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Christopher Sproul (State Bar No. 126398)

Jodene Isaacs (State Bar No. 226895)

ENVIRONMENTAL ADVOCATES

5135 Anza Street

San Francisco, California 94121

Telephone: (415) 533-3376, (510) 847-3467

Facsimile: (415) 358-5695

Email: csproul@enviroadvocates.com

Email: jisaacs@enviroadvocates.com 

Fredric Evenson (State Bar No. 198059)

ECOLOGY LAW CENTER

~Monterey Bay~

P.O. Box 1000

Santa Cruz, CA 95061

Telephone: (831) 454-8216

Email: evenson@ecologylaw.com

Attorneys for Plaintiff 

ECOLOGICAL RIGHTS FOUNDATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ECOLOGICAL RIGHTS FOUNDATION,

Plaintiff,

v.

SCHMIDBAUER LUMBER, INC. and 

SCHMIDBAUER BUILDING SUPPLY, LLC

Defendants.

 Civil Case No.

COMPLAINT FOR DECLARATORY 

AND INJUNCTIVE RELIEF AND 

CIVIL PENALTIES 

 DEMAND FOR JURY TRIAL

 (Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et. seq.)

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Ecological Rights Foundation (“EcoRightsˮ), by and through its counsel, hereby alleges:

I. JURISDICTION AND VENUE

1. This is a civil suit brought under the citizen suit enforcement provisions of the Federal 

Water Pollution Control Act, 33 U.S.C. section 1251 et seq. (the "Clean Water Act" or the 

"CWA"). This Court has subject matter jurisdiction over the parties and subject matter of this 

action pursuant to CWA section 505(a)(1), 33 U.S.C. § 1365(a)(1), and 28 U.S.C. section 1331 (an 

action for declaratory and injunctive relief arising under the Constitution and laws of the United 

States). 

2. On October 10, 2016, EcoRights provided notice of violations of the CWA occurring at 

the Schmidbauer facility located at 1099 Waterfront Drive, Eureka, California (“the Facility”), 

Waste Discharger Identification number (“WDID”) 1121001233, and of EcoRights' intention to 

file suit against Schmidbauer Lumber, Inc. and Schmidbauer Building Supply, LLC (collectively 

“Schmidbauer”) 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 California 

Regional Water Quality Control Board, Region 1 ("Regional Board"); the U.S. Attorney General, 

and the Defendants ("Notice Letter") as required by the CWA, 33 U.S.C. § 1365(b)(1)(A). A copy 

of this Notice Letter is attached to this complaint as Exhibit 1.

3. More than sixty days have passed since notice was sent to Schmidbauer and the state and 

federal agencies. Neither the EPA nor the State of California has commenced or is diligently 

prosecuting a court action to redress the violations alleged in this complaint. No claim in this 

action is barred by any prior administrative action pursuant to section 309(g) of the CWA, 33 

U.S.C. § 1319(g).

4. Venue is proper in the Northern District of California pursuant to CWA section 

505(c)(1), 33 U.S.C. §1365(c)(1), because the source of the violations is located within this 

judicial district.

II. INTRADISTRICT ASSIGNMENT

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5. Intradistrict assignment of this matter to the San Francisco Division or Humboldt

Division of the Court is appropriate pursuant to Civil Local Rule 3-2(c). The events and the 

property at issue which give rise to EcoRights’ claims occurred in Eureka, Humboldt County, 

California. However, Defendant’s counsel is located in Santa Barbara, and Plaintiff’s counsel is 

located in the greater San Francisco Bay Area. Thus, it would likely be most convenient for the 

parties if this case were assigned to the San Francisco Division of the Court. 

III. INTRODUCTION

6. This complaint seeks relief for alleged unlawful discharges of pollutants from 

Schmidbauer’s facility located at 1099 Waterfront Drive, Eureka, California into waters of the 

United States in violation of the Clean Water Act, National Pollution Discharge Elimination 

System (“NPDES”) General Permit No. CAS000001, adopted by California State Water Resources 

Control Board (“SWRCB”), Water Quality Order No. 2014-0057-DWQ ("2015 Industrial Storm 

Water Permit" or " WQO-2014-0057-DWQ"), which became effective July 1, 2015, and the 

previous version of the Industrial Stormwater Permit, Water Quality Order No. 97-03-DWQ 

(“1997 Industrial Storm Water Permit" or "WQO-97-03-DWQ"). 

7. Violations of the Clean Water Act and the Industrial Stormwater Permit by small 

industrial sites are recognized as a leading cause of significant, cumulative impacts to water 

quality. With every rainfall event, hundreds of millions of gallons of polluted rainwater flow off of 

local industrial facilities, such as Schmidbauer’s, and pour into storm drains, rivers, and the ocean. 

The consensus among agencies and water quality specialists is that stormwater pollution accounts 

for more than half of the total pollution entering the marine environment each year. 

8. Stormwater runs off of industrial sites such as Schmidbauer’s, causing harm to humans and 

aquatic life. In particular, stormwater from such industrial facilities contains suspended sediment

and chemicals that are potentially significant to the beneficial uses of Humboldt Bay.

9. The Schmidbauer Facility is an active lumber mill, and according to the current Stormwater 

Pollution Prevention Plan (“SWPPP”), facility operations include log and lumber storage, debarking, 

bucking, milling, planing, applying anti-sapstain chemicals, wood byproduct recovery, lumber 

shipping, sawmill, vehicle, and equipment fueling, and maintenance. The facility has a boiler and 

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dry wood waste (referred to as “hog fuel”) is burned in the boiler to generate steam for heating 

lumber frying kilns. 

10. After Schmidbauer purchased the Facility in 1972, it began treating lumber with Noxtane,

a wood treatment chemical. Noxtane contains pentachlorophenol (“PCP”) and tetrachlorophenol 

(“TCP”), and was used at the site until 1983. Until they were banned by the U.S. EPA in the late 

1980’s due to their extreme toxicity, chlorophenolic wood treatment chemicals were widely used at 

lumber mills. The chemicals themselves, pentachlorophenol and tetrachlorophenol, are known 

carcinogens, but even more problematic is the fact that chlorophenolic wood treatment products are 

invariably contaminated with polychlorinated dibenzo-p-dioxins (“dioxins”) and polychlorinated 

dibenzofurans (“furans”). Dioxins and furans are widely recognized by the U.S. Environmental 

Protection Agency, the World Health Organization, and other governmental and nongovernmental 

organizations as among the most potent toxins known to humankind. Even in minute quantities, 

dioxins can cause cancer, mutations, developmental abnormalities, or fatalities in exposed human, 

animal, and plant populations. Dioxins and furans are also extremely persistent in the environment, 

with some congeners having half-lives measured in decades. Soils contaminated with dioxins and

furans are still present at the sites of many historic lumber mills throughout the nation, where sloppy 

use and improper disposal practices led to widespread contamination of soils, sediments, and 

groundwater. Such contaminated soils and sediments pose significant risks to human health and the 

environment as they are widely dispersed into the environment by rainwater runoff, wind, and 

vehicle traffic.

11. Discharges of stormwater and non-stormwater from lumber facilities such as 

Schmidbauer’s are also of significant concern because the industrial activities associated with these 

sites make various pollutants particularly accessible to stormwater. The Schmidbauer Facility 

currently has 18 hazardous materials storage areas. Specifically, the Schmidbauer Facility stores 

thousands of gallons of propane, oil, diesel fuel, gasoline, grease, coolant, boiler chemicals, 

compressed gases such as acetylene, nitrogen, argon, carbon dioxide and oxygen, and sapstain 

control chemicals such as propiconazole. 

12. “Wood yard leaching” occurs when the by-products of chemical and biological 

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decomposition of wood materials are carried away by water, potentially causing adverse impacts to 

surface waters and/or groundwater. The soluble or misable products of wood leaching include

tannins, lignins, turpins, high chemical oxygen demand and biochemical oxygen demand, and in 

some cases “black liquor” from fermentation. 

13. The large number of vehicles and amount of lumber entering and leaving the Facility 

track oil, grease, wood treatment chemicals, lumber debris, and other pollutants off-site and onto 

roads where rainfall washes these pollutants into the storm drain system or directly into waters of 

the United States. Motor oil detected in the Kiln Ditch in 2015 was attributed to frequent passage 

of forklifts and loaders used for debarking in the area, one of which had an oil leak. According to 

the facility’s 2010 Stormwater Monitoring Plan – which discussed that the same problem plagued 

the facility as far back as 2010 – loaders drive back and forth up to 18 hours a day at the Facility. 

In 2013, exceedances of Total Suspended Solids (“TSS”) in the Kiln Ditch were also attributed to 

heavy traffic throughout the area. Correspondence from 2014 also estimated that the exceedance of 

oil levels in samples from the Kiln Ditch was likely attributable to a chip or shavings truck with a 

leak.

14. High concentrations of TSS degrades optical water quality by reducing water clarity and 

decreasing light available to support photosynthesis. Suspended solids have been shown to alter 

predator-prey relationships (for example turbid water might make it difficult for fish to see their 

prey). Deposited solids alter habitat for fish, aquatic plants, and benthic organisms. TSS can also 

be harmful to aquatic life because numerous pollutants, including metals and PAHs, are adsorbed 

onto TSS. Thus, higher concentrations of TSS mean higher concentrations of toxins associated 

with those sediments.

15. Storm water also comes into contact with logs and lumber stored alongside ditches. This is 

problematic because lumber is treated with chemicals such as Propiconazole, which was detected in 

the West Ditch. Propiconazole is a fungicide, antimicrobial pesticide, and materials preservative. 

Propiconazole is considered highly toxic to freshwater fish and estuarine/marine invertebrates, 

moderately toxic to estuarine/marine fish, and slightly toxic to mammals and freshwater 

invertebrates. A 2013 risk assessment completed by the EPA concluded that increased use of 

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propiconazole as a fungicide carried the potential for acute risk to listed estuarine/marine 

invertebrates. The EPA-approved label for propiconazole technical products states: 

This product is toxic to fish. Do not apply directly to water, to areas where surface water 

is present, or to intertidal areas below the mean high Water mark. Do not contaminate water 

by cleaning of equipment or disposal of wastes. Do not discharge effluent containing this 

product into lakes, streams, ponds, estuaries, oceans, or other waters, unless in accordance 

with the requirements of a National Pollutant Discharge Elimination System (NPDES) 

permit and the permitting authority has been notified in writing prior to discharge. Do not 

discharge effluent containing this product to sewer systems without previously notifying the 

local sewage, treatment plant authority. For guidance, contact your State Water Board or 

Regional Office of the EPA. 

16. Schmidbauer’s stormwater discharges contribute to the ongoing stormwater pollution 

problem and exemplify the epidemic of violations of industrial stormwater permits that EcoRights 

is seeking to eliminate or reduce. These pollution discharges can and must be curtailed to ensure 

the ecological health of the Humboldt Bay.

IV. PARTIES

17. EcoRights is a non-profit public benefit corporation organized under the laws of 

California, with its main office in Garberville, California. EcoRights’ purpose is to educate the 

public about environmental practices which cause harm to human health, the environment and 

other natural resources, and to seek redress from those harms through litigation or alternative 

dispute resolution. EcoRights represents citizens in protecting California’s waterways from 

pollution, securing the multitude of benefits that flow from clean, vibrant waters: safe drinking 

water, abundant and diverse wildlife populations, healthy recreational opportunities, and economic 

prosperity from commercial fishing, tourism, and other commercial activities that depend on clean 

water. To further its goals, EcoRights actively seeks federal and state agency implementation of 

state and federal water quality laws, including the CWA, and as necessary, directly initiates 

enforcement actions on behalf of itself and its members. 

18. Members of EcoRights, including citizens, taxpayers, property owners, and residents, 

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live, work, travel and recreate near the Humboldt Bay, into which Schmidbauer causes pollutants 

to be discharged. These EcoRights members use and enjoy the impacted waters for recreational, 

educational, scientific, conservation, aesthetic, and spiritual purposes. Schmidbauer’s alleged 

discharge of stormwater containing pollutants impairs each of those uses. Thus, the interests of 

EcoRights’ members have been, are being, and will continue to be adversely affected by 

Schmidbauer’s failure to comply with the Clean Water Act and the Industrial Stormwater Permit. 

19. Schmidbauer Lumber, Inc. and Schmidbauer Building Supply, LLC are the owner, 

corporate parent of, or otherwise exercise control over the Facility located at 1099 Waterfront 

Drive, Arcata California. Schmidbauer Lumber, Inc. and Schmidbauer Building Supply, LLC are 

actively registered with the California Secretary of State. Schmidbauer staff who are located at the 

facility at 1900 Waterfront Drive, Eureka, California submit most reporting required under the 

Industrial Stormwater Permit. 

20. Through its various corporate and subsidiary entities, Schmidbauer operates the Facility 

where it stores logs and lumber, applies anti-sapstain chemicals, and conducts debarking, bucking, 

milling, planing, wood byproduct recovery, lumber shipping, sawmill, vehicle, and equipment 

fueling, and maintenance. 

V. REGULATORY BACKGROUND

Clean Water Act

21. CWA section 301(a), 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 enumerated CWA 

sections. Among other things, CWA section 301(a) prohibits discharges not authorized by, or in 

violation of, the terms of a National Pollutant Discharge Elimination System ("NPDES") permit 

issued pursuant to CWA section 402, 33 U.S.C. § 1342.

22. CWA section 402(p) requires that NPDES permits be issued for stormwater discharges 

associated with industrial activities.

23. CWA section 402(b) allows each state to administer its own EPA-approved permit 

program for discharges. In California, the State Board and its nine Regional Boards have approval 

from EPA to administer an NPDES permit program for the State. The State Board and its nine 

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Regional Boards issue individual and general NPDES permits regulating water pollutant 

discharges from various categories of dischargers.

24. CWA section 505(a)(1) provides for citizen enforcement actions against any "person," 

including individuals, corporations, or partnerships, for violations of NPDES permit requirements 

and for unpermitted discharges of pollutants. 33 U.S.C. § 1365(a)(1); see 33 U.S.C. § 1362(5).

25. 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 § 301(a), 33 

U.S.C. § 1311(a); see also CWA § 402(p), 33 U.S.C. § 1342(p) (requiring NPDES permit issuance 

for the discharge of stormwater associated with industrial activities). The Facility discharges 

stormwater associated with industrial activity to the Humboldt Bay, and that stormwater is 

contaminated with pollutants. The Facility has discharged and continues to discharge stormwater 

pursuant to the 1997 and 2015 Industrial Stormwater Permits, which authorize these discharges 

conditioned on the Facility complying with the terms of these permits. Each of these permit terms 

constitutes an "effluent limitation" within the meaning of CWA § 505(f), 33 U.S.C. § 1365(f). The 

Facility’s stormwater discharges have violated various of these permit terms, thereby violating 

CWA effluent limitations. CWA section 505(a) authorizes a citizen suit action for injunctive relief. 

33 U.S.C. § 1365(a). CWA violators are also subject to an assessment of civil penalties of up to

$32,500 for all violations occurring on or after March 15, 2004 through January 12, 2009, $37,500 

per day per violation for violations occurring between January 12, 2009 and December 6, 2013, 

and $37,500 per violation for violations occurring after December 6, 2013. CWA § 309(d), 33 

U.S.C. § 1319(d) and 40 C.F.R. §§ 19.1 - 19.4.

State Regulations

26. The Regional Board's Basin Plan is the master policy document setting forth the legal, 

technical, and programmatic bases of water quality regulation in the Region. Among other things, 

the Basin Plan includes the water quality objectives needed to protect the designated beneficial 

water uses. The Basin Plan sets forth narrative water quality objectives for sediment, settable 

matter, and suspended materials, as well as narrative objectives for not impairing water quality 

with oil sheens, turbidity, or other nuisance conditions. The Basin Plan also includes numeric 

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water quality standards for pH, dissolved oxygen and toxic pollutants as well as site specific 

objective for certain pollutants of concern such as copper, lead, and zinc. The Basin Plan, Section 

3, establishes the following relevant Water Quality Standards (also known as Water Quality 

Objectives) for the Humboldt Bay1:

a. Controllable water quality shall conform to the water quality objectives 

contained therein. 

b. Dissolved oxygen levels shall be a minimum of 6.0 mg/L [6,000 ug/L]. 

c. The suspended sediment load and suspended sediment discharge rate of 

surface waters shall not be altered in such a manner as to cause nuisance or adversely 

affect beneficial uses.

d. Waters shall not contain substances in concentrations that result in deposition 

of material that causes nuisance or adversely affect beneficial uses.

e. Turbidity shall not be increased more than 20 percent above naturally 

occurring background levels. 

f. Waters shall not contain oils, greases, waxes, or other materials in 

concentrations that result in a visible film or coating on the surface of the water or on 

objects in the water, that cause nuisance, or that otherwise adversely affect beneficial uses.

g. Waters shall be free of coloration that causes nuisance or adversely affects

beneficial uses.

h. Waters shall not contain suspended material in concentrations that cause 

nuisance or adversely affect beneficial uses.

i. Changes in normal ambient pH levels shall not exceed 0.2 units in waters with 

designated marine or saline beneficial uses.

j. All waters shall be maintained free of toxic substances in concentrations that 

are toxic to, or that produce detrimental physiological responses in human, plant, animal, 

or aquatic life.

 1 The Basin Plan is published by the California North Coast Regional Water Quality Control 

Board at http://www.waterboards.ca.gov/northcoast/water_issues/programs/basin_plan/basin_plan.shtml.

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k. No individual pesticide or combination of pesticides shall be present in 

concentrations that adversely affect beneficial uses. There shall be no bioaccumulation of 

pesticide concentrations found in bottom sediments or aquatic life.

27. Discharges of stormwater from the Facility have caused or contributed to an exceedance 

of the above-listed Water Quality Standards. These discharges (and all discharges referred to in the

Notice Letter attached as Exhibit 1) have occurred at each of the discharge locations identified in 

Schmidbauer’s Annual Reports to the State Board and SWPPP. 

28. Exhibit 1 (i.e. the Notice Letter and its Attachment 1) compiles some of the selfmonitoring data reported by the Facility to the Regional Board reflecting the Facility's sampling of 

stormwater discharges. The sample results reflected in Exhibit 1, Attachment 1 are representative 

of the pollutant levels in the Facility's discharge of stormwater, including such discharges that 

Schmidbauer did not sample or analyze. Thus, every instance when the Facility has discharged 

stormwater, including instances when the Facility has discharged stormwater that it has not 

sampled, this stormwater discharge has contained levels of pollutants comparable to the levels set 

forth in Attachment 1. As reflected in Attachment 1, the Facility’s stormwater discharges to the 

Humboldt Bay have consistently contained elevated levels of the following pollutants: TSS, Zinc,

Total Organic Carbon (“TOC”), Chemical Oxygen Demand (“COD”), and Specific Conductance 

(“SC”). Arsenic, chromium, and copper have also been detected in stormwater discharges at the 

Facility. Schmidbauer has exceeded the EPA benchmark for copper on at least one occasion. 

Significant amounts of Propiconazole as well as tannins and lignins have also been detected in 

discharges.

29. Schmidbauer has not consistently tested for oil and grease as required by the 1997 and 

2015 permits, despite having admitted to a longstanding problem containing oil and grease levels 

in stormwater discharges at the Facility in its correspondence with the State Board. Instead, 

Schmidbauer tested for other total hydrocarbon parameters, referred to variously in sampling data 

as “motor oil”, “TPHC”, “TPHC as motor oil”, and/or “TPHC as diesel.”

30. The excessive TSS in the Facility's stormwater discharges has caused or contributed and 

is continuing to cause or contribute to the Humboldt Bay not meeting the Water Quality Standards 

Nos. 3, 5, and 8 set forth in the Basin Plan. Furthermore, the Facility’s discharge of stormwater 

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containing suspended and settleable toxic metals and other materials has contributed to the 

deposition and/or dispersal of materials that interfere with beneficial uses of the Humboldt Bay 

and a detrimental increase in concentrations of toxic substances found in bottom sediments or 

aquatic life due to bioaccumulation, and thus has caused or contributed and is continuing to cause 

or contribute to the Humboldt Bay not meeting the Water Quality Standards Nos. 3 through 11 set 

forth in the Basin Plan. The Facility’s discharge of COD has caused or contributed and is 

continuing to cause or contribute to the Humboldt Bay not meeting applicable Water Quality 

Standards No. 2 in the Basin Plan for dissolved oxygen.

31. In addition, a rule promulgated by EPA known as the California Toxics Rule ("CTR") 

sets Water Quality Standards ("WQS") for 126 toxic priority pollutants in California's rivers, lakes, 

enclosed bays, and estuaries.2 The CTR, which applies to Humboldt Bay, includes limits for 

several toxic metals.

The General Industrial Stormwater Permit 

32. In California, the State Board has elected to issue a single, statewide general permit 

applicable to all stormwater discharges associated with industrial activity. The Industrial 

Stormwater Permit is an NPDES permit pursuant to CWA section 402(p), 33 U.S.C. § 1342(p). To 

discharge stormwater lawfully in California, industrial dischargers must secure coverage under the 

Industrial Stormwater Permit and comply with its terms or obtain and comply with an individual 

NPDES permit.

33. The Discharge Prohibitions of the 1997 and 2015 Industrial Stormwater Permits prohibit 

stormwater discharges that cause or threaten to cause pollution, contamination, or nuisance. WQO97-03-DWQ § A.2; WQO-2014-0057-DWQ § III.C. The Receiving Water Limitations of the 1997 

and 2015 Industrial Stormwater Permits also prohibit stormwater discharges that cause or 

contribute to an exceedance of any applicable Water Quality Standards in any affected receiving 

water. WQO-97-03-DWQ § C.2; WQO-2014-0057-DWQ § VI.A. Applicable Water Quality 

Standards are set forth in the Basin Plan and the CTR. 

 2 The CTR is set forth at 40 C.F.R. § 131.38 and is explained in the Federal Register preamble 

accompanying the CTR promulgation set forth at 65 Fed. Reg. 31682.

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34. The Receiving Water Limitations of the 1997 and 2015 Industrial Stormwater Permits

also prohibit stormwater discharges that adversely impact human health or the environment. 

WQO-97-03-DWQ § C.1; WQO-2014-0057-DWQ § VI.B. 

35. The Receiving Water Limitations and Discharge Prohibitions of the 1997 and 2015 

Industrial Stormwater Permits also prohibit stormwater discharges that contain pollutants in 

quantities that threaten to cause pollution or a public nuisance. WQO-97-03-DWQ § A.2; WQO2014-0057-DWQ § VI.C.

36. Dischargers must ensure that a Stormwater Pollution Prevention Plan (“SWPPP”) is 

prepared in order to identify and evaluate all sources of pollutants that may affect the quality of 

industrial storm water discharges and authorized non-stormwater discharges (“NSWDs”). WQO2014-0057-DWQ §§ X.C.1.A, X.G.2; WQO-97-03-DWQ §§ A.6, A.7. 

37. The SWPPP must describe each industrial process and the “type, characteristics, and 

approximate quantity of industrial materials used in or resulting from” industrial processes. 

WQO-2014-0057-DWQ § X.G.1.A; WQO-97-03-DWQ § A.6.a.i. Dischargers must also ensure 

that the SWPPP describes all activities that generate a significant amount of dust, particulates, or 

other pollutants that may be deposited within the facility boundaries, including the locations, 

sources, and characteristics of the dust or particulate pollution. WQO-2014-0057-DWQ § X.G.2; 

WQO-97-03-DWQ § A.6.

38. For facilities that discharge to impaired waters, the SWPPP must identify pollutants at 

their facility that may be causing or contributing to an exceedance of a water quality standard in 

the receiving waters. WQO-2014-0057-DWQ § X.G.2. Based on the potential pollutant 

assessment, the SWPPP must further identify any areas of the facility where the minimum BMPs

will not adequately reduce or prevent pollutants. WQO-2014-0057-DWQ § X.G.2; WQO-97-03-

DWQ § A.6.

VI. STATEMENT OF FACTS

39. In most of the Humboldt Bay area, stormwater drains untreated either directly, or through 

the storm drain system, into the Bay and its tributaries. Among those who specialize in the field of 

water quality locally, it is well known and commonly understood that stormwater pollution 

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accounts for the majority of pollution entering the Humboldt Bay and its watershed each year. 

With every rainfall event, hundreds of millions of gallons of polluted rainwater, originating from 

area industries, pour into the Bay and its tributaries.

40. Schmidbauer operates the Facility located at 1099 Waterfront Drive, Eureka in Humboldt 

County. 

41. Activities at the Facility include the processing and treatment of lumber, including 

treating lumber with anti-sapstain pesticides and fungicides, storing large piles of treated and 

untreated lumber throughout the site, debarking, bucking, milling, planing, wood byproduct 

recovery, lumber shipping, sawmill, vehicle, and equipment fueling, and maintenance. Discharges 

of stormwater flow off the Facility at least five different discharge points and ultimately into the 

Humboldt Bay.

42. The operations at the Facility occur outdoors and are causing pollutants to be exposed to 

rainfall. At the Facility, materials are stored outdoors in large piles open to wind and storm water

flows. Schmidbauer’s Facility generates large amounts of wood waste, sawdust, and other particulate 

matter which settle on the ground and other surfaces which are exposed to storm water and nonstorm water flows. The Facility lacks sufficient and/or sufficiently well-maintained berms or other 

structural controls to retain stormwater on the Facility. Schmidbauer does not sufficiently treat 

contaminated stormwater prior to discharge from the Facility. The large number of trucks entering 

and leaving the Facility also track dirt, metals, oil, grease, and other pollutants off-site and onto 

public roads and drainage pathways where rainfall washes these pollutants into the storm drain 

system or directly into waters of the United States. 

43. The types of pollutants that the Facility releases into the immediate environment include, 

among others: TSS, Zinc, Total Organic Carbon (“TOC”), Chemical Oxygen Demand (“COD”), 

and Specific Conductance (“SC”). Arsenic, chromium, and copper have also been detected in the 

Facility’s stormwater discharges. The Facility exceeded the EPA benchmark for copper on at least 

one occasion. Significant amounts of Propiconazole as well as tannins and lignins have also been 

detected in discharges. The industrial materials stored, and the pollutants generated, at the 

Facilities are exposed to stormwater flows.

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44. Portions of the Facility are unpaved. Thus, pollutants from Schmidbauer’s activities can 

soak into unpaved ground and later become mobilized in stormwater flows.

Activities Contributing to CWA Violations

45. Schmidbauer has not developed and/or implemented an adequate SWPPP at the Facility. 

46. Schmidbauer has not implemented BMPs that adequately minimize the exposure of 

pollutants at the Facility to stormwater.

47. Schmidbauer has not implemented BMPs at the Facility that adequately control and 

minimize contaminated runoff from the facility.

48. Schmidbauer has not implemented BMPs at the Facility that adequately treat and remove 

pollutants in stormwater prior to discharge. 

49. Schmidbauer has not adequately evaluated and revised its SWPPP for the Facility to 

address these failures. Schmidbauer has also failed to fully implement its SWPPP and properly 

operate and maintain the structures and systems that have been put in place to achieve compliance 

with the 1997 and 2015 Industrial Stormwater Permits and SWPPP requirements. 

50. Schmidbauer has not developed and/or implemented an adequate MRP at the Facility.

51. Schmidbauer’s monitoring and reporting activities have not resulted in practices that 

adequately reduce or prevent pollutants from discharging into stormwater flows from the Facility.

52. Schmidbauer has failed to complete all of the stormwater sampling required by the 1997 

and 2015 Industrial Stormwater Permits at the Facility. 

53. Schmidbauer’s monitoring activities have not effectively identified compliance problems 

at the Facility or resulted in effective revision of each its SWPPP. 

54. Due to Schmidbauer’s lack of effective pollution prevention measures, its failure to 

implement effective best management practices, and its failure to implement an effective 

monitoring and reporting program, stormwater from the Facility becomes polluted with many 

constituents. Dust, toxic metals such as arsenic, chromium, copper, iron, and zinc; TSS, oil, grease, 

and pH-affecting substances become entrained in stormwater when such water flows over and 

across the outdoor processing areas of the Facility. This polluted stormwater is discharged to the 

Humboldt Bay. 

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55. Schmidbauer’s own stormwater sampling indicates that Schmidbauer’s discharges of 

stormwater from the Facility is consistently contaminated with higher levels of pollutants than is 

permissible under the Industrial Stormwater Permit. 

VII. CLAIMS

FIRST CLAIM FOR RELIEF

Discharges of in Violation of Technology-Based Effluent Limitations

(Violations of 33 U.S.C. § 1311)

56. Plaintiffs incorporate the allegations contained in all preceding paragraphs as though 

fully set forth herein.

57. 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 § 301(a), 33 

U.S.C. § 1311(a); see also CWA § 402(p), 33 U.S.C. § 1342(p) (requiring NPDES permit issuance 

for the discharge of stormwater associated with industrial activities). The Facility discharges 

stormwater associated with industrial activity to Humboldt Bay that is contaminated with 

pollutants. The Facility’s past and present stormwater discharges are subject to the 1997 and 2015 

Industrial Stormwater Permits, which authorize these discharges conditioned on the Facility 

complying with the terms of those permits. Each of these permit terms constitutes an "effluent 

limitation" within the meaning of CWA section 505(f), 33 U.S.C. § 1365(f). The Facility’s 

stormwater discharges have violated numerous of these permit terms, thereby violating CWA 

effluent limitations.

58. The Effluent Limitations of the 1997 and 2015 Industrial Stormwater Permits prohibit 

Schmidbauer from discharging pollutants above the level commensurate with the application of 

BAT and BCT. WQO-97-03-DWQ § B.3; WQO-2014-0057-DWQ §§ V.A., X.H.1, X.H.2; (see 

also WQO-2014-0057-DWQ, Industrial General Permit Fact Sheet § D.1-5.)

59. On every day prior to July 1, 2015 that Schmidbauer discharged stormwater from the 

Facility, it was in violation of the 1997 Industrial Stormwater Permit’s Receiving Water 

Limitations and Discharge Prohibitions set forth at WQO-97-03-DWQ §§ A.2, C.1, & C.2 by 

causing or contributing to exceedances of water quality standards. Each day after July 1, 2015 that 

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Schmidbauer discharged stormwater from the Facility, it acted in violation of the 2015 Industrial 

Stormwater Permit’s Receiving Water Limitations set forth at WQO-2014-0057-DWQ §§, VI.A., 

B. & C by causing or contributing to exceedances of water quality standards and causing pollution 

problems as described above. Schmidbauer has been discharging polluted stormwater from the 

Facility containing levels of pollutants above the level commensurate with the application of BAT 

and BCT in violation of the Effluent Limitations of the Industrial Stormwater Permit during every 

significant rain event (defined by the U.S. EPA as a rainfall event generating 0.1 inches or more of 

rain). 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. Attachment 2 to the Notice 

Letter, i.e. Exhibit 1 to this complaint, sets forth a table reflecting the rainfall data for the past five 

years, as reported to the Woodley Island, Eureka Station, the closest monitoring station available 

on the NOAA website.

60. The 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

(which are set forth in Attachment 1 to Exhibit 1). As reflected in Attachment 1 to Exhibit 1, the 

Facility has repeatedly discharged stormwater from each of the discharge locations identified in 

Defendants’ Annual Reports containing 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 Regional Board reflecting the Facility’s sampling of actual stormwater discharges, as well as 

samples taken by others from the Facility. The sample results reflected in Attachment 1 are

representative of the pollutant levels in the Facility’s discharge of stormwater, including such 

discharges that Schmidbauer did not sample or analyze. Thus, every instance when the Facility has 

discharged stormwater, including instances when the Facility has discharged stormwater that it has 

not sampled, this stormwater discharge has contained levels of pollutants comparable to the levels 

set forth in Attachment 1. 

61. EcoRights representatives have observed turbid, brown-tinged stormwater discharges 

from the Facility on numerous occasions. BAT and BCT levels of treatment at the Facility would 

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necessarily be sufficient to prevent the discharge of discolored, turbid wastewater that appears to 

contain elevated levels of TSS and/or oil and grease. Thus, the presence of such discoloration in 

the stormwater discharges further establishes that Schmidbauer has discharged and is continuing to 

discharge stormwater that is not treated to a level commensurate with application of BAT and 

BCT. EcoRights alleges that the stormwater discharges EcoRights observed on this day is

representative of the stormwater discharges generally and thus every day Schmidbauer has 

discharged stormwater (i.e., during every significant rain event), Schmidbauer has discharged 

stormwater with levels of pollutants exceeding that which would be present if Schmidbauer 

employed BAT and BCT treatment.

62. EcoRights further alleges that on each day that Schmidbauer has discharged stormwater,

Schmidbauer has discharged stormwater that was not treated to a level commensurate with BAT or 

BCT in violation of the Effluent Limitations of the Industrial Stormwater Permit because, as 

further alleged in the Third Claim, below, Schmidbauer has not developed and implemented a 

SWPPP that mandates BMPs that are commensurate with BAT and BCT for the Facility. WQO97-03-DWQ § B.3; WQO-2014-0057-DWQ §§ V.A., X.H.1, X.H.2.

63. Unlawful discharges of stormwater from the Facility with levels of pollutants exceeding 

BAT and BCT levels of control continue to occur presently and will occur in the future during all 

significant rain events. 

64. Each discharge of stormwater from the Facility after the effective date of the Industrial 

Stormwater Permit has constituted and will constitute a separate violation of the Industrial 

Stormwater Permit's Effluent Limitations and the CWA. Every day since at least five years and 

sixty days before the date Plaintiff filed this Complaint that Schmidbauer has discharged or will 

discharge polluted stormwater from the Facility in violation of the Effluent Limitations of the 

Industrial Stormwater Permit, WQO-97-03-DWQ § B.3; WQO-2014-0057-DWQ §§ V.A., X.H.1, 

X.H.2, is a separate and distinct violation of CWA section 301(a), 33 U.S.C. § 1311(a) which 

subjects Schmidbauer to an assessment of civil penalties pursuant to CWA sections 309(d) and 

505, 33 U.S.C. §§ 1319(d) and 1365.

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SECOND CLAIM FOR RELIEF

Discharges of in Violation of Water Quality-Based Effluent Limitations

(Violations of 33 U.S.C. § 1311)

65. Plaintiffs incorporate the allegations contained in all preceding paragraphs as though 

fully set forth herein.

66. The Discharge Prohibitions of the 1997 and 2015 Industrial Stormwater Permits prohibit 

stormwater discharges that cause or threaten to cause pollution, contamination, or nuisance. WQO97-03-DWQ § A.2; WQO-2014-0057-DWQ § III.C. The Receiving Water Limitations of the 1997 

and 2015 Industrial Stormwater Permits also prohibit stormwater discharges that cause or contribute 

to an exceedance of any applicable Water Quality Standards in any affected receiving water. WQO97-03-DWQ § C.2; WQO-2014-0057-DWQ § VI.A. The Receiving Water Limitations of the 1997 

and 2015 Industrial Stormwater Permits also prohibit stormwater discharges that adversely impact 

human health or the environment. WQO-97-03-DWQ § C.1; WQO-2014-0057-DWQ § VI.B. The 

Receiving Water Limitations or the Discharge Prohibitions of the 1997 and 2015 Industrial 

Stormwater Permits also prohibit stormwater discharges that contain pollutants in quantities that 

threaten to cause pollution or a public nuisance. WQO-97-03-DWQ § A.2; WQO-2014-0057-DWQ 

§ VI.C.

67. Applicable Water Quality Standards are set forth in the Basin Plan and the CTR.

68. The Basin Plan, inter alia, establishes the following Water Quality Standards for the 

Humboldt Bay: 

a. Controllable water quality shall conform to the water quality objectives 

contained therein. 

b. Dissolved oxygen levels shall be a minimum of 6.0 mg/L [6,000 ug/L]. 

c. The suspended sediment load and suspended sediment discharge rate of 

surface waters shall not be altered in such a manner as to cause nuisance or adversely 

affect beneficial uses.

d. Waters shall not contain substances in concentrations that result in deposition 

of material that causes nuisance or adversely affect beneficial uses.

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e. Turbidity shall not be increased more than 20 percent above naturally 

occurring background levels. 

f. Waters shall not contain oils, greases, waxes, or other materials in 

concentrations that result in a visible film or coating on the surface of the water or on 

objects in the water, that cause nuisance, or that otherwise adversely affect beneficial uses.

g. Waters shall be free of coloration that causes nuisance or adversely affects

beneficial uses.

h. Waters shall not contain suspended material in concentrations that cause 

nuisance or adversely affect beneficial uses.

i. Changes in normal ambient pH levels shall not exceed 0.2 units in waters with 

designated marine or saline beneficial uses.

j. All waters shall be maintained free of toxic substances in concentrations that 

are toxic to, or that produce detrimental physiological responses in human, plant, animal, 

or aquatic life.

k. No individual pesticide or combination of pesticides shall be present in 

concentrations that adversely affect beneficial uses. There shall be no bioaccumulation of 

pesticide concentrations found in bottom sediments or aquatic life.

69. Schmidbauer’s discharges of stormwater from the Facility from each of the five 

discharge locations ("outfalls") identified in Schmidbauer’s Annual Reports have caused or 

contributed to an exceedance of one or more of the above-listed Water Quality Standards. 

Attachment 1 to Exhibit 1 compiles some of the self-monitoring data reported by the Facility to 

the Regional Board reflecting the Facility's sampling of stormwater discharges. The sample 

results reflected in Attachment 1 are representative of the pollutant levels in the Facility's 

discharge of stormwater, including such discharges that Schmidbauer did not sample or analyze. 

Thus, every instance when the Facility has discharged stormwater, including instances when the 

Facility has discharged stormwater that Schmidbauer has not sampled, this stormwater discharge 

has contained levels of pollutants comparable to the levels set forth in Attachment 1. Attachment 

1 indicates that the Facility routinely discharges stormwater into the Humboldt Bay containing, 

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inter alia, the following pollutants: TSS, Zinc, TOC, COD, and SC. Arsenic, chromium, and 

copper have also been detected in the Facility’s stormwater discharges and Schmidbauer has 

exceeded the EPA benchmark for copper on at least one occasion. Significant amounts of 

Propiconazole as well as tannins and lignins have also been detected in discharges. 

70. Schmidbauer has not consistently tested for oil and grease as required by the 1997 and 

2015 Industrial Stormwater Permits in its discharges, despite having admitted to a longstanding 

problem containing oil and grease levels in stormwater discharges at the Facility in its

correspondence with the State Board. Instead, Schmidbauer has tested for other total hydrocarbon 

parameters, referred to variously in Schmidbauer’s sampling data as “motor oil”, “TPHC”, 

“TPHC as motor oil”, and/or “TPHC as diesel.”

71. The levels of these pollutants in the Facility's stormwater discharges have caused 

pollution, contamination, or nuisance in violation of the Discharge Prohibitions of the Industrial 

Stormwater Permit, WQO-97-03-DWQ § A.2; WQO-2014-0057-DWQ § III.C, and have 

adversely impacted the environment in violation of the Receiving Water Limitations of the 

Industrial Stormwater Permit, WQO-97-03-DWQ § C.2; WQO-2014-0057-DWQ § VI.A. 

Moreover, the discharge of these pollutants has caused the Humboldt 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 Industrial Stormwater Permit, WQO-97-03-

DWQ § C.2; WQO-2014-0057-DWQ § VI.A.

72. Specifically, the Facility’s discharge of stormwater containing suspended and settleable 

toxic metals, oil, grease, and other materials has contributed to the deposition and/or dispersal of 

materials that interfere with beneficial uses of the Humboldt Bay and a detrimental increase in 

concentrations of toxic substances found in bottom sediments or aquatic life due to 

bioaccumulation, and thus has caused or contributed and is continuing to cause or contribute to 

the Humboldt Bay not meeting the Water Quality Standards Nos. 3 through 11 set forth in the 

Basin Plan. The Facility’s discharge of COD has caused or contributed and is continuing to cause 

or contribute to the Humboldt Bay not meeting applicable Water Quality Standards No. 2 in the 

Basin Plan for dissolved oxygen. 

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73. Each day that Schmidbauer discharged stormwater from the Facility, Schmidbauer’s

stormwater contained levels of pollutants matching the levels set forth in Attachment 1 to Exhibit 

1 and thus caused levels of pollutants to exceed one or more of the applicable Water Quality 

Standards in the Humboldt Bay. Every day that the Facility has been in existence since the 

effective date of the above-referenced Water Quality Standards, which date back at least to 1986 

in most instances, and to May 24, 2000 for the California Toxics Rule's limit on zinc,

Schmidbauer has discharged stormwater from the Facility during at least every significant local 

rain event over 0.1 inches that has caused or contributed to Water Quality Standards not being 

met in the Humboldt Bay. 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, and, as 

mentioned above, summarized in Attachment 2. 

74. EcoRights representatives further observed discharges of stormwater from the

Schmidbauer Facility that were turbid, murky, and visibly discolored. Schmidbauer’s visual 

observations in Annual Reports from 2009-2015 have also consistently indicated the presence of

“dirty”, “cloudy”, “reddish color[ed]”, and “murky” stormwater discharge. However, 

Schmidbauer has not taken steps to remedy these issues as required by the 1997 and 2015 

Industrial Stormwater Permits. Schmidbauer’s stormwater discharges cause the Humboldt Bay

and its tributaries to fail to meet the Basin Plan's narrative water quality standards mandating that 

"Waters shall be free of changes in turbidity that cause nuisance or adversely affect beneficial 

uses." Basin Plan III-3. EcoRights alleges that the stormwater discharges EcoRights observed are 

representative of Schmidbauer’s stormwater discharges generally and thus every day that 

Schmidbauer has discharged stormwater, Schmidbauer has discharged stormwater that causes the 

Humboldt Bay and its tributaries to fail to meet these Basin Plan water quality standards.

75. The Stormwater discharges referred to in the preceding paragraphs further violate the 

Discharge Prohibitions of the Industrial Stormwater Permit, WQO-97-03-DWQ § A.2; WQO2014-0057-DWQ § III.C, in that these discharges cause or threaten to cause pollution, 

contamination, or nuisance and further adversely impact human health and environment by 

polluting the Humboldt Bay with toxic metals and wastewater high in turbidity.

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76. Schmidbauer’s unlawful discharges from the Facility continue to occur presently and 

will occur in the future during all significant rain events. Each discharge of stormwater from the 

Facility after the effective date of the Industrial Stormwater Permit has constituted and will 

constitute a separate violation of the Discharge Prohibitions of the Industrial Stormwater Permit, 

WQO-97-03-DWQ § A.2; WQO-2014-0057-DWQ § III.C, and/or the Receiving Water 

Limitations of the Industrial Stormwater Permit, WQO-97-03-DWQ § C.2; WQO-2014-0057-

DWQ § VI.A, and the CWA. Every day since at least five years and sixty days before the date 

Plaintiff filed this Complaint that Schmidbauer has discharged or will discharge polluted 

stormwater from the Facility in violation of Discharge Prohibitions of the Industrial Stormwater 

Permit and/or the Receiving Water Limitations of the Industrial Stormwater Permit is a separate 

and distinct violation of CWA section 301(a), 33 U.S.C. § 1311(a) which subjects Schmidbauer 

to an assessment of civil penalties pursuant to CWA sections 309(d) and 505, 33 U.S.C. §§ 

1319(d) and 1365.

THIRD CLAIM FOR RELIEF

Failure to Develop and Implement an Adequate Stormwater 

Pollution Prevention Plan

(Violations of 33 U.S.C. § 1311)

77. Plaintiffs incorporate the allegations contained in all preceding paragraphs as though 

fully set forth herein.

78. Schmidbauer has failed to develop and implement an adequate SWPPP or implement all 

necessary revisions to the SWPPP for the Facility as required by WQO-97-03-DWQ §§ A.1, C.1, 

WQO-2014-0057-DWQ § X.A-I, § X.B. Schmidbauer has failed to prepare, maintain, revise and 

implement Schmidbauer's SWPPP as required, as evidenced by stormwater discharges that 

exceed EPA and State benchmarks and contribute to violations of Water Quality Standards in 

receiving waters. Schmidbauer's SWPPP does not specify adequate BMPs designed to reduce 

pollutant discharge to BAT and BCT levels in accord with the SWPPP requirements set forth in 

the Industrial Stormwater Permit as evidenced by the Facility’s continued discharge of 

stormwater contaminated above pollutant levels attainable via application of BAT and BCT.

WQO-97-03-DWQ, § A; WQO-2014-0057-DWQ §§ X.A., X.C., X.H.1, X.H.2. 

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79. Both the 1997 and 2015 Industrial Stormwater Permits require dischargers to develop and 

implement a site-specific SWPPP for each covered industrial facility that contains the following 

elements: 1. Facility Name and Contact Information; 2. Site Map; 3. List of Industrial Materials; 4. 

Description of Potential Pollution Sources; 5. Assessment of Potential Pollutant Sources; 6. 

Minimum BMPs; 7. Advanced BMPs, if applicable; 8. Monitoring Implementation Plan; 9. Annual 

Comprehensive Facility Compliance Evaluation (Annual Evaluation); and, 10. Date that SWPPP 

was initially Prepared and the Date of Each SWPPP Amendment, if Applicable. WQO-97-03-

DWQ, § A; WQO-2014-0057-DWQ §§ X.A., X.H.1. In addition, after July 1, 2015, the SWPPP 

must identify and describe any advanced BMPs implemented to reduce or prevent pollutants in 

industrial stormwater discharges and authorized non-stormwater discharges (“NSWDs”). WQO2014-0057-DWQ § X.H.2. The SWPPP must further identify and describe conditions or 

circumstances which may require future revisions to be made to the SWPPP. WQO-2014-0057-

DWQ, § X.C. 

80. Prior to July 1, 2015, Schmidbauer’s SWPPP failed to comply with the SWPPP 

requirements in the 1997 Industrial Stormwater Permit and/or Schmidbauer failed to implement its

SWPPP. Additionally, Schmidbauer’s present SWPPP fails to comply with the SWPPP 

requirements set forth in the 2015 Industrial Stormwater Permit and/or Schmidbauer has failed 

since July 1, 2015 to implement its SWPPP. 

81. Every day since at least five years and sixty days before the date Plaintiff filed this 

Complaint that Schmidbauer has failed to draft an adequate SWPPP, and/or to revise, and/or to 

implement Schmidbauer’s SWPPP in violation of the requirements of the Industrial Stormwater 

Permit is a separate and distinct violation of CWA section 301(a), 33 U.S.C. § 1311(a) which 

subjects Schmidbauer to an assessment of civil penalties pursuant to CWA sections 309(d) and 

505, 33 U.S.C. §§ 1319(d) and 1365.

FOURTH CLAIM FOR RELIEF

Failure to Develop and Implement an Adequate 

Monitoring and Reporting Program

(Violations of 33 U.S.C. § 1311)

82. Plaintiffs incorporate the allegations contained in all preceding paragraphs as though 

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fully set forth herein.

83. Schmidbauer has failed to develop and implement an adequate monitoring and reporting 

program ("MRP") and implement all necessary revisions to the MRP at the Facility as required by 

the Industrial Stormwater Permit.

84. The 1997 Industrial Stormwater Permit required Facility operators to collect and sample 

storm water samples during the first storm event of the wet season and at least one other storm 

event in the wet season. WQO-97-03-DWQ § B.5(a). Facility operators that did not collect samples 

from the first storm event of the wet season were required to explain in the Annual Report why the 

first storm event was not sampled. Id. The 2015 Industrial Stormwater Permit now requires 

dischargers to collect and analyze storm water samples from two (2) qualifying storm events 

(“QSEs”) within the first half of each reporting year (July 1 to December 31), and two (2) QSEs 

within the second half of each reporting year (January 1 to June 30). WQO-2014-0057-DWQ § 

XI.B.1.2.

85. The 1997 Industrial Stormwater Permit required that the MRP provide for analysis of 

stormwater samples for TSS, pH, specific conductance, and total organic carbon ("TOC") or Oil 

and Grease. WQO-97-03-DWQ § B.5.c.i. Similarly, the 2015 Industrial Stormwater Permit requires 

that the MRP provide for analysis of stormwater samples for TSS, pH, and Oil and Grease. WQO2014-0057-DWQ § XI.B.6. In addition, the 1997 and 2015 Industrial Stormwater Permits required 

that the MRP provide for analysis of stormwater samples for the other analytical parameters listed 

either in the 1997 Industrial Stormwater Permit under Table D or set out in the 2015 Industrial 

Stormwater Permit under Table 1.

86. For the SIC code 2421, Sawmills and Planing Mills, General, this includes COD and Zn 

and for the SIC code 2491, Wood Preserving, that should be applicable to the Schmidbauer Facility 

given its use of wood preserving chemicals and retail sale of fencing and other wood products, 

arsenic and copper. WQO-2014-0057-DWQ § XI.B.6, Table 1; WQO-97-03-DWQ § B.5.c. 

87. However, in addition to the Table D parameters, the 1997 Industrial Stormwater Permits 

required that the MRP provide for analysis of toxic chemicals and other pollutants that are likely to 

be present in the Facility’s stormwater discharges. WQO-97-03-DWQ § B.5.c. Similarly, the 2015 

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Industrial Stormwater Permit § XI.B.6 requires facilities to sample for additional parameters that 

serve as indicators of the presence of all industrial pollutants identified in the pollutant source 

assessment (§ X.G.2) which includes “pollutants likely to be present in industrial storm water 

discharges and authorized NSWDs” (§ X.G.2.a). 

88. Schmidbauer's Annual Reports submitted to the Regional Board for the Facility indicate 

that Schmidbauer has not consistently and/or properly taken and analyzed the required samples. 

Schmidbauer’s current MRP is inadequate because it fails to consistently monitor for pollutants 

known to or likely to occur in stormwater discharges. For example, in the 2015-2106 wet season 

Schmidbauer failed to analyze stormwater discharges for chromium, arsenic, and copper despite 

the fact that all of these pollutants had consistently been found in previous years’ samples. 

Schmidbauer also consistently failed to test for Oil and Grease, propiconazole, and other 

pollutants it knew or should have known to be present. Schmidbauer also failed to take four 

samples at each location during the 2015-2016 wet season and failed to take two samples as 

required during previous years. 

89. Furthermore, Schmidbauer’s current MRP fails to monitor for other pollutants likely to 

be present based on the historical industrial activities performed at the Facility. Based on the 

former industrial uses at the site and general knowledge in the industry, dioxins, furans, PAHs, 

and other metals are likely to be present in the Facility’s stormwater discharges, as treated wood 

and wood pulp is stored uncovered and outdoors, and wind, rain, trucks, and rolling stock spread 

runoff from treated wood and wood pulp throughout the Facility into drainage pathways and onto 

public roads. The 2015 SWPPP acknowledges that stormwater may come into contact with boiler 

ash particulate matter and yet, Schmidbauer does not test for those constituents. Given the 

consistently high levels of suspended solids found in the Facility’s stormwater and activities 

described in Schmidbauer’s SWPPP, the Facility’s discharges are likely to contain wood pulp and 

its contaminants dioxins, furans, PAHs, and metals. The likelihood of dioxins and furans being 

present in the Facility’s discharges is increased by the fact that from 1972 until 1983, 

Schmidbauer employed Noxtane, a chlorophenolic wood preservative, at the Facility. Thus, 

Schmidbauer’s MRP is inadequate because it fails to provide for analysis of dioxins, furans, 

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pentachlorophenol, tetrachlorophenol, hexachlorobenzene, PAHs and metals (including arsenic, 

barium, chromium, copper, lead, nickel, and vanadium) in the Facility’s stormwater discharges. 

90. As alleged in the preceding paragraphs, Schmidbauer has not developed and 

implemented an adequate MRP. The MRP Requirements of the 1997 and 2015 Industrial 

Stormwater Permits require dischargers to develop and implement a facility-specific monitoring 

program. WQO-97-03-DWQ §§ B.1, E.3; WQO-2014-0057-DWQ § XI. On each and every day 

from April 17, 1997 to June 30, 2015, Schmidbauer was in continuous violation of the 1997 

Industrial Stormwater Permit’s requirements to develop and implement an adequate MRP. WQO97-03-DWQ §§ B.1, E.3. Further, on each and every day since July 1, 2015, Schmidbauer has

been in continuous violation of the 2015 Industrial Stormwater Permit’s requirements to develop 

and implement an adequate MRP. WQO-2014-0057-DWQ § XI. Schmidbauer will continue to be 

in violation every day that Schmidbauer fails to develop and implement an adequate MRP for the 

Facility.

91. As further discussed above, Schmidbauer has not submitted accurate and complete 

Annual Reports and reports of noncompliance with the 1997 and 2015 Industrial Stormwater 

Permits. Therefore, for each Annual Report due from April 17, 1997 to June 30, 2015, 

Schmidbauer was in violation of the 1997 Industrial Stormwater Permit’s requirements to submit 

accurate and complete Annual Reports every day since each of the Annual Reports were due. 

WQO-97-03-DWQ § B.14. Further, for each Annual Report due since July 1, 2015, Schmidbauer 

was in violation of the 2015 Industrial Stormwater Permit’s requirement’s to submit accurate and 

complete Annual Reports every day since each of the Annual Reports were due. WQO-2014-

0057-DWQ § XVI.

92. Every day since at least five years and sixty days before the date Plaintiff filed this 

Complaint that Schmidbauer has failed to prepare and implement an adequate MRP as required 

by WQO-97-03-DWQ §§ B.1, E.3 and WQO-2014-0057-DWQ § XI is a separate and distinct 

violation of CWA section 301(a), 33 U.S.C. § 1311(a) which subjects Schmidbauer to an 

assessment of civil penalties pursuant to CWA sections 309(d) and 505, 33 U.S.C. §§ 1319(d) and 

1365.

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93. An action for injunctive relief is authorized by CWA section 505(a), 33 U.S.C. § 

1365(a). Continuing commission of the acts and omissions alleged in Plaintiff's First through 

Fourth Claims above will irreparably harm Plaintiff and Plaintiff's members, for which harm they 

have no plain, speedy, or adequate remedy at law.

Wherefore, Plaintiff prays judgment against Schmidbauer as set forth hereafter.

VIII.RELIEF REQUESTED

94. Wherefore, EcoRights respectfully requests this Court to grant the following relief:

a. Declare Defendants to have violated and to be in violation of CWA section 301(a), 33 

U.S.C. § 1311(a), for discharging pollutants from its the Facility in violation of a permit issued 

pursuant to CWA section 402, 33 U.S.C. § 1342 and for failing to comply with all substantive 

and procedural requirements of the Industrial Stormwater Permit and the CWA;

b. Enjoin Defendants from discharging pollutants from its Facility to the Humboldt Bay;

c. Enjoin Defendants to restore all receiving waters damaged by Defendant's illegal 

discharges of pollutants from the Facility;

d. Enjoin Defendants from violating the substantive and procedural requirements of the 

Industrial Stormwater Permit at the Facility;

e. Order Defendants to pay civil penalties of up $ 51,570 per day in accord with CWA 

Section 309(d), 33 U.S.C. § 1319(d) and 40 C.F.R. §§ 19.1 - 19.4 (2016).

f. Award Plaintiff its costs (including reasonable attorney, witness, and consultant fees) as 

authorized by the CWA, 33 U.S.C. § 1365(d); and

g. Award such other relief as this Court may deem appropriate.

IX. DEMAND FOR JURY

Pursuant to Federal Rule of Civil Procedure 38(b), EcoRights demands a jury trial in this 

matter.

X. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

Based on EcoRights’ knowledge to date, pursuant to Civil Local Rule 3-16, the 

undersigned certifies that, as of this date, other than the named parties, there is no such interest to 

report.

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Dated: December 30, 2016 ENVIRONMENTAL ADVOCATES

Jodene Isaacs, Attorney for Plaintiff 

ECOLOGICAL RIGHTS FOUNDATION

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