical summaries of the monitoring data obtained during the previous year and a discussion of the compliance record and any corrective actions taken or planned to be undertaken to achieve compliance with the Permit. 27. Section E(12)(g) requires the discharger to report all noncompliance to the Board, including any unanticipated bypass that violates any prohibitions in the Permit, any exceedances of any effluent limitations in the Permit, any violation of a maximum daily discharge limitation for any pollutant listed in the Permit, and any other noncompliance that may endanger health or the environment. C. The North Coast Basin Plan 28. The State Water Quality Control Board, North Coast Region, has issued the Water SECOND AMENDED COMPLAINT 8 CASE NO. 2:07—CV-00593-FCD-GGH OO\]O\ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Quality Control Plan for the North Coast Region (“the Basin Plan”) to establish water quality objectives, implementation plans for point and nonpoint source discharges, prohibitions, and to further statewide plans and policies. The Basin Plan provides a narrative objective standard for toxicity, requiring “[a]11 waters shall be maintained free of toxic substances in concentrations that are toxic to, or that produce detrimental physiological responses in human, plan, animal, or aquatic life.” 29. The Basin Plan also contains an implementation plan entitled “Policy On The Regulation Of Fish Hatcheries, Fish Rearing Facilities, And Aq...
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