LAW OFFICES OF BRIAN GAFFNEY
370 Grand Ave #5
Oakland, CA 94610
(510) 891-9592
(510) 891-9380 FAX
April 12, 2004
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Cypress Amloc Land Company, Inc.
Hillside Class III Disposal Site
1 Sand Hill Road
Colma, CA 94014Jeff Terry
Cypress Amloc Land Company, Inc.
1 Sand Hill Road
Colma, CA 94014Thomas Atwood
Cypress Amloc Land Company, Inc.
1500 Hillside Boulevard
Colma, California 94014Thomas Atwood
Cypress Amloc Land Company, Inc.
2001 Hillside Boulevard
Colma, California 94014Thomas G. Atwood
Cypress Amloc Land Company, Inc.
629 F St.
Colma, CA 94014Gus Pedemonte
Brent Edwards
Cypress Amloc Land Company, Inc.
2001 Hillside Boulevard
Colma, California 94014 Cypress Abbey Company
Attn: Thomas Atwood
P.O. Box 1516
Colma, CA 94014Amloc Companies, Inc.
Attn: LeRoy Franzoia
889 Ralston Avenue
Belmont, CA 94022
Re: Notice of Violations and Intent to File Suit
Under the Federal Water Pollution Control Act
Dear Cypress Amloc Land Company, Inc.,
Cypress Abbey Company, Amloc Companies, Inc., and Messrs. Terry, Atwood, Pedemonte,
Edwards, and Franzoia:
I am writing
on behalf of San Bruno Mountain Watch (≥Mountain Watch≤) to give
notice that Mountain Watch intends to file a civil action against Cypress Amloc
Land Company, Inc., Cypress Abbey Company, Amloc Companies, Inc., Jeff
Terry, Thomas Atwood, Gus Pedemonte, Brent Edwards, and LeRoy Franzoia (hereinafter
collectively ≥You≤ or ≥Your≤) for Your violations of
the Clean Water Act (CWA).
Mountain
Watch is a non-profit California corporation dedicated to the preservation,
protection, and restoration of San Bruno Mountain and its unique resources.
The Mountain Watch informs and educates the public regarding environmental,
cultural, and historic issues relating to San Bruno Mountain. Mountain
Watch members use and enjoy the natural resources impacted by Your landfill
for various recreational, educational and spiritual purposes. To further
its goals, Mountain Watch actively seeks federal and state agency implementation
of state and federal laws including the CWA and, where necessary, directly initiates
enforcement actions on behalf of itself and its members.
This notice
concerns Your violations of the CWA at Your Hillside Landfill Class III disposal
site located at 1 Sand Hill Road in Colma, California (≥Facility≤).
This letter addresses Your violations of the substantive and procedural requirements
of the CWA and National Pollution Discharge Elimination System (≥NPDES≤)
General Permit No. CAS000001 [State Water Resources Control Board] Water Quality
Order No. 97-03-DWQ (≥General Permit≤).
I. BACKGROUND
You own and
operate the Facility, a Class III waste disposal site located in the City of
Colma, San Mateo County, California. The Facility is surrounded by the
Cypress Hills Golf Course to the southwest, a mobile home park to the northwest,
and the San Bruno Mountain State and County Park to the north and east.
Driving access to the site is from Hillside Boulevard.
The Facility
began operation in 1971 as a canyon-fill. The permitted landfill disposal
area consists of 57.8 acres. The permitted disposal area is comprised
of three parcels. Parcel 1 is a supposedly closed 15 acre disposal area
that was permitted for the disposal of Class III waste including demolition
wastes, dry paper waste, landscaping wastes, roofing wastes, and general household
rubbish. This parcel was supposedly closed in 1974 with approximately
250,000 tons of in-place waste. A portion of the Cypress Hills Golf Course
overlies Parcel 1. Parcel 2 is located in the northwestern portion of
the landfill and covers approximately 23.6 acres. This parcel has been
in operation since the early 1970πs and has been permitted to take various
Class III wastes including paper, cardboard, household wastes, construction,
demolition, and yard wastes. Parcel 3 is located in the eastern
section of the landfill and covers approximately 19.2 acres. This parcel
has been permitted to receive construction, demolition, wood, yard, and paper
wastes since 1988.
The landfill
lies along the southwest base of San Bruno Mountain. San Bruno Mountain
is habitat for numerous listed endangered species, including the Mission Blue
Butterfly, San Bruno Elfin Butterfly, Callippe Silverspot Butterfly and the
San Francisco Garter Snake. San Bruno Mountain also supports an unusually
high number of rare, endangered and critically important plants, including the
host plants upon which the endangered butterflies depend. San Bruno Mountain
is used by thousands of people each year for hiking, its aesthetic views and
for research and study of its unique habitat and environment.
Three major
drainages originate from San Bruno Mountain in the vicinity of the landfill.
Surface water flows through northern, central and eastern drainages at or adjoining
Your landfill. The Facility discharges untreated contaminated storm water
and non-storm wastewater through a storm drain system directly to Colma Creek,
and from there to the San Francisco Bay and other receiving waters. The
beneficial uses of Colma Creek include wildlife habitat, municipal and domestic
supply, agricultural supply and industrial supply. The beneficial
uses of the Merced Valley Groundwater Basin, into which groundwater from the
Facility flows, include municipal and domestic water supply, agricultural supply,
industrial service water supply and industrial process water supply. In
addition, the area at which Colma Creek feeds into San Francisco Bay is considered
habitat for the endangered San Francisco Garter Snake.
The
San Francisco Basin Plan acknowledges discharges of wastewater from landfills
as a potential significant source of pollution adversely affecting the quality
of local waters. Contaminated storm water and non-storm water discharges
from the Facility are indeed adversely impacting the water quality of the Colma
Creek watershed, and threatening the ecosystem of this watershed, which includes
significant habitat for listed rare and endangered species.
It is unlawful
to discharge pollutants to waters of the United States, such as Colma Creek
and San Francisco Bay, without a NPDES permit or in violation of the terms and
conditions of a NPDES permit. On June 10, 1997, You submitted a Notice
of Intent (NOI) to be authorized to discharge storm water from Your Facility
by the General Permit. The General Permit is a NPDES permit, which the
California State Water Resources Control Board (≥State Board≤) issued
on April 17, 1997. Other than coverage under the General Permit for storm
water discharges, Your Facility lacks any other NPDES permit authorization.
As discussed
below, Mountain Watchπs investigations have uncovered numerous significant
violations of the General Permit and of the CWAπs prohibition on the unpermitted
discharge of pollutants to waters of the United States. Consequently,
You are hereby placed on formal notice from Mountain Watch that, after the expiration
of sixty (60) days from the date of this Notice of Violation and Intent To File
Suit, Mountain Watch intends to file suit in federal court against You under
CWA section 505(a), 33 U.S.C. ß 1365(a), for violations of the CWA.
II. THE LOCATION OF THE ALLEGED VIOLATIONS
The violations
alleged in this notice letter have occurred and continue to occur at Your
Facility located at 1 Sand Hill Road in Colma, California. The Facility
discharges its non-storm water and contaminated storm water through a series
of detention basins and drains into a concrete lined ditch where it enters an
open culvert to the closest receiving waters, Colma Creek and from there into
the San Francisco Bay and its peripheral wetlands. These receiving waters
are waters of the United States.
III. THE ACTIVITIES AT THE FACILITY ALLEGED
TO CONSTITUTE VIOLATIONS AND THE EFFLUENT LIMITATIONS VIOLATED
Numerous
pollutant-generating activities at Your Facility occur outside and are exposed
to rainfall and storm water runoff. As a result, contaminated storm water
runs off the Facility and discharges to Colma Creek and San Francisco Bay.
Pursuant to the General Permit, this contaminated storm water discharge obligates
the Facility to develop, implement, and update and revise a Storm Water Pollution
Prevention Plan (SWPPP) which minimizes the discharge of pollutants to a level
commensurate with Best Available Technology Economically Achievable (BAT) and
Best Conventional Pollutant Control Technology (BCT) and which prevents these
discharges from causing or contributing to violations of Water Quality Standards
for Colma Creek or San Francisco Bay. The Facility must also monitor and
sample its storm water discharges, and meet various other limitations on its
storm water discharge.
In addition,
various activities at the Facility generate wastewaters other than storm water
which the Facility also discharges to Colma Creek and San FranciscoBay.
The Facility is obligated to obtain NPDES permit authorization for these discharges.
As further
described below, You have failed to develop, implement, and revise an adequate
SWPPP and have discharged storm water polluted to levels exceeding BAT and BCT
level of control and which have caused violations of Water Quality Standards.
You further have failed to adequately monitor and sample Your storm water discharges
and meet various other limitations on Your storm water discharge in the General
Permit. Finally, You have discharged waste water other than storm water
to Colma Creek and San Francisco Bay without NPDES permit authorization.
These actions all constitute violation of CWA effluent limitations.
A.
Discharges in Violation of the General Permit
The CWA provides
that ≥the discharge of any pollutant by any person shall be unlawful≤
unless the discharger is in compliance with the terms of a NPDES permit.
CWA ß 301(a), 33 U.S.C. ß 1311(a); see also CWA ß 402(p),
33 U.S.C. ß 1342(p) (requiring NPDES permit issuance for the discharge
of storm water associated with industrial activities). The Facility discharges
storm water associated with industrial activity that is contaminated with pollutants
to Colma Creek and San Francisco Bay. The Facility discharges storm water
pursuant to the General Permit, which authorizes these discharges conditioned
on the Facility complying with the terms of the General Permit. Each of
these permit terms constitutes an "effluent limitation" within the
meaning of CWA section 505(f), 33 U.S.C. ß1365(f). The Facility's
storm water discharges have violated various of these permit terms, thereby
violating CWA "effluent limitations."
1.
Discharges in Excess of BAT/BCT Levels. The Effluent Limitations of the
General Permit, ∂ E.3. prohibit the Facility from discharging pollutants
above the level commensurate with application of BAT and BCT. EPA and
the State Board have published Benchmark Values set at the maximum level of
pollutant loading generally expected if an industrial facility is employing
BAT and BCT.(note: State Board Benchmark Values are set forth in this
State Board document as Table A and EPA Benchmark Values are set forth in this
State Board document as Attachment 3, Table B). As reflected in Attachment
1 to this Notice Letter, the Facility has repeatedly discharged storm water
with pollutant levels exceeding Benchmark Values, which establishes that the
Facility has discharged pollutants above a level commensurate with application
of BAT and BCT. Attachment 1 compiles some of the self-monitoring data
reported by the Facility to the California Regional Water Quality Control Board,
San Francisco Bay Region (≥Regional Board≤) reflecting the Facility's
sampling of actual storm water discharges and/or the Sedimentation Basins from
which the Facility discharges storm water. The sample results reflected
in Attachment 1 are representative of the pollutant levels in the Facility's
discharge of storm water, including such discharges that You did not sample
or analyze. Thus, every instance when the Facility has discharged storm
water, including instances when the Facility has discharged storm water that
it has not sampled, this storm water discharge has contained levels of pollutants
comparable to the levels set forth in Attachment 1.
Mountain
Watch alleges and puts You on notice that each day that You discharged storm
water from the Facility, Your storm water contained levels of pollutants matching
the levels reported in Attachment 1 and thus exceeding Benchmark Values.
While You should be aware of each day that You have discharged storm water from
the Facility (as the General Permit requires You to monitor such discharges),
Mountain Watch alleges and puts You on notice that since You began industrial
operations at the Facility, You have discharged storm water containing pollutants
from the Facility to Colma Creek and San Francisco Bay during at least every
significant local rain event over 0.1 inches. Significant local rain events
are reflected in the rain gauge data available at http://cdec.water.ca.gov and
http://lwf.ncdc.noaa.gov/oa/ncdc.html.
Mountain
Watch alleges that Your unlawful discharges of storm water from the Facility
with levels of pollutants exceeding BCT and BAT levels of control continue to
occur presently during all significant rain events. Each discharge of
storm water from Your Facility after the effective date of the BCT and BAT requirements
has constituted a separate violation of the General Permit and the CWA. You
are subject to penalties for violations of the General Permit and the CWA within
the past five (5) years.
2.
Discharges that Have Impaired Receiving Waters. The Discharge Prohibitions
of the General Permit, ∂ A.2 prohibit storm water discharges that cause
or threaten to cause pollution, contamination, or nuisance. The Discharge
Prohibitions of the General Permit, ∂ A.2 prohibit storm water discharges
to surface or groundwater that adversely impact human health or the environment,
and the Receiving Water Limitations of the General Permit, ∂ C.2. prohibit
storm water discharges that cause or contribute to an exceedance of applicable
Water Quality Standards. Applicable Water Quality Standards are set forth
in the Basin PlanThe Basin Plan is also published by the Regional Board on the
internet at: http://www.swrcb.ca.gov/rwqcb2/basinplan.htm and the California
Toxics Rule (≥CTR≤).
The Basin
Plan, inter alia, establishes the following Water Quality Standards for Colma
Creek and San Francisco Bay:
1. These waters "shall not contain biostimulatory substances in concentrations
that promote aquatic growths to the extent that such growths cause nuisance
or adversely affect beneficial uses." Basin Plan at 3-2.
2. Dissolved oxygen levels in Colma Creek shall be a minimum of 5.0 mg/l.
Id. at 3-2.
3. pH shall not be depressed below 6.5 nor raised above 8.5 in all waters
and shall be limited to 6.5 in any water with municipal supply as a designated
beneficial use, which includes Colma Creek. Id. at 3-2, 3-11 (Table 3-5).
4. Suspended sediment shall not be discharged at rates that interfere
with attainment of beneficial uses. Id. at 3-2.
5. Waters shall be free of changes in turbidity that adversely affect
beneficial uses or that represent more than 10% increase above natural levels
of turbidity. Id. at 3-4.
6. Hexavalent Chromium (Cr VI) shall be limited to 11.0 ug/l as a 4-day
average and 16.0 ug/l as a one-hour average (Cr VI may be measured as TotalCr).
Id. at 3-10 (Table 3-4).
7. Total Dissolved Solids (TDS) shall be limited to 500 mg/l in any water
with municipal supply as a designated beneficial use, which includes Colma Creek.
Id. at 3-11 (Table 3-5).
8. Iron shall be limited to 0.3 mg/l in any water with municipal supply
as a designated beneficial use, which includes Colma Creek. Id.
9. Oil and grease shall not be present in any water with municipal supply
as a designated beneficial use, which includes Colma Creek. Id.
In addition,
the California Toxics Rule, inter alia, provides that Trivalent Chromium (CR
III) shall be limited to 550 ug/l instantaneous maximum concentration and 180
ug/l as a 4-day average (total recoverable fraction). 40 C.F.R. ß
138.38.
Mountain
Watch alleges and puts You on notice that You have caused or contributed to
an exceedance of one or more of the above-listed Water Quality Standards.
Attachments 1 and 2 to this Notice Letter compile some of the self-monitoring
data reported by the Facility to the Regional Board reflecting the Facility's
sampling of actual storm water discharges and/or the Sedimentation Basins from
which the Facility discharges storm water. The sample results reflected
in Attachments 1 and 2 are representative of the pollutant levels in the Facility's
discharge of storm water, including such discharges that You did not sample
or analyze. Thus, every instance when the Facility has discharged storm
water, including instances when the Facility has discharged storm water that
it has not sampled, this storm water discharge has contained levels of pollutants
comparable to the levels set forth in Attachments 1 and 2. Attachments 1 and
2 indicate that the Facility routinely discharges storm water to Colma Creek
containing the following pollutants: total suspended solids (TSS), excessively
basic or acidic pH, nitrite and nitrite nitrogen, total organic carbon, chromium,
total dissolved solids (TDS), high specific conductance, iron, and oil and grease.
The levels of these pollutants in Your Facility's storm water discharges have
caused pollution, contamination, or nuisance in violation of the Discharge Prohibitions
of the General Permit, ∂ A.2. and adversely impacted the environment in
violation of the Receiving Water Limitations of the General Permit, ∂
C.1. Moreover, the discharge of these pollutants has caused Colma Creek
and San Francisco Bay not to attain or contributed to these waters not attaining
one or more applicable Water Quality Standards in violation of the Receiving
Water Limitations of the General Permit, ∂ C.1.
Specifically,
Your Facility's discharge of excessive TSS has caused or contributed to Colma
Creek and San Francisco Bay not meeting applicable Water Quality Standards in
the Basin Plan for dissolved oxygen levels, permissible levels of suspended
sediment, and permissible changes/increases in levels of turbidity. Your
Facility's discharge of storm water with excessively basic pH has caused or
contributed to Colma Creek not meeting Water Quality Standards for pH.
Your Facility's discharge of excessive nitrite and nitrite nitrogen has caused
or contributed to Colma Creek not meeting Water Quality Standards for levels
of biostimulatory substances that promote nuisance or environmentally deleterious
aquatic growths. Your Facilityπs discharge of total organic carbon
indicates that Your storm water discharges are generally polluted in a fashion
that risks violation of applicable Water Quality Standards for Colma Creek and
San Francisco Bay. Your Facility's discharge of excessive chromium has
caused or contributed to Colma Creek and San Francisco Bay not meeting the numeric
limits for hexavalent and trivalent chromium set forth in the Basin Plan and
the California Toxics Rule. Your Facility's discharge of excessive TDS
and high specific conductance has caused or contributed to Colma Creek not meeting
applicable Water Quality Standards in the Basin Plan for TDS and specific conductance.
Your Facility's discharge of excessive iron has caused or contributed to Colma
Creek not meeting applicable Water Quality Standards in the Basin Plan for iron.
Your Facility's discharge of oil and grease has caused or contributed to Colma
Creek and San Francisco Bay not meeting applicable Water Quality Standards in
the Basin Plan for oil and grease.
Mountain
Watch alleges and puts You on notice that each day that You discharged storm
water from the Facility, Your storm water contained levels of pollutants matching
the levels set forth in Attachments 1 and 2 and thus caused levels of pollutants
to exceed one or more of the applicable Water Quality Standards in Colma Creek
and/or San Francisco Bay. While You should be aware of each day that You
have discharged storm water from the Facility (as the General Permit requires
You to monitor such discharges), Mountain Watch alleges and puts You on notice
that since the effective date of the above-referenced Water Quality Standards,
which date back at least to 1986 in most instances and to May 18, 2000 for the
California Toxics Rule limit on chromium, You have discharged storm water containing
pollutants from the Facility to Colma Creek and San Francisco Bay during at
least every significant local rain event over 0.1 inches. Significant
local rain events are reflected in the rain gauge data available at http://cdec.water.ca.gov
and http://lwf.ncdc.noaa.gov/oa/ncdc.html.
Your unlawful
discharges from the Facility continue to occur presently during all significant
rain events. Each discharge from Your Facility that causes or contributes
to an exceedance of an applicable Water Quality Standard constitutes a separate
violation of the General Permit and the Act. You are subject to penalties
for violations of the General Permit and the Act within the past five (5) years.
B.
Violation of General Permit Conditions Related to Development and Implementation
of an Adequate Storm Water Pollution Prevention Plan
The General
Permit, Section A: Storm Water Pollution Prevention Plan Requirements, ∂
1 requires dischargers covered by the General Permit and commencing industrial
activities before October 1, 1992 to develop and implement an adequate Storm
Water Pollution Prevention Plan (≥SWPPP≤) by October 1, 1992.
The Provisions of the General Permit, ∂ C.1. also requires dischargers
to make all necessary revisions to existing SWPPPs promptly, and in any case
no later than August 1, 1997.
The SWPPP
must include, among other requirements, the following:
1. Specification of Best Management Practices (≥BMPs≤) designed
to reduce pollutant discharge to BAT and BCT levels, including BMPs already
existing and BMPs to be adopted or implemented in the future. General
Permit at 17, Section A: Storm Water Pollution Plan Requirements, ∂ 8.
2. A site map showing the storm water conveyance system and areas of actual
and potential pollutant contact and all areas of on-going industrial activity.
Id. at 12-13, Section A: SWPPP Requirements, ∂ 4.
3. Identification of the specific individual or individuals and their
positions within the facility organization as members of a storm water pollution
prevention team responsible for developing the SWPPP, assisting the facility
manager in SWPPP implementation and revision, and conducting all monitoring
program activities required in the General Permit. The SWPPP must clearly
identify the General Permit related responsibilities, duties, and activities
of each team member. Id. at 12, Section A: SWPPP Requirements,
∂ 3.a.
4. A list of significant materials handled and stored at the site and
a narrative assessment of ≥which pollutants are likely to be present in
storm water discharges≤ from the site. Id. at 14, 17; Section A,
∂ 5 and Section A, ∂ 7.a.ii.
5. Revisions to the SWPPP to reflect changes in industrial activity at
the site. Id. at 23, Section A: SWPPP Requirements, ∂
10.c & d.
You have
failed to prepare, maintain and revise Your SWPPP as required and have violated
each of these five requirements for an adequate SWPPP, as further described
below.
1.
General Failure to Reduce Storm Water Pollutant Discharges to BAT and BCT Levels.
Your SWPPP does not specify adequate BMPs designed to reduce pollutant discharge
to BAT and BCT levels in accord with Section A: SWPPP Requirements, ∂
8 of the General Permit as evidenced by the Facilityπs continued discharge
of storm water contaminated above pollutant levels attainable via application
of BAT and BCT. For example, routine dredging of the Sedimentation Basins
on Your facility would increase the storm water retention capacity of the Sedimentation
Basins and decrease both the volume and frequency of Your discharges of storm
water. In addition, constructing larger and/or additional retention/detention
basins or ponds would further decrease both the volume and frequency of Your
discharges of storm water. Your SWPPP is not adequate due to its failure
to specify such BMPs.
2.
Failure To Account for Numerous Pollutant Generating Activities. You conduct
and/or have altered several storm water pollutant generating activities at Your
Facility without identifying or mapping these activities or changes in these
activities in your SWPPP and without specifying BMPs for these activities (or
these activities as altered):
a) Over the last several years, You have increased the final top elevation of
Your Facility beyond the 540 feet elevation permitted in Your Final Grading
Plan. Your SWPPP map does not document this increased elevation, nor address
how this change in site elevation may affect storm water runoff patterns on
the Site and the effectiveness of current BMPs.
b) You have continued landfill operations on Parcel 1, which You had supposedly
closed, by placing high density fill between 1994 and 2003 on slopes east
and west of the access road, by moving the access road as much as 120 feet to
the west, and by re-grading the slope to the west of the access road.
Your SWPPP map does not depict the moved road and the regraded slope, nor address
how continued activity at Parcel 1 with these site modifications may affect
storm water runoff patterns on the Site and the effectiveness of current BMPs.
c) You have expanded landfill activity on Parcel 2 beyond the parameters depicted
by Your SWPPP for activities in this area. You have failed to revise your
SWPPP to describe and map these activities and establish any BMPs associated
with them.
d) You are grinding construction debris and demolition materials with a 525
horsepower grinding machine on-site. Your SWPPP neither describes nor
maps this activity nor any BMPs to address pollution discharge from this activity.
e) You are hauling ground construction debris, demolition materials, and wood
and green waste from your Facility. Your SWPPP neither describes nor maps
this hauling activity nor any BMPs to address pollution discharge from this
activity.
f) You have expanded the Facility beyond its footprint as described in an inspection
report attached to a letter from the California Integrated Waste Management
Board to San Mateo County Environmental Health Services Division dated October
28, 2003 (a copy of which was provided to You by the California Integrated Waste
Management Board). Specifically, You performed grading work associated
with Your current entry road outside of the authorized footprint of the landfill.
Your SWPPP does not include description or mapping of this expanded area nor
BMPs meant to address activities in this area.
g) You have discharged waste to a location outside of the permitted footprint
of Your landfill in the ≥Northwest Canyon≤ area as described in
a letter to You from the Regional Board dated September 16, 2003. This
waste disposal is a source of contaminated storm water runon onto the Facility.
Your SWPPP does not include description or mapping of this Northwest Canyon
disposal nor BMPs meant to address contaminated storm run-on from this area.
h) As stated in Your most recent revised SWPPP, You closed the section of Your
Facility known as Parcel 3 (or planned to close Parcel 3) in 2002. You
have failed to prepare a revised SWPPP reflecting closure of Parcel 3 and providing
for BMPs to ensure that this area remains stabilized and in a condition that
limits the levels of pollutants in storm water discharged from this area to
BAT and BCT levels and to levels that comply with applicable Water Quality Standards.
Your failures
to draft an adequate SWPPP and/or to revise Your SWPPP in all the above respects
are in violation of the following paragraphs of the General Permit, Section
A: SWPPP Requirements: (1) ∂ 10.c & d (requirement for revisions
to the SWPPP to reflect changes in industrial activity at the site), (2) ∂
4 (requirement to include a site map showing all areas of actual and potential
pollutant contact and all areas of on-going industrial activity), and (3) ∂
8 (specify BMPs necessary to attain BAT and BCT levels that are tailored to
site conditions).
3.
Failure To Map Storm Water Conveyance System and Discharge Points. Your
SWPPP further fails to describe and map completely and accurately Your storm
water conveyance system and discharge points and associated BMPs in violation
of the General Permit, Section A: SWPPP Requirements, ∂∂
4 and 8. Your Annual Reports to the Regional Board identify at least two
and possibly several storm water discharge locations:
(a) a point variously described as the ≥Sedimentation Basin≤(Your
1998-1999 Annual Report, Form 4), ≥the Sedimentation Basin at the Gate,≤
(Your 2000-2001 Annual Report, Form 4), ≥the Sedimentation Pond at the
LF Gate≤ (Your 2000-2001 Annual Report, Form 4), ≥Sedimentation
Basin #1,≤ or ≥the Sedimentation Basin adjacent to the Gatehouse≤
(Your 2002-03 Annual Report, Form 4); and
(b) one or more locations variously identified as ≥Flare Station Drainage
Area≤ (Your 1998-99 Annual Report, Form 4), ≥Sedimentation Pond
on Parcel 1 (Your 2000-2001 Annual Report, Form 4), ≥Golf Course Basin≤
(Your 2001-2002 Annual Report, Form 4 and 2002-2003 Annual Report, Form 4),
≥Outflow Sedimentation Basin,≤ ≥Inflow Sedimentation Basin,≤
and ≥Shop Area Drainage Ditch≤ (Your 1999-2000 Annual Report, Form
4).
Your SWPPP,
however, fails to describe and map the location of all these storm water discharge
points and the BMP measures associated with each discharge location.
4.
Failure To Identify Storm Water Pollution Prevention Team. Your revised
SWPPP fails to identify all the specific individuals and their positions within
Your company who are members of a storm water pollution prevention team responsible
for developing the SWPPP, assisting the facility manager in SWPPP implementation
and revision, and conducting all monitoring program activities required in the
General Permit. The SWPPP further fails to identify the General Permit
related responsibilities, duties, and activities of each team member.
These failures violate Section A, ∂ 3.a. of the General Permitπs
SWPPP Provisions.
5.
Failure To Identify All Sources of Pollutants at Your Facility. Your revised
SWPPP states that Your Facility receives ≥inert construction materials,≤
and provides no analysis of the types of pollutants found in such construction
materials. This description of waste materials received is clearly incomplete,
as pollutants found in Your storm water discharges include chemicals that would
not be found in ≥inert construction materials,≤ such as heavy metals
and oil and grease. Your SWPPP accordingly fails to include a list of
significant materials handled and stored at the site and a narrative assessment
of ≥which pollutants are likely to be present in storm water discharges≤
from the site. Id. at 14, 17; Section A, ∂ 5 and Section A, ∂
7.a.ii.
Accordingly,
You have not developed and implemented an adequate SWPPP for the Facility.
You were required to have prepared and implemented an adequate SWPPP by no later
than October 1, 1992 pursuant to the previous General Permit issued by the State
Board and by Section A: Storm Water Pollution Prevention Plan Requirements,
∂ 1.a. of the current General Permit. Therefore, You have been in
daily and continuous violation of the requirement to develop and implement an
adequate SWPPP for the Facility on each and every day since October 1, 1992.
You will continue to be in violation every day that You fail to develop and
implement an adequate SWPPP. You are subject to penalties for violations
of the General Permit and the Act occurring within the past five (5) years.
C.
Failure to Develop and Implement an Adequate Monitoring and Reporting Program
and Perform Annual Comprehensive Site Compliance Evaluations as Required by
the General Permit.
The General
Permit, Section B: Monitoring Program and Reporting (MRP) Requirements, ∂
1.a. and Provisions, ∂ E.3. require dischargers commencing industrial
activities before October 1, 1992 to develop and implement an adequate written
Monitoring and Reporting Program (MRP) by October 1, 1992. The MRP
must be sufficient to: (a) ensure that storm water discharges are in compliance
with the Discharge Prohibitions, Effluent Limitations, and Receiving Water Limitations
specified in the General Permit, (b) ensure practices at the facility to reduce
or prevent pollutants in storm water discharges and authorized non-storm water
discharges are evaluated and revised to meet changing conditions, (c) aid in
the implementation and revision of the SWPPP as required by the General Permit,
and (d) measure the effectiveness of best management practices (BMPs) to prevent
or reduce pollutants in storm water discharges and authorized non-storm water
discharges. Section B: MRP Requirements, ∂ 2. All dischargers
must fully implement their MRP. Section B: MRP Requirements, ∂ 1.
All dischargers must submit a certified Annual Report documenting monitoring
activity. Section B: MRP Requirements, ∂ 14. In addition,
Section C: Standard Provisions, ∂∂ 9 and 10 of the General
Permit require dischargers to certify, based on annual site inspection, that
the permitted facility is in compliance with the Permit and to report any noncompliance
with its terms. As described below, however, You have not adopted or have
not fully implemented an adequate MRP, have failed to provide complete and accurate
Annual Reports, and have failed to provide accurate reporting of noncompliance
with the terms of the General Permit.
Your MRP
must provide for visual monitoring and recording of storm water discharge from
one rainfall event per month during the October 1 to May 30 rainy season.
Section B: MRP Requirements, ∂ 3 (visual observation of stored or contained
storm water must be made during release). Your Annual Reports submitted
to the Regional Board indicate that in all years from 1998 to the present, You
have not made and recorded at least one visual observation of storm water discharge
from Your Facility during at least one rainfall event per month from October
1 to May 30. While You apparently contend that this is because You did
not have such discharges, Mountain Watch alleges that there are several months
during this time period during which You had storm water discharges but did
not observe or record such discharges. Accordingly, You have violated
the visual monitoring requirements of Section B: MRP Requirements, ∂ 3
and the Annual Report requirements of Section B: MRP Requirements, ∂ 14
and Section C: Standard Provisions, ∂∂ 9 and 10.
Your MRP
must provide for collection of storm water samples during the first hour of
discharge from (1) the first storm event of the wet season, and (2) at least
one other storm event in the wet season. All storm water discharge locations
must be sampled. Sampling of stored or contained storm water shall occur
at the time the stored or contained storm water is released. Facility operators
that do not collect samples from the first storm event of the wet season are
still required to collect samples from two other storm events of the wet season
and must explain in the Annual Report why the first storm event was not sampled.
Your MRP must provide for analysis of storm water samples for total suspended
solids ("TSS"), pH, specific conductance, and total organic carbon
("TOC") or oil and grease. In addition, Your MRP must provide
for analysis of storm water samples for toxic chemicals and other pollutants
that are likely to be present in the storm water discharges and other analytical
parameters listed in the General Permit under Table D, which includes iron.
Section B: MRP Requirements, ∂ 5. Your Annual Reports indicate that
from 1998 to the present You have failed to sample Your storm water discharge
within one hour after commencement of discharge from the first storm event causing
such discharge and/or at least one other storm water discharges during the season
and then analyze the samples for all required pollutant parameters. You
so failed to sample storm water discharges even though You had at least two
such discharges in every rainy season. For example, your Annual Report
for 1998-1999 indicates that You failed to sample the first rainfall event of
the season and failed to analyze Your sample of the second rainfall event for
iron. Accordingly, You have violated the sampling requirements of Section
B: MRP Requirements, ∂ 5 and the Annual Report requirements of Section
B: MRP Requirements, ∂ 14 and Section C: Standard Provisions, ∂∂
9 and 10.
Your Annual
Reports also document that You have at least two storm water discharge points,
Your ≥Sedimentation Basin≤ or ≥Sedimentation Basin at the
Gatehouse,≤ and at least one other point identified variously as ≥Flare
Station Drainage Area,≤ ≥Sedimentation Pond on Parcel 1,≤
≥Golf Course Basin,≤ ≥Outflow Sedimentation Basin,≤
≥Inflow Sedimentation Basin,≤ and ≥Shop Area Drainage Ditch.≤
For example, Your 1998-99 Annual Report, Form 4 indicated that You had storm
water discharges from two locations, the Sedimentation Basin and the Flare Station
Drainage Area. Your Annual Reports for all years from 1998 to the present
indicate, however, that You have never sampled storm water discharges from any
more than one location, ≥the Sedimentation Basin≤ or ≥the
Sedimentation Basin at the Gatehouse.≤ Accordingly, You have violated
the sampling requirements of Section B: MRP Requirements, ∂ 5 and the
Annual Report requirements of Section B: MRP Requirements, ∂ 14 and Section
C: Standard Provisions, ∂∂ 9 and 10.
Your MRP
must provide for quarterly visual observation of all non-storm wastewater discharges
from the Facility. Section B: MRP Requirements, ∂ 4.
You have failed to adequately conduct or record visual observations of non-storm
water discharges from the Facility. Your Annual Reports indicate observations
of non-storm water discharge, i.e. ≥artesian groundwater flow≤ and
≥Groundwater from Groundwater Sump GW-1.≤ Your Annual Reports
further fail, for example, to report quarterly observations of discharge of
wastewater other than storm water from Your Sedimentation Basin No. 1 overflow
pipe (which occurs daily even during periods of prolonged dry weather).
In addition,
Section A: SWPPP Requirements, ∂ (9) of the General Permit requires dischargers
to perform an Annual Comprehensive Site Compliance Evaluation (ACSCE) which
includes: (a) a review of all visual observation and inspection records, along
with sampling and analysis results, (b) a visual inspection ofall potential
sources of pollution, (c) a review and evaluation of all BMPs, and an evaluation
report pursuant to subparagraph (d).
You failed
to comply with Section A: SWPPP Requirements, ∂ (9) of the General Permit
for the 1998-1999 season, because You neither filled out pages 2-7 of the Annual
Report, nor did You sign it, nor did You prepare an equivalent document that
complies with the requirements of ∂ 9. You have been in violation
of this requirement every day since July 1, 1999, when the Annual Report for
the 1998-1999 rainy season was due.
Your Annual
Reports fail to adequately list all potential pollutant sources, i.e., areas
at Your Facility at which pollutants are received, stored, or otherwise occur.
For example, Your 1999-2000 Annual Report merely lists ≥Hillside Disposal
Site≤ as a potential pollutant source, without any specific indication
of the activities and locations at Your Facility that potentially generate pollutants.
By contrast, in Your Form 5 response included in Your 1998-1999 Annual Report,
You list six different potential pollutant sources, such as the Equipment Maintenance
area and the Condensate Sumps. Listing Your entire site as a general potential
pollutant source, as You did in the 1999-2000 report, is inadequate and not
in compliance with Section A: SWPPP Requirements, ∂ 9(b) of the GeneralPermit.
Your 2000-2001 Annual Report also fails to adequately list the potential pollutant
sources, as it merely lists two sedimentation basins as potential pollutant
sources and fails to list the sources from Your 1998-1999 Annual Report.
All Annual Reports after Your 1998-1999 Annual Report fail to list as potential
pollutant sources the Equipment Maintenance Area, Equipment Fueling Area, Condensate
Sumps, Leachate Pumping, Piping, & Storage Tank, or Leachate Seepage areas
that are listed in the 1989-1999 Annual Report. Your general listings
of potential pollutant sources in Your Annual Reports are not adequate and are
in violation of Section A: SWPPP Requirements, ∂ 9(b) of the General Permit.
As discussed
above, You have not developed and implemented an adequate MRP, You were required
to have prepared and implemented an adequate MRP by no later than October 1,
1992 pursuant to the previous General Permit issued by the State Board and by
Section B: Monitoring Program and Reporting Requirements, ∂ 1.a. of the
current General Permit. Therefore, You have been in daily and continuous
violation of the monitoring and reporting requirements of the General Permit
set forth in Section B: MRP Requirements every day since October 1, 1992.
You will continue to be in violation every day that You fail to develop and
implement an adequate MRP for the Facility. You are subject to penalties
for violations of the General Permit and the Act occurring within the past five
(5) years.
As also discussed
above, You have not submitted accurate and complete Annual Reports and reports
of Your noncompliance with the General Permit. Therefore, You have been
in daily and continuous violation of the reporting requirements of the General
Permit, Section B: MRP Requirements, ∂ 14 and Section C: Standard
Provisions, ∂∂ 9 and 10 every day since each of Your Annual
Reports were due.
D.
Discharge of Non-Storm Water Without Permit Authorization
With a few
narrow exceptions, the General Permit does not authorize the discharge of wastewaters
other than storm water and specifically prohibits the discharge of non-storm
wastewater without separate NPDES permit authorization. General Permit
Discharge Prohibitions, ∂ A.1. You lack any other NPDES permit authorization
and thus may not discharge non-storm wastewater to waters of the United States
other than a few special types of non-storm wastewater. On a daily basis
since Your Facility began operations, Your Facility has discharged various types
of non-storm wastewater, including groundwater contaminated with landfill leachate,
to Colma Creek and San Francisco Bay without NPDES permit authorization.
For example, Your Annual Reports have indicated that Your Facility discharges
≥artesian groundwater flow≤ and ≥Groundwater from Groundwater
Sump GW-1.≤ See1999-2000 Annual Report at 4; 2001-2002 Annual Report,
Form 2; 2002-2003 Annual Report, Form 2. The Special Conditions of the
General Permit, ∂ D.1. authorize the discharge of groundwater only if
certain conditions are met, including that such ≥discharges do not contain
significant quantities of pollutants≤ and ≥when BMPs are specifically
included in the SWPPP to (1) prevent or reduce the contact of non-storm water
discharges with significant materials or equipment and (2) minimize, to the
extent practicable, the flow or volume of non-storm water discharges.
Groundwater discharged from Your Facility contains highly elevated levels of
pollutants, however, as the self-monitoring reports You file with the Regional
Board depicting the results of groundwater monitoring at Your Facility repeatedly
show. Your groundwater sampling results indicate that landfill leachate
has and is contaminating groundwater at Your Facility. In addition, Your
SWPPP omits any BMP measures to (1) prevent or reduce the contact of non-storm
water discharges with significant materials or equipment and (2) minimize, to
the extent practicable, the flow or volume of non-storm water discharges.
Accordingly, You lack NPDES permit authorization for this groundwater discharge.
For additional
example, Your Sedimentation Basin No. 1 that is supposed to retain storm water
has an overflow pipe that daily discharges wastewater even on days following
prolonged dry weather. This daily discharge during times of prolonged
dry weather constitutes the discharge of non-storm wastewater, as it is a discharge
not caused by rainfall but by a leaking storage facility. This and other
non-storm wastewaters that You discharge are not included in the narrow exceptions
of non-storm wastewater that are authorized by the General Permit.
You have
violated the General Permit and the CWA each time that You have discharged unauthorized
non-storm wastewater. Mountain Watch alleges that You have discharged
unauthorized non-storm water every day since You began operations and have thus
violated the CWA since the effective date of CWA section 301(a)πs prohibition
on the unauthorized discharge of pollutants. You are subject to penalties
for violations of the CWA occurring within the past five (5) years.
E.
Failure to Apply for NPDES Permit Authorization to Discharge Non-Storm Water
40 C.F.R.
section 122.21(a) provides that "Any person who discharges pollutants ...
and does not have an effective permit . . . must submit a complete application≤
for a NPDES permit. Under this EPA CWA regulation, You have a duty to
apply for a NPDES permit to regulate the discharge of non-storm wastewater pollutants,
including but not limited to landfill leachate, to waters of the United States.
You never
have had and have never applied for a NPDES permit authorizing the discharge
of non-storm wastewater from the Facility.
Each day
that You fail to apply for a NPDES permit for Your discharges of non-storm wastewater
from the Facility in violation of 40 C.F.R. section 122.21(a) constitutes a
separate day of violation of the CWA. These violations are on-going as
You continue to fail to apply for the required NPDES Permit(s).
You are the person or persons responsible for the violations described above.
San Bruno Mountain Watch, a California non-profit corporation, is the person
giving notice of intention to file a CWA citizen suit pursuant to CWA section
505. San Bruno Mountain Watch's address and telephone number is as follows:
San Bruno Mountain Watch
P.O. Box 53
Brisbane, CA 94005
415 467 6631
Mountain Watch has retained legal counsel to represent it in this matter.
Please direct all communications to:
Brian Gaffney
LAW OFFICES OF BRIAN GAFFNEY
370 Grand Ave, Suite 5
Oakland, CA 94610
Telephone: (510) 891-9592
Fax: (510) 891-9380
Christopher A. Sproul
Danielle
Fugere
ENVIRONMENTAL ADVOCATES
1004 OπReilly Avenue
San Francisco, California 94129
Telephone: (415) 561-2222, ext. 108
Fax: (320) 205-3163
Jeff D. Hoffman
LAW OFFICE OF JEFF D. HOFFMAN
132 Coleridge Street, Suite B
San Francisco, CA 94110-5113
(415) 285-7735
Pursuant
to CWA section 309(d), 33 U.S.C. ß 1319(d) and 40 C.F.R. section 19.4,
each separate CWA violation subjects each of You individually to a penalty of
up to $27,500 per day per violation for all violations occurring after January
30, 1997 and civil penalties of up to $32,500 for all violations on or after
March 15, 2004. See 69 Fed. Reg. 7121 (Feb. 13, 2004). In addition
to civil penalties, Mountain Watch will seek injunctive relief preventing further
CWA violations pursuant to CWA sections 505(a) and (d), 33 U.S.C. ß1365(a)
and (d), and such other relief as permitted by law. Lastly, CWA section
505(d), 33 U.S.C. ß 1365(d), permits prevailing parties to recover costs
and fees, including attorneysπ fees.
Mountain
Watch believes this Notice of Violations and Intent to Sue sufficiently states
grounds for filing suit. We intend, at the close of the 60-day notice
period or thereafter, to file a citizen suit under CWA section 505(a) against
You for the above-referenced violations.
During the
60-day notice period, we would be willing to discuss effective remedies for
the violations noted in this letter. However, if You wish to pursue such
discussions in the absence of litigation, we suggest that You initiate those
discussions within the next 20 days so that they may be completed before the
end of the 60-day notice period. We do not intend to delay the filing
of a complaint in federal court if discussions are continuing when that period
ends.
Sincerely,
Brian Gaffney
_____________________________________________________________________
SERVICE LIST
Michael Leavitt, Administrator
Wayne Nastri, Administrator
U.S. Environmental Protection Agency
U.S. EPA ∫ Region 9
401 M Street, S.W.
75 Hawthorne Street
Washington, D.C. 20460
San Francisco, California 94105
Celeste Cantū, Executive Director
Bruce H. Wolf, Executive Officer
State Water Resources Control Board
Regional Water Quality Control Board
1001 I Street Sacramento, CA 95814
San Francisco Bay Region
P.O. Box 100
1515 Clay St, Suite 1400
Sacramento, CA 95812-0100
Oakland, CA 94612
John Ashcroft, U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001