COMPLAINT 

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Brian A. Knutsen, OSB # 112266 

KAMPMEIER & KNUTSEN PLLC 

833 S.E. Main Street, No. 318 

Portland, Oregon 97214 

Telephone: (503) 841-6515 

Email: brian@kampmeierknutsen.com 

Paul A. Kampmeier, WSBA #31560 

 Applicant for admission pro hac vice

KAMPMEIER & KNUTSEN PLLC 

615 Second Avenue, Suite 360 

Seattle, Washington 98104 

Telephone: (206) 223-4088 x 4 

Email: paul@kampmeierknutsen.com 

Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

NORTHWEST ENVIRONMENTAL 

DEFENSE CENTER, 

 Plaintiff, 

v. 

BJB MILLING & LUMBER, LLC, 

 Defendant. 

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Civil Case No.: ________________ 

COMPLAINT 

[ENVIRONMENTAL MATTER] 

Case 6:15-cv-02349-AA Document 1 Filed 12/17/15 Page 1 of 33
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I. INTRODUCTION 

 1. This action is a citizen suit brought under Section 505 of the Clean Water Act 

(“CWA” or “Act”) as amended, 33 U.S.C. § 1365. Plaintiff Northwest Environmental Defense 

Center (“NEDC”) seeks a declaratory judgment, injunctive relief, the imposition of civil 

penalties, and the award of costs, including attorneys’ and expert witness fees, for Defendant 

BJB Milling and Lumber, LLC’s (“Defendant”) repeated and ongoing violations of the terms and 

conditions of its National Pollutant Discharge Elimination System (“NPDES”) permit, which 

authorizes discharges of pollutants and stormwater associated with industrial activity from 

Defendant’s facility to waters of the United States. 

II. JURISDICTION AND VENUE 

 2. The Court has subject-matter jurisdiction under Section 505(a) of the CWA, 33 

U.S.C. § 1365(a). That section of the CWA authorizes lawsuits against any person who is 

alleged to be in violation of an “effluent standard or limitation.” Id. The Act defines the term 

“effluent standard or limitation” to include “a permit or condition thereof issued under section 

1342 of this title....” 33 U.S.C. § 1365(f)(6). Jurisdiction is proper in this Court because NEDC 

alleges that Defendant is in violation of the terms and conditions of its NPDES permit, which 

was issued under Section 402 of the Act, 33 U.S.C. § 1342. The relief requested herein is 

authorized by 33 U.S.C. §§ 1319(d) and 1365. 

 3. In accordance with Section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), 

by letter dated September 24, 2015, NEDC notified Defendant of Defendant’s violations of its 

NPDES permit and the CWA and of NEDC’s intent to sue for those violations (“Notice Letter”). 

Defendant received the Notice Letter on October 9, 215. In accordance with 33 U.S.C. § 

1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(1), NEDC sent copies of the Notice Letter to 

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Defendant’s registered agent, the Administrator of the U.S. Environmental Protection Agency 

(“EPA”), the Administrator of EPA Region 10, and the Director of the Oregon Department of 

Environmental Quality (“ODEQ”) by mailing copies of the Notice Letter to those individuals via 

certified mail, postage pre-paid and return receipt requested, on September 24, 2015. A copy of 

the Notice Letter is attached to this Complaint as Exhibit 1 and the allegations in the Notice 

Letter are hereby incorporated by reference. 

 4. At the time of the filing of this Complaint, more than sixty days had passed since 

the Notice Letter and copies thereof were mailed as described in the preceding paragraph. 

5. The Clean Water Act violations complained of in the Notice Letter are continuing 

or are reasonably likely to recur. Defendant is in violation of its NPDES permit and the CWA. 

6. At the time of the filing of this Complaint, neither the EPA nor ODEQ had 

commenced any action constituting diligent prosecution to redress the violations alleged in the 

Notice Letter. 

 7. The source of the violations complained of in the Notice Letter is located in Lane 

County, Oregon, and venue is therefore appropriate in the District of Oregon under Section 

505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1). 

III. PARTIES 

 8. Plaintiff Northwest Environmental Defense Center is a membership organization 

suing on behalf of itself and its members. NEDC is an independent non-profit corporation 

organized and existing under the laws of the State of Oregon. NEDC maintains its principal 

place of business in Multnomah County, Oregon. Since 1969, the staff, student volunteers, and 

members of NEDC have advocated for cleaner water and air and for the preservation of public 

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lands and wildlife habitat across the Pacific Northwest. NEDC and its members are “citizens” as 

defined by Section 505(g) of the Act, 33 U.S.C. §1365(g). 

 9. The mission of NEDC is to protect and conserve the environment and natural 

resources of the Pacific Northwest. NEDC and its members have a particular interest in, and 

derive aesthetic, recreational, and other benefits from, Oregon’s rivers, streams, lakes, and bays, 

including Amazon Creek, the Amazon Diversion Canal, the Long Tom River, and the Willamette 

River, as well as the aquatic species that use and rely on those waters. NEDC and its members 

work to conserve and protect Oregon’s water resources and aquatic species. NEDC’s members 

use waters and adjacent lands downstream from Defendant’s discharges for recreational and 

other activities, including boating, fishing, nature watching, hiking, and aesthetic enjoyment. 

NEDC’s members use and enjoy Amazon Creek, the Amazon Diversion Canal, the Long Tom 

River and/or the Willamette Rivers, as well as waters downstream of those streams, for fishing, 

recreation and other activities. Additionally, many members of NEDC live or work near Oregon 

waters or otherwise have an interest in Oregon waters. NEDC and its members intend to 

continue all of these activities in the future. 

 10. NEDC has representational standing to bring this lawsuit. Defendant has 

consistently violated the conditions of its NPDES permit and exceeded the permit’s benchmark 

pollutant discharge levels. NEDC has at least one member who is injured by Defendant’s 

discharges of polluted stormwater and failure to comply with its NPDES permit. Recreational, 

economic, aesthetic, conservation, health, and/or other interests of NEDC and its members have 

been, are being, and will be adversely affected by Defendant’s unauthorized discharges of 

pollutants and/or industrial stormwater to Amazon Creek, the Amazon Diversion Canal, and the 

Long Tom and Willamette river systems. NEDC’s and its members’ interests in Amazon Creek, 

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the Amazon Diversion Canal, the Long Tom and Willamette river systems, and the waters to 

which those streams contribute, are diminished by their polluted state, by Defendant’s illegal 

discharges of pollutants and industrial stormwater, and by Defendant’s other NPDES permit 

violations. These injuries are fairly traceable to the conduct challenged herein. The relief sought 

in this lawsuit can redress the injuries to these interests.

 11. NEDC has organizational standing to bring this action. NEDC has been actively 

engaged in a variety of educational and advocacy efforts to improve water quality and to address 

sources of water quality degradation in Oregon. NEDC’s organizational interests have been 

adversely affected by Defendant’s NPDES permit violations. Defendant has failed to fulfill the 

monitoring, recordkeeping, reporting, planning, and other obligations necessary for compliance 

with its NPDES permit and the CWA. As a result, NEDC is deprived of information that would 

further its efforts to serve its members by disseminating information and taking appropriate 

action. NEDC’s efforts to educate and advocate for greater environmental protection for the 

benefit of its members are thereby obstructed. These injuries are fairly traceable to Defendant’s 

violations and are redressable by this Court. 

 12. Defendant BJB Milling and Lumber, LLC is a Domestic Limited Liability 

Company organized and existing under the laws of the State of Oregon. Defendant owns and 

operates a secondary wood processing facility located at or about 101 Iowa Street, Eugene, 

Oregon 97402 (hereinafter “facility”). 

IV. LEGAL BACKGROUND 

A. The CWA’s Prohibition on Adding Pollutants from Point Sources to Waters of the 

U.S. 

13. Congress enacted the Clean Water Act to “restore and maintain the chemical, 

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). 

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14. As relevant here, Section 301(a) of the Act, 33 U.S.C. § 1311(a), prohibits “the 

discharge of any pollutant by any person” unless such discharge is authorized by an NPDES 

permit issued pursuant to Section 402 of the Act, 33 U.S.C. §1342. 

15. The Act defines the term “discharge of a pollutant” to mean, in part, “any addition 

of any pollutant to navigable waters from any point source....” 33 U.S.C. § 1362(12). 

16. The Act defines the term “point source” to mean, in part, “any discernible, 

confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, 

conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or 

vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 

1362(14).

17. The Act defines the term “pollutant” to mean, in part, “dredged spoil, solid waste, 

incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological 

materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and 

industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6). 

18. Although neither the Act nor its implementing regulations define the term 

“addition,” one court found that “addition” means the introduction of a pollutant into navigable 

waters from any place outside the particular water body. Catskill Mountains Chapter of Trout 

Unlimited, Inc. v. City of New York, 273 F.3d 481, 491 (2nd Cir. 2001). 

19. The Act’s prohibition on discharging pollutants from point sources applies 

broadly. The Act defines the term “navigable waters” to mean “the waters of the United States, 

including the territorial seas.” 33 U.S.C. § 1362(7). And the Act defines the term “person” to 

mean “an individual, corporation, partnership, association, State, municipality, commission, or 

political subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5).

Case 6:15-cv-02349-AA Document 1 Filed 12/17/15 Page 6 of 33
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B. EPA and Some States Authorize Discharges of Pollutants by Issuing NPDES 

Permits. 

20. Section 402(a) of the Act authorizes EPA to issue NPDES permits authorizing 

discharges of pollutants and stormwater associated with industrial activity. 33 U.S.C. §1342(a), 

(p). EPA may delegate administration of the NPDES permit program to states with regulatory 

programs meeting applicable criteria. 33 U.S.C. § 1342(b); 40 C.F.R. Part 123. 

21. Federal and state regulations require any person who discharges or proposes to 

discharge pollutants or stormwater associated with industrial activity to waters of the United 

States to apply for an NPDES permit. 40 C.F.R. § 122.21(a); OAR 340-045-0015(2) & (5). 

22. Compliance with the terms and conditions of an NPDES permit is deemed 

compliance with the general discharge prohibition in Section 301(a). 33 U.S.C. § 1342(k). Any 

permit noncompliance is grounds for a citizen enforcement action. 33 U.S.C. §§ 1365(a)(1), 

(f)(6). 

V. FACTS 

A. Oregon’s General NPDES Stormwater Discharge Permit Number 1200-Z and 

Defendant’s NPDES Permit Coverage. 

23. The State of Oregon implements a federally-approved NPDES permit program 

administered by the ODEQ. See OAR Chapter 340-045. ODEQ issues general and individual 

NPDES permits authorizing discharges of pollutants in the State of Oregon. A person seeking 

coverage under one of ODEQ’s general permits must submit certain application materials to 

ODEQ, which then assigns NPDES permit coverage to the discharger if appropriate. 

24. ODEQ periodically issues a general NPDES permit authorizing discharges of 

stormwater associated with industrial activity in Oregon. For facilities that obtain coverage 

under it, so-called “permittees,” ODEQ’s current General Stormwater Discharge Permit Number 

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1200-Z authorizes discharges of industrial stormwater from July 1, 2012 to June 30, 2017 (“2012 

General Permit”), provided the discharges are in compliance with the terms and conditions of the 

permit. Once a facility obtains NPDES permit coverage under the 2012 General Permit, a 

violation of the permit or any condition thereof is subject to citizen suit enforcement. 33 U.S.C. 

§§ 1365(a)(1), (f)(6). 

25. To reduce and eliminate pollutant concentrations in stormwater discharges, the 

2012 General Permit requires permittees to develop and implement a Stormwater Pollution 

Control Plan (“SWPCP”); to monitor and report pollutant loadings in stormwater discharged 

from the facility; and, in certain circumstances, to revise the SWPCP and implement more 

comprehensive stormwater management practices over time to protect water quality. 

 26. Defendant’s facility discharges stormwater associated with industrial activity and 

other pollutants via point-source stormwater conveyances to Amazon Creek and/or the Amazon 

Diversion Canal, the Long Tom River, and the Willamette River. 

 27. By letter dated September 12, 2013, ODEQ granted Defendant NPDES permit 

coverage under the 2012 General Permit, thereby authorizing those stormwater discharges from 

Defendant’s facility that are in compliance with the terms and conditions of Defendant’s NPDES 

permit. ODEQ assigned Defendant file number 108749. Under the same permit number, 

Defendant also had coverage under the previous iteration of ODEQ’s General Stormwater 

Discharge Permit (the “2007 General Permit”) for industrial stormwater discharges from 

Defendant’s facility. 

28. BJB Milling’s NPDES permit prohibits any direct or indirect discharge to waters 

of the state that is not in compliance with the terms and conditions of the permit. BJB Milling’s 

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NPDES permit also clearly states: “Any permit noncompliance constitutes a violation of ... the 

Clean Water Act ... and is grounds for enforcement action....” 

B. Defendant’s Violations of its NPDES Permit. 

29. Defendant is discharging pollutants and stormwater associated with industrial 

activity from the BJB Milling & Lumber, LLC facility at or near 101 Iowa Street, Eugene, 

Oregon 97402 to Amazon Creek and/or the Amazon Diversion Canal, the Long Tom River, and 

the Willamette River, in violation of the terms and conditions of its NPDES permit. Defendant’s 

violations of its NPDES permit and the CWA are set forth in section I of the Notice Letter and 

are hereby incorporated by reference. 

1. Defendant Violated Its Permit by Failing to Comply with The Effluent Limits 

and Required Stormwater Control Measures in its NPDES permit. 

30. Defendant violated the narrative, technology based effluent limits and the permit 

conditions setting forth the control measures required to meet those limits. Schedule A.1 of 

Defendant’s NPDES permit requires Defendant to implement the listed narrative, technologybased effluent limits—to implement a variety of best management practices listed in the permit 

to reduce pollutants in stormwater discharged from its facility—as well as the sector-specific 

effluent limits listed in Schedule E of Defendant’s NPDES permit, which require Defendant to 

limit the discharge of wood debris, minimize leachate from decaying wood materials, and 

minimize the generation of dust. 

31. Additionally, Schedule A.3.a of Defendant’s NPDES permit requires Defendant 

“to select, design, install, implement and maintain control measures to meet the narrative and 

numeric technology based effluent limits in Schedule A.1, A.2 and Schedule E of the permit and 

[to] describe[] these measures in the SWPCP.” Schedule A.6.c of the NPDES permit requires 

Defendant to implement the SWPCP. And Schedule A.3.b of the NPDES permit requires 

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Defendant to “...reduce or eliminate pollutants to the extent achievable using control measures 

that are technologically available and economically practicable and achievable in light of best 

industry practice.” 

32. Defendant has violated and is violating Schedule A.1, Schedule E, Schedule 

A.3.a, Schedule A.3.b, and Schedule A.6.c of its NPDES permit by failing to implement the 

narrative, technology-based effluent limits in Schedule A.1 and Schedule E of its NPDES permit; 

by failing to select, design, install, implement, and maintain control measures that meet the 

narrative, technology-based effluent limits in Schedule A.1 and Schedule E of its NPDES permit; 

by failing to describe such measures in its SWPCP; and by failing to fully implement its 

SWPCP. These violations are demonstrated in part by the fact that Defendant is greatly 

exceeding the pollutant benchmarks imposed by Schedule A.9 of Defendant’s NPDES permit. 

33. Schedule A.9 of the NPDES permit explains that the benchmarks “are designed to 

assist the permit registrant in determining whether its site controls are effectively reducing 

pollutant concentrations in stormwater discharged from the site.” Schedule A.9 establishes the 

following statewide benchmarks applicable to Defendant: total copper, 0.020 mg/L; total lead, 

0.040 mg/L; total zinc, 0.12 mg/L; pH, 5.5 – 9.0 S.U.; total suspended solids, 100 mg/L; and 

total oil and grease, 10 mg/L. Additionally, Schedule E.A.3 of Defendant’s NPDES permit 

establishes sector-specific benchmark of 120.0 mg/L for chemical oxygen demand. Because 

Defendant discharges to a water body that is not meeting water quality standards for various 

pollutants, including arsenic, Defendant’s NPDES permit also requires Defendant to monitor for 

arsenic and establishes a reference concentration for arsenic of 0.0021 mg/L. 

34. As indicated in Table 1, below, Defendant has repeatedly failed to meet the 

benchmarks established by its NPDES permit, demonstrating that Defendant’s stormwater 

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controls are not effectively minimizing or reducing pollutants in stormwater discharged from the 

facility and that Defendant is in violation of Schedule A.1, Schedule E, Schedule A.3.a, Schedule 

A.3.b and Schedule A.6.c of its NPDES permit. Defendant can and must do more to reduce 

those pollutant loads, including revising its SWPCP and then implementing those revisions in a 

timely manner. These permit requirements and Defendant’s violations thereof are described in 

section I.B. of the Notice Letter and are hereby incorporated by reference. These violations have 

occurred each and every day since Defendant obtained its NPDES permit coverage on September 

12, 2013, and are ongoing. 

TSS – total suspended solids 

O & G – oil and grease 

COD – chemical oxygen demand 

ND – No Detect, result below analysis detection level 

W – Waiver, monitoring requires for the parameters are waived 

Bold – result is over the permit benchmark 

Table 1 

Discharge Monitoring Results Reported by BJB Milling 

pH 

(S.U.) 

(Bench

-mark: 

5.5 - 

9.0 

S.U.) 

TSS 

(mg/L) 

(Benchmark: 

100 

mg/L) 

O & G 

(mg/L) 

(Benchmark 

10 

mg/L) 

Copper 

(mg/L) 

(Benchmark: 

0.020 

mg/L) 

Lead 

(mg/L) 

(Benchmark: 

0.040 

mg/L) 

Zinc 

(mg/L) 

(Benchmark: 0.12 

mg/L) 

COD 

(mg/L) 

(Benchmark 

120 

mg/L) 

Arsenic 

(mg/L) 

(Benchmark: 

0.0021 

mg/L) 

11/12/13 6.9 1420 ND 0.37 0.12 0.74 399 0.017 

12/13/13 8 1110 ND 0.23 0.058 1.1 370 

2/18/14 6.8 1220 29.5 0.18 0.049 0.84 333 0.007 

3/27/14 6.55 7660 49.3 0.31 0.36 4.5 1580 

Geo-Mean 2001.8 9.76 0.2625 0.105 1.3244 527.92 

11/3/14 7.14 1860 30.1 0.444 0.152 2.38 612 0.0189 

11/21/14 7.29 3900 56.2 0.661 0.223 3.59 961 

2/2/15 7.1 2400 55 0.458 0.284 2.83 1100 0.0079 

3/23/15 W 2000 32 0.46 0.19 2.4 150 

Geo-Mean 2429 42 0.499 0.207 2.76 558 

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35. Schedules B.2 and B.8 of Defendant’s NPDES permit require that Defendant 

collect and have analyzed samples of discharges that are representative of stormwater discharges 

from the facility and report the results of such analyses to ODEQ or the City of Eugene on 

Discharge Monitoring Reports (“DMRs”) approved by ODEQ. Table 1 above provides 

monitoring results reported to ODEQ or the City of Eugene by Defendant on DMRs under the 

NPDES permit conditions. 

36. Defendant violated the water quality-based effluent limitations in its NPDES 

permit. Schedule A.4.a of Defendant’s NPDES permit prohibits Defendant from causing or 

contributing to a violation of instream water quality standards as established in Oregon 

Administrative Rules 340-041. Defendant has violated and is violating Schedule A.4.a of its 

NPDES permit by discharging stormwater that causes or contributes to violations of the water 

quality standard for arsenic in one or more of the receiving waters. These permit requirements 

and Defendant’s violations thereof are described in section I.C. of the Notice Letter and are 

hereby incorporated by reference. These violations have occurred each and every day since 

Defendant obtained its coverage under the 2012 General Permit and on which there was 0.1 inch 

or more of precipitation, including on November 12, 2013, February 18, 2014, November 3, 

2014, and February 2, 2015, when Defendant collected a sample of its stormwater discharge that 

exceeded the reference concentration for arsenic. These violations are ongoing. 

2. Defendant Violated Its NPDES Permit by Failing to Prepare and Implement 

the Required Stormwater Pollution Control Plan. 

37. Defendant violated its NPDES permit by failing to prepare and implement a 

SWPCP consistent with the requirements of the NPDES permit. Defendant exceeded the 

benchmark for total suspended solids (“TSS”) for its fourth year geometric mean evaluation 

under Defendant’s prior NPDES permit. Condition 4.a.ii.1 of Defendant’s NPDES permit 

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therefore required Defendant to submit to the City of Eugene, by March 31, 2012, an updated 

SWPCP that included additional stormwater treatment measures with the goal of achieving the 

benchmarks in Schedule A.9 of its NPDES permit in future discharges, as well as an explanation 

of the rationale for the treatment measures selected and the projected reduction of pollutant 

concentrations that would result. Defendant violated these requirements by failing to timely 

submit an updated SWPCP that complies with all applicable requirements. These permit 

requirements and Defendant’s violations thereof are described in section I.A. of the Notice Letter 

and are hereby incorporated by reference. 

38. Additionally, Schedule A.6.a and A.6.c of Defendant’s NPDES permit require 

Defendant to prepare and implement a SWPCP consistent with the requirements of the permit. 

Schedule A.7 of Defendant’s NPDES permit describes the required elements for the SWPCP, 

which include a description of control measures installed and implemented to meet the 

technology and water quality based requirements in Schedule A.1 – A.5 and Schedule E; a 

description of how the stormwater control measures address potential pollutant sources from 

industrial activities and significant materials at the facility (Schedule A.7.b.v); and preventative 

maintenance procedures for conducting inspections, maintenance, and repairs (Schedule 

A.7.c.ii.). The benchmark exceedances listed in Table 1, above, and the fact that the pollutant 

loadings in Defendant’s stormwater discharges are increasing over time, demonstrate that 

Defendant has violated and is violating these permit requirements by failing to prepare and/or 

implement a SWPCP that meets permit requirements. These permit requirements and 

Defendant’s violations thereof are described in section I.D. of the Notice Letter and are hereby 

incorporated by reference. These violations have occurred each and every day since Defendant 

obtained coverage under the NPDES Permit on September 12, 2013 and are ongoing. 

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3. Defendant Violated Its NPDES Permit by Failing to Implement Required 

Corrective Actions. 

39. Defendant violated its NPDES permit by failing to take corrective actions in a 

timely manner after failing to implement control measures in its SWPCP. Schedule A.3.d.i of 

Defendant’s NPDES permit states: “If the permit registrant is failing to implement the control 

measures in the SWPCP, they must take corrective actions and implement the measures before 

the next storm event if practicable, unless otherwise approved by [the Oregon Department of 

Environmental Quality] or Agent.” Additionally, Schedule A.3.d.ii of Defendant’s NPDES 

permit states: 

If modifications to the control measures are necessary to meet the technology 

limits in the permit, permit registrant must revise SWPCP within 30 days, unless 

otherwise approved by DEQ or Agent. Permit registrant must implement the 

corrective actions before the next storm event if practicable or no later than 60 

days from discovering the violation, unless a later date is approved by DEQ or 

Agent. 

The benchmark exceedances listed in Table 1, above, and the fact that the pollutant loadings in 

Defendant’s stormwater discharges are increasing over time, demonstrate that Defendant is 

failing to minimize pollutant loadings in its stormwater discharges and also demonstrates that 

Defendant violated Schedule A.3.d of the NPDES permit by failing to fully implement its 

SWPCP and by failing to take corrective actions even though modifications to the control 

measures are necessary to meet the effluent limits in the permit. These permit requirements and 

Defendant’s violations thereof are described in section I.B. of the Notice Letter and are hereby 

incorporated by reference. These violations have occurred each and every day since Defendant 

obtained coverage under the NPDES Permit on September 12, 2013 and are ongoing. 

40. Defendant violated Schedule A.6.c of its NPDES permit by abandoning or failing 

to fully implement the treatment measures incorporated into its SWPCP as part of the Tier II 

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Corrective Action triggered by its fourth year benchmark compliance evaluation under the prior 

1200-Z NPDES permit. Specifically, Defendant did not implement the Tier II corrective actions 

it identified in the revised SWPCP it developed as part of the Tier II Corrective Action triggered 

by its fourth year benchmark compliance evaluation under the prior 1200-Z NPDES permit. Nor 

has Defendant implemented any substitute Tier II corrective action meeting permit requirements. 

These permit requirements and Defendant’s violations thereof are described in section I.D. of the 

Notice Letter and are hereby incorporated by reference. These violations have occurred each and 

every day since Defendant abandoned its efforts to timely implement the treatment measures, 

which occurred no later than September 12, 2015. 

41. Defendant violated its NPDES permit by failing to comply with the Tier I 

corrective actions in the permit. Schedule A.10 of Defendant’s NPDES permit obligates 

Defendant to conduct a Tier 1 Corrective Action Response anytime its stormwater sampling 

results exceed an applicable statewide benchmark identified in Schedule A.9, an applicable 

sector-specific benchmark identified in Schedule E, or an applicable impairment pollutant 

reference concentration identified in Defendant’s permit assignment letter. A Tier 1 Corrective 

Action requires Defendant, within 30 days of receiving the monitoring results, to investigate the 

cause of the elevated pollutant levels, review its SWPCP and the selection, design, installation, 

and implementation of control measures to ensure compliance with the NPDES permit, make any 

necessary revisions to the SWPCP, and submit the revisions to the City of Eugene. Defendant’s 

NPDES permit further requires Defendant to prepare and retain a Tier I report that summarizes 

the results of the investigation, the corrective actions taken or to be taken, the corrective action 

schedule, the basis for any determination that corrective action is not necessary, and whether 

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SWPCP revisions are necessary. Defendant must implement the Tier I Corrective Action before 

the next storm even if possible or as soon as practicable. 

42. Defendant violated the corrective action requirements of Schedule A.10 of its 

NPDES permit by failing to timely complete a Tier I Corrective Action Response that fulfills all 

of the requirements described above for each of the benchmark exceedances for total copper, 

total lead, total zinc, total oil and grease, and chemical oxygen demand, and for each of the 

reference concentration exceedances for arsenic identified in Table 1 above. These requirements 

and Defendant’s violations thereof are described in section I.E.1. of the Notice Letter and are 

hereby incorporated by reference. These violations have occurred each and every day since 

November 12, 2013 and are ongoing. 

43. Defendant also violated its NPDES permit by failing to comply with the Tier II 

corrective actions in the permit. Schedule A.11 of the NPDES permit requires Defendant to 

complete a Tier II Corrective Action because it exceeded the benchmark for total suspended 

solids based upon its fourth year benchmark compliance evaluation under its prior 1200-Z 

NPDES permit. Specifically, within two years of obtaining permit coverage, no later than 

September 12, 2015, Defendant must implement an updated SWPCP that includes additional 

stormwater treatment measures with the goal of achieving benchmarks in future discharges and 

an explanation of the rationale for the treatment measures selected and the projected reduction of 

pollutant concentrations that would result. 

44. Defendant violated Schedule A.11 of the NPDES permit by failing to fully and 

properly implement Tier II corrective actions for TSS within the time period required by the 

NPDES permit. Specifically, Defendant did not implement the Tier II corrective actions it 

identified in the revised SWPCP it developed as part of the Tier II Corrective Action triggered by 

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its fourth year benchmark compliance evaluation under the prior 1200-Z NPDES permit. Nor 

has Defendant implemented any substitute Tier II corrective action meeting permit requirements. 

These permit requirements and Defendant’s violations thereof are described in section I.E.2. of 

the Notice Letter and are hereby incorporated by reference. These violations have occurred each 

and every day since September 12, 2015 and are ongoing.

45. Additionally, Schedule A.12 of the NPDES permit requires Defendant to 

complete a Tier II Corrective Action Response if the geometric mean of sample results collected 

during the 2nd year of coverage under its current NPDES permit exceed any statewide benchmark 

in Schedule A.9. Defendants’ NPDES permit coverage letter explains that monitoring data 

collected from July 1, 2013, to June 30, 2014, are to be used for this 2nd year benchmark 

evaluation. The Tier II Corrective Action then requires Defendant to revise its SWPCP to 

include additional treatment measures with the goal of achieving benchmarks in future 

discharges and to describe the rationale for the selection of the measures, the projected reduction 

of pollutant concentrations, and the schedule for implementing the additional measures. Under 

its NPDES permit, Defendant must submit its revised SWPCP to the City of Eugene by 

December 31st of the 3rd year of coverage under the current NPDES permit—i.e., by December 

31, 2014—and must fully implement that revised SWPCP by June 30 of the 4th year of coverage 

under its NPDES permit. 

46. As indicated on Table 1 above, Defendant triggered these Tier II Corrective 

Action requirements for total copper, total lead, and total zinc. Defendant is in violation of 

Schedule A.12 of its NPDES permit because it has failed to timely complete the Tier II 

Corrective Action requirements described above for total copper, total lead, and total zinc, 

including by failing to submit a revised SWPCP to the City of Eugene, Oregon by December 31, 

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2014. These permit requirements and Defendant’s violations thereof are described in section 

I.E.2. of the Notice Letter and are hereby incorporated by reference. These violations have 

occurred each and every day since December 31, 2014 and are ongoing. 

4. Defendant Violated Its NPDES Permit by Failing to Inspect Its Facility and 

Mitigate and Report Its NPDES Permit Violations. 

47. Defendant violated its NPDES permit by failing to comply with the inspection 

requirements in its NPDES permit. Schedule B.7 of Defendant’s NPDES permit requires 

Defendant to conduct monthly inspections of areas exposed to stormwater and stormwater 

control measures. Defendant must prepare and maintain an inspection report for each monthly 

inspection that documents the inspection results and any corrective actions that will be taken in 

response. On information and belief, Defendant violated Schedule B.7 of the NPDES permit by 

failing to conduct and document each of the requisite monthly inspections in accordance with the 

permit requirements. These requirements and Defendant’s violations thereof are described in 

section I.F. of the Notice Letter and are hereby incorporated by reference. These violations have 

occurred each and every day since September 12, 2013 and are ongoing. 

48. Defendant violated its NPDES permit by failing to comply with the mitigation 

requirements in its NPDES permit. Schedule F.A.3 of Defendant’s NPDES permit requires 

Defendant to take all reasonable steps to minimize or prevent any discharge in violation of its 

NPDES permit. The permit violations alleged herein demonstrate that Defendant has violated 

and is violating Schedule F.A.3 of its NPDES permit by failing to take all reasonable steps to 

minimize or prevent discharges in violation of the permit. These permit requirements and 

Defendant’s violations thereof are described in section I.G. of the Notice Letter and are hereby 

incorporated by reference. These violations have occurred each and every day since September 

12, 2013 and are ongoing. 

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49. Defendant violated its NPDES permit by failing to report all instances of permit 

noncompliance to the applicable authorities. Schedule F.D.6 of Defendant’s NPDES permit 

requires Defendant to report to ODEQ or the City of Eugene all instances of permit 

noncompliance not reported under Schedule F.D.4 of F.D.5 of the permit at the time Defendant 

submits its monitoring reports. Each noncompliance report must contain specific information. 

Defendant violated this permit requirement by failing to submit to the applicable authorities in a 

timely manner sufficient noncompliance reports that explain all instances of noncompliance with 

Defendant’s NPDES permit. On information and belief, Defendant has violated and is in 

violation of these permit requirements because it has failed to submit to ODEQ or the City of 

Eugene sufficient reports of all instances of permit noncompliance described in this Complaint 

that were not reported under Schedule F.D.4 of F.D.5 of the permit at the time Defendant 

submits its monitoring reports. These permit requirements and Defendant’s violations thereof 

are described in section I.H. of the Notice Letter and are hereby incorporated by reference. 

These violations are ongoing. 

50. Discharges from Defendant’s facility contribute to the polluted conditions of the 

waters of the State, including Amazon Creek, the Amazon Diversion Canal, the Long Tom 

River, and the Willamette River. Discharges from Defendant’s facility contribute to the 

ecological impacts that result from the polluted condition of these waters and to NEDC’s and its 

members’ injuries resulting therefrom. 

51. A significant penalty should be imposed against Defendant under the penalty 

factors set forth in 33 U.S.C. § 1319(d). 

52. Defendant’s violations were avoidable had Defendant been diligent in overseeing 

facility operations and maintenance. 

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53. Defendant has benefited economically as a consequence of its violations and its 

failure to implement improvements at the facility. 

VI. CAUSE OF ACTION

 54. Plaintiff hereby incorporates the previous paragraphs by reference. 

 55. The violations of Defendant’s NPDES permit described herein and in the Notice 

Letter constitute violations of an “effluent standard or limitation” as defined by section 505 of 

the CWA, 33 U.S.C. § 1365. 

 56. Upon information and belief, the NPDES permit violations committed by 

Defendant are continuing or are reasonably likely to re-occur. Any and all additional violations 

of Defendant’s NPDES permit and the CWA which occur after those described in NEDC’s 

Notice Letter but before a final decision in this action are continuing violations subject to this 

Complaint. 

 57. Without the imposition of appropriate civil penalties and the issuance of an 

injunction, Defendant is likely to continue to violate its NPDES permit and the CWA to the 

further injury of NEDC, its member(s) and others. 

 58. A copy of this Complaint will be served upon the Attorney General of the United 

States and the Administrator of the EPA as required by 33 U.S.C. § 1365(c)(3). 

VII. RELIEF REQUESTED 

 Wherefore, NEDC respectfully requests that this Court grant the following relief: 

 A. Declare that Defendant has violated and continues to be in violation of its NPDES 

permit, as alleged herein; 

 B. Enjoin Defendant from operating its facility in a manner that results in further 

violations of its NPDES permit or the CWA; 

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 C. Order Defendant to immediately implement a SWPCP that complies with its 

NPDES permit; 

 D. Order Defendant to allow NEDC to participate in the development and 

implementation of Defendant’s SWPCP; 

 E. Order Defendant to provide NEDC, for a period of time beginning on the date of 

this Court’s Order granting NEDC relief and running for one year after Defendant achieves 

compliance with all of the conditions of its NPDES permit, with copies of all reports and other 

documents that Defendant submits to the EPA or to ODEQ regarding Defendant’s NPDES 

permit at the time those documents are submitted to these agencies; 

 F. Order Defendant to take specific actions to remediate the environmental harm 

caused by its violations; 

 G. Grant such other preliminary and/or permanent relief as NEDC may from time to 

time request during the pendency of this case; 

 H. Order Defendant to pay civil penalties of $37,500.00 per day of violation for each 

violation committed by Defendant pursuant to Sections 309(d) and 505(a) of the CWA, 33 

U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19; 

I. Award NEDC its litigation expenses, including reasonable attorneys’ and expert 

witness fees, as authorized by Section 505(d) of the CWA, 33 U.S.C. § 1365(d); and 

J. Award such other relief as this Court deems appropriate. 

RESPECTFULLY SUBMITTED this 17th day of December, 2015. 

 

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COMPLAINT 

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 KAMPMEIER & KNUTSEN PLLC 

 By: s/ Brian A. Knutsen 

 Brian A. Knutsen, OSB # 112266 

 833 S.E. Main St., No. 318 

 Portland, Oregon 97214 

 Tel: (503) 841-6515 

 Email: brian@kampmeierknutsen.com 

By: s/ Paul A. Kampmeier 

 Paul A. Kampmeier, WSBA No. 31560 

Applicant for admission pro hac vice

 615 Second Avenue, Suite 360 

 Seattle, Washington 98104-2245 

 Tel: (206) 223-4088 x 4 

 Email: paul@kampmeierknutsen.com 

 Attorneys for Plaintiff NEDC

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EXHIBIT 1 

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